Radner Legal Services
 

Practice Areas
Criminal Defense / Criminal Case Process
GENERAL PROCEDURE IN A FELONY PROCEEDINGclick here to view info
  1. Police are notified of crime.
    The police are notified of a crime that was committed. Notification may be in the form of the filing of a police report, police officers actually witnessing the crime being committed, or an anonymous tip.
  2. The police conduct an investigation.
    Upon receiving notice that a crime was committed, the police investigate to determine if a crime actually took place, and if an arrest should be made. The investigation may include interviewing parties involved in the crime, interviewing witnesses, examining evidence, etc.
  3. The police arrest a suspect. (An arrest may also take place AFTER a warrant is issued. See "4" below.)
    An arrest may follow a police officer being present when a crime was committed, a police officer having probable cause to believe that a crime was committed, or after a warrant was issued for the arrest of a suspect. Either way, the existence of probable cause that a crime took place and that it was committed by the suspect must be proven by the prosecutor or the case will usually be dismissed at the Preliminary Examination.
  4. An arrest warrant is issued.
    The prosecutor reviews the details of the case and determines if it wants to issue formal charges. In order to issue formal charges against a suspect, the prosecutor must believe that it has probable cause that a crime was committed and that the suspect committed the crime.
  5. District Court arraignment.
    The suspect is brought to court where he is informed of the charges with which he/she is being charged. The suspect is also given notice of all rights that go along with a criminal prosecution (i.e. presumption of innocence, right to counsel, etc.) Bond, if applicable, is also set at this stage. The suspect is then advised of his right to have a Preliminary Examination within 14 days and may be appointed counsel at this time. During the district court arraignment for a felony, the suspect does not enter a plea.
  6. Pre-Exam Conference.
    Depending on the charges, the court may schedule a Pre-Exam Conference, which is very similar to a misdemeanor pre-trial conference. The prosecutor meets with the suspect's attorney to see if a plea deal can be reached without the need to subpoena witnesses to appear at the Preliminary Examination.
  7. Felony Preliminary Examination in District Court.
    At this examination, the burden is on the prosecutor to show the judge that probable cause exists that a crime was committed in that jurisdiction, and that there is probable cause to establish that the suspect committed it. The prosecutor must establish that probable cause exists for each and every element of every crime with which the suspect is being charged. This is attempted through the presentation of evidence including witness testimony. If the judge determines that probable cause exists that a crime was committed, and that the suspect committed it, the judge will bind it over to trial court. However, in very rare instances, the suspect's attorney may succeed in persuading the judge that the prosecutor failed to meet the probable cause threshold, in which case the charges are dismissed, usually without prejudice. It is also possible for some charges to be dismissed but for some charges to survive the Preliminary Examination. The judge may bind over the defendant to circuit court on the charges, on some of the charges, on reduced charges, or may dismiss the charges all together. In certain circumstances, the best course of action if for the suspect to waive his Preliminary Examination, in which case his case is sent to the circuit court for an arraignment.
  8. Circuit Court Felony Arraignment
    The suspect is given formal notice in court of exactly which charge or charges are being prosecuted against him. The formal charging document is referred to as the Information. The suspect also enters a plea for the first time at his arraignment. The pleas are guilty, not guilty, or standing mute, in which case the court will enter a plea of not guilty. Many cases are resolved at this point with a plea deal.
  9. Pre-Trial Conference/Calendar Conference
    If no plea deal was reached at the arraignment, the circuit court often schedules a conference where the prosecution and the defense determine if the case can be resolved with a plea deal or if it will go to trial.
  10. Pre-Trial Proceedings
    The circuit court determines various issues that may arise prior to the date of the trial. Issues that may be raised include the admissibility of evidence at trial, often decided at a Suppression Hearing. These issues are resolved during the pre-trial proceedings stage of the prosecution.
  11. Trial
    There are two types of criminal trials: Bench trials, and jury trials. For most crimes, both the criminal suspect and the prosecutor have the right to request a jury trial. In limited circumstances, for tactical reasons, lawyers may feel the best course of action is to allow the judge to be the fact-finder as well as decide legal issues., in which case they will request a bench trial. In both kinds of trials, the prosecutor must prove each and every element of a particular crime beyond a reasonable doubt to the jury. If the prosecutor fails, the jury must acquit, even if the defense says and does nothing. The burden of proof is not the defense; however the defense attorney obviously will challenge the ÒproofsÓ being offered by the prosecution in an effort to show the jury that there remains a reasonable doubt as to whether or not the suspect committed a particular crime. If itÕs a jury trial, a guilty verdict must be unanimous. If itÕs not unanimous, the judge will usually declare it a mistrial, and the prosecutor is then free to re-try the case if it so desires.
  12. Pre-Sentence Report
    The court's probation department conducts an investigation, after which it submits a sentence recommendation to the judge. The probation officer's report will generally summarize the crime, the defendant's background including past criminal convictions, and a sentence recommendation based on all the information available. The victim will very often submit a sentence recommendation to the court as well.
  13. Sentencing
    A criminal sentence for any particular crime will vary widely based on many different factors. Sentencing discretion is usually left to the judge, but there are general sentencing guidelines set by the Michigan Truth in Sentencing laws, which set the minimum and maximum sentences for a specific conviction. Before issuing a sentence, the judge will usually consider the pre-sentence report, the victims' statements, the defendantÕs criminal history, and the Òsentencing guidelinesÓ if itÕs a felony.Ó The judge considers everything in determining an appropriate sentence, be it probation, community service, fines, or a lengthy prison sentence. The judge will also order the defendant to pay restitution to the victim, if the victim suffered an economic loss.
  14. Appeals
    The appellate process can be confusing and complicated. To simplify it, there are three kinds of appeals:
    1. Interlocutory appeal — when a party attempts to appeal a ruling that is not considered to be a "final order" and the court has discretion to review or not
    2. Appeal of right — an appeal made after a final order is entered by the court and the court must review the order
    3. Appeal by leave of the court — an appeal that the appellate court may rant leave to review the order, but is not obligated to (if for example an appeal of right did not result in the sought-after result, the appellant may appeal it to the next appellate court, but that court has discretion to review the order)


GENERAL PROCEDURE IN A MISDEMEANOR PROCEEDINGclick here to view info
  1. Police are notified.
    The police are notified of a crime that was committed. Notification may be in the form of the filing of a police report, police officers actually witnessing the crime being committed, or an anonymous tip.
  2. The police conduct an investigation.
    Upon receiving notice that a crime was committed, the police investigate to determine if a crime actually took place, and if an arrest should be made. The investigation may include interviewing parties involved in the crime, interviewing witnesses, examining evidence, etc.
  3. The police arrest a suspect. (An arrest may also take place AFTER a warrant is issued.)
    An arrest may follow a police officer being present when a crime was committed, a police officer having probable cause to believe that a crime was committed, or after a warrant was issued for the arrest of a suspect. Either way, the existence of probable cause that a crime took place and that it was committed by the suspect must be proven by the prosecutor or the case will usually be dismissed at the Preliminary Examination.
  4. An arrest warrant is issued.
    The prosecutor reviews the details of the case and determines if it wants to issue formal charges. In order to issue formal charges against a suspect, the prosecutor must believe that it has probable cause that a crime was committed and that the suspect committed the crime.
  5. District Court arraignment.
    The defendant is brought to court where he is informed of the charges with which he/she is being charged and their maximum penalties. The defendant is also informed of all the rights that go along with a criminal proceeding (i.e. presumption of innocence, right to counsel of DefendantÕs choosing, etc.) Bond, if applicable, is also set at this stage. Bond is set in most cases and often comes with certain conditions, which the suspect must follow or risk having the bond revoked. IN misdemeanor proceedings, the defendant will also enter a plea at this time. The possible pleas are: Guilty, Not Guilty, No Contest, or standing mute, which the court treats as a Not Guilty plea. In the case of a No Contest plea or a Guilty plea, the court will either sentence the defendant on the spot, or schedule a sentencing date so that the court has time to review the pre-sentence report. If the plea entered is Not Guilty or standing mute, the court will schedule a pre-trial conference.
  6. Pre-Trial Conference
    The prosecutor and defense attorney meet to determine if a plea agreement will be reached, or if the case will need to go to trial. Prosecutors are often willing to dismiss counts or reduce the charges to avoid the costs and efforts of trying the case. A great deal of misdemeanors result in plea bargains.
  7. Pre-Trial Proceedings
    The court will schedule hearings and rule on motions brought by either or both sides to determine pre-trial matters, such as the admissibility of evidence, whether or not the suppression of evidence is warranted, or whether there is some other reason that the defendant should not stand trial. Either side may present issues to the court by means of written "Motions" that the judge will rule on, usually after an Evidentiary Hearing. The judge may also establish other ground rules for trial.
  8. Trial
    There are two types of criminal trials: Bench trials, and jury trials. For most crimes, both the criminal suspect and the prosecutor have the right to request a jury trial. In limited circumstances, for tactical reasons, lawyers may feel the best course of action is to allow the judge to be the fact-finder as well as decide legal issues., in which case they will request a bench trial. In both kinds of trials, the prosecutor must prove each and every element of a particular crime beyond a reasonable doubt to the jury. If the prosecutor fails, the jury must acquit, even if the defense says and does nothing. The burden of proof is not the defense; however the defense attorney obviously will challenge the ÒproofsÓ being offered by the prosecution in an effort to show the jury that there remains a reasonable doubt as to whether or not the suspect committed a particular crime. If itÕs a jury trial, a guilty verdict must be unanimous. If itÕs not unanimous, the judge will usually declare it a mistrial, and the prosecutor is then free to re-try the case if it so desires.
  9. Pre-Sentence Report
    The court's probation department conducts an investigation, after which it submits a sentence recommendation to the judge. The probation officer's report will generally summarize the crime, the defendant's background including past criminal convictions, and a sentence recommendation based on all the information available. The victim will very often submit a sentence recommendation to the court as well.
  10. Sentencing
    A criminal sentence for any particular crime will vary widely based on many different factors. Sentencing discretion is usually left to the judge, but there are general sentencing guidelines set by the Michigan Truth in Sentencing laws, which set the minimum and maximum sentences for a specific conviction. Before issuing a sentence, the judge will usually consider the pre-sentence report, the victimsÕ statements, the defendantÕs criminal history. The judge considers everything in determining an appropriate sentence, be it probation, community service, fines, or a lengthy prison sentence. The judge will also order the defendant to pay restitution to the victim, if the victim suffered an economic loss.
  11. Appeals
    The appellate process can be confusing and complicated. To simplify it, there are three kinds of appeals:
    1. Interlocutory appeal — when a party attempts to appeal a ruling that is not considered to be a Òfinal orderÓ and the court has discretion to review or not
    2. Appeal of right — an appeal made after a final order is entered by the court and the court must review the order
    3. Appeal by leave of the court — an appeal that the appellate court may rant leave to review the order, but is not obligated to (if for example an appeal of right did not result in the sought-after result, the appellant may appeal it to the next appellate court, but that court has discretion to review the order)