Felonious Assault Preliminary Exam - Your Only Opportunity to Challenge the State's Case Prior to Trial . . .
If you or someone you know has been Arraigned on a Michigan Felonious Assault charge (also called a Michigan Assault With a Dangerous Weapon charge), the next court date will be either a Pre-Exam Conference or, more likely, the Felonious Assault Preliminary Exam, also called the Felonious Assault Preliminary Examination.
The Felonious Assault Preliminary Exam is a "Mini Trial" in District Court that is the result of your right, under Michigan law, to have a Michigan Felonious Assault charge against you dismissed if the Prosecution cannot show Probable Cause that a Michigan Felonious Assault was committed, and that you are the person who committed it.
There is no Jury at the Felonious Assault Preliminary Exam (only the Judge), and the Prosecution only has to prove you guilty by the low standard of "Probable Cause" as opposed to the much higher Trial standard of "Beyond a Reasonable Doubt." The Prosecution must put your accuser on the witness stand (at a minimum) and question them to establish the 4 "Elements" of a Michigan Felonious Assault Charge. Your Michigan Felonious Assault Attorney can then Cross-Examine them to destroy their testimony.
The key Question is: should you "Hold" or "Waive" the Felonious Assault Preliminary Exam?
All you have to do is sit in any Michigan District Court on Preliminary Exam day and you'll hear many lawyers say this sentence: "Your Honor, I've discussed the matter with my client, and we've decided to Waive the Felonious Assault Preliminary Exam and consent to be Bound-Over to Circuit Court for further proceedings." What that lawyer has just done is given-up that precious right of yours, relieved the Prosecution of its duty to have your accuser and other witnesses appear and testify, and agreed that there is Probable Cause to believe you violated the Michigan Felonious Assault law, MCL 750.82.
Your Lawyer may tell you to Waive the Felonious Assault Preliminary Exam because "they could increase your charges," or "they could increase your Bond and lock you up again." But this choice is actually YOURS - so are these just the words of a lazy lawyer who doesn't want to fight, or is this advice legitimate? It depends. [click this link for another article on the decision to Waive or Hold your Felonious Assault Preliminary Exam].
Here are A FEW of the possible advantages and disadvantages of "Holding" (the opposite of Waiving):
- Advantage: If your Felonious Assault Lawyer is prepared (10 hrs. minimum to get ready), it shows the Prosecution that you are serious about fighting the Felonious Assault charge, and that you could stand a chance of winning at Trial, rather than having a Lawyer that just gets on their knees and begs for a "deal." In-fact, it is your ONLY opportunity to actively challenge the Prosecution's evidence in a Courtroom setting before Trial.
- Disadvantage: You'll have to find a Lawyer that is willing to take the time to receive and review all evidence in your case and prepare every single question for every single witness as if it were an actual Trial. This is exceedingly RARE.
- Advantage: Your Michigan Assault Lawyer will be able to use the Felonious Assault Preliminary Exam as an opportunity to Cross-Examine your accuser and any other Prosecution witnesses. This is the beginning of building a truly successful Michigan Felonious Assault Defense. You also have the right to call your own witnesses to testify on your behalf. The hearing produces a Transcript of all testimony under oath, and it can later be used at Trial to predict a witness's testimony and hold them to it by "impeaching" them if they try to change their story.
- Disadvantage: You will have to sit in Court and endure emotional testimony from the person claiming you committed Felonious Assault upon them.
- Advantage: At the conclusion of the Preliminary Exam, if the Prosecution hasn't presented enough evidence, or your Michigan Felonious Assault Lawyer's Cross-Examination has torn apart what they did present, such that each of the 4 Elements of a Michigan Felonious Assault charge have not been supported by Probable Cause, you are entitled to a dismissal of the Felonious Assault (Assault With a Dangerous Weapon) charge, right then and there at the Felonious Assault Preliminary Exam.
- Disadvantage: It is very hard to convince a District Court Judge to dismiss a Felonious Assault charge at the Felonious Assault Preliminary Exam. If you are going to Hold the Exam, do it for the Advantages listed above. Also, there are rare cases where it is evident that the testimony that would come out could support Probable Cause for other criminal charges which the Prosecution could ask to be added at the end of the Exam. Also, if the evidence convinces the Judge that there are factors that make you dangerous or a flight risk (things the Judge didn't know about at your Arraignment), they could increase your Bond. But these cases are RARE (contrary to what the Lazy Lawyer would have you believe).
Still reading this article? You could be talking to an experienced Michigan Felonious Assault Lawyer instead - someone who can give an instant opinion on whether or not holding the Felonious Assault Preliminary Exam is a good idea. Overall, we believe that it is worth it to Hold the Felonious Assault Preliminary Exam. Get real answers to your unique questions by calling Prain Law, PLLC anytime at (248) 731-4543. Or, fill out the Contact Form.