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Talking to the Police and Miranda

The police must read your your Miranda rights or “Mirandize” when two conditions are met. First, you must be under arrest or be able to leave. And second, the information they are attempting to glean from you must be incriminating. Trust me, if you are being investigated for committing a crime, they are always trying to get you to incriminate yourself. That is never the issue. The real issue centers on whether or not you are under arrest. The police have become masters of trying to get a person to talk without mirandizing him or her by making trying to convince the person they he or she is in fact free to leave or not under arrest.

Some of the tricks they use include the following:

  • Leaving the door open the police cruiser
  • Pointing at the door of the interrogation room and saying you leave at anytime.
  • Sitting on your couch and saying “you are not under arrest and can ask us to leave at anytime.”
  • Telling you that if you just talk, that everything will go away.
  • You aren’t in trouble, we just want to talk

See the pattern?

Don’t fall for their tricks.

You can always say no to police questions. Most experienced criminal defense attorneys won’t allow you talk to the police in almost every situation. We have had charges not brought in cases because with a confession or statement, the police knew there was not enough evidence to charge the person with a crime.

You can distribute child porn to yourself

Believe it or not, people in Michigan are now being charged as distributors of Child Porn merely be downloading it on their own computer. There is not need for it to be forwarded to a third party.

Recently, I have noticed a number of cases in which the prosecution is charing my client with possessing and distributing child pornography, or in the technical term of the statute, child sexually abusive material. The possession is usually straightforward enough; a person allegedly has it on his or her computer, tablet or mobile device.

The distribution is what concerns me. Not so long ago, a person charged with distributing child sexually abuse material had to actually attempt or in fact give or sell the material another person. And in some cases, that is exactly what has happened. However, in many recent cases, the charge of distribution has been based the statutory language “copies” under MCL 750.145(c)(2). That is not what the legislature intended. This is a case of prosecutorial heavy-handedness.

The distinction between possession and distribution is important because possession carries a maximum penalty of 4 years whereas distribution carries a maximum penalty of 20 years.

I have even had cases where the prosecution couldn’t prove possession due to to chain of custody issues but then tried to force a person to “take a deal” by threatening to add distribution charges. These cases are tough enough without the added charges.

In short, in Michigan, you can distribute child porn to yourself even if you merely download to your own computer. Be very careful at what you are looking at online. File sharing services are watched closely by law enforcement because they know that these services are often used to peddle child porn. Don’t get wrapped up in something you are not actively looking for. You have have the police show up at your door.


Jeffery Willis


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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.


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.