Proving Guilt Beyond a Reasonable Doubt

To convict some one of a crime, the state has the burdend of proving guilt “beyond a reasonable doubt.” More specifically, each element of the charged offense or offenses must be proved beyond a reasonable doubt.

Reasonable doubt does not mean beyond all doubt but rather is means ” a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that—a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case.”

An element is a subpart of a crime. Each crime requires proof of several things in order for a person to be guilty. For example, to prove larceny in a building, a prosecutor must introduce evidence beyond a reasonable doubt for the following 7 elements:

Larceny in a Building
(1) The defendant is charged with the crime of larceny in a building. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant, took someone else’s property.
(3) Second, that the property was taken without consent.
(4) Third, that the property was taken in a [state type of building] 1.
(5) Fourth, that there was some movement of the property. [It does not matter whether the defendant actually kept the property or whether the property was taken off the premises] .
(6) Fifth, that the property was worth something at the time it was taken.
(7) Sixth, that at the time the property was taken, the defendant intended to permanently deprive the owner of the property.2

Elements 5 and 7 are the most difficult for the prosecution to prove and for the defense to dispute. Element 7 is almost always shown by circumstancial evidence. Rarely will a person admit to stealing something. Element 5 is much too generous to the prosecution. A person could try on a coat and then put it down and that could constitute movement. It is very weak. I think a person should at least have to attempt to take the property off the premises to be charged.

One important thing a criminal defense lawyer does is makes sure the jury understands that there will always be some evidence. But some evidence is not enough. I own a copy of the Koran. That is some evidence that I may be Muslim but certainly not enough to say I am Muslim beyond a reasonable doubt. (I am Catholic FYI).

Recently I had a case where a department store thought my client was shoplifting. Even though he purchased alot of merchandise, the loss prevention department stopped him after he had left to store to search him. He was fully cooperative and the search found nothing stolen, only the stuff he bought. He was released. However, a few days later, he received a letter from the Walker police saying they were charging him with shoplifting because a camera caught him allegedly taking something. Naturally, after a month of asking for this tape, I have yet to receive a copy of it.

The state would have a tough time convicting him at trial, but there is enough there for charges to be filed.

What to do if I am Arrested?

There is no one right way to respond when arrested, but there are certain things that will assist your defense at a later time.

1. Don’t make any statements to the police. You don’t need to admit anything. Despite what the police say, talking is not going to help you. Why help them make their case.

2. Do not discuss your case with anyone other than an attorney. You don’t need friends called as witnesses against you. This includes not posting things on Facebook and places like that. If there is anything incriminating on there, take it off right away.

3. Don’t plead guilty at your arraignment. You can always plead guilty later. At that point, you don’t ever know how strong the case against you is. Even if you are in fact guilty, that doesn’t mean there is enough admissible evidence to convict you.

4. As hard as it is, face your case aggressively and as quickly as possible. Proscrastinating is not going to help you.

5. Understand you have constitutional rights designed to make sure you are not wrongly convicted. While these rules are perfect nor always followed properly, the State is responsible for proving your guilt, you are not responsible for trying to clear your name.

Basic Felony Procedure

Here is the basic Felony Procedure in Michigan. This will vary somewhat from county to county.

A felony is any charge that carries a maximum penalty of over 1 year in jail. Most felonies start with a minimum maximum penalty of 2 years.

Step One: District Court Arraignment. At this stage, a District Court judge will read the accused the charges including the maximum penalty. At this point, most people simply plead not guilty for the same reason cited in the previous article on misdemeanor procedure. At this time, the judge will also determine is the accused is to remain in custody (jail) or if a bond may be posted for her release.

Step Two: Preliminary Examination. This is like a mini trial at which the prosecution can (and will) call witnesses to testify on the State’s behalf. The purpose of this hearing is to see if 1) there is probable cause that a crime was committed and 2) if the accused committed it. It does not mean that an accused person actually did it or that a jury will later agree. The burden of proof at this stage is “probable cause” not “beyond a reasonable doubt.” In truth, judges virtually always find probable cause at this hearing. Most of the time, the defendant and his attorney decide to waive this hearing to save the time and trouble. Some prosecutor’s will make a plea offer at this point if the defendant agrees to waive the preliminary examination. This offer will be held open until the next court date even if the defendant does not wish to accept the offer at that time. Some counties hold a “pre-preliminary exam” before the actually exam. At this hearing, your attorney and the prosecutor meet to discuss the case and decide of there is a need to run the preliminary exam.

Step Three: Circuit Court Arraignment. The District Court, where the first arraignment was held, only has limited jurisdiction in criminal matters. It can not hear proceedings related to felony charges other than an arraignment or preliminary exam. For that reason, the accused must now be arraigned at the Circuit Court level. This does not mean that the charges are different. It is just a formality. In practice, this arraignment is usually waived at the same of the preliminary examination is waived.

Step Four: Pre-Trial/Status Conference. Like a misdemeanor pre-trial, the prosecutor meets with the defense lawyer to discuss the case including the possibility of a plea bagain. In some counties, the pre-trial in a felony case is called a Status Conference. And while some counties have two pre-trials, many have just one. Most of the time, if a plea bargain will be entered, it must be at this time, though judges often make exceptions and let a defendant plea on the day of trial. It is a risky strategy to assume you will get one more chance though. If you are going to plea, this is the time.

Step Five: Jury Pick/Trial. Unlike a misdemeanor charge where a jury is picked several weeks ahead of time, a felony jury is picked that morning to hear a case that afternoon. There are 12 jurors for a felony plus one or two alternates. A trial proceeds much like a misdemeanor trial, though there are often more witnesses.

Step Six: Verdict. If the jury says “not guilty,” the case ends and the defendant goes home. If the jury says “guilty” a sentencing date will be set. If the defendant has been in custody awaiting trial, he will remain there. If he is out on bond, the bond will continue. (with some exceptions, notably Criminal Sexual Conduct cases).

Step Seven: Post Trial Motions/Appeals. There are a number of different motions that can be filed. They are beyond the scope of this article. Keep in mind that most appeals are not successful.

Step Eight: Sentencing. Felony sentencing is Michigan is governed by the Sentencing Guidelines. This fairly complex statute scores a number of “variable” in computing the mandatory minimum and maximum sentence. The most important factor is the defendant’s prior record. Each previous conviction may contain a number of variables that can quickly add up to alot of time. On the other hand, a first offender or a person with just one or two prior misdemeanor convictions can get very little. I recently had a client who plea guilty to a charge that carried a maximum penalty of 5 years. But, through careful negotiating and decent sentencing guidelines, he got no jail at all. It all depends on each individual person.

Consequences of a Criminal Conviction

The penalty for a criminal conviction does not end at sentencing. While most people are relieved to be done with their case; even if they are unhappy with the result, they often do not understand that their conviction may cause numerous problems for them down the road.

This article is meant to highlight some of those possible consequences. It is not intended to be a detailed discussion of these issues, but should at least make people aware of how a criminal conviction can have a lasting impact. Hopefully, it will make some people think twice about just “pleaing out” and opt to put up a more vigorous defense regardless of guilt or innocence.

Career Consequences – Generally only for a Felony Conviction

It would be impossible to state all the possible careers that could be jeopardized by a criminal conviction, some common ones include: firefighter, law enforcement, most government employment, working in a school (or even volunteering), certain types of truck drivers, and working in the airline field. It can also prevent or create obstacles in obtaining a nursing license, a license or practice law and other professional licenses. A misdemeanor involving dishonesty (think theft or fraud) can prevent a person from working the banking, insurance, securities or accounting fields.

Immigration

Any criminal conviction can affect citizenship status of a non US citizen. Certain felonies make deportation and option. As this area is complex and keeps changing, it is beyond the scope of this article to go any further on this subject.

Possession of a Firearm

Depending on the nature of the charge, a felony conviction can prevent a person from possessing a firearm for either three or five years from the time of sentencing or release from a jail or prison. (See MCL 750.224f) In Michigan, a person can get a hunting license with a criminal conviction.

Public Housing

A conviction of ANYONE who committed a crime in a public housing tenant’s apartment, will result in the loss of public housing benefits. This can lead to some very unfair outcomes when the person is just a visiting relative who gets caught with a joint, but this does happen.

Driver’s License Revocation

A person can have his driver’s license revoked or suspended for a conviction of certain crimes. These crimes primarily deal with drug and alcohol offenses but can also occur in other situations such as not paying child support.

Sex Offender’s Registry

A conviction of any number of criminal sexual misconduct charges can result in having to register with the State of Michigan pursuant to the Sex Offenders Registration Act (SORA). In addition, a person required to register under this act must meet strict guidelines in keeping the state informed of moving, changes in employment and registrants are forbidden from being within 1,000 feet of a school (with some exceptions). These are the primary issues with being a convicted sex offender; there are other ones beyond the scope of this article.

Why I Represent Criminals Part III

Defending those accused of a crime is a tremendous uphill battle. Even if the prosecution has a weak case, they will rarely admit a mistake and proceed with charges even if they know a jury will likely find against them.

I don’t know why this is. Maybe ego or hubris. Sometimes they justify it by saying “we already spent taxpayer money on this, we have to see it through.” It would seem more sensible to cut their loses instead of wasting more money that will go nowhere. Not to mention saving the time of the jurors that have to come in and hear a pointless trial when they would rather be anywhere else.

However, even if an attorney has a weak case, there is still an uncertainty of a jury. I once had a Wyoming jury convict a man I know was innocent. It still haunts me. The evidence in that case was insane, but somehow justice was not done. On the other hand, I have had juries return a not guilty verdict when I was pretty certain my client was guilty. Our system is designed so that a jury must acquit if the evidence is not strong enough, even if the jurors personally feel the person probably did it. Probably isn’t good enough. That was the intent of our founding fathers. A guilty man going free is far better than an innocent man convicted. Anyone who doesn’t understand this needs to sit at the loney table in the courtroom and watch and prosecutor and an endless stream of cops accuse him or her of committing some heinous deed.

It is critical than the accused have someone who can care about him and guide him through the tough times. For first time offenders, the entire family often suffers along with the accused. There is tremendous fear. No one knows what will happen. The long term consequences of a conviction can ruin a life. It is very much worth fighting for. Because I know how these people feel, I know what they need to hear and a I know what they need to see from their attorney. They need someone to act as both a sword and shield. Even when they are guilty, they need to have their rights protected and their dignity left in tact. A person may committ a crime in a moment but that shouldn’t erase a lifetime of being a good citizen. A person is not the act she has been accused of. And we all need to remember that. God forbid you even get charged with something you didn’t do, you will be glad there are people they can and will lay it down for you.

Why I Represent Criminals Part II

Why do attorneys represent criminals?

I think most defense attorneys get asked this once in a while. If someone discovers I recently got a jury to return a not guilty verdict in favor of of my client, I sometimes get the follow up question:

How can you do that? You are getting criminals off.

As those are fair questions, I suppose they warrant a fair response. But first, I need to explain how a criminal proceeding works.

In our system, each person who is charged with a crime is merely accused of a committing a crime. We have all heard of the presumption of innocence. What that means is that the sole purpose of initiating criminal proceedings against a person is to see if the State (or whatever unit of government is handling the prosecution) can produce enough evidence to convice a fact finder (judge or jury) that each element of the charged offense(s), offenses of proved beyond a reasonable doubt. Strictly speaking, whether the person actually committed the crime is not the issue, but rather the sufficiency of the evidence. It is not the burden of the accused to provde innocence, but on the State to prove guilt.

In many instances, an innocence person couldn’t prove his innocence anyway. How do you prove you didn’t steal something from a retail store? Because nobody found it on you? So what, the state can say, you may have thrown it out your car window on the way home. After all, some one says they she saw you take it and the store says they never found the item. If you did steal it, shouldn’t they have more proof than some one claiming to see something. Anyone can claim to see anyone else doing anything. That is why the burden is on those making the accusations.

The State can come at a person with such awesome resources. The average person can’t possibly pay attorneys enough to win a war of attrition with the government. For that reason, our Founding Fathers laid out protections in our Constitution to even the playing field. That is why we are protected from unlawful searches and seizures, the right to not self-incriminate, to confront our accusers, to a trial by a jury of our peers, and the protection from torture and other cruel and unusual punishments that have been historically used to induce confessions.

These protections are available to everyone accused of a crime, whether he is guilty or not. These are particulary important to a person who is in fact innocent or who knows that the State does not have enough evidence or that is obtained what evidence it does have unlawfully. They give a person a fighting chance. Justice is done with the state can prove its case, not when it can get a conviction. Our Founding Fathers, like most well educated people, understand that it is far better for a free society to let the occassional guilty man go free than for a single innocent person be convicted.

Why Represent Criminals Part I

Why do attorneys represent criminals?

I think most defense attorneys get asked this once in a while. If someone discovers I recently got a jury to return a not guilty verdict in favor of of my client, I sometimes get the follow up question:

How can you do that? You are getting criminals off.

As those are fair questions, I suppose they warrant a fair response. But first, I need to explain how a criminal proceeding works.

In our system, each person who is charged with a crime is merely accused of a committing a crime. We have all heard of the presumption of innocence. What that means is that the sole purpose of initiating criminal proceedings against a person is to see if the State (or whatever unit of government is handling the prosecution) can produce enough evidence to convice a fact finder (judge or jury) that each element of the charged offense(s), offenses of proved beyond a reasonable doubt. Strictly speaking, whether the person actually committed the crime is not the issue, but rather the sufficiency of the evidence. It is not the burden of the accused to provde innocence, but on the State to prove guilt.

In many instances, an innocence person couldn’t prove his innocence anyway. How do you prove you didn’t steal something from a retail store? Because nobody found it on you? So what, the state can say, you may have thrown it out your car window on the way home. After all, some one says they she saw you take it and the store says they never found the item. If you did steal it, shouldn’t they have more proof than some one claiming to see something. Anyone can claim to see anyone else doing anything. That is why the burden is on those making the accusations.

The State can come at a person with such awesome resources. The average person can’t possibly pay attorneys enough to win a war of attrition with the government. For that reason, our Founding Fathers laid out protections in our Constitution to even the playing field. That is why we are protected from unlawful searches and seizures, the right to not self-incriminate, to confront our accusers, to a trial by a jury of our peers, and the protection from torture and other cruel and unusual punishments that have been historically used to induce confessions.

These protections are available to everyone accused of a crime, whether he is guilty or not. These are particulary important to a person who is in fact innocent or who knows that the State does not have enough evidence or that is obtained what evidence it does have unlawfully. They give a person a fighting chance. Justice is done with the state can prove its case, not when it can get a conviction. Our Founding Fathers, like most well educated people, understand that it is far better for a free society to let the occassional guilty man go free than for a single innocent person be convicted.

Criminal Law Frequently Asked Questions

Here are some frequently asked questions for those facing criminal charges. The answers I am writing are general in nature. Each case is unique.

Will I end up in jail or prison?

For most people, this is the scariest question. The good news is that for most people, the answer is no. If you are facing a misdemeanor or a non violent felony and you don’t have a long criminal record, you likely will not go to jail. However, there is always that risk. Also, because your final sentence is up the judge, don’t trust a cop or prosecutor that tells you to just confess or plea to avoid jail. They don’t get to make that call.

How will a charge or conviction affect me down the road?

There is a separate blog posted that deals with some of the consequences of a criminal conviction. You need to be especially careful with sex crimes, felonies, and misdemeanors involving theft or dishonesty.

Are there options available for juvenille or first time offenders?

Yes, but these vary from county to county and court to court. Generally, a youthful first time offender can get a much better deal than an adult. The law doesn’t do much for a first time offender other than you can’t have prior convictions held against you at sentencing. Also, being convicted more than once for the same crime can sometimes increase the maximum penalty. Examples include drunk driving and retail fraud.

What is a diversionary program and can I qualify?

A diversionary program is a program in which the accused pleads guilty to a lesser charge (or sometimes the original charge) and then, if he or she completes a probationary period, the charge is dismissed and there is no public record of a conviction. These programs are not easy to qualify for. Generally, if you are not a first time offender or over 21, don’t count of these. But there are exceptions.

Can I ever get this of my record?

Michigan allows for the expungement of one crime if 5 years have passed since the conviction. A subsequent conviction of any crime makes one ineligible for expungement. There are exceptions for some minor misdemeanors.

Did the police act properly?

This question needs a careful analysis on a case by case basis. A person does have constitutional rights that the police must follow in gathering evidence but a full discussion is beyond the scope of this blog. Generally if the evidence is gathered improperly, it is not admissable against the accused.

What if I have already confesssed or made a statement?

Don’t worry. It may not be admissible for a variety of reasons. Like most evidence related issues, a case by case analysis is required.

Is my case winnable?

To lose your case, the prosecution must be able to prove its case beyond a reasonable doubt. That means they need alot of good evidence. Even if you are guilty, you may still be acquitted if the evidence simply isn’t strong enough or their witnesses are believable. Many cases are winnable if the accused is willing to fight it hard enough and long enough.
Can I afford a good attorney?

Hiring a good attorney is expensive. To fully fight your case, your attorney is going to have to put in alot of time and effort and spend money on his business to provide you the best possible outcome. You do get what you pay for. Many people decided it is not worth it. That is a personal choice. Look long and hard at the long term outcome of losing and then decide.

Criminal Sexual Conduct (more info)

Michigan has 4 degrees of criminal sexual misconduct. The penalties for these crimes are amont the most serious under Michigan law. If you are facing one of these charges, get a very good attorney immediately. In most cases, these charges are not going to resolved by probation or a slap on the wrist. If the victim is under 17, your entire future is on the the line. Don’t take a criminal sexual conduct charge lightly.

The commentary from The Michigan Model Criminal Jury Instructions distinguish the different degrees as follows:

“The Michigan statute concerning criminal sexual conduct, MCL 750.520a et seq., creates four degrees of the offense. First-degree criminal sexual conduct involves an act of sexual penetration accompanied by one or more aggravating circumstances set forth in MCL 750.520b. Second-degree criminal sexual conduct involves “sexual contact” accompanied by any of the aggravating circumstances for criminal sexual conduct in the first degree or one or more of four additional circumstances relating to sexual contact between state or county corrections officers and inmates, probationers, or pretrial detainees. MCL 750.520c. Third-degree criminal sexual conduct, like criminal sexual conduct in the first degree, requires for conviction an act of sexual penetration accompanied by designated aggravating circumstances, MCL 750.520d, other than those specified for first-degree criminal sexual conduct. Finally, criminal sexual conduct in the fourth degree involves sexual contact aggravated by circumstances not specified for criminal sexual conduct in the second degree. MCL 750.520e.
In sum, first- and third-degree criminal sexual conduct require an act of sexual penetration with “greater” and “lesser” aggravating circumstances respectively, whereas criminal sexual conduct in the second degree and the fourth degree require sexual contact with “greater” and “lesser” aggravating circumstances. Criminal sexual conduct in the first degree is punishable by life or any term of years; criminal sexual conduct in the second degree and criminal sexual conduct in the third degree are punishable by up to 15 years in prison; and criminal sexual conduct in the fourth degree is punishable by up to 2 years in prison.
The statute also creates the offenses of assault with intent to commit criminal sexual conduct involving penetration, a 10-year felony, and assault with intent to commit criminal sexual conduct in the second degree, a 5-year felony. MCL 750.520g.”

In future blogs, I will discuss each degree in more depth and give examples of the aggrevating circumstances mostly commonly handled in my practice.