Michigan Preliminary Examinations

A look into Preliminary Examinations and when a criminal defendant should or should not waive that right. 

Under Michigan law, a criminal defendant charged with a felony has the right to a Preliminary Examination at the district court within 5-7 days after the Probable Cause Conference and no later than 21 days after the arraignment. At a preliminary exam (also known as a “probable cause” hearing), the prosecution must show that a felony has occurred and more likely than not the defendant committed it. Unlike the “beyond all reasonable doubt standard” at trial, the probable cause standard at this stage is very low and as a result, is usually bound over to the circuit court.

A preliminary exam is like a mini version of a trial, absent the jury. The district court judge assigned to the case will alone decide whether the prosecution has met their burden of proof. The prosecution presents their case first. The defendant has the right to cross examine those witnesses through his attorney and if the defense chooses, can present evidence and witnesses of their own. After all testimony and evidence has been presented, both sides present an argument to the judge. The prosecution will argue that they have met their burden of proof and will ask the judge to bind the case over to the circuit court. The defense usually argues that the prosecution has not their burden and will ask the judge to dismiss the charges or in the alternative reduce the charges which is within the judge’s discretion.

The right to a preliminary exam belongs to both the criminal defendant and to the prosecution. No one can take that right away. Unless the defendant decides to waive (voluntarily give up that right), then the prosecution must proceed with the hearing and must meet their burden of proof for the case to continue to the circuit court which is where felony trials are held.

There are only two ways a felony case can get to the circuit court: 1) defendant waives his right to the preliminary exam and the case automatically goes to the circuit court or 2) the preliminary exam is held and the prosecutor established probable cause. In this article, we are going to discuss some tactical, practical, and strategic reasons as to why and when a criminal defendant should or should not waive his right to his preliminary exam.

When and Why a Criminal Defendant Should Waive His Right to a Preliminary Exam:

(a) Defendant intends on pleading guilty. The prosecution’s case is so strong that pleading guilty will save unnecessary time and expense, especially if the defendant is represented by private counsel

(b) The defendant believes that the witnesses against him are not likely to appear at trial. This creates a problem for the prosecution because if they proceed to trial, there is no prior testimony on the record. Lacking this testimony, the case is likely  to get dismissed.

(c) The testimony will lead to more charges. Sometimes the testimony can bring out facts that could lead to the defendant being charged with additional crimes or a worse crime that the one he is currently charged with.

(d) The evidence will hurt the defendant at sentencing. 
If the defendant intends on pleading guilty anyway, waiving the prelim alleviates the problem of “nasty facts” on the record for the judge to consider at the time of sentencing.

When and Why a Criminal Defendant Should Not Waive His Right to a Preliminary Exam:

(a) There is a chance for reduction or dismissal. If the defendant believes that the prosecution’s case is weak, he should run the exam to expose the prosecution’s weak spots regarding witness credibility. This may result in a reduction or dismissal of the charges.

(b) The preliminary exam will allow testimony to be placed on the record which can later be used at trial to impeach a witness. This should especially be used when the defense believes that a particular witness has credibility problems or is likely to change his testimony or lie at trial.

(c) The preliminary exam gives the defense a chance to see how certain witnesses act on the stand and perform under pressure.

The prelim may support pretrial motions. It will allow for testimony to be placed on the record which can later be used at evidentiary hearings or suppression motions.

(e) Prosecutor makes no plea offers. If the  prosecution doesn’t offer a plea deal or at least a good one, the defendant might as well run the exam unless one of the situations exists as to why he shouldn’t. The defendant’s right to a preliminary exam is an important one, and like all other rights, should not be given up unless there is a really good reason to do so. If the defendant waives his right to a preliminary exam, he should be getting something in return for it.

(f) Getting a Dismissal. If the witnesses or victims are not likely to appear for the preliminary exam, then the defendant should keep the preliminary exam date on because if they do not show, the defense can get a dismissal.

Other reasons may or may not exist for waiving or not waiving your right to a preliminary exam. The decision is too important to be made on your own and each case is unique. Never decide about waiving any of your rights without consulting with an experienced criminal defense attorney.

Author: Assistant Public Defender, Jared Austin