The Motivation to Lie – a Criminal Law Perspective
I have listed below 10 different lies I have encountered in my practice as a criminal defense lawyer, with an example when necessary. Unfortunately, the oath to testify truthfully is not honored by some individuals for various reasons.
It is often important to recognize these motivations in order to build a defense from false accusations that effect lives, destroy families, and damage the integrity of the criminal justice system.
Solicitation in Michigan can be applied to a number of offenses, more commonly including solicitation to commit murder and sex offenses including prostitution. Solicitation can be a felony of a misdemeanor depending upon the facts of the case. Felony cases involving solicitation include: Solicitation of Murder (MCL 750.157b(2)) is a life maximum felony; Solicitation or Providing Material Support for Terrorism (MCL 750.543k) is a 20 year maximum felony; Solicitation of a Felony Punishable by Life or 5 or More Years (MCL 750.157b(3)(a) is a 5 year felony; Solicitation of a Felony Punishable by Less than 5 Years (MCL 750.157b(3)(b) is a 2 year felony; Soliciting a Child to Commit an Immoral Act (MCL 750.145a) is a 4 year felony; Solicitation of a Minor to Commit a Felony (MCL 750.157c) is a felony that carries the same punishment as the underlying felony committed by the minor. Misdemeanor solicitation offenses carry a possible sentence of 1 year or less.
To prove guilt of solicitation, the prosecution must establish beyond a reasonable doubt that:
First, the Defendant, through words or actions, offered, promised, or gave money, services, or anything of value (or forgave or promised to forgive a debt or obligation owed) to another person.
Conspiracy is an agreement between 2 or more persons to commit a particular crime. To prove guilt beyond a reasonable doubt the prosecution must establish the conspiracy beyond a reasonable doubt.
An agreement is the coming together or meeting of the minds of 2 or more people with each person intending and expressing the same purpose. The agreement does not have to be formal or written. In deciding whether or not there was a conspiracy the jury considers how the members of the alleged conspiracy acted – what they said, what they did, as well as any other evidence.
Conspirators in Michigan must do more than agree – they must intend to further promote or cooperate in the unlawful act. The jury must decide if the Defendant in which it is sitting in judgment was a member of the conspiracy in question. If the person was only merely present with other people who were members of the conspiracy, it is not enough by itself to prove that the person was also a member. Furthermore, the fact that a person did an act that furthered the conspiracy is also not enough to prove that the person was a member of the the conspiracy. It is not necessary for all the members to know each other or know all the details of how the crime will be committed, but it must be shown beyond a reasonable doubt that the person agreed to commit the crime and intended to either commit the offense or to help commit it.
Weird Criminal Law Statistics
DISCLAIMER – A lawyer friend of mine shared with me the wisdom that this person learned over the years of their legal practice. The listed statistics are not scientific (and probably based upon emotion). The information does not relate to a particular Judge, Prosecutor, Police Department/officer, Probation Department/officer, Defense Attorney, Defendant, and it is not intended to do so. However these controversial ideas are certainly worthy of discussion.
1) A police officer will claim to have a memory as to the identity of a perpetrator and the facts of an alleged crime 100% of the time, even if the arrest comes 5 or more years after the date of the alleged offense.
Self Defense is an effective defense to criminal charges in Michigan under the right circumstances. The Prosecution has the sole burden to prove beyond a reasonable doubt that the individual accused of a crime did not act in self defense. In Michigan, a person has the right to use force or even take a life to defend him or herself, or another person, under certain circumstances. Generally to act in self defense, the individual must have honestly and reasonably believed that he or she, or another person, was in danger of being killed, seriously injured, or raped. Even if the individual was wrong about how much danger was involved, this defense is valid as long as the belief was honest, reasonable, and immediately necessary. Under the law, a person may only use as much force as he or she thinks is necessary at the time to defend himself, herself, or another person. An individual may not kill or seriously injure another person against what seems like a threat of a minor injury. All the circumstances are evaluated by the jury when considering this defense: the conditions of the persons involved; differences in strength; whether the other person was armed with a weapon or had some other means to cause physical injury; the nature of the other person’s attack or threat; whether the individual knew of any previous violent acts or threats made by the other person; whether the individual had other ways of protecting him or herself; did the excitement of the moment affect the choice made by the individual to defend him or herself; whether the individual could have retreated; or any other circumstances that existed at the time the individual acted.
A individual using self defense in Michigan never has a duty to retreat if attacked in his or her own home, if the individual feels that the attacked is about to use a deadly weapon, or if the individual is subject to a sudden, fierce, and violent attack. Further, the individual is not required to retreat if he or she has not engaged in the commission of a crime at the time the deadly force is used, has a legal right to be where the individual is at the time, and has an honest and reasonable belief that use of deadly force is necessary to prevent imminent death, great bodily harm, or rape of the individual or another person.
An individual who assaults someone else with fists or a weapon that is not deadly, insults someone else with words, trespasses on another person’s property, or tries to take someone else’s property in a nonviolent way does not lose all right to self defense. If someone else assaults him or her with deadly force, the individual may act in self defense only if the individual retreats if it is safe to do so. Generally, the person claiming self defense must not have acted wrongfully and brought on the assault unless the individual used only words. The right of self defense only last as long as it seems necessary for the purpose of protection.
Duress in Michigan is a common-law affirmative defense that applies to situations where the crime committed avoids a greater harm. People v Lemons, 454 Mich 234, 245-246; 562 NW2d 447 (1997). “[F]or reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person.” Id. At 246, quoting 1 LaFave & Scott, Substantive Criminal Law, § 5.3, pp 614-615. A defendant has a federal and state constitutional right to present a defense. People v Unger (On Remand), 278 Mich App 210, 250; 749 NW2d 272 (2008). However, the Defense bears the burden of producing some evidence from which the Jury can conclude that the essential elements of duress are present. People v. Lemons, 454 Mich 234, 248, 562 NW2d 447 (1997). If duress is applicable and allowed by the trial Court, the prosecution must prove beyond a reasonable doubt that the Defendant was not acting under duress. To establish a duress defense the Jury considers the following issues:
1) If the threatening behavior would have made a reasonable person fear death or serious bodily harm;
2) If the Defendant was actually afraid of death or serious bodily harm;
There are also important notice provisions in Michigan that must be complied with in order to even present an alibi defense at trial. A Defendant who wishes to present an alibi defense at trial must provide notice to the prosecution within 15 days after an arraignment but not less than 10 days before trial of the case, or at such other time as the Court directs pursuant to MCL 768.20. The notice of alibi must include the names of witnesses to be called by the Defense to establish the defense, and also shall include information as to the place at which the accused claims to have been at the time of the allegation. Within 10 days of receipt of the Defendant’s notice of alibi, but no later than 5 days before trial, or at such other time as the Court may direct, the prosecutor shall file a notice of rebuttal of the alibi which includes the names of any witness whom the prosecution may call to rebut the Defendant’s alibi defense. The parties are also required to promptly update the names of any additional witnesses subsequent to the filing of the respective notices. If the parties cannot reach a stipulation to allowing additional witness(es) discovered to testify at trial, the party seeking the additional witness(es) must file a motion with the trial court, giving the opposing side notice of the motion hearing, to allow for the additional witness(es) testimony. The Court must decide if the name of the additional witness(es) was not available when the required notice was filed and could not have been discovered through the exercise of due diligence.
If a party fails to comply with these notice provisions as outlined above, the Court shall exclude the alibi and/or the rebuttal witness(es) pursuant to MCL 768.21. Also, in order for an alibi jury instruction (CJI2d 7.4) to be read to the jury, the Defense must make that request. It is a pretty harsh result against a Defendant if the blame for the untimely filing is with the Defense Lawyer, or if the Defense Lawyer fails to ask for the jury instruction at the appropriate time. These errors may become the subject of a claim for ineffective assistance of counsel if exclusion occurs and the Defendant is convicted. However, the appellate process is a long and costly process which is not likely to stay the imposition of the Court’s jail, prison, or other sentence. It is important to hire an experienced criminal defense lawyer, because in life there is often only one chance to get the right result.
1) The Defendant knowingly carried a concealed weapon such as a pistol, dirk (a straight knife with a pointed blade), dagger (a knife with a short, pointed blade). stiletto (a small dagger with a slender tapering blade), double edged non folding stabbing instrument, or a dangerous stabbing weapon. It does not matter if the Defendant carried the weapon for protection, because self defense is not a defense to this charge.
2) The weapon was concealed on the Defendant’s person. Complete invisibility is not required. A weapon is concealed if it cannot easily be seen by those who come into ordinary contact with the Defendant. A pistol carried in a holster or belt outside of a person’s clothing in plain view is not considered to be concealed. If a coat covered the holster or belt, the pistol becomes concealed.
Drug offenses in Michigan can be prosecuted by State prosecutors, cities, or in Federal Court. This blog does not address Federal drug charges. For any drug offense it is important to retain a great lawyer, such as attorney Daniel Hilf.
The basic elements of the crime of possession of a controlled substance are:
(1) The Defendant possessed a controlled substance;
In most cases, to prove Embezzlement charges the prosecution must establish beyond a reasonable doubt that:
1) The Defendant had a relationship of trust with an individual or entity because the Defendant was an employee, volunteered, or otherwise had a relationship with the individual or entity;
Michigan Criminal Attorneys Blog