970.03 Annotation
An unconstitutionally obtained confession may be admitted and serve as the sole basis for bindover at a preliminary examination. State v. Moats,
156 Wis. 2d 74,
457 Wis. 2d 299 (1990).
970.03 Annotation
A defendant claiming error at a preliminary examination may obtain relief only prior to trial; the defendant may seek interlocutory review from the court of appeals under s. 809.50. State v. Webb,
160 Wis. 2d 622,
467 N.W.2d 108 (1991).
970.03 Annotation
Adjourning a preliminary examination for cause is within the court's discretion. State v. Selders,
163 Wis. 2d 607,
472 N.W.2d 526 (Ct. App. 1991).
970.03 Annotation
A court commissioner's determinations of admissibility of evidence will be upheld absent an erroneous exercise of discretion; the reviewing court then determines whether, if believed, the evidence would permit a reasonable magistrate to conclude that the defendant probably committed the crime. State v. Lindberg,
175 Wis. 2d 332, N.W.2d (Ct. App. 1993).
970.03 Annotation
If a bindover decision is made by a court commissioner or circuit judge, review must be by a motion to dismiss brought in circuit court. Habeas corpus is not available to review a bindover. Dowe v. Waukesha County Circuit Ct.
184 Wis. 2d 724,
516 N.W.2d 714 (1994).
970.03 Annotation
Single count complaints under sub. (7) and multiple count complaints under sub. (10) are to receive the same procedural treatment. In multiple count complaints a court must dismiss any count for which it believes there is not probable cause to believe a felony has been committed by the defendant. The specific felony charged need not be proved and it is inadvisable for the court to opine as to what felony was probably committed. Evidence that is not transactionally related to a count for which bind over is considered proper may not form the basis for a count in an ensuing information, but the information may include any count that is transactionally related to a count on which the defendant is bound over. State v. Williams,
198 Wis. 2d 516,
544 N.W.2d 406 (1996). See also State v. Williams,
198 Wis. 2d 479,
544 N.W.2d 400 (1996) and State v. Akins,
198 Wis. 2d 495,
544 N.W.2d 392 (1996).
970.032
970.032
Preliminary examination; juvenile under original adult court jurisdiction. 970.032(1)
(1) Notwithstanding
s. 970.03, if a preliminary examination is held regarding a juvenile who is subject to the original jurisdiction of the court of criminal jurisdiction under
s. 938.183 (1) or
(2), the court shall first determine whether there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(ar),
(b) or
(c) or
(2), whichever is applicable. If the court does not make that finding, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under
ch. 938.
970.032(2)
(2) If the court finds probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(ar),
(b) or
(c), the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938.The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence all of the following:
970.032(2)(a)
(a) That, if convicted, the juvenile could not receive adequate treatment in the criminal justice system.
970.032(2)(b)
(b) That transferring jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938 would not depreciate the seriousness of the offense.
970.032(2)(c)
(c) That retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(ar),
(b) or
(c), whichever is applicable.
970.032 Annotation
This section does not violate a defendant's right to equal protection. State v. Martin,
191 Wis. 2d 647,
530 N.W.2d 420 (Ct. App. 1995).
970.032 Annotation
The juvenile bears the burden of proof to demonstrate that the factors under sub. (2) support removing jurisdiction to the juvenile court. The removal decision is within the discretion of the trial court. State v. Verhagen,
198 Wis. 2d 177,
542 N.W.2d 189 (Ct. App. 1995).
970.032 Annotation
Sub. (2) (a) allows the trial court to balance the treatment available in the juvenile system and adult system and requires it to decide under the facts of the case which treatment will better benefit the juvenile. State v. Dominic E.W.
218 Wis. 2d 52,
579 N.W.2d 282 (Ct. App. 1998).
970.035
970.035
Preliminary examination; juvenile younger than 15 years old. Notwithstanding
s. 970.03, if a preliminary examination under
s. 970.03 is held regarding a juvenile who was waived under
s. 938.18 for a violation which is alleged to have occurred prior to his or her 15th birthday, the court may bind the juvenile over for trial only if there is probable cause to believe that a crime under
s. 940.03,
940.06,
940.225 (1) or
(2),
940.305,
940.31 or
943.10 (2),
943.32 (2) or
961.41 (1) has been committed or that a crime that would constitute a felony under
chs. 939 to
948 or
961 if committed by an adult has been committed at the request of or for the benefit of a criminal gang, as defined in
s. 939.22 (9). If the court does not make any of those findings, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under
ch. 938.
970.04
970.04
Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.
970.04 History
History: 1993 a. 486.
970.04 Annotation
If the state has no additional new or unused evidence upon which to base a 2nd complaint, a preliminary examination order discharging a defendant is appealable. Wittke v. State ex rel. Smith,
80 Wis. 2d 332,
259 N.W.2d 515.
970.04 Annotation
When a first preliminary examination became chaotic, the prosecution properly abandoned the proceedings before presenting all its evidence and reissued the complaint. State v. Brown,
96 Wis. 2d 258,
291 N.W.2d 538 (1980).
970.04 Annotation
The state was not barred from recharging defendant, whether or not it had new evidence. State v. Hoffman,
106 Wis. 2d 185,
316 N.W.2d 143 (Ct. App. 1982).
970.04 Annotation
A complaint was properly reissued although the evidence at the 2nd examination was identical to the evidence at the first examination, because the judge did not consider the evidence at the first examination. State v. Twaite,
110 Wis. 2d 214,
327 N.W.2d 700 (1983).
970.04 Annotation
A complaint may be reissued when "new or unused" evidence would support a finding of probable cause. What constitutes new or unused evidence is not easily definable, but it is not evidence that is not merely cumulative or collaborative and is determined by applying common sense. State v. Johnson,
231 Wis. 2d 58,
604 N.W.2d 902 (Ct. App. 1999).
970.05
970.05
Testimony at preliminary examination; payment for transcript of testimony. 970.05(1)
(1) The testimony at the preliminary examination shall be transcribed if requested by the district attorney, the defendant or an attorney representing the defendant or ordered by the judge to whom the trial is assigned. The reporter shall file such transcript with the clerk within 10 days after it is requested.
970.05(2)(a)(a) When a transcript is requested under
sub. (1) by someone other than a person specified in
par. (b) or
(c), the county shall pay the cost of the original and any additional copies shall be paid for at the statutory rate by the party requesting the copies.
970.05(2)(b)
(b) When a transcript is requested under
sub. (1) by the state public defender or by a private attorney appointed under
s. 977.08, the state public defender shall pay the cost of the original from the appropriation under
s. 20.550 (1) (f) and any additional copies shall be paid for at the statutory rate by the party requesting the copies.
970.05(2)(c)
(c) When a transcript is requested under
sub. (1) by a defendant who is not indigent under
ch. 977 or by an attorney retained by a defendant who is not indigent under
ch. 977, the defendant shall pay the cost of the original and any additional copies shall be paid for at the statutory rate by the party requesting the copies.
970.05 History
History: 1993 a. 437;
1995 a. 199.
970.05 Annotation
Counsel is not entitled to a free copy of the transcript if the original is reasonably available for his use. State v. Schneidewind,
47 Wis. 2d 110,
176 N.W.2d 303.
