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What Is a Preliminary Examination?

A preliminary examination is a probable cause hearing held at the district court level. Our system of justice demands that the criminally accused be protected from the criminal process unless probable cause is established at a very early stage. This level of protection from the criminal justice system is one of the foundations of our legal system, and it is covered extensively in William Blackstone’s Commentaries on the Laws of England, an influential 18th-century treatise on the common law of England.  A grand jury fulfills this function, and the Michigan Court Rules provide for grand juries. See MCR 6.107. But grand juries are used very rarely in Michigan.

Michigan tends to use a simple "swear to" process to obtain an indictment, wherein a police officer who may have absolutely no knowledge of the case swears an oath that a written complaint is true to the best of his knowledge. Once a complaint is prepared, the court will issue an arrest warrant based upon “probable cause.” The probable cause requirement at this stage hardly satisfies any meaningful degree of evidence. As set forth in MCR 6.102(B), the probable cause determination at this stage requires virtually no evidence and can rely entirely upon the factual allegations contained in the written complaint: 

(B) Probable Cause Determination. A finding of probable cause may be based on hearsay evidence and rely on factual allegations in the complaint, affidavits from the complainant or others, the testimony of a sworn witness adequately preserved to permit review, or any combination of these sources.

Because there must be a meaningful opportunity for the accused to circumvent the possibility of languishing in jail for months pending trial, Michigan has the preliminary examination.

At a preliminary examination, the prosecutor must call witnesses and present evidence to establish that there is probable cause to believe that a felony has been committed and probable cause to believe that the accused is the person who committed that felony. This is the only hearing at which a criminal defendant has the right to confront and cross-examination witnesses before the matter is bound over for trial in the circuit court. This is one of the most important hearings that can take place in terms of criminal procedure under Michigan law, and it is critically important that the defendant be represented by a qualified attorney at the preliminary examination hearing.

MCR 6.110 states:

(A) Right to Preliminary Examination. Where a preliminary examination is permitted by law, the people and the defendant are entitled to a prompt preliminary examination. The defendant may waive the preliminary examination with the consent of the prosecuting attorney. Upon waiver of the preliminary examination, the court must bind the defendant over for trial on the charge set forth in the complaint or any amended complaint. The preliminary examination for codefendants shall be consolidated and only one joint preliminary examination shall be held unless the prosecuting attorney consents to the severance, a defendant seeks severance by motion and it is granted, or one of the defendants is unavailable and does not appear at the hearing. 

(B) Time of Examination; Remedy. 

(1) Unless adjourned by the court, the preliminary examination must be held on the date specified by the court at the arraignment on the warrant or complaint. If the parties consent, for good cause shown, the court may adjourn the preliminary examination for a reasonable time. If a party objects, the court may not adjourn a preliminary examination unless it makes a finding on the record of good cause shown for the adjournment. A violation of this subrule is deemed to be harmless error unless the defendant demonstrates actual prejudice. 

(2) Upon the request of the prosecuting attorney, the preliminary examination shall commence immediately at the date and time set for the probable cause conference for the sole purpose of taking and preserving the testimony of the victim, if the victim is present, as long as the defendant is either present in the courtroom or has waived the right to be present. If victim testimony is taken as provided under this rule, the preliminary examination will be continued at the date originally set for that event.

(C) Conduct of Examination. A verbatim record must be made of the preliminary examination. Each party may subpoena witnesses, offer proofs, and examine and
cross-examine witnesses at the preliminary examination. The court must conduct the examination in accordance with the Michigan Rules of Evidence.

(D) Exclusionary Rules.    

(1) The court shall allow the prosecutor and defendant to subpoena and call witnesses from whom hearsay testimony was introduced on a satisfactory showing that live testimony will be relevant.

(2) If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence. If, however, there has been a preliminary showing that the evidence is admissible, the court need not hold a separate evidentiary hearing on the question of whether the evidence should be excluded. The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of

(a) a prior evidentiary hearing, or

(b) a prior evidentiary hearing supplemented with a hearing before the trial court, or

(c) if there was no prior evidentiary hearing, a new evidentiary hearing.

(E) Probable Cause Finding. If, after considering the evidence, the court determines that probable cause exists to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it, the court must bind the defendant over for trial. If the court finds probable cause to believe that the defendant has committed an offense cognizable by the district court, it must proceed thereafter as if the defendant initially had been charged with that offense.

(F) Discharge of Defendant. No Finding of Probable Cause. If, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense or reduce the charge to an offense that is not a felony. Except as provided in MCR 8.111(C), the subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.

(G) Return of Examination. Immediately on concluding the examination, the court must certify and transmit to the court before which the defendant is bound to appear the prosecutor's authorization for a warrant application, the complaint, a copy of the register of actions, the examination return, and any recognizances received.        

(H) Motion to Dismiss. If, on proper motion, the trial court finds a violation of subrule (C), (D), (E), or (F), it must either dismiss the information or remand the case to the district court for further proceedings.

(I) Scheduling the Arraignment. Unless the trial court does the scheduling of the arraignment on the information, the district court must do so in accordance with the administrative orders of the trial court.

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William Maze is an established Livonia Michigan attorney in Wayne County Michigan, and he has represented well over a thousand satisfied criminal defense clients across the state.  He has received multiple awards and recognitions, and he maintains a national reputation as one of the leading drunk driving defense attorneys in the country.  

  • Extensive training and education far beyond the average lawyer
  • Actually fights cases and is willing to go to trial
  • Past President of CDAM (2014-2015), the Criminal Defense Attorneys of Michigan
  • Member of the National College for DUI Defense
  • Member of the National Association of Criminal Defense Lawyers