The importance of conducting a preliminary examination in a felony defense

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You Never Know the Gifts You Will Get When You Challenge A Felony Case at the Preliminary Examination Level

In Michigan, when you are charged with a felony (any charge where the maximum penalty is greater than 1 year of incarceration). By statute, you are required to attend a Probable Cause Conference (PCC) . There you decide whether you are not going to challenge probable cause and allow the case to proceed to the circuit court. If you decide, to challenge Probable Cause that a felony was committed and your client was one of any individual involved in a crime, the case proceeds to a Probable Cause Examination. (PCE) The PCC must be held within 7 days of an arraignment in the District Court. The PCE within 21 days.

The proper standard for binding a defendant over is whether the evidence presented at the preliminary examination established probable cause both that a felony has been committed and that the defendant was the perpetrator. People v Coutu, 235 Mich App 695(1999); People v Neal, 201 Mich App 650, 654(1993). “Probable cause is established by a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the accused is guilty of the offense charged.” People v Tower, 215 Mich App 318 (1996); Coutu, supra; People v Paille #2, 383 Mich 621, 626 (1970).

Accordingly, there must be “some evidence from which each element of the crime may be inferred.” Coutu, supra. But the magistrate’s inquiry is not limited to only verifying that evidence was presented on each element. Rather, the magistrate must make his determination`after an examination of the whole matter.’ Although the prosecution has presented some evidence on each element, if upon an examination of the whole matter the evidence is insufficient to satisfy the magistrate that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense . . . .

Neal, 201 Mich App at 655.

Credibility of the witness must be taken into consideration in deciding whether or not to bind the case over. In addition, per MCR 6.110 (D) and (E), the defense counsel has the right to challenge evidence that may be unlawfully obtained. The best part of the rule, is that we get another bite at the apple in the Circuit Court.

The decision to run an exam is one of strategy. There is always a risk of additional exposure to a higher crime one often threatened by the prosecution. Mike Steinberg handles a slew of capital cases (Life in prison as a maximum). Mike’s rule of thumb is to run the exam if the case is going to trial. Almost all of Mike’s cases that ended in acquittal, were the result of running the exam.

There are many reasons to run the exam. One is to get the case dismissed or lowered. Another is to lock people into testimony. When it goes to trial, people forget what they say. Another is to convince the prosecution that their case is weak and resolution is in order. Last, another is to learn more about the case, demand further evidence and learn of violations of constitutional rights.

Two cases went to exam this week. One was a simple possession of controlled substances. One were 90 percent of the lawyers would waive the exam. Mike ran this one. And what was learned was the accused was illegally subjected to search and seizure. Bottom line, we will give it a heck of a fight in Circuit Court. The best part is the judge this case is going before, when she sat as a district court judge , suppressed the search of another one of Mike’s clients [see 6.110 (D) and (E)] does work. She is a good and fair judge.

The second case was a domestic dispute that went bad. The girlfriend was stabbed. In that case, the accused was charged with breaking and entering an occupied residence (people inside) and a felony was committed. It was a 20 year felony. The prosecution threatened to increase the charges, even though they did not have evidence to support a higher charge. They did add 2 more and attempted to add 10 year felony of evidence tampering.

Well, we ran the exam and wouldn’t you know: The home owner said Mike’s client was welcome there in the time in question. You cannot be accused of breaking and entering where you have the owner’s permission. As to the tampering evidence, Mike’s astute reading of the statute showed that all they could do was bindover on a 4 year felony. So 20 yr felony gone, a 4 year, instead of a 10 year, was added and another 10 year. While some may be dismayed with the additional charges, the prosecutor was going to add them anyway. The credibility of the complaining witness was shot to hell and we have a great case to try.

Mike has proven results in serious felonies. He has gotten felony cases dismissed, at the preliminary exam level, based on the credibility of witnesses. Let Mike be your lawyer and we, together, will figure out the best strategies to get you maximum results.