What is a preliminary examination?

The primary purpose of a preliminary examination is for the judge to determine whether there is probable cause to believe that a felony occurred and that the accused is the person who committed it. The judge must dismiss the charges in question if the government fails to meet that standard of proof. Bind over happens when the government meets that standard of proof for both questions. A bind over means that the case will not be dismissed by the district court and will proceed in front of a different judge in circuit court. A preliminary examination is not available in cases where only misdemeanor charges have been issued.

At a preliminary examination, the government has to present witnesses to support its case. The defense will also have the opportunity to question those witnesses. This is not a trial, so it is a much shorter proceeding. The defense does not have to present any witnesses and often does not.

Every single case is unique. So, the decision to run or waive preliminary examination should only be made after careful consideration of the facts and applicable case law. Notably, even if the defense decides to not hold the examination, the government must also waive its right to run the preliminary examination for an effective waiver to occur.

Holding a preliminary examination allows the defense to challenge and preserve witness testimony. It also gives the defense the opportunity to obtain leads for investigation. Sometimes the government may add additional charges on the basis of testimony elicited during the preliminary examination. Still, the benefits can often outweigh the risks associated with running a preliminary examination. But, again, each case is different and the decision to run or waive a preliminary examination must be carefully considered.