The purpose of this letter is to explain the general process of a misdemeanor criminal case.
Criminal cases almost always begin with the report of a potential offense to law enforcement. In Wexford County, we have the Michigan State Police, Department of Natural Resources, Wexford County Sheriff, City of Cadillac Police Department, and Manton Police Department. While most cases begin with contacting one of our dedicated and professional law enforcement agencies, some cases may be initiated by other sources.
Investigations are not always completed the same day the case is reported to law enforcement. Often, law enforcement must gather additional evidence in order to complete the investigation.
Often, law enforcement is able to initiate an arrest at the first report of a potential offense. The U.S. and Michigan Constitutions provide that all people are free from unreasonable search and seizure of their person or things without a warrant being issued by a judge or magistrate. The seizure of a person is called an arrest.
Law enforcement need not obtain a warrant to effectuate an arrest when circumstances lawfully provide for it. For instance, if the individual presents an immediate danger to self or others, such as drinking and driving cases, or when the offense has been committed within the presence of the officer. In these instances, the officer may arrest and detain the individual for a short period of time until a bond can be set by the judge or magistrate and posted on behalf of the individual. The officer must still have probable cause to believe that a crime was committed by the individual and circumstances provide that seeking an arrest warrant is unreasonable.
4. CHARGING DECISIONS:
When law enforcement complete an investigation, they prepare a police report and send it to the Wexford County Prosecutor for review and determination of whether a criminal complaint and request for warrant should be filed. The Wexford County Prosecutor is the chief law enforcement officer for the county and part of a team of law enforcement professionals.
The prosecutor will review the investigation report. He may request the law enforcement officer conduct more investigation and gather more evidence should he think it be needed.
Each criminal offense is made up of elements. To find the defendant guilty of a criminal offense, the prosecutor has the burden to prove each element of the offense beyond a reasonable doubt. The defendant is presumed innocent until the prosecutor proves to a judge or jury each of the elements for each charged offense. When the prosecutor makes a charging decision, he is considering the facts and whether or not he is able to prove the defendant’s guilt. According to the Michigan Rules of Professional Conduct, the prosecutor may not knowingly file a complaint and warrant request for an offense for which there is not at least probable cause.
When making a charging decision, the prosecutor does so within his professional assessment. What may be concerning to some victims, witnesses, and their families is that what a lay person may feel is a wrong does not necessarily mean that the wrong is a crime or the evidence proves each of the elements. Outside of the courtroom, people tend to have common understandings of words, such as carelessness, negligence, or reckless. In the courtroom, these words may have specific and different meanings that govern whether or not a crime, not a moral wrong, was committed. Additionally, the Michigan Court of Appeals, Michigan Supreme Court, or U.S. Supreme Court may have issued legal precedence that guides the application of law to facts. Moreover, the Michigan Rules of Evidence place limitations and rules on whether evidence is or is not admissible. The statute of limitations may also mean that it is too late to charge a particular offense. Thus, when making a charging decision, the prosecutor is assessing the facts in light of a complex set of legal issues.
Television and movies have created a possible incorrect impression of what is meant by “pressing charges.” While the prosecutor does often consider the desire of victims, the decision to charge, not to charge, and what to charge is that of the prosecutor alone.
Citations, or tickets, are often issued by police in some criminal offense, such as a municipal ordinance violation or a violation of the Michigan Motor Vehicle Code. These citations are the charging document for civil infractions, which are violations of the law, but are not a crime.
Some citations may be used when a police officer cites one for a civil infraction, but also notes possible crimes as well. For instance, if during a traffic stop a police officer cites a person with a civil infraction for speeding, he may also note that the individual may have also committed a crime, such as operating while intoxicated or operating while one’s license is suspended. For the misdemeanors listed on a citation, the police officer will forward the citation and a police report to the prosecutor for possible charging through the filing of a criminal complaint.
6. COMPLAINT AND WARRANT:
A criminal complaint is filed by the Wexford County Prosecutor along with a request for an arrest warrant in the District Court. The complaint must list, among other information, the charges for which the prosecutor elects to charge or allege the defendant committed. It must list the law allegedly violated, the maximum punishment, whether it is a misdemeanor or felony, the name of the victim, and the date and location of the alleged offense.
The complaint and warrant request are sworn to by the officer in charge of the case before the District Court judge or a magistrate. The court then accepts the complaint and issues the warrant. The officer usually then goes out and arrests the defendant. In some cases, the officer may call the defendant, inform the defendant of the warrant, and provide him an opportunity to turn himself in to the police station or at court at a particular date and time.
The first court appearance is called an arraignment. It is conducted before a judge or magistrate. The purposes of the arraignment are for the judge or magistrate to ensure the defendant is informed of the charge(s), the maximum punishment(s) available, and his rights under the law. At the arraignment, the defendant may plead guilty or not guilty. If jail is a possible punishment, the court may simply enter a not guilty plea on the defendant’s behalf, especially if the defendant is requesting counsel or has retained counsel already.
8. BOND HEARING:
The second step in the court process is for the court to set bond. In the case of some minor offenses, standard bonds are set and, when the person is arrested without a warrant, such as in a drinking and driving case, paid at the county jail. In other cases, there is a bond hearing, which occurs at the same time as the arraignment.
A bond is an agreement or condition one enters into with the court order to be released pending the result of the case. The purpose of bond is not to punish; rather, it is to help ensure the person continues to come to all court dates. There are specific rules that govern the setting of bonds. There are also a couple different types of bond.
A personal recognizance bond is simply a promise to attend all hearings. The person need not pay any money in order to be released. A cash or asurety bond is a financial bond that must be posted in its entirety as a condition of release. A 10% bond is when one must pay 10% of a financial amount set by the court. For instance, if the judge says that it is a $10,000 10% bond, one must pay $1,000 as a condition of release.
When bond is set, there may also be other conditions, such as no contact with the complainant, no consumption of alcohol, or daily/random drug or alcohol testing.
If someone fails to comply with the conditions of bond, the court may issue a warrant for the individual’s arrest. At a hearing, the judge may revoke bond, reset bond, or forfeit bond. If bond is forfeited, the court may order to the money posted be kept, or, in the case of a 10% bond, the remaining 90% is due as well.
If someone cannot afford to pay a bond, they may seek assistance from a bondsman. A bondsman posts the bond on behalf of the defendant typically for a nonrefundable fee. The fees may be, for example, 10% of the amount posted. The bondsman may require the posting of collateral.
9. PRETRIAL CONFERENCE:
A pretrial conference is a court ordered opportunity for the two parties to meet at the courthouse to discuss the case. Often, this is the first time the two parties have had to discuss the case. The defendant and his defense counsel plus a prosecutor must appear at the court for this conference.
At this conference, the parties may discuss possible resolutions of the case. If the parties reach an agreement at this conference, the parties may be able to enter a plea on the record before the court. In some instances, they may be able to enter both a plea and receive a sentence if permitted by the court. In cases for which there is a specific victim, the sentencing may be set at a future date in order to permit the victim to be heard by the court on sentencing.
The prosecutor will usually tender a pretrial offer on a pretrial statement form. The defendant will usually accept, reject, or defer his decision. The form is then turned in to the court, which then sets the case for a second pretrial conference or trial.
If the parties to not reach a pretrial agreement or if the defendant has not pled guilty to the charges, the case is then set for a trial. Between the date of the pretrial conference and trial, the parties my file motions challenging evidence or seeking pretrial rulings on legal issues before the trial.
The venue of a trial is the county in which the trial is to be held.
The forum of a trial is whether or not the case is decided by a judge or a jury of 6 members.
In the case of misdemeanors, sentencing is either done at the time of conviction. If the conviction occurs as a result of a plea or trial and it is a Victim’s Rights Act case, the court may set the sentencing at a later date in order to ensure the victim has the opportunity to attend and be heard. If sentence involves confinement, the defendant is usually taken into custody at that time.
A misdemeanor is a crime punishable by no more than 1 year. That period of confinement is spent in a county jail and not a prison operated by the Michigan Department of Corrections. Unlike in a prison sentence, when one is confined in jail, he receives up to 5 days of good conduct time for every 30 days. Plus one may receive early release based on good behavior and alternatives to confinement, such as community correction programs, including tether or other devices.
Probation is also a possibility. This is when one is assigned to a probation officer and monitored in order to attend rehabilitation or ensure one is not committing further misconduct.
14. FINES, COSTS, AND RESTITUTION:
The court may also assess fines as a punishment, additional court and state costs, and payment of restitution to victims for their losses.