Persons_Who_May_Conduct_Preliminary

7.10Persons Who May Conduct Preliminary Exa minations

A preliminary examination must be conducted before an examining magistrate. MCL 766.1; MCL 767.42(1). A magistrate is defined in the Code of Criminal Procedure as “a judge of the district court or a judge of a municipal court.” MCL 761.1(l). The term does not include district court magistrates, unless statutory authority explicitly provides them with authority to act as a magistrate. Id. District court magistrates are not authorized to conduct preliminary examinations. See MCL 600.8511.³⁸

Although there is no general rule barring a judge who issued a defendant’s arrest warrant from also presiding over the defendant’s preliminary examination, “if a defendant requests a [judge] other than a [judge] who has already heard witnesses ex parte, such a request should be regarded as reasonable and reasonable efforts exerted toward compliance.” People v Burrill, 391 Mich 124, 137-138 (1974). “[I]f witnesses [have] been examined[, i]t is arguable that the [judge], having been persuaded through such testimony at the time he [or she] issued the arrest warrant that there was probable cause, might not be wholly objective when asked to reconsider the question at the more formal preliminary examination[.]” Id. at 137 (nevertheless holding that where “the affidavit presented to the [judge] was in conclusory form and did not state any of the underlying or operative facts and no witnesses were examined,” there was “no prejudice to the accused in having the [judge] who issued the arrest warrant preside at the preliminary examination[]”).

Committee Tip:

A common situation calling for the disqualification of a judge is when the judge has issued a search warrant. It is recommended that when the validity of a search warrant is (or will be) challenged at the preliminary examination, the judge who issued the search warrant should disqualify himself or herself from hearing the examination.

In cases in which an initial preliminary examination is held and probable cause is not found, MCR 6.110(F) provides for a subsequent preliminary examination and states that “[e]xcept as provided in MCR 8.111(C)^[³⁹], the subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.” This rule “prevents ‘judge shopping’ by requiring that a subsequent examination be before the same [judge], if available, and that additional evidence be presented.” People v Robbins (Darrell), 223 Mich App 355, 362 (1997).

38. However, “[w]hen authorized by the chief judge of the district and whenever a district judge is not immediately available, a district court magistrate may conduct the first appearance of a defendant before the court in all criminal and ordinance violation cases, including acceptance of any written demand or waiver of preliminary examination[.]” MCL 600.8513(1). See Section 7.2(B) for additional discussion of the authority of district court magistrates to conduct pre-bindover proceedings in felony cases. For a thorough discussion of the authority of district court magistrates, see Chapter 5.

39. MCR 8.111(C) provides, in part, that “[i]f a judge is disqualified or for other good cause cannot undertake an assigned case, the chief judge may reassign it to another judge by a written order stating the reason.”