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Improvident Prosecutions


Litigation has been called “a machine which you go into as a pig and come out of as a sausage.” With regard to modern criminal litigation, however, this life-ruining impact is strictly one-sided: the prosecutor files criminal complaints with reckless abandon and without repercussion or personal cost, while defendants bear the life-altering consequences of the litigation and, in many cases, the resulting convictions.

But prosecuting a felony accusation is not supposed to be that easy and carefree for the government. The preliminary hearing—a pretrial evidentiary hearing to determine probable cause—was designed to serve as a buffer between the government and the citizenry, and “to prevent hasty, malicious, improvident, and oppressive prosecutions.” Unfortunately, in today’s assembly-line approach to criminal law, prosecutors and judges have developed many ways to bypass this procedural safeguard and keep the criminal justice machinery humming along.

This Article identifies and explains several prosecutorial and judicial abuses of the preliminary hearing, including denying defendants their constitutional right to counsel, using multiple levels of uncorroborated hearsay to win bind-over, preventing the defense from effectively cross-examining the state’s witnesses and calling its own witnesses, and even using the preliminary hearing as prosecutorial weapon to tack-on additional felony counts without probable cause.

After identifying and explaining these and other abuses of the preliminary hearing by using examples from the state of Wisconsin, this Article discusses simple legislative reforms that would prevent such abuse. The Article then analyzes and revises a typical preliminary hearing statute to illustrate the ease with which these reforms could be implemented.