A felony case in Wisconsin begins with a document, not a witness. The complaint is signed, the charge is read at the initial appearance, bail is set, and the defendant is told he is entitled to a preliminary examination. The phrase sounds like a first trial, and most people hear it that way: finally, the State will have to put its witnesses on the stand and answer for what it has alleged.
That is not what happens. Since the spring of 2012 the State has been able to carry a Wisconsin preliminary examination without calling a single person who saw anything, by putting one officer on the stand to recite what other people told him. Understanding why — and what the hearing is still good for — is the difference between using the proceeding and wasting it.
What the hearing is actually for
The statute is unusually plain about its own purpose. Under § 970.03 (1), a preliminary examination is “a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.” That is the whole of it. Not guilt, not credibility, not whether the charge the prosecutor chose is the right one.
Note what the sentence does not say. It does not say the felony charged. The Wisconsin Supreme Court read that omission for what it is in Wittke v. State ex rel. Smith, 80 Wis. 2d 332 (1977): the purpose of the hearing is to determine whether a felony, “whether charged or not,” probably was committed. A defendant who defeats the specific charge in the complaint and leaves the judge convinced that some other felony probably occurred has not won anything.
The supreme court has also described the hearing’s broader office, in State v. Richer, 174 Wis. 2d 231 (1993), as preventing “hasty, malicious, improvident, and oppressive prosecutions.” That is the theory. The practice is narrower than the theory, for the reason set out below.
Who gets one, and who does not
Under § 970.02 (1) (c), the judge at the initial appearance must tell the defendant that he is entitled to a preliminary examination if he is charged with a felony in any complaint, including a complaint issued under § 968.26, or when he has been returned to Wisconsin for prosecution through extradition, or on any indictment — unless the right is waived in writing or in open court, or unless the defendant is a corporation or a limited liability company.
Three consequences follow, and all three surprise people.
Misdemeanors do not get one. The entitlement is felony-only. A misdemeanor defendant’s corresponding right under § 970.02 (3) is to have a trial date set immediately on request.
A grand jury indictment displaces it. A defendant indicted by a grand jury is not entitled to a preliminary examination; the grand jury’s probable-cause finding has already done the work. State ex rel. Welch v. Waukesha County Circuit Court, 52 Wis. 2d 221 (1971).
Waiver binds you over immediately. Section 970.02 (4) is one sentence: a defendant charged with a felony may waive the preliminary examination, and upon the waiver the judge shall bind the defendant over for trial. There is no hearing to reconsider and no finding to appeal. If the examination is not waived, § 970.02 (5) requires the judge to set it forthwith.
The two clocks
Section 970.03 (2) sets the deadline, and it runs differently depending on custody. The examination “shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500.” The same subsection then lets the court extend that time “[o]n stipulation of the parties or on motion and for cause.”
The extension clause is where the real litigation is. The court of appeals held in State v. Lee, 2021 WI App 12, that there is nothing improper about a circuit court or court commissioner acting on its own motion to extend the time. But Lee also held that where the extension rests on delay in the public defender’s appointment of counsel, the court must conduct a relatively thorough inquiry, recite the factors supporting good cause on the record, explain why they override the statutory directive that the hearing be promptly held, and weigh the countervailing factors. An extension granted as a matter of docket routine is not what the statute contemplates.
Missing the deadline has a consequence, and a trap attached to it. Under Armstrong v. State, 55 Wis. 2d 282 (1972), when the preliminary examination is not timely held, personal jurisdiction is lost — but the defense is waived if the defendant enters a plea at arraignment. The objection has to be made before the plea, not after the case has moved on.
The 2011 change that rewrote the hearing
Here is the provision that matters most and is least known. Section 970.038, created by 2011 Wisconsin Act 285 — enacted April 12, 2012 and published April 26, 2012, which is why it governs every felony case filed since — provides that “[n]otwithstanding s. 908.02, hearsay is admissible in a preliminary examination” under §§ 970.03, 970.032 and 970.035, and that a court “may base its finding of probable cause . . . in whole or in part on hearsay admitted under sub. (1).”
In whole or in part. That is the entire architecture of the modern Wisconsin preliminary hearing. The State may call one police officer who has read the reports, and that officer may tell the judge what the complainant said, what a second officer observed, and what a laboratory concluded. No one the officer is quoting has to appear.
The Wisconsin Supreme Court upheld the statute in State v. O’Brien, 2014 WI 54. The reasoning is worth reading, because it explains why the result is not as strange as it sounds: the scope of a preliminary examination is limited to probable cause, there is no constitutional right to confrontation at a preliminary examination, and given that limited scope the admission of hearsay does not violate the defendant’s rights to compulsory process, effective assistance of counsel, or due process. The right of confrontation attaches at trial, where it does the work it was designed to do.
O’Brien also disposed of a reading of § 970.03 (5) that defense lawyers had urged. That subsection says the defendant “may cross-examine witnesses against the defendant.” The court held that it does not create a confrontation right and does not require the State to produce hearsay declarants for cross-examination; it permits cross-examination of only those people actually called to the stand.
Nor is there a right to prepare. In State v. Schaefer, 2008 WI 25, the supreme court held that the limited purpose of the hearing does not permit a defendant to compel discovery in anticipation of it, and that there is no Sixth Amendment or compulsory-process right to subpoena police reports and other non-privileged materials beforehand. Read § 971.31 (5) (b) alongside that holding and the shape of the thing is clear: motions to suppress, discovery motions under § 971.23, and objections to the admissibility of a defendant’s statements “shall not be made at a preliminary examination and not until an information has been filed.”
Plausibility, not credibility
The second reason bindover is the usual outcome is the standard of review the examining judge applies. It is not a weighing exercise. Under State v. Dunn, 117 Wis. 2d 487 (Ct. App. 1984), affirmed at 121 Wis. 2d 389 (1984), if any reasonable inference supports the conclusion that the defendant probably committed a crime, the judge must bind the defendant over.
The limits on the defense follow from that. Counsel may cross-examine a State’s witness to test the plausibility of the account, but not to attack the witness’s general trustworthiness — Wilson v. State, 59 Wis. 2d 269 (1973). 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 (1971). An uncorroborated confession alone can support a probable-cause finding — State v. Fry, 129 Wis. 2d 301 (Ct. App. 1985). And in a result that makes the division of labor explicit, a confession obtained unconstitutionally may be admitted at the preliminary examination and serve as the sole basis for bindover, because suppression is a question for another hearing — State v. Moats, 156 Wis. 2d 74 (1990).
A ruling admitting evidence at the preliminary hearing also decides nothing for trial. Meunier v. State, 46 Wis. 2d 271 (1970).
What the judge can do at the end
Four outcomes are available, and three of them are not bindover.
Under § 970.03 (7), on a finding of probable cause to believe a felony has been committed by the defendant, the court binds the defendant over for trial. Under § 970.03 (8), if the court finds it probable that only a misdemeanor has been committed, it amends the complaint to conform to the evidence and the action proceeds as though it had originated as a misdemeanor — a real and underused result. Under § 970.03 (9), if the court does not find probable cause to believe a crime has been committed by the defendant, it orders the defendant discharged forthwith.
In a multiple-count complaint, § 970.03 (10) requires the court to dismiss any count for which it finds no probable cause, and provides that the facts arising out of a dismissed count “shall not be the basis for a count in any information filed pursuant to ch. 971.” State v. Williams, 198 Wis. 2d 516 (1996), confirmed that single-count and multiple-count complaints receive the same procedural treatment, that the specific felony charged need not be proved, and that while evidence not transactionally related to a count may not support a count in the information, the information may include any count transactionally related to a count on which the defendant was bound over.
A discharge is also not always the end. Section 970.04 permits the district attorney to file another complaint after a discharge “if the district attorney has or discovers additional evidence.” State v. Twaite, 110 Wis. 2d 214 (1983), construed “unused” evidence to mean evidence unused by the court in reaching its decision whether to bind the defendant over for trial. State v. Johnson, 231 Wis. 2d 58 (Ct. App. 1999), added that 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.”
The thirty days after
Bindover is not the charging document. Under § 971.01 (2), the information must be filed with the clerk within 30 days after completion of the preliminary examination or waiver of it, absent an extension for cause on notice to the defendant, and failure to file within that time “shall entitle the defendant to have the action dismissed without prejudice.” A preliminary examination is complete for this purpose when the court finishes scrutinizing the evidence and renders the bindover decision — State v. Phillips, 2000 WI App 184.
What the information may contain is wider than clients expect. After bindover, the prosecutor may charge any crime not wholly unrelated to the transactions and facts adduced at the preliminary examination (Wittke; State v. Burke, 153 Wis. 2d 445 (1990)). A hearing that produced testimony about a broader course of conduct than the complaint alleged can be followed by an information that charges the broader conduct.
So what is the hearing worth?
Less than the television version, and more than nothing.
The transcript. Under § 970.05 (1), the testimony is transcribed on request of the district attorney, the defendant, or defense counsel, or by order of the trial judge, and the reporter must file it within 10 days of the request. Where the defendant is represented by the state public defender or by a private attorney appointed under § 977.08, § 970.05 (2) (b) puts the cost of the original on the public defender rather than the client. Sworn testimony from an officer early in a case, reduced to a transcript, is a fixed point that cannot be quietly revised later.
Cross-examination of whoever does appear. The State has to put someone on the stand. That witness is subject to cross-examination under § 970.03 (5), and the scope of what he actually knows — as against what he read in a report — is established in front of a judge.
The misdemeanor amendment. Subsection (8) is the quietest provision in the chapter and occasionally the most valuable, particularly where the felony depends on a single element the State’s own proof does not reach.
Preserving what has to be preserved first. Section 971.31 (5) (c) runs in the opposite direction from the rest of the pretrial schedule: in felony actions, objections based on the insufficiency of the complaint must be made prior to the preliminary examination or waiver of it, or they are deemed waived. That deadline arrives before the hearing, not after it, and it is lost by waiting.
Two more procedural points are worth knowing. A defendant claiming error at the preliminary examination can obtain relief only before trial, and the route is interlocutory review in the court of appeals under § 809.50 — State v. Webb, 160 Wis. 2d 622 (1991). And where the bindover was decided by a court commissioner or circuit judge, review is by a motion to dismiss brought in circuit court; habeas corpus is not available — State ex rel. Dowe v. Circuit Court, 184 Wis. 2d 724 (1994).
Should you waive it?
Sometimes, and the honest answer is that it depends on facts that cannot be generalized in an article. A hearing the State will carry on one officer’s hearsay recitation may cost more in delay than it returns in information, and prosecutors do sometimes attach something of value to a waiver. A hearing in a case where the felony hinges on one contestable element, or where the sworn account of an officer is worth having in writing, is worth holding.
What should not drive the decision is the belief that the hearing is a dress rehearsal for trial at which the accusers will have to face the accused. In Wisconsin, since § 970.038 took effect in 2012, it is not. Deciding whether to hold it or waive it is a judgment about what this particular record is worth, made under a clock that starts running at the initial appearance.
Talk to a New Berlin criminal defense lawyer
Carson Law Office defends felony cases in New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities — including preliminary examinations under § 970.03, the hearsay rule under § 970.038, and the complaint-sufficiency objection that must be made before the hearing under § 971.31 (5) (c). If you have a felony initial appearance behind you, the clock in § 970.03 (2) is already running. Call (262) 860-8932 or email christopher@carsonlawoffice.com. You can also read more about our criminal defense practice, our post on motions to suppress and the ten-day deadline, and our post on your rights during a stop, a search, and questioning, or contact us to arrange a consultation.
Carson Law Office · 15350 West National Avenue, Suite 101, New Berlin, WI 53151 · (262) 860-8932
This article is general information about Wisconsin criminal procedure and is not legal advice. Statutes are amended from time to time, reported decisions are subject to further review, and every case turns on its own facts. Speak with an attorney about your own case.