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Open Records Request Important Before Preliminary Hearing

In felony cases, defendants are entitled to a preliminary hearing.  The purpose of the preliminary hearing is to determine whether there is probable cause to believe the defendant has committed a felony.  The preliminary hearing benefits the defendant in that, if the court finds that there is not probable cause to believe the defendant has committed a felony, the charges are dismissed, freeing the defendant from the aggravation of a drawn out legal process and from the conditions of bond, conditions that can cause him/her to risk an additional felony, bail jumping, for otherwise legal activities, of which he/she can be convicted even successful on the underlying criminal charge. 

Unfortunately for defendants, it is rare for defendants to win preliminary hearings.  The state’s burden is not very high.  Even in defeat, however, the preliminary hearing can benefit defendants.  Unlike civil cases,where both sides are able to depose witnesses, criminal defendants rarely have access to the state’s witnesses before trial.  The preliminary hearing can be a glimpse into the testimony that will be offered by the State at trial.

In order to maximize the benefits of a preliminary hearing, it is important that defendants are well prepared to do a meaningful cross-examination of the state’s witnesses.  Defendants’ ability to so prepare; however, is often hampered by district attorneys’ use of the public records in the custody of the district attorney’s office common law exception to Wisconsin’s public records law. 

While frustrating to defendants, it is constitutional for district attorneys to use the above to deny defendants access to their files until after the preliminary hearing.  There may, however, be an alternative.  In Portage Daily Register v. Columbia County Sheriff’s Department, the Court of Appeals of Wisconsin ruled that a sheriff’s department could not deny an open records request in reliance on common law categorical exception for records in the custody of a district attorney’s office.  308 Wis.2d 357 (Wis. App. 2008).  Nor was the statement that a matter had been referred to the district attorney’s office and was related to an ongoing investigation sufficiently specific public policy reason for denial of a public records request.  Id. 

Given Portage Daily Register, in order to maximize the benefit of a preliminary hearing, when district attorneys will not share their file prior to a preliminary hearing, defendants should make open records requests on the applicable police department.

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