Michigan's Preliminary Exam

A preliminary exam is like a mini version of a trial, absent the jury. The judge assigned to the case will alone decide whether the prosecution has met their burden of proof.

Under Michigan law, a criminal defendant who is charged with a felony has the right to have a preliminary examination at the district court level within 14 days of his arrest. At a preliminary exam (also known as a “probable cause” hearing), the prosecution has to show that a crime has occurred and it is more likely than not that the criminal defendant committed the crime. Unlike the “beyond all reasonable doubt standard” at trial, the probable cause standard at this stage is very low and as a result, most cases where a preliminary exam is held, is almost always bound over to the circuit court.

What Is a Preliminary Exam?

A preliminary exam is like a mini version of a trial, absent the jury. The 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 proceed argue their positions. 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 (trial) 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 to a misdemeanor that is within the judge’ s discretion.

The right to a preliminary exam belongs to the criminal defendant and no one can take that right away. Unless the defendant decides to waive (voluntarily give us that right), the prosecution must proceed with one and must meet their burden of proof for the case to continue to the circuit court level.

This article discusses some tactical, practical, and strategic reasons why a criminal defendant might want to waive his right to his preliminary exam. Keep in mind that if the prosecution doesn’t offer a plea deal at all, or at least a good one, the defendant might as well run the exam unless one of the situations below 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 better be getting something really good in return for it.

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

  • The defendant intends to plead guilty. The prosecution’s case may be so strong that pleading guilty will save the defendant time and expense, especially if the defendant is represented by private counsel.
  • The defendant believes that the witnesses against him are not likely to show at trial, or they will refuse to testify at trial. This creates a problem for the prosecution because if they proceed to trial without witnesses, there is no prior testimony on the record. Lacking this testimony, the case is likely to get dismissed.
  • The testimony will lead to more charges. Sometimes, defendants fear that a prelim is likely to 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.
  • 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 sentencing.

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

  • There's a chance for a 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 credibility or perception. This may result in a reduction in or dismissal of the charges.
  • The preliminary exam will allow testimony to be placed on the record, which can be used later 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 or her testimony or lie at trial.
  • The preliminary exam gives the defense a chance to see how certain witnesses act on the stand and perform under pressure.
  • The exam may support pre-trial motions. It will allow testimony to be placed on the record, which can later be used at evidentiary hearings or suppression motions.
  • Getting a dismissal. If the witnesses or victims are likely not to show up for the preliminary exam, the defendant should keep the preliminary exam date on the calendar, because if they do not show, the defense can get a dismissal.

Consult With a Lawyer

Other reasons may exist for waiving or not waiving your right to a preliminary exam. The decision is too important to be made on your own. Never make such a decision about waiving any of your rights without first consulting with an attorney.

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