Wis. Stat. § 970.03 — WI Code / Chapter 970 / Section 970.03
Preliminary examination.
Status: in_force

(1) A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant. A preliminary examination may be held in conjunction with a bail revocation hearing under s. 969.08 (5) (b) , but separate findings shall be made by the judge relating to the preliminary examination and to the bail revocation.

(2) The preliminary examination shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500. On stipulation of the parties or on motion and for cause, the court may extend such time.

(3) A plea shall not be accepted in any case in which a preliminary examination is required until the defendant has been bound over following preliminary examination or waiver thereof.

(4)

(a) If the defendant is accused of a crime under s. 940.225 , 948.02 , 948.025 , 948.05 , 948.051 , 948.06 , 948.085 , or 948.095 , or under s. 940.302 (2) , if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5) , the court may exclude from the hearing all persons who are not officers of the court, members of the complainant’s or defendant’s families or others considered by the court to be supportive of the complainant or defendant, the service representative, as defined in s. 895.45 (1) (c) , or other persons required to attend, if the court finds that the state or the defendant has established a compelling interest that would likely be prejudiced if the persons were not excluded. The court may consider as a compelling interest, among others, the need to protect a complainant from undue embarrassment and emotional trauma.

(b) In making its order under this subsection, the court shall set forth specific findings sufficient to support the closure order. In making these findings, the court shall consider, and give substantial weight to, the desires, if any, of the complainant. Additional factors that the court may consider in making these findings include, but are not limited to, the complainant’s age, psychological maturity and understanding; the nature of the crime; and the desires of the complainant’s family.

(c) The court shall make its closure order under this subsection no broader than is necessary to protect the compelling interest under par. (a) and shall consider any reasonable alternatives to full closure of the entire hearing.

(5) All witnesses shall be sworn and their testimony reported by a phonographic reporter. The defendant may cross-examine witnesses against the defendant, and may call witnesses on the defendant’s own behalf who then are subject to cross-examination.

(6) During the preliminary examination, the court may exclude witnesses until they are called to testify, may direct that persons who are expected to be called as witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined.

(7) If the court finds probable cause to believe that a felony has been committed by the defendant, it shall bind the defendant over for trial.

(8) If the court finds that it is probable that only a misdemeanor has been committed by the defendant, it shall amend the complaint to conform to the evidence. The action shall then proceed as though it had originated as a misdemeanor action.

(9) If the court does not find probable cause to believe that a crime has been committed by the defendant, it shall order the defendant discharged forthwith.

(10) In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971 . Section 970.04 shall apply to any dismissed count.

(12)

(a) In this subsection:

1. “Hospital” has the meaning designated in s. 50.33 (2) .

2. “Local health department” has the meaning given in s. 250.01 (4) .

(b) At any preliminary examination, a report of one of the crime laboratory’s, the state laboratory of hygiene’s, a federal bureau of investigation laboratory’s, a hospital laboratory’s or a local health department’s findings with reference to all or any part of the evidence submitted, certified as correct by the attorney general, the director of the state laboratory of hygiene, the director of the federal bureau of investigation, the chief hospital administrator, the local health officer, as defined in s. 250.01 (5) , or a person designated by any of them, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant. The expert who made the findings need not be called as a witness.

(c) At any preliminary examination in Milwaukee County, a latent fingerprint report of the city of Milwaukee police department bureau of identification division’s latent fingerprint identification unit, certified as correct by the police chief or a person designated by the police chief, shall, when offered by the state or the accused, be received as evidence of the facts and findings stated, if relevant. The expert who made the findings need not be called as a witness.

(13) Testimony may be received into the record of a preliminary examination by telephone or live audiovisual means if the proponent shows good cause or if the testimony is used to prove an element of an offense under s. 943.201 (2) or 943.203 (2) .

(14)

(a) In this subsection, “child” means a person who is younger than 16 years old when the preliminary examination commences.

(b) At any preliminary examination, the court shall admit an audiovisual recording of a statement under s. 908.08 upon making the findings required under s. 908.08 (3) . The child who makes the statement need not be called as a witness and, under the circumstances specified in s. 908.08 (5) (b) , may not be compelled to undergo cross-examination.

History: 1975 c. 184 ; 1977 c. 449 ; 1979 c. 112 , 332 ; 1985 a. 267 ; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 332 s. 64 ; 1987 a. 403 ; Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1991 a. 193 , 276 ; 1993 a. 27 , 98 , 227 , 486 ; 1995 a. 456 ; 1997 a. 252 ; 1999 a. 111 ; 2001 a. 103 ; 2003 a. 36 ; 2005 a. 42 , 155 , 277 ; 2007 a. 97 , 116 ; 2011 a. 285 .