Wis. Stat. § 970.03
Wis. Stat. § 970.03
While hearsay relied upon in support of a criminal complaint requires some basis for crediting its reliability, whether the informants are named or not, that requirement is satisfied if the hearsay is based upon observation of the informants. State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 173 N.W.2d 175 (1970). There is no obligation on a magistrate to conduct an investigation to verify the contents of a criminal complaint. That is the duty of the state, and if it fails to put sufficient facts before the magistrate to show probable cause, the complaint must fail even though clues and leads that could provide that information are revealed in the complaint. State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 173 N.W.2d 175 (1970). At the preliminary hearing, a defendant is entitled to cross-examine witnesses who identified him at the hearing and who also identified him at a lineup, because if the lineup was unfair, the identification evidence might be suppressed. Hayes v. State, 46 Wis. 2d 93, 175 N.W.2d 625 (1970). A ruling on admissibility of evidence at a preliminary hearing is not res adjudicata at the trial. Meunier v. State, 46 Wis. 2d 271, 174 N.W.2d 277 (1970). It was not error for the magistrate and trial court to fail to sequester witnesses without motion by the defendant, especially in the absence of a showing of prejudice. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970). A bind over was not invalid because the judge stated that it was "for the purpose of accepting a plea." Dolan v. State, 48 Wis. 2d 696, 180 N.W.2d 623 (1970). 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, 187 N.W.2d 321 (1971). A defendant who has been indicted by a grand jury is not entitled to a preliminary examination. State ex rel. Welch v. Waukesha County Circuit Court, 52 Wis. 2d 221, 189 N.W.2d 417 (1971). When the preliminary examination is not timely held, personal jurisdiction is lost, but when the defendant on arraignment enters a plea, the defense is waived. Armstrong v. State, 55 Wis. 2d 282, 198 N.W.2d 357 (1972). Defense counsel should be allowed to cross-examine a state's witness to determine the plausability of the witness, but not to attack the witness's general trustworthiness. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134 (1973). The purpose of a hearing under sub. (1) is to determine whether a felony, whether charged or not, probably was committed. After bind over the prosecutor may charge any crime not wholly unrelated to transactions and facts adduced at the preliminary examination. Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977). Appellate review of a preliminary hearing is limited to determining whether the record contains competent evidence to support the examining magistrate's exercise of judgment. Although motive is not an element of any crime and does not of itself establish guilt or innocence, evidence of motive may be given as much weight as the fact finder deems it is entitled to at the preliminary hearing or trial. State v. Berby, 81 Wis. 2d 677, 260 N.W.2d 798 (1978). Sub. (8) neither limits a prosecutor's discretion to prosecute criminal actions nor prohibits a second examination under s. 970.04. State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978). This section does not require that proof of the exact time of an offense be shown. State v. Sirisun, 90 Wis. 2d 58, 279 N.W.2d 484 (Ct. App. 1979). In finding probable cause, the court properly took judicial notice of the fact that rapid consumption of 1/2 quart of liquor probably caused a young girl's death. State ex rel. Cholka v. Johnson, 96 Wis. 2d 704, 292 N.W.2d 835 (1980). An accused does not have a constitutional right to make a closing argument at a preliminary examination. State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 317 N.W.2d 458 (1982). If any reasonable inference supports a conclusion that the defendant probably committed a crime, the magistrate must bind over the defendant. State v. Dunn, 117 Wis. 2d 487, 345 N.W.2d 69 (Ct. App. 1984); aff'd. 121 Wis. 2d 389, 359 N.W.2d 151 (1984). The state has the right to appeal a dismissal when it believes an error of law was committed. An uncorroborated confession alone was sufficient to support a probable cause finding. State v. Fry, 129 Wis. 2d 301, 385 N.W.2d 196 (Ct. App. 1985). Mandatory closure of a hearing solely at the request of a complaining witness over the objection of the defendant violates the right to a public trial. Stevens v. Manitowoc Cir. Ct., 141 Wis. 2d 239, 414 N.W.2d 832 (1987). If an appellate court stays the trial court proceedings on an interlocutory appeal, sub. (2) does not set a mandatory time limit for the preliminary hearing upon remittitur. State v. Horton, 151 Wis. 2d 250, 445 N.W.2d 46 (Ct. App. 1989). An unconstitutionally obtained confession may be admitted and serve as the sole basis for bindover at a preliminary examination. State v. Moats, 156 Wis. 2d 74, 457 Wis.2d 299 (1990). A defendant claiming error at a preliminary examination may obtain relief only prior to trial; the defendant may seek interlocutory review from the court of appeals under s. 809.50. State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991). Adjourning a preliminary examination for cause is within the court's discretion. State v. Selders, 163 Wis. 2d 607, 472 N.W.2d 526 (Ct. App. 1991). A court commissioner's determinations of admissibility of evidence will be upheld absent an erroneous exercise of discretion; the reviewing court then determines whether, if believed, the evidence would permit a reasonable magistrate to conclude that the defendant probably committed the crime. State v. Lindberg, 175 Wis. 2d 332, 500 N.W.2d 322 (Ct. App. 1993). If a bindover decision is made by a court commissioner or circuit judge, review must be by a motion to dismiss brought in circuit court. Habeas corpus is not available to review a bindover. Dowe v. Waukesha County Circuit Ct. 184 Wis. 2d 724, 516 N.W.2d 714 (1994). Single count complaints under sub. (7) and multiple count complaints under sub. (10) are to receive the same procedural treatment. In multiple count complaints a court must dismiss any count for which it believes there is not probable cause to believe a felony has been committed by the defendant. The specific felony charged need not be proved and it is inadvisable for the court to opine as to what felony was probably committed. Evidence that is not transactionally related to a count for which bind over is considered proper may not form the basis for a count in an ensuing information, but the information may include any count that is transactionally related to a count on which the defendant is bound over. State v. Williams, 198 Wis. 2d 516, 544 N.W.2d 406 (1996), 93-2444. See also State v. Williams, 198 Wis. 2d 479, 544 N.W.2d 400 (1996), 93-2517 and State v. Akins, 198 Wis. 2d 495, 544 N.W.2d 392 (1996), 94-1872. Following a bindover at a preliminary hearing, the proper test for reviewing a challenge to an information that alleges wholly new charges not accompanied by the original charge is the sufficiency of evidence test. State v. Cotton, 2003 WI App 154, 266 Wis. 2d 308, 668 N.W.2d 346, 02-2923. The purpose of a preliminary examination is limited to an expeditious determination of whether probable cause exists for the state to proceed with felony charges against a defendant. This limited purpose does not permit a criminal defendant to compel discovery in anticipation of the hearing. There is no 6th amendment right, based on effective assistance of counsel, and no compulsory process right to subpoena police reports and other non-privileged materials prior to the examination. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826. It was not proper to dismiss a criminal charge added in the information because the prosecutor successfully objected at the preliminary hearing to questions that were relevant to that crime but not to the crime charged in the complaint. State v. White, 2008 WI App 96, 312 Wis. 2d 799, 754 N.W.2d 214, 07-2061. Sub. (5) does not create a confrontation right. It does not require the state to present a defendant with hearsay declarants for cross-examination, rather it "permits cross-examination of only those people actually called to the stand." State v. O'Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, 12-1769.