The Felony Process

In Wisconsin, a Felony charge is one that carries a prison term of up to life in prison. The main difference between incarceration for Misdemeanors and Felonies is that Misdemeanors are served in a county jail and may allow for work-release privileges. No such privileges are allowed when a defendant serves a sentence in prison.

Felony process, under Wisconsin Criminal laws, is initiated by the filing of a criminal complaint. The accused may be in custody or may be summoned to an out-of- custody court to appear in front of a magistrate or court commissioner. At this Initial Appearance, the accused is furnished with a copy of a complaint. The magistrate reviews the complaint for an initial determination of probable cause, and if probable cause is found, bail is set.

After an initial probable cause determination, a defendant is referred to a preliminary hearing court for a final determination of probable cause. Wisconsin Criminal laws require that a defendant charged with a Felony has the right to a hearing, with witnesses and other evidence required to be shown to a magistrate for a determination of probable cause. However, recent changes to the Wisconsin laws regarding preliminary hearings allow for Hearsay to be admitted at preliminary hearings. This has reduced the value of preliminary hearings in criminal cases in Wisconsin. Now, the government simply puts a law enforcement officer on the stand. This officer simply reads in what a witness purportedly told that officer or another officer. This change has resulted in many more waivers of preliminary hearings here in Wisconsin.

If a hearing is held, the magistrate determines whether or not probable cause exists. While it is quite rare, from time to time, the hearing results in a finding that probable cause does not exist. If that is the case, the magistrate will grant your Wisconsin criminal defense lawyer's motion to dismiss your Felony charge. Keep in mind that a dismissal at this level is done "without prejudice”, meaning that if the State obtains more evidence, they can (and often do) re-issue charges, and start the Wisconsin Felony criminal process all over again. See the section Preliminary Hearing for further discussion of preliminary hearings and probable cause.

After probable cause is determined, either by a waiver or hearing, the State will file a document called an Information with the court and the defendant. The Information is the official charging document in a Felony prosecution in the state of Wisconsin. Along with the information, the prosecutor will provide (or in some counties, simply make available for copying) to the defendant's Wisconsin criminal lawyer, all discovery, or evidence, in the State's possession at the time. After receipt of the information, the defendant will enter a plea of not guilty, and the Wisconsin criminal case is now underway.

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. As discussed above, since Wisconsin now allows hearsay evidence in a Preliminary Hearing, many lawyers now waive the hearing and just move on to the trial court to defend the case. Particular facts in each case determine when it is appropriate to waive the hearing.

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.

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