970.03 Annotation
If an appellate court stays the trial court proceedings on an interlocutory appeal, sub. (2) does not set a mandatory time limit for the preliminary hearing upon remittitur. State v. Horton,
151 Wis. 2d 250,
445 N.W.2d 46 (Ct. App. 1989).
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,
500 N.W.2d 322 (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),
93-2444. See also State v. Williams,
198 Wis. 2d 479,
544 N.W.2d 400 (1996),
93-2517 and State v. Akins,
198 Wis. 2d 495,
544 N.W.2d 392 (1996),
94-1872.
970.03 Annotation
Following a bindover at a preliminary hearing, the proper test for reviewing a challenge to an information that alleges wholly new charges not accompanied by the original charge is the sufficiency of evidence test. State v. Cotton,
2003 WI App 154,
266 Wis. 2d 308,
668 N.W.2d 346,
02-2923.
970.03 Annotation
The purpose of a preliminary examination is limited to an expeditious determination of whether probable cause exists for the state to proceed with felony charges against a defendant. This limited purpose does not permit a criminal defendant to compel discovery in anticipation of the hearing. There is no 6th amendment right, based on effective assistance of counsel, and no compulsory process right to subpoena police reports and other non-privileged materials prior to the examination. State v. Schaefer,
2008 WI 25,
308 Wis. 2d 279,
746 N.W.2d 457,
06-1826.
970.03 Annotation
It was not proper to dismiss a criminal charge added in the information because the prosecutor successfully objected at the preliminary hearing to questions that were relevant to that crime but not to the crime charged in the complaint. State v. White,
2008 WI App 96,
312 Wis. 2d 799,
754 N.W.2d 214,
07-2061.
970.03 Annotation
Sub. (5) does not create a confrontation right. It does not require the state to present a defendant with hearsay declarants for cross-examination, rather it “permits cross-examination of only those people actually called to the stand." State v. O'Brien,
2014 WI 54,
354 Wis. 2d 753,
850 N.W.2d 8,
12-1769.
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), 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), 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),
94-2823.
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),
97-2446.
970.032 Annotation
Sub. (2) makes no provision for the admission of hearsay at a reverse waiver hearing. When a statute does not specifically authorize hearsay, it is generally prohibited. State v. Kleser,
2010 WI 88,
328 Wis. 2d 42,
786 N.W.2d 144,
07-2827.
970.032 Annotation
A juvenile has a right to a reverse waiver hearing after the criminal court finds probable cause to believe that the juvenile has committed the exclusive original jurisdiction violation or violations of which he or she is accused. At the hearing, the juvenile must prove all elements set out in sub. (2) (a), (b), and (c) by a preponderance of the evidence. The juvenile must be given reasonable latitude to offer admissible evidence to satisfy his or her burden on the three elements, including evidence about the offense, supplementing the facts used to establish probable cause, to put the offense in context. The juvenile may not offer evidence at the hearing for the purpose of contradicting the offense charged. State v. Kleser,
2010 WI 88,
328 Wis. 2d 42,
786 N.W.2d 144,
07-2827.
970.032 Annotation
When a juvenile is charged in adult court with a violation of one of the offenses enumerated in s. 938.183 (1), the juvenile is entitled to a preliminary examination under sub. (1) at which the court must find that there is probable cause to believe that the juvenile has committed the violation of which he or she is accused if the adult court is to retain exclusive original jurisdiction of the juvenile. This means that the court should make a specific finding on the record that there is probable cause to believe the juvenile committed the specific s. 938.183 (1) crime charged in the complaint. State v. Toliver,
2014 WI 85,
356 Wis. 2d 642,
851 N.W.2d 251,
12-0393.
970.032 Annotation
If an adult court's determination of probable cause in a preliminary examination under this section relates to an unspecified felony and the facts are undisputed, an appellate court may review the record independently to determine whether the court did find probable cause to believe that the juvenile has committed the violation of which he or she is accused. State v. Toliver,
2014 WI 85,
356 Wis. 2d 642,
851 N.W.2d 251,
12-0393.
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.
970.038
970.038
Preliminary examination; hearsay exception. 970.038 History
History: 2011 a. 285.
970.038 Annotation
This section is constitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. There is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, the admission of hearsay evidence does not violate petitioners' rights to compulsory process, effective assistance of counsel, or due process. State v. O'Brien,
2014 WI 54,
354 Wis. 2d 753,
850 N.W.2d 8,
12-1769.
970.038 Annotation
Application of this section, which first became effective after the date of the alleged offense, did not constitute an ex post facto violation because it affects only the evidence that may be admitted at the preliminary hearing and does not alter the quantum or nature of evidence necessary to convict the defendant. State v. Hull,
2015 WI App 46,
363 Wis. 2d 603,
867 N.W.2d 419,
14-0365.
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 (1977).
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 is not barred from recharging a defendant, whether or not it has new evidence. State v. Hoffman,
106 Wis. 2d 185,
316 N.W.2d 143 (Ct. App. 1982).
970.04 Annotation
This section allows for issuance of a second complaint if the district attorney has evidence that was not used at the first preliminary. “Unused" evidence in the context of a preliminary hearing means unused by the court in reaching its decision whether to bind the defendant over for trial. 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 merely cumulative or corroborative and is determined by applying common sense. State v. Johnson,
231 Wis. 2d 58,
604 N.W.2d 902 (Ct. App. 1999),
98-2881.
970.04 Annotation
This section specifically limits the availability of a second preliminary examination and precludes a request for a de novo hearing under the more general s. 757.69 (8). State v. Gillespie,
2005 WI App 35,
278 Wis. 2d 630,
693 N.W.2d 320,
04-1758.
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) (a) 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 Annotation
Counsel is not entitled to a free copy of the transcript if the original is reasonably available. State v. Schneidewind,
47 Wis. 2d 110,
176 N.W.2d 303 (1970).
