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.
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.
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.