970.04 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.

History: 1993 a. 486.

If the state has no additional new or unused evidence upon which to base a 2nd 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).

When 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).

The 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).

This section allows for issuance of a second complaint if the district attorney has evidence that was not used at the first preliminary. “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).

A 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.

This 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.