16.8Probable Cause Conference and Preliminary Examination
The preliminary examination is conducted in accordance with the procedural and statutory requirements governing preliminary examinations in adult criminal proceedings, which are contained in MCR 6.110 and MCL 766.1 et seq.1 MCR 6.907(C)(2) and MCR 6.911 contain additional guidelines applicable to juveniles in automatic waiver proceedings.2
Effective May 20, 2014, and applicable to cases in which the defendant is arraigned in district court on or after January 1, 2015, 2014 PA 123 and 2014 PA 124 amended MCL 766.4 and other provisions applicable to the arraignment and other preliminary proceedings in district court, making numerous changes concerning requirements for preliminary examinations and adding provisions concerning probable cause conferences. Effective January 1, 2015, ADM File No. 2014-42 amended MCR 6.104 (governing arraignment on the warrant or complaint), MCR 6.110 (governing preliminary examinations), and MCR 6.111 (governing circuit court arraignment in district court), and added MCR 6.108 (governing probable cause conferences), to correspond to these statutory changes; however, the rules in subchapter 6.900 (which are applicable to juveniles in automatic waiver proceedings) have not yet been amended.3
MCL 766.4 provides, in part:
“(1) [T]he [judge] before whom any person is arraigned on a charge of having committed a felony shall set a date for a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment, and a date for a preliminary examination of not less than 5 days or more than 7 days after the date of the probable cause conference. The dates for the probable cause conference and preliminary examination shall be set at the time of arraignment. . . .[4]
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(3) A district judge has the authority to accept a felony plea. A district judge shall take a plea to a misdemeanor or felony as provided by court rule if a plea agreement is reached between the parties. Sentencing for a felony shall be conducted by a circuit judge, who shall be assigned and whose name shall be available to the litigants, pursuant to court rule, before the plea is taken.
(4) If a plea agreement is not reached and if the preliminary examination is not waived by the defendant with the consent of the prosecuting attorney, a preliminary examination shall be held as scheduled unless adjourned or waived under [MCL 766.75]. The parties, with the approval of the court, may agree to schedule the preliminary examination earlier than 5 days after the conference. . . .”
For a thorough discussion of these requirements, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7.
Probable cause conference. The probable cause conference, unless waived, must be scheduled for “not less than 7 days or more than 14 days after the date of the arraignment[.]” MCL 766.4(1); see also MCR 6.104(E)(4).
Preliminary examination. The preliminary examination, unless waived or adjourned, must be scheduled for “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also MCR 6.104(E)(4). However, “[t]he parties, with the approval of the court, may agree to schedule the preliminary examination earlier than 5 days after the conference.” MCL 766.4(4).6
Immediate commencement of preliminary examination for purpose of taking victim testimony. MCL 766.4(4) provides, in relevant part:
“Upon the request of the prosecuting attorney, . . . the preliminary examination shall commence immediately for the sole purpose of taking and preserving the testimony of a victim if the victim is present. For purposes of this subdivision, ‘victim’ means an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime. If that testimony is insufficient to establish probable cause to believe that the defendant committed the charged crime or crimes, the [judge] shall adjourn the preliminary examination to the date set at arraignment. A victim who testifies under this subdivision shall not be called again to testify at the adjourned preliminary examination absent a showing of good cause.”7
Consolidation for codefendants. MCL 766.4(5) provides:
“If 1 or more defendants have been charged on complaints listing codefendants with a felony or felonies, the probable cause conference and preliminary examination for those defendants who have been arrested and arraigned at least 72 hours before that conference on those charges shall be consolidated, and only 1 joint conference or 1 joint preliminary examination shall be held unless the prosecuting attorney consents to a severance, a defendant seeks severance by motion and the [judge] finds severance to be required by law, or 1 of the defendants is unavailable and does not appear at the hearing.”8
MCL 766.4(1) provides, in relevant part:
“The probable cause conference shall include the following:
(a) Discussions as to a possible plea agreement among the prosecuting attorney, the defendant, and the attorney for the defendant.
(b) Discussions regarding bail and the opportunity for the defendant to petition the [judge] for a bond modification.
(c) Discussions regarding stipulations and procedural aspects of the case.
(d) Discussions regarding any other matters relevant to the case as agreed upon by both parties.”9
MCL 766.4(2) provides:
“The probable cause conference may be waived by agreement between the prosecuting attorney and the attorney for the defendant. The parties shall notify the court of the waiver agreement and whether the parties will be conducting a preliminary examination, waiving the examination, or entering a plea.”10
District court magistrates have jurisdiction “[t]o conduct probable cause conferences and all matters allowed at the probable cause conference, except for the taking of pleas and sentencings, under . . . MCL 766.4, when authorized to do so by the chief district court judge.” MCL 600.8511(h); see also MCR 6.108(B).11 However, “[t]he district court judge must be available during the probable cause conference to take pleas, consider requests for modification of bond, and if requested by the prosecutor, take the testimony of a victim.” MCR 6.108(D).
Videoconferencing technology is the preferred mode for conducting probable cause conferences for in-custody defendants. MCR 6.006(C)(1). Accordingly, probable cause conferences are “scheduled to be conducted remotely subject to a request under MCR 2.407(B)(4) to appear in person by any participant, including a victim as defined by [MCL 780.752(m)], or a determination by the court that a case is not suited for videoconferencing under MCR 2.407(B)(5).” MCR 6.006(C)(1).
“The juvenile may waive a preliminary examination if the juvenile is represented by an attorney and the waiver is made and signed by the juvenile in open court. The magistrate shall find and place on the record that the waiver was freely, understandingly, and voluntarily given.” MCR 6.911(A). The prosecuting attorney must consent to the waiver. MCL 766.7; MCR 6.110(A).
If the juvenile “waives [the] statutory right to a preliminary examination without having had the benefit of counsel at the time and place of the waiver,” the trial court may remand the case for a preliminary examination upon timely motion before trial or a guilty plea. MCL 767.42(1).
The judge may adjourn, continue, or delay the preliminary examination with the consent of the defendant and prosecuting attorney without a showing of good cause. MCR 6.110(B)(1); see also MCL 766.7. “If a party objects, the court may not adjourn a preliminary examination unless it makes a finding on the record of good cause shown for the adjournment.” MCR 6.110(B)(1); see also MCL 766.7. However, “[a] violation of [MCR 6.110(B)(1)] is deemed to be harmless error unless the defendant demonstrates actual prejudice.” MCR 6.110(B)(1).
“A verbatim record must be made of the preliminary examination. The court shall allow the prosecutor and the defendant to subpoena and call witnesses, offer proofs, and examine and cross-examine witnesses at the preliminary examination. The court must conduct the examination in accordance with the Michigan Rules of Evidence.” MCR 6.110(C).
a.Scope of Examination
“At the preliminary examination, [the judge] shall examine the complainant and the witnesses in support of the prosecution[] . . . in regard to the offense charged and concerning any other matters connected with the charge that the [judge] considers pertinent.” MCL 766.4(6). See also People v Hunt, 442 Mich 359, 363 (1993), citing People v Dochstader, 274 Mich 238, 243 (1936) (examining judge “may examine not only the truth of the charge in the complaint, but also other pertinent matters related to the charge[]”); People v Crippen, 242 Mich App 278, 282 (2000) (court’s inquiry at preliminary examination “is not limited to whether the prosecution has presented sufficient evidence on each element of the offense, but extends to whether probable cause exists after an examination of the entire matter based on legally admissible evidence[]”).
b.Testimony by Telephonic, Voice, or Video Conferencing
Absent any rule to the contrary, “as long as the defendant is either present in the courtroom or has waived the right to be present, district courts may use videoconferencing to take testimony from any witness in a preliminary examination.” MCR 6.006(C)(4). “The use of telephonic, voice, videoconferencing, or two-way interactive video technology, must be in accordance with any requirements and guidelines established by [SCAO], and all proceedings at which such technology is used must be recorded verbatim by the court.” MCR 6.006(D).
MCL 766.11a provides:
“On motion of either party, the [judge] shall permit the testimony of any witness, except the complaining witness, an alleged eyewitness, or a law enforcement officer to whom the defendant is alleged to have made an incriminating statement, to be conducted by means of telephonic, voice, or video conferencing. The testimony taken by video conferencing shall be admissible in any subsequent trial or hearing as otherwise permitted by law.”
c.Rules of Evidence and Admissible Hearsay
MCL 766.11b provides:
“(1) The rules of evidence apply at the preliminary examination except that the following are not excluded by the rule against hearsay and shall be admissible at the preliminary examination without requiring the testimony of the author of the report, keeper of the records, or any additional foundation or authentication:
(a) A report of the results of properly performed drug analysis field testing to establish that the substance tested is a controlled substance.
(b) A certified copy of any written or electronic order, judgment, decree, docket entry, register of actions, or other record of any court or governmental agency of this state.
(c) A report other than a law enforcement report that is made or kept in the ordinary course of business.
(d) Except for the police investigative report, a report prepared by a law enforcement officer or other public agency. Reports permitted under this subdivision include, but are not limited to, a report of the findings of a technician of the division of the department of state police concerned with forensic science, a laboratory report, a medical report, a report of an arson investigator, and an autopsy report.
(2) The [judge] shall allow the prosecuting attorney or the defense to subpoena and call a witness from whom hearsay testimony was introduced under [MCL 766.11b] on a satisfactory showing to the [judge] that live testimony will be relevant to the [judge’s] decision whether there is probable cause to believe that a felony has been committed and probable cause to believe that the defendant committed the felony.[12]
(3) As used in this section, ‘controlled substance’ means that term as defined under . . . MCL 333.7104.”13
See also MRE 1101(b)(8), providing that “[a]t a preliminary examination in a criminal case, during which hearsay is admissible to prove the ownership, value, or possession of – or right to use or enter – property.”
MCR 6.110(D)(2) provides:
“If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence. If, however, there has been a preliminary showing that the evidence is admissible, the court need not hold a separate evidentiary hearing on the question of whether the evidence should be excluded. The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of
(a) a prior evidentiary hearing, or
(b) a prior evidentiary hearing supplemented with a hearing before the trial court, or
(c) if there was no prior evidentiary hearing, a new evidentiary hearing.”
E.Bindover Decision Following Preliminary Examination
At the preliminary examination, the prosecution must demonstrate that probable cause exists to believe that a crime has been committed and that the juvenile committed the alleged crime. MCL 766.13; MCR 6.110(E). “Probable cause requires 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 (2003), quoting People v Justice (After Remand), 454 Mich 334, 344 (1997). While guilt need not be established beyond a reasonable doubt, the prosecution must make out a prima facie case by presenting “evidence of each element of the crime charged, or evidence from which the elements may be inferred.” People v Abraham, 234 Mich App 640, 656 (1999).
1.Finding of Probable Cause That a Specified Juvenile Violation Was Committed by the Juvenile
If a district court judge determines that probable cause exists to believe that a specified juvenile violation was committed and that the juvenile committed it, the juvenile must be bound over to the circuit court, which then has jurisdiction over the juvenile. MCL 766.13; MCR 6.110(E). The juvenile must be ordered to appear within 14 days for circuit court arraignment, “or the [district court judge] may conduct the circuit court arraignment as provided by court rule.” MCL 766.13.14
Note that the definition of specified juvenile violation includes:
•any attempt, solicitation, or conspiracy to commit any of the specified juvenile violations;
•a lesser-included offense of a specified juvenile violation, if the juvenile is also charged with a specified juvenile violation; and
•any other offense arising out of the same transaction as a specified juvenile violation, if the juvenile is also charged with a specified juvenile violation. MCL 712A.2(a)(1)(E)-(I); MCL 600.606(2)(e)-(i); MCL 764.1f(2)(e)-(i); MCR 6.903(H)(17)-(19).
2.Finding of No Probable Cause
“If the [judge] determines at the conclusion of the preliminary examination that a felony has not been committed or that there is not probable cause for charging the defendant with committing a felony, the [judge] shall either discharge the defendant or reduce the charge to an offense that is not a felony.” MCL 766.13. See also MCR 6.110(F) (requiring the judge to either “discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense or reduce the charge to an offense that is not a felony[]”).
3.Finding of Probable Cause that an Offense Other Than a Specified Juvenile Violation Was Committed by the Juvenile
MCL 766.14(2) provides:
“If at the conclusion of the preliminary examination of a juvenile the magistrate finds that a specified juvenile violation did not occur or that there is not probable cause to believe that the juvenile committed the violation, but that there is probable cause to believe that some other offense occurred and that the juvenile committed that other offense, the magistrate shall transfer the case to the family division of circuit court of the county where the offense is alleged to have been committed.”
See also MCR 6.911(B), which provides that if the magistrate finds that “some other offense occurred that if committed by an adult would constitute a crime, and that there is probable cause to believe that the juvenile committed that offense, the magistrate shall transfer the matter to the family division of the circuit court in the county where the offense is alleged to have been committed for further proceedings.”
“If the [district] court transfers the matter to the family division, a transcript of the preliminary examination shall be sent to the family division without charge upon request.” MCR 6.911(B).
MCR 3.939 provides:
“(A) General Procedure. Except as provided in subrule (B), the court shall hear and dispose of a case transferred pursuant to MCL 766.14 in the same manner as if the case had been commenced in the family division of circuit court. A petition that has been approved by the prosecuting attorney must be submitted to the court.
“(B) Probable Cause Finding of Magistrate. The court may use the probable cause finding of the magistrate made at the preliminary examination to satisfy the probable cause requirement of MCR 3.935(D)(1).”15
MCL 766.14(3) provides that transfer of the case to the Family Division does not prevent the Family Division from waiving jurisdiction using the “traditional” waiver procedure set out in MCL 712A.4.16
1 A complete discussion of the statutory and procedural requirements for conducting arraignments is beyond the scope of this benchbook. For a thorough discussion of these requirements, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 5.
2 See MCR 6.901(A) (the rules in subchapter 6.900 “take precedence over, but are not exclusive of, the rules of procedure applicable to criminal actions against adult offenders[]”).
3 See MCR 6.901(A) (the rules in subchapter 6.900 “take precedence over, but are not exclusive of, the rules of procedure applicable to criminal actions against adult offenders[]”).
4 See also MCR 6.104(E)(4).
“A [judge] may adjourn a preliminary examination for a felony to a place in the county as the [judge] determines is necessary. The defendant may in the meantime be committed either to the county jail or to the custody of the officer by whom he or she was arrested or to any other officer; or, unless the defendant is charged with treason or murder, the defendant may be admitted to bail. The defendant may waive the preliminary examination with the consent of the prosecuting attorney. An adjournment, continuance, or delay of a preliminary examination may be granted by a [judge] without the consent of the defendant or the prosecuting attorney for good cause shown. A [judge] may adjourn, continue, or delay the examination of any cause with the consent of the defendant and prosecuting attorney. An action on the part of the [judge] in adjourning or continuing any case does not cause the [judge] to lose jurisdiction of the case.”
6 MCR 6.907(C)(2) requires the judge in an automatic waiver proceeding to “set a date for the juvenile’s preliminary examination within . . . 14 days[ after arraignment], less time given and used by the prosecuting attorney under special adjournment pursuant to MCR 3.935(A)(3), up to three days’ credit[;]” however, MCR 6.907 has not been amended to reflect the requirements of MCL 766.4
7 See also MCR 6.110(B)(2).
8 See also MCR 6.108(E); MCR 6.110(A).
9 See also MCR 6.108(C).
10 See also MCR 6.108(A).
11 MCR 6.108(B) provides that “[a] district court magistrate may conduct probable cause conferences when authorized to do so by the chief district judge and may conduct all matters allowed at the probable cause conference, except taking pleas and imposing sentences unless permitted by statute to take pleas or impose sentences.”
12 See also MCR 6.110(D)(1), which provides that “[t]he court shall allow the prosecutor and defendant to subpoena and call witnesses from whom hearsay testimony was introduced on a satisfactory showing that live testimony will be relevant.”
13 MCL 766.11b irreconcilably conflicts with MCR 6.110(C) (providing that the Michigan Rules of Evidence apply at preliminary examinations) because it permits the admission of evidence that would be excluded under the Michigan Rules of Evidence; however, because “MCL 766.11b is an enactment of a substantive rule of evidence, not a procedural one[,] . . . the specific hearsay exception in MCL 766.11b takes precedence over the general incorporation of the Michigan Rules of Evidence found in MCR 6.110(C).” People v Parker (Timothy), 319 Mich App 664, 674 (2017) (holding that “[t]he district court properly admitted the laboratory report [of the defendant’s blood draw at his preliminary examination on a charge of operating while intoxicated] pursuant to the statutory hearsay exception in MCL 766.11b[,]” and “[t]he circuit court abused its discretion by remanding [the] defendant’s case to the district court for continuation of the preliminary examination[]”).
14 See MCR 6.111(A) (governing circuit court arraignment in district court). For discussion of circuit court arraignments following bindover, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7.
15 See Section 6.3(H) for a discussion of MCR 3.935(D)(1), which sets out conditions for the pretrial detention of a juvenile.
16 See Chapter 14 for discussion of traditional waiver proceedings.