Criminal Justice Process Explained
The Michigan Coalition to End Domestic and Sexual Violence has prepared a guide to assist with providing a collection of information around the areas of sexual assault, dating/domestic violence and stalking. The below explainations are a excerpt. The complete Guide may be found HERE.
Filing a Police Report
With accurate information about the law, and support from friends and family, many survivors choose to report the crime and participate in a criminal case against the perpetrator. It is not an easy process for survivors, but some have found it to be helpful in their journey to healing. If you decide to speak to the police, you can have a friend or advocate present to support you. You may want to write down everything you can remember about the assault and the perpetrator prior to filing a report. This will help you when you meet with a police officer. The police will interview you about what happened. Some questions might seem personal or embarrassing but it is important for the police to get as much information as possible.
After the police report is made, a detective will be assigned to investigate the crime and submit the case to the prosecutor’s office. The decision to prosecute rests with the prosecuting attorney. This decision is based on the evidence that is available to the prosecutor. Sometimes cases are not prosecuted. This is not because the procecutor is skeptical; it is because it is believed that there is not enough evidence to prove to a jury or a judge that the defendant is guilty.
The Court System
There are two basic types of cases that go to court: criminal and civil.
A criminal case is one in which the State of Michigan is seeking to punish a person who has committed a crime. A crime is an act committed in violation of the law, punishable by imprisonment or fines. In a criminal court case, the prosecuting attorney - acting on behalf of “the people” - brings charges against the individual accused of perpetrating the crime (the defendant). For example, the survivor of a sexual assault is considered a witness to the crime, not a party in the criminal case. Criminal sexual conduct or rape is a criminal offense.
The civil justice system involves any case that is not a criminal prosecution. Civil cases involve one person (the plaintiff), bringing a legal action against another person (the defendant). Divorce, custody, personal protection orders and torts are examples of civil matters. Survivors of sexual assault have successfully sued perpetrators for emotional distress, physical injury costs and other monetary damages.
Your Role in the Criminal Justice Process
You are a witness in the state’s case against the assailant. You will be subpoenaed to testify during the criminal process. The prosecuting attorney will present the case on behalf of the “people of the State of Michigan” and does not represent you specifically. As the victim of a crime, however, you have certain rights. You can contact the prosecuting attorney’s office to find out which prosecutor is working on the case. You can contact the attorney with any questions you have about the criminal case. An advocate at the YWCA of Greater Flint (ywcaofflint. can help you with this and any other aspect of your case or the criminal justice system.
Michigan has several laws that are designed to make participation in the prosecution of the assailant easier for the victim.
- 1. The defense attorney cannot bring up your sexual history as evidence in the criminal trial unless there was a previous sexual relationship between you and the assailant, or if there was specific sexual activity that could account for the presence of semen, disease, disfigurement or other injury. In these exceptions, the defense must specifically request access to this evidence and the judge can use discretion in limiting this type of evidence. [MCL 750.520j]. This is known as the rape shield law.
- 2. The prosecutor does not need to prove that you resisted. [MCL 750.520i].
- 3. Your testimony does not need to be corroborated or supported by other witnesses. [MCL 750.520h].
- 4. A law enforcement officer cannot ask or require you to take a polygraph test. [MCL 776.21].
- 5. The law does not specify the sexes or limit the relationship of the parties involved. It is possible to bring criminal sexual conduct, domestic/dating violence/stalking charges against a same-sex assailant or an assailant to whom you are or have been married to or involved with in previous consensual sexual activity.
Stages in the Criminal Process
Warrant Request and Authorization: The detective/officer assigned to your case will forward a report to the prosecuting attorney’s office. The prosecutor may want to interview you. Because sexual assault is a crime against the citizens of Michigan, the prosecutor represents the people of the State of Michigan and not you specifically. The prosecutor will make the decision about whether or not to prosecute. If you haven’t heard from the prosecutor, you can call the prosecuting attorney’s office and ask to speak with him/her. If the decision to prosecute is made, there 25 will be an arrest warrant issued or a notice to appear in court for the defendant (perpetrator).
Arraignment in District Court: The district court judge will read the charges and the defendant will be given the opportunity to plead. Bond will be set at this time. Bond is an amount of money that needs to be paid to ensure that the perpetrator will show up for court again. Sometimes no bond or a very high bond is set so that the perpetrator is forced to stay in jail. If the defendant is released, the judge may order conditions of bond. The prosecuting attorney may request a condition of bond that orders the defendant not to come near you or contact you. You can talk with the prosecutor and have him/ her request this type of bond condition, usually referred to as a “no contact condition.” The victim may submit an affidavit (sworn statement) asserting acts or threats of physical violence or intimidation by the defendant against the victim or the victim’s immediate family. The prosecutor may initiate Bond Revocation proceedings. The local police may arrest the perpetrator if he/she violates a protective condition of bond. If you are experiencing harassment, intimidation or threats by the perpetrator, contact the local police and notify the prosecutor assigned to the case.
Preliminary Exam: This is a formal hearing in front of the district court judge. The prosecutor will try to prove that a crime took place, that it took place in your county, and that the perpetrator is a likely suspect. In order for the case to continue, the prosecutor must prove that there is probable cause to believe that the crime took place and the accused committed it. You will be required to testify. At the beginning of your testimony, you will have to look at the perpetrator and identify him/her for the court. The prosecutor and the defendant’s attorney will ask you questions. The case may be dismissed at this point or bound over to circuit court for trial. Sometimes the defendant may waive the right to a preliminary exam and the case will go straight to circuit court.
Plea Bargaining The prosecutor and the defense attorney may negotiate about the degree and type of the final charge. This is called plea bargaining. The defendant may agree to plead guilty to a lesser charge to avoid a more severe punishment. A plea may be entered to the judge at any time during the court process. The judge does not have to accept the plea, but usually will if the defendant, the defendant’s attorney, and the prosecutor agree. The prosecutor should discuss any pleas with you. If you feel strongly about the plea, speak to the prosecutor and let your opinions be known.
Arraignment in Circuit Court: The charges will be read to the defendant in circuit court. The defendant will be again given the opportunity to plead. If the defendant pleads guilty or no contest, a sentencing date will be set. If the defendant pleads not guilty, a trial date will be set.
Pretrial Conference and Motions: The court may hear motions to determine what evidence will be admitted. The defense attorney and the prosecutor may discuss a plea bargain.
Trial: The prosecutor will try to prove beyond a reasonable doubt that the defendant committed the crime. The victim has the right to be present throughout the entire trial of the defendant, unless the victim is going to be called as a witness. If the victim is called as a witness, the court may for good cause, order the victim to be sequestered until the victim first testifies. As the accused, the defendant has the right to stay in the courtroom throughout the entire trial. The trial could take several days to complete. If the defendant is convicted, a sentencing date will be set.
Sentencing: If the defendant is convicted or pleads guilty or no contest, the probation department will make a sentencing recommendation to the judge. You have the right to submit or make a written or oral impact statement to the probation officer for use in preparing the presentence investigation report. [MCL 780.824]. A written statement turned in before the sentencing date will become part of the file. This means that the defense attorney will have access to it and may share it with the perpetrator. If you so choose, you have the right to make your oral statement at the time of the sentencing proceedings (even if you do not complete a written statement).
Your Victim Impact Statement may include but is not limited to the following: nature of any physical, psychological or emotional harm suffered; explanation of any economic loss or property damage; opinion of the need for or extent of restitution; and a recommendation for the defendant’s sentence. [MCL 780.823].
The victim also has the right to make an oral impact statement at sentencing. If you are physically or emotionally unable to make the oral impact statement, you may designate any other person 18 years or older to make the statement on your behalf. The court shall consider the victim’s statement when imposing sentence on the defendant. [MCL 780.825].
Appeal: The defendant has the right to appeal the decision. Upon the victim’s request, the prosecuting attorney shall notify the victim of the following:
- That the defendant filed an appeal of his or her conviction or sentence or the prosecuting attorney filed an appeal;
- Whether the defendant has been ordered released on bail or other recognizance pending the outcome of the appeal within 24 hours of receiving notice;
- The time and place of appellate court proceedings within 24 hours of notification;
- The result of the appeal.
The prosecuting attorney shall provide the victim with a brief explanation of the appeal process. If the case is returned to trial or a new trial is ordered, the victim has the same rights as previously requested. [MCL.780.828].