7.28Circuit Court Review of Error at Preliminary Examination
“If, on proper motion, the trial court finds a violation of [MCR 6.110(C) (conduct of examination), MCR 6.110(D) (exclusionary rules), MCR 6.110(E) (probable cause finding), or MCR 6.110(F) (discharge of defendant)], it must either dismiss the information or remand the case to the district court for further proceedings.” MCR 6.110(H). MCR 6.110(H) “does not address, and leaves to case law, what effect a violation of these rules or an error in ruling on a motion filed in the trial court may have when raised following conviction.” 1989 Staff Comment to MCR 6.110.
“A party challenging a bindover decision must do so before any plea of guilty or no contest, or before trial.” MCR 6.008(B).
B.Prosecutor’s Appeal to Circuit Court
“‘[I]f the prosecutor is of the opinion that the examining [judge] erred in not binding the defendant over for trial, . . . [he or she should] appeal to the circuit court.’” People v Robbins (Darrell), 223 Mich App 355, 361-362 (1997), quoting People v Nevitt, 76 Mich App 402, 404 (1977).
A reviewing court may not reverse a judge’s bindover decision absent an abuse of discretion. People v Yost, 468 Mich 122, 126 (2003). “The fact that the [district court judge] may have . . . reasonable doubt that [the] defendant committed the crime [is] not a sufficient basis for refusing to bind [the] defendant over for trial.” Id. at 133 (citation omitted).
“[E]rror at the preliminary examination stage should be examined under a harmless error analysis.” People v Hall (Lisa), 435 Mich 599, 600-602, 615 (1990) (noting that “the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process[]” and holding that a defendant bound over for trial on the basis of hearsay testimony erroneously admitted at the preliminary examination is not entitled to reversal of a subsequent conviction if he or she received a fair trial and was not otherwise prejudiced by the error); see also People v Houthoofd, 487 Mich 568, 593 (2010).