When there is not probable cause to proceed, the court must dismiss the charges against you. Alternatively, when the court finds probable cause, they “bind over” the defendant and the case proceeds to trial. While courts rarely dismiss cases at this stage, there is an opportunity 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, the legislature enacted a new law allowing for hearsay 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 can not try to shake the credibility of witnesses at the preliminary hearing. This was established in 1971 in State v. Knudson. In other words, the criminal defense attorney cannot try to show the state’s witnesses lack credibility. Nobody’s calling anybody a liar at this hearing – it won’t help. While this is certainly frustrating for the defendant, it’s another reason the prelim is powerless.
Immediately following the preliminary hearing (in some counties, at the same hearing), the court arraigns the defendant. Section 971.05 of the Wisconsin Statutes describes arraignments.
The arraignment is a a formal reading of the criminal charging document, called the information. Frequently defense attorneys waive the formal reading of the information. This speeds up the process and does not require the court to read the document out loud. After the court reads the information (or waiver), the defense attorney enters a plea (typically “not guilty”) and the case continues down the trial-level path. While this is typically the case in felony cases, usually the arraignment misdemeanor cases involve an arraignment at the initial appearance.
The arraignment must occur in either the trial court or the court that conducted the preliminary hearing. In bigger counties like Milwaukee or Waukesha, often the preliminary hearing and arraignment occur in front of a court commissioner. In those counties, the court commissioner is only responsible for these hearings. After the conclusion of the arraignment, the case moves to the trial court, which will hear the rest of the case.
While it’s certainly the best idea to hire a top criminal defense attorney for your initial appearance, hiring one for your preliminary hearing is even more important. Proceeding to the hearing, and succeeding, could lead to a dismissal of the charges against you. While this result is indeed rare, it’s possible. And it’s more possible when your criminal defense attorney knows what he’s doing. While it’s cheap to proceed with a public defender, public defenders face long hours and a caseload that can include hundreds of clients. That could lead to only a minimal amount of time for your case.
You won’t experience that with our firm. Contact us immediately at (414) 270-0202 for a free consultation.