(concurring in part and dissenting in part). I agree with the majority that issues regarding the scheduling of the preliminary examination must be raised no later than immediately before commencement of the examination in order to preserve appellate review. However, I disagree with the majority that People v Weston, 413 Mich 371; 319 NW2d 537 (1982), is applicable if the defendant is not incarcerated during the delay in holding the preliminary examination. Additionally, while I share the majority’s concern about reversing otherwise valid convictions solely on the basis of a violation of the twelve-day rule, I cannot subscribe to the proposed "remedy” which will exacerbate rather than cure defects in the scheduling of preliminary examinations.
*163I
The twelve-day rule, contained in MCL 766.4; MSA 28.922 provides:
The magistrate before whom any person is brought on a charge of having committed a felony shall set a day for a preliminary examination not exceeding 12 days thereafter, at which time a magistrate shall examine the complainant and the witnesses in support of the prosecution, on oath in the presence of the accused, in regard to the offense charged and in regard to any other matters connected with the charge which the magistrate considers pertinent.
Sometimes the twelve-day requirement may prove to be rather onerous for the defendant or the prosecution. The defendant may be experiencing difficulty securing retained counsel, or counsel may not have adequate time to prepare a strategy. Witnesses may refuse or be unavailable to testify. See People v Den Uyl, 320 Mich 477; 31 NW2d 699 (1948). Kecognizing that in some situations there may be good reasons to exceed the time provision of MCL 766.4; MSA 28.922, and that, in fact, failure to do so could be detrimental to the ends of justice, the Legislature has provided that adjournments may be granted. MCL 766.7; MSA 28.925.
The function and importance of the preliminary examination have been discussed several times by this Court.1 However, the issue of the remedy for *164violation of the twelve-day rule was a question of first impression in Weston.2
In Weston, the defendant was arrested on September 4, 1978, and arraigned on September 6, 1978. His preliminary examination was scheduled to take place fourteen days later, on September 20, 1978, but was adjourned until October 4, 1978.3 The examination was held on that day, at which time defense counsel raised the twelve-day issue. The defendant remained incarcerated during the entire delay.
At trial, a jury convicted the defendant of armed robbery. The Court of Appeals affirmed, rejecting the defendant’s argument that the delay in holding his preliminary examination required reversal. We reversed the decision of the Court of Appeals. See Weston, supra, 376.
A preliminary examination functions, in part, as a screening device to insure that there is a basis for holding a defendant to face a criminal charge. *165A defendant against whom there is insufficient evidence to proceed should be cleared and released as soon as possible. The notion that a presumptively innocent defendant should remain in custody until a convenient time arrives for the magistrate to conduct the preliminary examination is exactly what the Legislature precluded in MCL 766.1; MSA 28.919.[4]
In the instant case, Crawford, the defendant was not in custody during the period of delay. However, the majority argues that the statute does not distinguish between "defendants who are, and those who are not, in custody.” Ante, p 158. Further, since the Legislature did not provide a remedy, the task was left to this Court. Ante, p 157. Thus, the majority determines that Weston is applicable even if the defendant is not incarcerated during the delay.
I agree with the majority that the statute makes no distinction between defendants in custody and those who are not. Defendants in either circumstance have the statutory right to a preliminary examination within twelve days of their arraignment. However, neither logic nor the statute dictates that the same remedy for the violation of the statute be applied to defendants who are not incarcerated as that which is applied to those who are.
To support the proposition that Weston applies to defendants not in custody, the majority cites language in Weston which characterized the twelve-day requirement as an "unqualified statutory command that the examination be held within 12 days.” Ante, p 159. Initially, it must be noted that this language is somewhat imprecise. The "statutory command” that preliminary examinations be held within twelve days is not "unquali*166fled.” The Legislature has specifically provided that a magistrate may adjourn, continue, or delay a preliminary examination beyond the twelve-day period. MCL 766.7; MSA 28.925. Furthermore, to do so does not cause the magistrate to lose jurisdiction of the case. Id.
More importantly, the statutory command must be read in light of the violation Weston sought to remedy. As Weston makes clear, the purpose of the twelve-day rule is to prevent delay in assessing the evidence against the defendant. Violation of the statute was particularly egregious in Weston because the "presumptively innocent” defendant remained in custody during the delay. That factor tipped the balance in favor of reversal. However, where the defendant is not in custody during the delay in holding the preliminary examination the argument in favor of reversing a conviction on this basis is much less compelling.
It must be stressed that the only detriment suffered by Crawford was a delay in the holding of his preliminary examination. He did receive a preliminary examination, as well as a full and fair trial. No evidence or statements were obtained from him during the delay. Furthermore, no witnesses disappeared or changed their testimony because of the late preliminary examination. The only basis for reversing Crawford’s conviction would be the fifteen days, during which he was free on bond, that the examination was delayed. Such a reversal would result in another examination and retrial, with the presentation of the same evidence as in the first trial. In other words, more delay to remedy previous delay.
Of course, defendant might be quite willing to compound the earlier delay with more of the same. The passage of time will undoubtedly dull the witnesses’ memories. There is also the possibility that an over-burdened prosecutor may not elect to *167reinitiate charges. Thus, reversing a defendant’s conviction could quite possibly result in complete exoneration. See United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986).5
It is difficult to conclude that the Legislature intended that validly convicted defendants should go free under these circumstances. The cost to society is too great in light of the fact that the "remedy” does not cure the defect. Furthermore, the fatuity of applying the Weston remedy is evidenced by the majority’s refusal to do so in Crawford. Defendant timely raised the issue before his preliminary examination and again before trial. In each instance Crawford’s motion was denied, the respective courts being of the opinion that Weston did not apply if the defendant was not incarcerated during the delay. The Court of Appeals affirmed that conclusion. The majority has determined that Weston does apply even if the defendant was not incarcerated during the delay. Thus, the majority opinion would logically require reversing Crawford’s conviction. Yet, despite the fact that Crawford has properly preserved the *168issue for review,6 the majority affirms his conviction. Ante, pp 157-158. This is particularly mystifying because, other than the fact that Crawford was free on bond during the delay, this case is virtually indistinguishable from Weston. The majority fails to explain how this result provides defendant with a meaningful remedy to enforce the statutory directive. In any event, I would hold that the Weston remedy does not apply in cases where the defendant is not in custody during the delay.
ii
The majority has instituted a new procedure, intended to eliminate the severe result of reversing otherwise valid convictions on the basis of twelve-day rule violations. While I agree with the majority that such a result is unduly harsh, I cannot concur in the announced procedure.
In the future, a defendant must raise the issue of a twelve-day rule violation immediately before the commencement of the preliminary examination. Failure to raise the issue waives appellate review of the question.
In the event that the magistrate agrees with the defendant, the motion to dismiss will be granted. Thus, the majority’s procedure for appellate review is unnecessary in this circumstance.
In the event that the magistrate denies a defendant’s motion, the preliminary examination assumedly will proceed.7 At the conclusion of the *169examination, the defendant will either be released or bound over on the charges.
If the defendant is released, there is no necessity of appellate review of the denial of the motion to dismiss. Thus, the only scenario in which the majority’s review procedure is implicated is where the defendant raises the issue before the preliminary examination, the motion to dismiss is denied, and the evidence is found sufficient to bind the defendant over for trial.
Unfortunately, at this stage in the proceedings, there is simply no way to return to the defendant the benefit which would have accrued under the twelve-day rule. The purpose of the rule is to insure a prompt preliminary examination. Once the preliminary examination is held, any delay in the scheduling cannot be remedied. In a similar situation, the Mechanik Court noted:
[T]here is no simple way after the verdict to restore the defendant to the position in which he would have been had the indictment been dismissed before trial. He will already have suffered whatever inconvenience, expense, and opprobrium that a proper indictment may have spared him. In courtroom proceedings as elsewhere, "the moving finger writes; and, having writ, moves on.” Thus reversal of a conviction after trial free from reversible error cannot restore to the defendant whatever benefit might have accrued to him from a trial on an indictment returned in conformity with [Federal Rule of Criminal Procedure] 6(d). [Mechanik, supra, 71.]
The same may just as accurately be said for dis*170missing the charges against a defendant, bound over in an error-free preliminary examination, for a twelve-day rule violation.
In addition to being ineffectual, the procedures instituted by the majority actually worsen the delay rather than remedy it. The majority provides:
To obtain appellate review, the defendant must, before the trial, timely file an application for leave to appeal from the denial of such a motion. If leave to appeal is denied by the Court of Appeals, a timely application may be filed with this Court. By requiring that the issue be raised by application for leave to appeal before the trial, the possibility of reversal after conviction on this basis should be avoided both where the defendant has been and where he has not been incarcerated between the arraignment and the preliminary examination. [Ante, 157.]
Even if these appeals are handled expeditiously and in a summary manner, it is clear that this appellate procedure will take many times the twelve-day period in which the statute requires the preliminary examination be held. Thus rather than remedying the delay sought to be prevented by the statute, the majority’s procedure only adds further delay.
The majority does not make clear whether a defendant who properly preserves the issue by raising it before the preliminary examination and then pursuing the majority’s interlocutory appellate procedure may raise the issue in an appeal by right following a conviction. Since Crawford properly preserved the issue, and the majority refuses to reverse his conviction, I assume the same will follow under this new procedure. If this is true, and I do not see how it logically cannot be, the *171consequence of denying the defendant’s motion for interlocutory appeal will effectively result in a decision of the issue on its merits.
The remedy for delay is promptness rather than additional delay. In order to vindicate a defendant’s right to a prompt preliminary examination, the time for a remedy is before the preliminary examination takes place. Therefore, if the preliminary examination has been delayed, the defendant should be required to move the court for a prompt examination. Barring good cause, MCL 766.7; MSA 28.925, the magistrate would be obliged to grant the motion. This would terminate the delay, without adding further delay as would result from dismissal and reinitiation of the charges. Thus, there would be no potential for "unlimited delay” which the majority fears would result from holding that the Weston remedy is inapplicable where the defendant is not incarcerated during the delay.
CONCLUSION
I concur with the majority in reversing the Court of Appeals decision in Harris and Williams. However, I would affirm the Court of Appeals decision in Crawford as the Weston remedy does not apply where the defendant is not incarcerated during the delay in holding the preliminary examination. Finally, I do not join the portion of the majority opinion announcing the new appellate procedure.
Griffin, J., concurred with Riley, C.J.See, e.g., People v Johnson, 427 Mich 98, 103-110; 398 NW2d 219 (1986); People v Dunigan, 409 Mich 765; 298 NW2d 430 (1980); People v Duncan, 388 Mich 489; 201 NW2d 629 (1972); People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971).
The United States Supreme Court has determined that a preliminary examination is not constitutionally required. Gerstein v Pugh, 420 US 103; 95 S Ct 854; 43 L Ed 2d 54 (1975). Defendants have a *164right to appointed counsel at the preliminary examination stage of proceedings. However, the violation of this right is subject to a harmless error analysis on appeal. Coleman v Alabama, 399 US 1; 90 S Ct 1999; 26 L Ed 2d 387 (1970); Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967).
An initial judicial determination of probable cause must be reached to constitutionally hold a defendant in custody. Gerstein, supra. The determination need not be reached in an adversarial proceeding. Id., 120. A valid arrest warrant satisfies this requirement. The arraignment of a defendant arrested without a warrant also fulfills this function. See People v Mallory, 421 Mich 229, 239; 365 NW2d 673 (1984). This initial determination of probable cause takes place before the preliminary examination. An appointed counsel is not required as this is not a "critical stage” in the prosecution. Gerstein, supra, 122.
All defendants were promptly arraigned. In addition, Crawford was arrested under a warrant. Thus, there is no question that any detainment of defendants comported with the constitution.
The Court of Appeals had decided several cases presenting violations of the twelve-day rule. See cases cited in Weston, supra, 375, n 6.
The record did not indicate the reason for the initial scheduling of the examination beyond the twelve-day period or for the adjournment.
The Court in Crawford relied on this language.
The defendants in Mechanik were found guilty of drug charges by a jury after a three-day trial. On appeal to the United States Supreme Court, they argued that defects in the indictment proceedings required reversal. Two law enforcement agents apparently had testified in tandem before the grand jury, arguably in violation of the Federal Rule of Criminal Procedure 6(d). The Supreme Court held that even if rule 6(d) had been violated, reversal was not required.
The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences. . . . The "Massage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.” . . . Thus, while reversal "may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,” . . . and thereby "cost society the right to punish admitted offenders.” [Mechanik, supra, 72.]
Of course, defendant cannot be faulted for failing to employ the majority’s heretofore nonexistent interlocutory appeals procedure.
Since the purpose of the new appellate procedure is to eliminate the potential for reversal of otherwise valid convictions, I assume that the defendant’s trial will be delayed during the course of the appeals. No mention is made whether the preliminary examination will also be delayed. However, since the statute explicitly does not allow the *169preliminary examination to be delayed on the defendant’s consent, it would be an anomalous result to allow defendant to force a delay by raising this issue. Therefore, I assume that the majority does not intend for the preliminary examination to be stayed upon the denial of defendant’s motion to dismiss.