Chapter 970

970.03(4)(c) (c) The court shall make its closure order under this subsection no broader than is necessary to protect the compelling interest under par. (a) and shall consider any reasonable alternatives to full closure of the entire hearing.

970.03(5) (5) All witnesses shall be sworn and their testimony reported by a phonographic reporter. The defendant may cross-examine witnesses against the defendant, and may call witnesses on the defendant’s own behalf who then are subject to cross-examination.

970.03(6) (6) During the preliminary examination, the court may exclude witnesses until they are called to testify, may direct that persons who are expected to be called as witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined.

970.03(7) (7) If the court finds probable cause to believe that a felony has been committed by the defendant, it shall bind the defendant over for trial.

970.03(8) (8) If the court finds that it is probable that only a misdemeanor has been committed by the defendant, it shall amend the complaint to conform to the evidence. The action shall then proceed as though it had originated as a misdemeanor action.

970.03(9) (9) If the court does not find probable cause to believe that a crime has been committed by the defendant, it shall order the defendant discharged forthwith.

970.03(10) (10) In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971. Section 970.04 shall apply to any dismissed count.

970.03(12) (12) 

970.03(12)(a) (a) In this subsection:

970.03(12)(a)1. 1. “Hospital” has the meaning designated in s. 50.33 (2).

970.03(12)(a)2. 2. “Local health department” has the meaning given in s. 250.01 (4).

970.03(12)(b) (b) At any preliminary examination, a report of one of the crime laboratory’s, the state laboratory of hygiene’s, a federal bureau of investigation laboratory’s, a hospital laboratory’s or a local health department’s findings with reference to all or any part of the evidence submitted, certified as correct by the attorney general, the director of the state laboratory of hygiene, the director of the federal bureau of investigation, the chief hospital administrator, the local health officer, as defined in s. 250.01 (5), or a person designated by any of them, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant. The expert who made the findings need not be called as a witness.

970.03(12)(c) (c) At any preliminary examination in Milwaukee County, a latent fingerprint report of the city of Milwaukee police department bureau of identification division’s latent fingerprint identification unit, certified as correct by the police chief or a person designated by the police chief, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant. The expert who made the findings need not be called as a witness.

970.03(13) (13) Testimony may be received into the record of a preliminary examination by telephone or live audiovisual means if the proponent shows good cause or if the testimony is used to prove an element of an offense under s. 943.201 (2) or 943.203 (2).

970.03(14) (14) 

970.03(14)(a) (a) In this subsection, “child” means a person who is younger than 16 years old when the preliminary examination commences.

970.03(14)(b) (b) At any preliminary examination, the court shall admit an audiovisual recording of a statement under s. 908.08 upon making the findings required under s. 908.08 (3). The child who makes the statement need not be called as a witness and, under the circumstances specified in s. 908.08 (5) (b), may not be compelled to undergo cross-examination.

970.03 History History: 1975 c. 184; 1977 c. 449; 1979 c. 112, 332; 1985 a. 267; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 332 s. 64; 1987 a. 403; Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1991 a. 193, 276; 1993 a. 27, 98, 227, 486; 1995 a. 456; 1997 a. 252; 1999 a. 111; 2001 a. 103; 2003 a. 36; 2005 a. 42, 155, 277; 2007 a. 97, 116; 2011 a. 285.

Effective date note Judicial Council Note, 1990: [Re amendment of (13)] The right to confront one’s accusers does not apply to the preliminary examination, and since credibility is not an issue, demeanor evidence is of less significance than at trial. For these reasons, a party should not be permitted to prevent the admission of telephone testimony, although the proponent of such evidence should bear the burden of showing good cause for its admission. [Re Order eff. 1-1-91]

970.03 Annotation While hearsay relied upon in support of a criminal complaint requires some basis for crediting its reliability, whether the informants are named or not, that requirement is satisfied if the hearsay is based upon observation of the informants. State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 173 N.W.2d 175 (1970).

970.03 Annotation There is no obligation on a magistrate to conduct an investigation to verify the contents of a criminal complaint. That is the duty of the state, and if it fails to put sufficient facts before the magistrate to show probable cause, the complaint must fail even though clues and leads that could provide that information are revealed in the complaint. State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 173 N.W.2d 175 (1970).

970.03 Annotation At the preliminary hearing, a defendant is entitled to cross-examine witnesses who identified the defendant at the hearing and who also identified the defendant at a lineup because, if the lineup was unfair, the identification evidence might be suppressed. Hayes v. State, 46 Wis. 2d 93, 175 N.W.2d 625 (1970).

970.03 Annotation A ruling on admissibility of evidence at a preliminary hearing is not res adjudicata at the trial. Meunier v. State, 46 Wis. 2d 271, 174 N.W.2d 277 (1970).

970.03 Annotation It was not error for the magistrate and trial court to fail to sequester witnesses without motion by the defendant, especially in the absence of a showing of prejudice. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970).

970.03 Annotation A bind over was not invalid because the judge stated that it was “for the purpose of accepting a plea.” Dolan v. State, 48 Wis. 2d 696, 180 N.W.2d 623 (1970).

970.03 Annotation A defendant is not entitled to call witnesses for pretrial discovery or to shake the credibility of the state’s witness. State v. Knudson, 51 Wis. 2d 270, 187 N.W.2d 321 (1971).

970.03 Annotation A defendant who has been indicted by a grand jury is not entitled to a preliminary examination. State ex rel. Welch v. Waukesha County Circuit Court, 52 Wis. 2d 221, 189 N.W.2d 417 (1971).

970.03 Annotation When the preliminary examination is not timely held, personal jurisdiction is lost, but, when the defendant on arraignment enters a plea, the defense is waived. Armstrong v. State, 55 Wis. 2d 282, 198 N.W.2d 357 (1972).

970.03 Annotation Defense counsel should be allowed to cross-examine a state’s witness to determine the plausability of the witness, but not to attack the witness’s general trustworthiness. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134 (1973).

970.03 Annotation The purpose of a hearing under sub. (1) is to determine whether a felony, whether charged or not, probably was committed. After bindover, the prosecutor may charge any crime not wholly unrelated to transactions and facts adduced at the preliminary examination. Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977).

970.03 Annotation Appellate review of a preliminary hearing is limited to determining whether the record contains competent evidence to support the examining magistrate’s exercise of judgment. Although motive is not an element of any crime and does not of itself establish guilt or innocence, evidence of motive may be given as much weight as the fact finder deems it is entitled to at the preliminary hearing or trial. State v. Berby, 81 Wis. 2d 677, 260 N.W.2d 798 (1978).

970.03 Annotation Sub. (8) neither limits a prosecutor’s discretion to prosecute criminal actions nor prohibits a second examination under s. 970.04. State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978).

970.03 Annotation This section does not require that proof of the exact time of an offense be shown. State v. Sirisun, 90 Wis. 2d 58, 279 N.W.2d 484 (Ct. App. 1979).

970.03 Annotation In finding probable cause, the court properly took judicial notice of the fact that rapid consumption of one-half quart of liquor probably caused a young girl’s death. State ex rel. Cholka v. Johnson, 96 Wis. 2d 704, 292 N.W.2d 835 (1980).

970.03 Annotation An accused does not have a constitutional right to make a closing argument at a preliminary examination. State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 317 N.W.2d 458 (1982).

970.03 Annotation If any reasonable inference supports a conclusion that the defendant probably committed a crime, the magistrate must bind over the defendant. State v. Dunn, 117 Wis. 2d 487, 345 N.W.2d 69 (Ct. App. 1984).

970.03 Annotation Affirmed. 121 Wis. 2d 389, 359 N.W.2d 151 (1984).

970.03 Annotation The state has the right to appeal a dismissal when it believes an error of law was committed. An uncorroborated confession alone was sufficient to support a probable cause finding. State v. Fry, 129 Wis. 2d 301, 385 N.W.2d 196 (Ct. App. 1985).

970.03 Annotation Mandatory closure of a hearing solely at the request of a complaining witness over the objection of the defendant violates the right to a public trial. State ex rel. Stevens v. Circuit Court, 141 Wis. 2d 239, 414 N.W.2d 832 (1987).

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 N.W.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. The decision must be based on an analysis of two major factors: 1) the justification for the relief sought; and 2) the possible prejudice to the opposing party. When appropriate, such as in criminal cases, the public interest should also be considered. State v. Selders, 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991).

970.03 Annotation The purpose of the preliminary hearing includes protections beyond those expressed in the statutory language of sub. (1). The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based. State v. Richer, 174 Wis. 2d 231, 496 N.W.2d 66 (1993).

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. State ex rel. Dowe v. Circuit Court, 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 the court 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; 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.

970.03 Annotation There is nothing improper about a circuit court or a court commissioner acting sua sponte to extend the time within which to hold a preliminary hearing under sub. (2). State v. Lee, 2021 WI App 12, 396 Wis. 2d 136, 955 N.W.2d 424, 19-0221.

970.03 Annotation When a circuit court or a court commissioner sua sponte extends the time limit for holding a preliminary hearing under sub. (2) based on delays in the state public defender’s appointment of counsel for a defendant, the court must conduct a relatively thorough inquiry that ensures there is good cause for the extension. The inquiry’s level of thoroughness will be reflective of overall length of the delay in each case. The court should recite on the record the factors that lead the court to find good cause and why such factors override the statutory directive that a preliminary hearing be promptly held. The justification for extending the time limit must be set forth with reasonable specificity, and the court must consider countervailing factors and what weight to give them. State v. Lee, 2021 WI App 12, 396 Wis. 2d 136, 955 N.W.2d 424, 19-0221.

970.03 Annotation The failure to hold a preliminary hearing within the prescribed time results in a loss of personal jurisdiction, which requires only a dismissal without prejudice. State v. Lee, 2021 WI App 12, 396 Wis. 2d 136, 955 N.W.2d 424, 19-0221.

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 History History: 1993 a. 98; 1995 a. 77, 352; 1997 a. 35, 205; 2005 a. 344.

970.032 Annotation This section does not violate a defendant’s right to equal protection. State v. Martin, 191 Wis. 2d 646, 530 N.W.2d 420 (Ct. App. 1995).

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)