Zoom Hearings: The New Preliminary Exam?

In the wake of COVID-19, the Michigan criminal justice system is in a state of disarray. While it has always been understood if every case went to trial under normal circumstances, our courts would be in jeopardy; we are now in an area that has never been seen before. One of the ways to combat this backlog is for courts to run preliminary exams using Zoom technology. This is a concept that is being entertained by different counties in the state of Michigan.

The preliminary exam is a proceeding after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. Hearsay is typically allowed. Should the court decide that there is probable cause, a formal charging instrument (called the information in some jurisdictions) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the trial will cease. Many jurisdictions, however, allow the lawyer to seek a new preliminary hearing, or even seek a bill of an indictment from a grand jury. The critical questions that a preliminary hearing addresses typically are:

1. Is there probable cause to believe the alleged crime occurred and did it happen within the court’s jurisdiction?
2. Is there probable cause to believe that the defendant committed the crime?
If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is “held to answer” or “bound over” to our circuit court. To discuss this issue in greater detail, we spoke to several of the top criminal defense lawyers in our state.

Scott Grabel is the founder of Grabel and Associates, which is known as the top criminal defense firm in the state of Michigan. Grabel provided commentary when he said, “There are limitations with running the prelim on Zoom. It will be difficult to study the body language of the witnesses. There are technical issues, and we are risking violating our clients’ constitutional rights. It is a very concerning situation for all involved. This is not something that should be agreed upon by the defendant.

William Amadeo is a partner at McManus and Amadeo in Ann Arbor, Michigan, and a Senior Associate for Grabel and Associates. Amadeo is known as one of the top criminal defense lawyers in our state and provided his views on this issue. Amadeo said, “I think that there is a better chance that the Lions replace Matt Stafford with me than there is with me agreeing to this ridiculous request by individual prosecutors. Sadly, there is such a low burden with prelims already; now you want to do it on video? Here are the following issues that I have with a Zoom prelim:

1. Not being able to speak to my client.
2. Not being able to read body language at a prelim.
3. Not being able to impeach with extrinsic evidence.
4. If we have a witness sequestered, could they watch the live proceedings and be able to change their testimony on the fly? Other than that, it’s a great idea.”

Ravi Gurumurthy is one of the top criminal defense lawyers in the Northern part of Michigan. When asked about the Zoom Prelim, Gurumurthy said, “I’m in a battle over this issue right now. I just did a motion requesting this not occur. If the motion is denied, I intend to appeal. We are in a chaotic time; I do not want my client’s constitutional rights to be compromised further by the Coronavirus.”

Lane Zabawa is a too criminal defense lawyer in Grand Rapids, Michigan, and also is known as a top probate attorney. When asked about Zoom Preliminary Examinations, Zabawa said, “It is concerning that we are watering down the judicial process. I will not agree to compromise my client’s rights. Many of my clients are relatives of older people that I represent, and grandparents are already concerned when they have a loved one in a situation with the criminal justice system. While I am concerned about the judicial economy, my first concern is towards protecting the freedom of my client. That cannot be accomplished on Zoom.”

While the immediate future of our criminal justice system is in jeopardy, we are looking for outside of the box solutions. While creativity is appreciated, to water down the preliminary exam is something we truly need to reconsider.

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