Lewis Langham, Jr. - Thomas M. Cooley Law School
234 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 years—before the actual trial is heard by a jury or a judge. 14 Preliminary examinations preserve the witnesses’ testimony while the details of the events in question are still fresh in the witnesses’ minds. 15 In practice, in the vast majority of cases, prosecutors are able to meet the low threshold of probable cause by providing the testimony of various witnesses. Generally, if the defendant is bound over for trial, then it is preceded by a pretrial where procedural discussions take place between all of the parties concerning when and how the case will proceed. On many occasions, the defense attorney and the prosecutor may still be able to enter into a plea agreement, eliminating the need for trial entirely. III. LEADING CONSTITUTIONAL CASES ON PRELIMINARY EXAMINATIONS In Coleman v. Alabama, the United States Supreme Court vacated the petitioner’s conviction for assault with intent to commit murder. 16 One of the central questions in Coleman was whether an accused is entitled to an attorney during a preliminary examination. 17 The Court had previously held that “a person accused of crime ‘requires the guiding hand of counsel at every step in the proceedings against him.’” 18 In particular, counsel is appropriate at critical stages of the criminal-justice process. 19 The Court defined a critical stage as any time that “‘substantial prejudice to defendant’s rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice.’” 20 The Court noted that a preliminary examination is clearly a critical stage in the criminal-justice process: First, the lawyer’s skilled examination and crossexamination of witnesses may expose fatal weaknesses in the State’s case that may lead the 14. See Lloyd E. Powell, Examination of the Need for Preliminary Examinations, 85 MICH. B.J., no. 3, Mar. 2006, at 32, 34. 15. Id. at 33. 16. 399 U.S. 1, 3 (1970). 17. Id. 18. Id. at 7 (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)). 19. Id. (quoting Hamilton v. Alabama, 368 U.S. 52, 54 (1961)). 20. Id. at 9 (quoting United States v. Wade, 388 U.S. 218, 227 (1967)).
2011] PRELIMINARY-EXAMINATION REFORM 235 magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail. 21 Although Coleman did not turn on whether a preliminary examination is required in all criminal prosecutions, the Court’s language unambiguously indicates the importance of these hearings. Without them, all of the critical elements that the Court enumerated would be gone. Justice Black’s concurrence in Coleman is particularly telling: The practical importance of the preliminary hearing is discussed in the prevailing opinion, and the considerations outlined there seem to me more than sufficient to compel the conclusion that the preliminary hearing is a “critical stage” of the proceedings during which the accused must be afforded the assistance of counsel if he is to have a meaningful defense at trial as guaranteed in the Bill of Rights. 22 Several years later, in Gerstein v. Pugh, the Court was presented with an opportunity to decide if an adversarial preliminary hearing is required by the Fourth Amendment. 23 While the Court acknowledged that the Fourth Amendment does not require a full adversarial hearing, it did hold that “the Fourth Amendment requires a judicial 21. Id. 22. Id. at 12 (Black, J., concurring). 23. 420 U.S. 103, 111 (1975).