Preliminary Examinations in Michigan – the decision to hold or waive.

In Michigan, A Defendant who is charged with a felony or a high court misdemeanor (an offense that carries a maximum sentence of greater than 1 year) has a right to a preliminary examination. A preliminary examination is a hearing in front of a District Court Judge to determine if there is probable cause to believe that a crime occurred within the jurisdiction of the District Court, and probable cause to believe that the Defendant committed that offense. It is not a finding of guilt or innocense, it is a finding of sufficiency. The Judge considers whether or not there enough evidence to create a question of fact where the matter can be considered at the Circuit Court (the trial court level).
The Defendant and the Prosecution both have the option to hold or waive the preliminary examination. The waiver of the preliminary examination can occur at the probable cause conference, which is the first court hearing after the arraignment.  If either the Defendant or Prosecution elects to hold the preliminary examination, the same occurs within 14 days of the Defendant’s arraignment on the charge or charges which brought him/her before the Court. This 14 day rule can be waived if the Court makes a determination that there is good cause to waive this time period.
If the preliminary examination is held, the District Court Judge first listens to the testimony of Prosecution witnesses, and also reviews exhibits that are received by the Court. The Defense attorney has the opportunity to cross examine any witness called by the Prosecution. At the conclusion of the Prosecution’s case, the Defense is allowed to call witnesses and introduce exhibits. Witnesses can be subpoenaed for Court if necessary. The Defendant has the option to testify at the preliminary examination (which is never a good idea).  It is important to have great legal representation at the preliminary exam.
The Judge, after listening to all the testimony, reviewing any exhibits, and listening to the arguments of the attorneys, decides whether or not this probable cause threshold is met. If the probable cause threshold is met, the matter is “bound over” to Circuit Court, along with any misdemeanor charge count that was filed with the felony allegation. If the probable cause threshold is not met, the charge or charges are either dismissed or reduced in severity by the District Court Judge. Any misdemeanor charges that were filed with the felony allegation still remain, because a Defendant does not have a right to a preliminary examination concerning misdemeanor charges.
There are occasions when it is in a Defendant’s interest to hold a preliminary examination:
First, it requires the prosecution to produce probable cause. Even though this is a very low burden of proof, it is the prosecution’s burden nevertheless;
Second, the Defense can learn about the case and charges through the testimony that is offered;
Third, the Defense has the opportunity to see the witnesses that are offered to determine how they would testify at trial. How would the witness present to a jury if this case ultimately went to trial? Is the testimony consistent or inconsistent with other witnesses, the police report, the exhibits?
Fourth, a transcript of the testimony can be ordered from the Court reporter. That testimony can be used for several purposes: to help formulate a defense; to impeach the witness at trial; it can be the basis for motions filed with the Circuit Court such as to dismiss the case, or to suppress evidence;
Fifth, it sometimes gives the Prosecution an opportunity to see how weak the case is for purposes of negotiating a plea bargain.
There are sometimes reasons to waive the preliminary examination:
First, sometimes it is not a good idea to preserve the testimony of a particular witness. If a witness became unavailable at the time of trial, the Prosecution could ask the Circuit Court Judge to allow the preliminary examination testimony to be read to the jury. If the Circuit Court Judge determines that the Prosecution used due dilligence to obtain the witness, the Judge usually allows the transcript to be read. This can be an issue if the witness is elderly, ill, in the military, unstable, or another reason they may not appear at trial;
Second, the testimony could be used in a negative way at sentencing. If the testimony is extremely graphic, it could influence the bond, the Judge’s sentence, or the Judge’s determination of sentencing guidelines;
Third, sometimes the Prosecution will tell the Defendant’s attorney that they will not make a plea bargain – or not as good of a plea bargain – if the preliminary examination is held (usually the Prosecution is bluffing – but not always);
Fourth, the District Court Judge makes a determination as to the charge or charges at the conclusion of the preliminary examination. If the Court hears testimony of additional or more severe offenses which are supported by probable cause, the complaint can be amended by the Court to reflect the probable cause of what occurred.
The decision of holding or waiving a preliminary examination is an exercise of risk assessment. I always weigh the following in terms of the advice I give to my client as to holding or waiving the preliminary examination: Is there a likely determination of probable cause? Is this matter likely to proceed to trial? Are there any motions to file which requires or would be assisted by the testimony? Are there any risks in holding the preliminary examination? Are any risks outweighed by the benefit in holding the preliminary examination? Ultimately, it is the Defendant’s decision to hold or waive the preliminary examination. The best chance you have at obtaining a great result is to have a great lawyer to advise you. Ask questions of your lawyer to see if he/she has a strategy or rationale behind the advice that you receive. If you don’t like what you are hearing, you might choose to hire a different lawyer.
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