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When a Preliminary Examination Should be Waived and When a Preliminary Examination Should Not Be Waived

When a Preliminary Examination Should be Waived and When a Preliminary Examination Should Not be Waived

Posted 5 years ago by Jim Titus


In many cases, the second main court appearance after an arraignment is the preliminary examination, also known as the probable cause hearing. The preliminary examination of the evidence against the defendant is like a mini-trial, but without a jury. Very often, the preliminary examination will be waived, allowing the case to proceed directly to the circuit court rather than basically having it tried twice. Knowledgeable attorneys will know when a preliminary examination should be waived and when a preliminary examination should not be waived. Here are some factors that the attorneys will consider.

When a Preliminary Examination Should Be Waived and When a Preliminary Examination Should Not Be Waived

The purpose of a preliminary examination is to determine if a felony has been committed and if there is “probable cause” to believe the defendant committed the felony, as stated by the Hettinger & Hettinger Law Firm.

As described on the Criminal Defense Lawyer site published by NOLO, your attorney would be the best person to advise you when a preliminary examination should be waived and when a preliminary examination should not be waived.

However, here are some factors regarding why someone might want to waive the preliminary examination.

When a Preliminary Examination Should be Waived and When a Preliminary Examination Should Not be Waived

• If the defendant plans to plead guilty, waiving the preliminary examination could save time and expenses.

• If a defendant believes witnesses will refuse to testify, waiving the preliminary examination might be a smart move. The reason is that the prosecuting attorney would have little to go on during the actual trial.

• In some cases, a preliminary examination could lead to more charges. This is especially prevalent in sex crime cases.

• Details that are discussed during a preliminary examination could make the case worse for the defendant.

• A prosecutor threatens to pull a plea bargain off the table if an examination is held, as noted by the Abdo Law Firm.

In other cases, however, it might be smarter not to waive the preliminary examination. Following are some of those scenarios, as described on the Criminal Defense Lawyers website and other sources.

• It’s a good idea to hold the preliminary examination if there’s a chance the case will be dismissed entirely as a result.

• Details that arise during the preliminary examination could benefit the defendant.

• It’s important to get specific details on the record to be used later in the case.

• Running the preliminary examination could expose the prosecution’s weaknesses.

• There’s no known benefit of waiving the preliminary examination, as noted on the Avvo.com website.

• The defense lawyer would learn more about the prosecutor’s case.

Statistics Regarding Preliminary Examinations

Preliminary examinations are waived approximately 75 percent of the time, according to research linked to the Washtenaw County website.

Further, in cases where the preliminary examination is held, almost all of them are bound over to the circuit court.

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When a Preliminary Examination Should be Waived and When a Preliminary Examination Should Not be Waived

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