6.4Adjournments or Continuances
1.Generally
“The state and the defendant are entitled to a prompt examination and determination by the examining magistrate in all criminal causes[.]” MCL 766.1. See also MCR 6.110(A), which states, in part, that “[w]here a preliminary examination is permitted by law, the people and the defendant are entitled to a prompt preliminary examination.”1
Except as provided in MCL 712A.4,2 the preliminary examination, unless waived or adjourned, must be scheduled at the arraignment 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).
“Unless adjourned by the court, the preliminary examination must be held on the date specified by the court at the arraignment on the warrant or complaint.” MCR 6.110(B)(1). A violation of MCR 6.110(B)(1) “is deemed to be harmless error unless the defendant demonstrates actual prejudice.” Id.
2.Immediate Commencement of Preliminary Examination for Purpose of Taking Victim Testimony
“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 magistrate 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.” MCL 766.4(4). See also MCR 6.110(B)(2), which contains substantially similar language except that it requires that the defendant be present in the courtroom or have waived the right to be present.
3.Adjournment, Continuance, or Delay of Preliminary Examination
The judge may adjourn, continue, or delay the preliminary examination for a reasonable time 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. Additionally, the preliminary examination may be adjourned, continued, or delayed without the consent of the defendant or the prosecuting attorney for good cause shown. MCR 6.110(B)(1); 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).
To accommodate the absence of a material witness, where it appears probable that the witness will be produced and testify, is good cause to adjourn a preliminary examination. People v Buckner, 144 Mich App 691, 694 (1985) (victim of the shooting was hospitalized until the day before the preliminary examination).
MCL 768.2 provides that the trial court, in a criminal case, has discretion to adjourn or continue a criminal case for good cause shown in the manner provided for civil cases.3 The statute states that where the prosecution and the defendant consent to an adjournment, there must be a showing to the court that the consent is “founded upon strict necessity and that the trial of said cause cannot be then had without a manifest injustice being done.” MCL 768.2.
The trial court may grant an adjournment based on the unavailability of a witness or evidence if it “finds that the evidence is material and that diligent efforts have been made to produce the witness or evidence.”4 MCR 2.503(C)(2). See People v Grace, 258 Mich App 274, 277 (2003) (“it was an abuse of discretion for the trial court not to give the prosecutor more time to find [the victim and material witnesses who failed to timely return to the court for resumption of trial following a lunch recess], not to allow the one prosecution witness present to testify, not to call a recess, or not to grant the motion to adjourn[]” where “the court denied the motion for an adjournment and dismissed the case after a mere seventeen-minute wait for the witnesses[, t]he testimony of the missing witnesses was material and the prosecutor had duly attempted to locate them, . . . [t]he trial court ‘had no reason to expect that [the witnesses’] cooperation would not continue[,]’ . . . [and] the witnesses arrived shortly after the dismissal was granted[ claiming] . . . that [they] were delayed by a long line at the security checkpoint in the courthouse[]”).
1 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 7, for a detailed discussion of preliminary examinations.
2 MCL 712A.4 governs traditional waiver proceedings involving a juvenile 14 years of age or older. See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 14 for more information.
3 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9, for a detailed discussion of pretrial procedures.
4 The motion to adjourn must be filed “as soon as possible after ascertaining the facts.” MCR 2.503(C)(1). “If the testimony or evidence would be admissible in the proceeding, and the adverse party stipulates in writing or on the record that it is to be considered as actually given in the proceeding, there may be no adjournment unless the court deems an adjournment necessary.” MCR 2.503(C)(3).