Preliminary Hearings

Wisconsin criminal laws require that defendants in felony cases are afforded the opportunity for a Preliminary Hearing. The Preliminary Hearing can be waived by the defendant. Wisconsin criminal defense attorneys consult with their clients about whether to waive the Preliminary Hearing or force the State to provide witnesses and evidence to a magistrate in order to prove that Probable Cause exists in the case.

Probable Cause

When a magistrate finds that Probable Cause exists, after either a waiver or a Preliminary Hearing, the defendant is bound over for trial.  Probable Cause is a standard of proof that is a very low hurdle for the prosecution to overcome. It merely requires that the State show that a felony was probably committed in Wisconsin, and that the defendant probably committed the felony. Hearsay is admissible in a Preliminary Hearing. For example, if the defendant made a confession to the police, all that is necessary for bindover is that the police officer read to the court the statements allegedly made by the defendant. Obviously, this alone isn’t sufficient for a conviction at trial, as challenges can be made regarding Miranda warnings or voluntariness of the statement. But for the purposes of the Preliminary Hearing, it is admissible and sufficient for bindover.

Results of Most Preliminary Hearings

The majority of Preliminary Hearings, either by waiver or hearing, result in the bindover of the defendant for trial. The Preliminary Hearing in Wisconsin criminal courts is not a full trial on all the issues in felony case. In fact, the Wisconsin criminal defense lawyer in a Preliminary Hearing is very limited in the types of questions he or she is allowed to ask a witness. Magistrates frequently sustain numerous prosecution objections to defense questions. It is quite rare for a defense attorney to put on witnesses in a Wisconsin criminal Preliminary Hearing. Many Wisconsin criminal defense lawyers waive the Preliminary Hearing.

Again, the decision to do so is one that is made on a case by case basis. The waiver of the Preliminary Hearing is an admission by the defendant that probable cause exists in the felony case. A waiver is NOT an admission of guilt in a Wisconsin criminal case. A defendant who waives the Preliminary Hearing still retains his or her right to a full jury trial on all the issues to make the State prove the defendant guilty beyond a reasonable doubt. Keep in mind that recent changes to Wisconsin Laws regarding Preliminary Hearings allow Hearsay statements. This means that the State is not required to bring the actual witness to testify. Typically, the law enforcement officer simply reads from a police report the statements that witnesses gave to police. This makes hearings less helpful to the Wisconsin Criminal Defense Lawyer. While some cases can benefit from holding a hearing, the admission of hearsay has made the waiver much more common, and appropriate.

For more information on Preliminary Hearings, see Wisconsin Legislature’s statute, Chapter 970, regarding Wisconsin Preliminary Hearings.

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