The Criminal Defense Law Center of
West Michigan

Courtroom running a preliminary examination

What Is A Preliminary Examination?

In the state of Michigan, a person who is charged with a felony has a right to run a preliminary examination. The examination will be held at your local district court, not in circuit court. The preliminary exam, which is also called a probable cause hearing, must take place within 14 days of the defendant’s arrest and it will follow after the defendant’s arraignment. 

The 14-day rule is something that can be waived either by the defense attorney or prosecutor. This means an examination can happen at a future date that is much further out than 14 days. This gives each side additional time to prepare for the examination. This rule is almost always waived if the defendant is facing a serious charge like murder or criminal sexual conduct and one party desires to run the preliminary exam. Once the 14-day rule is waived, each side has additional time to prepare for a min-trial at the probable cause hearing.

At this exam, the prosecution must show the district court judge that a crime has taken place and that the accused is more likely than not the person who has committed the crime. The probable cause standard of proof is much lower than “the guilty beyond a reasonable doubt standard” a jury must find at trial. The vast majority of these exams end up having the district court judge bind the case over to circuit court for trial.
The prosecution in most instances will give up their right to an examination. In some cases, they might not waive this exam. The main reason why this happens is when the prosecution believes they need to preserve the testimony of a witness. A third offense domestic violence case is a classic example of why the prosecution may want to run the preliminary exam. In these cases, where the victim and the defendant know each other, the victim will change their story later on. If they testify at a preliminary exam, their testimony is “locked in.” The victim is less likely to change their story at trial once they have already testified.

Our system of justice calls for a person accused of a crime to be protected at every step of the criminal process unless probable cause is established at an early stage. This protection is one of the foundations of our legal system. It was covered in great detail by William Blackstone’s Commentaries on the Laws of England. This legal treatise covered the common law of England. This book was very influential on the founding fathers of our country and it impacted greatly the rule of law in the United States.

What Happens At A Preliminary Exam?

This examination is similar to a mini trial. The main difference between a trial and a preliminary examination is the fact that a trial is held in front of a jury and at a probable cause hearing the judge determines if the people have met their burden of proof. Finally, the amount of witnesses called forward at this examination are much smaller than the witness list at trial. In many cases, the only people called to testify are the arresting police officer and the victim of the crime.

During a probable cause hearing, the prosecution will present evidence first. The accused, via his defense attorney, has the right to cross examine any witnesses the prosecution calls. The defense may also call their own witnesses to testify and then the prosecutor will cross examine the witnesses called by the defense. After witnesses have given their testimony and the prosecution and defense have given their closing arguments, the judge will decide if prosecution has shown there is probable cause a crime has been committed and if there is probable cause the defendant is the person who committed the crime. If the judge rules the prosecution has met their burden of proof, the case will be bound over to circuit court. If the judge rules in favor of the defense, the case is dismissed. In some cases, the judge may rule that a misdemeanor crime has been committed and reduce the charge down to a misdemeanor.

A defendant in Michigan has a right to a preliminary exam. That right can not be taken away. In many cases though, this right is waived by the defendant. The main reason for this is the prosecution will offer a deal, that the defendant can only preserve by agreeing to waive the preliminary exam. If the defendant runs the preliminary exam and loses, the offer can be taken away and may not be offered again down the road.

Here are some examples of good deals offered by the prosecution that would justify waiving a preliminary exam:

  1. The prosecution has offered a deal that allows a felony case to be resolved by a plea to a misdemeanor charge. A convicted felon will be barred from many opportunities in the job market. A felony will also be denied the right to buy a firearm. Clearly, pleading guilty to only a misdemeanor charge instead of a felony is a big benefit to the accused.
  2. Getting a plea deal that allows the judge to sentence someone under HYTA which results in a dismissal of charges for those who are between the age of 17 to 23. Getting a plea deal that allows a person to be sentenced under 7411 which allows people charged with various drug offenses to have the case dismissed if they successfully complete probation.

Now, this blog is going to spend some time talking about some other strategic, practical and tactical reasons why many defendants waive their right to a probable cause hearing. Remember, if the prosecution doesn’t make at least a reasonable plea deal, the defendant should strongly consider running the preliminary exam. This right is an important one and rights should never be waived unless there is a good one.

Situations Where A Defendant Should Waive The Preliminary Examination

  • The defendant plans to plea guilty. The prosecution’s case can sometimes be so strong that the defendant wants to save time and the expense of retained counsel. The sooner the defendant enters the plea the sooner they will be sentenced and know what the exact punishment will be. By admitting guilt early on and not making the prosecution waste time and resources on a case where the evidence against the defendant is overwhelming, the defendant may receive a lesser punishment at sentencing.
  • The defendant has reason to believe that witnesses against them will not show up at court to testify against them. If the people proceed to trial and witnesses don’t show up, their case is greatly weakened because there was no prior record given at the preliminary exam that can be brought in as evidence at trial. Without this evidence, many cases get dismissed by the prosecution.
  • The testimony could bring forth evidence that will result in more charges. There are some cases where the defendant is worried more charges could be brought forward by testimony. For example, say a person is charged with a felony domestic violence charge. During the testimony, the victim testifies under oath that they were strangled by the defendant. This testimony could move the prosecution to add a more serious charge of assault by strangulation. Another classic example of cases where more charges are added are during preliminary exams that deal with criminal sexual conduct cases. During these exams, the victim testifies about other sex acts or instances of other sex acts that the defendant has not been charged with.
  • The evidence will hurt the defendant at sentencing. If a defendant plans on pleading guilty to a felony charge, additional evidence could cause the judge in circuit court to hand out a tougher punishment. When a defendant waives the preliminary exam, bad facts can potentially be kept out of trial.

When Should A Defendant Not Waive The Preliminary Exam

  • There’s a chance for a dismissal. There are cases where the case is so weak that a dismissal could happen after the preliminary exam. Now remember, the burden of proof is very low here, so a lot of weak cases are still bound over the circuit court. These cases may be dropped later on or result in a not guilty verdict at trial, but that takes place at circuit court for felony trials. The prosecution doesn’t need to present a lot of evidence to get a case bound over to circuit court. Another reason the case may be dismissed is from witnesses not showing up for the probable cause hearing.
  • The preliminary exam gives the defense counsel a chance to impeach witnesses later on at trial. If the defense attorney has reason to believe a key witness will have problems with their credibility later on, it would be wise to run a preliminary exam. If there is reason to believe a witness may change their testimony later on, it could benefit the defendant to run the preliminary exam.
  • The preliminary exam gives the defendant to see how witnesses might show hold up at trial.  Be warned though, a witness may do a better job giving testimony at trial after they have had a chance to testify at the preliminary exam.

Do Rules Of Evidence Apply At The Preliminary Examination?

Yes, this is a formal hearing. During most formal hearings, the Michigan Rules of Evidence do apply. This means during the probable cause hearing your lawyer can object to hearsay violations and other violations of the rules of evidence.

Example of our Results Running a Preliminary Exam

Recently we had a case where a client of ours was facing many years in prison on a criminal sexual conduct charge. We came prepared to run the preliminary exam and the prosecution dismissed the case! Our client was thrilled to get their life back and avoid the stigma of being a sexual predator.

If you have any questions related to a preliminary exam, or if you want to hire an expert criminal defense attorney to assist you in court, please call Shawn now at 616-438-6719. The call is free, and I will be happy to give you a fee case strategy session.

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