FELONY

           

At a felony arraignment in District Court, the defendant does not plead guilty or not guilty.  He is advised of his rights to a preliminary examination within 14 days of the arraignment.  The court reviews requests for court-appointed attorneys at the arraignment.

 

Felony Preliminary Examination – A contested hearing before the District Court Judge.  The Prosecutor presents witnesses to convince the Judge that there is probable cause to believe a crime was committed and that there is reason to believe that the defendant committed it.  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 “prelim”.  Generally, the victim, some eye witnesses, plus some of the police witnesses testify.  The defendant usually has an attorney, can cross examine the witnesses, and can present his own evidence (including witnesses).  If probable cause is proven, the defendant is “bound over” to Circuit Court for trial.  If probable cause is not proven, the felony charge can be dismissed or reduced to a misdemeanor charge (which would proceed to trial in District Court).  A defendant can decide not to have a Preliminary Examination.  Most felonies arrive in Circuit Court after such a “waiver”.

 

Pretrial conference – A Circuit Court 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 – As with District Court misdemeanors, the Circuit Court Judge may be asked to resolve pre-trial issues, some of which determine whether the case will continue to a trial, be resolved with a plea, or be dismissed.

 

Status conference – This is similar to a pretrial conference, but it is the last meeting between the defendant (or counsel) and the prosecuting attorney to enter into a plea agreement.

 

Trial (Jury or Bench/Judge) – A trial is an adversary proceeding in which the Prosecutor must present evidence to prove the defendant’s guilty 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.

Both the defendant and the Prosecutor have the right to a trial by a jury.  In a misdemeanor case, the jury will consist of 6 people.  Sometimes, both sides agree to let a Judge listen to the evidence and decide the case without a jury; this is called a “bench trial”.  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.

Here is a general outline of the steps in a jury trial:

1.     Residents of Montmorency County are randomly selected from a Secretary of State list of licensed drivers and are summoned to the Court as potential jurors;

2.     A blind draw selects twelve people from that group.

3.     The Judge, Prosecutor and defense attorney question the jurors about their backgrounds and beliefs (see voir dire);

4.     The attorneys are permitted a limited number of “peremptory” challenges to various jurors (or an unlimited number of challenges for good cause).  Peremptory challenges can be used for any reason and the attorneys are not required to say why they are excusing a juror.

5.     After twelve acceptable jurors remain, the Judge administers an oath to the jury and reads the basic instructions about the trial process, etc.

6.     The Prosecutor gives an opening statement to outline his case and evidence to the jury;

7.     The defense may give a similar opening statement, or wait until later in the trial;

8.     The Prosecutor calls his witnesses, which the defense may cross examine;

9.     The People close their proofs;

10.            The defense may call witnesses, if it wants, and the Prosecutor may cross-examine them;

11.            The defense rests;

12.            The Prosecutor may present “rebuttal” witnesses/evidence to challenge evidence presented by the defendant during his proofs;

13.            The Prosecutor rests;

14.            The Prosecutor presents a closing summary to the jury;

15.            The defense attorney presents a closing statement to the jury;

16.            The Prosecutor may present a rebuttal argument to the jury to respond to the defendant’s attorney’s closing summary;

17.            The Judge gives the jury detailed legal instructions about the charged crime, the deliberation process, etc.

18.            The jury deliberated and returns a verdict.

 

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 recommendation of sentence.  The probation officer concludes the report with a recommended sentence.

 

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.  At the time of sentencing, the judge will consider the information in the pre-sentence report before determining the sentence.  The parties may correct factual errors in the pre-sentence report and offer additional evidence relevant to the judge’s sentencing decision.  For felony crimes, the judge will consult the “sentencing guidelines” (established by the Michigan Supreme Court as a reference for framing an appropriate sentence throughout the state, considering factors of the crime and the defendant’s criminal background) 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.

 

Appeals – Appeals from the Circuit Court or Probate Court are heard in the Michigan Court of Appeals.  Appeals from the Court of Appeals decisions are heard in the Michigan Supreme Court. 

There are three kinds of appeals:  (1) interlocutory, (2) or 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 the 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. printer in the 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.