The Preliminary Exam, Part II: Questions To Ask The Complaining Witness Under Oath

The main reason you have to identify potential motions prior to the preliminary exam is to use the opportunity provided by the exam to ask the complaining witness questions under oath, in a courtroom, to get answers we need to have in order to complete the motions. To lay the foundation for a MCR 6.201(c) Stanaway motion, we ask the complainant: Did you go to therapy? What did you talk about at therapy? Did you discuss the case? Why did you not report this sexual assault until after six months of therapy? What was discussed in therapy that caused you to eventually report the sexual assault to the police?

To support a potential motion related to suggestibility or the forensic interview, we will ask: How many times did you talk to your mom about what happened? How many times did you talk to your dad about what happened? Regarding the forensic interview, we ask: What did they tell you about The Children’s Interview Center, CARE House, or Kids TALK? Did they tell you why you were going there? What did they tell you about the forensic interview before they turned the camera on? What did the detectives say?

When you go to file a Daubert motion, you have the information you need to file it to challenge the forensic interview (what the victim was told or what the victim did the day of their forensic interview). If you are going to file the Stanaway motion to try to get psychological or medical records, you can ask the witness: What was said? How were you diagnosed? What kind of therapy was it? Did you ever talk about what happened to you? Now, you can list the articulable reasons you should be allowed to get those psychological records. It is only by doing so much work prior to the preliminary exam that you can fully use the preliminary examination fully to prepare your case.

Effectiveness Of Preparation

My philosophy and approach is to have my case more prepared for preliminary exam than most lawyers prepare for trial. That way, I can use the exam to answer any questions, to fill in any holes, to cross any T’s and dot any I’s in order to help my trial preparation. The only way I can effectively use the preliminary exam to do that is if I am prepared to check all those boxes off.

Once the preliminary examination is done, we get a transcript of what the complaining witness said, which could lead to another potential motion: a motion to quash the information and dismiss the charges, if the complaining witness does not establish probable cause both that the crime was committed and that the client committed that crime. The examining magistrate at district court is supposed to dismiss the charge or charges if the prosecutor fails to establish probable cause. I will frequently prepare a legal memo, or a memo of law, on close cases that will argue that there is no probable cause here. Not all cases are going to be dismissed at the preliminary exam because of my preliminary exam preparation—I know that going in. But some will be dismissed. That is why we file a brief in support of our argument that the case should not be continued.

Probable Cause

The legal terminology is called bound over for trial: the case should not be bound over for trial when there is no probable cause. We make that argument very aggressively, first in front of the district court judge to say, “Judge, you shouldn’t continue this case. You should not bind it over for trial because the prosecutor has not established probable cause that a crime was committed or that my client committed the crime.” Even if the district judge disagrees with you and does bind the case over for trial, you can file a motion to quash and dismiss the charges in front of the trial judge saying it was an abuse of discretion to continue the case and to bind it over for trial.

Establish Final Defense Theory

The client, the defendant, has to go through that same review process. I ask them to write how their overarching narrative has changed as a result of the complaining witness’s testimony at the preliminary exam. They should annotate the individual parts of the complaining witness’s testimony, everything that helps their case and everything that hurts their case, anything significant one way or the other. Again, if their narrative is the forest, the 100-piece puzzle all put together, then their annotations are each individual tree, each puzzle piece looked at individually. There should be another new set of dozens of annotations in red on that preliminary examination transcript.

Then, I hire two former prosecutors. I use one male and one female, and they cross examine the client, the defendant. They really go after that person. Only now are we ready to establish our final defense theme and theory of the case.

Comprehensiveness Of The Process

So, what really sets us apart? I think the shining star in the trial preparation process is the focus group. This is a very intensive, comprehensive process where we get 10 to 20 focus group members. We have developed a rigorous formula over the last 15 years. The beauty of this formula is it follows the KISS principle (Keep it simple, stupid). The client is not present at the focus group; it is just me, the lawyer, plus a facilitator (a jury trial consultant) to run the focus group while we record it. We give the focus group members little bits of the story as we take notes and look for emotional hot buttons that we might have missed while wearing our advocate’s blinders. In a date rape CSC case, we start by writing perhaps one word on the board. Frequently, it is just the charge: criminal sexual conduct, first degree.

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