Pre-Trial and Pre-Trial Motions

3After an arraignment the clock begins pursuant to the Speedy Trial Act for a trial. An individual is entitled to a trial within a specific period of time, usually within 70 days. 18 U.S. Code § 3161. However the filing of any stipulations to extend this period or motions or when a judge finds good cause will delay or extend this time period. The attorneys at the Federal Criminal Attorneys of Michigan are very familiar with the Speedy Trial Act as well as the Federal Rules regarding Discovery and Motion practice including Federal Rule of Criminal Procedure 16 and Federal Rule of Criminal Procedure 26.2 which differs very much from the State rules of discovery.

Federal Motions

The lawyers at Federal Criminal Attorneys of Michigan are very familiar with motion practice in federal court. We have not only filed numerous motion, but judges have granted our requests to dismiss.

The following are a list of the most common cases that a federal criminal attorney should know.

One of the most famous criminal cases is Miranda v. Arizona, 384 US 436 (1966) . Most high school students are familiar with this case which stands for the principle that if the police arrest you, before they question you they have to advise you that you have the right to remain silent, that your silence cannot be used against you in court, and that you are entitled to counsel even if you can’t afford to hire an attorney yourself. If the police violate those rules, incriminating answers to their questions can’t be used against you.

Another famous case deals with the issue that requires the prosecutor to provide all the discovery materials or evidence to the defendant. The case is referred to as Brady v. Maryland, 373 US 83 (1963) where the court held that the police and prosecution have to provide the defense with helpful evidence discovered during the investigation. This is narrower than most state rules on ‘discovery,’ or the exchange of information to the parties to a lawsuit, but it also means that if the police have someone else confess to the crime, or if they find DNA evidence suggesting that someone else did it, they have to tell the defendant even if an individual state’s law does not require it.

Most individuals and attorneys who do not regularly practice in federal courts do not know that the rules of providing discovery to a federal defendant is very different than state court. The Jencks Act, 18 U.S.C. § 3500, provides that the government (prosecutor) is required to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only after the witness has testified. What this means is that often a witness will testify and his or her grand jury testimony will not be available just before or sometimes even during trial. It is very important that a defendant have an experience federal criminal defense attorney who is aware of this as many may proceed to trial only to find out that there is evidence not produced until they are already in trial.

Another seminal case is the case of Terry v. Ohio, 392 US 1 (1968) , where the Supreme Court held that with a reasonable suspicion based on objective facts, but neither a warrant nor probable cause, the police could briefly detain a suspect to investigate and check for weapons. A brief detention is often called a “Terry stop,” or just a stop. Often an attorney will challenge the admissibility of evidence and ask that the judge exclude evidence seized on the basis that it was obtained illegally or in violation of the US Constitution, Fourth Amendment, that bars illegal searches and seizures.

The laws of searches and seizures is very intricate and an experience federal criminal attorney will be aware of this. For example, before challenging a search the person must first have “standing” that means that they have an expectation of privacy. If they do not own the car or the house that they are in, they might not even be able to file such a motion.

There are many exceptions to the rule that requires police (not a private security guard) to first seek and obtain a valid search warrant before searching and seizing. For example, in United States v. Leon, 468 US 897 (1984) , the Supreme Court held that when the police found evidence in good-faith reliance on an invalid search warrant, the evidence was nonetheless admissible. The court reasoned that the deterrence rationale of the exclusionary rule would not be served when the searching officers believed that the search was lawful. The dissent argued that the court was discouraging the police from understanding the Fourth Amendment. There are several other exceptions to the search and seizure rule including exigent circumstances and good faith that the attorney needs to understand.

The attorneys at Federal Criminal Attorneys of Michigan also represent individuals who file appears. One of the most common cases or motions is for a new trial based on ineffective assistance of counsel. In Strickland v. Washington, 466 US 668 (1984) the court held that the right to counsel means the right to competent counsel. If the attorney is incompetent, then a resulting conviction is invalid.

Another pre-trial motion may be for the appointment of an expert. It is very important that the defense attorney have familiarity with experts. The lawyers at the Federal Criminal Attorneys of Michigan work closely with Forensic experts, gun experts, pathologists even handwriting experts (known as exemplars). One such expert that we have used is Dr. Werner Spitz, a world renowned pathologist who has performed over 40,000 autopsies and was on the commission involving John F Kennedy and Martin Luther King assassinations. Such experts are a powerful tool.

The case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993) provides a test for the admission of scientific evidence.

Evidence that is likely to be perceived as scientific, and therefore particularly persuasive, is not admissible unless the party offering the evidence establishes to the judge that the science is valid. Although Daubert is an application of a federal evidence rule, it is widely cited in state court decisions.

More recently significant state and federal cases have focused on sentencing issues. In the case of Apprendi v. New Jersey, 530 US 466 (2000) , the court held that any fact that increased a criminal defendant’s maximum lawful sentence had to be proved to the jury. Apprendi was a major change in sentencing law, and it replaced a morass of prior decisions about what facts had to be proved to a jury beyond a reasonable doubt and what could be proved to a judge by a preponderance of the evidence.

In Crawford v. Washington, 541 US 36 (2004) , the court rejected an increasingly-complex list of exceptions, and held that the right to confront and cross-examine witnesses required that accusing witnesses testify in court and be subject to cross-examination.

Though the Federal Sentencing Guidelines were styled as mandatory, the Supreme Court’s 2005 decision in United States v. Booker found that the Guidelines, as originally constituted, violated the Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory. In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), Guidelines are now considered advisory only. Federal judges (state judges are not affected by the Guidelines) must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. The frequency in which sentences are imposed that exceed the range stated in the Guidelines has doubled in the years since the Booker decision.

Michigan recently followed the federal lead and in the case of People v. Lockridge, No. 149073, the Michigan Supreme Court declared the Michigan Sentencing Guidelines unconstitutional as they are currently used. The Court held that, based on decisions of the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S. Ct. 2151 (2013), it violates the Sixth Amendment right to a jury trial to base a minimum sentence guidelines calculation on facts not admitted by a defendant or found by a jury beyond a reasonable doubt. The court held that, for the application of the Michigan Sentencing Guidelines to be constitutional, (1) MCL 769.34(2) must be severed to the extent that it imposes a mandatory minimum sentence based on facts not admitted by the defendant or found by a jury; (2) the requirement under MCL 769.34(3) that sentencing judges articulate substantial and compelling reasons for departing from the guidelines range must be struck down; (3) the sentencing guidelines must be advisory only. The court held that trial courts, however, must still calculate and consider the guidelines range for each defendant as part of its sentencing decision.

These are only a few such motions and cases that are part of what a federal criminal attorney must be aware as a starting point.

IV. Federal Rule 11 Plea Agreements