15.9Preliminary Examination¹

A.Introduction

MCL 712A.2d(4) provides, in relevant part:

“If the petition in a case designated under this section alleges an offense that if committed by an adult would be a felony or punishable by imprisonment for more than 1 year, the court shall conduct a probable cause hearing not later than 14 days after the case is designated to determine whether there is probable cause to believe the offense was committed and whether there is probable cause to believe the juvenile committed the offense . . .  A probable cause hearing under this section is the equivalent of the preliminary examination in a court of general criminal jurisdiction and satisfies the requirement for that hearing. A probable cause hearing shall be conducted by a judge other than the judge who will try the case if the juvenile is tried in the same manner as an adult.”

The Michigan Court Rules refer to the probable cause hearing required under MCL 712A.2d(4) as the “preliminary examination.” See MCR 3.903(D)(5); MCR 3.953(A).² 

Note: At arraignment for a felony charge, the court must schedule “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 preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1. Because the proceedings in a designated case “are criminal proceedings and shall afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction[,]” MCL 712A.2d(7), these requirements under MCL 766.4(1) may apply to designated proceedings; however, MCL 712A.2d and the court rules governing designated proceedings have not been amended to reflect these requirements.³ 

MCL 766.4 provides, in part:

“(1) Except as provided in . . . MCL 712A.4,^[4] the [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. 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.

(2) 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.

* * *

(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. Upon the request of the prosecuting attorney, however, 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.”

It is unclear to what extent these requirements apply to designated proceedings⁶; however, unless and until MCL 712A.2d and the court rules governing designated proceedings are amended to address these requirements, Family Division judges conducting designated proceedings may wish to comply with the requirements of MCL 766.4.⁷ For a thorough discussion of these requirements, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7.

B.Procedural Requirements for Preliminary Examination

The preliminary examination in a designated proceeding “must be conducted in accordance with MCR 6.110.” MCR 3.953(E). MCR 6.110 contains the procedural requirements for preliminary examinations in criminal cases.⁸ The statutory requirements for preliminary examinations in criminal cases are contained in MCL 766.1 et seq.⁹

C.Waiver of Preliminary Examination

“The juvenile may waive the preliminary examination if the juvenile is represented by an attorney and the waiver is made and signed by the juvenile in open court. The judge shall find and place on the record that the waiver was freely, understandingly, and voluntarily given.” MCR 3.953(B). The prosecuting attorney must consent to the waiver. MCL 766.7; MCR 6.110(A).¹⁰

If a defendant waives the statutory right to a preliminary examination without having the benefit of counsel at the time of 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).

D.Consolidation of Preliminary Examination 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^[11] 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.”

Similarly, MCR 6.110(A), which is applicable to designated proceedings,¹² provides, in part:

“The preliminary examination for codefendants shall be consolidated and only one joint preliminary examination shall be held unless the prosecuting attorney consents to the severance, a defendant seeks severance by motion and it is granted, or one of the defendants is unavailable and does not appear at the hearing.”

E.Time Requirements for Preliminary Examination

1.Commencement of Examination

MCR 3.953(D) provides that “[t]he preliminary examination must commence within 14 days of the arraignment in a prosecutor-designated case or within 14 days after court-ordered designation of a petition, unless the preliminary examination was combined with the designation hearing.”

However, see MCL 766.4(1), which provides, in relevant part:

“[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.”¹³

See also MCL 766.4(4), which provides, in part:

“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 766.7]. The parties, with the approval of the court, may agree to schedule the preliminary examination earlier than 5 days after the conference.”

2.Immediate Commencement of Preliminary Examination to Preserve Victim’s Testimony

MCL 766.4(4) provides, in 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.”

Similarly, MCR 6.110(B)(2), which is applicable to designated proceedings,¹⁴ provides:

“Upon the request of the prosecuting attorney, the preliminary examination shall commence immediately at the date and time set for the probable cause conference for the sole purpose of taking and preserving the testimony of the victim, if the victim is present, as long as the defendant is either present in the courtroom or has waived the right to be present. If victim testimony is taken as provided under this rule, the preliminary examination will be continued at the date originally set for that event.”

3.Adjournment

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).

Dismissal based on a failure to timely hold the preliminary examination is precluded unless the issue is raised before the preliminary examination. People v Crawford, 429 Mich 151, 156-157 (1987).

F.Judge Must Conduct Preliminary Examination

A judge must preside at a preliminary examination in a designated case. MCR 3.912(A)(3).¹⁵ Furthermore, the judge who presides at the preliminary examination may not preside at the trial of the same designated case unless a determination of probable cause is waived.¹⁶ MCR 3.912(C)(1). See also MCL 712A.2d(4). However, the judge who presides at the preliminary examination may accept a plea in a designated case. MCR 3.912(C)(1).¹⁷

G.Evidence at Preliminary Examination

“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).

1.Scope of Examination

“At the preliminary examination, [the judge] shall examine the complainant and the witnesses in support of the prosecution[] . . . concerning the offense charged and in regard to 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[]”).

2.Testimony by Telephonic, Voice, or Videoconferencing

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.”

Further, “[c]ourts may use videoconferencing technology when conducting preliminary hearings under MCR 3.935(A)(1), preliminary examinations under MCR 3.953 and MCR 3.985, dispositional hearings, and postdispositional progress reviews.” MCR 3.904(A)(1). “Except as otherwise provided, . . . as long as the juvenile is either present in the courtroom or has waived the right to be present, on motion of either party showing good cause, the court may use videoconferencing technology to take testimony from an expert witness or a person at another location in any delinquency, designated, or personal protection violation proceeding under this subchapter.” MCR 3.904(A)(2). “At trial, the court may use videoconferencing technology with the consent of the parties.” MCR 3.904(A)(3). “A party who does not consent to the use of videoconferencing technology to take testimony from a person at trial shall not be required to articulate any reason for not consenting.” Id. See Section 1.4 for discussion of videoconferencing technology.

3.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.^[18] 

(3) As used in this section, ‘controlled substance’ means that term as defined under . . . MCL 333.7104.”¹⁹

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.”

H.Probable Cause Determination

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 712A.2d(4); MCL 766.13; MCR 3.953(F); 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 Regarding Alleged Offense

If the court determines that there is probable cause to believe the offense alleged in the petition was committed and that the juvenile committed the offense, the court may schedule the matter for trial or a pretrial hearing in the same manner as the trial of an adult in a court of general criminal jurisdiction. MCL 712A.2d(5); MCR 3.953(F)(1). See also MCR 6.110(E).

2.Finding of No Probable Cause

If the court does not find that there is probable cause to believe that the alleged offense was committed or does not find that there is probable cause to believe that the juvenile committed the offense, the court must dismiss the petition unless it finds that there is probable cause to believe that the juvenile committed a lesser included offense. MCL 712A.2d(6); MCR 3.953(F)(2). See 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[]”); see also MCL 766.13.

3.Finding of Probable Cause Regarding Lesser Included Offense

MCL 712A.2d(6) provides, in relevant part:

“If the court determines there is probable cause to believe another offense was committed and there is probable cause to believe the juvenile committed that offense, the court may further determine whether the case should be designated as a case in which the juvenile should be tried in the same manner as an adult as provided in [MCL 712A.2d(2)].^[20] If the court designates the case, the case must be set for trial in the same manner as the trial of an adult in a court of general criminal jurisdiction.”

MCR 3.953(F)(3) restates this provision as follows:

“If the court finds there is probable cause to believe that a lesser included offense^[21] was committed and probable cause to believe the juvenile committed that offense, the court may, as provided in MCR 3.952,^[22] further determine whether the case should be designated as a case in which the juvenile should be tried in the same manner as an adult. If the court designates the case following the determination of probable cause under this subrule, the court may schedule the matter for trial or a pretrial hearing.”

4.Amendment of Petition and Subsequent Prosecution

MCL 712A.11(6) provides that a petition “may be amended at any stage of the proceedings as the ends of justice require.” See also People v Hunt, 442 Mich 359, 364-365 (1993) (where sufficient proofs are presented at preliminary examination to support bindover of criminal defendant for an offense other than that charged, prosecutor may move to amend complaint and warrant to add the charge if the defendant would not be prejudiced because of unfair surprise, inadequate notice, or insufficient opportunity to defend).

MCR 6.110(F) provides that if probable cause is lacking, “the court must 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.”²³ If a subsequent prosecution is initiated, “[e]xcept as provided in MCR 8.111(C),^[24] the subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.” MCR 6.110(F).

I.Procedural Protections and Guarantees at Preliminary Examination

If a case is designated, “the proceedings are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction.” MCL 712A.2d(7). These protections and guarantees include:

•The right to a preliminary examination, if the offense charged, if committed by an adult, would be a felony or would be punishable by imprisonment for more than one year. MCL 712A.2d(4); MCL 767.42.

•A prompt examination. MCR 3.953(D) requires commencement of the preliminary examination within 14 days of arraignment in a prosecutor-designated case or within 14 days after court-ordered designation. However, MCL 766.4(1) provides that a probable cause conference must be scheduled for “not less than 7 days or more than 14 days after the date of the arraignment,” and that the preliminary examination must be scheduled for a date “not less than 5 days or more than 7 days after the date of the probable cause conference.”²⁵

•Questioning of the complainant and prosecution witnesses in the presence of the accused “in regard to the offense charged and in regard to any other matters connected with the charge that the [judge] considers pertinent.” MCL 766.4.²⁶

•The calling and examination of defense witnesses, with the assistance of counsel. MCL 766.12; see also MCR 6.110(C).

•A determination of the admissibility of evidence during the preliminary examination. MCR 6.110(D)(2).²⁷

•A showing by the prosecution that probable cause exists to believe that a crime has been committed and that the accused committed the alleged crime. MCL 712A.2d(4); MCL 766.13; MCR 3.953(F); MCR 6.110(E)-(F); People v Harlan, 258 Mich App 137, 145-146 (2003).²⁸ 

•Appellate review of the probable cause determination, and reversal if the determination constitutes an abuse of discretion. People v Yost, 468 Mich 122, 126-127 (2003).

Part C—Pleas and Trials