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Preliminary hearings occur in felony cases.  At the preliminary hearing, a judge/court commissioner determines whether the defendant probably committed a felony.

If there isn’t probable cause, the case is dismissed.  If there is, the defendant is “bound over” and the case proceeds to trial.  Cases are rarely dismissed at this stage, but the defense can use the preliminary hearing to find holes in the prosecution’s case.  The defense can also use the hearing to lock in witness testimony in preparation for the trial.  At the preliminary hearing, the prosecutor may add additional charges based on testimony received at the hearing.

There is significant disagreement in Wisconsin about the value of the preliminary hearing.  In 2011 a new law was enacted that allowed hearsay to be used at the preliminary hearing.  Section 970.038 of the Wisconsin Statutes makes clear that not only is hearsay allowed at the preliminary hearing, but that the defendant may be bound over based only on hearsay.  The law was challenged, but in 2014 upheld by the Supreme Court of Wisconsin in State v. O’Brien.  The Court found that the scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony, and there is no constitutional right to confrontation.  This is due to the limited scope of the preliminary examination, and the admission of hearsay evidence does not violate a defendant’s rights to compulsory process, effective assistance of counsel, or due process.

Defense attorneys are not allowed to try to shake the credibility of witnesses at the preliminary hearing.  This was established in 1971 in State v. Knudson.  This means that a defense attorney is prohibited from showing that the prosecutor’s witnesses aren’t credible.  Although an older law, the fact that credibility is not an issue at the preliminary hearing hurts its usefulness.

The arraignment often immediately follows the preliminary hearing

Following the preliminary hearing (sometimes at the same hearing) the defendant is arraigned.  Arraignments are described in section 971.05 of the Wisconsin Statutes.

The arraignment is a formal reading of the criminal charging document, in Wisconsin called the information.  Often a defense attorney will waive the formal reading of the information, speeding up the process and not requiring the court to read out loud the charging document.  A plea (usually “not guilty”) is entered at the arraignment and the case continues to trial.  In misdemeanor cases, the arraignment is usually combined with the initial appearance.

An arraignment must be had in either the trial court or the court which conducted the preliminary examination.  In bigger counties like Milwaukee or Waukesha, often the preliminary hearing and arraignment occur in front of a court commissioner.  This court commissioner is only responsible for these two hearings, and then the case moves on to the trial court where it is assigned.

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