Author: Attorney David E. Saperstein
Phone: 608-257-0945
Email: dsaperstein@hurleyburish.com

This practical series, “Nuts and Bolts,” is intended to demystify the process of being charged with a crime in Wisconsin state (circuit) courts. The court process can be overwhelming. Knowing what to expect from the process may make it less confusing and unpredictable, and hopefully less stressful.

Is There Probable Cause ? – Initial Appearances, Preliminary Hearings and Plea Hearings

The government may not proceed with a criminal prosecution unless a judge or court commissioner finds “probable cause” that a crime has been committed, and that it has been committed by the named defendant. An initial probable cause determination is made at or before the bail hearing, but probable cause remains an issue during other initial stages of the case.

A Criminal Complaint (the official charging document in a criminal case) must, at a minimum, name the specific criminal charges levied against the accused and the minimum and maximum penalties that are associated with those charges. The complaint must also contain a written statement of “facts” explaining why those offenses, and that particular person, are being charged. This portion of the complaint is called the “probable cause” statement. “Probable cause” is a very low burden of proof; on the opposite end of the spectrum from the “beyond a reasonable doubt” burden of proof required at a criminal jury trial. Generally, probable cause is satisfied when there exists any believable or plausible account of the particular defendant’s commission of the crime(s) charged in the complaint. It is the defense attorney’s job at this stage to scrutinize the complaint for the possible absence or omission of any facts necessary to meet the probable cause burden of proof.

A motion to dismiss particular charges or the entire complaint, based upon the insufficiency of the facts in that complaint, must be filed (or at least preserved) at the initial appearance, and before a plea is entered. In misdemeanor cases a “not guilty” plea is entered at the “Initial Appearance,” which is the first hearing held after a complaint has been filed. In felony cases, a not guilty plea is entered after the “Preliminary Hearing,” during a separate proceeding called an “Arraignment.”

In misdemeanor cases the judge makes an initial probable cause determination at the initial appearance simply by reading the complaint. In felony cases, however, the accused is afforded an additional hearing – a preliminary hearing (also called a preliminary “examination”) — when the government has the burden of proving probable cause by presenting some evidence to the court. Typically, the government will call one or more law enforcement officers who were involved in the investigation of the case to testify about the basic facts that are contained in the complaint. The defense attorney will then cross-examine the government’s witnesses, and may call witnesses for the defense. Sometimes the judge allows the attorneys to also make arguments for or against a finding of probable cause. The judge is not supposed to weigh both sides of the case at this stage. Her job is simply to determine if the government has met its burden of proof — by presenting a plausible account of how the accused may have committed a felony. The judge does, however, have the authority to dismiss the entire case or particular charges if she determines that the government has failed to meet its burden of proof.

After a probable cause determination has been made by a judge or court commissioner, the next scheduled proceeding is the arraignment, when the accused will enter his not guilty plea. However, if the accused wishes to substitute the judge assigned to his case, he must make this request before a plea is entered. The accused has a right to one substitution of any assigned judge, but does not get to choose the judge that is assigned to replace the substituted judge. Also, in felony cases, any challenge to the sufficiency of the preliminary hearing, and to the judge’s probable cause determination, must also be made (or at least made known) prior to the entry of the plea. Finally, in felony cases, the government must file a new document called an “Information,” listing the charges (and the penalties associated with the charges) that have made it through the probable cause determination process. After the Information is filed the arraignment can be conducted, and not guilty pleas entered.