Part 1: Introduction to felony representation and considerations when hiring a lawyer if you are accused, charged or arrested for a felony (or any other criminal matter).
Part 2: Criminal investigations, plea bargaining and actual case results based upon local practices and our extensive experience handling criminal matters in the Macomb County courts.
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 35 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-A District: (Sterling Heights) 40111 Dodge Park Road, Sterling Heights, MI 48313
- 41-A District: (Shelby Township, Macomb Township, Utica) 51660 Van Dyke, Shelby Charter Township, MI 48316
- 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 examination, the court must bind the defendant over for trial (to the circuit court) on the charge set forth in the complaint.
A Preliminary Examination should not be compared to a trial: The “PROBABLE CAUSE” standard or burden of proof is used at the Preliminary Examination stage of a felony proceeding. This standard is much lower than the burden of proof (BEYOND A REASONABLE DOUBT) required at the trial stage.
MRE 6.110 (E) provides: If, after considering the evidence, the court determines that probable cause exists to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it, the court must bind the defendant over for trial.
There are a number of strategic reasons that we recommend “holding” the preliminary examination and reasons why we may recommend “waiving” it (not holding it). When we can score points or gain any advantage, we would recommend holding the PE. When the charges are not supported by the evidence or a witness is expected to fall apart on the stand, we will always hold the PE. Holding a PE may be an excellent opportunity to expose a bad case to the prosecutor and judge that could lead to dismissal or a favorable plea deal. However, don’t be fooled into thinking that your case will be dismissed if you hold the Preliminary Examination. If the court finds that additional charges are supported by the evidence according to the low probable cause standard, they can be added after the PE is held. And, you can count on the prosecutor to threaten to add additional charges if the PE is held.
8. CIRCUIT COURT: Arraignment on the Information
The Arraignment on the Information will occur in the circuit court for felony matters that are waived at the district court level or bound over after a Preliminary Examination is held. The “Information” is the formal charging instrument utilized once a case is entered into the system at the circuit court level. In Macomb County, felony matters will be scheduled at the Macomb County Circuit Court for future proceedings following a “waiver” or “bind-over” in the district courts. The Macomb County Circuit Court is located at:
- Macomb County Circuit Court: 16th Judicial Circuit Court, 40 N. Main, Mt. Clemens, MI 48043, Phone: 586-469-5150
The Arraignment on the Information is similar to the Arraignment in district court. The court will read the Information and consider whether bond conditions will remain the same or be amended. Bond can be revoked if it determined that the defendant is a possible flight or community risk, or if there have been any bond violations (failed drug tests, violated a no-contact order). Other business that can occur at this stage at the Arraignment on the Information stage are:
- Entering into a plea bargain
- Scheduling motions
- Setting a formal pretrial conference
- Setting the case for trial
9. Motions (Requests to the court to facilitate the defense)
Motions are formal requests made by either the prosecutor or defense attorney asking for the court to answer or respond with a court order. Motions can be filed AT ANY TIME DURING THE COURT PROCEEDINGS to address trial issues, admissibility of evidence, bond conditions, dismissal (based upon lack of evidence) and for other reasons to protect the rights of the accused party. Strategically filed motions may be used as a tactic to reveal something obscure or personal (psychological record, old police report) that may tend to facilitate a plea bargain or dismissal of the charges.
10. Trial: Right to a Jury Trial Pursuant to the 6th Amendment of the US Constitution
The trial in a criminal case is an adversarial proceeding where the burden is on the prosecutor to present evidence and prove guilty BEYOND A REASONABLE DOUBT. The defendant has the following rights at trial:
- To be presumed innocent.
- To remain silent (the defendant is not required to testify)
- To confront and cross examine witnesses
- To present a defense to the allegations contained in the Information
Jury Selection: The jury selection process gives the prosecutor and defense an opportunity question prospective jurors, eliminate unfavorable jurors and shed some light on the case at bar. The process of questioning jurors is called VOIR DIRE. Attorneys may eliminate an unlimited number of jurors for cause (prejudice, bias, discrimination). Jurors can also be eliminated without cause (peremptory challenge). A peremptory challenge does not require any reason but each party is limited in the number of peremptory challenges (12 if the matter carries up to life in prison, 5 for other felony matters).
The Trial: Once a jury is selected, opening statements are made to the jurors. After the prosecutor and defense have made opening statements, the prosecutor will present its case first followed by the defense presenting its case after the prosecutor rests. After the defense rests, the prosecutor makes a closing argument followed by the defense closing argument.
Possible Verdicts, Hung Jury, Mistrial: A verdict by a jury in a criminal case must be unanimous. The possible verdicts in a criminal case are: guilty or not guilty. A jury may consider a verdict to a lower or lesser offense(s) when given this option by the jury instructions. When the jury cannot reach a verdict, it is called hung jury (DEADLOCKED). The court may consider a mistrial because of irregularities or errors during the trial or during jury deliberations.
11. Pre-Sentence Investigation
Upon a plea of a guilty or a finding of guilty after trial to a felony, the court is required to obtain a pre-sentence investigation report to facilitate a fair sentence. The report is prepared based upon the facts of the case, the background of the defendant, substance abuse history of the defendant and criminal record of the defendant. The report also contains a recommendation regarding the sentence which is influenced by any existing sentence agreement and the Michigan Sentencing Guidelines. The court is not required to follow the recommendation within the pre-sentence investigation report and may exceed the recommendation or sentence below the recommendation.
12. Sentencing Phase
The possible sentence that can be imposed in a felony matter will depend upon numerous variables including:
- The Pre-Sentence Investigation Report
- Statements by any victims
- The prior criminal history of the defenant
- The Michigan Sentence Guidelines
The courts in Michigan are no longer required to sentence within the Michigan Sentencing Guidelines which are now considered to be advisory. Michigan has adopted a sentence policy in favor of “proportionality” to avoid unfair application of variables that are factored into the Michigan Sentencing Guidelines. Our firm has a policy of filing our own Sentence Memorandum to bring matters to the court’s attention that it would not otherwise be raised. When filing a Sentence Memorandum, we will attach supporting documentation such as character witness letters, psychological/mental health reports, proof of AA meetings, military records, proof of charitable/volunteer services and any other positive documentation that we may deem helpful.
- Sentence: Probation, Incarceration, HYTA, MCL 333.7411, Delayed Sentencing: As we explain throughout our website and blogs, there are a number of provisions of laws to get a plea deal and sentence whereby an offender can earn a dismissal, sentence leniency, probation and outcomes that don’t necessarily involve incarceration.
- A word about jail: Jail is not our favorite topic. However, any attorney that practices criminal law extensively and takes on challenging cases will have a fair share of clients that wind up getting jail. On the other end of the spectrum, there are criminal defense attorneys that spend their entire careers taking on routine cases that never go to trial and avoid difficult cases or clients that may be facing jail. We do not shy away form cases where jail is a possibility and we have had excellent results keeping clients out of jail, and even out of prison, when the odds are against it. This is something that we have been able to do for individuals with bad criminal records or that are charged with offenses carrying life in prison.
13. Probation Violations & Motions to Modify Probation
Probation Modification, Violations, Successful Completion: Once a person enters a plea of guilty or no-contest, or is found guilty after trial, or is placed on a special sentencing sentence (frequently mentioned HYTA, MCLA 333.7411, Delayed Sentencing), the court can place the individual on probation. The maximum term of probation that can be imposed for a misdemeanor is 2 years and 5 years for a felony. Upon successful completion of probation, the individual is discharged from the court system. If a person has been granted HYTA or MCLA 333.7411, the matter will be dismissed upon successful completion of probation. While on probation, a person may ask the court to modify the conditions. A request for probation modification can be made by having a attorney file a motion and scheduling a hearing before the sentencing judge originally assigned to the case. Any reasonable request can be stated in a motion to modify probation including: termination of further probation, reduction or termination of random testing, removal of no-contact order and request to allow travel. If a person violates any term of probation, the court will schedule a probation violation hearing. Since a person may be placed in jail or lose a special sentencing status (HYTA or MCLA 333.7411), the representation of an attorney specializing in criminal law is crucial at a probation violation hearing.
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