What is a Preliminary Examination in Michigan?

If you are charged with a felony in one of Michigan’s State courts, then you have a right to a preliminary examination. This hearing will take place after your probable cause conference. This probable cause conference must take place within 14 days of the arraignment.

A preliminary examination hearing is a hearing that takes place in the district court. The judge presiding over the hearing decides whether there is enough evidence for the case to proceed to the circuit court.

The main purpose of this hearing is to determine if the prosecutor can establish that there is a reasonable belief the defendant committed the crime in question.

It is important to have a clear understanding of your rights and responsibilities before deciding whether to conduct the examination or waive it. It is recommended that you discuss this decision with your lawyer before attending court.

What is the Standard of Proof at the Preliminary Examination Stage?

Probable cause is the standard of proof used during the preliminary examination. It is the same burden of proof used during other stages of the criminal justice process, such as the issuance of an arrest warrant and the filing of criminal charges.

Probable cause is a legal standard used in criminal law to determine whether there are sufficient grounds to believe that a crime has been committed and that a particular individual is responsible for the crime. It refers to the level of reasonable belief and facts that would lead a prudent person to conclude that a crime has likely occurred. Probable cause is required for various legal actions, such as the issuance of search warrants, arrest warrants, and the initiation of criminal prosecutions.

The definition of probable cause has been established and refined through various court cases. One significant case that clarified the concept of probable cause is Illinois v. Gates (1983). In this case, the Supreme Court of the United States established the totality of the circumstances test to determine whether probable cause exists.

The Gate’s court held that probable cause probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity, is the standard of probable cause.” Spinelli, 393 U.S. at 393 U. S. 419.

Consequently, to establish probable cause, the prosecution must present facts and circumstances that would simply lead a reasonable person to believe that a crime has been committed and that the defendant is connected to it.

This standard is relatively low and quantitatively defined and more finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence. Id.

The probable cause standard of proof is one of the lowest standards in our criminal just system. It is much lower than the reasonable doubt standard that applies in a jury trial.

Because the burden of proof is so low, most exams end with the district court judge “binding the case over for trial” meaning the case is sent to the circuit court for further proceedings, including trial if necessary.

The 21-day Preliminary Examination Requirement

Barone-one-300x277The 21-day rule generally refers to the timeframe within which the preliminary examination must be conducted. The “triggering” event is the defendant’s initial arraignment on the complaint.

The purpose of the 21-day rule is that it helps ensure that the defendant’s right to a speedy trial is protected. It also helps avoid the situation where an incarcerated defendant languishes in jail while waiting for their case to proceed.

The 21-day rule would apply if the prosecutor could not start the exam within 21 days of the arraignment. If this happened, then the case could be dismissed, but only if the Judge finds that the prosecutor’s request for an adjournment lacked merit (good cause). Even then, if the case is dismissed, it’s a dismissal “without prejudice.” This means the case can be brought again upon the filing of a new complaint and warrant.

In most instances your experienced criminal defense attorney will want an adjournment of the preliminary examination past the 21 days so that complete discovery can be obtained. This is the most common reason to waive the 21 day rule.

After receiving the discovery your criminal defense attorney will need more time to prepare. You will want to discuss this issue with your lawyer when determining how to proceed.

If you decide to waive the 21-day rule you must be prepared to acknowledge this right and your willingness to waive it. The judge presiding over your case will ask you questions to establish that you are freely giving up this right.

Why Does the Right to a Preliminary Examination Exist?

The purpose of the preliminary examination is to test the case and confirm that the allegations contained in the complaint are supported by minimum evidence.

In presiding over the preliminary examination, the district court judge essentially acts as a gatekeeper, so that “bad” cases don’t get sent to the circuit court (a court of higher jurisdiction). In theory this judicial review also helps to prevent people from being wrongfully accused of a crime.

In the Federal system, there generally is no right to a preliminary examination. This is because criminal case involving allegations of a Federal crime can be started upon the filing of an indictment, information or a complaint. An indictment is issued by a grand jury only upon a finding of probable cause.

In other words, the grand jury system stands in place of the preliminary examination. However, if the United States District Attorney skips this initial stage, and files a complaint, then accused will have the right to a preliminary examination.

Thus, both the Federal and the State systems require that the allegations related to criminal charges be supported by probable cause. The two systems simply go about the requirements to establish probable cause differently.

What Happens at a Preliminary Examination?

At the preliminary examination the prosecutor must call witnesses and present evidence to establish that each element of the crime(s) charged is supported by at least enough evidence to prove that you probably committed these crimes.

An exam is sort of like a mini trial except there’s no final determination. Like a trial, the prosecutor will call witnesses and present evidence. The defense attorney will have the opportunity to cross-examine those witnesses.

A defense attorney almost never calls witnesses at a preliminary hearing examination. It is also very unlikely that you as the defendant will be called as a witness. This is another thing that can be discussed with your lawyer in advance of the preliminary examination.

At the conclusion of the preliminary examination, the judge will either send the case to the circuit court for further proceedings and trial, or will dismiss the case for a lack of probable cause.

Should I Instruct My Lawyer to Waive the Exam or Conduct the Exam?

When deciding whether to hold or waive the preliminary examination, defendants and their legal counsel typically consider several factors, such as:

  1. Strength of the Prosecution’s Case: The examination allows the defense to assess the evidence against the defendant. If the evidence appears weak or insufficient, the defense may choose to hold the examination to challenge the case further.
  2. Witness Testimony: The preliminary examination provides an opportunity to cross-examine witnesses who testify against the defendant. This can be valuable in assessing witness credibility or discovering potential weaknesses in their statements.
  3. Discovery: The examination allows the defense to obtain additional information about the case through witness testimony or documents presented during the hearing. This information can aid in building a defense strategy.
  4. Preserving Testimony: If a witness’s availability for trial is uncertain, the defense may choose to hold the examination to ensure their testimony is preserved. This can be important if a witness becomes unavailable later.
  5. Defendant Intends to Plead Guilty: If you believe you are guilty and want to get the case done and over with as soon as possible, and your defense counsel agrees there is no defense, then there may be no reason to conduct and exam.
  6. Strategy: Sometimes, strategic considerations may lead the defense to waive the examination. For example, if the defense believes that holding the examination will provide the prosecution with a preview of their defense strategy, they may choose to forgo it and reserve their defense for trial.

Hiring a Criminal Defense Lawyer to Assist You in Making This Important Decision.

Before making your decision, it’s helpful to consult with a qualified attorney who is familiar with the specific laws and procedures in your jurisdiction. At this time you can obtain accurate and up-to-date information about your case.

You can also discuss with your lawyer the purpose of a preliminary examination hearing as well as the application of the above factors to your case. This way you can make the best most well-informed decision about whether to hold or waive the exam.

The criminal defense lawyers at the Barone Defense Firm have decades of experience helping their client’s navigate the criminal justice system. We are available to discuss your case with you and help you make decisions like these. If you’ve not hired a lawyer to assist you, then contact the Firm for your free, no obligation case review.


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