7.17Probable Cause Inquiry and Applicable Evidentiary Standards at Preliminary Examination
“In general terms, the purpose of a preliminary examination is to determine whether a crime was committed and whether there is probable cause to believe that the defendant committed it.” People v Crumbley (On Remand), ___ Mich App ___, ___ (2023) (cleaned up). “More specifically, in order to bind a defendant over for trial in the circuit court, the district court must find probable cause that the defendant committed a felony based on there being evidence of each element of the crime charged or evidence from which the elements may be inferred. Probable cause requires enough evidence to cause a person of ordinary caution and prudence to conscientiously entertain a reasonable belief of the defendant’s guilt. The district court abuses its discretion by binding over a defendant when the prosecution has failed to present sufficient evidence to support each element of the charged offense.” Id. at ___ (quotation marks and citations omitted).
“After the testimony in support of the prosecution has been given, the witnesses for the [defendant], if he have any, shall be sworn, examined and cross-examined[.]” MCL 766.12. A district court abuses its discretion when it “[does] not permit the defendant to call witnesses” at the preliminary examination. People v Brown, 505 Mich 984, 984-985 (2020).
“Identity is an essential element of every crime.” People v Fairey, 325 Mich App 645, 649 (2018) (citation omitted). “Evidence supporting that the defendant perpetrated the crime may be circumstantial, but must nevertheless demonstrate reasonable grounds to suspect the defendant’s personal guilt.” Id. (citation omitted). Although “a district court may also rely on inferences to establish probable cause for a bindover,” the court abuses its discretion when it fails “to distinguish between a suspicion of guilt and a reasonable belief that [the defendant] was the person who committed the crime.” Id. at 651 (holding “a person of ordinary prudence and caution could not infer that [the defendant] carried out his veiled threats to tag absent any actual evidence linking [the defendant] to the acts of tagging”). “Mere suspicion is not the same as probable cause[.]” Id.
“‘[T]he probable cause required for a bindover is “greater” than that required for an arrest and . . . imposes a different standard of proof[;] . . . [t]he arrest standard looks only to the probability that the person committed the crime as established at the time of arrest, while the preliminary hearing looks both to that probability at the time of the preliminary hearing and to the probability that the government will be able to establish guilt at trial.’” People v Cohen, 294 Mich App 70, 76 (2011) (citations omitted). “The district court’s [probable cause] inquiry 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.” People v Crippen, 242 Mich App 278, 282 (2000) (citations omitted).1 However, “‘[a] preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.’”People v Drake, 246 Mich App 637, 640 (2001), quoting Barber v Page, 390 US 719, 725 (1968).
In determining whether there is probable cause to believe a crime has been committed by the accused, a judge has a duty “to pass judgment on the credibility of the witnesses.” People v Yost, 468 Mich 122, 127-128 (2003) (citations omitted). “If the evidence introduced at the preliminary examination conflicts or raises a reasonable doubt about the defendant’s guilt, the [judge] must let the factfinder at trial resolve those questions of fact[, and t]his requires binding the defendant over for trial.” People v Hudson, 241 Mich App 268, 278 (2000) (citation omitted); see also Yost, 468 Mich at 128; People v Goecke, 457 Mich 442, 469-470 (1998). Although “the magistrate must exercise some judgment in analyzing the evidence at the preliminary examination when deciding whether there is probable cause to bind over a defendant,”2 People v Anderson, 501 Mich 175, 184 (2018), “charges should not be dismissed merely because the prosecutor has failed to convince the reviewing tribunal that it would convict[; t]hat question should be reserved for the trier of fact,” People v Perkins, 468 Mich 448, 452 (2003), citing Goecke, 457 Mich at 469-470.
A district court has “the authority to consider defendant’s defenses when determining whether to bind him over to the circuit court.” People v Schurr, ___ Mich App ___, ___ (2024). While affirmative defenses, such as justification and self-defense, must typically be presented at trial, “the inquiry at the preliminary examination is not limited to whether the prosecution has presented evidence on each element of the offense.” Id. at ___ (quotation marks and citation omitted). Thus, “if the defendant presents evidence that he or she has a complete defense to the charge on the undisputed evidence, it would be improper for the district court to bind over the defendant.” Id. at ___.
A.Admission of Evidence in Preliminary Examination
“A preliminary examination is, at its core, an evidentiary hearing.” People v Olney (On Remand), 333 Mich App 575, 582, 587 (2020) (concluding that because of this, MCL 768.27c (governing the admissibility of domestic violence offenses), applies to the preliminary examination). MCL 766.11b(1) provides that, with the exception of certain hearsay records and reports enumerated in MCL 766.11b(1)(a)-(d), “[t]he rules of evidence apply at the preliminary examination.” See also MCR 6.110(C) (“[t]he court must conduct the [preliminary] examination in accordance with the Michigan Rules of Evidence”). “[W]hile the rules of evidence apply during a preliminary examination, the right of confrontation does not.”3 People v Olney, 327 Mich App 319, 331 (2019) (finding that in addition to misunderstanding the law, which alone required reversal, “the circuit court abused its discretion when it granted defendant’s motion to quash on the basis that defendant’s right of confrontation was violated” during his preliminary examination even though the testimony at the examination would have likely violated the Confrontation Clause and been inadmissible at trial).
“[A]n evidentiary deficiency [such as admission of hearsay testimony] at the preliminary examination is not ground for vacating a subsequent conviction where the defendant received a fair trial and was not otherwise prejudiced by the error.” People v Hall, 435 Mich 599, 600-601 (1990). See also MCL 769.26 (“[n]o judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of . . . improper admission or rejection of evidence, . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”).
1.Scope of Examination
MCL 766.4(6) provides:
“At the preliminary examination, a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath and, except as provided in [MCL 766.11a (permitting telephonic, voice, or video conferencing)] and [MCL 766.11b (permitting the admission of certain hearsay evidence)], in the presence of the defendant, concerning the offense charged and in regard to any other matters connected with the charge that the magistrate considers pertinent.”
The examining judge “may examine not only the truth of the charge in the complaint, but also other pertinent matters related to the charge[;]” the judge “is not bound by the limitations of the written complaint.” People v Hunt, 442 Mich 359, 363 (1993) (citation omitted). The court’s inquiry at the 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.” People v Crippen, 242 Mich App 278, 282 (2000) (citations omitted). Stated another way, “a magistrate’s duty at a preliminary examination is to consider all the evidence presented, including the credibility of the witnesses’ testimony, and to determine on that basis whether there is probable cause to believe that the defendant committed a crime, i.e., whether the evidence presented is ‘sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.’” People v Anderson, 501 Mich 175, 178 (2018), quoting People v Yost, 468 Mich 122, 126 (2003) (quotation marks and citation omitted). This determination must be made at the end of the preliminary examination; accordingly, “a magistrate must consider the totality of the evidence presented at that juncture, and . . . a magistrate must do so even if evidence introduced at the outset of the preliminary examination initially appears to have satisfied the elements of a criminal offense.” Anderson, 501 Mich at 184, citing MCL 766.13.
2.Rules of Evidence and Admissible Hearsay
The preliminary examination must generally be conducted “in accordance with the Michigan Rules of Evidence.” MCR 6.110(C). However, MCL 766.11b provides, in relevant part:
“(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 magistrate shall allow the prosecuting attorney or the defense to subpoena and call a witness from whom hearsay testimony was introduced under this section on a satisfactory showing to the magistrate that live testimony will be relevant to the magistrate’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.[4]
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. People v Parker, 319 Mich App 664, 667 (2017). “MCL 766.11b is an enactment of a substantive rule of evidence, not a procedural one[; a]ccordingly, 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).” Parker, 319 Mich App at 674 (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”).
Because “MCL 766.11b(1) addresses the foundational and authentication requirements for certain reports and records at the preliminary examination,” certain hearsay statements may still be admissible at the preliminary examination. See People v Olney (On Remand), 333 Mich App 575, 586-587 (2020) (emphasis added) (finding that because MCL 768.27c (governing admissibility of statements pertaining to physical injury or domestic violence) “does not contain any reference to admission of records or other documents,” but “addresses statements pertaining to physical injury or domestic violence,” “[t]he omission of MCL 768.27c from MCL 766.11b(1) does not support [an] attempt to preclude hearsay statements pertaining to domestic violence from admission at the preliminary examination”).
See also MRE 1101(b)(8), providing that “[t]he rules — except for those on privilege — do not apply . . . [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.”
MCR 6.202 governs the admissibility of forensic laboratory reports and certificates.5
3.Collateral Estoppel and Res Judicata
“[D]ismissal of a prosecution at preliminary examination raises no bar under res judicata or collateral estoppel to a subsequent prosecution.” People v Maye, 343 Mich App 57, 67 (2022) (quotation marks and citation omitted). Indeed, “neither res judicata nor collateral estoppel [preclude] the prosecutor from refiling charges where the same magistrate presided over both examinations and the prosecutor presented additional evidence to support the charge.” Id. at 67. In Maye, “the district court did not bind defendant over . . . as charged in the complaint, [it] discharged defendant as to that charge without prejudice to the prosecutor initiating a subsequent prosecution for the same offense.” Id. at 66 (quotation marks and citation omitted). Thus, the prosecution “was entitled to reinstate that charge against defendant to seek to present additional evidence at the second preliminary examination before the magistrate who presided over the first preliminary examination.” Id. at 66. Accordingly, “the circuit court erred by reversing the decision of the district court, which denied defendant’s motion to quash the charges against him and rejected defendant’s contention that collateral estoppe[l] barred the refiling of the complaint”; “[u]nder MCR 6.110(F), additional evidence is not limited to newly discovered evidence.” Maye, 343 Mich App at 65, 66. See Section 7.25 for additional information on the prosecutor’s right to bring new charges.
1.Generally
“The court shall allow the prosecutor and the defendant to . . . examine and cross-examine witnesses at the preliminary examination.” MCR 6.110(C). “After the testimony in support of the prosecution has been given, the witnesses for the [defendant], if he have any, shall be sworn, examined and cross-examined[.]” MCL 766.12. A district court abuses its discretion when it “[does] not permit the defendant to call witnesses” at the preliminary examination. People v Brown, 505 Mich 984, 984-985 (2020).
2.Procedure
“At the preliminary examination, a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath and, except as provided in [MCL 766.11a and MCL 766.11b],[6] in the presence of the defendant, concerning the offense charged and in regard to any other matters connected with the charge that the magistrate considers pertinent.” MCL 766.4(6).
3.Testimony by Telephonic, Voice, or Video Conferencing
“On motion of either party, the magistrate 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.” MCL 766.11a.
“[A]s 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 the State Court Administrative Office, and all proceedings at which such technology is used must be recorded verbatim by the court.” MCR 6.006(D).7
Committee Tip:
The trial court should allow the defendant to effectively cross-examine the prosecution witnesses, so that even if a prosecution witness becomes unavailable to testify at trial, MRE 804(a)(5), the prior testimony would still be admissible and not violate the defendant’s right to confrontation.
“Under the corpus delicti rule, ‘a defendant’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing (1) the occurrence of the specific injury . . . and (2) some criminal agency as the source of the injury.’” People v Schumacher, 276 Mich App 165, 180 (2007), quoting People v Konrad, 449 Mich 263, 269-270 (1995). “In a criminal prosecution, proof of the corpus delicti of a crime is required before the prosecution may introduce a defendant’s inculpatory statements.” Schumacher, 276 Mich App at 180. “It is . . . well-accepted that [the corpus delicti] rule applies to a preliminary examination.” People v Randall, 42 Mich App 187, 190 (1972) (citations omitted); see also People v Cotton, 191 Mich App 377, 384, 394 (1991).