If you have been charged with a felony in Wisconsin, one of the first major court dates you will face is the preliminary hearing. This step in the criminal process often causes confusion and anxiety, especially for people who assume it works like a trial. It does not. Nevertheless, the preliminary hearing represents an important step in your case, and it is one that cannot be ignored. The criminal defense attorneys at Hogan Eickhoff regularly represent clients at preliminary hearings throughout Wisconsin and can walk you through what to expect.
A preliminary hearing is a procedural step required in felony cases in Wisconsin. Its purpose is narrow: to determine whether there is probable cause to believe a felony was committed and that the defendant committed it. This is not a determination of guilt or innocence. It is simply a check to make sure the state has enough evidence to justify moving the case forward toward trial. Theoretically, it is possible that you can persuade a judge to dismiss the charges against you at this stage.
Misdemeanor cases do not require a preliminary hearing. This step applies specifically to felony charges, where the stakes and potential penalties are significantly higher.
The standard applied at a preliminary hearing is far lower than the standard used at trial. At trial, the state must prove guilt beyond a reasonable doubt. At a preliminary hearing, the state only needs to establish probable cause, meaning there is a reasonable basis to believe a crime occurred and the defendant likely committed it. This is a requirement that comes from Wisconsin law. The Wisconsin Court of Appeals has held in State v. O’Brien that the preliminary examination is a “creature of statute” and “is not mandated by federal or state constitutions.”
Because this bar is comparatively low, prosecutors do not need to present overwhelming evidence. In many cases, the state will call a single witness, often a law enforcement officer, to summarize the investigation and establish the basic elements of the charge. The defense has the opportunity to cross-examine this witness, but the judge is not being asked to weigh the full strength of the case, only whether enough exists to proceed.
Preliminary hearings are typically brief and limited in scope compared to a trial. The prosecution generally presents:
Hearsay evidence, which is generally restricted at trial, is often permissible at a preliminary hearing. This means an officer can testify about what a witness or victim reported, rather than requiring that person to testify directly (although they will not be able to use this evidence at trial). The defense may cross-examine the state’s witness and can call witnesses of its own, though this is less common at this stage. The defense is not required to present a case at all.
A preliminary hearing and a trial serve entirely different functions, and the differences matter for anyone trying to understand the process:
Because the stakes and standards are so different, strategy at a preliminary hearing looks nothing like trial strategy.
Defendants have the option to waive the preliminary hearing or contest it, and this decision carries real strategic weight. Waiving the hearing means the case moves forward without the state having to present any evidence at this stage. Defendants sometimes waive a preliminary hearing as part of ongoing plea negotiations, to avoid giving the prosecution an early opportunity to lock a witness into sworn testimony, or simply because the probable cause standard is so low that contesting it is unlikely to change the outcome.
Contesting the hearing, on the other hand, can serve several strategic purposes even when winning outright is unlikely. It gives the defense an early opportunity to hear the state’s witness testify under oath and assess the strength, consistency, and credibility of that testimony. It can also lock a witness into a specific version of events, which may be useful later if their story changes. In rare cases, a well-argued preliminary hearing can even result in a charge being dismissed or reduced if the state’s evidence falls short.
The right choice depends heavily on the facts of the case, the relationship between the defense and prosecution, and the broader case strategy. This is a decision that should be made in close consultation with an attorney who understands both the immediate hearing and the trajectory of the case as a whole.
If the judge finds probable cause, the case is bound over for trial and formal charges proceed through the circuit court. If the judge does not find probable cause, the charge can be dismissed, though prosecutors may have the option to refile depending on the circumstances. Either outcome sets the tone for how the rest of the case will be handled.
A preliminary hearing may be brief, but the decisions made around it can shape the direction of an entire case. Having an experienced attorney evaluate the evidence and advise on whether to waive or contest the hearing is critical to protecting your rights.
The team at Hogan Eickhoff offers free consultations and is ready to discuss the details of your case. Call (920) 450-9800 or contact our office to get started with a free consultation today. Learn more about the ways we can help defend various felonies and misdemeanors including sex offenses, property crimes, drug offenses, violent crimes, and domestic violence.
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