Preliminary exam, discovery, searches and Miranda in Michigan

A probable cause conference is a pretrial meeting in district court that both sides are entitled to unless both waive it. Under MCR 6.108, it covers possible plea agreements and other pretrial matters, including bail and bond modification. It is set 7 to 14 days after arraignment under MCR 6.104(E)(4), with the preliminary examination 5 to 7 days after that.

A district court magistrate may conduct the conference if the chief district judge authorizes it, but may not take pleas or impose sentences unless the law allows. The district judge must be available to take pleas, consider bond modification, and, if the prosecutor asks, take a victim's testimony. If the conference is waived, the parties must give the court written notice and say whether they will have a preliminary examination, waive it, or enter a plea. Codefendants arraigned at least 72 hours before the conference are generally consolidated into one conference. In practice this is an early chance to talk with the prosecutor about the facts, the charge, and any offer, and to gather information before you decide anything. No one can make you accept an offer made at the conference, because a plea must be voluntary under MCR 6.302.

Authority: MCR 6.108; MCR 6.104; MCR 6.302. Reviewed Oct. 27, 2026.

A preliminary examination is a district court hearing at which the prosecutor must show probable cause that a felony was committed and that you committed it. Under MCR 6.110(C), the prosecutor and defense may subpoena and call witnesses, offer proofs, and examine and cross-examine witnesses, and the court must follow the Michigan Rules of Evidence, with limited statutory exceptions for some reports and records (MCL 766.11b).

Both sides are entitled to a prompt examination, and it is held on the date set at arraignment unless adjourned. If a party objects, the court may not adjourn without a finding of good cause on the record. A verbatim record is made. Under MCL 766.11b, some reports and records come in without the author testifying, such as drug field test reports, lab, medical and autopsy reports, and certified court records, but not the police investigative report. If hearsay is introduced, the court must allow either side to call the hearsay witness on a satisfactory showing that live testimony will be relevant. The standard is probable cause, which is lower than proof beyond a reasonable doubt. The value for you is often the cross-examination: it locks in testimony and shows weaknesses before trial. On the prosecutor's request, the victim's testimony can be taken early, at the time set for the probable cause conference, to preserve it. Codefendants are generally examined together at one joint examination.

Authority: MCR 6.110; MCL 766.11b. Reviewed Oct. 27, 2026.

You can waive it only with the prosecutor's consent, under MCR 6.110(A). On waiver the court must bind you over for trial on the charge in the complaint or any amended complaint. Whether to waive depends on your case, because waiving gives up the hearing but sometimes comes with something in return.

Waiving ends your chance to cross-examine the prosecution's witnesses under oath at the district court stage and to ask the judge to find no probable cause. Reasons people sometimes waive include a negotiated reduction of a charge, a sentence agreement, or a desire to avoid a victim having to testify, but each of those is a judgment call, not a rule. The probable cause conference is the usual time when waiver is discussed. If the prosecutor offers a deal that depends on waiving, the terms should be on the record or in writing before you waive. If you are bound over after an examination, MCR 6.110(H) lets the circuit court dismiss the information or remand the case if it finds a violation of the examination rules in subrules (C) through (F). If you waive the examination, no examination takes place, so there is nothing for those rules to apply to. Do not decide until you and your lawyer have read the police report.

Authority: MCR 6.110. Reviewed Oct. 27, 2026.

Bindover means the district court judge found probable cause to believe a felony was committed and that you committed it, so the case moves to circuit court. Under MCL 766.13, the magistrate binds you over to appear within 14 days for arraignment in circuit court, or may conduct the circuit arraignment as court rule provides.

A bindover, or a waiver of the preliminary examination, is what gives the prosecutor authority to file an information in circuit court. MCR 6.112 says the prosecutor may not file the information until you have had or waived a preliminary examination, unless you are a fugitive. The court transmits the case file, recognizances, and the register of actions to the circuit court under MCR 6.110(G). If the circuit judge later finds that the district court violated the examination rules, MCR 6.110(H) lets the circuit court dismiss the information or send the case back to district court. A bindover is not a finding of guilt. It means there was enough evidence to proceed, and the real contest over the evidence comes later through motions and trial.

Authority: MCL 766.13; MCR 6.110; MCR 6.112. Reviewed Oct. 27, 2026.

The judge must discharge you without prejudice or reduce the charge to an offense that is not a felony, under MCR 6.110(F) and MCL 766.13. Without prejudice means the prosecutor can start over for the same offense, but the new examination generally must be held before the same judicial officer with additional evidence.

The rule makes the restart conditional: except as MCR 8.111(C) provides, the later preliminary examination must be before the same judicial officer, and the prosecutor must present additional evidence to support the charge. If the judge reduces the charge to a non-felony, the case proceeds in district court as though you had been charged with that offense from the start (MCR 6.110(E), (F)). A discharge is therefore helpful but not final. Keep following any bond or release conditions until the court confirms in writing that they are vacated. Ask for a written copy of the order, and ask your lawyer to explain what the prosecutor can do next, what dates are set, and what happens to your bond. If the case is reduced instead of discharged, the next court dates and the new maximum penalty change, so confirm both.

Authority: MCR 6.110; MCR 8.111; MCL 766.13. Reviewed Oct. 27, 2026.

The prosecutor must file the information on or before the date set for the arraignment. The information sets out the substance of the accusation and the name, statutory citation, and penalty of each offense, with a list of known witnesses attached. At the arraignment, unless you waive it, the court states or reads the charge and you enter a plea (MCR 6.113(B), 6.301(A)).

MCR 6.112 requires the information to be signed by a prosecutor and to attach a list of all witnesses known to the prosecutor who may be called at trial and all res gestae witnesses known to the prosecutor or investigators. If you stand mute or refuse to plead, the court enters a not guilty plea under MCR 6.301(A). A prosecutor who wants to enhance your sentence as a habitual offender has 21 days after the arraignment on the information to file notice, under MCR 6.112(F) and MCL 769.13. You may ask the court for a bill of particulars describing the essential facts of the alleged offense. The court may allow the prosecutor to amend the information before, during, or after trial unless the amendment would unfairly surprise or prejudice you. A not guilty plea places every material allegation in issue and lets you raise any defense that has not been waived (MCR 6.301(A)).

Authority: MCR 6.112; MCR 6.301; MCL 769.13; MCR 6.113. Reviewed Oct. 27, 2026.

On request, MCR 6.201(C) requires the prosecutor to give you any exculpatory information known to the prosecutor, police reports and interrogation records, statements by you, a codefendant, or an accomplice, search warrant papers, and any plea or immunity agreement for testimony. MCR 6.201(A) separately requires both sides, on request, to disclose trial witnesses, witness statements, reports from witnesses who will give opinion testimony, and physical evidence they may use.

The police report is subject to exceptions: parts concerning a continuing investigation may be withheld, and identifiers such as Social Security, driver's license, or financial account numbers may be redacted. Each side must comply within 21 days of a request, and the duty to disclose continues, so new material must be promptly passed along without a further request. A witness list may be amended without leave up to 28 days before trial. Privileged material is not discoverable, though MCR 6.201(D)(2) requires the court to review privileged records in camera when the defense shows, with articulable facts, a good-faith belief that there is a reasonable probability the records are likely to contain material information necessary to the defense. If a party does not comply, the court may order disclosure, grant a continuance, bar undisclosed evidence, or enter another just order. Make your request in writing and keep a copy.

Authority: MCR 6.201. Reviewed Oct. 27, 2026.

Suppression of favorable evidence violates due process when the evidence is material to guilt or punishment, whether the prosecution acted in good faith or bad faith. That is the rule of Brady v Maryland. In Michigan, MCR 6.201(C)(1) also requires the prosecutor, on request, to provide any exculpatory information or evidence known to the prosecuting attorney.

Making a specific written request matters. It triggers the 21-day deadline in MCR 6.201(G) and the continuing duty in MCR 6.201(I) to promptly disclose newly discovered information. If the prosecutor does not comply, MCR 6.201(K) lets the court order the discovery, grant a continuance, bar the prosecutor from introducing undisclosed material, or enter any other order it considers just, and the rule encourages parties to raise noncompliance at the earliest opportunity. Whether a violation changes the result depends on how material the evidence was. Requests often cover criminal histories and benefits given to witnesses, plea or immunity agreements, prior inconsistent statements, lab and testing notes, and body camera or dash camera video, because those are common places favorable information turns up.

Authority: Brady v Maryland, 373 US 83 (1963); MCR 6.201. Reviewed Oct. 27, 2026.

Once you request it in a pending case, yes, with limits. MCR 6.201(C) requires the prosecutor to provide any police report and interrogation records, except parts concerning a continuing investigation, plus any affidavit, warrant, and return pertaining to a search or seizure in the case. A search warrant affidavit in a court file is nonpublic until the 56th day after the warrant issues, unless a suppression order extends that.

Under MCL 780.651(8) and (9), a search warrant affidavit in any court file is nonpublic until the fifty-sixth day after the warrant issues, when it becomes public unless a peace officer or prosecutor gets a suppression order, on a sworn showing that it is needed to protect an ongoing investigation or a victim's or witness's privacy or safety. Those provisions do not affect your right to request a copy from the prosecutor or police under the Freedom of Information Act. MCL 780.654(3) also lets a magistrate order the affidavit kept from the person searched until that person is charged or named in a civil forfeiture. Redactions are allowed, and on motion the court must hold an in camera hearing to decide whether the reasons for an excision are justifiable. Ask for the warrant, the affidavit, and the return together, and compare the dates on them with the date of the search.

Authority: MCR 6.201; MCL 780.651; MCL 780.654. Reviewed Oct. 27, 2026.

Common ones include a motion to dismiss or remand for violations of the preliminary examination rules (MCR 6.110(H)), a motion to suppress evidence, a motion to compel discovery or for sanctions (MCR 6.201(K)), a motion for a bill of particulars (MCR 6.112(E)), a motion to modify bond (MCR 6.106(H)), and a speedy trial motion under MCR 6.004.

If the case has a habitual offender notice, a defendant can also file a written motion challenging the accuracy or constitutional validity of a listed prior conviction under MCL 769.13(4). A motion to suppress asks the court to exclude evidence from an unlawful search, seizure, or interrogation. Which motions make sense depends on the facts, the police report, and the discovery you receive, so the file should be reviewed before deciding what to file. Timing matters: the court's scheduling order, the plea deadlines it sets, and the 21-day discovery turnaround all affect when a motion should be filed. Pretrial motions can also affect plea discussions, but they can also delay the case, and delay counts differently for jail-release purposes under MCR 6.004(C), which excludes delay caused by pretrial motions.

Authority: MCR 6.110; MCR 6.201; MCR 6.112; MCR 6.106; MCR 6.004; MCL 769.13. Reviewed Oct. 27, 2026.

A motion to suppress asks the court to exclude evidence the police obtained unlawfully. Under Mapp v Ohio, evidence obtained by a search or seizure that violates the Constitution is generally inadmissible in a state court, subject to recognized exceptions, and under Miranda v Arizona the prosecution generally may not use statements from custodial interrogation unless it shows the required safeguards were followed.

Typical grounds are a stop without reasonable suspicion, an arrest without probable cause, a search without a valid warrant or exception, an invalid or overbroad search warrant, a coerced or involuntary statement, or an interrogation without Miranda warnings. The court may hold an evidentiary hearing where the officers testify, and your lawyer can cross-examine them. If the court suppresses the key evidence, the prosecutor's case may change, but that outcome is not certain. The motion is decided on the facts at the time of the police action. Take notes on how the stop or search happened, who was present, and any recordings, because body camera and dash camera footage can be important evidence on these motions. Tell your lawyer early about any stop, search, or questioning you think was unlawful, so the motion can be filed on time.

Authority: Mapp v Ohio, 367 US 643 (1961); Miranda v Arizona, 384 US 436 (1966). Reviewed Oct. 27, 2026.

Generally yes. In Riley v California, the United States Supreme Court held that police must get a warrant before searching the digital contents of a cell phone seized incident to an arrest. That holding binds Michigan courts. Other exceptions, such as consent or a genuine emergency, may still apply depending on the facts.

Riley addressed the search-incident-to-arrest exception: the Court said the answer to what police must do before searching a phone seized that way is simple, get a warrant. If officers searched your phone without a warrant, the questions to ask include whether you consented, what the officers said, whether any recognized exception applied, and what they found. If officers did get a warrant, the usual search warrant requirements in MCL 780.651 and 780.654 apply, including a sworn affidavit showing probable cause and a description of the place to be searched and things to be seized. You are generally better off not unlocking a phone or giving out a passcode without talking to a lawyer first. An unlawful phone search can lead to a motion to suppress.

Authority: Riley v California, 573 US 373 (2014); MCL 780.651; MCL 780.654. Reviewed Oct. 27, 2026.

Yes, if your consent is voluntary. Under Schneckloth v Bustamonte, whether consent was voluntary is a question of fact decided from all the circumstances, and knowing you had a right to refuse is only one factor. A valid consent removes the need for a warrant, which is why officers ask.

Courts look at the whole encounter and the circumstances in which consent was given, so the details matter: what the officers said, how many were present, where you were, and your condition at the time. You are not required to consent, and you can decline politely and clearly. If officers say they will get a warrant anyway, a warrant still requires a judge to find probable cause, and consent remains your choice. If you consented and evidence was found, a motion to suppress can challenge whether the consent was truly voluntary. If officers searched without a warrant and without consent, other exceptions may still apply, so the answer depends on the facts. Because these questions turn on details, write down what was said as soon as possible, note any body camera, and tell your lawyer before you speak to anyone else about it.

Authority: Schneckloth v Bustamonte, 412 US 218 (1973). Reviewed Oct. 27, 2026.

Under MCL 780.651, a judge or district court magistrate must receive a sworn affidavit establishing grounds and be satisfied there is probable cause before issuing a warrant. Under MCL 780.654, the warrant must be directed to a sheriff or peace officer, must describe the place to be searched and the things to be seized, and must state its grounds or attach the affidavit.

The affidavit can be made by electronic means if the judge orally administers the oath and the affiant signs it, and the judge can issue the warrant electronically, signing from any location in the state. The officer must receive proof of the judge's signature before executing the warrant. A common defense argument is that the affidavit does not give a judge enough facts to find probable cause, or that the warrant describes the place or items too broadly. MCL 780.651(8) and (9) make the affidavit nonpublic until the 56th day after the warrant issues, and longer if a suppression order is obtained. Whether a defect leads to suppression depends on the defect and the facts, and the warrant and the affidavit have to be checked against the statute and the return. Ask for the warrant, affidavit, and return in discovery as soon as you are charged.

Authority: MCL 780.651; MCL 780.654. Reviewed Oct. 27, 2026.

Generally only after giving notice and being refused entry, with limited exceptions. MCL 780.656 lets the officer to whom a warrant is directed, or anyone assisting, break an outer or inner door or window to execute it if, after notice of authority and purpose, the officer is refused admittance, or when necessary to free the officer or someone assisting. The statute is Michigan's knock-and-announce rule.

The statute does not say how long officers must wait after announcing, and it does not say what happens to the evidence if they skip the step. Michigan and federal courts have held that evidence is generally not suppressed only because officers violated the knock-and-announce requirement (People v Stevens, 460 Mich 626 (1999); Hudson v Michigan, 547 US 586 (2006)), so a violation does not usually end a case, though it may support a civil claim for damages. If officers entered your home on a warrant, tell your lawyer exactly what you heard, how long they waited, and whether you or anyone else was home. Keep a copy of the warrant if you were given one, and note what was seized. Officers who search under a warrant are limited by the warrant: MCL 780.654 requires it to describe the place to be searched and the things to be seized, so anything outside those limits can be challenged. The warrant, the affidavit, and the return can be compared with what the officers actually did, and any body camera video is worth requesting, because the timing of the knock and the entry is often visible on it.

Authority: MCL 780.656; MCL 780.654; People v Stevens, 460 Mich 626 (1999); Hudson v Michigan, 547 US 586 (2006). Reviewed Oct. 27, 2026.

Miranda warnings are required before custodial interrogation, meaning questioning by officers after you are in custody or otherwise deprived of your freedom in a significant way. You must be warned that you have the right to remain silent, that anything you say can be used against you in court, that you have the right to an attorney, and that one will be appointed if you cannot afford one.

The warnings are not required just because you are arrested, and they are not required for every conversation with an officer. They apply when two things are present: custody and interrogation. If officers questioned you in custody without warnings, a motion to suppress can ask the court to exclude your statements. Even properly warned statements can be challenged as involuntary. A statement can also be used if you waive your rights, and under Berghuis v Thompkins an uncoerced statement after warnings can establish an implied waiver, so staying silent and asking for a lawyer matters more than hoping the warnings were missed. At arraignment, MCR 6.104(E) also requires the court to advise unrepresented accused persons of the right to remain silent.

Authority: Miranda v Arizona, 384 US 436 (1966); Berghuis v Thompkins, 560 US 370 (2010); MCR 6.104. Reviewed Oct. 27, 2026.

Say it clearly and unambiguously: that you are invoking your right to remain silent and want a lawyer. Under Berghuis v Thompkins, an accused who wants to invoke the right to remain silent must do so unambiguously, so staying quiet alone does not invoke the right, officers may keep asking questions, and a later answer can be treated as a waiver. Under Miranda, once you say you want a lawyer, questioning must stop until a lawyer is present.

The Supreme Court in Berghuis held that Thompkins did not invoke his right to remain silent by staying quiet through hours of questioning, because he never said he wanted to remain silent or end the interview, and his later answers were treated as a waiver. A vague statement such as maybe I should talk to a lawyer may not count. A clear way to say it is: I am invoking my right to remain silent and I want a lawyer. Then stop answering, including small talk and questions about unrelated things. It is generally safer not to sign a waiver form. Once you have asked for a lawyer, tell the officers you will not answer anything without one, and then say nothing more. If an interrogation involves a major felony (generally a felony with a maximum of 20 years or more or life, or third-degree criminal sexual conduct) and the agency has recording equipment, MCL 763.8 requires a recording of the entire interrogation, so the exact words you used can later be checked. Tell your lawyer exactly what you said and when.

Authority: Berghuis v Thompkins, 560 US 370 (2010); Miranda v Arizona, 384 US 436 (1966); MCL 763.8; MCL 763.7. Reviewed Oct. 27, 2026.

For major felonies, yes, when the agency has the equipment. MCL 763.8 requires an officer interrogating someone in custodial detention about a major felony to make a time-stamped audiovisual recording of the entire interrogation, including the Miranda notification. A major felony under MCL 763.7 is a felony punishable by life or by a maximum of 20 years or more, or third-degree criminal sexual conduct, so many lower-level felonies and misdemeanors are not covered. The requirement applies when the law enforcement agency has operational or accessible recording equipment as the statute provides.

You may object to being recorded, and the objection must be documented on the recording or by your signature, but the recording may be made despite your objection or without your knowledge. The recording must be produced with equipment and procedures designed to prevent alteration. On a discovery request the prosecutor must provide a copy to your lawyer, or to you if you have none, and the court does not require the police or prosecutor to prepare or pay for a transcript, though the defense or the court may have one prepared at its own expense. Before conviction or acquittal, a recorded statement is exempt from disclosure under the Freedom of Information Act. If your interrogation was not recorded, or only partly recorded, tell your lawyer. Under MCL 763.9, a failure to record does not by itself bar an officer from testifying about the statement if it is otherwise admissible, but the jury must be instructed that it may consider the absence of a recording in evaluating the statement, unless you objected to recording and the objection was documented.

Authority: MCL 763.8; MCL 763.9; MCL 763.7. Reviewed Oct. 27, 2026.