# Preliminary Examinations

## Overview

The Wisconsin Supreme Court explained preliminary examinations (also known as "preliminary hearings") in [*State v. O'Brien*](#user-content-fn-1)[^1]*.*

A defendant charged with a felony is entitled to a hearing pursuant to [Wis. Stat. § 970.03](https://docs.legis.wisconsin.gov/statutes/statutes/970/03) to determine whether there is probable cause to believe that a felony has been committed by that defendant. This hearing is referred to as a preliminary examination. The right to a preliminary examination is not constitutionally guaranteed and is solely a statutory right. \[...]

The court has often referred to the important purpose preliminary examinations serve in protecting defendants and the public from unwarranted prosecution. In essence, they serve as a check on prosecutorial discretion. For example, as far back as 1922, the court stated:

> The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, and oppressive prosecutions, to protect the person charged from \*770open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.

[*Thies v. State*](#user-content-fn-2)[^2].

More recently, the court reiterated this point explaining that "\[requiring a finding of probable cause protects the defendant's due process rights and guards against undue deprivations of the defendant's liberty." [*State v. Richer*](#user-content-fn-3)[^3]*; see also* [*State v. Hooper*](#user-content-fn-4)[^4] (it is the purpose of a preliminary examination to determine whether there is "a substantial basis for bringing the prosecution and further denying the accused his right to liberty.").

Highlighting the importance of these proceedings, we have referred to them as a "critical stage" in the criminal process. \[...]

The scope of preliminary examinations is narrow. It is limited to determining whether the account presented by the State, if believed, has a plausible basis supporting a probable cause determination. [*State v. Padilla*](#user-content-fn-5)[^5]; *see also* [*Dunn* ](#user-content-fn-6)[^6]\("probable cause at a preliminary hearing is satisfied when there exists a believable or plausible account of the defendant's commission of a felony."). \[...]

The fact that Wisconsin has preliminary examinations at all exceeds the requirements of the Fourth Amendment. The United States Supreme Court has concluded that although the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to the extended restraint on liberty, adversary proceedings are not necessary. *...* Due to the limited scope of probable cause determinations, informal proceedings are sufficient. \[...]

\[T]he probable cause determination may be made "on hearsay and written testimony." [*Gerstein v.* ](#user-content-fn-7)[^7]*Pugh.* The U.S. Supreme Court explained that the value of confrontation and cross-examination "would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause." [*Id*](#user-content-fn-8)[^8]*.*

## Strategic Considerations

* **Prosecution Strategy**: Using the hearing to demonstrate the strength of their case, possibly pushing for a plea bargain.
* **Defense Strategy**: Opting to waive the right to a preliminary examination to avoid securing sworn testimony early on. The hearing can also serve as a tool for limited discovery.

## Understanding the Burden of Proof and Probable Cause

### **The Burden of Proof: Production vs. Persuasion**

The legal concept of "burden of proof" consists of two distinct elements: the *burden of production* and the *burden of persuasion*.

* **Burden of Production**: This is the obligation to present evidence sufficient for consideration by the deciding body, a fundamental step without which a party risks losing the case due to lack of evidence.
* **Burden of Persuasion**: This determines which party's evidence is more convincing to the trier of fact. This burden influences the decision-making process when the evidence is evenly balanced.

### **Standards of Persuasion in Legal Proceedings**

Different legal contexts require varying standards of proof:

1. **Preponderance of the Evidence**: The standard in civil trials.
2. **Clear and Convincing Evidence**: A higher standard required in some specific civil contexts.
3. **Proof Beyond a Reasonable Doubt**: The standard in criminal trials.

### **Probable Cause**

Probable cause, a lower standard than those above, plays a crucial role in various legal processes, such as issuing search warrants or deciding on a bindover for trial. It's essential to recognize the differences in how probable cause is evaluated across these contexts, with standards varying significantly from the evidentiary requirements in trials.

**Probable Cause in Preliminary Examinations**

A preliminary examination, which determines whether sufficient cause exists to proceed to trial, uses the probable cause standard heavily favored towards the state. Factors influencing this decision include:

* Use of circumstantial evidence and reasonable inferences.
* Evaluations based on practical, non-technical probabilities.
* The allowance of bindovers based on confessions, regardless of later admissibility at trial.

**Probable Cause: Legal Standards and Inferences**

The legal threshold for probable cause requires that a judge finds it plausible that the defendant committed a felony, not reliant on weighing evidence for or against the state's argument. This standard encourages decisions grounded in common sense and practicality, allowing charges to evolve based on the evidence presented at preliminary examinations.

***

<details>

<summary>Attributions</summary>

Unless otherwise indicated, see Christine M. Wiseman and Michael Tobin, 9 Wis. Prac., Criminal Practice & Procedure §§ 8:1-3 (2d ed.).

</details>

[^1]: [354 Wis. 2d 753](https://cite.case.law/wis-2d/354/753/?highlight=%C2%B6+19), ¶¶ 19-26 (2014)

[^2]: [178 Wis. 98](https://cite.case.law/wis/178/98/#p103), 103 (1922)

[^3]: [174 Wis. 2d 231](https://cite.case.law/wis-2d/174/231/#p240), 240 (1993)

[^4]: [101 Wis. 2d 517](https://cite.case.law/wis-2d/101/517/#p544), 544-45 (1981)

[^5]: [110 Wis. 2d 414](https://cite.case.law/wis-2d/110/414/#p423), 423-24 (Ct. App. 1982)

[^6]: [121 Wis. 2d at 398](https://cite.case.law/wis-2d/121/389/#p393)

[^7]: [420 U.S. 103, 120](https://cite.case.law/us/420/103/#p120) (1975)

[^8]: [at 122](https://cite.case.law/us/420/103/#p120)


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