Originally posted on 11/5/2019 (reformatted).

 Today is your client’s preliminary exam. A preliminary examination is a preliminary hearing in which the prosecution must show by a probable cause standard that a felony was committed and the Defendant committed it. A Defendant’s right to preliminary examination is a statutory right.  Meaning that this right is created by legislature and not a fundamental right guaranteed by the United States Constitution. People v Johnson, 427 Mich 98, 103, 398 NW2d 219 (1986). A Defendant in a felony case has a right to hold their preliminary exam within 14 days of the arraignment on the warrant. MCL 766.4, MCR 6.10(E)(4). In addition, another timeline for the preliminary exam exists and the preliminary exam must be held no less than five days or more than seven days after the date of the probable cause conference which must be held not less than seven days or more than 14 days after the date of arraignment. MCL 766.4(1).   

    Now that you are prepared to proceed to exam, however, the prosecution is seeking a good cause adjournment. What exactly constitutes good cause in a criminal case? There are several cases that deal with good cause adjournments of preliminary exams. In People v Bukner, 144 Mich App 691, 694, 375 NW2d 794 (1985), the Court of Appeals found that good cause exists when the alleged victim is hospitalized. Illness is also considered good cause. People v Brown, 19 Mich App 66, 68, 172 NW2d 58 (1969) The court has also found that if a police officer is on vacation good cause exists to adjourn the preliminary exam. People v Horne, 147 Mich App 375, 383, 383 NW2d 794 (1985). Good cause also exists when there are scheduling conflicts of counsel. People v Lewis, 160 Mich App 20, 32, 408 NW2d 94 (1987). Further good cause can be shown when appointed counsel needs time to gain familiarity with the case before holding a preliminary examination. People v Eddington, 77 Mich App 177, 1860190, 258 NW2d 183 (1977).  Most of the above are understandable reasons for adjournments of preliminary exams. The Michigan Supreme Court in People v Den Uyl, 320 Mich 477, 488, 31 NW2d 699 (1948) held that witnesses who were absent by likely to be produced and to testify constitutes a good cause adjournment. 

    The question is just how far does this reach. If you practice criminal defense you will come across situations where the prosecution fails to personally serve a subpoena on a witness and the witness does not appear. Does this constitute good cause? In People v Den Uyl at 494 the Michigan Supreme Court held that there must be a probability, as distinguished from a mere possibility, that the witness can be had at the time to which the examination is deferred, and that he will testify. Therefore, if the prosecution fails to subpoena the witness and no contact has been made to give the prosecution the probability of the witness appearing a good cause adjournment should not be granted. It is incumbent upon Defense attorneys to state this specific objection to the adjournment request on the record. Often times when Defendants are incarcerated this adjournment can lead to increased hardship on the Defendant.  Defendants have lost jobs, homes, and suffered other irreparable injury from serving additional time in jail awaiting a preliminary examination.  My hope is that in the future fewer defendants suffer the irreparable harm that is occurring across the state.

Elisha Oakes

The Law Office of Elisha M. Oakes, PLLC

Saint Clair Shores, MI