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Should I Hold or Waive My Preliminary Exam In Michigan?

Anyone in Michigan charged with a felony offense punishable by more than one year of incarceration has a right to a preliminary exam in Michigan. At the preliminary exam, the prosecutor must present evidence that there is probable cause to believe that a felony has been committed and probable cause to believe that the defendant committed that felony. If the judge finds probable cause, then the defendant is bound over to the circuit court to stand trial on that felony charge. If the judge does not find probable cause, then the charge is dismissed without prejudice.

At the district court arraignment, the magistrate or judge will schedule a probable cause conference within 7 to 14 days after the arraignment and schedule the preliminary exam within 5 to 7 days after the probable cause conference. At the probable cause conference, the prosecutor and the defendant (or through the defendant's attorney) can engage in discussions regarding possible plea agreements, bail and bond modifications, stipulations or any other procedural aspects of the case. Both sides may also discuss whether or not they agree that the preliminary exam will be waived.

Why waive the preliminary exam? The prosecutor has the burden of proof in showing that you were involved in committing a crime, so why would anyone concede probable cause and voluntarily allow the case to proceed to circuit court for trial? Why would any defendant give up this critical safeguard in the criminal justice process?

Like most decisions in life, there are good reasons to hold the preliminary exam and good reasons to waive the preliminary exam. Remember, the prosecutor must also agree to the waiver. The following are some reasons why a defendant may want to proceed with the preliminary exam:

  • The Prosecutor's Case is Weak: If the defendant believes that the prosecutor's case is so weak that it cannot survive the low burden of proof that is probable cause, then the result of the preliminary exam may be dismissal of the charges.
  • Critical Witnesses May Not Appear: The prosecutor has the burden of proof in showing that you committed a felony so he or she has to produce the necessary witnesses to establish this. If the defendant believes these witnesses will not appear, the result of the preliminary exam may be dismissal of the charges.
  • Preserve Testimony: If the defendant believes that a favorable witness may not be available for the trial, then his or her testimony may be taken and preserved in a transcript. In addition, if a particular witness testifies at the preliminary exam and the defendant believes the testimony to be false or incredible, then this testimony can be used later at the trial to impeach the witness.
  • Establish Useful Evidence: Even if the defendant believes that the matter will likely be bound over to circuit court anyway, the preliminary exam can establish evidence on the record that can later be used with suppression motions or other evidentiary hearings. The defendant may also be able to assess how a witness will perform on the witness stand at the trial by their performance at the preliminary exam.
  • Going to Trial Anyway: If the defendant is asserting innocence or the prosecutor's plea offers are terrible, then there may be nothing to lose and everything to gain in holding a preliminary exam for all the foregoing reasons.

The following are some reasons why it may be a good idea for the defendant to waive the preliminary exam:

  • Preserve Favorable Plea Bargain: If the prosecutor and defendant have worked out a plea agreement that is contingent on the waiver of the exam, then it may be wise to forgo this right.  Felony pleas can only be entered in circuit court, not district court. The prosecutor may very well withdraw this plea bargain if he or she is put through the trouble of having to produce witnesses to establish probable cause.
  • Keep Damaging Facts Off The Record: If the defendant is going to plead guilty or no contest anyway, there is no use allowing unfavorable facts about your case to get on the record that the judge will consider at sentencing. The prosecutor is certainly not going to use a preliminary exam to present evidence about the defendant's good character. Sometimes, less is more.
  • Danger of Additional Charges: At the conclusion of the preliminary exam, the prosecutor may ask the judge to bind the defendant over to circuit court on additional felony charges not originally requested in the complaint but otherwise established by probable cause. The defendant may be in a worse position than he would be if the exam was waived.

The burden of probable cause is the lowest burden of proof required to prevail in a criminal hearing in Michigan. Probable cause is defined as "any facts that would induce a fair-minded person of average intelligence to believe that the suspected person has committed a crime". People v Ward, 226 Mich 45; 196 NW 971 (1924). For this reason, defense attorneys rarely present witnesses at preliminary exams because it does not negate a showing of probable cause. The prosecutor has either legally established such facts through admissible evidence or does not. The credibility or trustworthiness of the witnesses and evidence is for a trier of fact to determine at a trial, either by judge or jury. Given the low burden of proof, the vast majority of preliminary exams result in a bindover of felony charges.

The decision to hold or waive a preliminary exam is one of the most important that you will have to make during a felony criminal proceeding. The choice should be based on an informed election after reviewing the applicable evidence against you. A skilled criminal defense attorney can assist you in weighing all the considerations to determine which choice results in the best outcome of your case. If you or a loved one is faced with criminal charges of any kind, contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC to assist you today.

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