Wisconsin Statutes
Wis. Stat. § 970.04 (2026)
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✓ current as of July 2026
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970.04970.04 Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.
970.04 AnnotationIf the state has no additional new or unused evidence upon which to base a second complaint, a preliminary examination order discharging a defendant is appealable. Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977).
970.04 AnnotationWhen a first preliminary examination became chaotic, the prosecution properly abandoned the proceedings before presenting all its evidence and reissued the complaint. State v. Brown, 96 Wis. 2d 258, 291 N.W.2d 538 (1980).
970.04 AnnotationThe state is not barred from recharging a defendant, whether or not it has new evidence. State v. Hoffman, 106 Wis. 2d 185, 316 N.W.2d 143 (Ct. App. 1982).
970.04 AnnotationThis section allows for issuance of a second complaint if the district attorney has evidence that was not used at the first preliminary hearing. “Unused” evidence in the context of a preliminary hearing means unused by the court in reaching its decision whether to bind the defendant over for trial. State v. Twaite, 110 Wis. 2d 214, 327 N.W.2d 700 (1983).
970.04 AnnotationA complaint may be reissued when “new or unused” evidence would support a finding of probable cause. What constitutes new or unused evidence is not easily definable, but it is not evidence that is merely cumulative or corroborative and is determined by applying common sense. State v. Johnson, 231 Wis. 2d 58, 604 N.W.2d 902 (Ct. App. 1999), 98-2881.
970.04 AnnotationThis section specifically limits the availability of a second preliminary examination and precludes a request for a de novo hearing under the more general s. 757.69 (8). State v. Gillespie, 2005 WI App 35, 278 Wis. 2d 630, 693 N.W.2d 320, 04-1758.
Notes of Decisions
Cited in 23
cases (3 in the last 5 years), 1976–2025 · leading case: State v. Williams, 544 N.W.2d 406 (Wis. 1996).
State v. Williams, 544 N.W.2d 406 (Wis. 1996). “Consistency in the interpretation of these statutes, and other statutes such as Wis. Stat. § 970.04 , is achieved in a far less tortuous manner by simply requiring a factual basis in the preliminary examination for each crime charged in the information.”
State v. Burke, 451 N.W.2d 739 (Wis. 1990). “Section 970.04 shall apply to any dismissed count.”
State v. Twaite, 327 N.W.2d 700 (Wis. 1983). “The defendant moved to dismiss the charge, arguing that the state had no new or unused evidence and that the state could not, therefore, file another complaint under sec. 970.04, Stats. The state and the defendant stipulated to the testimony and transcript of the chemist and two…”
State v. Kenyon, 270 N.W.2d 160 (Wis. 1978). “It first declared that sec. 970.04, Stats., 3 allowing the issuance *41 of another complaint, was inapplicable because the defendant had not been discharged after the first preliminary examination.”
State v. Manthey, 487 N.W.2d 44 (Wis. Ct. App. 1992). “The state contends that the trial court erred by determining that the state does not have additional evidence that would entitle it to reissue three charges pursuant to sec. 970.04, Stats., that had previously been dismissed.”
State v. Akins, 544 N.W.2d 392 (Wis. 1996). “at 342 ; see also Wis. Stat. § 970.04 . We concluded our analysis by examining the historically broad charging discretion of the district attorney, stating: Once it has been determined that there is probable cause to believe a felony has been committed by the defendant and he is…”
State v. Williams, 520 N.W.2d 920 (Wis. Ct. App. 1994). “We simply observe that under appropriate circumstances, § 970.04, Stats., allows for the recharging of a defendant previously discharged.”
State v. Williams, 527 N.W.2d 338 (Wis. Ct. App. 1994). “Any new charge that arises out of facts relied upon to dismiss a count may not be included in an Information but may be included in another complaint pursuant to § 970.04, Stats. 6 In Bailey , the defendant was charged with a single count of first-degree murder.”
State v. Gillespie, 2005 WI App 35 (Wis. 2005). “We conclude that the preliminary hearing provisions of the Criminal Procedure Code, particularly Wis. Stat. § 970.04 governing a second preliminary examination, preclude Gillespie's claim that he is entitled to a second preliminary hearing before the circuit court.”
State v. Street, 551 N.W.2d 830 (Wis. Ct. App. 1996). “Section 970.04 shall apply to any dismissed count.”
State v. Hoffman, 316 N.W.2d 143 (Wis. Ct. App. 1982). “Defendant contends that recharging her was improper without bringing forth new or unused evidence that would tend to establish her guilt. Assuming Judge Jones’ ruling concerning jurisdiction to be correct, we conclude the state was not required to bring forth additional evidence…”
West v. State, 246 N.W.2d 675 (Wis. 1976). “Section 970.04 shall apply to any dismissed count.”
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