2025 Wisconsin Statutes & Annotations
Chapter 970 - Criminal procedure — preliminary proceedings.
970.038 - Preliminary examination; hearsay exception.
970.038 Preliminary examination; hearsay exception.
(1) Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination under ss. 970.03, 970.032, and 970.035.
(2) A court may base its finding of probable cause under s. 970.03 (7) or (8), 970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1).
History: 2011 a. 285.
This section is constitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. There is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, the admission of hearsay evidence does not violate petitioners’ rights to compulsory process, effective assistance of counsel, or due process. State v. O’Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, 12-1769.
Application of this section, which first became effective after the date of the alleged offense, did not constitute an ex post facto violation because it affected only the evidence that could be admitted at the preliminary hearing and did not alter the quantum or nature of evidence necessary to convict the defendant. State v. Hull, 2015 WI App 46, 363 Wis. 2d 603, 867 N.W.2d 419, 14-0365.
Under this section, defendants retain the statutory right to cross-examine witnesses during preliminary examinations under s. 970.03 (5), but this right is nullified when a witness’s testimony is based entirely on hearsay that may not be admissible under a statutory exception to the general rule against hearsay, and the defendant lacks any ability to obtain discovery exclusively in the possession of the state. State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.
