State v. Latres Christopher Robinson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 12, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP983-CR Cir. Ct. No. 2025CF32

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LATRES CHRISTOPHER ROBINSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Rock County:
DERRICK A. GRUBB, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Kloppenburg, JJ.
No. 2025AP983-CR

¶1 BLANCHARD, J. Latres Christopher Robinson challenges a circuit
court order denying his motion to dismiss this criminal case.1 Robinson contends
that the preliminary examination was insufficient and defective.

¶2 The sole witness at the preliminary examination was a district
attorney’s office investigator, called by the prosecutor. The investigator’s
testimony consisted of reading, verbatim, the entire probable cause section of the
criminal complaint. He then briefly identified Robinson as the defendant referred
to in the complaint. On cross examination, the investigator implied that he knew
nothing about the allegations except what he could read in the complaint.

¶3 On appeal, Robinson first argues that the probable cause section of
the complaint fails to provide sufficiently reliable evidence to support the required
showing of probable cause. We reject this argument based on our de novo review
of the complaint.

¶4 Second, Robinson contends that he was improperly hindered in
opposing bindover because cross examining the investigator could yield nothing of
value for the defense. We reject this argument based on the reasoning in State v.
O’Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8. The court in O’Brien
upheld the constitutionality of WIS. STAT. § 970.038, which allows courts to rely
on hearsay to establish probable cause. O’Brien explains that, after the passage of

1
This court granted Robinson’s petition for leave to appeal the circuit court’s denial of
his motion to dismiss. See WIS. STAT. RULES 808.03(2), 809.50. All references to the Wisconsin
Statutes are to the 2023-24 version unless otherwise noted.

Although this court granted Robinson’s petition on May 20, 2025, the appeal was not
fully briefed and available for our decision conference until January 2026, after both sides sought
and were granted extensions of time to file appellate briefs.

2
No. 2025AP983-CR

§ 970.038, the pertinent statutes retain a discrete set of adversarial features that
benefit defendants, but that the rights of defendants are limited to those features,
which are not augmented by the constitutional right to confrontation that is
available at trial.

¶5 Accordingly, we affirm the circuit court’s denial of Robinson’s
motion to dismiss the action.

BACKGROUND

¶6 Robinson is charged with committing one series of offenses on
December 10, 2024, and a second series of offenses on December 20, 2024. More
specifically, he is charged with: (1) on or about December 10, committing multiple
felonies and misdemeanors that victimized a person identified here as A.B.; and
(2) on or about December 20, committing multiple felonies and misdemeanors that
victimized both A.B. and a person identified here as C.D.2 In an extensive
probable cause section, the complaint purports to summarize detailed allegations
contained in multiple police reports. As discussed in more detail below, this
includes reports in which officers purported to directly quote from witnesses,
including A.B., C.D., and another witness identified here as E.F., regarding
Robinson’s alleged conduct.

¶7 At a preliminary examination before a circuit court commissioner,
the sole witness called by the State was an investigator employed by the Rock
County District Attorney’s Office. After the investigator was placed under oath

2
We identify witnesses and alleged victims using initials that do not correspond to their
actual initials. See WIS. STAT. RULES 809.19(1)(g) and 809.86.

3
No. 2025AP983-CR

and identified himself, the prosecutor handed him the criminal complaint and
asked him to read aloud the entire probable cause section verbatim, which the
investigator proceeded to do. The prosecutor then asked the investigator whether
he knew what the person identified in the complaint as Latres Robinson looks like.
The investigator answered yes and identified Robinson.

¶8 The following was the entire cross examination by defense counsel:

Q. Did you speak to any of the officers in this case
about this case?

A. No, I did not.

Q. You did not speak to [A.B.] or [E.F.,] correct?

A. Correct. I did not.

Q. Or anyone in this case[?]

A. No, I did not.

Q. And you did not write the complaint that you just
read to the Court[?]

A. No, I did not.

Q. So if I asked you if a pistol was recovered, you
would have no idea[?]

A. That’s correct.

¶9 The prosecutor had no redirect examination questions for the
investigator. The defense did not call any witnesses.

¶10 The prosecutor moved for bindover. Defense counsel objected,
saying in pertinent part:

There are many statements in the complaint that simply
make no sense.… In fact, there are some that are flat-out
contradictory. [If we had as witnesses] the officers here
who interviewed everyone, we could clean up the record
for today. We could remove three levels of hearsay. I

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No. 2025AP983-CR

know that hearsay is acceptable in a preliminary
[examination]. But at some point, there is a limit. It’s not
infinite.

… We have four levels of hearsay here. The
evidence presented and that fourth level of hearsay is just
not enough to hold someone on $250,000 bond facing
nearly two hundred years of prison.

¶11 The commissioner acknowledged the “frustration” expressed by the
defense over the inability to make progress in cross examining the only witness
called by the prosecution. But the commissioner also noted that hearsay may be
admitted at preliminary examinations and concluded that “the State has achieved
its relatively low burden of proof” “in showing that a felony has probably been
committed and that it’s probably been committed by Mr. Robinson.”

¶12 Following arraignment, Robinson moved the circuit court to dismiss
the action. See WIS. STAT. § 970.03(9) (“If the court does not find probable cause
to believe that a crime has been committed by the defendant, it shall order the
defendant discharged forthwith.”). At a motion hearing before the circuit court,
Robinson argued that allowing the State to rely solely on a witness who merely
read from the criminal complaint, with no other relevant information to offer, did
“not allow for proper cross-examination.”3 The State responded with arguments
that match those that it now advances on appeal.

3
Robinson also challenged the prosecution’s evidence on the ground that the
investigator failed to satisfy the requirement that a witness have personal knowledge regarding
the matter at issue. See WIS. STAT. § 906.02 (“A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal knowledge of
the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of
the witness. This rule is subject to the provisions of [WIS. STAT. §] 907.03 relating to opinion
testimony by expert witnesses.”). Robinson has abandoned reliance on § 906.02 on appeal and
therefore we do not address that provision.

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No. 2025AP983-CR

¶13 The circuit court acknowledged that the four-page probable cause
section of the complaint is “very lengthy” and “very detailed.” But the court
concluded that the probable cause section does not provide sufficiently reliable
evidence supporting the required plausible account showing probable cause. This
was because, in the court’s view, the evidence consistently involved three levels of
hearsay, sometimes four. Further, based on its review of the record from the
preliminary examination before the commissioner, the court determined that the
preliminary examination was defective because the prosecution presented only one
witness who merely parroted the complaint. The court ruled that this improperly
deprived the defense of the ability to use cross examination to test the State’s
allegations as a plausible account supporting probable cause.

¶14 The circuit court nevertheless denied Robinson’s motion to dismiss
this criminal action on the ground that the preliminary examination defects
constituted harmless error. See WIS. STAT. § 805.18(1) (“The court shall, in every
stage of an action, disregard any … defect in the … proceedings which shall not
affect the substantial rights of the adverse party.”); WIS. STAT. § 972.11(1)
(making rules of evidence applicable in general to criminal proceedings).4 This
court granted Robinson’s petition for leave to appeal the circuit court’s nonfinal
order denying his motion to dismiss.

4
Although we do not reach the issue of harmless error, we observe for context that the
circuit court expressed concern that dismissing the case would result in wasted judicial and
prosecutorial resources, deprive Robinson of his right to a speedy trial, and compromise the rights
of crime victims to a prompt resolution of the case.

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No. 2025AP983-CR

DISCUSSION

¶15 On our de novo review, we affirm the circuit court, but we do so
based on different conclusions. See State v. Amrine, 157 Wis. 2d 778, 783, 785,
460 N.W.2d 826 (Ct. App. 1990) (stating in the context of an issued reviewed de
novo that an appellate court may rely on grounds different from those relied on by
the circuit court). We conclude that the evidence presented at the preliminary
examination was sufficient to support bindover. We also reject Robinson’s
argument that he was improperly deprived of an opportunity for meaningful cross
examination. The following are legal principles pertinent to both issues.

¶16 “A defendant charged with a felony is entitled to a hearing pursuant
to WIS. STAT. § 970.03 to determine whether there is probable cause to believe
that a felony has been committed by that defendant. This hearing is referred to as
a preliminary examination.” O’Brien, 354 Wis. 2d 753, ¶19; § 970.03(1). “The
right to a preliminary [examination] is solely a statutory right,” and not a
constitutional right. State v. Moats, 156 Wis. 2d 74, 83, 457 N.W.2d 299 (1990).
If the commissioner or circuit court conducting a preliminary examination
concludes that probable cause exists, it “shall bind the defendant over for trial.”
§ 970.03(7); WIS. STAT. § 757.69(1)(b) (commissioners may preside over
preliminary examinations). Preliminary examinations are intended to “protect[]
defendants and the public from unwarranted prosecution[s],” commenced by
prosecutors without court oversight, and provide one “check” against potential
misuses of “prosecutorial discretion.” O’Brien, 354 Wis. 2d 753, ¶21.

¶17 Further, the presiding judicial officer is “not required to state the
specific felony committed, nor is the court limited to considering whether the
defendant committed [a] specific felony charged in the complaint.” State v.

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No. 2025AP983-CR

Phillips, 2000 WI App 184, ¶36, 238 Wis. 2d 279, 617 N.W.2d 522 (Ct. App.
2000).

¶18 But the nature of the offenses alleged can matter in determining what
counts the State may include in the criminal information filed after bindover. See
WIS. STAT. § 971.01(1) (requiring district attorney to file, following preliminary
examination, criminal information to supersede criminal complaint for felony
charges “according to the evidence on such examination”). This involves the issue
of what alleged conduct was transactionally related to other alleged conduct.
While bindover of a defendant is required when the State establishes probable
cause for a single felony by that defendant, when the complaint contains multiple
counts, the defendant is bound over for trial on only those counts that are
“transactionally related” to a felony for which probable cause has been shown.
See State v. Williams, 198 Wis. 2d 516, 531-32, 535, 544 N.W.2d 406 (1996).
Accordingly, once a defendant is bound over, the State may include in the criminal
information on which the defendant is to be tried only those counts that are
“transactionally related to a count on which the defendant is bound over.” Id. at
536-37; see also State v. Richer, 174 Wis. 2d 231, 247, 496 N.W.2d 66 (1993)
(“[C]ounts contained in the information must flow from the same transaction for
which evidence has been introduced at the preliminary [examination].”). Counts
are transactionally related if they arise from “a common nucleus of facts,” that is,
if the counts are “‘related in terms of parties involved, witnesses involved,
geographical proximity, time, physical evidence, motive and intent.’” Williams,
198 Wis. 2d at 535 (quoted source omitted).

¶19 We now turn to a statutory change made in 2011 that is central to the
issues on appeal. This involved broadening of the scope of evidence that a court
may rely on at a preliminary examination. After the change, hearsay statements

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No. 2025AP983-CR

may now be considered, even those statements that do not fall within one of the
statutory exceptions to the general rule against the admissibility of hearsay.5 See
2011 Wis. Act 285. “Traditionally, Wisconsin’s rules of evidence, set forth in
[WIS. STAT.] chs. 901 to 911, … have applied to preliminary examinations….
Under those rules hearsay is inadmissible unless permitted by rule or statute. WIS.
STAT. § 908.02.” O’Brien, 354 Wis. 2d 753, ¶20. But the amended statute now
provides:

(1) Notwithstanding [WIS. STAT. §] 908.02, hearsay is
admissible in a preliminary examination under [WIS. STAT.
§§] 970.03, 970.032, and 970.035.

(2) A court may base its finding of probable cause under
[§§] 970.03(7) or (8), 970.032(2), or 970.035 in whole or in
part on hearsay admitted under sub. (1).

WIS. STAT. § 970.038.

¶20 The court in O’Brien rejected the argument that permitting hearsay
at a preliminary examination violates, as pertinent here, a defendant’s
constitutional right to confrontation.6 Id., ¶¶3, 61. Further, the court declined a
request that the court “impose new rules limiting the admissibility of hearsay at
preliminary examinations.” Id., ¶¶4, 62. The court rested the decision not to

5
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted,” WIS. STAT.
§ 908.01(3), with “statement” being defined as “(a) an oral or written assertion or (b) nonverbal
conduct of a person, if it is intended by the person as an assertion,” § 908.01(1). The general rule
is that “[h]earsay is not admissible except as provided by these rules or by other rules adopted by
the supreme court or by statute.” WIS. STAT. § 908.02. Pertinent here, WIS. STAT. § 970.038
provides an exception for evidence given at preliminary examinations.
6
State v. O’Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, also addressed claims
by the defendants that their constitutional rights to compulsory process, effective assistance of
counsel, and due process had been violated, but that discussion is not directly pertinent to
Robinson’s arguments on appeal. See id., ¶¶34-50.

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No. 2025AP983-CR

impose new rules in part on the fact that “[c]ircuit courts remain the evidentiary
gatekeepers,” who are obligated to “consider, on a case-by-case basis, the
reliability of the State’s hearsay evidence in determining whether it is admissible
and assessing whether the State has made a plausible showing of probable cause.”
Id. The court also rested its decision in part on the following. Even after the
enactment of WIS. STAT. § 970.038, preliminary examinations retain the following
adversarial features:

 The defense is allowed to cross examine witnesses called by the
State;

 The defense has a right to call witnesses who can provide relevant
evidence that might undermine the State’s otherwise plausible
showing; and

 The defense may argue that there has not been a plausible showing
based on reliable evidence.

Id., ¶¶43, 53.

I. Sufficiently Reliable Evidence to Support Plausible Accounts

A. Standard of review

¶21 Robinson argues that we should review for an erroneous exercise of
discretion what Robinson characterizes as the circuit court’s “evidentiary
decision[]” that the probable cause section of the complaint is not sufficiently
reliable. The State argues that we should apply the de novo standard of review.
As we now explain, controlling authority establishes de novo as the applicable
standard in this context.

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No. 2025AP983-CR

¶22 In reviewing a circuit court bindover decision, “‘we will examine the
factual record ab initio and decide, as a matter of law, whether the evidence
constitutes probable cause.’” State v. Anderson, 2005 WI 54, ¶26, 280 Wis. 2d
104, 695 N.W.2d 731 (quoting State v. Dunn, 121 Wis. 2d 389, 399, 359 N.W.2d
151 (1984)). This de novo standard follows from the nature of a preliminary
examination. Dunn, 121 Wis. 2d at 395. It is a “‘summary proceeding’” that
serves to screen out “‘hasty, malicious, improvident, and oppressive
prosecutions,’” and avoid the private and public costs of a felony prosecution
when there are not “‘substantial grounds upon which a prosecution may be
based.’” Id. (quoted sources omitted). This limited purpose of screening out only
improvident felony charges essentially eliminates the opportunity for circuit courts
to make the types of factual and credibility determinations to which an appellate
court, in other contexts, generally defer. This is because a preliminary
examination is not used to determine guilt or innocence. That will be for the
factfinder to determine at trial. In contrast, the preliminary examination is “not a
proper forum to choose between conflicting facts or inferences, or to weigh the
state’s evidence against evidence favorable to the defendant.” See id. at 398. Nor
does a court at a preliminary examination “delve into” witness credibility. Id. at
397. Instead, the court is to “ascertain the plausibility of a witness’s story” and
determine “whether, if believed, it would support a bindover.” Id.

¶23 The court in Dunn observed that sometimes only a fine line will
separate two concepts: (1) a plausible account showing probable cause, which the
State must show and which the defense may challenge; and (2) witness credibility,
which is never at issue. Id. (“We recognize that the line between plausibility and
credibility may be fine; the distinction is one of degree.”); see also Wilson v.
State, 59 Wis. 2d 269, 295, 208 N.W.2d 134 (1973) (distinguishing between using

11
No. 2025AP983-CR

cross examination to permissibly delve into the “plausibility of the story” and to
impermissibly “delve[] into general trustworthiness of the witness”). At the same
time, the court in Dunn also noted that courts in this context are to concern
themselves with “‘the practical and nontechnical probabilities of everyday life.’”
Dunn, 121 Wis. 2d at 397 (quoted source omitted).

¶24 We now explain why we reject Robinson’s arguments that the de
novo standard contained in Dunn and Anderson does not apply here.

¶25 Robinson directs us to discussion in O’Brien, already mentioned
above, that courts holding preliminary examinations “remain the evidentiary
gatekeepers” after the enactment of WIS. STAT. § 970.038. See O’Brien, 354 Wis.
2d 753, ¶¶4, 60, 62. Robinson suggests that the de novo standard of review found
in Dunn and Anderson cannot be squared with this evidentiary gatekeeping
function.

¶26 But the court in O’Brien did not purport to alter the long-established
de novo standard of review, nor more generally did O’Brien alter the “mere
plausibility” standard articulated in Dunn. Indeed, O’Brien cited Dunn
repeatedly on various other points without suggesting that the court was overruling
or modifying any statement in Dunn. See O’Brien, 354 Wis. 2d 753, ¶¶19, 24,
46-47. In the passages that Robinson now cites, the O’Brien court explained why
the court declined to establish new rules to account for the enactment of WIS.
STAT. § 970.038—leaving to the legislature whether to make any additional
changes to preliminary examinations. This was in part because defendants are
protected by the obligation of a court to assess whether the evidence presented at a
preliminary examination, including hearsay evidence, is sufficiently reliable, as
part of the court’s overall determination of whether the State has made a plausible

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No. 2025AP983-CR

showing of probable cause. See id., ¶¶4, 51-60. In the course of this discussion, it
was natural for the O’Brien court to speak in terms of circuit court decisions,
without needing to digress to explain that this would also apply to appellate court
opinions under the long-established de novo standard of review.

¶27 Robinson contends that “[i]t would be absurd to argue that
judgment-related evidentiary decisions should be reviewed for anything other than
[an] erroneous exercise of discretion.” Robinson essentially asks us to reject the
underlying logic of the de novo standard of review explained in Dunn and
Anderson which, to repeat, is left unchanged by anything stated in O’Brien. As
summarized above, this is based on the summary nature of preliminary
examinations, which bear little resemblance to trials. See Dunn, 121 Wis. 2d at
396-98. Under the de novo standard, appellate courts are deemed to be as well
positioned as circuit courts are to make probable cause determinations under the
applicable legal standards, even though the appellate courts are of course limited
to what can be read in court records.

¶28 Robinson suggests that the de novo standard of review as applied in
this context has been nullified or modified by the enactment of WIS. STAT.
§ 970.038. We are not persuaded. Robinson fails to develop a supported

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No. 2025AP983-CR

argument that the language in these opinions, or the reasoning underlying the de
novo standard, have been rendered inoperative by § 970.038.7

B. Additional background

¶29 The criminal complaint and the criminal information that the State
filed after bindover both charge Robinson with the same 13 offenses:

 On December 10, 2024: kidnapping A.B. using a dangerous weapon;
false imprisonment of A.B. using a dangerous weapon; misdemeanor
battery of A.B.; disorderly conduct; first degree recklessly endangering
safety of A.B. using a dangerous weapon; and possession of a firearm
by a felon.

 On December 20, 2024: kidnapping A.B. using a dangerous weapon;
false imprisonment of A.B. using a dangerous weapon; misdemeanor
battery of A.B.; disorderly conduct; first degree recklessly endangering
safety of A.B. using a dangerous weapon; first degree recklessly
endangering safety of C.D. using a dangerous weapon; and attempting
to flee or elude an officer.

¶30 The State argues that, under the transactional relationship analysis,
the complaint in effect alleges two criminal transactions, one on December 10 and
the other on December 20. Robinson does not dispute the point. This sets up the

7
Robinson briefly points out that an appellate court, under the case law establishing the
de novo standard of review in this context, “‘will search the record for any substantial ground
based on competent evidence to support the circuit court’s bindover decision.’” See State v.
Anderson, 2005 WI 54, ¶26, 280 Wis. 2d 104, 695 N.W.2d 731 (quoted source omitted). In this
connection, Robinson notes that the circuit court here decided that there was not sufficient
evidence to support bindover, even though the court based its ultimate decision on harmless error.
Considering these points together, Robinson asserts that here we should “search for reasons to
uphold the circuit court’s finding that the testimony presented was unreliable.” We question how
we could apply this search-the-record concept here, given that all of the challenged evidence was
contained in a criminal complaint, which we can review in the same manner as the circuit court.
In any event, for reasons explained in our discussion below, on our de novo review we conclude
that the circuit court’s determination of unreliability is not supported by pertinent portions of the
probable cause section of the complaint.

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No. 2025AP983-CR

points that the State seeks to make, namely, that there was sufficiently reliable
evidence to support a plausible account that a felony was probably committed on
each of the two days and that Robinson probably committed each felony.

¶31 As noted above, defense counsel made broad assertions at the
preliminary examination that the complaint contains “many statements” “that
simply make no sense,” and some “that are flat-out contradictory,” but counsel did
not provide the commissioner with any examples of nonsense or contradiction.
Having read the complaint carefully, we disagree with those broad assertions. As
the circuit court accurately observed, the complaint is quite lengthy and detailed.
To this, we add that it is coherently structured in purporting to recount events
occurring in or around Beloit (with one trip into bordering state Illinois) over the
course of about one month, generally making clear the source for each asserted
fact. A deliberate reader can discern what information is supposed to have come
from which police report and what statement is attributed to which speaker.

¶32 Reasonable inferences have to be drawn, based on a reading of the
complaint as a whole, in order to understand the timing or the location of some
events. Also, regarding one paragraph in particular, we would have to guess at the
full meaning. This paragraph refers to a person who was allegedly interviewed by
police on December 16, and who is quoted as having relevant information about
events on December 10. But this one unclear paragraph does not contain any
materially exculpatory reference. In Robinson’s favor, we disregard this
paragraph and we do not count it toward a showing of probable cause.

¶33 Having made those overarching points, we now summarize some
significant allegations in the complaint. It would be difficult to capture all
possibly relevant details here, short of reproducing four pages of dense text.

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No. 2025AP983-CR

¶34 As of December 2024, Robinson had a felony conviction. It is a
felony offense for a felon to possess a firearm. See WIS. STAT. § 941.29(1m)(a).

¶35 On December 10, 2024, E.F. told a police officer the following. E.F.
had just seen Robinson arrive at a residence in Beloit where A.B. was then
located. Robinson grabbed A.B. by the hair, punched her about 20 times, and
dragged her away from the residence. Before Robinson arrived, A.B. appeared
“frantic and scared.” E.F. witnessed the beating and the taking away of A.B.
while E.F. hid under a pile of clothing. A.B. and Robinson were no longer at the
residence by the time police interviewed E.F.

¶36 On December 17, 2024, an FBI agent told a police detective the
following. The agent had recently made contact with A.B., who reported that she
had been kidnapped by Robinson but that she had been able to get away. The FBI
agent further told the detective that the agent had met face-to-face with A.B. and
that the agent had been able to arrange a hotel room for her to stay in.

¶37 On December 20, 2024, police found A.B. kneeling in the snow by
an unoccupied car, and an officer observed that she had a visibly “swollen lump”
on her left eye. A.B. told a police officer the following. A.B. met Robinson about
one month earlier. Robinson tried to get her to participate in a sex trafficking
operation. She declined to participate, and, on December 9, 2024, Robinson tried
to kill her after she attempted to get away from him.

¶38 More specifically, A.B. told the officer that, after she tried to
distance herself from Robinson on December 9, he “pistol whipped” her (struck
her with a pistol) and kicked her several times, leaving her feeling as if one of her
hips was dislocated and she could barely walk. Robinson then dragged A.B. to his

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No. 2025AP983-CR

vehicle and drove her into Illinois, where he took her into a cornfield and
threatened to shoot her in the head.

¶39 A.B. further told the officer that, back in Beloit, late on
December 19 or early on December 20, 2024, Robinson, driving a car at a high
rate of speed, followed A.B. in her car. He rear-ended her car. She kept driving,
and he kept following. She called a friend, C.D., for help. After Robinson caused
her car to spin out and into a ditch, Robinson approached A.B. and “pistol
whipped” her in the head, to the point that her vision went “white” and she might
have lost consciousness. Robinson dragged her over to, and then into, his car.
Robinson drove away with A.B. in the car, and A.B. saw that C.D. was following
in a vehicle. Robinson stopped his car. C.D. stopped a good distance behind
Robinson. Robinson got out of his car and told C.D. to quit following. After
Robinson realized that C.D. was going to continue to follow him, Robinson drove
A.B. back to her car and told her to leave town. A.B. got back into her car and
drove. Robinson again followed in his car. Robinson stopped following A.B.
only after police officers began pursuing Robinson, after responding to 911 calls
about this incident.

¶40 C.D. told an officer the following. A.B. called C.D. for help because
Robinson was chasing her in his car at a time that aligns with A.B.’s statement on
the same topic. When C.D. responded to the area specified by A.B., C.D. saw
Robinson following A.B.’s car and tried to cut off Robinson’s pursuing car.
Robinson lowered the window of his car and pointed a black 9-millimeter handgun
in C.D.’s face and told C.D. to stay away. C.D. followed as Robinson continued
to pursue A.B., and then C.D. saw A.B.’s car in a ditch. Robinson approached
A.B.’s car, grabbed her by the hair, and pulled her from her car. Robinson hit

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No. 2025AP983-CR

A.B. in the head with the handgun, grabbed her, put her in his car, and drove
away.

C. Analysis

¶41 We are satisfied, based on our de novo review, that the State met its
burden of proof. The allegations that we have summarized, when construed in the
context of the probable cause section as a whole and the investigator’s
identification of Robinson, provide sufficiently reliable evidence to support a
plausible account that: a felony was probably committed on or about
December 10, 2024; a felony was probably committed on or about December 20,
2024; and Robinson probably committed both felonies.

¶42 Regarding activity on December 10, E.F.’s account to police is a
reasonably detailed and straightforward description of Robinson’s alleged beating
and false imprisonment of A.B., and of his possession of a firearm at a time when
he was a felon. See WIS. STAT. § 940.30 (false imprisonment); WIS JI—
CRIMINAL 1275 (2015) (elements of false imprisonment); WIS. STAT.
§ 941.29(1m)(a) (felon in possession of a firearm). Further, even beyond the
corroboration provided by the account related by the FBI agent, A.B. is quoted as
giving a consistent account to an officer, including what she represented was a
brief history of her relationship with Robinson and his alleged reasons for abusing
her. All of these statements were purportedly made to law enforcement officers,
and the sources of information are identified.

¶43 Turning to the hearsay aspect of the December 10 allegations,
Robinson gives us no reason to suspect inaccuracy or exaggeration in any of the
following: what the testifying investigator related from the complaint as
purporting to reflect what E.F. allegedly directly told a police officer; what A.B.

18
No. 2025AP983-CR

allegedly directly told the FBI agent, who is purported to have spoken with the
detective; and the statements that A.B. made to the officer. It is possible that E.F.
or A.B., or both of them, fabricated some or all of their statements or got material
information wrong, based on such failings as bias or problems involving memory
or perception. At a trial, tools that include cross examination are available to
Robinson to attempt to reveal fabrication or inadvertent inaccuracy by any
witness. Further, Robinson will have the opportunity to offer any defenses
recognized in the law, based on all of the information available to him by the time
of trial. What seems much less likely at this stage, based on the allegations here,
is that any of the law enforcement personnel fabricated or misunderstood the
uncomplicated allegations regarding Robinson’s alleged conduct as related in the
complaint in a way that could undermine probable cause.

¶44 We do not mean to suggest a general rule that hearsay statements
which are quoted by, or that quote, law enforcement agents are necessarily
reliable. Instead, we take into account the nature of the specific events described
in the complaint. When we do so, we do not see a reason to think that relevant
statements were falsely or inaccurately conveyed at any step by anyone, including
by law enforcement officers acting in the course of their official duties. The
circumstances described in the complaint convey, at least on their face, timely
accounts by people with first-hand information, given with what could be
appropriate motivations to provide accurate information to police.

¶45 Our analysis regarding the December 20 conduct is similar. The
quoted statements of A.B. and C.D. are reasonably clear accounts of felonious
conduct, and the two accounts are strongly similar. And again here, the uses of
hearsay do not suggest any particular reliability problems. Regarding the
statements of both A.B. and C.D., a police officer implicitly purports to have

19
No. 2025AP983-CR

accurately quoted them in a report made in the course of official duties while
investigating accounts of serious crimes. The details related in the complaint
provide no reason to suspect that material parts of the reports have been
summarized falsely or inaccurately.

¶46 Further, the allegations regarding events on December 10 generally
reinforce the allegations regarding events on December 20, and vice versa.

¶47 The circuit court decided that, because the investigator’s testimony
consistently conveyed three or more levels of hearsay, this rendered all of the
evidence unreliable. For example, the following constitutes three levels of out-of-
court statements: (1) the investigator’s testimony quoted all of the allegations
made in the complaint; (2) allegations in the complaint consisted of statements
made in reports by investigating officers; and (3) a witness such as A.B. is quoted
by an investigating officer. It is true that this left the defense at the preliminary
examination unable to cross examine any of the following persons: the drafter of
the complaint, about how it was prepared; the officers, about how a witness
appeared at the time the witness was interviewed or about what the officer recalled
the witness saying or not saying; or any witness, about the substance of the
witness’s purported statements.

¶48 But the assessment of reliability of hearsay in this context does not
turn on a mechanical tallying of levels of hearsay. Hearsay statements vary
greatly in their reliability. For example, the degrees of attenuation from declarant
to witness will fluctuate in both number and particular circumstances. O’Brien
teaches that the assessment of reliability at a preliminary examination turns on a
consideration of the same rationales that render certain types of hearsay statements
admissible. See O’Brien, 354 Wis. 2d 753, ¶¶57-58. The reliability of hearsay

20
No. 2025AP983-CR

statements can be influenced by, for example, the timing of a declaration
compared to a startling event or whether there are reasons to think that a speaker
was motivated to tell the truth, such as for purposes of medical treatment. See id.,
¶58 (discussing, e.g., WIS. STAT. § 908.03(2), (4)). But, to be clear, the
assessment of reliability at a preliminary examination does not turn on whether a
formal exception to the general rule against the admissibility of hearsay statements
is established. This is because the legislature decided to enact an unqualified
elimination of the general rule barring hearsay in this context, even when a
statement does not fit neatly into one of the 23 exceptions from hearsay.8 See
O’Brien, 354 Wis. 2d 753, ¶¶57-58; WIS. STAT. § 970.038. Bearing these points
from O’Brien in mind, we conclude that sufficient indicia of reliability are present
here.9

¶49 After the State on appeal makes substantive arguments that are in
line with our conclusions on this issue, Robinson’s reply brief exclusively defends
the circuit court’s decision as an exercise of the court’s discretion. For reasons we

8
Some other jurisdictions allow prosecutors to rely on a narrower scope of evidence at
preliminary examinations, compared to the current Wisconsin approach. At a preliminary
examination in California, for example, a probable cause determination “may be based in whole
or in part upon the sworn testimony of a law enforcement officer ... relating the statements of
declarants made out of court offered for the truth of the matter asserted,” so long as the officer
has five years of law enforcement experience or has participated in a relevant training course, and
the officer also has “‘sufficient knowledge of the crime or the circumstances under which the out-
of-court statement was made so as to meaningfully assist the magistrate in assessing the reliability
of the statement.’” Correa v. Superior Court, 40 P.3d 739, 744 (Cal. 2002) (quoted authority
omitted); CAL. PENAL CODE § 872(b); see also People v. Lewis, 903 N.W.2d 816, 819 (Mich.
2017) (noting the existence of “variations in each state’s preliminary-examination procedures”).
9
We need not and do not reach the additional argument advanced by the State that
various formal hearsay exceptions in fact apply here to certain statements based on the
circumstances described in the complaint. We conclude that, even without the formal application
of these evidentiary rules, the indicia of reliability for statements showing at least one probable
felony on each day are strong.

21
No. 2025AP983-CR

have explained, Robinson applies the wrong standard of review. By failing to
address the State’s argument under the correct standard, Robinson implicitly
concedes that the content of the complaint supports Robinson’s bindover regarding
both the December 10 and December 20 “transactions” when the correct standard
is applied.

¶50 The circuit court here appropriately recognized that its role was not
that of a rubber stamp for the State’s theory of felonious conduct by Robinson.
See O’Brien, 354 Wis. 2d 753, ¶60 (the enactment of WIS. STAT. § 970.038 “does
not eliminate the court’s obligation to exercise its judgment”). Further, we
acknowledge the circuit court’s specific concerns about the potential unreliability
of hearsay, particularly as levels of hearsay grow. As the court noted in O’Brien,
“[t]raditionally, the rule against hearsay views out-of-court statements as
inherently unreliable.” O’Brien, 354 Wis. 2d 753, ¶57. But, given the reasoning
in O’Brien interpreting the pertinent statutory language and discussing why the
court concluded that it did not need to provide any new rules in this area, the mere
presence of multiple levels of hearsay does not inherently render the prosecution’s
allegations of a felony insufficiently reliable, as the circuit court here suggested in
its ruling.

¶51 The court in O’Brien emphasized the “case-by-case” gatekeeping
obligation of the court at a preliminary examination. Id., ¶62. This requires courts
to assess in each case “the reliability of the State’s hearsay evidence in
determining whether it is admissible and assessing whether the State has made a
plausible showing of probable cause.” Id. Consistent with the circuit court’s
general concerns in this case, it may be that in other cases the State will rely too
heavily on hearsay statements that, unlike the evidence here, lack a sufficient
combination of clarity, probative value, detail, and use of multiple sources.

22
No. 2025AP983-CR

II. Reliance on Mere Reading of Probable Cause Section

¶52 Robinson argues that his motion to dismiss should have been granted
because the defense was deprived of what Robinson describes as a “meaningful
ability to cross-examine and by extension to challenge the plausibility of the
allegations.” Put differently, Robinson argues that what occurred at the
preliminary examination in this case is not “appropriate as a matter of law”
because the defense lacked “any realistic ability to challenge the plausibility of the
State’s case.” The State argues in part that “Wisconsin law already bars
Robinson’s definition of ‘meaningful’ cross-examination” at this pretrial stage of a
criminal prosecution. We conclude that the State is correct.

¶53 We use a de novo standard of review in interpreting and applying
statutory provisions and related case law to undisputed facts. Diamond Assets
LLC v. Godina, 2022 WI App 47, ¶14, 404 Wis. 2d 404, 979 N.W.2d 586.

¶54 We begin our discussion of this issue with three clarifications.

¶55 First, the parties and the circuit court shared an implied premise.
This would be that the investigator here had no relevant information to provide at
the examination about the allegations against Robinson, aside from what he read
from the criminal complaint and his testimony that he knew what Robinson looks
like. But the investigator did not explicitly testify that he had not reviewed any
other case-related documents or evidence in the case. Instead, he testified that: he
had not spoken “to any of the officers in this case about this case,” to A.B. or E.F.,
or to “anyone in this case”; he had not drafted the complaint; and he did not know
whether a pistol had been recovered. We accept the implied premise. Therefore,
we do not count against Robinson the fact that defense counsel did not more
thoroughly explore with the investigator possible sources of relevant information

23
No. 2025AP983-CR

that the investigator might have had. At least in theory, this could have included
information that the defense could have tried to use to undermine the reliability of
the State’s evidence.10

¶56 Second, from this point forward, we do not refer further to the
investigator’s in-court identification of Robinson. Robinson has never challenged
this identification. In other cases, the inability of the State to produce sufficiently
reliable information identifying the charged defendant as the alleged perpetrator
whose conduct is described in a complaint would prevent bindover, no matter how
strong the evidence might be that someone committed a felony.

¶57 Third, to make our discussion more coherent on the cross
examination issue, we fill in what is arguably a hole in Robinson’s argument.
Robinson argues that defendants are entitled to some measure of “meaningful”

10
Robinson refers to the investigator here as a mere “reader” of the criminal complaint.
We now explain why we expect that it will be difficult to establish generally applicable rules
regarding “readers” across cases. For one thing, in other cases, preliminary examination
witnesses may be asked on direct or cross examination to testify about, or read from, documents
other than, or in addition to, the complaint. Assuming that non-hearsay rules of evidence are
satisfied, this could include police reports, bank records, text messages, or affidavits. See
Anderson, 280 Wis. 2d 104, ¶55 (the rules of evidence apply at preliminary examinations);
O’Brien, 354 Wis. 2d 753, ¶20 (suggesting that all non-hearsay-related rules of evidence apply at
preliminary examinations). The court might determine that evidence from such sources, if
admissible at a preliminary examination, is relevant and sufficiently reliable, or instead irrelevant
or insufficiently reliable. In addition, in some cases a witness lacking direct information
regarding the allegations in the complaint might have a history in local law enforcement that
could provide relevant information about local geography, local police practices, or other
contextual information that might assist the defense in challenging the plausibility of the State’s
account or undermining the reliability of the State’s evidence.

Similarly, with respect to criminal complaints as sources of evidence, we suspect that
discovering generally applicable rules will also likely be elusive, because reading from one
complaint is not the same as reading from another. Factual scenarios vary widely, as do the
degrees to which criminal investigations are complex or conducted under time pressure. Further,
law enforcement agencies and district attorney offices across the state can engage in diverse
practices.

24
No. 2025AP983-CR

cross examination at the preliminary examination. But he does not provide an
articulable standard for the quantity or quality of “meaningful” cross examination
to which defendants are entitled. Instead, he merely asserts that there was no
chance here for the minimum allowable opportunity for cross examination and that
defendants must be allowed to cross examine witnesses who have “information
related to a declarant’s demeanor, ability to perceive an event, and some gauge of
credibility.” As a placeholder for addressing his argument, we assume that
Robinson contends that, at a minimum under these circumstances, he should have
been allowed to cross examine at least one person called by the State who was a
victim, officer, or other witness who was knowledgeable about allegations in the
complaint.11 We use this placeholder for clarity of discussion, but our analysis
would not change if the standard were broader or narrower.

¶58 With those clarifications, we conclude, based on the reasoning in
O’Brien and its interpretation of pertinent statutory language, that the preliminary
examination here was not defective because the prosecution did not call as a
witness one such person.

11
This was essentially the scenario that the circuit court here had in mind, although the
court centered its remarks on officers identified in the complaint:

I think that if any of the officers that were involved in the
investigation came [to the preliminary examination] and read the
criminal complaint, we wouldn’t be here today [considering the
motion to dismiss] because [defense counsel] clearly could have
cross examined [that officer], at least [regarding the officer’s]
knowledge of their part of the investigation.

Along the same lines, the court at another point said that it would have been sufficient if the
investigator had, in advance of the preliminary examination, spoken about the case directly with
any officer identified in the complaint.

25
No. 2025AP983-CR

¶59 Under O’Brien, Robinson cannot argue that the statutes governing
preliminary examinations should be interpreted to incorporate the Sixth
Amendment guarantee that, “[i]n all criminal prosecutions, the accused shall enjoy
the right ... to be confronted with the witnesses against him.” See U.S. CONST.
amend. IV. The court explained that it has long been established that “the
Confrontation Clause does not apply to preliminary examinations.” O’Brien, 354
Wis. 2d 753, ¶30 (citing extensive Wisconsin appellate court authority). This
leaves Robinson to base his argument for more meaningful cross examination on
pertinent statutes. But reasoning in O’Brien also forecloses this argument.

¶60 Explaining further, the court in O’Brien recognized that defendants
have a statutory right to cross examine witnesses called by the State at preliminary
examinations, see WIS. STAT. § 970.03(5), but the court clarified that this right
“does not create a confrontation right.” O’Brien, 354 Wis. 2d 753, ¶¶32-33.
Instead, § 970.03(5) forecloses such a right, because the legislature has specified
that defendants are entitled to cross examine only those witnesses actually called
by the State, and the legislature has not broadened that to add witnesses whom the
defendant would like the State to call. Even the justice who dissented in O’Brien
(in order to make a point that is not directly pertinent here, related to the statutory
compulsory process right) agreed with the majority that “the State is not required
under either” WIS. STAT. § 970.038 or § 970.03(5) “to call witnesses just so a
defendant may cross-examine them.” O’Brien, 354 Wis. 2d 753, ¶74
(Abrahamson, C.J., dissenting).

¶61 The majority in O’Brien recognized that allowing commissioners or
circuit courts to rely on hearsay evidence that is deemed sufficiently reliable “may
make the task of the defense more difficult” at a preliminary examination. Id.,
¶52. But the court stated that this change does not render a preliminary

26
No. 2025AP983-CR

examination a “sham,” because “[s]everal procedural and evidentiary safeguards
remain unaffected by the passage of the legislation.” Id. As the court explained,
“adversarial testing” by the defense remains in part by way of WIS. STAT.
§ 970.03(5), which provides for cross examine of prosecution witnesses and the
ability of the defense to call witnesses. O’Brien, 354 Wis. 2d 753, ¶53.

¶62 Robinson argues that defendants have no “realistic ability to
challenge the plausibility of the State’s case” when the prosecution takes the
approach that was taken here. Robinson emphasizes that, at this stage of a
criminal case, the State normally has not provided the defense with discovery
materials and any defense investigation is likely minimal at best. See WIS. STAT.
§ 970.03(2) (preliminary examinations must commence within 20 days after the
initial appearance if the defendant is out of custody and within 10 days if in
custody on bail over $500); State v. Schaefer, 2008 WI 25, ¶¶3, 37-40, 308
Wis. 2d 279, 746 N.W.2d 457 (stating that criminal defendants do not have a
statutory or constitutional right, before a preliminary examination, to compel
production of the State’s investigative materials by subpoena duces tecum, in part
because the purpose of a preliminary examination is narrowly focused on the
“expeditious determination” of probable cause; also stating that the subpoena in
that case was “plainly an attempt to effect discovery”). In a similar vein,
Robinson argues that it is too easy for a prosecutor drafting a criminal complaint
to omit material that might help the defense at a preliminary examination, which
he characterizes as “inconsistencies, [observed] nervousness [of witnesses], the
officer[s’] impression[s], or plain impossibilities.”

¶63 The first problem with this argument is that it overlooks the fact that
the State carries the burden at a preliminary examination of presenting evidence
supporting a plausible account showing probable cause, which is a burden that it

27
No. 2025AP983-CR

presumably will not carry in cases involving what Robinson calls “plain
impossibilities.” See, e.g., State v. Schaab, 2000 WI App 204, ¶¶15-16, 238
Wis. 2d 598, 617 N.W.2d 872 (affirming magistrate’s determination that the
prosecution failed to show probable cause for alleged felony bail jumping, because
the bail condition at issue permitted the only conduct by the defendant that was
alleged to be a crime).

¶64 Second, the majority in O’Brien emphasized that the “scope” of
preliminary examinations established by the legislature is “narrow,” and that it is
not a “mini-trial[].”12 O’Brien, 354 Wis. 2d 753, ¶24. Under the applicable
statutes, discovery and a full opportunity for defense investigation are still
downstream, in advance of trial. But that does not mean that the right to cross
examine prosecution witnesses is meaningless and, to repeat, defendants retain
their right to call witnesses. Under these circumstances, what Robinson identifies
as the challenges that defendants typically face at preliminary examinations are
foreseeable, natural consequences of the process created by the legislature through
pertinent statutes to create a pretrial check on improvident felony charges.

¶65 While only implied, Robinson may mean to suggest that we should
interpret the pertinent statutory terms to require the State to call witnesses based
on a balancing test. Such a test would weigh the relative costs to the parties. In
Robinson’s view, in a case such as this one, the State’s cost of calling at least one
witness with relevant first-hand information is low, while the cost to the defense of

12
The State notes that one measure of the limited scope of cross examination at a
preliminary examination is that the defendant’s trial right of confrontation typically bars the
admission at trial of a witness’s preliminary examination testimony in the absence of the witness.
See State v. Stuart, 2005 WI 47, ¶¶30-31, 279 Wis. 2d 659, 695 N.W.2d 259.

28
No. 2025AP983-CR

being left to cross examine only a witness whose relevant knowledge is much
attenuated from first-hand sources is high. For example, he asserts that the
prosecution’s approach in this case created a mere “façade of justice.” He
contends that it was especially “egregious” for the prosecution not to call as a
witness at least one officer named in the complaint, “given that there were six
different officers named in the complaint.” But there is no basis for such a
requirement in current statutory language.

¶66 Separately, Robinson argues that the legislature could not have
intended to allow the State to establish probable cause for purposes of a
preliminary examination as the prosecutor did here, because this creates no
additional hurdle to bindover that is not already provided to defendants through
their ability to challenge the sufficiency of the allegations in a criminal complaint.
See WIS. STAT. § 971.31(2); see also § 971.31(5)(c) (defendants must move for
dismissal of felony based on the insufficiency of the complaint before the
preliminary examination). By Robinson’s account, the approach here turns the
preliminary examination into “an absurd” duplication of the challenge to the
sufficiency of the complaint. It would be a “useless exercise” to grant defendants
the right to preliminary examinations, he contends, only to withhold that right
when “the State writes a thorough complaint.”

¶67 We conclude that Robinson’s duplication argument does not show
an absurd result, which the legislature could not have intended, when it failed to
provide for some minimum level of cross examination. Robinson’s argument fails
for at least this reason: he fails to explain why the legislature could not have
anticipated and accepted that, under the circumstances he identifies, the
preliminary examination theoretically duplicates other criminal proceedings. That
is, to the extent that there may be some overlap—perhaps at times rising to the

29
No. 2025AP983-CR

level of duplication—in some criminal cases between the results that a defendant
could obtain at the motion to dismiss stage and the results that the same defendant
could obtain at the preliminary examination stage, this would be merely extra
protection against having to defend further against improvident felony charges for
those defendants in those particular scenarios. The possibility of such duplicative
protection in a hypothetical case does not support an argument that the legislature
contemplated a requirement of “meaningful” cross examination at all preliminary
examinations.

¶68 Turning to Robinson’s concern that only thorough complaints will
provide a basis for bindover, we see no fallacy or illogical result. It only stands to
reason that, all other things being equal, a thorough complaint will more likely
provide sufficiently reliable evidence supporting a plausible account than one that
is not thorough. Robinson fails to show how creating an incentive for thorough
complaint drafting could be part of an absurd legislative result in this context.

¶69 Further, even for cases in which the prosecution’s evidence for
bindover consists entirely of a reading of the complaint or similar forms of
evidence, we now explain why we disagree with Robinson’s position that the tools
available to defendants are going to be useless in all cases.

¶70 The complaint in this case happens to be substantial, in ways that we
have discussed. But, as we have mentioned, in other cases the defense could argue
that the prosecution has relied on the complaint alone to its detriment, because the
complaint contains significantly attenuated or unclear hearsay statements or
statements that are otherwise illogical or materially inconsistent.

¶71 Beyond that point, Robinson had the right to call witnesses who
might be helpful in rebutting the State’s argument that the complaint establishes

30
No. 2025AP983-CR

probable cause. To be sure, “[a] defendant’s right to call witnesses at a
preliminary examination is not an unrestricted right” and is limited to evidence
“relevant to the probable cause determination.” O’Brien, 354 Wis. 2d 753, ¶37
(citing State v. Knudson, 51 Wis. 2d 270, 280, 187 N.W.2d 321 (1971)). For
example, the court in Knudson observed that a circuit court may exclude a
potential defense witness who is called for the purpose of “fish[ing] for elements
of the state’s case,” which would amount to discovery, or “to expose
inconsistencies in the accounts given by the victim to various people,” which
would involve credibility. Knudson, 51 Wis. 2d at 280. Still, Robinson here had
the right to call any witness who could rebut probable cause by shedding light on
“‘essential facts’” regarding the probability that a felony occurred and that the
defendant committed the felony. See id. (quoted source omitted).

¶72 The “essential facts” referred to in Knudson, which a defense
witness might offer at a preliminary examination, could bear on an important topic
that the State has only implicitly covered in its evidence, essentially resolving in
favor of the defense a required element that the State must prove. Or, as
highlighted by the discussion regarding evidence reliability in O’Brien, “essential
facts” could consist of evidence that raises doubt about the reliability of material
evidence offered by the State. This could undermine the plausibility of an account
supporting probable cause. For example, in a case involving a felon-in-possession
charge, the defendant might call a witness who could establish that the defendant
did not have a felony conviction, when the State has offered only a thinly
supported assertion that he did. Or, in a physical assault case, a defendant might
introduce apparently conclusive evidence that an alleged victim was in a distant
city at all relevant times, in the face of possibly unreliable evidence that the victim
had been in the area suggested by the State’s evidence.

31
No. 2025AP983-CR

¶73 In sum on this issue, preliminary examination courts continue to
assess whether an account presented by the State, if the account is believed,
supports probable cause. Courts continue to be barred from weighing the
credibility of witnesses or to choose between conflicting versions of the facts just
because one version is more persuasive. But O’Brien teaches that courts are also
tasked with evaluating the reliability of particular pieces of evidence, in addition
to applying the non-hearsay evidentiary rules, such as relevance. Accordingly, in
addition to having the potential to provide the court with “essential facts” that
might fill what amounts to a hollow or weak spot in the State’s evidence, a defense
witness could also help the defendant persuade a court that material evidence
offered by the State is not reliable and therefore the State has not shown the
required plausible account.13

CONCLUSION

¶74 For all of these reasons, we affirm the circuit court’s order denying
Robinson’s motion to dismiss this criminal case.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

13
Because we resolve both of the issues that Robinson raises in favor of the State, we do
not address the circuit court’s harmless error analysis.

32