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County of Jefferson v. Renz12/22/1999
imum of suspicion indicated by the language `reason to believe' and `any presence of alcohol' and the degree of proof required to establish probable cause for arrest." Majority op. at 18.
. As I see it, the degrees of proof required for various "probable cause" standards may, in real life, be indistinguishable. Although people on the planet may be connected by no more than six degrees of separation, as the popular play and motion picture demonstrate, I am not sure what degrees of separation exist in the various manifestations of probable cause. I am sure, however, that the degrees of separation, if any, are crammed on a narrow spectrum.
. Our case law supports the conclusion that the most demanding quantum of proof, the probable cause necessary to bind a defendant over for trial, is not very demanding at all. The magistrate must determine only whether under any plausible facts the accused probably committed a felony. State v. Dunn, 121 Wis. 2d 389, 397-98, 357 N.W.2d 151 (1984).
. Furthermore our case law demonstrates that the varying degrees of proof are in fact very similar. In State v. Taylor, 55 Wis.2d 168, 173, 197 N.W.2d 805 (1972), the court noted that "while a preliminary hearing may require more by the way of evidence than other preliminary determinations of probable cause [citations omitted], these pretrial proceedings are similar in that they are all concerned with the practical and non-technical probabilities of everyday life in determining the existence of probable cause."
. I have appended a diagram to this concurrence to demonstrate the spectrum of probable cause determinations. The diagram is not, however, an exact representation of all the varying degrees of probable cause determinations. Some probable cause determinations may be missing. Furthermore, I am unsure of the placement on the spectrum of all the determinations that are shown. For example, the majority opinion does not tell us where the quantum of proof required in this case fits in comparison with the quantum of proof needed to issue a search warrant (see note #5 in the diagram) and the quantum of proof needed to revoke an individual's driver's license (see note #6 in the diagram).
. Because the most stringent interpretation of probable cause (the bindover for trial) requires only a "plausible account of the defendant's commission of a felony," this case raises the question of the usefulness of our jurisprudence regarding degrees of proof of probable cause.
. For the reasons stated, I concur in the mandate.
. I am authorized to state that JUSTICE ANN WALSH BRADLEY joins this concurrence.
NOTES TO THE PROBABLE CAUSE DIAGRAM
1. Bind Over. "A defendant may be bound over for trial when the evidence presented at the preliminary hearing is sufficient to support a reasonable inference that the defendant probably committed a felony." State v. Leist, 141 Wis. 2d 34, 40, 414 N.W.2d 45 (Ct. App. 1987). " . . . robable cause at a preliminary hearing is satisfied [and the defendant can thus be bound over for trial] when there exists a believable or plausible account of the defendant's commission of a felony." State v. Dunn, 121 Wis.2d 389, 397-98, 359 N.W.2d 151 (1984); See also Wis. Stat. § 970.03(1)(1997-98).
"The distinction between plausibility and credibility may be fine; the distinction is one of degree." Dunn, 121 Wis. 2d at 397. A judge does not delve into credibility of a witness. Vigil v. State, 76 Wis. 2d 133, 144, 250 N.W.2d 378 (1977).
The same principles governing preliminary hearings in felony prosecutions also apply to probable cause hearings held pursuant to Wis. Stat. § 980.04(2
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