Changes in Michigan’s Preliminary Exams


Lansing Michigan Criminal Defense Attorney

Under Michigan law a person charged with a felony is entitled to a preliminary examination or a probable cause hearing at the district court. The prosecutor must show probable cause that a felony was committed and probable cause that the defendant committed it in order to bind the case over to the circuit court for trial. New legislation went into effect in January, 2015 amending some of the procedural and time requirements for preliminary exams. This article discusses those changes and how it effects your rights as an accused.

Mandatory Probable Cause Conference

A probable cause or pre-exam conference is like a pretrial conference. It is a meeting between the defense attorney and prosecutor to discuss your case. This is where the parties will decide if they are going to have the preliminary exam, waive the preliminary exam (the case will automatically proceed to the circuit court), adjourn the prelim to another date, or settle the case at the district court with a misdemeanor plea. Although these conferences are now mandatory, nearly every court in the state had them prior to this amendment. The probable cause conference must occur within seven to 14 days after your arraignment. Although this probable cause conference is mandated by statute, it can be waived if all the parties agree.

Preliminary Examination

Also known as the preliminary exam or simply the prelim. Under the old system, the preliminary exam had to be held within 14 days of being arraigned. Under the new system it must be held within five to seven days after the probable cause conference unless the parties agree to an earlier date. This new system does a couple of things: 1) it pushes the prelim out an extra week or so, and 2) it gives the defense attorney more time to prepare between the pre-exam conference and the prelim as most courts would hold the pre-exam conferences two to three days prior to the prelim and in some cases the day before.

Adjourning the Preliminary Exam

Under the old law the preliminary exam could only be adjourned or delayed for “good cause.” Now the prelim can be adjourned without a showing a good cause if the parties agree. The district court judge can adjourn the prelim without consent of the parties upon a showing of good cause.

Can a Witness Testify by Phone or Video at a Prelim?

The judge must now allow certain witnesses to testify either by telephone or video upon a motion of either party (under the old system the judge had discretion). However, some witnesses cannot testify by phone or video and must testify in person. The following witnesses must testify at the prelim in person:

  • Complaining witness
  • Alleged eye witness
  • Law enforcement officer to whom the defendant made an incriminating statement.

Do the Rules of Evidence Apply at a Preliminary Exam?

Under the old system the standard rules of evidence did apply at a preliminary exam. There were some exceptions. For example, hearsay was allowed to show ownership of property, a notarized forensic report could be admitted in lieu of live testimony. That list has been expanded to include several types of medical and police reports that can be admitted without requiring the author of the report to testify in person, any foundation to be laid, or authentication proven. The following is a list of such documents:

  • Results of a drug field test
  • Certified copy of judgment, register of actions, governmental agency record
  • Reports (other than law enforcement) kept in the ordinary course of business
  • Forensic science reports
  • Lab reports
  • Medical reports
  • Arson reports
  • Autopsy reports

However, the judge must allow the prosecutor or defense counsel to subpoena and call witnesses from whom hearsay testimony was introduced on a satisfactory showing that live testimony will be relevant.

Lansing Michigan Criminal Defense Attorney

Criminal procedure is very complex and changes frequently. You need to be represented by an attorney that predominantly practices criminal defense to help prepare your case, decide whether to run or waive the prelim, and to help you navigate through the criminal justice system. If you have been charged with a misdemeanor or felony or have a preliminary exam scheduled, contact Austin Legal Services, PLC to speak to a Michigan criminal defense lawyer today at (517) 614-1983!

Defending adults and juveniles charged with misdemeanors and felonies throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Kent, Jackson, Shiawassee, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Howell, Brighton, Grand Rapids, Jackson, Corunna, Ann Arbor. 

Michigan Preliminary Exams


Lansing Michigan Criminal Defense Lawyer







A look into Preliminary Examinations and when a criminal defendant should or should not waive that right

 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 5-7  days after the probable cause conference. 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 to the argument stage. 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 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 which is within the judge’s discretion.

The right to a preliminary exam belongs to the criminal defendant as well as to the prosecution. No one can take that right away. Unless the defendant decides to waive (voluntarily give up that right), then the prosecution must proceed with one and must meet their burden of proof for the case to continue to the circuit court level.

In this article, we are going to discuss some tactical, practical, and strategic reasons as to why and when a criminal defendant should or should not waive his right to his preliminary exam.

When and Why a Criminal Defendant Should Waive His Right to a Preliminary Exam

  • Defendant intends on pleading guilty. The prosecution’s case is so strong that pleading guilty will save unnecessary time and expense, especially if the defendant is represented by private counsel.
  • The defendant believes that the witnesses against him are not likely to show at trial or if they will refuse to testify. This creates a problem for the prosecution because if they proceed to trial, there is no prior testimony on the record.  Lacking this testimony, the case is likely to get dismissed.
  • The testimony will lead to more charges. Sometimes the testimony is likely to bring out facts that could lead to the defendant being charged with additional crimes or a worse crime that the one he is currently charged with.
  • The evidence will hurt the defendant at sentencing. If the defendant intends on pleading guilty anyway, waiving the prelim alleviates the problem of “nasty facts” on the record for the judge to consider at the time of sentencing.

When and Why a Criminal Defendant Should Not Waive His Right to a Preliminary Exam

  • There is a chance for reduction or dismissal. If the defendant believes that the prosecution’s case is weak, he should run the exam to expose the prosecution’s weak spots regarding credibility or perception. This may result in a reduction or dismissal of the charges.
  • The preliminary exam will allow testimony to be placed on the record which can later be used at trial to impeach a witness. This should especially be used when the defense believes that a particular witness has credibility problems or is likely to change his testimony or lie at trial.
  • The preliminary exam gives the defense a chance to see how certain witnesses act on the stand and perform under pressure.
  • The prelim may support pretrial motions. It will allow for testimony to be placed on the record which can later be used at evidentiary hearings or suppression motions.
  • Prosecutor makes no plea offers. If the prosecution doesn’t offer a plea deal or at least a good one, the defendant might as well run the exam unless one of the situations 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 should be getting something really good in return for it.
  • Getting a Dismissal. If the witnesses or victims are likely not to show for the preliminary exam, then the defendant should keep the preliminary exam date on because if they do not show, the defense can get a dismissal.

Other reasons may or may not 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 consulting with a criminal defense attorney.

If you are facing criminal charges, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan criminal defense attorney.

Defending felony and misdemeanor criminal charges throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Shiawassee, Calhoun, Barry, Gratiot, Kent in the cities of Lansing, East Lansing, Mason, Charlotte, Brighton, Howell, Jackson, Hastings, Corunna, Durand, Ithaca, St. Johns, Grand Rapids, Battle Creek.