Steps in a Criminal Case

WHAT HAPPENS DURING A CRIMINAL CASE can be confusing. The following summary explains how a criminal case in our adult courts generally progresses through Michigan’s criminal justice system. Specific procedures may vary from county to county.

1. Crime committed / Police notified

When a crime is committed in Emmet County, a citizen can make a complaint by calling “911", which acts as our Central Dispatch for all police calls. An officer then will be dispatched to handle the case. Sometimes the police see the crime occur and can take immediate action without a citizen’s complaint.

2. Police investigate

All crimes must be investigated by a police agency. The prosecutor’s office does not accept complaints from the public as we have no legal authority to investigate the crime. If you come to the prosecutor’s office wishing to file a complaint, we will ask that you contact a police agency for an investigation.

The investigation by police may include: interviews of witnesses, victims and suspects; visiting, viewing, measuring and photographing the crime scene; collecting physical evidence such as clothing, fingerprints, or blood samples which may have to be sent to a crime laboratory for analysis; identifying suspects through crime scene analysis, witness statements and lineups. This may take days, weeks and even months! Because a thorough investigation is necessary to a successful prosecution, the police may not be able to arrest the suspect immediately.

Sometimes, but not often, the investigation by the police may lead to the need for a grand jury to review the evidence. However, this procedure is not often used in Michigan anymore.

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3. Police make an arrest / Police request a warrant

When a crime is committed in a police officer’s presence — or the officer has “probable cause” to believe that certain misdemeanors or any felony was committed, even though the officer did not see it happen — an officer may arrest a suspect on the spot without an arrest warrant. The officer must then submit a warrant request to the prosecuting attorney, suggesting potential charges to be authorized.

If an arrest is not made, after the officer has completed his/her investigation, the officer must submit a warrant request to the prosecuting attorney, again suggesting potential charges to be authorized by the prosecutor.

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4. Warrant request reviewed by Prosecuting Attorney

When the police officer submits a warrant request to the prosecuting attorney, the officer also submits a police report containing the information learned about the incident. The report may include witness’ statements, pictures, driving record and criminal history record of the suspect.

This is usually the first time that the prosecutor’s office is involved in the case unless a prosecutor reviewed a search warrant or went to the crime scene. At this stage, the prosecuting attorney determines whether a person should be charged with a crime and, if so, what the crime should be. The prosecutor thoroughly reviews all reports and records concerning the case. On occasion, the prosecutor sends the case back to the police officer to conduct additional investigation.

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5. Warrant issued / Denied

The prosecuting attorney can issue a charge if the prosecutor believes that “probable cause” exists that the suspect committed the offense. However, most prosecutors apply the higher standard of proof necessary at trial — whether the charge can be proved “beyond a reasonable doubt” based on the information known at the time.

If the prosecutor determines that the information in the police report and records do not give sufficient evidence to charge the suspect, the prosecutor may deny the issuance of criminal charges against the suspect.

If the prosecutor determines that a charge should be brought, a complaint and warrant is prepared. The complaining witness, usually a police officer, must then testify before the district court magistrate that the information for the complaint and warrant is true. Once the magistrate hears the testimony of the complaining witness, the magistrate must then make an independent determination if probable cause is shown for the charge to be brought.

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6. Suspect arrested (if not already in custody) / Bond set

If the suspect (now called the “defendant”) has not been arrested, the police officer receives the warrant from the district court so the officer can try to have the defendant arrested. Generally, the wanted person’s name is put into a nationwide law enforcement computer system so that if the defendant has contact with the police, the police will know that there is a valid warrant for the defendant’s arrest and can apprehend the defendant on the spot.

The delay between the crime and the defendant’s arrest on an authorized charge can take any length of time (e.g., if the defendant’s whereabouts are unknown, or if the defendant has left the State of Michigan).

Once the complaint and warrant have been issued and the defendant is in custody, the magistrate sets a bond requirement for the defendant to post. The bond requirement could range from a personal recognizance bond, which requires no money to be posted, to a cash bond of any amount. The magistrate can also put conditions on the bond, depending on the type of case, such as no consumption of alcohol, daily breathalyzer tests, live in a court-approved residence, and no contact by the defendant with a victim of the crime. In a few very serious cases, such as Murder, the magistrate can refuse to set any bond, which means that the defendant remains incarcerated until the case is decided.

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7. District Court arraignment / Pretrial procedures

This is the first in-court appearance for any Misdemeanor & Felony offense. A misdemeanor is a crime which has a maximum punishment of up to one year in the county jail. A felony is a crime which has a maximum punishment in excess of one year. The pretrial procedures for felonies and misdemeanors differ, so they are dealt with separately in the next several paragraphs.

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8. Pre-Preliminary Examination Conference

Sometimes the court schedules a “pre-conference” several days before the scheduled preliminary examination. This conference operates much like the misdemeanor pretrial conference, as a meeting between the prosecutor and defendant (or the defendant’s attorney) to see if the case can be resolved without the need to hold the preliminary examination. If a defendant has not yet hired an attorney, the court may appoint an attorney to represent the defendant so that the preliminary examination may go on as scheduled.

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9. Preliminary Examination

This is an evidentiary hearing before the District Court judge, sometimes called a “probable cause hearing.” This hearing is scheduled to be held within 14 days of the District Court arraignment, but may be adjourned to a later date. At this hearing, the prosecutor questions witnesses to convince the judge that there is at least probable cause to believe that a crime was committed and the defendant committed it. Because the burden of proof is much less at the preliminary examination than at trial, the prosecutor generally does not call all potential witnesses to testify at this hearing. Usually a few witnesses who saw or heard some part of the crime are called to testify. The defendant, through his/her attorney, can cross-examine the witnesses and call other witnesses to support defendant’s side of the case.

If probable cause is established, the judge orders that the defendant is “bound over” (meaning “sent”) to Circuit Court for trial. If the judge decides that there is not probable cause, the judge can bind the case over to Circuit Court on different charges, reduce the charge(s) to a misdemeanor for trial in District Court, or dismiss the charge(s).

A defendant can also give up their right to a preliminary examination by “waiving” the right to have such a hearing. Most felony cases end up in Circuit Court after a “waiver” rather than a hearing.

Circuit Court Arraignment — After the case is sent to Circuit Court, the defendant is again arraigned on the charge(s) that were the result of being bound over. Again, the defendant is given formal notice of the charges against him/her and the maximum penalty in a document called an “Information.” The defendant is given the opportunity to enter one of four pleas at this time: guilty, no contest, not guilty or stand mute. A plea of guilty or no contest means the defendant is convicted of the offense without a trial and is subject to being sentenced by the court. The Circuit Court must schedule the case for a sentencing date after the court’s probation department has prepared a presentence investigation report (discussed later). If the defendant pleads not guilty or stands mute, the case is scheduled for a pretrial conference.

Pretrial Conference — This may also be called a “scheduling conference.” Much like the pretrial conference at the District Court level, cases are scheduled for a meeting between an assistant prosecuting attorney and the defendant (or the defendant’s attorney) to determine whether the case will go to trial or be resolved with a plea. A member of the court staff is also involved to facilitate the meeting. These meetings focus on resolving the case short of going to trial. Testimony is not taken at this time. Plea bargains are often discussed at this meeting, although they can be discussed up to the time of trial as well.

Pretrial Proceedings — Many other events can occur prior to trial. Depending on the nature of the case, there may be pretrial hearings on constitutional issues (confessions, searches, identification, etc.). The issues are presented to the court through written “motions” (e.g., Motion to Suppress Evidence). The judge must determine whether evidence will be admitted or suppressed at the defendant’s trial, whether there is some legal reason why the defendant should not be tried, or decide other ground rules for trial. Based on the judge’s rulings, efforts may be made to resolve the case through a plea bargain.

10. Jury Trial / Judge Trial

A trial is an adversary proceeding in which the prosecutor, on behalf of the plaintiff (which is called “The People of the State of Michigan”) must present evidence to prove the defendant’s guilt “beyond a reasonable doubt.” The defendant is not required to prove his/her innocence or to present any evidence, but may challenge the accuracy of the prosecutor’s evidence.

Both the defendant and the prosecution have the right to a trial by jury. Sometimes, though, both sides agree to let the judge listen to the evidence and decide the case without a jury — this is often called a “bench trial.” In a jury trial, the jury is the “trier of the facts”; in a bench trial, the judge is. After the evidence is presented in the trial, the jury or judge will determine whether the evidence proved that the defendant committed the crime.

The following is a general outline of the steps in a jury trial, used for both felony and misdemeanor cases:

1. Residents of the local county are randomly selected from a list of registered voters and/or licensed drivers, and are summoned to the Court as potential jurors.

2. A blind draw selects twelve to fourteen people from that group to sit as jurors for felony trials. Near the end of the trial, one or two jurors are excused to reduce the number to twelve to decide the case. For misdemeanor trials, the number selected is six or seven people, with the number reduced to six to decide the case.

3. The judge, prosecutor and defense attorney then ask questions of the prospective jurors about their backgrounds and beliefs in an attempt to find jurors who will be impartial and unbiased. This is called “voir dire.”

4. The attorneys may excuse some of the prospective jurors in one of two ways. A juror may be challenged on grounds of good cause why they should be excused. For example, the spouse of the defendant would probably not be an impartial and unbiased juror. The attorneys may also excuse a limited number of prospective jurors without giving a reason. This is called a “peremptory” challenge.

5. After the challenges are over, the judge or court clerk administers an oath to the jury to uphold their legal duties to make a fair and impartial decision after hearing the facts from the witnesses and the judge’s instructions on the law. The judge then reads some basic instructions about the trial process and some of the rules of law that apply to the case.

6. The prosecutor gives an opening statement to the jury in which he/she outlines the People’s case and the evidence to be presented by the prosecution.

7. The defense attorney may give a similar opening statement, outlining the defense of the case, or wait until later in the trial.

8. The prosecutor calls witnesses and may introduce exhibits. The defense attorney may cross-examine the prosecutor’s witnesses.

9. The prosecutor finishes with his/her witnesses and rests the People’s case.

10. If the defense attorney has not given an opening statement earlier, it is done now. Then the defense attorney may call witnesses and the prosecutor may cross-examine them. The defendant is not required to call any witnesses, though.

11. The defense rests.

12. The prosecutor may present “rebuttal” witnesses to challenge the testimony of the defendant’s witnesses.

13. The prosecutor rests again.

14. The prosecutor presents a closing summary to the jury, often called “closing argument.”

15. The defense attorney then presents a closing summary to the jury.

16. The prosecutor may present a rebuttal argument to the jury in response to the defense attorney’s closing argument.

17. The judge gives the jury detailed instructions on the law about the charged crime(s) and the deliberation process.

18. The jury is sent to the jury room to deliberate and make a decision. A jury’s verdict in a criminal case must be unanimous, which means that all jurors must agree on the verdict. The jury must determine if the prosecution has proven the case beyond a reasonable doubt.

19. The jury returns its verdict in the courtroom. If the verdict is guilty, the judge refers the case to the probation department for a presentence investigation report. If the verdict is not guilty, the judge enters an Order dismissing the case.

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11. Presentence Investigation Report

The court’s probation department prepares a report for the judge, summarizing the crime and the defendant’s personal and criminal background. Generally, the victim is contacted for information and recommendations. The probation officer includes a recommended sentence in the report, but the judge does not have to follow this recommendation.

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12. Sentencing

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. The judge will consider the information in the presentence investigation report (subject to factual corrections by the parties), additional evidence offered by the parties, comments by the crime victim if applicable, and any other information relevant to the judge’s sentencing decision.

For felonies, the Circuit Court judge must also consult “Sentencing Guidelines” approved by the Legislature. These guidelines factor in aspects of the defendant’s criminal conduct and any prior criminal record to determine the minimum jail or prison sentence.

The judge may consider different alternatives, including a fine, probation, community service, electronic tether, a sentence to jail or prison, or a combination of these sanctions. The judge must also order the defendant to make restitution to any victims who have suffered any financial harm from the defendant’s actions.

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13. Appeals

There are three kind of appeals that may occur in a criminal case: (1) an interlocutory appeal; (2) appeal of right; and (3) appeal by leave of the court.

An interlocutory appeal occurs when a party tries to appeal a judge’s decision before the case goes to trial or before the trial is finished.

An appeal of right occurs after a jury trial in which the defendant is found guilty. The Michigan constitution has been amended to eliminate an appeal of right when a defendant pleads guilty.

An appeal by leave of the court occurs when an appeal of right is not available. This could occur when a defendant who pleads guilty does not like the sentence that was imposed. The appellate court has the discretion to reject the appeal or “grant leave” to allow the appeal.

If there is an appeal of right, or the court allows an appeal by leave, both the defense and the prosecution must file legal arguments called “briefs” that summarize the case facts, frame the legal issues to be decided and present written arguments supported by prior law. These filings are usually anything but brief, as they may be twenty pages or more in length. Either party may request to make an oral argument to the appellate court.

The appellate court for misdemeanor cases is the Circuit Court. The initial appellate court for felony cases is the Court of Appeals. The Michigan Supreme Court may hear cases from the lower appellate courts, but most often is not required to do so.

The appellate court will eventually issue a written opinion if they all agree, or several written opinions if they disagree. The decision of the majority of the judges hearing the case is the accepted law in the case. For instance in a criminal case, if the defendant has appealed his conviction and/or sentence, the appellate court may affirm the trial court’s decision, reverse the trial court’s decision and send the case back to the trial court for a new trial, or may modify the trial court’s decision while keeping the conviction intact.

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