Felony Offenses

Forensic Interviewing in a Michigan Sex Crimes Case Involving a Child

Published on: January 17, 2022 | by Michael Boyle

In cases involving allegations of child abuse or physical or sexual assault against a minor will involve a process known as a Forensic Interview. In some cases, a law enforcement officer or investigator will be trained in this method but in the majority of cases the minor will be brought to a specific facility, clinic or center to be interviewed by a trained professional. The goal is to obtain a truthful statement from the child that will lead to fair decision making in the criminal justice system. Michigan, like many other states, have outlined the process and procedures for a proper and ideally reliable forensic interview. One such piece of published material is in Department of Health and Human Services (DHS) – PUB 0779 and is a great tool for attorneys to study, learn, and use during cross-examination, if necessary.

The Forensic Interview is Specifically Designed to Follow a Process Known as Phases.

The Phases include:

Have You Been Falsely Accused of a Sex Crime in Michigan?

Published on: January 17, 2022 | by Michael Boyle

If you have been falsely charged with a sex offense, then it is helpful to understand the role of law enforcement. The same is true of the prosecuting attorney and criminal defense lawyer.

All sexual offenses operate with the same laws and rules. This is true for any degree of criminal sexual conduct. It is also to whether you are facing false accusations or the allegations are true.

A prosecutor must use evidence that is deemed admissible by the Judge. Your sex offender criminal defense lawyer has an absolute right to see all evidence before the case proceeds to trial. Part of the defense strategy will be to keep the jury from seeing the evidence.

Why Would a Jury Choose to Nullify the Law?

Published on: December 2, 2021 | by Patrick Barone

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

Jury Nullification is Consistent with the Concept of Limited Government

Published on: December 1, 2021 | by Patrick Barone

The Sixth Amendment to the United States Constitution provides that citizens accused of crimes have an absolute right to a speedy, public, trial by an impartial jury. But this right to trial by an independant jury trial was not invented in the United States. In an article in the British Library, Author Geoffrey Robertson remarked that the modern independent jury, and their right to jury nullification, arises out of the rights and limitations originally set forth in the Magna Carta.

Notice the difference in what Robertson indicates and what the U.S. Constitution indicates. Robertson refers to an independent jury whereas our Constitution refers in Article III, Sec. 2, simply to trial by jury, and the Sixth Amendment to an impartial jury. Is this a distinction without a difference? Does the Sixth Amendment, in using the word impartial also connote independence?

In the modern age, this concept of impartiality is most often thought of in the context of the jury’s fact-finding role, in which jurors must be “free of prejudice.” But from a historical perspective, might the word “impartial” as used in the Sixth Amendment also reference impartiality to, and independence from, the law itself?

What to Expect as your Case Moves Through the Michigan Juvenile Criminal Court

Published on: November 25, 2021 | by Michael Boyle

The criminal procedure applicable to the Michigan Juvenile Criminal Courts is similar to but much different from the procedures utilized and applicable to the Michigan Adult Criminal Courts. The purpose of this article is to give a brief yet concise summary of these differences. If you are charged as an adult or juvenile offender, or if you are the parent of someone so charged, then your lawyer will be able to give a more detailed explanation of what to expect while your case is pending.

How Does a Juvenile Case Begin?

In the adult court, the case begins when a criminal complaint is filed. Most often, complains are accompanied by warrants, and require that you appear for an arraignment. In the juvenile court, the complaint is called a petition. They both list what the allegations. This is just one of the many differences in the juvenile justice system.

Would Kyle Rittenhouse Have Been Acquitted in Michigan?

Published on: November 19, 2021 | by Patrick Barone

The only way to know the answer to this question would be to actually try the case in front of a Michigan Jury. One thing for certain however is that Kyle Rittenhouse would have been allowed to raise a claim of self defense had the case happened here in Michigan. Presumably, if it was the exact same testimony and evidence, same jurors, judge and prosecutor, then yes, Kyle Rittenhouse would have been acquitted here in Michigan too.

This is all speculation, but a brand-new case in Michigan may shed light on the question. The name of the case is People of the State of Michigan v Leandrew Martin. The case arose out of the Jackson County Circuit Court, and was decided on November 18, 2021. In this case, the Michigan Court of Appeals set aside multiple felony convictions because the defendant’s lawyer had failed to request a jury instruction for self-defense despite the fact that a claim of self-defense had been established at trial. The court held that this mistake was so bad that the verdict had to be set aside finding that the defendant’s attorney was “ineffective.”

The case arose out a bar fight and during the fight the defendant shot ten times into a crowd, leaving one person with a serious injury caused by ricocheted bullet that struck the foot. The defendant was a felon and was not in lawful possession of the pistol. Because of this the defendant’s lawyer thought he was not entitled to raise self-defense. It’s not clear why the defendant’s lawyer believed this to be true because Michigan’s laws of self-defense do not require that a defendant be in lawful possession of the weapon in order to raise a claim of self defense.

Research Shows that False Memories in Sex Crimes Cases Can Lead to Wrongful Convictions

Published on: May 28, 2021 | by Patrick Barone

Charges for criminal sexual conduct cases, more commonly called sex crimes or sexual assault, are often based only on the memories of the complaining witness. This is especially true for sexual assault that allegedly took place when the adult victim was a child. In these sex crimes cases there is no physical evidence, and the guilt of the accused rests entirely on the veracity of the witness’s statements and testimony. The problem is that the allegations of criminal sexual conduct can be based on totally false memories.

A new article written by an international team of researchers suggests that false memories can be reversed. According to the article, false memories cause many problems, not the least of which is false criminal allegations. The existence of false memories has been shown by many prior studies, and the contribution of this new study is that with the right kind of interviewing false memories can be supplanted by true memories.

To understand how this would all play out in a Michigan sex crimes case, the investigation of a sex crime usually begins with a report made to a police department. The initial report will inevitably be based on a recollection of past events, in this case some kind of sexual trauma or abuse. The case might then be assigned to a detective, who is likely to seek a second interview of the complaining witness, a/k/a victim. Depending on the age of the complaining witness, a forensic interview may follow.

What is a Psychosexual Evaluation and How is it Used in Michigan Sex Crimes Cases?

Published on: April 19, 2021 | by Ryan Ballard

A psychosexual evaluation (PSE) is a psychological assessment administered by a licensed psychologist that collects information about one’s biographical and sexual history. In addition to the clinical interview, the therapist will also administer several related psychometric tests, and based on both, will provide an opinion relative to the propensity one might have to commit a future criminal sexual act. Beyond the evaluation and determination of criminal recidivism, the PSE should also provide, if necessary, a treatment plan to give the person the tools to control sexual urges and avoid potentially criminal situations in the future.

What subjects are covered in the PSE?

The PSE is lengthy and can take several hours to two days to complete. Questions are centered around the client’s social and sexual history ranging from simple biographical information to very specific and detailed sexual encounters. Questions of a sexual nature will include topics like sexual fantasies, sexual relationships, and masturbation.

How Long Can I Be Held on a Federal Complaint and Warrant?

Published on: March 23, 2021 | by Patrick Barone

Once you have been arrested on a Federal Complaint and Warrant, the government must hold a preliminary exam with 14-21 days unless you consent, and good cause is shown. Otherwise, the rules require that you be released. However, you can only be held on a complaint. You cannot be prosecuted further on a complaint and warrant. To prosecute you further, the government must either file an information or obtain an indictment.

To better understand this, it is helpful to consider that when the government believes that you have committed a felony over which the federal courts have jurisdiction, the prosecution for this crime may be initiated by the government in one of three ways. The most common of the three is the criminal indictment. However, in certain circumstances, the government may determine that there is a need to forgo the grand jury and instead will prepare and file a complaint. This procedure is governed by Rules 3-5.1 of the Federal Rules of Criminal Procedure.

A complaint, and the necessary probable cause to support it, may be based in whole or in part on hearsay. According to Rule 3 of the Federal Rules of Criminal Procedure, a complaint must contain the essential facts of the crime alleged, and must be presented to a magistrate judge, under oath. Rule 4 of the Federal Rules of Criminal Procedure provides that, in reviewing the warrant and deciding whether to issue an arrest warrant, the magistrate judge must determine whether the complaint establishes probable cause to believe 2 things; first that the crime alleged has been committed and that second that the defendant committed it.

Repeat Drunk Drivers Can Avoid Mandatory Minimum Jail Sentences Under New Michigan Law

Published on: March 17, 2021 | by Patrick Barone

A package of new laws allows some of Michigan’s repeat drunk drivers to possibly avoid mandatory minimum jail sentences. As a result of these changes, mandatory minimum sentences have been modified or removed from Michigan’s drunk driving statute, and this means that Judges may now sentence a drunk driver to any term of imprisonment, from zero days up to the maximum otherwise provided for the offense. The new law does not change the applicable fines or maximum possible terms of imprisonment, it only eliminates the mandatory aspects of the minimum sentences, making it possible for some repeat DUI offenders to avoid incarceration.

Legislative History of the New Michigan DUI Laws

These changes arose out of House Bill 5845, which was introduced in June 2020. The proposed law went through several permutations until it was approved by both houses by a vote of 506 to 38 in December 2020. Shortly thereafter it was introduced to Governor Whitmer. The Bill was signed into law by the Governor on January 4, 2021 and becomes effective on March 24, 2021.