When a person is charged with a felony in Michigan, one of the first hearings that takes place is the preliminary exam when the case is in district court. At the preliminary exam, the prosecution has to show probable cause to support that (1) a crime was committed, and (2) that the accused person committed the crime. This is a very low burden, and after the hearing, if the prosecution has satisfied the burden, the case is then bound over to circuit court. The remaining court hearings will take place in circuit court. Criminal defendants have a right to hold the hearing where testimony is taken, or simply waive it.
In a criminal sexual conduct case, the preliminary examination is one of the most important hearings. This is particularly true when the allegations involve long periods of times that have elapsed since the alleged event, and when children are the complaining witnesses. At Smith Lehman, we work with our clients to truly understand the ins and outs of the case before the preliminary examination. It is our chance to test our ideas and see if our overall strategy is accurate. This is the one time prior to trial where the complainant has to testify – even when it is a young child involved. Hearsay of the complainant is not used in place of live testimony from the alleged victim.
Why Some Lawyers Do Not Hold Preliminary Exams
There are lawyers who are terrified to hold preliminary examinations. They will simply encourage their client to waive the exam and let the matter be bound over to circuit court. Many lawyers simply don’t know what to do and they are overwhelmed at the overall consequences and high stakes of the case.
There are also always two risks that must be considered in determining whether or not to hold the exam. The first is whether holding the exam could cause the client’s bond to get raised to a point where they would have to remain in jail until the end of the case. Often, while this option is of course awful, the rewards outweigh the risk. The other reason to consider not holding an exam is when the charges can get raised against the accused or if more counts get added on. To be honest, this concerns us far less. The stakes are so high on one charge, that adding on more do not really change the overall risk.
An exception to this rule is when a client is charged with only touching a child under the age of 13 and penetration is not on the table. If penetration is alleged during the exam, the charges can be amended to first degree criminal sexual conduct instead of second degree criminal sexual conduct….and this adds on a 25-year mandatory minimum prison term. Additionally, if multiple penetrations are alleged in the same period of time…the 25 year terms can be stacked on top of one another. For some clients, this simply doesn’t matter because they are too old to realistically serve even one 25-year sentence.
Deciding to Hold an Examination
Our office mostly holds exams unless there is good reason not to. Sometimes, we represent people who simply want to minimize the damage after they have committed a crime, and it helps their case to not inflame the prosecution and complainant by making them testify when the goal is to work the case out. The hearing, however, is truly the first time the lawyer gets a feel for the complaining witness. A good lawyer will learn so much from this experience, it is difficult to describe. By seeing the energy of the witness and seeing how they react to different ways of questioning, our office is often able to determine the best strategy for trial when a jury will actually be watching. Sometimes the exam is a great opportunity to make the complainant feel like testifying will be simple…until they get caught off guard and cross-examined at trial. Sometimes it is critical to lock the witness into certain facts that the defense can later prove are absolutely inaccurate.
The decision to hold an exam or not is not one we make lightly. It requires intense preparation and time to look at all angles of what is possible. One thing is true, however. When we are able to do the exam, our trial outcomes tend to be more successful. We gain a real advantage by seeing the complainant testify. Sometimes our client’s idea about why an allegation is being made is completely wrong. In one case, for example, our client said the complainant just wanted attention and had accused him as a result. At the exam, we learned that the girl had really gotten an STD and did not want to admit who gave it to her. It was easier to claim she had been a victim. Suddenly her mom was not mad that she was sexually active, and instead of being in trouble, the world surrounded her to support her. Our client, by the way, had never had an STD which was helpful to show at trial. We were able to show the young woman’s true motive in making the claim. If we had not held the exam and asked the right questions we may have had a good strategy…but it’s always stronger when you have it exactly right.
Speak With a Skilled Attorney About Preliminary Exams
If you are facing felony charges for criminal sexual conduct in Michigan, call us to review your case. We will help you determine the best course of action. At Smith Lehman we are not afraid to step into a preliminary exam and do what we need to do to help save our client. We have a tremendous amount of experience with child complainants, teenagers, and people from all walks of life. While every case is unique, understanding the relationship between the accused and the accuser is a foundational issue that must be explored through questioning. It gives our office a real advantage later as we prepare for and proceed to trial.