The following questions and answers are geared toward criminal cases in general, but a lot of the information will pertain directly to MIP cases in Michigan.
Frequency Asked Questions
Q. I'm being investigated for a crime, but not charged - what does this mean? This means that the police department is still gathering information on your case. Once the investigation is completed, the information will be turned over to the prosecutor who will determine whether or not to charge you with a crime. The police department may have an influence over the charges, but the final decision is made by the prosecutor.
Q. What's a Pre-Trial - does this mean I'm going to trial? A pre-trial is exactly what it sounds like; it's the court appearance before a trial. You may have 2, 3 or 8 pre-trials, and may or may not have a trial at all. From my experience, about 2 percent of all cases actually go to trial, the other 98 percent are resolved prior to going to trial.
Q. Will I be charged with a misdemeanor or felony? This decision will be made by the prosecutor who will be provided the case information by the police department. If the facts fit a felony crime, then a prosecutor will usually charge you with the highest possible offense. Prosecutors do this to create leverage in negotiation, and may ultimately agree to settle the case for a misdemeanor.
Q. I was arrested weeks ago, but not charged yet - what's going on? This is a very common occurrence in Michigan. An arrest conducted by the police department does not automatically create a criminal charge. The case must be reviewed by the prosecutor before someone is charged. For many misdemeanors, and some felonies there will be a delay between the arrest and the charge. This is VERY common for drunk driving crimes, and drug offenses where the evidence must be tested at the lab to make sure the confiscated evidence is actually an illegal drug.
Q. The police want to talk to me about my case - what should I do? You have a constitution right to remain silent, and this silence cannot be used against you. The police may act like your friend, but they have a job to do, and that job is to gather incriminating evidence, which will assist the prosecutor in charging you with a crime. Even if you have nothing to hide, you may not realize that your statement could incriminate you. Ask to speak to an attorney before uttering one word to the police department.
Q. What's an arraignment? This will be your first court appearance where you appear before a magistrate or judge. You do not have the right to an attorney at this point in your case; you must hire an attorney to be represented at your arraignment. The magistrate or judge will read the charges and you will enter a plea of not-guilty, guilty or stand mute. The magistrate or judge will also set a bond, along with various bond conditions. I would advise anyone charged with a crime to hire an attorney for an arraignment.
Q. If the judge sets a bond in my case, how do I pay? A judge can set a personal recognizance bond, which means you simply promise to return to court, but don't post any money. A judge may also set a cash or surety bond, which means you will need to post this amount to be released during the pendency of your case. If the judge sets a 10 percent provision, it means you only need to actually post 10 percent of the amount set, and the other 90 percent will be owed to the court if you do not show-up. It is always best to bring someone to post bond for you, because some courts will not allow a defendant to post their own bond.
Q. Will the police come to my house and arrest me? If you've been charged with a crime in Michigan, the police can come arrest you based upon an an active arrest warrant. For felony offenses in Michigan, the police will most likely come arrest you, unless your attorney can arrange to have a walk-in arraignment to avoid an embarrassing arrest. If you are charged with a misdemeanor, you will receive a notice in the mail to appear for court, and will most likely not be arrested prior to this court date.
Q. Can I get my court date moved back? This depends upon the court, the individual judge and the stage of your case. Most judges are flexible with granting at least one court adjournment, but this will be more difficult if you're trying to move your case without the assistance of an attorney. Judges have timing requirements to resolve cases, and are not willing to risk their own reputation to fit your schedule.
Q. What if I can't go to the court on my scheduled date? If you don't appear for court, a bench warrant will be issued for your arrest, and you could forfeit any bond posted. It is always best to try to make arrangements to move your court date rather than not showing up. Not appearing for court could also jeopardize any plea agreements or sentencing agreements, which were negotiated on your behalf.
Q. I've never committed a crime before, does the prosecutor care? Your criminal history and background could play a major role in the outcome of your case. That being said, the prosecutor does not care about you, but it's not because the prosecutor is a bad person. Prosecutor's deal with 1000's of criminal defendants each year, and don't have the time or patience to decide who deserves special treatment. It's up to your attorney to present your history and background in the most favorable way.
Q. What if the victim wants to drop the charges - will my case be dismissed? There's a major misconception that the victim makes the decision to prosecute. This is not true; a victim is merely a witness who provides factual information to the police department or prosecutor. Based upon this information, an arrest or investigation will occur, and the prosecutor will charge someone on behalf of the State of Michigan. The defendant has committed a crime against the state, in violation of a law rather than an individual person.
Q. Does the victim need to hire their own attorney to prosecute me? No, the prosecutor will prosecute the case on behalf of the People of the State of Michigan. The victim is not a party to the case; the victim is considered a fact witness who may provide testimony or receive restitution. The prosecutor may be part of the Attorney General's Office, a county prosecutor or a city/township prosecutor.
Q. How much does it cost to hire a lawyer? It depends upon what crime you're charged with, and where your case is pending. A lot of lawyers will charge rich clients more money, but I don't think this is fair. I list my prices on my website, and will occasionally offer payment plans.
Q. Should I use the public defender? In short, no you should not use the public defender. This is not because the public defender is not a qualified attorney, but a public defender cannot give you the time and attention you need during the most difficult time in your life. Using the public defender is like being examined by a doctor as you drive through a toll booth. Your time is very limited, and there are 1,000 people waiting behind you. By hiring a private attorney, you are not only paying for a good attorney, you're paying for communication, updates and being informed. A public defender cannot provide the bedside compassion and patience for your questions and concerns. If you don't have the money, borrow money from a family member or friend. Being charged with a crime is not the time to be frugal and hope everything works out.
Q. Will the judge care that I'm a good person? Judges will know very little about you during your case. The judge is not in a position to distinguish between the good people and the bad people. The judge will get a first impression based on your appearance and your speech, but it's up to your attorney to add additional detail. At sentencing, the judge is provided with a background report by probation, which will attempt to humanize you in a good or bad way.
Q. Should I tell the truth to my attorney? Absolutely! Your attorney is obligated to keep all conversations and information confidential. If you don't tell your attorney the truth then your attorney is defending you with one hand behind his back. It's common for a client to leave out important details, and the attorney is put in a bad position or surprised when the information is made available. It may be too late to recover from this lack of information.
Q. Can I bring my phone to the court house? Most courthouses do not allow any electronic devices including cell phones. Some court houses have lockers to put phones, but other courthouses do not provide this accommodations. It is best to leave your phone in the car or at home. If you need to make a phone call while at the courthouse, you will have access to a public phone.
Q. What will happen at my preliminary examination? If charged with a felony, you have the right to a preliminary examination before reaching the circuit court. There are three different things that can happen. The examination will be held where the prosecuting attorney must show probable cause that a crime was committed, and that you committed the crime. The examination could be waived, meaning that the case will go to the circuit court without an examination. The final result is the case is resolved with a plea as charged, or to reduced charges. The preliminary examination is the gatekeeper to felony charges.
Q. Will I be drug tested by the court or probation? Yes, you can be tested by order of the judge or by probation. It's quite common for a judge to ask whether or not you will pass a drug test; depending upon your answer, the judge may test you on the spot. It is always best to be honest, because lying to a judge is never a good thing. Probation can and will subject you to random and scheduled drug testing. If you fail a drug test, you could be in violation of your bond conditions, your probation terms, or be charged with a new crime.
Q. Will the police officer be at my court date? Usually not, but if your case is set for a hearing on a traffic ticket, a evidentary hearing or a trial, the officer will be present in court. On occasion a police officer will attend your arraignment and give his/her opinion on bond. Most people believe the police are the enemy, but they are doing their job, and can actually be a strong advocate for you.
Q. How many times will I need to go to court? Court cases can last anywhere from one to ten plus court dates. At a minimum you will need to attend court for an arraignment, which could be combined with a pre-trial conference. Unless you are sentenced the same day, most cases are take on a minimum two court appearances. You should not be in a rush to get the case over it; you should listen to your attorney, and proceed with the goal of obtaining the best result, not the quickest result.
Q. What's the difference between jail and prison? If you are not released on bond, you will sit in jail during the pendency of your case. If you are to serve less than one year, then you go to a county jail, which is located within the particular county (i.e. Oakland County, Washtenaw County). If you are sentenced to more than a year, you go to prison, which is run by the Michigan Department of Corrections. You could serve time in a prison, which is outside the county which you committed the offense. In sum, it is far better to go to jail than to go to prison.
Q. Can I travel during my case? Your attorney must gain permission from the judge. This request is usually granted, but it really depends upon your charge, your criminal history, and where you want to travel. It is more likely you will be granted permission to leave the state rather than the country, but both are possible. Speak to your attorney about your travel plans.
Q. What does discovery mean? In a criminal case, this means all the paperwork and evidence in possession of the police department and prosecutor. There may be additional discovery from a third party such as a hospital, bank or pawn shop to name a few. The main piece of discovery is the police report. The discovery process is ongoing, and new information may become available during the pendency of your case.
Q. What's a prosecutor? The prosecutor is a representative of the state, county, city or township that has brought charges against you. You could be dealing with an elected prosecutor of a county, or a hired local prosecutor. Depending upon the county, you will be dealing with assistant prosecutors hired by the elected prosecutor to represent him/her in court.
Q. Is a magistrate the same thing as a judge? A magistrate generally attends to arraignments and traffic offenses. If you're arraigned on a new charge, you may appear before a magistrate rather a judge. A magistrate is generally not elected like a judge, but they have incredible power to affect the course of your case. You should show a magistrate the same respect as a judge, and address them as "your honor".
Q. Can I bring a friend or family member to court? Yes, the courtroom is open to the general public, so you can bring anyone to court for support. Having a friend or family member in court can be very comforting to a first offender. Now is it necessary to have a family or friend in court? No it is not. A lot of parents call me and ask whether they should fly in for court appearances; while it is certainly allowed, it is not necessary. Having a friend or family member in court will have no impact on your case, expect for possibly your sentencing where your attorney can argue that you have a great support system, and you've brought them to court.
Q. How long will I have a criminal record? Some crimes cannot be removed from your criminal record (traffic offenses including drunk driving). Some offenses can be expunged off of your record after five years, as long as you meet other requirements. If you're a first offender, there are a number of deferred sentence opportunities, which if you successfully complete the terms of your sentence, you will not have a criminal record.
Q. Am I ever going to get a job? If you're charged with a crime, or are ultimately convicted of a crime, this could affect your ability to keep a job, or get a new job. Certain crimes like drunk driving could affect your ability to drive a vehicle. A conviction for assault or domestic violence can be particularly troubling for gaining future employment. The biggest barrier to obtaining employment is a felony conviction.
Q. Where's the courthouse? If you are scheduled for court then the court house address should be listed on the appearance notice. If not, you can put the name of the court into Google, and you will be provided with the address. Here is a helpful link for researching the different courts around Michigan. Simply click on the county, and you will be provided with a list of all the courthouses in the county.
Q. What should I wear to court? You should dress like you're going to meet the President of the United States, or going on a professional job interview. You only get to make a first impression once; the judge and prosecutor will be looking at your attire. We will discuss the specifics of what you should wear for court. Your attire should be an asset to resolving your case in a favorable way, not a hinder to success.
Q. Will I have to speak in court? For arraignment and pre-trial court dates, you will have to say very little in court. Be prepared to say "yes your honor" and "no your honor". If you're pleading to a charge or being sentenced, then I will prepare you for what you will need to say. The only time you will speak more than a few sentences is if your case goes to trial, and you take the witness stand in your own defense.
Q. How long will my court date last? Most people are surprised to find out that a court appearance is 95 percent waiting and 5 percent action. If your case is set for 1 pm, you might not have your case called until 2:30 pm. Once your case is called, unless there is a pre-trial hearing or a trial, you will stand before the judge from anywhere between 30 seconds and 10 minutes. A lot of the negotiation and discussion happens prior to or after your case happens.
Q. Why did my lawyer go speak to the judge without me? This is called a bench conference where your attorney may want to speak to the judge and prosecutor without making a record. Some things are better discussed outside of the ear of the public, and not on an official court record. Good plea deals, favorable sentences, and strong advocacy happens at the bench. This is not something to be worried about. If you really want to hear the conversation, you are entitled to approach the bench as well, but it is usually more effective to allow your attorney the chance to speak to the judge and prosecutor without you present.
Q. Am I going to jail or prison? Most first offenders who commit misdemeanor offenses do not go to jail. This statement is thrown out the window in certain courthouses, and in front of certain judges. If you're charged with a felony, then all bets are off; Michigan felonies are subject to the Michigan sentencing guidelines. Certain felonies have mandatory prison, which cannot be avoided.
Q. Is my case going to be a trial? Most cases do not go to trial, but going to trial is not something to fear. If you've been charged with a crime, and the facts do not meet the elements of the offense, then a trial may be appropriate in your case. You can have a trial by judge or jury. Each type of trial has it's relative strengths and weaknesses.