Commencing Criminal Prosecutions

Introduction

The initiation of a criminal prosecution in Wisconsin follows a structured path, aligned with the legal framework outlined in Wis. Stat. § 967.05. The method of commencement depends largely on the nature of the defendant and the severity of the alleged crime:

• Corporate Defendants: For entities recognized as corporate bodies, the process begins with the filing of an information document.

• Non-Corporate Defendants: In cases involving individuals or unincorporated entities, felonies may be set into motion through either an information or a grand jury indictment. It's noteworthy that neither the federal constitution’s Due Process Clause nor the Wisconsin Constitution mandates this process.

  Upon a grand jury indictment, a complaint is formally issued, setting in motion proceedings that mirror those initiated by a criminal complaint, including a preliminary hearing for felonies.

• Common Practice: Despite these options, the most prevalent method for initiating criminal proceedings remains the criminal complaint. The nature of the crime dictates the subsequent steps:

  • Misdemeanors: Trials proceed directly based on the complaint.

  • Felonies: A more detailed information is filed later, granting the trial court jurisdiction over the matter.

Criminal Complaint

Function and Substance

The Criminal Complaint serves as the initial step in prosecuting a criminal case in Wisconsin, especially for non-corporate defendants facing felony or misdemeanor charges. It is a formal assertion filed by a prosecutor, detailing the specific crimes alleged against the defendant. This document sets the legal process in motion by:

1. Outlining the nature and circumstances of the alleged offense.

2. Establishing probable cause that the named individual committed the crime(s).

3. Setting forth the basis of the court's jurisdiction over the case and the accused.

Given the foundational role of the criminal complaint in the prosecutorial process, it is vital for the document to accurately reflect the charges and be supported by probable cause. Following its filing, the court schedules an initial appearance for misdemeanors, and a preliminary hearing for felonies, where the document's sufficiency and the existence of probable cause are assessed.

Probable Cause—"Essential Facts"

Probable cause or "essential facts" must satisfactorily answer the questions:

• Who is charged?

• What are they charged with?

• When and where did the alleged offense occur?

• Why is this person specifically being charged?

• How reliable is the informant or the source of the accusation?

While the complaint need not detail every evidentiary fact, it must contain essential facts that a neutral magistrate finds sufficient to proceed with the criminal process, including any reasonable inferences that can be drawn.

Charging & the Elements of the Crime

For a charge to proceed:

1. Accusation Clarity: The charge must be clear enough for the defendant to understand what offense they are accused of, enabling them to prepare a defense.

2. Non-Duplication: The complaint should ensure that a conviction or acquittal will prevent another prosecution for the same offense.

The complaint must:

• Describe the crime known to law.

• Provide enough detail for each element of the offense to be inferred.

• Include a statement of potential penalties upon conviction.

The Grand Jury

The grand jury is a procedure that serves as an alternative to the criminal complaint for the district attorney's office. A grand jury is:

a group of people selected to sit on a jury that decide whether the prosecutor’s evidence provides probable cause to issue an indictment. An indictment formally charges a person with committing a crime and begins the criminal prosecution process.

The process to establish a grand jury begins when a judge issues an order, usually at the district attorney's request, to assemble a grand jury list. This list, comprising 75 to 150 individuals, is compiled confidentially and must adhere to a set timeframe.

The selection process for a grand jury should align with the methods used for petit juries (i.e., trial juries). When potential jurors convene, the judge assesses their eligibility, possibly with input from the prosecuting officer. Inadequate panels undergo further selection until at least seventeen qualified jurors are present.

Grand jurors serve for thirty-one days, extended if necessary for ongoing proceedings. Non-compliance with statutory impaneling procedures only affects the validity of the indictment if it likely prejudiced the accused.

Discrimination in juror service on the basis of personal attributes like sex, race, religion, or sexual orientation, among others, is prohibited. Grand jurors swear to secrecy, appointing a presiding juror and a clerk among themselves to manage documentation. Sessions require a minimum of fourteen jurors to proceed, with indictments needing at least twelve jurors' agreement.

Jurors must attend all sessions unless excused for a valid reason by the presiding juror, facing fines for unwarranted absences. Various rules govern the proceedings, including documentation filing and court supervision. Unlike petit juries, grand juries are empowered to interpret both law and facts independently.

Upon dissolution, the grand jury clerk is responsible for delivering all records to an authorized official, ensuring their security and confidentiality.

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Attributions

See Christine M. Wiseman and Michael Tobin, 9 Wis. Prac., Criminal Practice & Procedure §§ 1:1-31 (2d ed.); Wis. Stat. § 968.40; Wex/Legal Information Institute, "Grand Jury"; Christine M. Wiseman and Michael Tobin, 9 Wis. Prac., Criminal Practice & Procedure §§ 9:1-2 (2d ed.).