Articles Posted in Criminal Evidence

A recent Michigan Court of Appeals panel reversed a conviction for Criminal Sexual Conduct First Degree, commonly called rape, due to improper witness vouching. The case involved three expert witnesses, all of whom testified for the government.  In different and sometimes subtle ways, each expert made improper statements about the complaining witnesses (CW) credibility that amounted to their “vouching” for the CW’s credibility.

According to the standard jury instructions utilized in Michigan sex crimes cases it is up to the jury to judge and weigh a witness’s credibility.  In reaching this determination, the jury will be instructed to consider a variety of factors including how well the witness was able to see and hear things and was there anything that might have distracted them; how good is their memory; how do they look and act while testifying and do they seem to be telling the truth or are they trying to evade answering and arguing with the lawyers, do they have any personal interest in how the case is decided, and how reasonable is their testimony when compared with all of the other evidence in the case. See M Crim JI 2.6.

Notice that “what do other people think about the witness’s credibility” is not among the factors for the jury to consider.  Vouching is improper therefore because it “invades the province” of the jury by substituting someone else’s opinion for the jury’s collective determination.

Prosecutors and investigators for the United States Department of Justice and the State of New York announced last week an indictment on federal health care fraud charges on a licensed pharmacist and business owner in New York. The basic allegations are that the pharmacy owner paid off customers (in other words, provided kickbacks) to fill fake prescriptions at his pharmacy. The pharmacy would then bill the prescriptions to Medicaid and Medicare. However, the government alleges that either prescriptions drugs were never actually given to the customers or that drugs of lesser value were given, and that it was a scheme to fraudulently get reimbursed by Medicaid and Medicare.

What is a kickback under federal law?

The prescription fraud lawyers at the Barone Defense Firm have provided a detailed discussion about the Federal Anti-Kickbacks Statute previously.  The statute refers to a kickback payment as “remuneration.” Remuneration basically means cash or anything else in value. For example, in this case, the government alleges that the pharmacy owner gave customers coupons valued up to $5,000.00 in exchange for customers submitting fraudulent prescriptions.

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 compliant, 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.

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed.  Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices.  They can go to the police just as with any other crime.  Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

In the most basic terms, statutory rape means consensual sex with a minor child. Michigan does not actually call this “statutory rape” to describe this crime. Instead, Michigan’s rape laws use the phrase criminal sexual conduct as the term for statutory rape.

Michigan’s rape laws are divided into four degrees of criminal sexual conduct. All four degrees can be triggered by the age of at least one of the actors, fitting the generic definition of statutory rape. Regardless of the degree of criminal sexual conduct, the basic idea of statutory rape is preserved under these laws, which is that an individual under the age of consent does not have the capacity to consent and, therefore, cannot give consent.

Thus, even if a person under Michigan’s age of consent is 100% willing and voluntarily agrees to engage in the sex act, they still cannot legally consent.  In this instance, yes does not mean yes.

If you have been charged with a violation under Chapter 110 of the United States code for possessing, receiving, distributing, or producing child pornography, then pursuant to 18 USC 18 U.S. Code § 2259, you are likely to be ordered to pay restitution to the victims of the crime. The term “victim” refers to the individual who is harmed because of the child pornography related crime.

As a general concept, the purpose of restitution in a criminal case is two-fold.  Firstly, restitution is intended to make a person “whole” meaning reimburse them directly for losses suffered because of the crime committed. Secondly, restitution has a punitive function, it is intended to punish the wrongdoer for the crime.

If the crime involved the trafficking of child pornography, which in this context means a violation of 18 USC 2251(d), 2252, 2252A(a)(1) through (5), 2252A(g), then the specific law cited above applies. Under this law, the court is required to determine the full amount of losses that were actually incurred or that could be “reasonably projected.” Then, after this calculation, the court is required to order restitution in an amount that reflects the defendant’s “relative role” in causing the victims loses.  The minimum amount that must be ordered $3,000.

A man charged with second degree Criminal Sexual Conduct (CSC) in Ann Arbor successfully avoided jail time and conviction on the charge as filed. The accused was originally arraigned on the CSC 2nd degree charge on July 29, 2020. The charge was a result of an investigation into a complaint from a 10-year-old girl who was under the care of the accused. The allegation was that the victim was touched in a sexual way by the accused while being cared for by the accused in the home of the accused.

What are the penalties for 2nd degree Criminal Sexual Conduct in Michigan?

The potential consequences for second degree Criminal Sexual Conduct in Michigan are severe. CSC 2 is a felony that cannot be expunged. If convicted, you could be sent to state prison for up to 15 years. A conviction also requires that the defendant registers as a sex offender under Michigan’s Sex Offender Registry Act (SORA). If the victim was less than 13 years old and the defendant was at least 17 years old, as in the case above, then the convicted defendant will be required to wear an electronic monitoring device for a lifetime. The convicted defendant must also pay for the cost of that monitoring device.

Force, also known as coercion, is a legal term of art. It is a legal concept that is specifically listed or referenced in each of Michigan’s Criminal Sexual Conduct (CSC) offenses, 1st Degree through 4th Degree. Overall, Michigan’s Criminal Sexual Conduct defines force as actual physical force, the threat of force, the threat to retaliate against the victim, extortion or threat thereof, kidnapping or threat thereof, concealment of something to commit the assault, surprise, or, in a medical environment, it fake or unethical medical procedures. However, as often the case in legal jurisprudence, there are some slight differences in each degree of criminal sexual conduct.

Force Related to Fourth Degree Criminal Sexual Conduct in Michigan:

In CSC 4th Degree, MCL 750.520e(b) states the following:

The Superbowl has dominated the recent headlines, but an unfortunate story involving one of the Chiefs’ coaches, and the son of Head Coach Andy Reid, has also captured national attention.  Britt Reid was involved in a car accident wherein two young children were injured including one who is listed in serious life-threatening condition with a brain injury.

According to some initial Reports, the coach was driving onto an on-ramp and struck a disabled vehicle and then collided into a car that was providing assistance.  The accident resulted in the two minor children being seriously injured.

Mr. Reid admitted to drinking 2-3 alcoholic drinks prior to the accident, and a police report and warrant indicated a moderate odor of alcoholic beverages.  If there is evidence that alcohol may have been involved, then it is common that a warrant for a blood draw will be obtained.

If someone calls the police to report a rape case in Michigan, it will immediately be taken very seriously. Police have a duty to thoroughly investigate claims of rape, known as “Criminal Sexual Conduct,” under Michigan law. If you’re being accused of rape, an experienced Michigan rape attorney will be able to take some of the unknown out of the situation and advise as to what will happen next and the best steps to take to avoid a criminal sexual conduct charge being filed.

Police Will First Meet with the Accuser

After the initial call to the police, the case will be assigned to a detective with sex crimes investigative training and experience. The detective will ask the accuser to meet- usually at the accuser’s home or at the police department- to discuss the claim in person. The detective will want to obtain the “who, what, where, and when” of the claim. Who did it? Who else was there? What exactly happened? Where did it happen? When did it happen?

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