Short answer
A preliminary examination is a hearing in district court, held only in felony cases, where a judge decides whether there is probable cause that a felony was committed and that you committed it (MCL 766.13). It is not a trial and does not decide guilt. If the judge finds probable cause, the case is bound over to circuit court. It is scheduled 5 to 7 days after the probable cause conference (MCL 766.4), and it is often waived.
The court set a "prelim" and you want to know what it is
If you were arraigned on a felony, the court gave you two dates: a probable cause conference and a preliminary examination. People call the second one the prelim, the exam or the probable cause hearing. It happens in the district court where your case started, not in circuit court, and it is the step that decides whether a felony charge moves forward.
There is no preliminary examination in a misdemeanor case that will be tried in district court; MCL 600.8311(e) says so directly. If you are not sure which kind of charge you have, misdemeanor vs. felony explains the difference.
This page is general information about Michigan law. It does not say what should happen in your case, so talk to a lawyer about your own case. The decision to hold or waive an exam depends on facts only you and your lawyer know.
When the exam happens
MCL 766.4(1) sets the schedule. At the felony arraignment the court sets a probable cause conference "not less than 7 days or more than 14 days" after the arraignment, and a preliminary examination 5 to 7 days after that conference. MCR 6.104(E) repeats the same timing. Both the prosecution and the defense are entitled to a prompt exam (MCL 766.1; MCR 6.110(A)).
The date can move. MCL 766.7 lets a magistrate adjourn the exam for good cause without either side's consent, and otherwise with the consent of both. Once a party objects, MCR 6.110(B) requires the court to make a finding of good cause on the record before adjourning. The parties may also agree, with the court's approval, to hold the exam earlier (MCL 766.4(4)).
Older descriptions of Michigan procedure mention a single 14-day deadline from arrest. The current two-step schedule comes from 2014 PA 123 and applies to anyone arraigned in district court on or after January 1, 2015.
What the judge decides, and how
The standard is probable cause, not proof beyond a reasonable doubt. Under MCL 766.13, if the judge finds that a felony was committed and that there is probable cause to charge you with it, the judge must bind you over to circuit court. If not, the judge must either discharge you or reduce the charge to an offense that is not a felony. A discharge is "without prejudice," meaning the prosecutor may file again (MCR 6.110(F)).
The hearing looks like a short trial without a jury. A verbatim record is made. Both sides may subpoena and call witnesses, offer proofs, and cross-examine, and the court must follow the Michigan Rules of Evidence (MCR 6.110(C)). The prosecution's witnesses testify under oath in your presence (MCL 766.4(6)).
There is one important exception to the evidence rules. MCL 766.11b(1) allows certain documents to come in without the author testifying: properly performed drug field test results, certified court and government records, business records kept in the ordinary course, and government reports such as lab, medical, arson and autopsy reports. The police investigative report is specifically excluded from that list. If live testimony would matter to the probable cause question, either side can ask to subpoena the person who wrote the document (MCL 766.11b(2); MCR 6.110(D)).
- Bound over: probable cause found; you must appear in circuit court for arraignment within 14 days, or the district judge may conduct that arraignment (MCL 766.13).
- Reduced: probable cause only for a misdemeanor; the case continues in district court on the lesser charge (MCL 766.13; MCR 6.110(F)).
- Discharged: no probable cause; the charge is dismissed without prejudice to a later prosecution (MCR 6.110(F)).
Holding the exam or waiving it
You may waive the preliminary examination, but only with the prosecutor's consent (MCL 766.7; MCR 6.110(A)). When the exam is waived, the court binds you over on the charge in the complaint without hearing evidence. An information, the formal felony charging document in circuit court, cannot be filed until the exam has been held or waived (MCL 767.42(1)).
Waiver is common and it is a choice, not a default. Holding the exam puts the prosecution's witnesses under oath early, creates a transcript, and forces the prosecutor to show probable cause. Waiving it can be part of plea discussions, can avoid giving the prosecution a chance to preserve testimony, and moves the case to circuit court sooner. Neither "always waive" nor "never waive" is right; the answer depends on the evidence, the witnesses and what the prosecutor has offered at the probable cause conference (MCL 766.4(1)(a), (2)).
The longer discussion of strategy is on the site's preliminary examination page. The felony versions of the two most common charges are covered in the preliminary examination in a felony domestic violence case and the preliminary examination in a felony OWI case.
| Question | Hold the exam | Waive the exam |
|---|---|---|
| Who decides | Either side may insist; both are entitled to it (MCL 766.1; MCR 6.110(A)) | You, with the prosecutor's consent (MCL 766.7) |
| What the judge decides | Probable cause that a felony occurred and you committed it (MCL 766.13) | Nothing; you are bound over on the complaint charge (MCR 6.110(A)) |
| Testimony | Witnesses testify under oath and are cross-examined on a verbatim record (MCR 6.110(C)) | None; no transcript of witness testimony is created |
| Possible results | Bindover, reduction to a misdemeanor, or discharge without prejudice (MCL 766.13; MCR 6.110(F)) | Bindover to circuit court |
| Timing | Held 5 to 7 days after the probable cause conference unless adjourned (MCL 766.4; MCL 766.7) | Case moves to circuit court arraignment sooner (MCL 766.13) |
| Where it is discussed | At the probable cause conference, 7 to 14 days after arraignment | Same conference; parties must tell the court their choice (MCL 766.4(2)) |
What happens after the exam
After a bindover, the prosecutor must file the information on or before the date set for your circuit court arraignment (MCR 6.112(C)). At that arraignment the court states the charge and takes your plea, or a represented defendant may plead not guilty or stand mute by filing a written statement (MCR 6.113). From there the circuit judge sets pretrial dates, motion deadlines and a trial date.
A felony plea can also be taken earlier. MCL 766.4(3) allows a district judge to accept a felony plea at the probable cause conference, but sentencing on a felony must be done by a circuit judge (MCL 600.8311(f)). How the two courts divide the work is explained in district court vs. circuit court.
When a lawyer matters, and what to do now
The hold-or-waive decision is made within about three weeks of arraignment, often at the probable cause conference itself. That is early, and the choice shapes everything that follows in the case. A lawyer who has read the police report and knows the witnesses can tell you what each path can do in your case; this page cannot.
Bring your arraignment paperwork, the dates you were given and any discovery you have received. The office of Attorney Shawn Haff offers a free consultation at 616-438-6719, answered 24 hours a day, and handles felony cases in the Kent County district courts and the 17th Circuit Court. The practice areas page lists the charges the office takes. Whatever you decide about the exam, decide it with a lawyer who knows your facts.
Common questions
Is a preliminary exam the same as a trial?
No. A trial decides guilt beyond a reasonable doubt, usually in front of a jury. A preliminary examination decides only whether there is probable cause that a felony was committed and that you committed it (MCL 766.13). A district judge hears it, there is no jury, and far fewer witnesses are called. A bindover is not a finding of guilt. If the judge finds probable cause, the case moves to circuit court, where the trial, if there is one, takes place.
Who testifies at a preliminary examination?
Whoever the prosecutor needs to show probable cause, examined under oath in your presence (MCL 766.4(6)). Often that is the investigating officer and the complaining witness. Some documents can be admitted without the author appearing under MCL 766.11b, including lab reports and certified records, but not the police investigative report. The defense may subpoena and call its own witnesses and cross-examine the prosecution's (MCR 6.110(C)), and may ask to subpoena the author of any document admitted as hearsay (MCL 766.11b(2)).
What does "bound over" mean?
It means the district judge found probable cause and sent the felony case to circuit court for the rest of the proceedings. MCL 766.13 requires the magistrate to bind the defendant over to appear in circuit court for arraignment within 14 days, or to conduct that arraignment directly. Bound over does not mean convicted. It means the case has cleared the probable cause step and will be handled from here by a circuit judge, who is also the only judge who can sentence on a felony (MCL 600.8311(f)).
What happens if the judge finds no probable cause?
The judge must either discharge you or reduce the charge to an offense that is not a felony (MCL 766.13). A discharge is without prejudice, which means the prosecutor is not barred from starting a new prosecution for the same offense (MCR 6.110(F)). If the charge is reduced to a misdemeanor, the case stays in district court on that charge. Any bond you posted is handled according to the court's order at that time.
Can the preliminary exam be postponed?
Yes. MCL 766.7 allows a magistrate to adjourn, continue or delay the exam for good cause without the parties' consent, or with the consent of both the defendant and the prosecutor. Once a party objects, MCR 6.110(B) requires the court to make a finding of good cause on the record before it adjourns. Adjournments for discovery, lab results or witness availability are common. An adjournment does not cause the court to lose jurisdiction over the case (MCL 766.7).
Is there a preliminary exam for a misdemeanor?
Not for a misdemeanor that will be tried in district court. MCL 600.8311(e) says there shall not be a preliminary examination for any such misdemeanor. A misdemeanor goes from arraignment to a pretrial conference and then to a plea or trial; see what happens at a pretrial. The exception is a misdemeanor the district court cannot try because it is punishable by more than one year; those are handled like felonies for the probable cause conference and preliminary examination (MCL 600.8311(d), (e)).
Sources
- MCL 766.4, Probable cause conference; preliminary examination · Michigan Legislature
- MCL 766.13, Bindover to circuit court; discharge or reduction · Michigan Legislature
- MCL 766.11b, Rules of evidence at preliminary examination; hearsay exceptions · Michigan Legislature
- MCL 766.7, Adjournment of preliminary examination; waiver · Michigan Legislature
- MCL 766.1, Right to prompt preliminary examination · Michigan Legislature
- MCL 767.42, Information not filed until examination held or waived · Michigan Legislature
- MCL 600.8311, District court criminal jurisdiction · Michigan Legislature
- Michigan Court Rules, Chapter 6: MCR 6.104, 6.110, 6.112 and 6.113 · Michigan Courts
Legal information, not legal advice. This page is general legal information about Michigan law, published by the office of Attorney Shawn Haff. It is not legal advice and reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Check the sources linked above and talk to a licensed Michigan attorney about your own situation. In an emergency, call 911.