The Pretrial Conference in a Michigan Domestic Violence Case

A pretrial conference is a scheduled court date, after arraignment and before trial, at which the prosecutor and the defense meet to sort out how the case will proceed. In a Michigan misdemeanor domestic violence case, the district court may direct the prosecutor, the defendant and any defense attorney to appear for one, and may require collateral matters and pretrial motions to be filed and argued no later than that conference.^[1]

No evidence is presented to decide guilt at a pretrial conference, and no jury is present. The rule sets no agenda. The date can be used to exchange discovery, discuss a plea offer, and set motion and trial dates. Practice differs from one district court to another, so the description below separates what the court rules say from what is local custom.

Is a pretrial conference required?

Not in a misdemeanor case. MCR 6.610(B) says the court "may direct" the parties to appear, on its own initiative or on the motion of either party.^[1] A court may set a conference in every case, or more than one, but that is scheduling practice and not a requirement of the rule.

Felony cases are different. At a felony arraignment the court must set a probable cause conference not less than 7 days or more than 14 days after the arraignment.^[6] Both sides are entitled to that conference unless both waive it.^[2]

	Misdemeanor pretrial conference	Felony probable cause conference
Authority	MCR 6.610(B)[1]	MCL 766.4; MCR 6.108[6][2]
Mandatory?	No; the court may direct the parties to appear[1]	Yes, unless both parties waive it[2]
Timing	Not fixed by rule; set by the court[1]	7 to 14 days after arraignment[6]
Required topics	None listed; the court may require motions to be filed and argued by this date[1]	A possible plea agreement and other pretrial matters, including bail and bond modification[2]

Who attends?

The rule names the prosecutor, the defendant and, if the defendant is represented, the defense attorney.^[1] A defendant who does not have a lawyer yet should know that an indigent defendant has a right to an appointed attorney whenever the charge carries a minimum jail term or the court determines it might impose a jail sentence, even a suspended one.^[7] See The right to a lawyer.

The rule does not name the complaining witness among the people the court directs to appear.^[1] The prosecutor's office is, however, required to give each victim in a serious misdemeanor case a written notice that includes a brief statement of the procedural steps in a misdemeanor case, including pretrial conferences.^[8]

What is discussed?

Discovery

The criminal discovery rule applies in misdemeanor proceedings.^[9] On request, the prosecuting attorney must provide police reports, the defendant's recorded statements and any exculpatory information, and unless the court orders otherwise must do so within 21 days of the request.^[10][11] The pretrial conference can be a point at which the defense confirms what has and has not been turned over, such as 911 recordings or body-camera video. See Discovery: what evidence each side must share.

Plea offers

The prosecutor may make an offer at or before the conference. The limits on what can be offered come from the court rules and statutes, not from the conference itself:

• In a felony case, the court may not accept a plea to an offense other than the one charged without the prosecutor's consent.^[12] That rule is not among the rules that govern district court cases, but in every case the decision whether to prosecute belongs to the prosecutor.^[13][4]
• In district court, the judge must make the plea agreement part of the record, determine that the parties agree on all its terms, and accept the plea, reject it, or state on what basis it accepts the plea.^[5]
• A deferral under MCL 769.4a requires the consent of both the accused and the prosecuting attorney, and the prosecutor consents in consultation with the victim.^[14]

Under the Michigan Rules of Evidence, a statement made during plea discussions with an attorney for the prosecuting authority generally is not admissible against the defendant if the discussions do not result in a guilty plea.^[15] The mechanics of offers and what a plea gives up are covered in Plea bargains in domestic violence cases.

Motions

The court may require pretrial motions to be filed and argued no later than the pretrial conference.^[1] In a domestic violence case they can concern what evidence the jury will hear. Two statutory notice deadlines drive the calendar: a prosecutor who intends to offer the complaining witness's statement to police under MCL 768.27c, or evidence of other acts of domestic violence under MCL 768.27b, must disclose it at least 15 days before the scheduled trial date unless the court allows later disclosure for good cause.^[16][17] See Statements to police under MCL 768.27c, Prior acts of domestic violence and Motions to suppress evidence.

Bond conditions

A no-contact condition is set by the court as a condition of release.^[18] A court may modify a release decision on the motion of a party or on its own initiative, on finding a substantial reason.^[19] The Domestic Violence Benchbook's advisory committee recommends that courts not ask the complaining witness to approve or agree to release conditions.^[20] See How to modify or lift a no-contact order.

Jury or bench trial

If the case will be tried, the court needs to know whether it will be a jury trial. A jury waiver needs the consent of the prosecutor and the approval of the court.^[21] In district court the right to a jury is not waived unless the defendant was informed of it and waived it in a writing placed in the file or orally on the record.^[22] See Bench trial or jury trial?

What can be decided at a pretrial conference?

A conference can end in any of three ways:

1. A plea is entered. The judge can take a plea the same day, after giving the advice of rights the plea rule calls for.^[23] In a felony case the district judge must be available during the probable cause conference to take pleas.^[2]
2. Motions are heard or scheduled. The court may require them to be argued by the conference date.^[1]
3. The case is set for trial or for another conference. Nothing in the rule limits a court to one conference.^[1]

The conference does not decide guilt. A defendant who does not accept an offer keeps every trial right, including the presumption of innocence and proof beyond a reasonable doubt.^[24]

The victim's role at this stage

Domestic assault is a "serious misdemeanor" under the Crime Victim's Rights Act.^[25] If the defendant did not plead guilty or no contest at arraignment, the prosecuting attorney must offer the victim the opportunity to consult about the disposition, including dismissal, plea or sentence negotiations and pretrial diversion programs, before finalizing any negotiation.^[3] On the victim's request, the prosecutor must also confer with the victim before trial.^[26]

These are rights to be heard. Michigan courts have said that "the prosecutor alone possesses the authority to determine whether to prosecute the accused."^[4] A complaining witness who wants to be heard about an offer, about the no-contact order, or about not wanting the case to go forward should contact the prosecutor's office or its victim-witness staff before the conference date. Related guides: Crime victims' rights, If you want the charges dropped and When the protected person wants contact.

What people get wrong

"The pretrial is where the judge hears both sides and decides." No testimony is taken to decide guilt, and guilt is decided only by a plea or at a trial where the prosecutor carries the burden of proof.^[24]

"Everyone gets a plea under advisement at the pretrial." The court rules authorize a court to take a plea under advisement only in the felony plea rule; the Criminal Proceedings Benchbook states that no similar provision exists for offenses in the district court's jurisdiction.^[27] Whether a local court uses an informal version is a question of local practice, and it is not a right.

"If the victim tells the prosecutor to drop it at the pretrial, it is dropped." The victim is consulted, but the charging decision belongs to the prosecutor.^[3][4]

Practical preparation

• Arrive early and check in with the clerk or the court officer; ask where the pretrial conferences are being called.
• Bring every paper received from the court, including the bond order.
• Keep following every bond condition, including any no-contact condition, while at the courthouse.
• The case may not end that day; the court can set another date.