Also commonly called a preliminary hearing, this is the second hearing in most felony cases in Wisconsin. A preliminary hearing is a statutory, not a constitutional right. This means that it is difficult, though not impossible, to get an appellate court to reverse an outcome as the result of a flawed hearing process.
At a prelimary hearing the prosecutor has the burden to prove that any felony was probably committed and that the person charged probably committed it. This is otherwise referred to as probable cause. Like many phrases in the law, probable cause doesn't always mean the same thing. For instance, the degree or probable cause required for a warrantless search or arrest is less than what is required for a complaint to survive a motion to dismiss. When it comes to preliminary hearings, the level of probable cause required to continue a case (the legal term is "bindover") is supposed to be near the upper end of the threshhold. However, it rarely works this way in practice. The legislature has recently amended our law to require the judge to view all facts at a preliminary hearing as favorably as possible to the prosecutor. It doesn't matter whether there is an innocent explanation, if the complaining witness has problems with their credibility. It does not even matter if it is clear that the prosecutor will not be able to prove a case beyond a reasonable doubt. If the judge or court commissioner views the facts most favorably to the prosecutor and determines that they meet the low threshold of probable cause, they are required to find probable cause and continue the case. Preliminary hearings are also unique because the rules of evidence, in large part, no longer apply. What this means for most defendants is that their cases are presented primarily with hearsay evidence. Ususally this takes the form of a single police officer testifying to what he read or heard from others, including other police reports, autopsy reports, or witness statements.
So why even have these hearings? For starters, in certain cases we can learn from what is and isn't presented and get a sense of the true strength of the State's case. In other cases, agreeing to waive a preliminary hearing allows us to bargain a future outcome that may not otherwise be available, creating a benefit that is a contract we can enforce on behalf of a client.
So what happens when your case is called for preliminary hearing? First, the prosecutor will present a witness who will testify to the facts necessary to establish probable cause. The defense attorney has a limited ability to question the witness before they are excused. Once the prosecutor rests their case, a defendant actually has the ability to produce witnesses and evidence of their own on the issue of probable cause, although this is rarely the wise thing to do. At the close of the hearing the judge will determine whether there is enough evidence to meet the low standard of probable cause required to continue a felony prosecution. In La Crosse County, there are often several preliminary hearings scheduled for the same hour block of time, at times there can be as many as ten hearings in the timeframe. As such, the judge hearing the cases tends to make them very brief. Other counties can differ, with some scheduling dedicated blocks of time for the hearing and others using "readers," or law enforcement witnesses with no personal involvement in a case who simply read and regurgitate the reports of the investigating officer at the hearing. These different practices mean that the usefulness of a preliminary hearing can vary by county, courtroom, and prosecuting attorney.
Since this is a right only allowed in felony prosecutions, people who are charged with misdemeanor or civil ordinance prosecutions will not have the same hearing in their cases.
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