Redrafting the preliminary-hearing waiver form

I currently have an article under submission to the law journals that is titled Improvident Prosecutions.  It exposes the various preliminary hearing scams perpetrated by Wisconsin’s prosecutors and judges, and gives interested legislators a roadmap to correct these prosecutorial and judicial abuses.  Once the article is accepted for publication, I’ll post it to SSRN and my website and will notify The Dog’s readers via a new blog post.  But until then, I thought I’d take a shot at redrafting the state’s (or at least Kenosha County’s) preliminary-hearing waiver form.  Given the current prosecutorial practice of using a reader-witness, explained below, the old waiver form is no longer accurate and poses problems for defense lawyers whose clients are thinking about waiving the preliminary hearing. 

For those who don’t know, the preliminary hearing is a pretrial evidentiary hearing where the state has to call a witness or witnesses to establish probable cause that the defendant committed a felony.  Often, these hearings are waived to preserve a plea offer which the defendant can accept, if he or she wishes, at a later date.  The most recent prosecutorial scam, however, is to call a reader-witness to the stand at the hearing.  This reader-witness knows nothing about the case; instead, he read the criminal complaint only minutes earlier, and then merely answers the prosecutor’s questions about what is in that document.  (He does his best to memorize the complaint, but sometimes has to “refresh” his nonexistent memory of the alleged crime by reading the complaint again while in the witness chair.)

This practice is blatantly illegal for several reasons.  Chief among them are the statute requiring witnesses to have personal knowledge of the matters about which they testify and the case-law requirement that bind-over at a preliminary hearing requires a higher standard of probable cause than what is required for a criminal complaint.  A reader-witness who has no connection whatsoever to the case, and merely answers questions about what the prosecutor decided to include in the complaint, obviously fails both of these tests. 

Nonetheless, the Wisconsin judiciary is, at least for now, tolerating this scam, and is thus complicit in it.  But if we’re going to play along with this absurdity, we should at least have a new, accurate preliminary-hearing waiver form.  The problem with the current one, from a defense lawyer’s standpoint, is that it harkens back to the day when the hearing meant something.  In other words, it gives the defendant the impression that, by waiving the hearing, he or she is giving up something akin to a bar of gold.  It is then incumbent on the defense lawyer to tell the client that the waiver form is inaccurate and, in fact, the client isn’t giving up anything at all by waiving the hearing.  This is tough on clients, too, as this news is, understandably, difficult to comprehend and even tougher to believe. 

Here, then, is the current waiver form (or, more accurately, items 1 – 12 of the current form) with my proposed deletions in lined out text, my proposed additions in underlined text, and my comments highlighted in yellow.  If the Powers That Be would make these changes, it would make the criminal defense lawyer’s life a bit easier and would correct the inaccuracies in the current form.

Preliminary hearing WAIVER FORM

Please answer CORRECT or INCORRECT to the following:

1.      I am the defendant in this criminal action, and I wish to waive my statutory and constitutional rights to a preliminary hearing in this case.

a.       [Comment: The law is now well-settled in Wisconsin that the preliminary hearing is not a constitutional right; rather, it is purely statutory.  Further, the constitutional right of confrontation does not apply at this statutory hearing.  We shouldn’t lie to defendants by telling them that they’re giving up a constitutional right when they’re not.]

2.      I have never been committed to a mental institution as mentally ill or found to be incompetent.  I do not suffer from any mental or physical disabilities which would affect my decision in this matter.

a.       [Comment: This is a poorly worded compound statement.  Being committed and being found incompetent (even when they are one in the same) are very different from currently suffering from disabilities that affect decision-making.  This needs to be broken into at least two different statements, as some defendants have previously been committed and/or found to be incompetent, but have no current disabilities that affect their decision-making.]

3.      I have not taken or used any drugs or controlled substances or alcohol within the last 24 hours except ____________________________.

a.       [Comment: This should be deleted.  First, the issue is already covered in item #2, above.  Second, the defendant has a right against self-incrimination, and if he is on bond with a no-drug or no-alcohol condition, but in fact has consumed drugs or alcohol, then he is forced either to lie on this form or incriminate himself.  There’s no need for this Hobson’s choice.  Just delete it.]

4.      I can read, write, and understand English.

a.       [Comment: This is fine; excellent use of the Oxford comma as well.]

5.      I understand that the State would have the burden of proof at a preliminary hearing to show that a felony was probably committed by me and that I am admitting the State could meet the burden to establish probable cause at the preliminary hearing.  However, the state has already established probable cause in the criminal complaint; therefore, the state would automatically win bind-over if I decide to have my hearing. 

a.       [Comment: First, the existing language is wrong; the state doesn’t have to show that the defendant “probably committed” a felony, as that implies a preponderance of evidence standard.  Rather, the standard is probable cause, which is much lower.  Second, because Wisconsin courts are letting the state win bind-over based solely on the previously-filed complaint, the outcome of the hearing is a foregone conclusion.  (If the complaint lacked probable cause, we wouldn’t be in court for a preliminary hearing.)  Defendants should be told the truth; they should not be led to believe that they actually have a shot at winning their hearing.  Let’s be honest with them about what they’re really waiving when they waive the preliminary hearing: a reading of the complaint.] 

6.      I understand that at a preliminary hearing my attorney or I could ask questions of any witnesses called by the State and I am giving up that right.

a.       [Comment: That’s technically true, but misleading, as the reader-witness isn’t a witness in the sense that he saw, heard, or investigated anything.  In fact, he hasn’t even read the police reports.  Therefore, this should be deleted.]

7.      I understand that I cannot be compelled to testify at the preliminary hearing.  I understand I give up my right to testify at the preliminary hearing.

a.       [Comment: The first part is true.  The second part should be deleted.  See comment to #8, below, for an explanation.]

8.      I understand that I give up my right to produce evidence and to subpoena witnesses to testify for me at a preliminary hearing.

a.       [Comment: This is false.  Based on my experience and my reading of the case law, Wisconsin courts don’t allow the defense to present any evidence in any form.  Their reasoning: by the time the state rests, it has established probable cause.  And because all inferences go to the state, any contradictory evidence produced by the defense would have to be ignored.  Therefore, the judges and commissioners won’t even hear it.  Other states have condemned this “reasoning,” holding that the probable cause determination must be made AFTER the defendant’s evidence.  To allow mid-hearing probable cause determinations is to render meaningless the statute giving defendants the right to call witnesses.  But Wisconsin courts, well, they make up their own rules, statutory rights be damned.]

9.      I understand that if I do not accept the terms of the waiver proposal by the State or if negotiations fall through for any reason I cannot come back to this court, or any court, for a preliminary hearing.  This is a final waiver of my rights to a preliminary hearing and I decide to go to trial, I will go to trial on all counts in the criminal complaint, as the State would not be obligated to dismiss any of them.

a.       [Comment: No defendant expects to come back to court for a prelim after waiving it.  Instead, this would be a good chance to clear up a common misconception.  The truth is that the state’s offer to dismiss certain counts only holds if the defendant ultimately accepts the waiver offer or negotiates a better one.  If the defendant goes to trial, however, he or she goes to trial on ALL counts, not just the ones that were included in the (subsequently rejected) waiver offer.]

10.  I understand that it is sometimes possible to discover things about my case at a preliminary hearing including possible defenses to a charge.

a.       [Comment: This is false and should be deleted.  The reader-witness just read the complaint minutes before taking the witness stand.  The defendant won’t learn anything from him that he couldn’t learn from reading the complaint himself or having the defense lawyer read the complaint to him.  We need to stop lying to defendants about this, and we should stop leading them to believe they are giving up something they aren’t.]

11.  I understand that if the State does not meet the burden of proof, the court may reduce the felony charge to a misdemeanor charge or dismiss it altogether and I am giving up that right.

a.       [Comment: This is false.  As explained in the revised #5, above, probable cause has already been established.  We shouldn’t lie to defendants and give them false hopes that they might win the dismissal or reduction of some charges.]

12.  I understand that as a result of waiving the preliminary hearing my case will be set for further proceedings before the court and I am not giving up my right to a trial.

a.       [Comment: This is good.  In fact, it’s important for the defendant to know and should probably be moved higher on the list.]

If someone would please make the above changes, I would greatly appreciate it.  Defendants would be better able to make a reasoned decision on whether to waive the preliminary hearing, and we defense lawyers could save the time of having to debunk the current form and all of its lies.  It’s a win-win.  So chop-chop, let’s get it done.