Prosecutors, Charging Decisions, and the Preliminary Examination

This post is meant to discuss Michigan prosecutor’s charging discretion, how those decisions come into play with the preliminary examination, and common strategies and pitfalls employed by criminal defense attorneys.

In Michigan felony cases, criminal defendants as well as prosecutors enjoy a statutory right to a hearing called a preliminary examination. After arraignment in District Court, defendant’s cases are set for an “exam”, as we’ll call it for short. Prosecutors have the exclusive right to determine who is charged with a crime and what charge it will be. The purpose of the exam is to determine probable cause for the charges the defendant faces and which will or will not be bound-over (sent to) Circuit for trial. The burden of proof at the exam is low. It is probable cause, not beyond a reasonable doubt. The prosecutor must show probable cause that a crime was committed, and that the defendant committed it.

Probable cause is established by evidence “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief” of the accused’s guilt.” Sometimes defendants are bound-over on the original charges; sometimes on lower or different charges; and sometimes on even more charges than they began with. Often times, prosecutors will intentionally charge a defendant with less charges or lower charges than they think they can convict on. The reasons are generally a mix of giving the defendants motivation to plea bargain and fundamental fairness. However, if a defendant decides to hold the exam, prosecutors will almost always ask the court to add those additional or more serious charges. It’s very important that criminal defendants hire an experienced attorney who is very skilled at strategy, as a poor move at this stage can be extremely detrimental.

There are dozens of issues to consider in a defendant’s strategy. One in particular comes up often. Many defendants believe that because a witness is a liar, that their case will be dismissed by the court at the exam. However, this is often not the case. Issues of credibility at the exam are left not with the District Court judge at exam, but with the trier of fact. This means that whether a witness is lying or not isn’t something the judge is going to consider much when ruling on probable cause at the exam, as that issue is to be decided by the jury. What this means is, when a witness is testifying, the judge will determine if what the person is saying were true, does it properly fit into evidence and support the charges—not whether it ever happened. This is one of the reasons that most exams are waived and most that are not waived result in a bind-over for trial.

So what are some instances that defendants do hold their exams? When credibility is at issue and the case will without doubt go to trial is one example. This allows the defense to lock witnesses into their statements and get a “preview” of how well they will perform on the witness stand. Another reason to hold an exam is if the defense is convinced that the prosecutor cannot carry the burden of proof for the charges, resulting in lower felony charges, a misdemeanor or even a dismissal. However, sometimes prosecutors will insist that the exam be held because they wish to evaluate their own witnesses or because they want to lock in testimony from those who are less than cooperative.

Preliminary examinations in criminal procedure can be an important key to a defendant’s case, but only if they have a talented attorney who is excellent with defense strategy.

 If you or someone you know are facing a criminal charge, contact Terry Nolan or Andy Lapres at Nolan Law Offices, PLLC by calling 231-769-2600.