Part 3: We explain the terminology and proceedings associated with the criminal process to better inform the public of this process and their rights. Our publications are based upon more than 40 years of experience handling criminal matters in every Metro-Detroit court (Macomb, Oakland, Wayne and St. Clair Counties).
The topic of criminal procedure refers to the process in which a criminal case moves through the legal system and the court system. It is important to understand that an entire library of books has been published covering criminal procedure. This publication is intended to give a concise explanation of the criminal process and the legal terminology utilized. In addition, we will discuss criminal defense legal strategies and goals that are relevant at various stages of the criminal process. We are confident that you will find this information invaluable and not available by other attorneys to extent we have provided in this publication.
1. Criminal Investigation
The initial stage in the criminal process is the criminal investigation. A criminal investigation begins when the police have received a police report or have other reasons to suspect an individual of criminal activity. The accused party may never know of the investigation which could result in the matter being closed or the issuance of an arrest warrant. Criminal investigations are conducted by an officer or detective assigned to the case. At this level, witness statements are obtained and the accused party may be contacted for an interview. A person accused of a crime is not required to make any statements to the police pursuant to the 5th Amendment of the United States Constitution. An investigation may take a matter of days or months before it is presented to the prosecutor for authorization.
2. Whether or Not to Talk to the Police
As I stated, there are strategies at every stage of the criminal process that experienced criminal defense attorneys use to gain an advantage in the criminal system. In general, a person accused of crime should NOT speak to the police without the advice of a experienced criminal defense lawyer. Our criminal defense lawyers will look at whether there is any advantage or future benefit by scheduling a police interview. There have been cases where our clients have fully admitted to a crime and we have agreed to a police interview for the purpose of showing good faith and offering restitution at the earliest phase of the criminal process. This strategy is not one that we adopt 100% of the time. I will only consider it if the client fully understands his or her right to remain silent and there is strong evidence or a paper trail that is highly incriminating and a verdict of guilty is inevitable. Conversely, I would advise against it when the police do not have any evidence to connect our client with a crime. Each case has its own unique facts and circumstances and strategic decisions can only be made on a case by case basis!
2. Request for Authorization of Warrant
Once the police have completed an investigation, the report (witness statements, evidence) is taken to the prosecuting attorney for review. The prosecutor may consider issuing a warrant at this time, seeking a search warrant or dismissing the request for authorization. A request for a warrant is subject to authorization if the prosecutor reasonably believes that there is probable cause to support the stated charge(s).
3. Warrant for Arrest Issued: Defendant may be arrested or may receive a notice to appear in court.
Once a warrant is authorized by the prosecutor, the officer in charge of the case submits the matter to the court with jurisdiction over the matter to officially approve the warrant and enter it into the system. This is also when the warrant is reported to the Michigan State Police and entered in the Law Enforcement Information Network (LEIN) There are two (2) possible scenarios after a warrant is entered into the court system; the accused party (the defendant) is arrested by the police or the accused party receives a notice from the court to personally surrender himself/herself to the court or police to answer the warrant.
4. Arraignment (Felony Arraignment starts in the District Courts)
The arraignment is the first stage in the criminal process when the accused party (the defendant) appears in a courtroom before a district court judge or magistrate. The following districts courts are located in Macomb County:
Locations and Links for the Macomb County District Courts:
- 37th District: (Warren, Centerline) 8300 Common Rd, Warren, MI 48093
- 38th District: (Eastpointe) 16101 E 9 Mile Rd, Eastpointe, MI 48021
- 39th District: (Roseville, Fraser) 29733 Gratiot Ave, Roseville, MI 48066
- 40th District: (St. Clair Shores) 27701 Jefferson Ave, St Clair Shores, MI 48081
- 41-B District: (Harrison Township, Clinton Township, Mt. Clemens) 22380 Starks Drive, Clinton Township, MI 48038
- 42-1 District: (Romeo, Washington Township, Richmond, Ray, Bruce, Armada) 14713 33 Mile, Romeo, MI 48065
- 42-2 District: (New Baltimore, Chesterfield Township, Lenox, New Haven) 35071 23 Mile Rd, New Baltimore, MI 48047
Once a case enters the court system, the accused party is referred to as the DEFENDANT. The defendant is required to personally appear for a felony arraignment. For misdemeanor arraignments, some courts will allow the formal arraignment to be waived. If the defendant is incarcerated, the arraignment may occur via a video link between the courtroom and detention facility or the defendant may be transported to the courthouse by law enforcement officers. The formal charges against the defendant are set forth in a document called the COMPLAINT. The following matters are covered at the arraignment:
- The COMPLAINT is formally read
- A Plea is entered (NOT GUILTY or STAND MUTE)
- Bond is set (personal bond, cash bond, surety or 10% bond)
- Bond conditions are set (drug/alcohol testing, no contact orders, house arrest, GPS monitoring)
- Probable Cause Conference and Preliminary Examination are scheduled
For all felony matters in the Macomb County District Courts, the court will only a accept a plea of NOT GUILTY or STAND MUTE. A plea of GUILTY will not be entertained at this stage of the proceedings for the protection of the rights of the accused party to obtain a lawyer, obtain the police reports and pursue other rights including preliminary examination and trial.
Bond is an important component of the arraignment. The court has the power to impose a high cash bond and impose restrictions upon the freedom of the defendant which may include: travel restrictions, no-contact order, house-arrest, drug and alcohol testing. It is not always possible for an attorney to be present at the arraignment. This is true when someone is arrested and is unable to retain a lawyer on-the-spot or is brought to court without sufficient time to secure representation. Whenever possible, the presence of a local attorney is advisable at the arraignment. An attorney can make a difference in the amount of bond that is set (cash or personal) and have an influence on the bond conditions.
5. Discovery (Defendant is entitled to all reports, witness statements, evidence)
The US Constitution affords each citizen DUE PROCESS in the court system. In plain English, this translates to include the right to obtain all of the available evidence in all criminal or civil proceedings. The process to obtain evidence from adverse parties in a criminal case is known as discovery. A request for discovery is filed with the prosecutor at the earliest opportunity in a criminal case. A court order can be obtained to facilitate a discovery request. In addition, a party that fails to comply with a discovery order in bad faith, or engages in obstructive discovery tactics, is subject to censure, court sanctions and precluded from introducing evidence that should have been disclosed.
Sterling Heights/Carjacking: In a recent case handled by our firm arising out of the City of Sterling Heights, our client was charged with robbery/carjacking based upon being picked out of a lineup and being found near the location where the stolen car was discovered. Our client had good credibility and passionately denied the commision of the crime. We worked persistently to obtain the discovery that eventually PROVED OUR CLIENT WAS INNOCENT even though the case could have moved forward based upon the identification and other negative circumstances. There were similarities in the facial features of our client and the perpetrator. Fortunately for our client, we were able to obtain:
- Cell phone tower records (proving our client was not at the scene of the crime
- DNA of a garment found in the vehicle (DNA did not match our client)
- Fingerprints on the vehicle (Not a match of our client)
- Smart Bus video (Our client said he used the bus on the day of the incident. we learned that Smart Bus videos are retained for 30 days and if there is an incident, for 1 year).
The DNA on a garment found in the vehicle was traced to another person who was eventually charged with the crime. In the end, our client was FREE and the CASE DISMISSED after serving 100 days in jail while we unturned every stone to gather evidence that exonerated him.
6. Probable Cause Conference (PCC)
As part of the arraignment, the accused party will be provided with dates to return to the district court for a Probable Cause Conference (PCC) and Preliminary Examination (PE). As I have stated, there are opportunities to resolve criminal matters at every stage of the proceeding, including the PCC and PE.
According to the Michigan Statute, MRE 6.108: The probable cause conference shall include discussions regarding a possible plea agreement and other pretrial matters, including bail and bond modification.
There are a number of possible scenarios that can occur at the PCC: negotiations to dismiss charges, reduction of a felony to a misdemeanor, disposition of the case at the district court, agreement to plea to a lower felony in the circuit court, disposition to have the matter dismissed with application of HYTA or MCL 333.7411, adjournment of the matter to file a deviation request. Unless waived, the Preliminary Examination will follow when a matter cannot be resolved or it is requested by either the defense or prosecutor.
7. Preliminary Examination: Probable Cause Burden of Proof
The right to a Preliminary is found at MRE 6.110: The people and the defendant are entitled to a prompt preliminary examination. The defendant may waive the preliminary examination with the consent of the prosecuting attorney. Upon waiver of the preliminary exam