LEWIS & DICKSTEIN, P.L.L.C. Wins Preliminary Exam in Felonious Assault Case

This week, LEWIS & DICKSTEIN, P.L.L.C. secured a complete dismissal of a felonious assault case in an Oakland County district court. Senior trial attorney George MacAvoy Brown handled the case and won the dismissal at the preliminary exam in an historic victory that exonerated the client and saved him from having to defend himself at trial in Oakland County Circuit Court.


The firm’s client (here called Clint), was accused of pointing a pistol at his wife’s brother (here called Lyle), thereby committing the crime of felonious assault. In reality, the event began with a verbal argument, Lyle punched Clint in the face, and Clint legally drew his firearm and pointed it at Lyle in self-defense. Clint then went to his car, secured the weapon, and called the police to report that he was assaulted.

George M. Brown

When sheriff’s deputies arrived, Clint and Lyle each wrote statements. Clint did not want to cause further family drama so he signed a waiver telling police that he did not want to see Lyle prosecuted. Lyle, however, indicated that he did want Clint prosecuted. Despite being the victim, Clint was arrested by the police and the county prosecutor brought a felony charge against him that could have subjected him to up to four years in prison.

Clint knew he was in serious trouble. He needed someone to fight for him. He called LEWIS & DICKSTEIN, P.L.L.C.

What is a Preliminary Exam?

In Michigan, felony cases always begin in district courts where a defendant has a right to a preliminary exam. The purpose of the exam is to force the prosecution to show that there is probable cause that a crime was committed and that the defendant was the person who committed the crime. Probable cause means that there is enough evidence to cause a regular person to conscientiously entertain a reasonable belief of the defendant’s guilt. It is a low standard of proof and prosecutors rarely have trouble meeting it. If probable cause exists, the case is bound over to the circuit court for trial. An exam is a hearing, something like a mini-trial, where the prosecutor calls witnesses to testify.

For a variety of reasons, defendants often waive their right to the exam. When exams are held in district courts, the district court judge almost always finds that probable cause exists. It is almost perfunctory because the charges have already been approved by police and a prosecutor. Those determinations alone suggest to many judges that probable cause already exists. Demonstrating that it does not, therefore, requires an extraordinary amount of effort and skill.

Clint’s Exam

Here, the defendant maintained his innocence. He was legally justified in drawing his weapon because Lyle punched him. Clint did not want to take a plea. He wanted a preliminary exam. He wanted justice.

As the hearing began, the county prosecutor called Lyle to the stand. He was placed under oath. Lyle stated that Clint had come to the house and the two began arguing about a family matter. He said that, unprovoked, Clint pulled out his pistol and pointed it at Lyle’s head. The prosecutor ended direct examination, taking the position that she had established probable cause that Clint committed a felonious assault on Lyle.

Defense attorney George Brown then took the opportunity to cross-examine Lyle. Mr. Brown pointed to a number of inconsistencies in the police report. For example, the report stated that Lyle told one deputy Clint pointed the firearm only once but also that Lyle told another deputy Clint pointed the firearm twice. Lyle insisted that he only said Clint pointed the gun once and stated, when prompted, that the other deputy must have been lying if he wrote in the police report that Lyle said “twice.”

Mr. Brown then asked Lyle if he would ever hit someone. Lyle denied that he would. Unknowingly, Lyle had just opened to the door to the introduction of character evidence by claiming that his character was such that he would not hit someone. Mr. Brown was prepared and knew that Lyle had recently been charged with assault and battery for punching another person. Mr. Brown asked if Lyle had hit that man, and if he was charged and convicted of a crime. Lyle admitted that, yes, he did hit someone else but again denied that he ever hit Clint.

Mr. Brown then asked Lyle if having a gun pointed at him was a big deal, something that would have a profound effect on a person. Lyle agreed. Mr. Brown then handed Lyle a copy of his written statement and asked him to direct the court to any reference of a gun. Lyle could not because he never mentioned the gun in his written statement! Mr. Brown pressed Lyle, asking him if he had forgotten to write about the gun because he was too busy lying about hitting Clint. Lyle angrily denied this but his credibility was already in tatters.

The Ruling

The district court judge had a determination to make. In nearly every case where there is a factual dispute raised at exam, district court judges bind the cases over to circuit court because questions of fact are best left for trial. The district court judge does not need to believe the evidence beyond a reasonable doubt to find probable cause and judges almost always find probable cause.

The judge here ruled that no probable cause existed. For the first time in her 20-year tenure on the bench, she found a witness to be so lacking in credibility that she could not entertain a reasonable belief that Clint was guilty. Without Clint ever opening his mouth in court, Clint’s defense attorney was able to prove his innocence.

Lawyers Who Will Fight

The dedicated, experienced and zealous criminal defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. fight for their clients at every step of every case when handling felony and misdemeanor charges in federal court or in state courts in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Michigan. George Brown and the rest of the Defense Team have well-earned reputations for providing the highest quality defense and aggressive representation, making prosecutors defend the charges they bring against our clients. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.