State v. Sorenson

*475EICH, J.

(concurring).

Under Wisconsin law, no defendant may be tried on a felony charge unless the state, at a preliminary hearing, establishes to a reasonable probability that a crime has been committed by the defendant. State v. Berby, 81 Wis. 2d 677, 683, 260 N.W.2d 798, 801 (1978). In this case the state attempted to make that showing without any testimony from the victim, relying entirely on the hearsay statement of a social worker. As the opinion states, that statement, which formed the sole basis for the bindover, was wholly inádmissible. Indeed, under well-established rules of law, the question was not even close.

The prosecutor did put the victim on the stand at trial and, apparently, her testimony was sufficient to cause the jury to convict. Absent such testimony at the preliminary hearing, however, the state failed to do what the law requires it to do. It failed to establish, by competent evidence, the facts legally necessary to convene the trial in the first place.

The law sets forth specific requirements which must be met before any defendant may be held for trial on a felony charge, and where, as here, the state has failed to meet those requirements, we have no choice but to reverse. We cannot, in an after-the-fact analysis, ignore that foundational defect or otherwise rehabilitate the flawed preliminary hearing by taking into account the additional evidence later offered by the state at the defendant’s trial.

The prosecutor’s failure to offer the victim’s testimony at the preliminary hearing, however understandable it may have been by reason of her age and level of intelligence, was fatal to the case. Without it, there was no evidence whatsoever upon which Sorenson could be bound over for trial, and all further proceedings— *476including the trial and the resulting conviction — were null and void ab initio.