The following is important information is a general overview of federal and state procedure and other frequently asked questions. This section is NOT meant to be legal advice and is only here for general guidance. It is essential that you contact the Federal Criminal Attorneys of Michigan if you want substantive legal advice and guidance.
If you have any questions please feel free to contact the attorneys at the Federal Criminal Attorneys of Michigan for a free, confidential, consultation
Should I represent myself in a criminal case?
Representing yourself is a very risky strategy, even if you are completely innocent. Prosecutors are trained to convict. If you do not have an experienced criminal defense attorney on your side, there is a strong chance that you will not be able to adequately defend yourself. When you are charged with a crime, the smart thing to do is to hire an experienced criminal defense attorney, especially when jail or prison time is a possibility. Convictions for minor offenses can turn into other costs, such as more severe punishment for multiple prior convictions, an increase in your insurance rates, a suspended license, and even potential deportation if you are not a citizen. Experienced criminal defense attorneys know how the criminal justice system works. Criminal defense attorneys have the ability to evaluate your case and determine what trial strategy is best for your unique situation.
The Federal Criminal Attorneys of Michigan help clients all through the United States. We handle a wide range of cases and we are experts at handling even the most complex cases. We are constantly fighting to ensure that the justice system is working for our clients.
What should I expect from a good criminal defense lawyer?
You should make sure that your attorney has sufficient knowledge and experience defending the charges against you. You should check to see if your attorney is a skilled litigator and has a positive reputation in the legal community. Not all attorneys are experienced in both federal and state courts. It is essential that you ask where that attorney has trial experience. Make sure that your attorney provides you with a case evaluation which includes all of your options clearly explained to you. Your attorney should listen to your situation and keep all of your communications completely confidential.
The criminal defense lawyers from the Federal Criminal Attorneys of Michigan provide aggressive and innovative representation of all criminal matters in both state and federal court in Michigan and throughout the United States. With extensive experience, our firm handles a vast array of criminal law cases ranging from drunk driving offenses to murder, from drug possession to complex “white collar” crimes like embezzlement. Our criminal lawyers have the drive and passion needed to take on any case. Don’t gamble on your future. Criminal law can be extremely complicated. Talk to one of our attorneys today.
I am being accused of a crime. What should I do?
If you are being accused of a crime, criminal law can be both scary and challenging. If you or someone you know has been charged with a crime, it is crucial to get an attorney as early as possible. Without the sound advice from an experienced attorney, you are more likely to incriminate yourself and provide law enforcement officers with critical facts and evidence that can negatively affect your case.
The Federal Criminal Attorneys of Michigan want you to feel at ease during this stressful time, by having an experienced attorney working on your case. Our team at the Federal Criminal Attorneys of Michigan is available for a free and confidential consultation on the phone, in person, or at the jail to help alleviate the emotional trauma experienced and begin building your case from the ground up, remaining dedicated to you throughout the entire proceeding. Knowing what comes next, and how to prepare for each step in the judicial process can alleviate this stress and keep your case on the right track.
Clients frequently come to us feeling overwhelmed. It is our duty to ensure that you do not feel victimized by the legal system. We help you feel confident in your case and we help you understand how the court process works. Contact us today to set up your free and confidential consultation with our dedicated and aggressive legal team.
Why is it important to hire the Federal Criminal Attorneys of Michigan?
Your future and ultimately your freedom are in the hands of the criminal justice system. Hiring the right defense team to fight for your rights is critical to your success and should be done as soon as possible. Whether you are being investigated, have been arrested, or have already been charged with a crime, we have the answers to your growing questions and concerns. We will not stand for your rights being violated throughout the criminal law process. As your criminal defense attorney, we will protect your rights and act in your best interests throughout the legal proceedings. All defense attorneys and public defenders are not created equal. The Federal Criminal Attorneys of Michigan has the experience, resources and dedication that lead to your rights being protected. Ensuring proper representation, preparation, and the right legal defense is vital to your future.
Nobody wants to be convicted of a crime or serve jail time, and it is our job to see that you do not experience either. Our criminal attorneys in Michigan build legal defenses for people like you in areas including but not limited to: burglary, theft and related property crimes, assault, battery, fraud and related white collar crimes, drug charges including possession and sale of drugs, sex crimes, juvenile offenders, and driving under the influence. Let us stand up for your rights, and defend your future and freedom before it’s too late.
How does the federal criminal process begin?
There are two ways charges can be filed against a person charged with a crime in federal court. One way is by a criminal complaint and the other is after a grand jury indicts.
A criminal complaint is filed by the federal prosecutor when there typically is insufficient time to present evidence to a grand jury. The United States Constitution requires that most federal criminal charges be reviewed by a grand jury. A grand jury consists of members of the community who listen to and examine evidence that is presented by the federal prosecutor. The grand jury works in secret. When a grand jury meets to hear evidence, the only persons in the room are the grand jury members, the federal prosecutor, the court reporter, and the witness.
There is no judge present when the grand jury convenes nor is the individual charged or his attorney. After listening to the evidence that the government has presented, the grand jury is asked to vote on whether probable cause exists to believe that you committed a crime. If the majority of grand jurors vote that probable cause exists, the grand jury will issue written charges against you in what is called an indictment.
If an individual is charged by way of a criminal complaint, he or she is entitled to a preliminary examination. A “complaint” is a statement written by a federal prosecutor accusing the individual of a crime. Before allowing the complaint to be filed, the judge will have reviewed it and the sworn statement of a federal agent attached to the complaint setting forth the allegations. After authorizing the complaint, the judge can issue an arrest warrant.
While a defendant does not have the right to choose whether he or she will be indicted by a complaint or by an indictment, only in the filing of a complaint is a defendant entitled to a preliminary examination. A preliminary examination is a hearing where a judge decides if there is sufficient probable cause evidence to continue to case. The judge, in essence, does the same thing a grand jury would do. Prosecutors, however, do not prefer this method because a preliminary examination is not in secret, but is in open court. A preliminary exam allows the defense attorney to question the witness and a transcript of the entire preliminary exam is created.
In federal court, unlike state court, hearsay is allowed in a federal preliminary examination and the parties sometimes present evidence by way of what is referred to as a “proffer,” where the attorneys tell the judge what the evidence would have been had someone testified or the evidence had been brought to court.
Once a defendant appears in court on a complaint, a probable cause hearing, also called a preliminary hearing, will be scheduled. A preliminary hearing must be scheduled “within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody.” (Federal Rule of Criminal Procedure 5.1).
Probable cause is a very low burden of proof. All the prosecutor has to show is that there is probable cause to believe that the crime was committed and that the defendant committed it.
The defendant will be charged if one of the following three things occurs: 1) The defendant is indicted by the grand jury, 2) a magistrate finds that there is probable cause to bind over the defendant for trial after a preliminary exam, or 3) the defendant waives (gives up) his or her right to a preliminary exam. On many occasions, a prosecutor will charge an individual by way of a criminal complaint and just prior to the scheduled preliminary examination, the prosecutor will schedule, in secret, to present the agent before a grand jury. When the defendant is indicted by way of a grand jury, the criminal complaint and the preliminary examination are dismissed and cancelled.
An indictment is the formal written statement issued by the grand jury and signed by a federal prosecutor accusing one or more people with a crime. An indictment may name just one defendant or several defendants. An indictment is supposed to be sufficient detailed to allow the defendant the opportunity to read the general details about the charges. One of the motions that can be filed is a Motion for a Bill of Particulars. If granted, the judge could require the prosecutor to provide a more detailed indictment or strike portions. If the matter proceeds to trial, the jury may read the indictment and the judge will instruct them that the indictment itself is not evidence.
I was arrested. What happens next?
In both state and federal cases, after an arrest, the first court hearing is called the arraignment. At the arraignment, the defendant is told what he or she is charged with, the defendant is told that he or she has the right to an attorney, and a bond is set. In Detroit, Michigan, this occurs in the duty court room on the first floor of the federal court house. The main office of the Federal Criminal Attorneys of Michigan is located only a few blocks away from the federal district court in downtown Detroit.
Once an indictment is filed with the court, an individual named in the indictment (defendant) will either be summoned to appear in court voluntarily or be arrested.
The attorneys at the Federal Criminal Attorneys of Michigan have a working relationship with the Wayne, Oakland and Macomb County prosecutor’s office as well as the Federal Prosecutor’s Office (known as the United States Attorney). It is important that the attorney contact the prosecutor to arrange for a voluntary surrender. This allows for a smooth and problem free arraignment and often a recommendation for a personal bond in state court and an unsecured bond in federal court.
What is the bond process?
The magistrate judge will address bond. In many cases, the government will ask that the individual charged be held without bond. If the government requests that the individual charge be detained (held without bond), the magistrate judge will schedule a detention hearing. The lawyers at the Federal Criminal Attorneys of Michigan are very familiar with the bond procedure and practice and have appeared at duty court for numerous arraignments, bond hearings and detention hearings.
The federal magistrate judge will decide either to detain the individual charged or issue a secured or unsecured bond or a surety bond which requires the individual charged to post money if he or she fails to appear or violates any of the conditions of bond. The attorneys at the Federal Criminal Attorneys of Michigan have requested and been granted on behalf of their clients unsecured bonds in numerous cases. If such a bond is set, no money is required to be posted.
In deciding whether an individual should be released on bond, the magistrate looks to The Bail Reform Act of 1984. Under the Act, the magistrate has four options. Those options include: 1.) Release you on personal recognizance – you promise to come back when told. 2.) Release you with conditions; 3.) Detain you temporarily to permit revocation of conditional release, deportation, or exclusion or 4.) Detain you while you await trial.
The attorneys at the Federal Criminal Attorneys of Michigan understand that the magistrate must find that the individual is either a risk of flight or are a danger to the community. Certain crimes presume that bond should not be permitted.
Again, an experience federal attorney will be familiar with the procedure, know how to contact pretrial services, known how to explore the possibility of a third party custodian who can assure the judge that the person charged will appear for future court dates. At the conclusion of the arraignment, the assigned judge will schedule a pretrial.
What is the plea process in federal court?
The great majority of all defendants against whom indictments or informations are filed in the federal courts plead guilty. Only a comparatively small number go to trial. See United States Attorneys Statistical Report, Fiscal Year 1964, p. 1. The fairness and adequacy of the procedures on acceptance of pleas of guilty are of vital importance in according equal justice to all in the federal courts.
It is important for an experienced attorney in federal court to understand the plea process. Not every defendant has to plea. A defendant charged with an offense is absolutely entitled to proceed to trial.
However, if a defendant wants to explore a plea, the statements said during negotiations are not admissible. A jury will never hear that there was an offer or what it was. It is simply not admissible.
It is important, however, to understand the plea process. Most pleas are pursuant to an agreement with the prosecutor but not always. An agreement with the prosecutor is referred to as Rule 11 Plea.
(a) Entering a Plea.
(1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere.
(2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ views and the public interest in the effective administration of justice.
(4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
(A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
(G) the nature of each charge to which the defendant is pleading;
(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
(I) any mandatory minimum penalty;
(J) any applicable forfeiture;
(K) the court’s authority to order restitution;
(L) the court’s obligation to impose a special assessment;
(M) in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. §3553(a);
(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and
(O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.
(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).
(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
(c) Plea Agreement Procedure.
(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
(A) not bring, or will move to dismiss, other charges;
My case keeps getting delayed. When can I have my case dismissed for a speedy trial violation?
After 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, if both parties agree to delay the trial and the judge finds good cause, your case will not go to trial within 70 days. 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 the Federal Rule of Criminal Procedure 16 and Federal Rule of Criminal Procedure 26.2, which differs very much from the state rules of discovery.
What are Miranda rights?
One of the most famous criminal cases is Miranda v. Arizona, 384 US 436 (1966). This important case 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.
The Federal Criminal Attorneys of Michigan are experts at determining whether or not your Miranda rights were violated. In some instances, cases can be dismissed if there was a Miranda violation. If you think your Miranda rights may have been violated, contact us for a free consultation.
Are prosecutors allowed to conceal evidence that will help my criminal case?
Brady v. Maryland, 373 US 83 (1963) deals with the issue that requires the prosecutor to provide all the discovery materials or evidence to the defendant. In Brady, the Court held that the police and prosecution must provide the defense with evidence helpful to your case, 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’s lawyer 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 even during trial. It is very important that a defendant have an experienced federal criminal defense attorney who is aware of this, as many inexperienced attorneys may proceed to trial only to find out that there is evidence not produced until they are already in trial.
When can an officer search me without a warrant?
In Terry v. Ohio, 392 US 1 (1968), the United States 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 experienced federal criminal attorney will be aware of this. For example, before challenging a search, the defendant must first have “standing”. This means that the defendant had a reasonable expectation of privacy.
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.
My previous lawyer was bad and I was found guilty. Can I get a retrial?
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. The attorneys at Federal Criminal Attorneys of Michigan represent individuals who had attorneys who were ineffective. If you think that your previous attorney was ineffective, contact us for a free case evaluation.
What is an expert witness? When do I need to get an expert?
An expert witness is a witness who is permitted to testify at a trial because of special knowledge or proficiency in a particular field that is relevant to the case.
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.
What is the legal test for the admission of scientific evidence?
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.
What the most important case governing sentencing laws?
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 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.
If a witness does not testify, can that witness’s statements to police be used against me in court?
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.
The Supreme Court in Crawford, held that out of court statements, even if they fit a hearsay exception, will not be admitted if:
- The out of court statement is offered by the prosecution against the defendant in a criminal case AND
- The person who made the statement is unavailable to testify at the trial, AND
- The defendant had not prior opportunity to cross-examine the declarant’s testimonial statement.
There is one important exception to the rules stated above. A defendant forfeits his Confrontation Clause objection if the prosecution can show that there was any wrongdoing (by the defendant) that prevented the declarant/witness from testifying at trial.
What are some key cases governing sentencing guidelines?
Guidelines were styled as mandatory, until 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.