August 29, 2018

Criminal Process

Criminal Process Michigan

The Williams Law Firm strives to familiarize you with the workings of the judicial system and to help you understand the landscape that will be yours for the immediate future. We go over your case and prepare you for the rigors of cross-examination by the prosecuting attorney. We try hard to eliminate negative surprises. We try hard to challenge you to what you actually know and do not fully know, what you are sure of and what you suppose, to any area of doubt, that your position is exposed to. We are not a “yes man” firm. We are here to do our job. We attempt to be harder on you than what a prosecutor or opposing counsel is allowed to do to you in court -for your survival on a potential day of reckoning.

Advice Before All Essential Parts Of The Proceedings

Your plea being placed on the record before the judge may well be the first time that you have ever stood before a court. We will instruct you beforehand regarding etiquette, i.e. what to say, how to dress, stand (no hands in your pockets, speaking loud enough, direct eye contact, etc.). We will also advise you about court procedure and please note that I will be standing right next to you in case a problem or issue should arise.

At the time of sentencing the judge will ultimately, after input from me as to your qualities and remedial efforts performed, listen to what you have to say quite carefully and thereafter only then decide on what the bottom line will be. He or she will gauge such a decision upon how much you may have learned from this, on whether or not this has truly gotten your attention, on whether this is something that requires the impact of some loss of freedom, on whether sending a message to the community is required, and lastly whether or not you might learn from some form of remedial education. Each sentencing is based upon its own fact situation and is tempered by what the judge perceives to be your overall attitude.

From day one the judge doesn’t know anything about you except why the police thought it necessary for you come before the court. If you plead guilty to some charge, he or she expects you to say that this will never happen again. He or she also expects you to say that you are sorry. During this process two primary things are reviewed: Your capacity for telling the truth consistently and, again, your disposition by way of complacency, seriousness, and sincere introspection in the aftermath of having made a poor decision. What is in the past you cannot now change. This office will attempt to place you in the best possible light but please understand that what happens to you will be affected by you presence and by your sincerity. 

Lastly, if it is your choice to select this office to represent you I will make every effort through the proceedings to ensure that your rights as guaranteed in the Michigan and Federal Constitution are applied to your case. My office will attempt to make you feel as comfortable and calm as we possibly can. My staff is here to provide you with all necessary assistance and to remove any confusion which may arise. If you cannot reach me, as I am quite often in court, leave your message with my assistant and she will make sure that I get it as soon as possible. The fact that you may not hear from me for a period of time does not mean that we are not working on your behalf. Please keep in contact with our office with regard to any changes to your address and/or telephone number, or any missed remedial efforts or appointments immediately.

Please make note of any questions or concerns you have so that we may discuss them during our next meeting or telephone conversation. You have retained me to give your issue my best effort and professional attention so please stay in contact. Lastly, inform me of any change in circumstance that may affect your case as soon as possible.

FAQs About the Criminal Process

What is the Judicial Branch of Government?

The Judicial Branch of government is the one that interprets the law. Going back to your high school civics classes when you learned, or perhaps first heard of, the balance of powers or the system of checks and balances, you may recall that we have three separate and distinct branches of government in this country, to wit:

  • The Executive Branch (President/Governor down to the Military/Police), which enforces the law;
  • The Legislative Branch (Senators and Representatives), which makes the laws;
  • The Judicial Branch (Judges, magistrates, prosecutors and defense attorneys), which interprets the law.

Each branch has officers as indicated above. A police officer is an Executive Officer, for example, and a defense attorney or prosecutor is a Judicial Officer, more commonly we are called Officers of the Court.

Example: A police officer stops you and makes an arrest. This does not mean guilt. It is his or her opinion that you may have broken the law. The police officer then takes this opinion to a judicial officer (usually a prosecutor) for a legally based opinion and thereafter, if at all, a warrant is issued. This is then taken to a judge or a magistrate where it is or is not authorized based on the merits of it (enough evidence to base an opinion of fact). In smaller more routine cases of a criminal citation being issued, the accused shows up at an arraignment and the preliminary inquiries are established and times and dates for the next hearing is provided. In any event, think of the arraignment as the “door bell” to the Judicial Branch where the facts and law are probed and interpreted. At that point the police officer is not longer acting in the capacity of an executive officer, per se: He or she now becomes a “complaining witness” -a witness for the prosecution who is subject to challenge and cross examination like any other witness by your defense counsel.

What will happen to me during an arrest?

When you are arrested, you are first taken into custody. This means that you are not free to simply leave. However, without being arrested, you can be detained, or held for questioning, for a short time if police officers have reason to believe that you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name, address and show some identification if requested.

What rights do I have during an arrest?

Whether or not you are a citizen or a non-citizen, you have certain rights if you are arrested. Before a law enforcement official questions you, the Officer must tell you this: 

  • You have the right to remain silent. Anything you say may be used against you. You have a right to have a lawyer present while you are questioned. If you cannot afford a lawyer, one will be appointed for you.

These are your Miranda rights, guaranteed by the U.S. Constitution. If you are not given these warnings your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This only applies if you volunteer information without being questioned by the police.

Once I am told my rights, can I be questioned?

You can be questioned without a lawyer present but only if you voluntarily give up your rights and only if you understand what you are giving up. If you agree to the questioning and then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you just continue to talk, your answers can be used against you if you testify to something different.

You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, you driver’s license will be suspended and the refusal will be used against in your court.

Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have a right to make and complete three telephone calls that are free within the local dialing area.

When should I see a lawyer?

If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. An attorney has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you, your family, and/or your friends on the bail process.

Who can arrest me?

All law enforcement officers can arrest you whether they are on or off duty, in most cases, such as police officers, county sheriff officers, highway patrol officers, and investigators in a district attorney’s or an attorney general’s office. A probation or parole officer can also arrest you.

They can arrest you even if they do not have an arrest warrant if they have a probable cause or good reason to believe you committed a felony. A felony is a crime of a more serious nature then a misdemeanor punishable by imprisonment for more than a year. They do not have to see you commit a felony in order to arrest you. They do however have to see you commit a misdemeanor in order to arrest you except in cases where there is an investigation predicated by an accident.

If you commit a civil infraction, instead of taking you into custody they may ask you to sign a citation or notice. This is a minor offense such as a moving violation where the punishment is usually a fine. If you sign the citation, you are not admitting guilt – you are only promising to appear in court. However, if you have no identification or refuse to sign, an officer may take you into custody.

Can someone other than a police officer arrest me?

Any person, such as a private security guard, can make a citizen’s arrest if they see a misdemeanor being attempted or committed. A misdemeanor is a criminal offense, usually punishable with a fine or short jail time of up to one year (although there are about five two-year misdemeanors). Any person can also make a legal arrest for a felony as long as it actually was committed and they have good reason to believe you did it. They must immediately thereafter take the individual to a police officer or judge who by their office is required by law to take you into custody. 

When is an arrest warrant used?

Usually a warrant is required before you can be taken into custody in your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property.

The warrant must be signed by a magistrate or judge who first must have good reason to believe that you, whom the warrant names, committed a crime. If your name is unknown, “John Doe” can be used, if there is uncertainty as to one’s legal name, on the warrant along with a description. Once an arrest warrant is issued, any law enforcement officer in the state can arrest you even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest, but the time delay can be challenged if the accused is prejudiced because of the government’s delay so long as he or she was not a fugitive avoiding process (Bisard Hearing).

Before entering your home, a law enforcement officer must knock or announce and identify him or herself as police and tell you that you are going to be arrested. Also before entering your home, a law enforcement officer can arrest you even if the officer does not have a copy of the warrant. If you refuse to open the door or if there is another logical reason to enter, the officer can break through a door or window. All individuals have a Constitutional right to resist an unlawful arrest with as much force as is being used against them, but prevailing in a case of resisting an unlawful arrest hasn’t been seen in Michigan since the 1980s.

If the police have an arrest warrant, you should be allowed to see it. If they don’t have the warrant with them, you should see it as soon as practical.

The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.

When can an officer conduct a search?

An officer may only make a search with either your consent or a search warrant. You have a right to see the warrant before the search begins.

When can an officer search me, my home, or my car without a warrant?

Body searches – If you are arrested, an officer can search you without a warrant for weapons, evidence or for illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods and they have authorization from the supervising officer on duty. If you are booked and jailed, you may have to undergo a full body search, including body cavities.

Home searches – In emergencies such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms -and even other parts of the same room -are off limits unless the officer has reasonable belief that other suspects are hiding in other rooms. While searching your home an officer can seize evidence of any crime such as stolen property or drugs that are in plain sight.

Car searches – The trunk of your car can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason, such as a broken tail light, they can only take any illegal goods that are in plain sight.

If you, your home or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. However if you, or your lawyer, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, this does not necessarily mean that your case will be dismissed.

Do I have the right in Michigan to resist an unlawful arrest?

Thirty years ago, virtually every State held by their Constitution or statute supported by case law that an individual had the right to resist an unlawful arrest. This is no longer true. Today only a handful of States, including Michigan, appear to have that common law right as a defense to a charge. However, pursuant to Michigan Compiled Law 750.81(b)(1), and the cases interpreting that statute, it appears unlikely that an individual today has the defense of resisting an unlawful arrest.

Therefore, understand the following:

If you are involved in a traffic stop and you ask the police officer why you were pulled over, have you obstructed or opposed the officer in the execution of his duties? Can you interfere in a five-on-one police beating of a suspect? This happened in New Orleans after Katrina. Can you interfere when the police taser a woman to death in an airport? This happened in an airport in Phoenix, Arizona. It seems that a citizen cannot act pursuant to their own judgment and conscience to intervene on another’s behalf when the police have engaged in clearly unlawful conduct without risking being charged with a felony under any circumstances.

When can I be released?

If the police, during the questioning and before a charge is filed, are convinced that you have not committed a crime, they will give you a written release. Your arrest will then be considered a detention and not recorded as an arrest.

What is bail and how is it set?

The amount of bail, bond money or other security deposit with the court is to ensure that you will appear in court at a later date. It is set by a schedule in each county. You may be notified that you can forfeit, or give up, bail instead of appearing in court if you receive a traffic citation. However if you have any doubt, go to court on your own or with an attorney so warrant for your arrest for failing to appear is withdrawn.

Officers at the jail may be able to accept bail. If you cannot post or put up bail you will be kept in custody. Depending on where you are arrested you may have the opportunity to request a bail reduction through a magistrate, district judge or, later in the proceedings, a circuit judge.

When you are taken to court for bail setting or release, the judge will consider the severity of your offense, any prior failures to appear (even for traffic tickets), your previous record, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for purposes of setting bail or release.

Instead of paying bail, you might be released on your personal recognizance (“a PR bond”). This means that you do not have to pay bail because the judge or magistrate believes that you will show up for court appearances without posting bail.

Who maintains arrest records and what do they include?

Local police departments and the State Department of Corrections (DOC) keep arrest records. According to the law, they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies that have a right by state law to investigate your criminal background. This is often referred to as the Sheriff’s Lien and it is never good evidence in court because it is speculative. However, records of conviction are good evidence to show a pattern of behavior that is more probative than prejudicial during a ten year time period, except under “Heidi’s Law” in which drunk driving can be used against the accused if this is a third offense within a person’s lifetime (challenged in two Court of Appeals cases). The record of convictions is called the Compiled Criminal History (CCH), and it is also a lien.

There are three types of liens: The Secretary of State Lien (usually ten years back except for drinking and driving convictions), the CCH record of convictions, and the Sheriff’s Lien.

The arrest record includes when and why you were arrested, whether or not the charges against you were dropped or were convicted, and the subsequent sentence imposed by the courts. Both pleading guilty and being found guilty after a trial count as convictions. The CCH also contains an arrest segment.

If you are convicted of committing a misdemeanor and then placed on probation and stay out of trouble, you may be able to have a conviction removed (“set aside”) from your record for such purposes as employment background checks after probation is over. If you are convicted of a felony and you successfully complete probation, you may in some cases have the felony reduced to a misdemeanor on your record. You must contact the probation officer in either instance as what will eventually show on your record. Note: Some felonies are ineligible for this process.

What happens at Arraignment?

An Arraignment is the first contact that one has with the Judicial Branch in a criminal case, the branch that interprets the law. Here you leave the Executive Branch i.e., the police. The police involved are no longer enforcement officers in the Judicial Branch but rather complaining witnesses for the Judicial Officer prosecutor. Hence, the police may no longer question you about the pending charges without permission of your attorney, or by direct order from the court.

You have the right to be arraigned without unnecessary delay, usually within two court days after being arrested. You will appear before a magistrate or district court judge who will tell you officially of the charges against you at your arraignment. This is call “The Arraignment on the Warrant.” He or she will also tell you the maximum sentence that the charge or charges carry if convicted. At the arraignment, an attorney may be appointed for you if you cannot afford one and bail can be raised or lowered. You also can ask to be released on a PR bond even if bail was previously set. 

If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead “nolo contendere,” meaning that you will not contest to the charges. Legally, this is the same as a guilty plea but it cannot be used against you in a non-criminal case unless the original charge was punishable as a felony.

Before pleading guilty to some first time offenses such as drug use or possession in small amounts for personal use, you will want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order that you undergo counseling which can result in dismissal of the charges if you successfully complete the counseling. If misdemeanor charges are not dropped, a trial will be held later in the appropriate court. If you are charged with a felony however, and the charges are not dropped or reduced, the next step is a preliminary examination.

What happens at a preliminary examination?

During the preliminary examination, usually within fourteen court days of the arraignment, the prosecuting attorney must present evidence showing a probable cause that a felony was committed and that you did it to convince the judge that you should be brought to trial.

You may have a second arraignment. If the felony charges are not dropped at the preliminary examination, you will be arraigned in Circuit court where your trial will later be held. This second arraignment is call “The Arraignment on the Information.”

If you are charged with a crime and are unable to understand English, you have a right to an interpreter throughout the proceedings.

What are my rights if my case goes to trial?

Both the judge and I will advise you of your trial rights if it should eventually be your choice to take advantage of an offered plea arrangement. These rights include:

  • That you may have a trial before a Judge or before a jury.
  • That you are presumed to be innocent until otherwise found to be guilty beyond a reasonable doubt.
  • That you have the right to take the stand in your own defense or not to take the stand and be subject to cross examination, and this is only your choice to make, and if you choose not to take the stand the judge will instruct the jury that no inference of guilt can be drawn from this choice.
  • That you may cross-examine all of the prosecution’s witnesses that are called to testify against you, that you may call your own witnesses to testify in your defense and, if they are reluctant or refuse, the Judge would force them by subpoena to be there.
  • That you don’t have to prove anything and that it is the job of the prosecutor to prove you guilty, and that if he or she fails to do this the case will be dismissed.
  • Lastly, if at any time during the court proceedings you are not able to afford an attorney, one will be appointed for you at public expense.

These rights are a matter of due processThey are your guaranteed Constitutional rights. If you wish to waive these to take advantage of a favorable plea arrangement, you must do so on the record.

Further, please know that The Michigan Constitution of 1963, Article 1, Section 20, provides you with what are referred to as your trial rights and it reads as follows:

  • “…In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than twelve jurors in prosecutions for misdemeanors punishable by imprisonment for not more than one year: to be informed of the nature of the accusation; to be confronted with the witness against him; to have the assistance of counsel for his defense; to have an appeal as matter of right; and as provided by law, when the trial Court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.”

Please not that this information is current as of 2013, and is general information on the law, which is subject to change.

If you have a specific legal problem,
call us at 517-337-8100.

As to the criminal law side of our practice, we are a defense firm but have in the past and do today also represent victims of crime, usually economic victims, on a civil basis. In a criminal victim situation, we put the aggrieved party in touch with the Michigan Attorney General’s office or Federal District Attorney’s office for representation, which is done at the taxpayers’ expense. However the representation of the accused is our primary area of advocacy and defense. In so doing The Williams Law Firm works closely with outstanding forensic experts, medical and specialty experts who are there to offer testimony, and private investigators, many of whom have had a federal or state law enforcement background. These resources, and the skills of decades of experience and training, have resulted in many not guilty verdicts. Many of our cases come from other attorneys who refer their clients to us and many also come to us through word-of-mouth by way of past clients. Many of our cases have attracted the attention of the media. If you have been charged with any criminal offense, contact our office to learn how we can defend you effectively. Initial consultations are free of charge.

Let Us Help You

The Williams Law Firm has the experience and expertise to deliver case altering results on behalf of our clients. The Firm has represented thousands of individuals singled out during criminal investigations and charged with all levels of crime. We have successfully tried cases on nearly all criminal charges -from complicated violence and sex crimes to domestic violence, OWI, assault, weapons cases, theft, the ever popular Under 21 set of crimes, and virtually every type of drug case. The Firm has prepared hundreds of witnesses for testimony and for appearances before countless court and legal proceedings. We are dedicated to providing our clients with unfailing service from the moment that we become involved to the conclusion of the case – no matter how long this may take.