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What is a preliminary hearing?

Wisconsin criminal laws require that an individual charged with the commission of a felony be given a preliminary hearing. A preliminary hearing requires that the State show there is probable cause to believe the defendant committed a felony.  Probable cause is a low hurdle for the prosecutor to overcome.  It requires that the prosecutor show the defendant probably committed a felony.  (Preliminary Hearing Statute)

The preliminary hearing must be conducted within 20 days after the initial appearance if the defendant was released from custody.  It must be held within 10 days after the initial appearance if the defendant’s bail was fixed in an amount greater than $500.00 and the defendant is in custody.  In certain circumstances those timelines can be extended.  (Preliminary Hearing Timing)

Witnesses at the preliminary hearing can present hearsay evidence.  The probable cause determination can be based entirely on that hearsay.  (Preliminary Hearing Hearsay Exception)

Individuals proceeding to a preliminary hearing are presented with the opportunity to waive their hearings.  Many attorneys disagree about whether defendants should proceed to the hearing.  Attorney Meyer makes it a practice to advise his clients of the pros and cons of a hearing.  For example, if a liaison officer (an officer not involved in the arrest/investigation of the charges) is the witness at the preliminary hearing, and he presents testimony based entirely on hearsay, the preliminary hearing isn’t very important  If the actual officers involved in the case are there to testify at the preliminary hearing it can be important.  Sometimes the preliminary hearing can be used by a skilled criminal defense attorney to investigate issues relating to constitutional challenges.  Finally, the preliminary hearing is important to “lock down” testimony from witnesses.

Credibility is not an issue at a preliminary hearing.  If a police officer lies or gives testimony that isn’t accurate, unfortunately there’s not much that can done at the hearing itself.  While that is frustrating, the Supreme Court of Wisconsin has already ruled on the issue in State v. Knudson.

If you waive your hearing you’re not giving up the right to challenge the constitutionality of any police actions or your right to trial.  You’re not admitting that you did it or that you’re guilty.  It’s simply agreeing that there are facts to support the conclusion that there’s probable cause to believe a felony occurred.

At the vast majority of preliminary hearings the defendant is bound over for trial.  This means that the case proceeds along the to trial.  Discovery materials are received, motions are filed, and the cases resolve via plea or trial.  It’s still important to fight for your rights and try to succeed at this level.

It’s important that you discuss all of your rights with a skilled criminal defense attorney.  To discuss your preliminary hearing rights or any other issue with a Milwaukee attorney, contact Attorney Van Severen at 1-414-270-0202.