The Preliminary Exam: The Poker Game of the Criminal Justice System

The preliminary examination (prelim) is a hearing in front of a District Court Judge to determine if there is probable cause to believe that a crime occurred within the jurisdiction of the District Court, and probable cause to believe that the defendant committed that offense. The defendant has 14 days from their arrest to hold their prelim.  This timeframe can be extended for good cause by either the prosecutor or the defendant.  Today, we discuss whether or not a prelim should be held, review the benefits and pitfalls of the exam and provide a tutorial of the subject matter from top criminal minds within the state of Michigan. 68916_law_education_series_2-300x225

Scott Grabel is the founder of Grabel and Associates in Lansing, Michigan, and has developed a law firm that is known as the top criminal defense firm in the state of Michigan.  When asked about the prelim, Grabel was quoted as saying, “The prelim is the criminal equivalent of the deposition.  It gives the criminal defense attorney the opportunity to test the merits of the case and see the strengths and weaknesses of the witnesses.  Recently, we won a prelim in Ingham County which garnered a lot of attention, but the goal at the prelim is not always to win, it is a low threshold for the prosecutor to have their case bound over, instead, you should be looking to find weaknesses in the state’s case that can help your client obtain a favorable plea or win the case at trial.”

Matthew McManus runs Ann Arbor Legal PLLC in Ann Arbor, Michigan, and his firm has become one of the top criminal firms in our state.  When asked about the prelim, McManus stated, “Knowing your audience is essential.  What may work in Washtenaw County may not be the same strategy to employ in Shiawassee County.  Knowledge of your District and Circuit Court is what you should know when approaching this subject.  If your client is not incarcerated, it’s best to waive the 14-day timeframe because it will give the attorney more time to study the matter.  This is an issue we usually address at the arraignment.  It is crucial to understand that in counties such as Lapeer or Macomb the prosecutor may want to run the prelim to preserve testimony.  The prelim is not a one-size-fits-all proposition.”

Joe Brugnoli is one of the top criminal defense lawyers in the Grand Rapids, Michigan, area and has an extensive amount of knowledge on this topic.  When asked about the preliminary examination, Brugnoli stated, “Three things to consider before running a preliminary exam. (1) Exhaust all options before deciding to run your preliminary exam. (2) Ask the prosecutor to allow a remand if you get new evidence. (3) If you have evidence to discredit the victim witness, show the prosecutor beforehand. It might put you in a better position and get you a better offer to preserve.”

We learn that with the preliminary examination, the defense counsel has to choose how they want to portray their case.  If a case is sure to get bounded over, revealing too much may be a disaster, on the other hand, if the prelim can hedge your client into freedom versus incarceration regardless of the outcome, then a different point of view comes into play.  Another issue that needs to be contemplated is the victim.  Are they indeed a victim or just a complaining witness?  With the preliminary examination, we are not playing checkers, we are playing a high level of chess, and if the lawyer does not understand that going in, there may be no way out and the client is the one that could suffer.

William Amadeo is a partner at Ann Arbor Legal in Ann Arbor, Michigan and a Senior Associate for Grabel and Associates in Lansing, Michigan.  In addition to his legal duties, Amadeo is a widely published journalist with a recurring beat for “The Chronicle News” and a part of the campaign team to elect Yanice Jackson-Long in her bid for a Lansing City Counsel At-Large Seat.  Amadeo can be reached at Williamamadeo@Grabellaw.com or amadeo@annarboresq.com.