Felonious Assault Preliminary Exam: To Waive Or Not To Waive?

If you're a Michigan citizen who's facing a a Felonious Assault charge, also known as Assault With a Dangerous Weapon, you have some very basic initial choices to make that will greatly impact the overall outcome of your case - not the least of which is who will be your Michigan Felonious Assault lawyer and what type of Bond conditions they can get you at your Felonious Assault Arraignment.  But aside from that, the next major decision you will make in defending against your Felonious Assault charge is whether or not to "hold" or "waive" the Preliminary Examination, which is the next Court date in the local District Court after the Arraignment.

Some District Courts, such as the 36th District Court in Detroit, the 34th District Court in Romulus, and the 53rd District Court in Howell schedule Pre-Exam Conferences in Felonious Assault cases, but most do not.

At The Law Office of Brian J. Prain, PLLC, we aggressively defend our clients against Michigan Felonious Assault charges.  A Michigan Felonious Assault charge (or Assault With a Dangerous Weapon charge) is a felony assault charge, meaning that it is punishable by more than 1 year of incarceration.  In-fact, Michigan's Felonious Assault law, MCL 750.82(1), reads like this (in relevant part):

" ... a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both."

Because a Michigan Felonious Assault charge (or Assault With a Dangerous Weapon charge) is a felony assault charge, you have a statutory right to a Preliminary Examination.  A Preliminary Examination is like a "mini-trial," where the Prosecutor must call witnesses to testify and admit other evidence in front of the District Court Judge (there is no Jury at the Preliminary Exam) sufficient to prove two things: 1) there is probable cause to believe that the crime of Felonious Assault (Assault With a Dangerous Weapon) was committed; and 2) that there is probable cause to believe that you are actually the person who committed that Felonious Assault.  Probable cause is a low standard - much lower than the proof beyond a reasonable doubt that would be necessary to convict you at Trial.

After your Felonious Assault Arraignment, you will next face the decision of whether to exercise your right to force the Prosecutor to prove those two things, or whether to give up that right, which is called "waiving" your Preliminary Exam.  When you waive your Preliminary Exam, you are essentially admitting that there is probable cause to believe that a Felonious Assault was committed and that you committed it.  When this happens, your case is "bound over" to the Circuit Court for your county for further proceedings heading toward Trial.

Looking at the Michigan Felonious Assault law, you should see two important issues: 1) did your actions meet the definition of assault under Michigan law (covered in my other blogs); and 2) did you use something that meets the definition of a "dangerous weapon" under Michigan law.  Because if not, you CANNOT be guilty of Felonious Assault / Assault With a Dangerous Weapon!  And the time to get these things established, get the testimony on the record, and attack the Prosecution's evidence in this regard is at the Preliminary Exam.  In short, at The Law Office of Brian J. Prain, PLLC, we generally hold Preliminary Exams and force the Prosecution to prove every little thing they have to prove!  That means meticulous preparation - we research every piece of evidence in the case and pre-write every single cross-examination question for the Prosecution's witnesses.  Try finding another attorney who will go that far for you...  This type of representation at your Felonious Assault Preliminary Examination can result in getting your Felonious Assault charge dropped or reduced to a lessor charge.

Be cautious: there are some attorneys out there who will attempt to "counsel" you that you should give up ("waive") your Preliminary Examination in your Felonious Assault charge.  They will tell you this on the grounds that if you hold your Preliminary Examination, that the Prosecution will "up your charges" as punishment, based on "new evidence" against you that comes out at the Preliminary Examination.  The truth is that the Prosecution has access to the witnesses, and if they really had the evidence, you'd already be charged with the more serious crime.

Now, there ARE Felonious Assault cases where there is evidence against you that the Prosecutor doesn't know about (that you and I know about), and we don't want it to come out at the Preliminary Examination for fear that the charges could be increased, legitimately.  But you need to know that your decision to waive the Preliminary Examination in your Felonious Assault case is motivated by these legitimate concerns, rather than the laziness of some attorney.  How will you know the difference?  Call The Law Office of Brian J. Prain, PLLC for a free consultation!  You'll leave more informed and confident about facing your Felonious Assault charges.

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