7.7Right to a Preliminary Examination1
The defendant and the prosecution are entitled to a prompt examination and determination by an examining judge. MCL 766.1; MCR 6.110(A). There is no federal constitutional right to a preliminary examination. People v Hall, 435 Mich 599, 603 (1990) (citation omitted). “‘In Michigan, the preliminary examination is solely a creation of the Legislature—it is a statutory right.’” Id. (citations omitted).
MCL 766.1 provides, in relevant part:
“The state and the defendant are entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is the duty of all courts and public officers having duties to perform in connection with an examination, to bring it to a final determination without delay except as necessary to secure to the defendant a fair and impartial examination.”
MCL 766.4(4) provides, in part, that “[i]f a plea agreement is not reached and if the preliminary examination is not waived by the defendant with the consent of the prosecuting attorney, a preliminary examination shall be held as scheduled unless adjourned or waived under [MCL 766.7].”2 See also MCR 6.110(A), which provides, in part:
“Where a preliminary examination is permitted by law, the people and the defendant are entitled to a prompt preliminary examination. . . . Upon waiver of the preliminary examination, the court must bind the defendant over for trial on the charge set forth in the complaint or any amended complaint.”
“An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his [or her] statutory right to an examination.” MCL 767.42(1).
B.Right to Preliminary Examination on New Charges Added By Amendment of Information
Amendment of an information without an additional preliminary examination may be permissible where the proofs presented at the initial preliminary examination would have supported a bindover on the charge sought to be added, if the amendment does not “cause[] unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend.” People v Hunt, 442 Mich 359, 363-365 (1993) (noting that the examining magistrate “is not bound by the limitations of the written complaint[]” and holding that the district court erred in denying the prosecution’s motion to amend the information to charge a greater offense at the conclusion of the preliminary examination) (citations omitted). See also People v McGee, 258 Mich App 683, 693, 696-697 (2003) (in the absence of unfair surprise or prejudice, the defendant had no right to a preliminary examination on a new charge added by amendment of the information after the defendant waived preliminary examination on the original charge); People v Fortson, 202 Mich App 13, 15-17 (1993) (“the trial court [did not err] in allowing the prosecutor to amend the information to add [a] count even though [the] defendant was never bound over on such a charge[]” where the proofs adduced at the preliminary examination supported the new charge and the trial court’s refusal to remand the case for another preliminary examination did not result in unfair surprise, inadequate notice, or an insufficient opportunity to defend).
C.Right to Preliminary Examination Following Grand Jury Indictment
A defendant does not have a substantive right to a preliminary examination following a grand jury indictment. People v Glass, 464 Mich 266, 271, 282-283 (2001). See also MCR 6.112(B) (“[a]n indictment is returned and filed without a preliminary examination”).3 However, “if a criminal process begins with a one-man grand jury” under MCL 767.3 and MCL 767.4, “the accused is entitled to a preliminary examination before being brought to trial.” People v Peeler, 509 Mich 381, 400 (2022); People v Robinson, ___ Mich App ___, ___ (2024) (“[A]n indictment via one-man grand jury, although erroneous under Peeler, does not deprive the circuit court of subject-matter jurisdiction.”).4
D.No Right to Preliminary Examination for Fugitive From Justice
“An information may be filed without a preliminary examination against a fugitive from justice[.]” MCL 767.42(2). See also MCR 6.112(B), which states, in part, that “[u]nless the defendant is a fugitive from justice, the prosecutor may not file an information until the defendant has had or waives a preliminary examination.”
E.Juvenile’s Right to a Preliminary Examination5
1.Right to a Preliminary Examination in Automatic Waiver Cases6
A prosecutor who “has reason to believe that a juvenile 14 years of age or older but less than 18 years of age has committed a specified juvenile violation”7 may file a complaint and warrant in district court, which divests the family division of the circuit court of jurisdiction. MCL 764.1f(1); MCL 712A.2(a)(1). A juvenile has a right to a preliminary examination in such a case (known as an “automatic waiver” case), and the prosecutor must follow the same preliminary examination procedures as are applicable for adult defendants charged with criminal offenses. See MCR 6.901(A) (the rules in subchapter 6.900 governing automatic waiver cases “take precedence over, but are not exclusive of, the rules of procedure applicable to criminal actions against adult offenders”); see also MCR 6.911(A) (governing waiver of preliminary examination by a juvenile represented by an attorney); MCR 6.911(B) (governing transfer to the family division of circuit court following preliminary examination if the examining magistrate “finds that there is no probable cause to believe that a specified juvenile violation occurred or . . . that the juvenile committed the specified juvenile violation, but that [probable cause exists to believe that the juvenile committed] some other offense . . . that if committed by an adult would constitute a crime”).
2.Right to a Preliminary Examination in Designated Proceedings8
A designated proceeding is “a proceeding in which the prosecuting attorney has designated, or has requested the [Family Division] to designate, the case for trial in the [Family Division] in the same manner as an adult.” MCR 3.903(A)(6).
Pursuant to MCL 712A.2d(4), a juvenile has the right to a preliminary examination in some designated cases:
“If the petition in a case designated under [MCL 712A.2d] alleges an offense that if committed by an adult would be a felony or punishable by imprisonment for more than 1 year, the court shall conduct a probable cause hearing not later than 14 days after the case is designated to determine whether there is probable cause to believe the offense was committed and whether there is probable cause to believe the juvenile committed the offense. . . . A probable cause hearing under this section is the equivalent of the preliminary examination in a court of general criminal jurisdiction and satisfies the requirement for that hearing. A probable cause hearing must be conducted by a judge other than the judge who will try the case if the juvenile is tried in the same manner as an adult.”
The Michigan Court Rules refer to the probable cause hearing required under MCL 712A.2d(4) as the “preliminary examination.” See MCR 3.903(D)(5); MCR 3.953(A).9
3.Preliminary Examinations in Traditional Waiver Cases10
“If a juvenile 14 years of age or older is accused of an act that if committed by an adult would be a felony, the judge of the [Family Division] in the county in which the offense is alleged to have been committed may waive jurisdiction under [MCL 712A.4] upon motion of the prosecuting attorney. After waiver, the juvenile may be tried in the court having general criminal jurisdiction of the offense.” MCL 712A.4(1). The probable cause determination made pursuant to MCL 712A.4(3) “satisfies the requirements of, and is the equivalent of, the preliminary examination[.]” MCL 712A.4(10).11
1 See the Michigan Judicial Institute’s checklist for conducting a preliminary examination.
2 See Section 7.11(B) for discussion of adjournment of the preliminary examination.
3 See Section 3.36 for discussion of grand jury proceedings.
4 See Section 2.2 for discussion of subject-matter jurisdiction.
5 The scope of this section is limited to discussing whether a juvenile has the right to a preliminary examination. Preliminary examination rules specific to cases involving a juvenile are beyond the scope of this benchbook. For a full discussion of preliminary examination requirements in proceedings involving a juvenile, see the Michigan Judicial Institute’s Juvenile Justice Benchbook.
6 See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 16, for more information on automatic waiver proceedings.
7 For enumerated specified juvenile violations, see MCL 600.606(2)(a)-(i); MCL 712A.2(a)(1)(A)-(I); MCL 764.1f(2)(a)-(i).
8 See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 15, for more information on designated proceedings, including the procedures and rules regarding preliminary examinations.
9 The probable cause hearing (preliminary examination) required under MCL 712A.2d(4) should not be confused with the probable cause conference that is required, in addition to the preliminary examination, in courts of general criminal jurisdiction under MCL 766.4(1) (as amended by 2014 PA 123, effective May 20, 2014). Because the proceedings in a designated case “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction,” MCL 712A.2d(7), the probable cause conference requirement under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules governing designated proceedings, including MCR 3.951, have not been amended to reflect the amendment of MCL 766.4(1); therefore, it is unclear to what extent the probable cause conference requirement applies to designated cases.
Additionally, the preliminary examination should be distinguished from the probable cause hearing required under MCR 3.935(D), MCR 3.951(A)(2)(d), and MCR 3.951(B)(2)(d) for the pretrial detention of a juvenile.
See the Michigan Judicial Institute’s Juvenile Justice Benchbook for more information on these hearings.
10 See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 14, for more information on traditional waiver proceedings.
11 Effective May 20, 2014, and applicable to cases in which the defendant is arraigned in district court on or after January 1, 2015, 2014 PA 123 amended MCL 766.4 to require the court, “[e]xcept as provided in . . . MCL 712A.4,” to schedule, at arraignment for a felony charge, “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1) (emphasis supplied); see also 2014 PA 123, enacting section 1; MCR 6.104(E)(4).