Probable Cause (Pre-Exam) Conference & Preliminary Examination

Preliminary Examination –A Step That Applies Only to Felony Cases

The information on this page provides insight and legal strategies utilized by ABDO LAW with respect to the preliminary examination stage of felony cases. Our methods and strategies are based upon experience in actual case scenarios and the refinement of our craft since our firm’s inception in 1980.

Probable Cause Standard for Preliminary Examinations

The preliminary examination is a hearing which is offered at the early stage of felony cases. It is considered a critical stage of criminal proceedings. A critical stage is one where the rights of the accused are entitled to protection by the United States Constitution.

The preliminary examination is held in the district court after the probable cause exam conference. Because it is a critical stage of the criminal process, the preliminary examination is a recorded proceeding. The transcript may be later obtained by defense counsel to file a motion to quash (dismiss) or used at trial to impeach a witness (prior inconsistent statements) or to support a position. As explained below, the preliminary examination hearing may be held or waived depending upon the circumstances of a particular case. It is important to understand that a preliminary examination is not the same as a trial. A preliminary examination is an abbreviated hearing which is held before the district court judge without a jury. At the conclusion of the preliminary examination, the district court judge will examine the evidence and determine if there is “probable cause” to support the charges. The probable cause standard is much lower than the burden of proof at trial. The burden of proof in a criminal prosecution at trial requires that the prosecutor prove guilt “beyond a reasonable doubt”.

Michigan Crime Classification: Felony, High Court Misdemeanor, Misdemeanor

Criminal cases are classified as either misdemeanors or felonies in Michigan. All misdemeanor and felony criminal cases originate in the district courts. Crime classifications are determined by the amount of punishment that may be imposed:

Misdemeanor: punishable by not more than 1 year in jail. All proceedings pertaining to misdemeanors (arraignment, pretrial conference and trial) remain in the district court.

High Court Misdemeanor: punishable by not more than 2 years in prison. Although labeled as misdemeanors, all high court misdemeanors are afforded the same procedure as offenses classified as felonies. Common high court misdemeanors include: CSC 4th degree, maintaining a drug house and joyriding.

Felony: punishable by more than 1 year, up to life in prison. A felony or high court misdemeanor that is not resolved in the district court will be bound over to the circuit court for further proceedings and trial.

Probable Cause Conference (Pre-exam Conference)

A probable cause conference is a proceeding that is scheduled prior to the preliminary examination. Like preliminary examinations, the probable cause conference, applies only to felonies. This conference is the first opportunity for defense counsel to advocate on behalf of a client. Depending upon the circumstances of a case, there are several possible developments that can occur at the probable cause conference stage of a felony case:

• Resolving the case at the district court level with a plea to dismiss the felony and reduce the charge to a misdemeanor. Avoiding the stigma of a felony record is a topic covered on other ABDO LAW website pages.
• Waiving the preliminary examination and having the case proceed to the circuit court for other proceedings.
• Cementing a deal which can be achieved in the circuit court.
• Bargaining for alternative programs which can result in dismissals pursuant to HYTA status for youthful offenders, age 18 but before age 26, or MCL 333.7411 for first time drug offenders charged with possession of controlled substances or analogues.
• Getting a closer look at the prosecutor’s case.
• Scheduling a date to hold the preliminary examination.

Preliminary Examination: Holding or Waiving the Hearing, a Question of Strategy

When the preliminary examination is held, it is the task of the prosecutor to advance sufficient evidence/proof to establish that a crime has been committed. The question that arises is whether a person accused of a felony should “hold” or “waive” the preliminary examination.

Waiving the preliminary examination: There are valid strategic legal reasons to waive the preliminary examination. The following is a partial list of reasons when a person facing felony charges might consider waiving the preliminary examination:

• The evidence is substantial and the preliminary examination will only embolden the government’s position.
• When it is not in the best interest of a defendant to preserve the testimony of adverse witnesses by holding the preliminary examination.
• When there is a high risk that additional charges will be added. This is prevalent in sex crime cases when a victim testifies as to other acts which have not been charged.
• When there is a risk for enhancement of the existing criminal charge. For example, an assault with a deadly weapon offense could be enhanced after preliminary examination to a higher offense such as assault with intent to do great bodily harm.
• When a favorable plea bargain is negotiated or expected in the circuit court and trial is not expected and no other valid purpose exists to hold the preliminary examination.
• When a prosecutor threatens to pull a plea bargain off the table if the prosecutor is forced to hold an examination.

Holding the preliminary examination: One or more of the following reasons may be advanced in favor of “holding” or conducting the preliminary examination:

• Expose a weak case.
• The legal grounds for the charges are faulty and a dismissal is likely.
• Preserve the testimony of one or more witnesses.
• Discredit witnesses or alleged victim(s).
• Lock in the testimony of witnesses or alleged victim(s).
• Flush out the prosecutor’s case.
• Hunt for evidence which may tend to show inconsistencies or that may be useful to formulate a defense strategy (time, place, witnesses).
• Establishing a record of the proceedings to bolster a motion to quash (dismiss).
• There is no possible plea bargain, substantial jail or prison is likely and the case is destined for trial.

Motion to Quash (Dismiss or Reduce Charges): Filed After Preliminary Exam

After the evidence is presented at a preliminary examination, the district court judge must rule on whether there is probable cause to support the charge(s). Upon a finding of probable cause, the case is bound over to the circuit court for further proceedings and trial.

In a motion to quash, the defense attorney is asking the circuit court judge to either dismiss or amend the charges that have been improperly bound over to the circuit court following a preliminary examination. A motion to quash is based upon the evidence, or lack thereof, which was presented at the preliminary examination.

Case Result: Our client was charged with child abuse in the 40th District Court (St. Clair Shores) The preliminary examination was held and the district court bound the matter over to the circuit court for further proceedings. We filed a motion to quash in the Macomb County Circuit Court based upon the defense which allows a person to provide reasonable discipline. Our motion was granted and the case was dismissed with prejudice.

The experienced criminal defense lawyers at ABDO LAW can provide sound legal advice and offer solutions when you or a family member is confronted with a criminal investigation or criminal charges. We make a real investment to manage and gain control our criminal cases in the early stages. This attitude has made it possible for us to obtain favorable resolutions in every Macomb County Court.