Overview of Felony Criminal Procedure in Michigan

In Michigan all persons accused of a crime have certain due process rights. There rights arise out of the Michigan and United States Constitutions, and these Constitutional due process rights are instantiated in Michigan’s criminal procedure. What follows is a brief overview of felony criminal procedure in Michigan. If you are charged with a felony in Michigan, then you should discuss each of these steps with a criminal defense lawyer near me so you understand the purpose of all of these due process rights and can make well informed decisions about how to proceed.

Initial Arraignment on the Complaint

A criminal case in Michigan will begin with the authorization of a complaint and the issuance of a warrant. The complaint is the charging document that sets forth the specific criminal law that the government claims has been violated. The warrant is the order that requires the appearance of the accused in court for the arraignment on the complaint. After the arraignment the warrant is set aside, and a bond is set. In very serious cases the prosecutor may request no bond, but that is rare. In the majority of cases a cash bond will be set, along with conditions of bond that must be followed if the accused is able to post bond. In less serious cases the court may order a “personal recognizance” bond, meaning no money is required to be posted.

Probable Cause Conference

The next step in the proceedings in a felony case is called a “probable cause conference.” This hearing is primarily for the purpose of communicating to the court whether a preliminary examination will be required. In this sense it’s like a pretrial.

This probable cause conference procedure is governed by Michigan Compiled Laws § 766.4.  The probable cause conference is intended to do two things; (1) encourage settlement of those cases that can be settled, and (2) help the court determine if a preliminary examination date must be scheduled, and if so, what witnesses will be required at this hearing.

According to the law, the probable cause conference is the time for the prosecuting attorney and defense attorney to determine if the case can be resolved through plea negotiations and for any such plea offer to be communicated to the defendant. Bail or bond is also something that can be discussed and either party can ask the court to modify the initial bond and/or bond conditions set at the initial arraignment on the warrant.

It is also possible for the parties to waive the probable cause conference. Typically, the probable cause conference is scheduled before there has been enough discovery for the defense to make a meaningful determination whether a preliminary examination will actually be required.  Consequently, the initial date is almost always adjourned, but because the preliminary examination must, by law, be conducted within 21 days of the arraignment, the parties must appear in court to waive this 21-day rule.

Preliminary Examination

A preliminary examination is a probable cause hearing where the prosecutor must prove (1) that a crime was committed, and (2) that you committed said crime. The burden of proof at a preliminary examination is quite low that being probable cause. This means the prosecutor need only prove that you probably committed the crime alleged. If the prosecutor meets this burden, then the case is “bound over” or sent to the circuit court for further proceedings.

Both the prosecutor as well as the defense have the right to either demand a preliminary examination hearing or to waive it. However, the preliminary examination cannot be waived unless both parties agree that no testimony is required. In that case the matter will be sent directly to the Circuit Court without further proceedings. The reason the case must be set to the Circuit Court is because the District Court does not have the jurisdiction, meaning the power to act, on a felony matter. Felonies must be resolved at the Circuit Court which is a higher court with broader jurisdiction.

There are many legitimate reasons to either waive or conduct a preliminary examination. Consequently, before agreeing to conduct or a waive a preliminary examination, it is always in your best interest to discuss the advantages and disadvantages of either decision with your attorney. These factors are case specific, and the decision must be based on many factors that are beyond the scope of this article.

However, as a general rule it can be said to that a preliminary examination is beneficial in that it gives the defense attorney the opportunity to cross examine some of the essential witnesses that will later be produced at trial by the prosecuting attorney. In this sense a preliminary examination is similar to a deposition that might occur in a civil case.

One of the primary disadvantages of a preliminary examination is that additional charges can be added to the complaint. If additional charges are added you could end up in a worse position after conducting a preliminary examination than you would have been in had you simply waived the exam. As indicated, these factors are very case specific, and should be discussed at length with your Michigan defense attorney near me prior to deciding how to proceed.

Bind Over and Arraignment on the Information

After the case is bound over to the circuit court, a new judge is assigned. The next step in a felony case will be an arraignment on the information and this will occur before the newly appointed circuit court judge.  This arraignment differs from the first arraignment only because the charges against you can change based on evidence produced or not produced at the preliminary examination.  Otherwise, it is essentially same, and the initial complaint and the warrant will be identical. Once again, bond can be reconsidered at this arraignment. However, in most instances the bond and bond conditions set by the district court judge or magistrate will be continued without change.

Pretrial and Trial

It is possible to plead guilty at the arraignment and the information and many people do so. If the case is not resolved at this point, then the matter will be scheduled for any number of pretrials and eventually trial. Along the way, either party can file a written motion requesting that the court issue in order of relevance to their case. For example, if the defendant believes that the district court judge was wrong in binding the matter over, then the defense attorney might file a motion to dismiss the case. Pretrial motions at this stage often address evidentiary issues that may be important to the way a jury trial is conducted. For example, a motion for an order to suppress evidence, such as a hearsay statement of a government witness could be sought. Another common pretrial motion would be a request for a special jury instruction. Such a motion may be filed by either party.

Once all pretrial issues have been resolved, if a plea bargain of sufficient value has not been offered and accepted, the case will be set for trial.