Our lawyers are true believers in the idea that the adversarial process finds the truth. The more we can uncover in the court process, the more likely we are to find the truth about what happened. Some of the best truth-seeking occurs when witnesses are asked questions under oath and subject to cross examination.
Recently, Tom Leonard (R — Gratiot Co) introduced HB 5154 which has been characterized a “preliminary exam reform”. It isn’t clear to me why we needed to reform our system that is working, but that has been Mr. Leonard’s goal. The House Judiciary Committee held a hearing on this bill in January and a substitute bill is being proposed. The substitute bill, H00143’13 (H-1), includes the following provision in subsection (4):
IF A PLEA AGREEMENT IS NOT REACHED AND IF THE PRELIMINARY EXAMINATION IS NOT WAIVED BY THE DEFENDANT WITH THE CONSENT OF THE PROSECUTING ATTORNEY, A PRELIMINARY EXAMINATION SHALL BE HELD AS SCHEDULED UNLESS ADJOURNED OR WAIVED UNDER SECTION 7 OF THIS CHAPTER. THE PARTIES, WITH THE APPROVAL OF THE COURT, MAY AGREE TO SCHEDULE THE PRELIMINARY EXAMINATION EARLIER THAN 5 DAYS AFTER THE CONFERENCE. UPON THE REQUEST OF THE PROSECUTING ATTORNEY, HOWEVER, THE PRELIMINARY EXAMINATION SHALL COMMENCE IMMEDIATELY FOR THE SOLE PURPOSE OF TAKING AND PRESERVING THE TESTIMONY OF A VICTIM IF THE VICTIM IS PRESENT. FOR PURPOSES OF THIS SUBDIVISION, “VICTIM” MEANS THAT TERM AS DEFINED IN SECTION 31 OF THE WILLIAM VAN REGENMORTER CRIME VICTIM’S RIGHTS ACT, 1985 PA 87, MCL 780.781. IF THAT TESTIMONY IS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT COMMITTED THE CHARGED CRIME OR CRIMES, THE MAGISTRATE SHALL ADJOURN THE PRELIMINARY EXAMINATION TO THE DATE SET AT ARRAIGNMENT. A VICTIM WHO TESTIFIES UNDER THIS SUBDIVISION SHALL NOT BE CALLED AGAIN TO TESTIFY AT THE ADJOURNED PRELIMINARY EXAMINATION ABSENT A SHOWING OF GOOD CAUSE.
As indicated above, if a “victim” testifies at the preliminary examination conference that a crime occurred, the Defendant will be deprived of his right to call witnesses at a preliminary exam and will be required to endure a trial to prove his innocence. Imagine the scenario where a crazy person accuses you of something that absolutely didn’t happen. Imagine further that you were in another country filming a movie at the time of the allegations, so you have witnesses and video evidence placing you somewhere other than at the scene of the crime. Under Rep. Leonard’s bill, if a “victim” testified that you committed the crime, you would not be allowed to present this other evidence of your innocence at the preliminary exam and would be required to wait months before you could present this evidence at trial.
I would assume that Rep. Leonard has never been falsely accused of a crime. I suspect that he doesn’t have any close friends or family members who have been falsely accused. Unfortunately for Michigan residents, Mr. Leonard’s inexperience is going to make it more difficult for innocent people to prove their innocence. If this law passes, hiring an attorney who works closely with an investigator is going to be significantly more important because you’ll have one less tool for discovering the truth prior to trial.