970.035 Preliminary examination; juvenile younger than 15 years old. Notwithstanding s. 970.03, if a preliminary examination under s. 970.03 is held regarding a juvenile who was waived under s. 938.18 for a violation which is alleged to have occurred prior to his or her 15th birthday, the court may bind the juvenile over for trial only if there is probable cause to believe that a crime under s. 940.03, 940.06, 940.225 (1) or (2), 940.305, 940.31 or 943.10 (2), 943.32 (2) or 961.41 (1) has been committed or that a crime that would constitute a felony under chs. 939 to 948 or 961 if committed by an adult has been committed at the request of or for the benefit of a criminal gang, as defined in s. 939.22 (9). If the court does not make any of those findings, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under ch. 938. History: 1987 a. 27; 1993 a. 98; 1995 a. 77, 448; 1997 a. 35, 205.
970.038 Preliminary examination; hearsay exception. (1) Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination under ss. 970.03, 970.032, and 970.035. (2) A court may base its finding of probable cause under s. 970.03 (7) or (8), 970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1). History: 2011 a. 285. This section is constitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. There is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, the admission of hearsay evidence does not violate petitioners’ rights to compulsory process, effective assistance of counsel, or due process. State v. O’Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, 12-1769. Application of this section, which first became effective after the date of the alleged offense, did not constitute an ex post facto violation because it affected only the evidence that could be admitted at the preliminary hearing and did not alter the
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quantum or nature of evidence necessary to convict the defendant. State v. Hull, 2015 WI App 46, 363 Wis. 2d 603, 867 N.W.2d 419, 14-0365. Under this section, defendants retain the statutory right to cross-examine witnesses during preliminary examinations under s. 970.03 (5), but this right is nullified when a witness’s testimony is based entirely on hearsay that may not be admissible under a statutory exception to the general rule against hearsay, and the defendant lacks any ability to obtain discovery exclusively in the possession of the state. State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.
970.04 Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence. History: 1993 a. 486. If the state has no additional new or unused evidence upon which to base a second complaint, a preliminary examination order discharging a defendant is appealable. Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977). When a first preliminary examination became chaotic, the prosecution properly abandoned the proceedings before presenting all its evidence and reissued the complaint. State v. Brown, 96 Wis. 2d 258, 291 N.W.2d 538 (1980). The state is not barred from recharging a defendant, whether or not it has new evidence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982). This section allows for issuance of a second complaint if the district attorney has evidence that was not used at the first preliminary hearing. “Unused” evidence in the context of a preliminary hearing means unused by the court in reaching its decision whether to bind the defendant over for trial. State v. Twaite, 110 Wis. 2d 214, 327 N.W.2d 700 (1983). A complaint may be reissued when “new or unused” evidence would support a finding of probable cause. What constitutes new or unused evidence is not easily definable, but it is not evidence that is merely cumulative or corroborative and is determined by applying common sense. State v. Johnson, 231 Wis. 2d 58, 604 N.W.2d 902 (Ct. App. 1999), 98-2881. This section specifically limits the availability of a second preliminary examination and precludes a request for a de novo hearing under the more general s. 757.69 (8). State v. Gillespie, 2005 WI App 35, 278 Wis. 2d 630, 693 N.W.2d 320, 041758.
970.05 Testimony at preliminary examination; payment for transcript of testimony. (1) The testimony at the preliminary examination shall be transcribed if requested by the district attorney, the defendant or an attorney representing the defendant or ordered by the judge to whom the trial is assigned. The reporter shall file such transcript with the clerk within 10 days after it is requested. (2) (a) When a transcript is requested under sub. (1) by someone other than a person specified in par. (b) or (c), the county shall pay the cost of the original and any additional copies shall be paid for at the statutory rate by the party requesting the copies. (b) When a transcript is requested under sub. (1) by the state public defender or by a private attorney appointed under s. 977.08, the state public defender shall pay the cost of the original from the appropriation under s. 20.550 (1) (a) and any additional copies shall be paid for at the statutory rate by the party requesting the copies. (c) When a transcript is requested under sub. (1) by a defendant who is not indigent under ch. 977 or by an attorney retained by a defendant who is not indigent under ch. 977, the defendant shall pay the cost of the original and any additional copies shall be paid for at the statutory rate by the party requesting the copies. History: 1993 a. 437; 1995 a. 199; 2017 a. 59. Counsel is not entitled to a free copy of the transcript if the original is reasonably available. State v. Schneidewind, 47 Wis. 2d 110, 176 N.W.2d 303 (1970).
May 22, 2026, are designated by NOTES. (Published 5-22-26)