Articles Posted in Sex Crimes

A jury is given an oath at the beginning of trial that reads: “….you will render a true verdict, only on the evidence introduced and in accordance with the instructions of the court, so help you God.” Subsequently in the instructions the jury is instructed, “When it is time for you to decide the case, you are only allowed to consider the evidence that was admitted in the case.” You may have deduced at this point the significance of what evidence is admitted, and when that evidence includes prior questionable sexual  or criminal conduct, what are referred to as “prior bad acts” then a jury can reach the wrong verdict for the wrong reasons.

Criminal Sexual Conduct and the Exception to Rule of Prior Bad Acts.

Generally, evidence of your prior bad acts is not admissible pursuant to Michigan Rules of Evidence (MRE) 404b. But your past can come back to haunt you when it falls under one of the permitted and enumerated exceptions that we’ll address below. Michigan Compiled Laws sec. 768.27a is not an enumerated exception under 404b, but by legislation permits the admission of other ‘listed’ prior bad acts involving a minor when the defendant is charged with criminal sexual conduct involving a minor. Further, our Michigan Supreme Court has held that MCL 768.27a prior bad acts is not prohibited by 404b but only must meet the threshold of MRE 403 and to use the People v. Watkins balancing test. One of the most important roles for a Trial Attorney is not their well-crafted opening statement or questioning of witnesses, but what happens before the trial ever begins, and specifically preventing potentially damaging evidence from ever getting to the jury.

Love is Blind. Justice is Blind. But here is what we SEE in Divorce and the Criminal Justice System.

The Criminal Defense Attorneys at the Barone Defense Firm focus their practice on specific and complex criminal defense cases, like those involving allegations of criminal sexual activity and abuse. These criminal sexual conduct (CSC) and child abuse cases are handled in the District and Circuit Criminal Courts when charged by the State or County Prosecutor, and in the Family or Juvenile Court when authorized by Department of Health and Human Services (DHHS) often referred to as Child Protective Services (CPS). The may also often have a federal component, especially when allegations involve allegations of possession, receipt or production of child pornography.  We have found that such allegations arise out of or are raised in the backdrop of divorce. The allegations of criminal sexual conduct and child abuse often come immediately preceding, during, or soon after divorce papers are filed, and therefore, the divorce is the common denominator.

According to the statistics in the 2018 State of Michigan’s Department of Community Health Report there were 56,374 marriages, and possibly not surprisingly, 28,186 divorces. This number may be surprising to the romantic, and validating to the cynic, but all can reasonably agree that there are significant emotions involved when a marriage is ending.  These emotions, when coupled with children being involved, can lead to allegations for legal leverage and quite frankly to hurt the other party. Motivated by money, or custody, or fear, or anger, allegations of criminal sexual conduct or child abuse put the accused in a very difficult position emotionally and legally.

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:

To prove a Criminal Sexual Conduct (CSC) case in Michigan a prosecutor must use evidence that is deemed admissible and the lawyer for the accused has an absolute right to see all that evidence before the case proceeds to trial.

If you are charged with CSC in Michigan your Sex Crimes lawyer will obtain all the evidence known to the prosecutor by a process that is called Discovery.  Discovery is governed by Michigan Court Rule (MCR) 6.201.  That chapter of the MCR covers what is considered Mandatory Disclosure, what is Known by the Prosecutor upon request of the Defense, and what is Prohibited.  Under the Rules of Discovery, the Duty to update and provide the defense is on-going.  This means that a prosecutor must continually provide any updated information.

What is Mandatory Discovery in a Michigan Sex Crimes Case?

The answer to this question depends on many factors, including the facts of your case, your prior criminal history and the discretion of the judge presiding over your case. While the phrase “innocent until proven guilty” is at the heart of our criminal justice system, it isn’t always on the heart of the Judge making the bond determination. When applied to those charged with sex crimes, Michigan jurisprudence does have limitations, especially when it comes to bond and pretrial release.

Once the prosecutor has made the decision to charge you with a sex crime, which in Michigan is called “criminal sexual conduct,” the first court hearing is called an arraignment.  The Michigan Rules of Criminal Procedure have laid out the factors to be considered and followed at the time of your Arraignment, and generally focus on two main points. The first is the likelihood you will appear in court for all future hearings, and the second is the protection of the public.  Any concerns on either of those factors will increase the financial amount of the bond, and the conditions imposed upon you.

What Happens at the Arraignment on a Charge of Criminal Sexual Conduct?

New research regarding child and adolescent sex practices shows that more kids than ever are sending and receiving sexually suggestive text messages, including nude photos. Some of these photos may be considered child pornography. Another study shows that sharing of child sexually abusive material (CSAM) is also on the rise.

When children send sexually suggestive photos of themselves to others, it’s often done consensually. However, these pictures can end up being shared many times over and fall into the wrong hands. Regarding CSAM, predatory producers of child porn and CSAM have become much more active online, finding new ways to groom and trap their victims to obtain CSAM from them.

Why is there an increase in sexting and CSAM?

The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.

For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.

This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii]  In support of their reversal, the court indicate that:

In the United States juries are not informed by the judge of their right to nullification because the case law addressing jury nullification remains oblique. It is therefore commonly said that in the United States juries are empaneled to resolve issues of fact, but when it comes to nullification, juries have the right but not the power to judge the law. Consequently, a judge will never directly instruct a jury than they judge the law.  The reverse is also true; a judge will not instruct a jury that they may not judge the law. In a criminal case, the litigants are also precluded from advising the jury of their right to nullification.

When looking at the history of nullification in the Untied States, it is clear that while the breadth of jury nullification in our criminal justice system has ebbed and flowed it has never entirely gone away. Today a jury sitting on a criminal case may engage in nullification. Since nullification remains a part of our criminal justice system, the question that obtains is this; how much influence can, or should, the judiciary have in limiting or otherwise influencing the jury’s right to nullify?  Said differently, as “keepers of the law,” what role do judges have in explaining or refuting nullification?

In looking at the question of whether or not jurors should be informed of their right to nullify, Irwin A. Horowitz has this to say:

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.

If you are close to the age of 18 and you are facing allegations that you texted sexually explicit messages, or any other crime, then the determination of what court the case will end up in is a function of your age. However, there have been some important changes to Michigan’s criminal laws that will have an impact on this determination.

Michigan’s two Courts of Criminal Justice – Adult and Juvenile

There are many factors that determine where a criminal matter will be filed and heard. The term that lawyers use to describe this issue is jurisdiction, and for the most part, a court’s jurisdiction is defined by various laws called statutes. The Michigan Constitution and Michigan’s Court Rules also address this topic. For this purpose, “jurisdiction” is defined as the power to act, or said differently, power to issues orders. If a judge doesn’t have jurisdiction over you, then he/she can’t order you to do anything.

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