Considerations For Conducting A Preliminary Examination in Michigan

In Michigan, if you are accused of a felony, you have a statutory right to conduct a preliminary examination.  A preliminary examination is a known as a “probable cause” hearing which is conducted in the district or municipal court.  The object of this hearing is to determine if there is probable cause to support the prosecutor’s contention that: a) the charged crime occurred within the jurisdiction of the district court, and b) it was the defendant committed that said crime. 

The accused should take note that a preliminary exam is not a finding of guilt or innocence but rather, it is a finding of whether the preliminary evidence is sufficient to continue to the county circuit court; the trial court. 

If the evidence presented by the prosecutor is sufficient to create a question of fact where the matter can be considered at the circuit trial court, then your case is “bound over” to that higher court. 

As the accused, you have the option to hold or to waive the preliminary examination.  So does the prosecuting attorney.  If either party decides to conduct the exam, it must be held.  The statute provides that this examination must be conducted within 14-days of your arraignment.  The purpose for this rule is to require the prosecutor to present the preliminary evidence in support of the charges while that evidence is fresh relative to the date of the issuance of the charges.  Often, this 14-day time period is impractical and waived for good cause.  Retaining an attorney that is prepared to assess this preliminary showing is a very good reason to waive the 14-day time period of your statutory right to the preliminary examination.

If the preliminary examination is held, the district court judge first listens to the testimony of the prosecutor’s live witnesses, and considers any exhibits received by the court.  Your defense counsel will have the opportunity to cross examine the prosecutor’s witnesses both as to their testimony and as to their knowledge of any exhibits associated therewith.

At the conclusion of the prosecution’s case, your defense lawyer has the opportunity to call witnesses and introduce exhibits.  Witnesses can have their presence in court compelled through the issuance of a subpoena, if needed.  You have the option to testify at the preliminary examination (which is never a good idea).  

The district court judge or magistrate will consider the evidence presented at the preliminary examination in order to decide whether a probable cause threshold is satisfied that the charged crime was committed, by you.  If this probable cause threshold is met, then you will be “bound over” to circuit court for a plea or a trial.  If this threshold is not satisfied, then the case against you must be dismissed, or the charges reduced to a level consistent with the proofs presented at the exam.

Prosecutors never like to spend their resources on conducting a preliminary examination.  There are many reasons, however, when conducting the preliminary examination is the appropriate route to take when facing a felony charge.  Wherever I know my client plans to take her case to trial, I ALWAYS hold the exam; no exceptions.

Another good reason to hold the exam is that the proceeding requires the prosecution to produce probable cause of the charges against you.  Despite this lesser burden, it is a burden shouldered by the prosecutor.  Second, you and your defense lawyer will learn the key facts of the prosecutor’s case against you from the preliminary examination. Third, you have the opportunity to observe the primary witnesses arrayed against you at the exam; this is a critical constitutional right guaranteed by the constitutions of the United States and the State of Michigan.  This will provide you with a good idea how the witnesses will present to a jury of your peers.

When the preliminary examination is complete, a transcript will be prepared of the entire proceeding, including the judge’s rulings and the testimony presented.  The latter is useful to “lock-in” the witnesses testimony if your lawyer is skilled in the art of cross examination.  The testimony also can be used to help formulate a defense; to impeach the witness later, at trial; it can be used as the basis for motions filed with the circuit court. 

Sometimes the evidence elicited at the preliminary examination gives the prosecutor pause to re-consider the case.  Perhaps it is not as strong as they initially believed. 

Strategy Tip.  Sometimes it is not advisable to preserve the testimony of particular, “shady”, witnesses.  I have had cases that depend on the testimony of a less-than-credible individual.  Sometimes these characters disappear, or are indisposed at the time of trial.  If their testimony was not preserved at the preliminary examination, then the prosecution’s case could fall apart on the eve of trial. 

On other occasions, I have experienced the prosecutor’s veiled threat to withhold a plea bargain, or at least a good one, if my client dares conduct the exam; they don’t like to garner their witnesses and spend the resources to hold these exams, I’m telling you!

In the end, it is your decision whether to hold this critical stage of the case against you, or to waive your right to conduct the preliminary examination.  Your best opportunity to manage the charges against you is to hire a lawyer that understands the importance of the preliminary examination.

If your lawyer does not have a convincing rationale for his recommendations, or if you cannot understand your defense lawyer, you should consider searching for another one.

Source: Timothy Flynn



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