2025 Wisconsin Statutes & Annotations
Chapter 970 - Criminal procedure — preliminary proceedings.
970.032 - Preliminary examination; juvenile under original adult court jurisdiction.

970.032 Preliminary examination; juvenile under original adult court jurisdiction.

(1) Notwithstanding s. 970.03, if a preliminary examination is held regarding a juvenile who is subject to the original jurisdiction of the court of criminal jurisdiction under s. 938.183 (1), the court shall first determine whether there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a), (am), (ar), (b), or (c), whichever is applicable. If the court does not make that finding, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under ch. 938.

(2) If the court finds probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a), (am), (ar), (b) or (c), the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938. The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence all of the following:

(a) That, if convicted, the juvenile could not receive adequate treatment in the criminal justice system.

(b) That transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

(c) That retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in s. 938.183 (1) (a), (am), (ar), (b) or (c), whichever is applicable.

History: 1993 a. 98; 1995 a. 77, 352; 1997 a. 35, 205; 2005 a. 344.

This section does not violate a defendant’s right to equal protection. State v. Martin, 191 Wis. 2d 646, 530 N.W.2d 420 (Ct. App. 1995).

A juvenile bears the burden of proof to demonstrate that the factors under sub. (2) support removing jurisdiction to the juvenile court. The removal decision is within the discretion of the trial court. State v. Verhagen, 198 Wis. 2d 177, 542 N.W.2d 189 (Ct. App. 1995), 94-2823.

Sub. (2) (a) allows a trial court to balance the treatment available in the juvenile system and adult system and requires the court to decide under the facts of the case which treatment will better benefit the juvenile. State v. Dominic E.W., 218 Wis. 2d 52, 579 N.W.2d 282 (Ct. App. 1998), 97-2446.

Sub. (2) is not unconstitutionally vague. State v. Armstead, 220 Wis. 2d 626, 583 N.W.2d 444 (Ct. App. 1998), 97-3056.

A juvenile has a right to a reverse waiver hearing after the criminal court finds probable cause to believe that the juvenile has committed the exclusive original jurisdiction violation or violations of which the juvenile is accused. At the hearing, the juvenile must prove all elements set out in sub. (2) (a), (b), and (c) by a preponderance of the evidence. The juvenile must be given reasonable latitude to offer admissible evidence to satisfy the juvenile’s burden on the three elements, including evidence about the offense, supplementing the facts used to establish probable cause, to put the offense in context. The juvenile may not offer evidence at the hearing for the purpose of contradicting the offense charged. State v. Kleser, 2010 WI 88, 328 Wis. 2d 42, 786 N.W.2d 144, 07-2827. But see State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.

When a juvenile is charged in adult court with a violation of one of the offenses enumerated in s. 938.183 (1), the juvenile is entitled to a preliminary examination under sub. (1) at which the court must find that there is probable cause to believe that the juvenile has committed the violation of which the juvenile is accused if the adult court is to retain exclusive original jurisdiction of the juvenile. This means that the court should make a specific finding on the record that there is probable cause to believe the juvenile committed the specific s. 938.183 (1) crime charged in the complaint. State v. Toliver, 2014 WI 85, 356 Wis. 2d 642, 851 N.W.2d 251, 12-0393.

If an adult court’s determination of probable cause in a preliminary examination under this section relates to an unspecified felony and the facts are undisputed, an appellate court may review the record independently to determine whether the court did find probable cause to believe that the juvenile has committed the violation of which the juvenile is accused. State v. Toliver, 2014 WI 85, 356 Wis. 2d 642, 851 N.W.2d 251, 12-0393.

Nothing in sub. (1) can be interpreted as requiring the state to disprove a juvenile’s affirmative defense in order for the adult court to maintain jurisdiction and bind the juvenile over for trial. State v. Geyser, 2020 WI App 58, 394 Wis. 2d 96, 949 N.W.2d 594, 18-1897.

When a juvenile is charged with a crime that subjects the juvenile to the original jurisdiction of the adult court system and requests a transfer of jurisdiction to juvenile court, the preliminary examination under this section functions as the first part of a two-part process that concludes with the “reverse waiver” hearing. When a juvenile charged with an original jurisdiction crime requests a preliminary hearing under sub. (1), the juvenile is invoking this section as a whole, because both of these hearings are necessary components of the statutory scheme governing whether the adult criminal court can or must retain its jurisdiction over the juvenile. A circuit court’s written order to retain jurisdiction after proceedings under this section necessarily encompasses the issues raised at the preliminary examination because a circuit court cannot deny the juvenile’s motion and retain jurisdiction without proceeding under both subs. (1) and (2). State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.

Defendants are entitled to all evidence that the state intends to introduce at a preliminary examination under sub. (1) to establish probable cause of the alleged jurisdictional offense. The state is required to produce this evidence at a reasonable time before the preliminary examination. Moreover, circumstances may be such that other materials exclusively in the possession of the state may be discoverable by the defendant prior to a preliminary examination under this section, provided the defendant establishes a particularized need for the materials requested by showing that the materials are likely to be relevant to negate one of the elements of the charged offense. State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.

The preliminary examination under sub. (1) is the only opportunity during reverse waiver proceedings for a defendant to present evidence to negate or reduce the original jurisdiction charge. Such evidence cannot be offered during the reverse waiver hearing under sub. (2). State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.