The Preliminary Examination in Michigan Criminal Sexual Conduct Cases

A preliminary examination is a district court hearing at which a magistrate decides whether a felony has been committed and whether there is probable cause to charge the defendant with committing it.^[1] If so, the defendant is bound over to circuit court; if not, the magistrate discharges the defendant or reduces the charge to an offense that is not a felony.^[1]

This page covers the features of the hearing that are specific to criminal sexual conduct (CSC) cases: testimony, recorded interviews, closure, accommodations for young witnesses, and the limits on evidence about the complainant. The general mechanics, including the probable cause conference that comes first, are in the sister guide's page on the preliminary examination.

When is the preliminary examination held?

At a felony arraignment the magistrate sets 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 the conference.^[7] All four degrees of CSC are on this track, because district court conducts preliminary examinations in felony cases and in misdemeanor cases it cannot try.^[8] The dates can move: the parties may, with the court's approval, agree to an earlier examination, and the court may adjourn it for a reasonable time if the parties consent or, if a party objects, on a record finding of good cause.^[9]

One further exception to the schedule matters in sex cases. On the request of the prosecuting attorney, the examination shall commence immediately for the sole purpose of taking and preserving the testimony of a victim if the victim is present.^[10] Under the court rule this happens at the date and time set for the probable cause conference, and only if the defendant is present in the courtroom or has waived the right to be present.^[11] If that testimony is insufficient to establish probable cause, the magistrate adjourns the examination to the date set at arraignment.^[11] A victim who testifies that way is not called again at the adjourned examination absent a showing of good cause.^[10]

What does the magistrate decide?

The standard is probable cause, which is lower than the proof needed to convict. The statute asks whether "a felony has been committed" and whether "there is probable cause for charging the defendant with committing a felony."^[1] At trial, by contrast, the prosecutor has to prove each element beyond a reasonable doubt.^[12]

Finding	Result
A felony was committed and there is probable cause to charge the defendant with it	The defendant is bound over to appear within 14 days for arraignment in circuit court.[1]
No felony, or no probable cause	The magistrate discharges the defendant or reduces the charge to an offense that is not a felony.[1]
The defendant waives the examination with the prosecutor's consent	The court binds the defendant over on the charge in the complaint or any amended complaint.[13]

A discharge does not bar a new prosecution. Under the court rule it is without prejudice to the prosecutor initiating a subsequent prosecution for the same offense, with additional evidence presented at a later examination.^[13]

Who testifies, and what evidence rules apply?

A verbatim record is made. The court allows the prosecutor and the defendant to subpoena and call witnesses, offer proofs, and examine and cross-examine witnesses, and conducts the examination in accordance with the Michigan Rules of Evidence.^[2]

A statute then makes an exception for certain documents. Under MCL 766.11b(1), listed reports and records "are not excluded by the rule against hearsay and shall be admissible at the preliminary examination" without the testimony of the author.^[14] One category is a report prepared by a law enforcement officer or other public agency, and the listed examples include a State Police forensic science report, a laboratory report and a medical report.^[15] The police investigative report is carved out of that category.^[15] Either side may subpoena and call the witness behind such a report on a satisfactory showing that live testimony will be relevant to the probable cause decision.^[14]

The Court of Appeals has stated that the constitutional right of confrontation does not apply during a preliminary examination.^[16] That is a statement about the constitutional right; the court rule on cross-examination at the hearing still applies.^[2]

Can a recorded forensic interview replace the child's testimony?

No. MCL 600.2163a(8) lists the purposes for which a videorecorded statement may be considered. One is admission at pretrial proceedings, "except that it cannot be introduced at the preliminary examination instead of the live testimony of the witness."^[3]

The defense has a right to view and hear the recording before the preliminary examination.^[17] The recording is tightly controlled: intentionally releasing it in violation of the statute is a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500, or both.^[18] How these interviews are conducted is covered in Forensic interviews of children.

Can the hearing be closed or the names kept out of the file?

Closing the examination

MCL 766.9 allows the examining magistrate to close the preliminary examination to members of the general public where the charge is criminal sexual conduct in any degree, assault with intent to commit CSC, sodomy, gross indecency, or any other offense involving sexual misconduct, if all of the statute's conditions are met.^[4] Closure is something the magistrate "may" order; it is not automatic.^[4]

There are three conditions:^[5]

• The magistrate determines that the need for protection of a victim, a witness, or the defendant outweighs the public's right of access to the examination.^[5]
• The denial of access is narrowly tailored to accommodate the interest being protected.^[5]
• The magistrate states on the record the specific reasons for the decision.^[5]

In deciding whether closure is necessary to protect a victim or witness, the magistrate shall consider that person's psychological condition, the nature of the offense charged, and that person's desire to have the examination closed.^[5] Closing the examination to protect a party's right to a fair trial has its own test: a substantial probability that the right will be prejudiced by publicity that closure would prevent, and no reasonable alternative that can adequately protect it.^[5]

Suppressing names and details

Under MCL 750.520k, on the request of counsel, the victim or the accused, the magistrate orders that the names of the victim and the accused and the details of the alleged offense be suppressed until the accused is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first.^[19] The protection covers both people named in the case.^[19]

The Michigan Supreme Court has read a suppression order as a direction to court personnel to prevent public disclosure of the official files, and has said the statute "imposes no restraints on any person."^[20] The wider set of privacy rules is in Privacy and rights of victims.

What accommodations are there for a child or vulnerable witness?

For a witness who qualifies under MCL 600.2163a, a party may move before the examination for two special arrangements. If the court finds on the record that they are necessary to protect the welfare of the witness, it shall order both.^[21]

• That all persons not necessary to the proceeding be excluded from the courtroom during the witness's testimony.^[21]
• That the courtroom be arranged so that the defendant is seated as far from the witness stand as is reasonable and not directly in front of it.^[21]

Two limits are built in. A transcript of the witness's testimony must be made available to any person on request and payment of the fees, and the defendant's position must allow the defendant to hear and see the witness and to communicate with the defendant's attorney.^[21] In deciding the motion the court considers the age of the witness, the nature of the offense, the desire of the witness or the witness's family or guardian to have the testimony taken in a room closed to the public, and the physical condition of the witness.^[21]

A qualifying witness is also permitted a support person, and a courtroom support dog and its handler, during testimony.^[22] A notice of intent to use a support person or support dog is required only for trial, not for any other courtroom proceeding.^[23] Who qualifies, including the different age lines for a support person and a support dog, is set out in Child witnesses in Michigan courts.

Does the rape-shield law apply at the preliminary examination?

The limits on this kind of evidence apply, but through a different source. The rape-shield statute, MCL 750.520j, tells a defendant who proposes to offer evidence under its two exceptions to file a written motion and offer of proof within 10 days after the arraignment on the information.^[24] That arraignment happens in circuit court, after the preliminary examination.^[1]

In People v Abadi (2026), as the Sexual Assault Benchbook quotes it, the Court of Appeals said the applicable authority for deciding whether evidence of the complainant's past sexual activity is admissible during a preliminary examination is MRE 404(a)(2)(C), not MCL 750.520j.^[6]

That rule of evidence lets a defendant in a criminal-sexual-conduct case offer evidence of the alleged victim's past sexual conduct with the defendant, and specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.^[25] Michigan has no "Rule 412"; that is a federal rule number.^[25] The statute and its exceptions are explained in Michigan's rape-shield law.

Why the testimony matters later

A verbatim record is made of the preliminary examination.^[2] In People v Morrow, a complainant testified at the preliminary examination and later said the testimony was untrue; the Court of Appeals held it was for the jury to determine which account was the truth, and that there was no abuse of power in the prosecutor relying on the earlier sworn testimony.^[26]

The model jury instruction on prior statements reflects the same idea: if an earlier inconsistent statement was made under oath, jurors may also consider it as evidence of the truth of what was said.^[27]

Bindover also triggers a separate order. If the district court determines there is reason to believe the violation involved sexual penetration or exposure to a body fluid of the defendant, it orders testing for sexually transmitted infection, hepatitis B, hepatitis C and HIV.^[28]

What people get wrong

One mistake is to treat a bindover as a finding of guilt. It is a probable cause finding.^[1] The presumption of innocence continues throughout the trial.^[12]

Another is to expect the forensic interview video to stand in for the child. The statute rules that out at this hearing.^[3]

A third is to assume the hearing will be closed and the names sealed for the whole case. Closure depends on a motion and on statutory conditions, and name suppression under MCL 750.520k ends at the arraignment on the information.^[4][19] What follows the bindover is laid out in the timeline of a felony CSC case, and a witness's view of the process is in What to expect as a witness.