The Preliminary Examination in a Michigan Felony Domestic Violence Case

The preliminary examination is a hearing in district court, held only in felony cases, at which a judge decides whether there is probable cause to believe that a felony was committed and that the defendant committed it. If the judge finds both, the defendant is bound over to circuit court for trial.^[3] It is not a trial and it does not decide guilt.

In a felony domestic violence case, such as a third-offense domestic assault or an assault by strangulation, the examination can be the first time witnesses testify under oath.^[7][8] This page explains when it is held, how it works, what evidence can be used, and what the result means.

When is the preliminary examination held?

At a felony arraignment the court must set two dates: a probable cause conference not less than 7 days or more than 14 days after the arraignment, and a preliminary examination not less than 5 days or more than 7 days after that conference.^[1] The parties may agree, with the court's approval, to hold the examination earlier than 5 days after the conference.^[2]

The date can move. A magistrate may adjourn, continue or delay the examination with the consent of the defendant and the prosecuting attorney, or without their consent for good cause shown.^[5]

A single deadline of 14 days from arraignment is not the current law. The current schedule comes from 2014 PA 123 and applies to cases in which the defendant was arraigned in district or municipal court on or after January 1, 2015.^[9] The full sequence of dates is in the felony case timeline.

What does the judge decide?

The standard is probable cause, and the judge has three options at the end of the hearing:

Finding	Result
Probable cause that a felony was committed and that the defendant committed it	The court must bind the defendant over for trial in circuit court[3]
Probable cause only that a misdemeanor was committed	The case proceeds in district court on the misdemeanor[3]
No probable cause	The court must discharge the defendant, without prejudice to a later prosecution for the same offense, or reduce the charge to an offense that is not a felony[3][10]

Probable cause is not the standard used at trial, where the prosecutor must prove guilt beyond a reasonable doubt.^[11] A bindover is not a finding of guilt.

How the hearing works

A verbatim record is made. The court must allow the prosecutor and the defendant to subpoena and call witnesses, offer proofs, and examine and cross-examine witnesses, and it must conduct the examination in accordance with the Michigan Rules of Evidence.^[12]

The defense may cross-examine each prosecution witness and may call witnesses of its own. Because depositions may not be taken for discovery in a Michigan criminal case, the examination can be the defense's first opportunity to question prosecution witnesses under oath.^[13][12]

What evidence can be used?

MCL 766.11b says the rules of evidence apply at the preliminary examination, and then lists documents that are not excluded by the rule against hearsay and can be admitted without calling their author. The list includes certified court and agency records, business records other than law enforcement reports, and reports prepared by a law enforcement officer or other public agency, such as laboratory and medical reports, "[e]xcept for the police investigative report."^[4]

Two consequences follow in a domestic violence case:

• A laboratory or medical report covered by the statute can come in at the examination without the person who wrote it. If hearsay is admitted this way, the magistrate must allow either side to subpoena and call the witness on a satisfactory showing that live testimony will be relevant to the probable-cause decision.^[4]
• The police investigative report itself is not within the exception, so this statute does not let the report itself come in without its author.^[4]

There is a separate route for what the complaining witness told the police. MCL 768.27c creates a hearsay exception for a statement that narrates, describes or explains the infliction or threat of physical injury on the person making it, if the statute's conditions are met, and the Court of Appeals has held that the statute applies at preliminary examinations.^[14][15] The conditions are explained in Statements to police under MCL 768.27c, and the constitutional limits in Hearsay and the Confrontation Clause.

Why the complaining witness may be called

Because the rules of evidence apply and the police investigative report is outside the statute's exceptions, the prosecutor may subpoena the complaining witness to testify at the examination.^[12][4] A person who fails to comply with a properly served subpoena may be held in contempt of court.^[16]

Marriage to the defendant does not by itself change this. By statute, the spousal privilege does not apply in a cause of action that grows out of a personal wrong or injury done by one spouse to the other.^[17] See Spousal privilege.

The testimony may be taken earlier than the examination date. On the prosecutor's request, the examination begins immediately at the probable cause conference for the sole purpose of taking and preserving the testimony of a victim who is present. If that testimony does not establish probable cause, the magistrate adjourns the examination to the date set at arraignment, and the victim is not called again absent a showing of good cause.^[18]

Several protections apply to a witness at this stage:

• In a felony case the prosecutor must give the victim written notice of suggested procedures to follow if threatened or intimidated, not less than 24 hours before a preliminary examination.^[19]
• Based on the victim's reasonable apprehension of violence or intimidation, the prosecutor may ask the court not to compel testimony, at pretrial proceedings or trial, about the victim's address or place of employment.^[20]
• The court must provide a waiting area separate from the defendant and defense witnesses if one is available and practical, or other safeguards to minimize contact.^[21]

The witness's side of this hearing is covered in What to expect as a witness, Can a victim refuse to testify? and When the victim does not come to court.

Why examination testimony matters later

What a witness says at the preliminary examination is sworn testimony on the record, and it can outlast the hearing in two ways.

If the witness is unavailable at trial. Former testimony is admissible at trial under both the Rules of Evidence and the Confrontation Clause as long as the witness is unavailable for trial and was subject to cross-examination during the earlier testimony.^[6] A witness counts as unavailable if, among other things, the witness refuses to testify despite a court order or is absent and could not be brought to court despite due diligence.^[22]

If the witness changes the account at trial. A prior inconsistent statement given under penalty of perjury at a hearing is not hearsay when the witness testifies and is subject to cross-examination about it, so it can be used as evidence of what happened.^[23] See Recanting: when the accuser changes the story.

For the defense, the same record cuts the other way: cross-examination at the examination fixes each witness's account in a transcript that can be compared with later testimony.

Waiving the preliminary examination

A defendant may waive the preliminary examination, but only with the consent of the prosecuting attorney.^[5][12] On a waiver the court must bind the defendant over for trial on the charge in the complaint or any amended complaint.^[24] Whether to waive is a judgment call that depends on the evidence, on any plea discussions under way, and on the value of hearing the witnesses; it is a decision to make with a lawyer after reviewing discovery.

After bindover

Once the district court enters a bindover order, the circuit court has jurisdiction over the case.^[25] The prosecutor files an information, and the defendant is arraigned on it in circuit court unless a represented defendant waives that arraignment in writing; the district judge may conduct the arraignment immediately after bindover.^[26]

From there the case moves to discovery, motions, and either a plea or a trial before a 12-person jury.^[27] See Discovery, Plea bargains and What happens at a trial.

What people get wrong

"The exam is a mini-trial, so winning it ends the case." A discharge is without prejudice to a later prosecution for the same offense.^[3]

"The prosecutor can just use the police report." The statute admitting certain reports at the examination expressly leaves out the police investigative report.^[4]

"If the victim testified at the exam and then refuses at trial, the case falls apart." Examination testimony can be used at trial when the witness is unavailable and was subject to cross-examination.^[6]