The Preliminary Examination: Your First Real Test in a Michigan Felony Case

People call our office after their first court date convinced that nothing happened. They stood in front of a judge, heard a charge read, got a slip of paper with a date on it, and went home. That next date is the first point in a Michigan felony case where the prosecution has to put on evidence and a judge has to decide whether the case goes forward.

What a preliminary examination is, and when it happens

Felony charges begin in district court, which holds preliminary examinations in all felony cases but does not try felonies; felony sentencing must be done by a circuit judge. MCL 600.8311. (A district judge can accept a felony plea. MCL 766.4(3).) Under MCL 766.4(1), the court sets a probable cause conference not less than 7 days and not more than 14 days after your arraignment, and a preliminary examination not less than 5 days and not more than 7 days after that conference. The conference can be waived by agreement between the prosecutor and your attorney, and the parties may agree, with the court's approval, to hold the exam earlier than 5 days after it. MCL 766.4(2), (4).

Those windows are the default, not a guarantee. Examination dates can be adjourned — MCL 766.4(4) points to the adjournment provision in MCL 766.7, and MCR 6.110(B) governs timing and adjournment. If you need time to get discovery first, that is a request your lawyer can make.

At the hearing the prosecution's witnesses testify and are examined. MCL 766.4(6). Your attorney may cross-examine them, and defense witnesses "shall be sworn, examined and cross-examined," with the assistance of counsel. MCL 766.12.

The question is probable cause, not guilt

The judge at a preliminary examination is not deciding whether you are guilty. Under MCR 6.110(E), if the court finds probable cause to believe both that "an offense not cognizable by the district court has been committed" and that you committed it, the court must bind you over for trial. Probable cause here means "a quantum of evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." People v Yost, 468 Mich 122, 126; 659 NW2d 604 (2003), quoting People v Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652 (1997).

That threshold sits far below the beyond-a-reasonable-doubt standard at trial. A bindover is not a verdict; it means the case cleared a screening hearing.

The judge's role is still substantive. In People v Anderson, 501 Mich 175, 178; 912 NW2d 503 (2018), the Michigan Supreme Court held that a magistrate's duty at a preliminary examination is to consider all the evidence presented, "including the credibility of the witnesses' testimony," in deciding whether probable cause exists. The disposition is not binary either: if the proofs fall short on the felony, MCL 766.13 provides that the magistrate "shall either discharge the defendant or reduce the charge to an offense that is not a felony," and MCR 6.110(E) and (F) carry the same reduction option. On a bindover, MCL 766.13 directs that you appear within 14 days for arraignment in circuit court, or the district judge may conduct that arraignment.

What the exam can give the defense even after a bindover

The examination puts officers and the complaining witness under oath, on the record, and it is transcribed. Testimony that does not line up with the police reports, or with what a witness says later, can support motions and cross-examination later.

It also shows where the proofs are thin. The rules of evidence apply, with exceptions in MCL 766.11a and MCL 766.11b. Under MCL 766.11b(1), certain hearsay is admissible without the author's testimony — drug field-test results, certified court and agency records, non-law-enforcement business records, and forensic, laboratory, medical, arson, and autopsy reports — but expressly not the police investigative report. That provision runs to either side. Under MCL 766.11b(2), the magistrate "shall allow the prosecuting attorney or the defense to subpoena and call a witness from whom hearsay testimony was introduced" on a satisfactory showing that live testimony will be relevant to probable cause — mandatory once that showing is made.

Waiving the exam is a decision, not a formality

You can give it up. Under MCR 6.110(A), a defendant may waive the examination with the prosecutor's consent, and the court then binds the defendant over "on the charge set forth in the complaint or any amended complaint" — worth noting, because the charge bound over may not be the one you walked in with. The decision is yours, on your lawyer's advice and with the discovery in hand, because it is a hearing you do not get back.

There is a consideration on the other side. Under MCL 768.26, testimony taken at an examination "may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial." That is not unlimited — courts read it with MRE 804(b)(1) and the Confrontation Clause, which require the prosecution to show it could not produce the witness despite good-faith efforts and that the defense had a prior opportunity to cross-examine. And MCL 766.4(4) already lets a prosecutor begin an examination immediately "for the sole purpose of taking and preserving the testimony of a victim," so waiving does not reliably prevent preservation.

A discharge at the exam does not always end the matter

If probable cause is not found, you are discharged — or the charge is reduced to a non-felony. Read MCR 6.110(F) all the way through. The discharge is "without prejudice to the prosecutor initiating a subsequent prosecution for the same offense," but the rule also provides that a subsequent examination "must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge." Refiling is possible; it is not unconstrained.

A discharge also resolves that charge and nothing else. It does not by itself end probation or parole violation proceedings, other pending state charges, or federal exposure. Under the dual-sovereignty doctrine the United States Supreme Court reaffirmed in Gamble v United States, 587 US 678; 139 S Ct 1960 (2019), a state prosecution and a federal prosecution for the same conduct are offenses against different sovereigns, so the Double Jeopardy Clause does not bar federal charges for conduct a Michigan court has already dismissed. State relief is not federal clearance. If there is any federal exposure in your situation, that is a separate analysis.

What this means for you

• The MCL 766.4 windows run in days from arraignment, but can be adjourned — ask about time rather than assuming you have none.

• A bindover is a screening result, not a verdict. A discharge is not an acquittal.

• The transcript outlives the hearing.

• Waiver is your call, with counsel, after seeing the discovery.

• If federal charges are possible, do not assume a state dismissal takes care of it.

  
  

Talk to a lawyer before the exam date

The decisions before a preliminary examination — what to ask, whom to subpoena, whether to hold the hearing at all — are easier to make with the file in front of you. If you are facing a felony charge in Kent County or elsewhere in Michigan, Scozzari Law, PLLC can review the charge and the discovery with you and talk through how to approach the exam. Call to arrange a consultation.

This article is general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship with Scozzari Law, PLLC. Michigan law changes, and how it applies depends entirely on the facts of your case. If you have a family law or criminal matter in Kent County or elsewhere in Michigan, talk to a lawyer about your specific situation.