In a felony case in Michigan, a defendant has two statutory (not constitutional) rights.

First, the defendant has a right to a hearing where the prosecutor must show (by putting on witnesses) that there is probable cause to believe a crime was committed and probable cause that the defendant committed that crime. If the prosecutor is successful, then the case is “bound over” to circuit court for further proceedings and trial.

Second, a defendant has a right to that preliminary examination within 14 days of the arraignment. Never, ever, waive your right to a preliminary examination until you consult with your trial attorney.

Incredibly, there are some district court judges that fail to follow the rules and case law governing preliminary examinations.  In short, some judges simply ignore their duty to examine the whole case, simply rubber stamp the prosecutor’s evidence, and pass the case along to circuit court.  In Michigan, the law is crystal clear that a defendant has a right to present a defense, to include witnesses, at the preliminary examination.

For example, on the issues of defense witnesses and presentation of a defense at preliminary examinations, the judge’s “benchbook” notes the following (emphasis added):

A defendant requesting the presence of an out?of?state witness under MCL 767.93 must “(1) designate the proposed witness’ location with reasonable degree of certainty; (2) file a timely petition; and (3) make out a prima facie case that the witness’ testimony is material.” People v McFall, 224 Mich App 403, 409 (1997).

 “After the testimony in support of the prosecution has been given, the witnesses for the prisoner, if he [or she] have any, shall be sworn, examined and cross?examined and he [or she] may be assisted by counsel in such examination and in the cross?examination of the witnesses in support of the prosecution.” MCL 766.12.

 “Each party may . . . examine and cross?examine witnesses at the preliminary examination.” MCR 6.110(C).

The plain language of MCR 6.110(C) more fully stated specifically provides for the defense to call witnesses and offer proofs, to wit:


C) Conduct of Examination. Each party may subpoena witnesses, offer proofs, and examine and cross-examine witnesses at the preliminary examination. …


 Not only does the court rule specifically inform the district court judge that the defendant has the right to call witnesses, so to does the holding of the Michigan Supreme Court. The Michigan Supreme Court issued an opinion specifically “to clarify our decisions” on the conduct of preliminary examinations. In relevant part, the Michigan Supreme Court advises the district court:

“The magistrate has “the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses” [2] and may consider evidence in defense.”  People v King, 412 Mich 145, 153 (1981)

“Evidence in defense” would necessarily include defense witnesses.

An initial criminal consultation at Nye & Associates is free. Call today.


Comments are closed.