Probable Cause Conferences

4.20Probable Cause Conferences ¹

“The state and the defendant are entitled to a probable cause conference, unless waived by both parties.” MCR 6.108(A). The purpose of a probable cause conference is to allow the prosecutor, defendant, and defense attorney to discuss plea negotiations, bond modifications, stipulations regarding the case, and any other relevant matters. See MCL 766.4(1)(a)-(d).

A.Authority

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) (“[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”). 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).

B.Conducting the Probable Cause Conference

“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 magistrate for a bond modification.

(d) Discussions regarding any other matters relevant to the case as agreed upon by both parties.” MCL 766.4(1).

See also MCR 6.108(C) (“[t]he probable cause conference shall include discussions regarding a possible plea agreement and other pretrial matters, including bail and bond modification”).

Videoconferencing technology is the preferred mode for conducting probable cause conferences for in-custody defendants. MCR 6.006(C)(1). 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. . . , 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 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). See also MCR 4.401(E) (“[a] district court magistrate may use videoconferencing technology in accordance with MCR 2.407 and MCR 6.006”).

See the Michigan Judicial Institute’s checklist for conducting a probable cause conference. For additional information, see the SCAO’s Best Practices for Probable Cause Conferences and Preliminary Examinations.

C.Waiver of the Probable Cause Conference

The parties may agree to waive the probable cause conference. 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.”