Wisconsin Statutes
Wis. Stat. § 970.038 (2026)
Preliminary examination; hearsay exception
✓ current as of July 2026
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970.038(1)(1) Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination under ss. 970.03, 970.032, and 970.035.
970.038(2)(2) A court may base its finding of probable cause under s. 970.03 (7) or (8), 970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1).
970.038 AnnotationThis section is constitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. There is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, the admission of hearsay evidence does not violate petitioners’ rights to compulsory process, effective assistance of counsel, or due process. State v. O’Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, 12-1769.
970.038 AnnotationApplication of this section, which first became effective after the date of the alleged offense, did not constitute an ex post facto violation because it affected only the evidence that could be admitted at the preliminary hearing and did not alter the quantum or nature of evidence necessary to convict the defendant. State v. Hull, 2015 WI App 46, 363 Wis. 2d 603, 867 N.W.2d 419, 14-0365.
970.038 AnnotationUnder this section, defendants retain the statutory right to cross-examine witnesses during preliminary examinations under s. 970.03 (5), but this right is nullified when a witness’s testimony is based entirely on hearsay that may not be admissible under a statutory exception to the general rule against hearsay, and the defendant lacks any ability to obtain discovery exclusively in the possession of the state. State v. Adams, 2024 WI App 44, 413 Wis. 2d 202, 11 N.W.3d 190, 23-0218.
Notes of Decisions
Cited in 8
cases (2 in the last 5 years), 2013–2026 · leading case: State v. Charles E. Butts, 2014 WI 54 (Wis. 2014).
State v. Charles E. Butts, 2014 WI 54 (Wis. 2014). “1 ¶2 On review, petitioners assert that the newly enacted Wis. Stat. § 970.038 (2011-12),2 which permits hearsay evidence at preliminary examinations, violates their constitutional rights.”
State v. O'Brien, 2013 WI App 97 (Wis. Ct. App. 2013). “The newly enacted Wis. Stat. § 970.038 (2011-12) 1 makes hearsay evidence admissible at a criminal defendant's preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based "in whole or in part" on hearsay…”
State v. Glenn T. Zamzow, 2017 WI 29 (Wis. 2017). “Wis. Stat. § 970.038 ; State v. O'Brien, 2014 WI 54, ¶¶30-31 , 354 Wis.”
State v. Hull, 2015 WI App 46 (Wis. Ct. App. 2015). “The testimony was offered pursuant to Wis. Stat. § 970.038 , a recently enacted statute that authorizes the admission of hearsay evidence at preliminary hearings.”
State v. Latres Christopher Robinson (Wis. Ct. App. 2026). “§ 970.038, which allows courts to rely on hearsay to establish probable cause.”
State v. Jayden Adams, 2024 WI App 44 (Wis. Ct. App. 2024). “§ 970.038. Section 970.038 states that “hearsay is admissible in a preliminary examination,” and that a court may base its probable cause finding “in whole or in part on hearsay[.”
State v. Glenn T. Zamzow (Wis. 2017). “Wis. Stat. § 970.038 ; State v. O'Brien, 2014 WI 54, ¶¶30-31 , 354 Wis.”
Stewart, Byron v. Boughton, Gary (W.D. Wis. 2020). “§ 970.038 (after Stewart’s conviction). The court of appeals summarized Fahrney’s testimony at the preliminary hearing in this way: Fahrney testified that he had overheard a conversation between Conner and Conner’s parents in Conner’s hospital room several days after the…”
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