The Preliminary Exam, Part I: The Importance Of Probing The Complaining Witness’s Testimony At A Preliminary Examination To See How Well The Prosecutor’s Narrative Works

It is very important to be fully prepared for the probable cause determination, in Michigan called a preliminary exam. This is nearly always the single most important hearing in any criminal case prior to the trial. There are many reasons for this, starting with the fact that it is the only time prior to trial where the defense gets to hear the complaining witness testify under oath, in a courtroom, and have the opportunity to ask questions and cross examine that witness. Unlike trying to evaluate the prosecutor’s case by reading sterile police reports and witness statements on black and white pieces of paper, or even watching the video of a forensic interview, this is the opportunity to see the prosecutor’s case, and their witnesses, perform live in a courtroom.

At the preliminary exam, the prosecutor asks the complaining witness questions about the alleged crime. Then, the defense gets the opportunity to cross examine the complainant. That accomplishes two things. First, we get test the complaining witness’s story and see what kind of witness they are and how well they withstand both direct and cross- examination in a courtroom. But just as importantly, we are boxing that witness in. We now have the witness’s testimony under oath, which makes this the key time to ask them questions we need answered.

This is why it is so extremely important that the client’s side of the story, the client’s discovery narrative, and the client’s discovery review are all completed prior to the preliminary exam. First, the lawyer must be ready and prepared to force the complaining witness to commit to their version of the facts, under oath; and Secondly be prepared to test the complaining witness’ story and ability to testify in cross examinations. The lawyer must probe the prosecutor’s witness when they testify to see how good of a witness they are. Can they withstand cross-examination? What are the flaws in their story? But of equal importance, you need to be laying the foundation for the defense story too.

Just as with the motion practice, the defense must use the preliminary exam to educate the judge on what on the defense theme and theory of the case. The transcript from the preliminary exam will be used can be used during motion practice – if the preliminary examination transcript favors the defense, if it seriously calls the defendants factual guilt into question causes the judge to consider the strong possibility that the defendant is innocent, then that strengthens your motion practice. At the same time, a weak transcript frequently hinders the filing of strong motions. If the judge reads a motion talking about how unscientific the sexual assault nurse examiner’s examination was, or how bad the forensic interview of this kid was, the preliminary examination transcript is the main source of information for the Circuit Court judge to learn the facts of your case. So if one goal of that motion is to educate the judge, the preliminary exam transcript can help the defense take a step toward getting the judge to your side, to see the case from your point of view. You are trying to capture the judge’s head and his/her heart.

Prepare Your Case Prior To The Preliminary Examination

Every case must be prepared as if it is going to trial, and that process should be completed before the preliminary exam. Preparing every case for trial is the only way to determine whether or not a case can be tried. Certainly not every case can be tried, but you cannot judge a book by its cover. You can’t have a case come into your office and then say, “Oh my God, there’s a videotaped confession, DNA evidence, and eight eyewitnesses. I can’t take this case to trial.” Doing that is a mistake. You have got to go through the client story, discovery narrative, and discovery review process before the trial decision is made. Perhaps, once you have reached the end of that process, you are in a spot where you are thinking there is no way you should take this case to trial. Or perhaps not. The only way you will know is to go through the process.

If you do not go through the process, then you really are judging a book by its cover. You are making the most important decision for your client in the case, with incomplete information. Sex crime charges are probably the most important thing that has ever happened to the client. Your decision, therefore, is far too consequential and significant to base it on insufficient information, on drops of water in the bucket. You have got to fill the bucket all the way up.

Once The Preliminary Examination Is Conducted – Trial Prep Intensifies

Trial preparation process really intensifies after the preliminary exam. The preliminary examination is completed, and we have done the client interviews to vet the client. We have established the client’s story and narrative. We have gone through all the defense investigation with our experts, including our private investigator, and we have contacted our experts (doctors, nurses, computer examiners, and psychologists) to review all the things that they must do. We have identified the problems and have prepared our motions. We do not file the motions until after the preliminary examination, for the most part, but we have identified them, we have drafted them, and we know what they are going to be. The client has gone through the thorough review of the prosecutor’s discovery and police reports. They have given us that discovery narrative, as well as their annotations or footnotes. We have the preliminary examination, during which we get to see the complaining witness testify live, in a courtroom under oath. The defense is ready.

An important part of preparing the case as if we are going to trial is prepping the client from the very first interview to take the witness stand and testify. In most of my cases that do go to trial, my client takes the stand, so that preparation starts on day one.

For more information, a free case strategy session is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.