Miscellaneous Criminal Aspects: Pre-Charge

A preliminary examination is only available for felony matters and some high court misdemeanors. The district court is the forum that holds the preliminary examination. At a preliminary examination, the district court will decide whether or not there is probable cause to believe the offense occurred and that the defendant committed the alleged offense. If the district court determines there is probable cause the matter will be bound over on the felony charge and an arraignment will be set in the circuit court. If the district court determines there is no probable cause, the court will dismiss the matter without prejudice and reduce the charge to an offense less than a felony.

It is critical to understand that the prosecutor only has to prove probable cause that a crime was committed at this stage, so it is an extremely low burden. The strategy of defense counsel is essential.

A preliminary examination can be waived. Benefits of waiving a preliminary examination for the defendant are:

• Preservation of testimony
• Discovery and impeachment

A preliminary examination (Prelim) is not a one size fits all situation. There are times when a prelim should be run and there are other times when running the prelim could be a fatal mistake to your case. Geography also plays a role in this decision. Both the prosecutor and the defense counsel have to agree to waive the preliminary examination. The defense counsel needs to know how to utilize this procedural tool. Here is are two examples of how the prelim can vary.

The first is from a case that we have on appeal and the second is a case where we ran the prelim.

Case I: The defendant was charged with one count of CSC 3. This is a 15-year felony and he had scoring guidelines of 4 years in prison. After the prelim, the prosecutor asked the court to amend the charge and the defendant now had 4 counts of CSC 1 with scoring guidelines of up to 20 years in prison. The defendant lost the trial and ended up getting 13.5 years in prison. If the defense counsel provided better advice, they could’ve negotiated the CSC 3 down or gone to trial with a risk of 4 years. At the very least, the lawyer’s knowledge of the judge and the jurisdiction cost their client 9.5 years of freedom.

Case II: The defendant was charged with Home Invasion I. In this case, this is a maximum charge so defense counsel has no incentive to waive the prelim unless the district court judge would communicate to the circuit court judge. (That is an issue for the importance of geography). In this case, the complaining witness was reluctant, and we were able to have the case dismissed.

One of the things that a good criminal defense attorney knows is how to set up a private polygraph. In choosing the proper tester, you need to know how the prosecutor’s office feels about each particular tester. This is key to helping to navigate your defense. Our team has been trained in the art of polygraph tests and has relationships with the most respected polygraph testers in the state.

If a defendant agrees to take an independent polygraph, it is wise to take a polygraph administered by an experienced polygraph examiner, licensed by the State of Michigan and the highest degree of knowledge and skill.

Michigan law recognizes that it is the court’s discretion to admit polygraph evidence and testimony in connection with a polygraph as evidence in a criminal case. It is up to the judge’s discretion to consider such evidence of a polygraph in circumstances where the factual issues do not directly concern issues of guilt or innocence. The main purpose of an independent polygraph taken by a defendant is to show evidence of the defendant’s general creditability and not used to prove the defendant’s guilt or innocence.

An independent polygraph can be used as an effective pre-charge tool. If a defendant is the subject of an investigation, an attorney can furnish the police with a successful polygraph that may convince the police not to charge your client.

Knowing which polygrapher to take is essential and is largely based upon geography. The prosecutor’s office in Washtenaw County will be very different than the prosecutor’s office in Jackson or Shiawassee County. The key is to build a relationship with the prosecutor’s office to know who to use and who not to utilize.