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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.

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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.

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In most situations the answer is no, but the most complete answer is “it depends.”   First, it is important to know that restitution is different from fines and costs.  Fines are defined by statute and meant to be punitive. For example, if you were convicted of prescription fraud under 18 USC § 841, you could be fined up to $10,000,000. Costs are generally discretionary and are meant to reimburse the government for the expenses involved in prosecuting you.  Both fines and costs are paid to the government.

Restitution on the other hand is meant to restore the victims of the crime to the place where they stood before the crime was committed. The legal phrase for this is to make the victim “whole.” Generally, the purpose of restitution is to compensate a person who, because of the criminal activity, suffers physical injury or property loss.  These losses may be proximally caused and are payable to the victim if you have been convicted of a qualifying offense.

Like fines, restitution in federal criminal cases is most often set forth in statutes. Examples of federal crimes where restitution would be ordered include crimes of violence crimes of fraud, and federal crimes involving child exploitation and child pornography. See 18 U.S. Code § 3663A. In these instances, the court is required to order restitution.

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Patrick Barone and Keith Corbett Federal Criminal Defense LawyersThe best way to understand federal prescription fraud is to look at a case where this has happened. For example, the United States Department of Justice and the State of New York recently announced 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 the prescriptions drugs were never actually given to the customers. Alternatively, that drugs of lesser value were given, and that it was a scheme to fraudulently get reimbursed by Medicaid and Medicare.

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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.

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A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses.  The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

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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.

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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.

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A Marijuana Microbusiness in Michigan is like a Microbrewery in the alcohol industry.  A Marijuana Microbusiness is an excellent opportunity to allow an entrepreneur to launch an integrated marijuana business where, as a licensee, you can grow, process, and sell your products to adults 21 years of age or older without depending on other suppliers.

This type of marijuana license opens opportunities to the individuals with a small business mindset to develop a unique product only available from a single microbusiness location.  An entrepreneur in this business segment could carve out a niche market and create a demand for a product that consumers are willing to drive the extra hour to obtain.  Marijuana Microbusiness is the perfect opportunity to differentiate your product from the products offered by the masses.

Do Michigan’s marijuana laws provide for a marijuana microbusiness?

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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, which are sex crimes, 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.

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