Criminal Justice Information Center- Preliminary Exams

Preliminary Exams

In Michigan you have a right to a preliminary exam.. Should you exercise that right?
In Michigan all cases, whether it is a felony or misdemeanor start in District Court. If it is a felony, it will ultimately end up in Circuit Court but before it does, the District Court must find probable cause that a crime was committed and that maybe you committed the crime. If probable cause is found, then the case will be bound over to Circuit Court..

Under Michigan Law, you can demand a preliminary exam or you can waive it.
The decision to have a preliminary exam is generally up to the defendant, however in some instances the prosecutor or the judge may demand that a preliminary exam be conducted. (This is especially true in child abuse or spousal abuse cases where the prosecutor wants to preserve testimony). Several factors should be considered before holding the exam or deciding to waive it. At the exam, the Defense typically does not call witnesses. On the other hand, the prosecution will present their witnesses to show that there is probable cause to believe that a crime was committed and that the defendant might have committed the crime. The burden of proof is preponderance of the evidence which is 51%. In contrast, at a trial, the prosecutor must prove that you committed the crime "beyond a reasonable doubt" which is about 98% true. And where at a trial, the jury makes the decision or the judge in a bench trial, in a preliminary exam, the judge listens to the prosecutor's evidence and makes the decision. Obviously, at 51%, it does not take much evidence for the judge to bind the case over to Circuit Court.

You and your attorney can decide to waive this exam. Some of the factors to consider is how much evidence is against you and whether you want the evidence on the record. For instance, I had a case where the defendant was accused of carjacking. Before I was retained, he demanded a preliminary exam. The defendant was a drug addict who asked a friend to pick him up and when the friend did, demanded his friend drive him to a drug house. When the friend refused, the defendant threatened him with violence and took the car. At the preliminary exam, the friend, who was still angry about the incident, testified as to what happened and the case was bound over to Circuit Court. A few weeks later, the friend decided that he really did not want to testify against the defendant and said he never felt the defendant would have actually hurt him. Unfortunately, his testimony was on the record and could be used to impeach him if he changed his story, In this case, it probably would have been better to waive the exam.

Discus the advantages and disadvantages of holding the exam with your attorney
If you waive the exam, you will not get another opportunity to have another. Typically the prosecutor at the District Court level does not have the ability to negotiate a plea deal so if the case against you is strong or you are in jail, it may be better to move the case to Circuit Court as quickly as possible so an agreement can be made with a prosecutor who is able to strike a deal. If the case against you is weak or you want to hear the evidence against you, it may be better to hold the exam and let the judge decide if there is probable cause. The thing to consider is whether you want this testimony on the record because whatever is said at the exam, can be used later against you. An experienced attorney can advise you but ultimately the choice is yours.

The Law Office of James G. Schmier, PLLC is a Criminal Defense, Drunk Driving DUI and Family Law and Divorce law firm and provides legal representation in Wayne County, Oakland County, Macomb County and throughout Michigan including these Michigan cities:

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