Chapter 970

970.032 Annotation A 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 a trial court to balance the treatment available in the juvenile system and adult system and requires the court 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) is not unconstitutionally vague. State v. Armstead, 220 Wis. 2d 626, 583 N.W.2d 444 (Ct. App. 1998), 97-3056.

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 the juvenile 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 the juvenile’s 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 the juvenile 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 the juvenile is accused. State v. Toliver, 2014 WI 85, 356 Wis. 2d 642, 851 N.W.2d 251, 12-0393.

970.032 Annotation Nothing in sub. (1) can be interpreted as requiring the state to disprove a juvenile’s affirmative defense in order for the adult court to maintain jurisdiction and bind the juvenile over for trial. State v. Geyser, 2020 WI App 58, 394 Wis. 2d 96, 949 N.W.2d 594, 18-1897.

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.

970.035 History History: 1987 a. 27; 1993 a. 98; 1995 a. 77, 448; 1997 a. 35, 205.

970.038 970.038 Preliminary examination; hearsay exception.

970.038(1) (1) Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination under ss. 970.03, 970.032, and 970.035.

970.038(2) (2) A court may base its finding of probable cause under s. 970.03 (7) or (8), 970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1).

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 affected only the evidence that could be admitted at the preliminary hearing and did 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 second 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 hearing. “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) (2) 

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 History History: 1993 a. 437; 1995 a. 199; 2017 a. 59.

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).