Preliminary Examination Lawyer In Michigan

Patrick S. Fragel, Attorney at Law, P.C.

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If you are charged with a felony, then you are entitled to have a preliminary examination.   The District Court Arraignment is the first hearing for every adult criminal case.  The Preliminary Examination follows 14 days after the District Court Arraignment.

The following outline shows how criminal charges move through the District and Circuit Courts. As a Michigan criminal defense lawyer, Attorney Fragel will lead you through the criminal process and develop a legal defense to meet your needs.

Police Investigation

Investigation may include interviewing witnesses and suspects. Oftentimes physical evidence is collected, inspected or photographed. The Court might issue a search warrant for a suspect’s home or person in order to obtain physical evidence such as DNA samples, suspected drugs, weapons or objects that assist in proving the alleged crime. In an assault case, the search warrant might direct police to inspect a suspects hands or fingernails for the victim’s DNA. Unless there is a search warrant, the suspect does not have to permit the search.

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Warrant Issued

Once the investigation is finished, the Police write a report, submit it to the Prosecuting Attorney, and ask that certain charges are brought against the suspect. The police report will include witness statements, photographs of physical evidence and important times/dates. The Prosecuting Attorney reads the report, discusses it with police and then issues a warrant for the arrest of the named suspect.

In some cases the Prosecuting Attorney will interview victims or witnesses to test their credibility. This is especially true in domestic violence cases where the victim/witness might be reluctant to testify against the suspect.

The Prosecuting Attorney has complete discretion as to what charges will be brought, if any. At a minimum, the police report must show “probable cause” – some factual basis – that a crime occurred, and that the suspect committed it. Probable cause is a very easy evidentiary standard to meet.

If the Prosecuting Attorney decides that no crime was committed, then the case is closed.

When a crime is committed in a Police Officer’s presence, the officer may arrest a suspect on the spot without an arrest warrant. Later on, the Police will write finish their investigation and turn their report over to the Prosecuting Attorney requesting certain charges.

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Suspect Booked

With the Warrant being issued, the police will either pick-up the suspect for booking, or allow the suspect to voluntarily turn himself into the police station. At this stage, the suspect will be photographed, fingerprinted and held until his District Court Arraignment.

At the time of the arrest, the Police will do a “pat-down” search of the suspect, and search of the area for weapons. If they find evidence of other crimes, those crimes can be added to the charges.

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District Court Arraignment

All FELONY AND MISDEMEANOR CASES start with a District Court Arraignment. The purpose of the arraignment is to:

  1. Read the Defendant the charges against him, as written by the Prosecuting Attorney.
  2. Inform the Defendant of the maximum penalty/sentence for each charge.
  3. Determine if the Defendant is pleading guilty, not guilty or standing mute.
  4. Inform the Defendant of his trial rights – the presumption of innocence, right to a jury trial, right to an attorney, right to cross-examine witnesses, right to remain silent, right to call witnesses on your own behalf, etc.
  5. Bond is always reviewed at the arraignment. The Judge will assess the Defendant’s criminal history, the seriousness of the allegations, the Defendant’s ties to the community, and then set bond. Bond might be:
  6. Personal Recognizance – no money required in most cases.
  7. Cash Bond – The Defendant pays a specified amount of money to ensure his appearance at future hearings.
  8. Surety Bond – The Defendant is not required to put up cash, but instead allows a lien to be placed on his property, or that of a willing third person.
  9. Conditional Bond – No money or surety is required, but the Court will set limits on the Defendant such as no consumption of alcohol/drugs, daily PBT’s, or no contact with certain people or places.

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Misdemeanor Pretrial Conference

This is an informal meeting with the Prosecuting Attorney to decide if the case should be:

  1. Settled by way of a plea bargain.
  2. Scheduled for a motion hearing to test the validity of certain evidence or procedures.
  3. Scheduled for a trial
  4. Dismiss the case

The Judge and witnesses are not involved in misdemeanor pre-trial conferences. If a MISDEMEANOR plea bargain is agreed upon, then the District Court will accept the Defendant’s plea in open Court after the pretrial conference.

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Felony Preliminary Examination

This is a contested hearing before a District Court Judge, sometimes called a “probable cause hearing”, held within 14 days after arraignment. During a preliminary examination, the Prosecutor presents witnesses to convince the Judge that there is at least probable cause to believe that the charged crime(s) was (were) committed and that the defendant committed the crime(s). Because the burden of proof is much less than at a trial, the Prosecutor generally does not call all potential witnesses to testify at the “prelim”; generally, the victim and some eye witnesses plus some of the police witnesses testify. The defendant, through his attorney, can cross-examine the witnesses and present his own evidence (including witnesses). If probable cause is established, the defendant is “bound over” (i.e., sent to) Circuit Court for trial. If the Judge decides that there is not probable cause that the defendant committed the charged crime(s), the judge can bind the case over on different charges, can reduce the charges to misdemeanors for trial in District Court, or can dismiss charges. A defendant can give up his right to a Preliminary Examination. Most felonies arrive in Circuit Court after such a “waiver”.

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Circuit Court Arraignment — Felonies Only

After the preliminary examination, the case is sent to Circuit Court, and the defendant is again arraigned (given formal notice of the charges against him or her). The charging document is called an “Information”. He or she is again advised of his/her constitutional rights, and enters a plea to the charge (guilty, not guilty or stand mute).

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Felony Pre-Trial Conference

This is an informal meeting with the Prosecuting Attorney to decide if the case should be:

  1. Settled by way of a plea bargain.
  2. Scheduled for a motion hearing to test the validity of certain evidence or procedures
  3. Scheduled for a trial
  4. Dismiss the case

The Judge and witnesses are not involved in misdemeanor pre-trial conferences. If a MISDEMEANOR plea bargain is agreed upon, then the District Court will accept the Defendant’s plea in open Court after the pretrial conference.

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Trial (Jury or Bench/Judge) — Guilty or Not Guilty

Sentence

Sentencing in Michigan varies depending on whether the crime is a misdemeanor or felony. Misdemeanor sentences are at the judge’s discretion. The judge will consider the information in the pre-sentence report, additional evidence offered by the parties, comments by the crime victim, and other information relevant to the judge’s sentencing decision.

For felonies, the Circuit Court judge is bound by the Michigan Sentencing Guidelines. The sentencing guidelines factor in aspects of the defendant’s criminal conduct and his prior record, to determine the minimum jail/prison sentence. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.

Appeals

Appeals from the District Court are heard in the Circuit Court. Appeals from a Circuit Court or Probate Court order are heard in the Michigan Court of Appeals. Appeals from Court of Appeals decisions are heard in the Michigan Supreme Court.

There are three kinds of appeals: (1) interlocutory, (2) of right, and (3) by leave.

  • Interlocutory appeal: occurs when a party tries to appeal a judge’s decision before the case has come to trial or before a trial is finished.
  • Appeal of right: occurs after a final order has been entered by the trial court (either a sentencing order, or an order dismissing the charge). A recent amendment to the Michigan Constitution has eliminated most appeals of right when a defendant pleads guilty. Most appeals of right now focus on the sentence imposed.
  • Appeal by leave of the court: occurs when an appeal of right is not available (e.g., because an available appeal of right was not filed on time). The appellate court has the discretion to reject the appeal or can “grant leave”.

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Contributed in part by PAAM

Patrick S. Fragel is a former Prosecutor. He welcomes questions concerning the arraignment hearing or any other aspect of your criminal case. He is currently a Criminal Defense Lawyer in Traverse City  the Upper Peninsula and surrounding areas. You can rely on his knowledge of Michigan criminal law and the Michigan Court Rules to protect your rights and freedom. If you are being investigated or have been charged with a crime, Contact Us for straight answers.

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Patrick S. Fragel, Attorney at Law, P.C.

800.468.7004