Lynn D‘Orio, JD, PLC

Criminal Justice Overview

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Police Make an Arrest (or Request a Warrant)
When a crime is committed in a police officer's presence, the officer may arrest a suspect on the spot without an arrest warrant. However if the officer has probable cause to believe that certain misdemeanors (domestic violence for example) or any felony was committed that the officer did not see happen, the officer can arrest the suspect without an arrest warrant. In either situation, the officer will later submit a warrant request to the Prosecuting Attorney. The warrant request contains the officer's suggestion of the potential charges to be authorized.

Warrant/Charging Request Reviewed by Prosecuting Attorney
Ultimately, the prosecutor determines whether a person should be charged with a crime and, if so, what the crime should be. Before making the decision, the prosecutor must review all police reports and records concerning the case. That review includes statements of witnesses and (in some cases) the suspect. The suspect's prior criminal or traffic records are reviewed, too. If there is not enough evidence to support charging the suspect, the prosecutor may send the case back to the police to conduct additional investigation or decline to authorize the request for a warrant / to charge.

Warrant Issued
A charge or warrant is issued if the prosecutor reasonably believes that probable cause exists that the suspect committed the offense.

Suspect Arrested (if not already in custody)
After the warrant is issued, the suspect is arrested. The "suspect" is now the "defendant" because s/he was officially charged by the prosecutor.

For minor offenses, the defendant may receive a notice in the mail or a phone call to turn him or her self in. For more serious offenses, the police will go get the defendant and make the arrest.

Whether the defendant walked into the police station alone or was brought there by the police, the next step is "booking". That is the time when the defendant is finger printed and photographed at the police station. After that, the defendant will go before a magistrate or district court judge to be formally be charged with the offense. This next step is the arraignment.

Courtroom

Arraignment
This is the first court appearance for any misdemeanor or felony. A district court judge or magistrate tells the defendant what the charge(s) is (are) and the maximum penalty if convicted. He or she advises the defendant of the constitutional rights to a jury or bench trial, appointed attorney and the presumption of innocence. The document that lists the charges against a defendant is a "Complaint. "

The magistrate or judge will ask the defendant how s/he pleads. A defendant can choose one of two general options: Guilt or innocence. If the defendant pleads not guilty or stands mute (not saying anything about your guilt or innocence) it means the defendant says, "I am innocent" and will continue with the process. This is your safest option even if you believe you committed a crime. This option allows a defendant to go to trial or negotiate with the prosecutor for a plea bargain. Pleading No Contest or Guilty at the arraignment both result in a conviction on your record and eventual sentencing without the benefit of a possible reduction of the charges or a trial.

The magistrate or judge will also consider bond/bail at this time. If the offense is not too serious, the defendant lives and works in the area and the offense was non-violent, a personal recognizance bond should be granted. That means the court will accept a defendant's promise that he or she will return to court as ordered. If the defendant breaks that promise, he or she may owe the court money and could go to jail until the case is resolved.

If the crime is of a serious nature and/or violent and/or if the defendant is from out of town or does not have a job or place to live in the area, the court may require the defendant to pay a certain amount of money or "bond" in order to remain free from jail. Failure to pay the bond amount in full results in the defendant being sent to the county jail.

The magistrate or judge may impose conditions, such as "no contact" with the victim, if necessary.

After arraignment, the procedures differ for misdemeanor and felony cases.

Misdemeanor Procedure

If a defendant pleads guilty or no contest to a misdemeanor, the Judge may sentence the defendant immediately or the case will be scheduled for a sentencing date. The cases where sentencing is immediate are usually those where only fines may be imposed. For other cases, which may result in incarceration and/or court-ordered therapy (such as participation in Alcoholic Anonymous, Alternatives to Domestic Aggression to name a few) and/or community service, the probation department must prepare a pre-sentence report including background information about the defendant and the crime. The probation agent also makes a sentencing recommendation to the judge.

If the defendant stands mute or pleads not guilty, the case will be scheduled for a pre-trial conference.

The prosecutor and defendant (or his/her attorney) discuss whether the case will go to trial or be resolved with a plea. (Keep in mind that over 90% of ALL cases - criminal and civil - are resolved without going to trial. Criminal cases are resolved by a plea bargain or dismissal. Civil cases are resolved pre-trial by a settlement or dismissal.)

The judge and witnesses are not directly involved in pre-trial conferences. If a plea bargain is offered, it is typically done at the pre-trial.

Many other events can occur prior to trial. Depending on the nature of the case, there may be pre-trial hearings on Constitutional issues (confessions, searches, identification, etc.), whether there is some legal reason why the defendant should not be tried, or decide other ground rules for trial.

Felony Procedure

Halls of Justice

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 (PEX). 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 PEX.

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. A defendant can waive the right to have the PEX held within 14 days of the arraignment. This request is typically made when the defendant hired an attorney only a day or two before the PEX or where the prosecutor only recently gave defense counsel the police reports.

At the hearing, 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 PEX. The defendant, through his attorney, can cross-examine the witnesses and present his own evidence (including witnesses). If probable cause is established, the defendant is "bound over" (i.e., sent to) Circuit Court for trial. 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 give up his right to a Preliminary Examination. Most felonies arrive in Circuit Court after such a "waiver".

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) and s again advised of his/her constitutional rights. The charging document is called an Information. The defendant may enter a plea to the charge of guilty, not guilty or stand mute.

Pre-Trial Conference - The Circuit Court may schedule a meeting between the prosecuting attorney and the defendant's attorney to determine whether the case will go to trial or be resolved with a plea.

Other Pre-trial Proceedings - Motions can be filed by both the defense and prosecution. These motions address many issues - from evidence a party wants to be admitted at trial, to the appointment of an expert, to the legality of an arrest, a confession or a search. Some of these motions are called "dispositive" because the judge's ruling will determine whether the case will continue to a trial or be dismissed.

Trial (Jury or Bench/Judge) At trial the prosecutor must present evidence to prove the defendant's guilt beyond a reasonable doubt. Crimes are composed of elements. For example: Carrying a Concealed Weapon requires the prosecutor to prove: (1) The defendant carried a weapon on his/her person and (2) The weapon could not easily be seen by others. The prosecutor in such a case must prove beyond a reasonable doubt that both elements existed at the time of the offense. In other words, a defendant could be not guilty of the charge of carrying a concealed weapon if the facts show the defendant carried the weapon in the open. Element (1) is proved beyond a reasonable doubt; but element (2) - that of concealment - cannot be proved beyond a reasonable doubt.

A defendant is not required to prove his or her innocence or to present any evidence during a trial. However, the defendant will most likely test the accuracy of the prosecutor's evidence by way of cross examination of the prosecution's witnesses.

In a jury trial, the jury is the "trier of fact"; in a bench trial, the judge is. After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime.

Felony and Misdemeanor Jury trials:
Jury selection: In felony cases, 12 people are selected by blind draw to form the jury. In Misdemeanor cases, 6 jurors are selected. In both cases one, sometimes two extra jurors are selected as alternates.

The Judge, prosecutor and defense attorney question the jurors to learn about them. This is jury voir dire. The information obtained allows the parties to determine whether a juror can give the defendant a fair trial. For example, if a potential juror was a victim of the very same type of crime the defendant is charged with, he or she may not be able to separate that experience from the evidence presented at the trial. That juror may be excused form sitting on the jury. On the other hand, if the juror heard about a friend of a friend who was a victim of the same type of crime, the juror could probably keep the facts of that disstant case from the evidence presented at the trial.

A limited number of "peremptory" challenges to various jurors are allowed. That means the attorneys can request a certain juror be removed from the panel for any or no reason at all. Of course, an attorney cannot select jurors on the basis of race or gender. An unlimited number of challenges for good cause, like the crime victim mentioned above, are allowed.

Once the jury is selected, the Judge administers an oath to the jury and reads basic instructions about the trial process, etc.

Opening statement: The Prosecutor gives an opening statement to outline the People's case and evidence to the jury. The defense can give a similar opening statement, or wait until later in the trial.

Prosecutor's case in chief: The Prosecutor calls witnesses such as the victim, the police officers who investigated, technicians who performed analysis of evidence and others. The defense may cross examine all of these witnesses. After its last witness, the Prosecution closes its proofs.

Defendant's case: The defense may call witnesses, but it does not have to call any witnesses. The Prosecutor may cross-examine all of the defense witnesses. After its last witness, the defense rests.

Rebuttal witnesses: The Prosecution may present "rebuttal" witnesses/evidence to challenge evidence presented by the defense during its proofs. For example, if the defense was an alibi (the defendant was somewhere else when the crime was committed), the prosecution may present witnesses to contradict what the alibi witnesses said. Once complete, the Prosecutor rests.

Closing argument: The Prosecutor presents a closing summary to the jury, then the defense attorney presents a closing summary to the jury. Because the burden of proof is on the Prosecution, it may present a rebuttal argument to the jury to respond to the defense attorney's closing summary.

Jury instructions and deliberation: The judge gives the jury detailed legal instructions about the charged crimes, the deliberation process and defense. The jury deliberates and returns a verdict, which must be unanimous.

Pre-Sentence Investigation and Report: The court's probation department prepares a report for the judge summarizing the crime, the defendant's personal and criminal backgrounds as well as the defendant's version of the crime. If provided by the victim, his or her recommendation of sentence is also included in the report. The probation officer concludes the report with a recommended sentence.

Sentence: Sentencing in Michigan varies with the crime. The Legislature sets the maximum sentence for almost all crimes. (Some crimes are punishable by up to life in prison or "any term of years. When imposing a sentence of "any term of years", the judge will set both the minimum and maximum sentence.

Before imposing a sentence, the judge will consider the information in the pre-sentence report, additional evidence offered by the parties, comments by the crime victim, and other information relevant to the judge's sentencing decision.

Courtroom

For felonies, the Circuit Court judge will consult "sentencing guidelines". 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 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.