1. Someone Does Something That the Police or a Member of the Public Believes is Crime.
Just because the police or someone in the community believe that something you did is crime, does not mean it is a crime and it doesn’t mean that you did it. However, this is how a criminal charge starts. Someone believes you committed a crime and it is reported to the police or a police officer observes it. If someone from the public reports a crime, that is how the police are notified.
2. Police Investigate
The police investigate by talking to witnesses. People that saw or heard events relating to the alleged crime are witnesses. A person that is directly effected by the crime is considered the “victim” but most of the time is also a witness. The police also will collect physical evidence. They may visit the site of the alleged crime, photograph footprints, take measurements, do line ups and take photographs, or collect other evidence. Examples of evidence may include blood samples, breath test results from a data master, pictures of injuries, medical records. This list is not complete, but only gives you examples.
3. Police Make an Arrest (or Request a Warrant)
Someone accused of committing crime can be arrested without a warrant. If an officer comes to arrest you, you need to go without hesitation. Do not say anything, but also do not resist. Resisting a police officer can lead to felony charges. If the crime is committed in a police officer’s presence or the officer has probable cause to believe that certain kinds of crimes were committed (some misdemeanors and all felonies), the officer can arrest a suspect. The officer will later submit a request to the prosecuting attorney that the defendant be charged and will suggest that certain charges be filed or “authorized” by the prosecuting attorney. The Prosecuting Attorney must approve or “authorize” the criminal charges. The Prosecuting Attorney may decline to issue the charges or may charge additional or different criminal charges.
Warrant/Charging Request Reviewed by Prosecuting Attorney
When the prosecutor decides that a case will be charged, they then can make a warrant request. This is when the prosecutor decides what the charges will be. The Prosecutor reviews the statements and evidence that the police collected and will also review the suspect’s record, including their driving record. The Prosecutor may ask for additional evidence as well, and send the case back for investigation prior to issuing charges.
The Prosecutor can issue a charge if he or she reasonably believes that probable cause exists that the suspect committed the offense. Probable cause is a low standard of proof where the court will consider all of the evidence in a light that is the most favorable to the prosecution. If there is probable cause, then a warrant can be issued.
The delay between the crime date and the defendant’s arrest on an authorized charge can take any length of time. If the suspect has left the state of Michigan or cannot be found, the arrest can take years. However, usually the suspect is quickly located and arrested. If the suspect knows they are wanted, they also can turn themselves in.
District Court Arraignment
This is the first court appearance for any crime. In Michigan, crimes are divided into 2 classes: Misdemeanors and Felonies. Misdemeanors are crime that are punishable by less than 1 year. Felonies are crimes that are punishable by more than a year in state prison. High Court Misdemeanors are also chargeable, but are not as common as the other two. Once arrested and charged the suspect appears in District Court for arraignment. At the arraignment, the defendant is told what the charges are and the maximum penalty if convicted, and is advised of his constitutional rights. Click here to see the Advice of Rights given in a Michigan criminal case. The conditions and amount of bond are determined by the judge at arraignment. In some cases — generally based on the nature of the charge — the Judge imposes conditions on the bond, such as no contact with the victim. Bond is set in almost every case, but it is up to the defendant’s own resources to post the bail money, which allows him to be released.
Further pre-trial procedures vary depending on whether the suspect is charged with a misdemeanor or a felony.
A suspect is asked how they plea at a misdemeanor arraignment. They can plea guilty, not guilty or stand mute (not say anything). If the suspect stays mute, a not guilty plea is entered by the court. If the defendant pleads guilty or no contest, the Judge may sentence the defendant on the spot or may reschedule the case for a sentencing date. The probation department then would prepare a pre-sentence report including background information about the defendant and the crime and make a sentencing recommendation. Many times defendant’s do not know what they don’t know. The plea offer may sound good, but other sentencing options may be available that the defendant does not know about. We have seen defendants go through and do a plea at arraignment where diversionary programs would have been available that would have kept the crime off their record. Instead, they entered a plea and ended up with a criminal record without a lawyer. This is another reason it is best to have a lawyer from the very beginning. If the defendant stands mute or pleads not guilty, the case will be scheduled for a pre-trial conference.
Pretrial Conference — All misdemeanor cases are scheduled for a meeting between a Prosecuting Attorney and the defendant (or his attorney) to determine whether the case will go to trial or be resolved with a plea. These meetings focus on resolving the case short of trial. The Judge and witnesses are not directly involved in misdemeanor pre-trial conferences. If a plea bargain is going to be offered by the Prosecutor, it is usually done here.
At a felony arraignment in District Court, the defendant does not plead guilty or not guilty. He is advised of his right to a preliminary examination within 14 days of the arraignment. The arraigning judge may also consider a defendant’s request for a court-appointed attorney at this time.
Pre-Exam Conference — Some courts schedule a “Pre-Exam Conference” several days before the scheduled Preliminary Examination. The Pre-Exam Conference operates like a misdemeanor pre-trial conference, as a meeting between the Prosecutor and defendant (or his attorney) to see if the case can be resolved without the need to subpoena witnesses for the Preliminary Examination.
Felony Preliminary Examination — This is a contested hearing before a District Court Judge, sometimes called a “probable cause hearing”, held within 14 days after arraignment. The Prosecutor presents witnesses to convince the Judge that there is at least probable cause to believe that the charged crime(s) was (were) committed and that the defendant committed the crime(s). Because the burden of proof is much less than at a trial, the Prosecutor generally does not call all potential witnesses to testify at the Preliminary Exam. Generally, the victim and some eye witnesses plus some of the police witnesses will testify. The defendant, through his attorney, can cross-examine the witnesses and present his own evidence (including witnesses). If probable cause is established, the defendant’s case is moved to Circuit Court. At that time, the District Court judge can reconsider bond, and lower it or increase it. If it is increased, the defendant may go back to jail until the higher bond can be posted. If the Judge decides that there is not probable cause that the defendant committed the charged crime(s), the judge can bind the case over on different charges, can reduce the charges to misdemeanors for trial in District Court, or can dismiss charges.
A defendant can waive or give up the right to have a Preliminary Examination. This is called a “waiver.” A defendant can also agree to have the Preliminary Examination after 14 days. This also involves a waiver, but does not waive the Preliminary Examination itself.
Circuit Court Arraignment — After the case is sent to Circuit Court, the defendant is again arraigned (given formal notice of the charges against him or her). The charging document is called an Information. He or she is again advised of his/her constitutional rights, and enters a plea to the charge (guilty, not guilty or stand mute). In some counties, a proof of service of the felony complaint (called an information) is sent to the attorney and the attorney will serve this on the defendant instead of having another arraignment.
Pre-Trial Conference — The Circuit Court may schedule a meeting between a Prosecuting Attorney and the defendant’s attorney to determine whether the case will go to trial or be resolved with a plea.
Pretrial Proceedings — Various other pretrials proceedings may occur, including motions (where the defendant or the prosecutor ask for certain things for the trial or discuss whether there were errors at the preliminary exam that need to be fixed).
Trial (Jury or Bench/Judge)
A trial is time where the Prosecutor must present evidence to prove the defendant’s guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the Prosecutor’s evidence. Frequently, it is wise, however, to present evidence of innocence.
Both the defendant and the Prosecutor (representing the People of the State of Michigan) have the right to a trial by a jury. Sometimes, both sides agree to let a Judge listen to the evidence and decide the case without a jury. This is fairly rare. More frequently, there are jury trials, where members of the community are called upon to sit on the jury and decide the case. After all the evidence is presented, the jury will determine whether the evidence proved that the defendant committed the crime.
Here is a general outline of the steps in a jury trial:
- Voir Dire: the Judge, Prosecutor and defense attorney question the jurors about their backgrounds and beliefs;
- the attorneys are permitted a limited number of “peremptory” challenges to various jurors (or an unlimited number of challenges for good cause);
- after 12 acceptable jurors remain (in felony cases) or 6 acceptable jurors remain (in misdemeanor case), the Judge administers an oath to the jury and reads basic instructions about the trial process, etc.;
- the Prosecutor gives an opening statement to outline the People’s case and evidence to the jury;
- the defense may give a similar opening statement, or wait until later in the trial;
- the Prosecutor calls witnesses, which the defense may cross examine;
- the People end their case;
- the defense may call witnesses, if it wants, and the Prosecutor may cross-examine them;
- the defense ends their case;
- the Prosecutor may present “rebuttal” witnesses/evidence to challenge evidence presented by the defendant during his proofs;
- the Prosecutor rests;
- occasionally, the trial judge will let the defense present “sur-rebuttal” witnesses to respond to the Prosecutor’s rebuttal witnesses’ testimony;
- the Prosecutor presents a closing argument to the jury;
- the defense attorney presents a closing argument to the jury;
- the Prosecutor may present a rebuttal argument to the jury to respond to the defendant’s attorney’s closing summary; The prosecutor gets the right to do this because the prosecutor has the burden of proof in the case.
- the judge gives the jury detailed legal instructions about the charged crimes and the deliberation process. These are called jury instructions.
- the jury deliberates and returns a verdict.
A criminal case jury verdict must be unanimous. This means every juror on the panel must agree with the result.
If a defendant is convicted, the court usually orders a pre-sentence investigation report.
Pre-Sentence Investigation and Report
The court’s probation department prepares a report for the judge summarizing the crime, and the defendant’s personal and criminal backgrounds. Generally, the victim is contacted for a statement as well. The probation officer concludes the report with a recommended sentence.
Sentencing in Michigan varies with the crime and can be the most confusing part of the criminal process. Most often, sentences are at the judge’s discretion. The judge will consider the information in the pre-sentence report (subject to factual corrections by the parties), additional evidence offered by the parties, comments by the crime victim, and other information relevant to the judge’s sentencing decision. For felonies, the Circuit Court judge will consult “sentencing guidelines” (originally established by the Michigan Supreme Court, but now applicable by recent “Truth in Sentencing” laws). The sentencing guidelines factor in aspects of the defendant’s criminal conduct and his prior record, to determine the minimum jail/prison sentence. The judge is not required to follow the sentencing guidelines anymore. This is a recent change in the law. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.
Appeals from the District Court are heard in the Circuit Court. Appeals from a Circuit Court or Probate Court order are heard in the Michigan Court of Appeals. Appeals from Court of Appeals decisions are heard in the Michigan Supreme Court.
There are three kinds of appeals: (1) interlocutory, (2) of right, and (3) by leave.
Interlocutory appeal: occurs when a party tries to appeal a judge’s decision before the case has come to trial or before a trial is finished.
Appeal of right: occurs after a final order has been entered by the trial court (either a sentencing order, or an order dismissing the charge). A recent amendment to the Michigan Constitution has eliminated most appeals of right when a defendant pleads guilty. Most appeals of right now focus on the sentence imposed.
Appeal by leave of the court: occurs when an appeal of right is not available (e.g., because an available appeal of right was not filed on time). The appellate court has the discretion to reject the appeal or can “grant leave”.
If the appellate court grants leave to appeal, the defendant and Prosecutor file briefs that summarize the case facts, frame the legal issues to be decided, and present persuasive written arguments (supported by constitutional, statutory or prior case decision authority). Either party can request that the case be scheduled before the appellate court judges for oral argument. The appellate court will eventually issue a written opinion (or several opinions, if the justices disagree). Not all appellate opinions are “published” (i.e., printed in official “reporter” services, such as Michigan Reporter or Michigan Appellate Reporter). The legal analysis and conclusions in published opinions are given greater precedential authority than “unpublished” opinions.
We serve clients all over the State of Michigan, Including Charlevoix County (Charlevoix, East Jordan, Elmira, Boyne City,), Otsego County (including Gaylord, Johannesburg, Elmira), Kalkaska County, Emmet County (Including Mackinaw City, Alanson, Conway, Petoskey, Walloon Lake) Cheboygan County (including Cheboygan, Indian River).
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