Improvident Prosecutions, 12 Drexel L. Rev. __ (forthcoming 2019-20)

In Improvident Prosecutions, I demonstrate the numerous flaws with Wisconsin's preliminary hearing process.  (Prosecutors, and especially judges, should be embarrassed by these.)  I also give the state legislature a blueprint on how to fix these problems.  (Take action, please; I've done the work for you.)  You can find a draft of the article on SSRN.  You can also see the article, and all of my articles organized by topic, on my website.  You can learn about the Drexel L. Rev. and read other Drexel articles here.  The abstract of Improvident Prosecutions is posted after the jump.

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 isn’t 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, this Article discusses simple legislative reforms that would prevent such abuse. The Article then analyses and revises a typical preliminary hearing statute to illustrate the ease with which these reforms could be implemented.