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What is a Preliminary Hearing?

When a person is charged with one or more felonies in Wisconsin, he is entitled by statute to a proceeding called a preliminary hearing or preliminary examination (often referred to as a "prelim"). People often ask us what happens at a preliminary hearing or what the purpose of a preliminary hearing is.

When Does It Happen?

A prelim takes place early on in a felony case. If a defendant is in custody, he has a right to have the hearing within ten days of his initial appearance, which is typically the very first appearance a defendant has in front of a judge. If a defendant is out of custody, he has a right to have it within 20 days of the initial appearance. A defendant can "waive time limits," meaning give up his right to have the preliminary hearing within ten or twenty days. It is most common for defendants in custody not to waive time limits, while it is most common for those released from jail to waive time limits

What Is It?

A preliminary hearing is not a "mini trial." Its purpose is not to determine guilt or innocence.

Its purpose is to determine whether or not a felony case will be allowed to proceed on towards trial. In order for that to happen, the government must show a rather small amount of evidence in support of at least one of the charges. Specifically, the government must demonstrate to a judge's satisfaction that there is probable cause to believe that a felony has been committed by the defendant. Put slightly differently, the government must show that a felony was probably committed and that the defendant probably committed it. If the government can produce a witness who can identify the defendant as the person who the witness testifies engaged in conduct that constitutes a felony, and testifies that the conduct took place in the county where the prelim is being held, the government will almost certainly meet its burden. If the government meets its burden at the prelim, the case is "bound over" for trial.

How Does It Work?

The rather low burden of probable cause was made even easier for the government to meet in 2011, when the state legislature changed the law regarding the rules of evidence at prelims. At trial, hearsay is generally not admissible. Before 2011, hearsay was also generally inadmissible at prelim. But with the change in law, hearsay is admissible at prelim, and a court may base its finding of probable cause entirely or in part on hearsay.

What does that mean? In practical terms, it means that the government no longer has to call the victim of the alleged crime to testify at prelim. It also means that the government can often meet its burden and get the case bound over for trial solely by calling a law enforcement offer to testify. The officer is allowed to testify about what the victim told police (which is hearsay) or about what evidence was collected by the police (which, if it was not collected specifically by the testifying officer would also be hearsay). And the court can find probable cause and bind the case over entirely on hearsay testimony by the police officer or detective. The prosecutor can also submit the criminal complaint (the charging document that outlines the initial charges against a defendant), the contents of which are hearsay, as an exhibit.

What Can My Lawyer And I Do At Prelim?

A defense attorney is able to cross examine the officer. But cross examining a witness about hearsay--about things other people said happened rather than what the officer observed him-or-herself, about evidence somebody else collected--is often fruitless. The officer is simply going to repeat what someone else said or did; the officer doesn't know any more or any less than what he or she was told by someone else.

Defendants have a right to call witnesses of their own at prelim, but in most cases this is not done. In theory, a defendant could testify at his or her own prelim, but this is never done. Why? Because, under Wisconsin law, credibility is not to be considered by the court at the preliminary hearing. If witnesses give differing accounts of what happened, the State is entitled to the benefit of competing accounts or inferences. If a witness for the State says the defendant committed a felony, and a witness for the defense says the defendant did not commit a felony, the judge is required to rule in favor of the State and bind the case over for trial. Determining which witness was telling the truth, or providing the more accurate account, would require making a credibility determination. Credibility is very much at issue once you get to trial, but not at a preliminary hearing.

The reasoning behind this is, again, because the purpose of a preliminary hearing is only to determine if there is some reason to believe that a felony was committed, some reason to believe that a specific person committed it, and that the State has charged that person. It is essentially to ensure that the State does not just snatch people off the street and hold them in jail without any reason at all. Whether the evidence and testimony produced at preliminary hearing is strong is a question for another day.

What Happens Next?

After the preliminary hearing, after a defendant is bound over for trial, a defendant is entitled to an arraignment. At the arraignment, the State files a document called an information. Like the criminal complaint, the information contains the charges in the case, but unlike the criminal complaint it does not contain any factual or probable cause portion. The State is entitled to add or subtract or modify the charges from the complaint to the information. At the arraignment, the court will ensure that the defendant is aware of what the formal charges are, and the defendant will enter a not-guilty plea. The court will then set the case for further proceedings.

There are obviously a lot of rules associated with a preliminary hearing. If you have been charged with a felony, you are entitled to have an attorney and you absolutely need one. Your attorney can discuss with you the benefits to having a prelim and the potential benefits of waiving your right to a prelim.

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