A preliminary examination is basically a mini-trial. In Michigan, every person charged with a felony crime is entitled to one. It generally happens within a week or two after a person is charged with the felony crime but can be adjourned or rescheduled; for example, if the defense attorney wants more time to investigate the case. In our cases, we like to reschedule the preliminary examination if there are videos that we haven’t gotten.
A preliminary hearing is like a mini trial. Basically, the defendant, the defense attorney, the prosecutor, their witnesses, and the judge will have a hearing. The complainant may or may not be there. It isn’t always required for them to be. For example, in a theft case, a police officer could testify about the value of the stolen property. The prosecutor might just have a police officer and complainant (depending on the case). It’s their decision. Even if there are other witnesses to an alleged crime, the prosecutor doesn’t necessarily need to have them testify yet.
At the preliminary exam, the District Court judge will take testimony from the prosecutor’s witnesses. The defendant (via their attorney) will have the chance to cross-examine the prosecutor’s witnesses. To boil the hearing down to its basic elements, it’s designed to answer two questions:
- Was a crime was probably committed?
- Did the defendant probably committed that crime?
The “burden of proof” is “probable cause.” In other words, the prosecutor has the burden of proving (1) and (2) above is probably true. It’s not a 51/49 burden of proof, which is called “preponderance of the evidence” and applies in civil cases. It’s also nowhere near the “beyond a reasonable doubt” that a jury has to use.
If the judge answers (1) and (2) as “yes”, the defendant is “bound over” to circuit court to all of the counts the district judge answered “yes” to. That just means that the case is going to continue toward jury trial in the circuit court. If the judge answers either (1) or (2) as “no”, the case will end for the time being. Double jeopardy has not attached, which means the prosecutor can re-file the charges and continue the case.