How do preliminary hearings work in Wisconsin?
In Wisconsin, a defendant facing felony charges has a right to a preliminary hearing early in the process. If the defendant is not in custody, that hearing must occur within 20 days of their initial appearance. If the defendant is in custody, that hearing must happen within ten days.
Understanding the purpose of a preliminary hearing, also known as a preliminary examination, is important, as it plays an essential role in the case. As always, if you have questions or concerns you wish to discuss with an attorney, our criminal defense lawyers can help you navigate the system and better understand each step of the process.
Preliminary hearings: prosecution seeks to establish probable cause
The primary purpose of the preliminary hearing is for the prosecution to prove there is enough evidence that the defendant may have committed a felony in the state of Wisconsin. In legal terms, we often say the state must show probable cause that the defendant committed the crime. This may involve a witness who believes the defendant is the person who may have committed the crime. If probable cause is established, the accused will be bound over for trial.
Wisconsin law says the court can determine probable cause based on hearsay, which means it can be based on a person's indirect knowledge. That can make establishing probable cause relatively easy, as no victim needs to be called to testify. In fact, law enforcement can provide testimony of what victims said during the investigation.
Typically, the defense does not call witnesses to the stand during a preliminary hearing. While it is their right to do so under Wisconsin law, witness credibility is determined during the trial phase — making it possible for even a single witness's testimony to establish probable cause during the preliminary hearing.
Pros and cons of waiving a preliminary hearing
In some cases, a defendant may wish to waive their right to a preliminary hearing. This decision could offer potential benefits and drawbacks. For example, waiving rights to a preliminary hearing can prevent the prosecution from presenting evidence that could affect a defendant's bail or providing evidence of additional offenses. It can also prevent witness testimony that could be used at trial. On the other hand, not waiving the preliminary hearing may also be strategic, as it can present new avenues of defense and highlight weaknesses in the case.
How to use a preliminary hearing to negotiate a deal
A preliminary hearing may provide an opportunity for the defendant's legal team to lay the groundwork to negotiate a deal. They can do this through several tactics, including cross-examining any of the prosecution's witnesses, establishing an alibi or other defense, presenting evidence that shows the defendant should not go to trial for the crimes in question and impeaching the testimony of prosecution witnesses. A fundamental goal is to show the prosecution they have a weak case against the defendant.
In some cases, a judge may find no probable cause at the preliminary hearing and may dismiss or reduce the charges against the defendant.
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