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Drug Charges and Preliminary Hearings: Testing the Strength of the Prosecution’s Case

Posted on in Criminal Defense

Wisconsin defense attorney, Wisconsin criminal lawyer, arraignmentMany states, including Wisconsin, require preliminary hearings to be held when you are facing felony charges and plead not guilty at arraignment, also known as the “initial appearance.” Depending on the circumstances of your case, you may decide to waive the preliminary hearing, give up your right to have one and proceed to trial. However, there are many circumstances where having a preliminary hearing will benefit you.

A preliminary hearing is held to determine whether probable cause exists to bind you over for trial. Probable cause is a standard of proof and merely requires the prosecution to provide enough evidence tending to show: (1) that a felony was probably committed in the state of Wisconsin; and (2) that you were the individual that probably committed the felony. In order to show that the prosecution met its standard of proof, the police officer(s) who arrested you will be required to testify.

The preliminary hearing is the best way to get an idea of what the prosecution’s theory is and also allows you to challenge the sufficiency of the prosecution’s evidence. Under Wisconsin law, most drug crimes are considered felony offenses. Depending on the type of drug involved in your charges, you could be incarcerated for up to 40 years. The preliminary hearing is a critical stage, and depending on the circumstances of your case, you might be able to suppress evidence that will not be permitted at trial.

Holding or Waiving a Preliminary Hearing

A preliminary hearing is, in essence, a preview of what trial will look like. However, a prosecutor typically presents enough evidence to convince the judge to hold you over for trial. One of the benefits of a preliminary hearing is that you have the ability to cross-examine any of the witnesses called by the prosecution. This provides valuable insight into your defense because you can find out what they actually observed and determine their credibility as a witness. Sometimes, cross-examination of these witnesses will yield fruitful information that you or your attorney can use to your advantage when negotiating a plea.

Most of the time, the prosecution is successful at preliminary hearings. But, there are many instances when they are not, such as when:
  • The eyewitness identification of you fails under cross-examination and no other credible evidence is presented to identify you;
  • The key witness fails to show up or refuses to testify; or
  • The prosecution fails to offer evidence to support each element of the crime(s) you are charged with.

Although the prosecution is not required to provide evidence beyond a reasonable doubt, they are required to show some evidence to substantiate their claims that you committed the crime.

Consult a Criminal Defense Attorney

As you can see, having a preliminary hearing provides many benefits. But there are situations when you should waive the hearing in order to skip directly to trial or to get a better deal from the prosecution. In either case, before you make a hasty decision, you should contact an experienced Milwaukee criminal defense attorney who will be able to properly evaluate your case, advise you on the best course of action, and negotiate the best deal for you, if necessary.
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