Felony Criminal Case Process (Michigan)

Investigation: Law enforcement investigates a crime and, once they have sufficient evidence, asks the prosecutor’s office to authorize a complaint.

Arrest: A subject may be arrested at the scene of a crime or after an investigation once the police have obtained an arrest warrant based on probable cause that a crime has been committed.

Arraignment: The defendant appears in front of a judge or magistrate at the District Court, usually 24 to 48 hours after arrest, and is informed of the charges against them and their rights. If the person has not been arrested, they may be notified that they should call the court or attend a walk-in arraignment. At the arraignment, they are informed of their right to an attorney and that one will be provided at no cost if they cannot afford one. This is known as a court-appointed attorney. The defendant enters a plea of guilty, not guilty, or can stand mute. Standing mute means the defendant does not say anything, at which point the court will enter a plea of not guilty for them. At arraignment or during a separate detention hearing, the judge determines whether bond will be required and sets the amount of bond and bond conditions (such as no contact orders, travel restrictions, drug testing, etc.). Bond is set in most cases, but it is up to the defendant to post the bail money, which allows them to be released pending the resolution of the case, unless they have a bond violation. A defendant may also be released on their own recognizance, which is essentially a promise to appear, if the judge does not set a bail amount. Even if a defendant wants to plead guilty at the arraignment, the court will not sentence the defendant on that day because the court must conduct a presentence investigation and calculate the guidelines before sentencing in a felony case.

Probable Cause Conference: This is a meeting between the prosecutor and the defendant’s attorney, where preliminary negotiations take place to see if the case will proceed to a preliminary examination or if it can be resolved early on through a plea bargain.

Preliminary Exam: A defendant is entitled to a preliminary examination no later than 21 days after their arraignment. At this stage, commonly referred to as a “prelim,” a miniature version of a trial occurs where the prosecution has the burden of proving it is more likely than not that a felony occurred and the defendant is the one who committed it. The prosecution calls witnesses and presents evidence, although they do not present their full case as they would at trial. If the prosecutor meets their burden (or the defendant waives their right to a prelim) the case is then “bound over” to circuit court, which handles felony cases after the initial phase.

Circuit Court Arraignment: When a case is bound over, the defendant is arraigned again in circuit court, receiving formal notice of the charges against them after the preliminary examination. The new charging document in circuit court is called an “information.” The defendant is again advised of their rights and enters a plea of guilty, not guilty, or stands mute. The defendant also has the opportunity to waive circuit court arraignment.

Pretrial Conference: Also known as a status conference, this is another meeting between the prosecutor and defense attorney to discuss the case and possible resolutions without going to trial. Sometimes the pretrial conference takes place on the record in the courtroom, sometimes it takes place over the phone or video conferencing between the attorneys, and sometimes it occurs in the courthouse but in a conference room while the defendant waits in the hallway. The format of the pretrial conference depends of individual judges and prosecutors’ offices. The point is for the attorneys to touch base, discuss the case, and get a better idea of whether there will be a plea, trial, dismissal, or addition or reduction of charges.

Plea Hearing: If a defendant chooses to plead guilty prior to trial, a plea hearing is held. A plea agreement is an agreement between the prosecutor, defense attorney, and defendant that spells out what the parties are agreeing to, and it often includes a reduced charge, a sentencing guarantee, or a sentencing suggestion for the judge. At the plea hearing, the judge explains to the defendant the charge they are pleading guilty to, the maximum possible penalty, and the rights a defendant has to a jury trial that they are giving up by pleading guilty. The defendant must agree to the “factual basis,” which is a statement of the facts detailing the crime and its particulars. The judge will ask the attorneys if they are satisfied that the court has made a sufficient “factual basis” to support the elements of the offense. The purpose of this is to ensure that defendants know what they are pleading guilty to and agree that they committed all the elements of the offense. At this stage, the judge does not care about mitigating factors or explanations for why the offense took place. Those arguments are left for the sentencing phase, where the judge determines the punishment.

Trial: If there is no resolution to the case via a plea bargain, the case proceeds to trial. A defendant is entitled to a jury trial. However, if both sides agree, there may be a “bench trial” where the judge decides the case rather than a jury. A jury trial includes:

• Jury selection: Residents of the county where the case is charged make up a pool of prospective jurors, and during jury selection the prosecution and defense get to question them to determine potential biases or other issues. Potential jurors may be dismissed for cause by the court, or by a set number of peremptory challenges given to the prosecution and the defense to eliminate jurors for any reason (other than prohibited reasons, such as based on race).

• Opening statements: Opening statements are a preview of the case where the lawyers for each side tell the jury what evidence they believe will be presented during the trial. The prosecution makes their opening statement first, while the defense has the option of making their opening statement immediately or at the beginning of their case in chief, after the prosecution has finished presenting their witnesses.

• Prosecution’s case: The prosecution will call witnesses and present evidence against the defendant, while the defense attorney will have an opportunity to cross-examine the witnesses and make challenges to the evidence. The prosecution has the burden of proof in a criminal case and must present sufficient evidence to prove beyond a reasonable doubt that the crime was committed. Once the prosecution calls their last witness, the prosecution “rests,” signaling to the court that they have concluded their case in chief. At this point, the defense attorney may make a motion for directed verdict outside the presence of the jury, which is a request that the court dismiss the case because the prosecutor has failed to put on sufficient evidence for any rational juror to find the defendant guilty. Typically, this motion is denied, and the defense can then present their case in chief.

• Defense Case: The defense’s case starts after the prosecution has rested and after a motion for directed verdict if one is made. The defense can then present their case in the same fashion as the prosecution: calling witnesses and presenting evidence. In some cases, the defense will not call any witnesses, as they have no burden of proof. A criminal defendant may choose not to testify at their own trial, and the jury may not consider their choice not to testify during deliberations. At the conclusion of their witness testimony (or lack thereof), the defense then rests, signaling to the court that they have concluded their case in chief. Once the defense rests their case, the prosecution may call rebuttal witnesses to refute what the defense witnesses have said.

• Closing arguments: At the close of proofs (the close of each side’s case) the trial concludes with closing arguments. Both sides get an opportunity to argue to the jury as to what they believe the evidence presented at trial has proven. The prosecution goes first, followed by the defense, and then the prosecution is allowed a rebuttal, as they have the burden of proof. While argument is permitted and expected, both sides can only rely on and reference facts that were admitted at trial.

• Jury Instructions: The jurors are then instructed on the laws that they must follow during deliberations, and the case is then submitted to the jury to begin deliberations. The jury deliberations are secret, and there is no timetable for them to reach a decision.

• Verdict: A jury must be unanimous in their verdict. If the jury is unable to reach a unanimous verdict after a certain amount of time, and they inform the judge that they are truly gridlocked despite best efforts, they are considered a “hung jury” and a mistrial is declared. The prosecutor then has the choice to re-try the case or dismiss the charges against the defendant.

Sentencing: In the case of a guilty plea or verdict of guilt, the next phase of the case is sentencing. In advance of the sentencing hearing, the probation department will meet with the defendant and prepare a presentence investigation report (known as a PSI, PSIR, or a PSR) detailing the person’s background and recommending a sentence based on a scoring system that accounts for the nature and severity of the crime and the individual’s criminal history and background. All these factors influence the sentencing guidelines, which present a range as to how much time the defendant should spend in jail, prison, or on probation. For offense that score very low on the guidelines range, there is a presumption of no jailtime, and the judge would have to provide an explanation on the record for imposing any jailtime in those cases. Often, due to limited jail space and the desire to limit governmental spending on low-level offenses, judges abide by the presumption of no jailtime when it applies. The prosecution and defense can file motions and sentencing memos advocating for harsher or lesser sentences, but it is ultimately the judge who hands down the sentence at the hearing. The judge must consider the sentencing guidelines but can go above, below, or within the guidelines. A defendant will be afforded the opportunity to speak directly to the court and advocate for a lower sentence during a process known as “allocution.” Restitution may also be ordered to any victims who have suffered financial harm. If a judge chooses not to follow a sentencing agreement between the prosecution and defendant, under which a defendant pled guilty in exchange for a lesser punishment, the defendant may have the opportunity to withdraw their plea, depending on the guarantees in the plea agreement.

Appeals: A defendant may appeal their conviction under certain conditions. A defendant found guilty at trial has an automatic right to an appeal, while a defendant pleading guilty through a plea bargain will likely give up the automatic right to an appeal and must ask the Court of Appeals for leave to file an appeal, which may be denied.