Dismissal Following a Preliminary Examination in a Michigan Felony Case

In Michigan, any person charged with committing one or more felony offenses has a statutory right to a preliminary examination within 14 days of arraignment under MCL 766.1 et seq.

A preliminary examination is not a trial, but rather is a hearing before a judge to determine whether there is probable cause to believe two things: 1) that a felony was committed, and 2) that the defendant committed that felony.  The prosecution calls witnesses to give testimony about the facts of the case, and the defendant’s attorney has an opportunity to cross-examine the prosectution's witnesses.  The defendant may testify or offer proofs but rarely does so to prevent potentially damaging cross-examination.

Because the prosecutor’s burden of proof is only probable cause and not beyond a reasonable doubt (as the standard is at trial), the prosecution is often successful in binding the felony case over to the Circuit Court at the conclusion of the preliminary examination.  There are however a few ways that a successful defense attorney can get the felony case dismissed at the preliminary examination stage.

First, witnesses’ identifications of the defendant crumble under a defense attorney's successful cross-examination, and there is no other credible evidence to show that the defendant committed the crime at issue. This situation may cause the entire case against the defendant to come apart, and the judge may agree to dismiss the charge (or reduce it to a charge that doesn’t require the eyewitness identification of the defendant). 

Second, a crucial witness for the prosecution doesn’t come to the hearing or becomes reluctant about testifying in court. This situation might happen if the defendant knows the witness.

Third, the prosecution fails to offer evidence in support of each element of the crime charged. For example, to convict a defendant of felonious assault, the prosecution must prove that 1) the defendant, 2) assaulted another person, 3) with a weapon, and 4) with an intent to do violence to the victim. At the preliminary examination, the prosecution must offer some evidence as to every element of the crime charged. If the prosecution does not offer any evidence on at least one element of the crime, the judge must dismiss the charge.

Example: Mike and a friend were arrested and charged with felonious assault for allegedly beating a young boy with a bat. At the preliminary examination, the prosecution offers evidence to show that Mike and his friend are guilty of the crime.  The prosecution offers a video of the beating, which shows that Mike and his friend were present at the beating.  The video shows Mike attacking a young boy with a bat, but Mike’s friend does not strike the boy with any object whatsoever.  The attorney for Mike’s friend should be successful in getting his client’s case dismissed if he can convince the judge that his client never touched the victim with a weapon.