What is a Preliminary Examination?

A preliminary examination is a step in the criminal process in which the district court determines whether a defendant may be charged with a felony. A felony is a crime for which the potential punishment is over one year in prison, as opposed to a misdemeanor, which carries a maximum sentence of up to one year in jail.

The preliminary examination, generally referred to as a prelim, involves a hearing in which the district court will determine two things. First, whether there is probable cause to believe that a felony has been committed, and second, whether there is probable cause to believe that the defendant committed that crime. Probable cause means that it is more likely than not that a felony occurred and that the defendant committed that felony. Probable cause is a much lower standard of proof than is proof beyond a reasonable doubt, the standard needed for a criminal conviction.

In most courts a pre-examination conference will be held. Much like at a pre-trial conference for misdemeanors, the prosecutor and defense counsel will see if the case can be resolved through a plea bargain. If no resolution can be negotiated, then the case will proceed to the preliminary examination.

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At the examination the prosecution will call witnesses and the defense may cross-examine those witnesses, much like at an actual trial. There are several possible outcomes of the examination.

The court could find that there is sufficient probable cause to “bind over” the defendant to circuit court, where the case will proceed with the arraignment of the defendant on felony charges, followed by a pre-trial conference. The court could also find that there is no probable cause to bind over the defendant and will discharge the case. Alternatively, the court could find that there is only probable cause for the case to continue against the defendant as a misdemeanor, rather than as a felony, and the case will continue in the district court.

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Because the standard of proof is so low for the bind over of the defendant, a dismissal of the case following an examination is difficult to obtain.

There are nevertheless many advantages for the defense in the examination. The examination provides an opportunity for the defense to assess the credibility of the state’s witnesses, enabling counsel to begin planning trial strategy. Examining the witnesses will also help counsel learn more about the case than what is contained in the police report, which usually contains only the bare minimum amount of information. Moreover, the testimony of those witnesses is preserved and could be used at trial to impeach witnesses who may change their story later.

Read the statue on Preliminary Examinations

Contact ArborYpsi Law at 734-883-9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein

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