970.032 Preliminary examination; juvenile under original adult court jurisdiction.
970.032
970.032 Preliminary examination; juvenile under original adult court jurisdiction.970.032(1)
(1) Notwithstanding s. 970.03, if a preliminary examination is held regarding a juvenile who is subject to the original jurisdiction of the court of criminal jurisdiction under s. 938.183 (1), the court shall first determine whether there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a), (am), (ar), (b), or (c), whichever is applicable. If the court does not make that finding, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under ch. 938.970.032(2)
(2) If the court finds probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a), (am), (ar), (b) or (c), the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938.The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence all of the following:970.032(2)(a)
(a) That, if convicted, the juvenile could not receive adequate treatment in the criminal justice system.970.032(2)(b)
(b) That transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.970.032(2)(c)
(c) That retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in s. 938.183 (1) (a), (am), (ar), (b) or (c), whichever is applicable.970.032 - ANNOT.
History: 1993 a. 98; 1995 a. 77, 352; 1997 a. 35, 205; 2005 a. 344.970.032 - ANNOT.
This section does not violate a defendant's right to equal protection. State v. Martin, 191 Wis. 2d 647, 530 N.W.2d 420 (Ct. App. 1995).970.032 - ANNOT.
The juvenile bears the burden of proof to demonstrate that the factors under sub. (2) support removing jurisdiction to the juvenile court. The removal decision is within the discretion of the trial court. State v. Verhagen, 198 Wis. 2d 177, 542 N.W.2d 189 (Ct. App. 1995), 94-2823.970.032 - ANNOT.
Sub. (2) (a) allows the trial court to balance the treatment available in the juvenile system and adult system and requires it to decide under the facts of the case which treatment will better benefit the juvenile. State v. Dominic E.W. 218 Wis. 2d 52, 579 N.W.2d 282 (Ct. App. 1998), 97-2446.970.032 - ANNOT.
Sub. (2) is not unconstitutionally vague. State v. Armstead, 220 Wis. 2d 626, 583 N.W.2d 444 (Ct. App. 1998), 97-3056.970.032 - ANNOT.
The plain, unambiguous meaning of sub. (2) is that evidence of facts of the offense contrary to the preliminary examination or, where the preliminary examination is waived, the criminal complaint, is not admissible at a reverse waiver hearing. State v. Kleser, 2009 WI App 43, 316 Wis. 2d 825, 768 N.W.2d 230, 07-2827.970.032 - ANNOT.
Sub. (2) makes no provision for the admission of hearsay at a reverse waiver hearing. When a statute does not specifically authorize hearsay, it is generally prohibited. State v. Kleser, 2009 WI App 43, 316 Wis. 2d 825, 768 N.W.2d 230, 07-2827.