If you are charged with a felony it starts in District Court, where you are entitled to a preliminary exam where the Court must find Probable Cause that a crime was committed and Probable Cause to believe you committed the crime. If Probable Cause is found, then the case will be bound over to Circuit Court. When a case is "Bound Over" it means that the lower court believes you may have committed the crime and is sending the case to Circuit Court which will decide this case.

While every individual accused of a felony has the right under Michigan law to hold the exam, sometimes, holding the exam might not be the best thing to do. At Schmierlaw. we will examine the facts of the case, weigh what strategic advantage, if any, will be gained by holding the exam, and closely consider if holding the exam will negatively affect your case. At Schmierlaw, we have the experience to examine the facts and aggressively fight for your rights.

Under Michigan Law, you can demand a preliminary exam or, if the Prosecutor agrees, 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. 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 "probable cause" which, if you could measure it, is 51% certain. In contrast, at a trial, the prosecutor must prove that you committed the crime "beyond a reasonable doubt" which is about 98% certain. 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.

But the Prosecutor May Not Agree

In some situations, the Prosecutor may not allow you to waive the Preliminary Exam. Generally this happens when there is a witness who the Prosecutor wants to question and preserve that testimony for a later trial, if necessary. Usually the charges against the accused involve domestic violence, some sort of sex crime, or other situations where the Prosecutor feels that a witness will change their mind. So while your attorney may advise you to waive the exam because he doesn't want testimony on the record that could be used at trial, the Prosecutor may have other ideas and demand the exam be held

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 you can talk with a prosecutor who will really be involved in this case. If the case against you is weak or you want to hear the evidence against you, it may be a good idea 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 if you decide to go to trial. An experienced attorney can advise you but ultimately the choice is yours.


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Law Office of James G. Schmier, PLLC
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Tel: (248) 705-3742     FAX: (248) 540-0044    Email: jschmier@schmierlaw.com