7.11Timing of Preliminary Examinations

“The state and the defendant are entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is the duty of all courts and public officers having duties to perform in connection with an examination, to bring it to a final determination without delay except as necessary to secure to the defendant a fair and impartial examination.” 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.”

The preliminary examination, unless waived or adjourned, must be scheduled for “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1)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).

When computing the relevant time periods, the day of the arraignment is not included. See MCR 1.108(1). “The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.” Id.

“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.

A.Immediate Commencement of Preliminary Examination for Purpose of Taking Victim Testimony

MCL 766.4(4) provides, in relevant 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 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.”

See also MCR 6.110(B)(2) (adding that “the defendant [must either be] present in the courtroom or [have] waived the right to be present[]”).

B.Adjournment, Continuance, or Delay of Preliminary Examination

1.Good Cause and/or Consent

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. See MCR 6.110(B)(1); 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).

The following are examples of circumstances under which Michigan’s appellate courts have determined there was good cause to adjourn a preliminary examination:

•Because of docket congestion due to unusual circumstances, People v Crawford, 429 Mich 151, 159 n 8 (1987); see also People v Twomey, 173 Mich App 247, 249 (1988) (holding that “[s]imple docket congestion without a showing of unusual circumstances[] . . . does not constitute ‘good cause’ for adjournment of examinations”) (citations omitted).

•To accommodate the absence of a material witness, “where it appears probable that the witness will be produced and will testify[,]” People v Den Uyl, 320 Mich 477, 488, 494 (1948) (citations omitted). See also People v Horne, 147 Mich App 375, 377-378 (1985) (material witnesses had a conflicting court appearance and a scheduled vacation); People v Buckner, 144 Mich App 691, 694 (1985) (victim was hospitalized until the day before the preliminary examination).

•Because defense counsel had previous appointments that he was required to attend, and due to illnesses affecting the prosecutor’s wife and the judge, People v Lewis, 160 Mich App 20, 32 (1987).

•To appoint counsel and allow appointed counsel to gain familiarity with the case before the preliminary examination, People v Eddington, 77 Mich App 177, 186-190 (1977); People v Brown, 19 Mich App 66, 68 (1969).2

2.Procedure

MCL 766.7 provides, in part:

“A magistrate may adjourn a preliminary examination for a felony to a place in the county as the magistrate determines is necessary. The defendant may in the meantime be committed either to the county jail or to the custody of the officer by whom he or she was arrested or to any other officer; or, unless the defendant is charged with treason or murder, the defendant may be admitted to bail.”

A judge who adjourns or continues a preliminary examination does not lose jurisdiction of the case. MCL 766.7.

3.Use of Two-Way Interactive Video Technology

A “court may, at the request of any participant, or sua sponte, allow the use of videoconferencing technology by any participant in any criminal proceeding.” MCR 6.006(A)(2).“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).3

4.Harmless Error

A violation of MCR 6.110(B)4 “is deemed to be harmless error unless the defendant demonstrates actual prejudice.” See also Buckner, 144 Mich App at 694-695 (a preliminary examination timely scheduled then adjourned with no explanation on the record may amount to harmless error if good cause can be established by the record).

1    See Section 7.5 for discussion of probable cause conferences.

2    See, however, MCR 6.005(E) (“[t]he court may refuse to adjourn a proceeding for the appointment of counsel or allow a defendant to retain counsel if an adjournment would significantly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking counsel”).

3    Effective January 1, 2013, Administrative Order No. 2012-7 provides that, in certain specific situations, “[t]he State Court Administrative Office is authorized, until further order of [the Michigan Supreme] Court, to approve the use of two-way interactive video technology in the trial courts to allow judicial officers to preside remotely in any proceeding that may be conducted by two-way interactive technology or communication equipment without the consent of the parties under the Michigan Court Rules and statutes.” “Notwithstanding any other provision in [MCR 6.006], until further order of the Court, AO No. 2012-7 is suspended and trial courts are required to use remote participation technology (videoconferencing under MCR 2.407 or telephone conferencing under MCR 2.406) to the greatest extent possible. Any such proceedings shall comply with the requirements set forth in MCR 2.407(G).” MCR 6.006(E).

4    MCR 6.110(B)(1) provides that “[i]f the parties consent, the court may adjourn the preliminary examination for a reasonable time[; i]f 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.”