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Now that you understand the plea bargaining process in Michigan and how to prepare for court when pleading guilty, let’s now consider exactly what happens in court when you plead guilty. During the plea taking process the court will be concerned with two things. First that you understand the constitutional rights that you are giving up by pleading guilty, and second, that you are freely, knowingly and understandingly admitting to and acknowledging that you have committed the crime to which you are pleading guilty.

To confirm that you are fully aware that by pleading guilty you are giving up all your constitutional rights associated with trial, the judge will ask you a series of questions almost all of which are answered by the single word “yes”. So, for example, the judge will ask you if you understand that you have an absolute right to trial, to which of course your answer is “yes.” The judge will ask you if you understand that pleading guilty you are giving up your right to remain silent, to which again, the answer is “yes.” There are sometimes a few “no” questions as well, such as “have any promises been made other than those stated on the record, to get you to plead guilty.” The answer to the question so certainty be “no.” Another no question might be “have there been any threats, compulsion or duress used to get you to plead guilty.” Again, the answer should definitely be no. Once the court is satisfied that you are freely knowingly and understandingly giving up or waiving all your constitutional trial rights, and that no promises or threats have been made to induce the plea, then the court will move on to a establishing the factual basis for plea.

What is a Factual Basis for a Plea?

Many Michigan DUI and other criminal cases are resolved through a process called plea bargaining. A plea bargain is what happens after your attorney discusses your case with the prosecutor and explains why it is appropriate to amend or reduce the charges you are facing with the court. You will be advised of any plea(s) offered by the prosecutor even if your lawyer doesn’t think you will accept the offer or if it’s in your best interest.  This is because the rules of professional ethics applicable to criminal defense attorneys require all offers of settlement to be disclosed to you. Plea agreements are usually reached only after discovery is complete and all viable defenses to your DUI case have been thoroughly explored.

Making the Decision to Plead Guilty

In most instances, if you are pleading guilty it is because the prosecutor has offered to modify or “amend” the original charges in your case, usually by reducing them to something less serious, and you have indicated that you are willing to plead guilty to these amended or reduced charges in exchange for the prosecutor’s promise that the original more serious charges will be dismissed.  This promise is reduced to a written motion sometimes called a plea agreement which will be signed by the prosecutor, your attorney, and the judge. Collectively, this process is called plea bargaining.

Most of the time if you are pleading guilty it is because your lawyer has successfully engaged in plea bargaining with the prosecutor. Consequently, preparation for court when pleading guilty really begins to take place almost as soon as you first hire your lawyer. Therefore, the total preparation will take place over several weeks or months, and sometimes even years before you are set to appear in court. At a minimum the following things should have occurred before you plead guilty.

  1. You’ve reviewed all the discovery with your attorney.
  2. You’ve discussed possible defenses with your attorney.

In every criminal case the government has the obligation to prove the elements of the crime charged behind a reasonable doubt. To meet this burden of proof the government must produce evidence in support of their case. This evidence usually consists of the narrative written police reports prepared by the investigating officers, any video or audio recordings of the accused or any witnesses, written witness statements, any tangible evidence such as murder weapons, any forensic evidence such as toxicology or fingerprint reports, ballistics evidence, and anything else that the prosecutor has in his or her possession that can or will be used to support their claim that a crime was committed.

The law and rules of criminal procedure provide that the prosecutor has an obligation to provide the defense with access to and/or copies of all their evidence prior to trial. In this context, the term “discovery” is used by lawyers and judges as a verb that broadly refers to the process used to obtain copies or access to the prosecutor’s evidence. For example, the court may ask if “discovery is complete” to which the attorneys may response “discovery is ongoing.” The term discovery is sometimes also used as a noun to collectively refer to the total body of written, physical, or digital evidence. In this instance the prosecutor may tell the court that they have provided all of the “discovery” to the defense.

The discovery process usually begins with a written discovery demand prepared by the defense attorney and served on the prosecuting attorney. Depending on circumstances, the investigating agencies involved, as well as the courts involved, discovery demands and or Freedom of Information Act requests may be sent directly to law enforcement or two third parties such as the Michigan State Police forensic laboratories in Lansing.

Soon after you are found guilty or plead guilty to a federal crime you will meet with a United States Probation Officer who will complete a presentence investigation and then prepare a report (PSIR) for the judge’s use at sentencing. If the judge sentences you to prison, then the PSIR will also be used by the Federal Bureau of Prisons (BOP) in making housing and other relevant determinations. Consequently, it is essential that the PSIR be accurate and complete. What follows is a description of the kind of information the probation officer will collect during your interview as well as how to be well prepared for this important process.

Why is the Federal Presentence Report Prepared?

The purpose of the presentence investigation and report is to provide comprehensive information about the offender that is both objective and accurate.  This information and report will be used by the court in making the appropriate sentencing decision. The report also will assist the Bureau of Prisons in making proper determinations relative to the management of the inmates under their supervision.

Whenever you pull out your firearm in Michigan, you are placing your future in the hands of others.  Unlike some states, Michigan does not prohibit an arrest or prosecution for the use of fatal or not-fatal force in self-defense.  This means that the police will investigate the incident, which can include questioning, collecting evidence, and possibly an arrest.  Whether criminal charges are authorized is a decision made by the Prosecutor, but most people are unprepared for what happens after the use of self-defense.  This lack of preparedness is dangerous, since any misstep or incorrect statement could jeopardize your legitimate self-defense claim and possibly lead to not only loss of 2nd amendment rights but your personal freedom and a lengthy prison term.

When can I lawfully use force or lethal force in self-defense?

Michigan has two laws that cover various self-defense scenarios. The first is the Castle Doctrine, and this law applies to the use of force inside your home or your place of business. It also covers the use of force to prevent a carjacking. Another self-defense law that applies inside your home if the Castle Doctrine is not available, as well as anywhere else you have a lawful right to be, is the Stand your Ground law. The Gun Crimes Lawyers at the Barone Defense Firm have written extensively on this topic, and readers are advised to look up these articles also. But just because the law says you can use self-defense in certain circumstances this does not mean you won’t be prosecuted.  This is because Michigan’s self defense laws provide a defense they do not bar prosecution. This means you could be charged with Homicide even if you think you properly acted in self defense within the bounds of Michigan law.

At the Southfield Freeway exit on Eastbound I-96, there is a large billboard selling Byrna Pepper Balls as a self-defense method.  The pepper-filled paintballs are fired by a launcher that is essentially a pistol-shaped paintball gun.  The billboard states, “Works Like a Gun, Without the Consequences.”  However, it misses the severe consequence that, under Michigan law, it is a 5-year felony to possess these cartridges.

Specifically, Michigan Compiled Laws sec. 750.224(1)(e) prohibits any cartridge designed to render a person disabled by the ejection, release, or emission of a gas or other substance.  The pepper balls are clearly a cartridge designed to disable by the release of a substance.  This easily meets the prohibition under that section.

The penalty for violation of this law is up to five years in a state prison or a fine of up to $2,500.00, or both.  That means, if you are convicted of simply possessing pepper balls, you can be charged with a felony.  A felony on your record would prevent you from ever exercising your 2nd Amendment Rights. This significant consequence is not well known and many gun stores in Michigan carry pepper balls.  Byrna will even ship the pepper-balls to you, making it as easy as possible to break Michigan law.

A probable cause conference is a court hearing that precedes the preliminary examination. Both hearings are part of what are more broadly referred to as your due process rights. Your attendance at a probable cause conference is mandatory. Both you and your attorney will usually receive the initial date for your probable cause conference at the arraignment.

The probable cause conference is governed by Michigan Compiled Laws § 766.4 and Michigan Court Rule 6.108. The probable cause conference must be held not less than 7 days or more than 14 days after the date of the arraignment. The probable cause conference will take place at the district court having jurisdiction over the matter. However, district court jurisdiction is limited relative to felony cases in that district court judges do not have the authority to sentence a felony offender and do not have the authority to preside over trial on a felony matter.

Generally, the purpose of a probable cause conference is to determine if the case can be resolved without going any further or if a preliminary examination is necessary before the case can proceed toward trial at the circuit court.

The Michigan Gun Crimes Lawyers of the Barone Defense Firm practice all over the State of Michigan. This includes both state and federal courts.  For example, the 64A District Court and Ionia Circuit Court both located in Ionia, Michigan in Ionia County are regular courts that we appear in due its proximity to our Grand Rapids office.  The media recently reported that there was a stabbing in Ionia County and further that there is a claim of self-defense.  All the facts surrounding the circumstances of the stabbing are still being investigated, but there is some information that has been reported by local news outlets, therefore, we believe it is important to address some of the common issues that we see in self-defense cases and in Ionia County.

Is Self Defense limited to firearms?

No. Self-Defense often elicits the idea that a gun or firearm was involved.  However, Michigan legal self defense laws apply to all legal weapons, which include knives.  According to article a homeowner stabbed a man that was in his home.  He then called 911 and notified the dispatcher of what he had done.  Law enforcement arrived which included local public safety officer and state authorities from Michigan State Police.  It is common that multiple agencies arrive on scene when there is possible use of deadly force, regardless of whether it is reasonable and legal use of deadly force.  It was further reported that the person who had been stabbed was pronounced dead at the scene. Therefore, it is common practice that the medical examiner and a forensics unit would also appear, although it was not reported.

In Michigan all persons accused of a crime have certain due process rights. There rights arise out of the Michigan and United States Constitutions, and these Constitutional due process rights are instantiated in Michigan’s criminal procedure. What follows is a brief overview of felony criminal procedure in Michigan. If you are charged with a felony in Michigan, then you should discuss each of these steps with you lawyer so you understand the purpose of all of these due process rights and can make well informed decisions about how to proceed.

Initial Arraignment on the Complaint

A criminal case in Michigan will begin with the authorization of a complaint and the issuance of a warrant. The complaint is the charging document that sets forth the specific criminal law that the government claims has been violated. The warrant is the order that requires the appearance of the accused in court for the arraignment on the complaint. After the arraignment the warrant is set aside, and a bond is set. In very serious cases the prosecutor may request no bond, but that is rare. In the majority of cases a cash bond will be set, along with conditions of bond that must be followed if the accused is able to post bond. In less serious cases the court may order a “personal recognizance” bond, meaning no money is required to be posted.

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