Crimes

December 19, 2011

Perjury, Tampering with Evidence, Witness Intimidation, and Filing a False Police Report

Perjury in Michigan is treated as a serious offense because it attacks the integrity of the judicial system. Without question persons have been falsely convicted and imprisoned on the basis of lies and deceit, and providing an effective deterrent to such behavior is necessary. However, perjury charges sometimes come about as retaliation for failing to testify in a manner consistent with the Prosecution’s theory of the case. With Prosecutors there is always a balancing in these matters between gaining conviction, not deterring witnesses from stepping forward to testify, preserving the integrity of the system, protecting law enforcement or maintaining a relationship with law enforcement, and the interests of justice.

To prove Perjury beyond a reasonable doubt the prosecution must establish that:

1) The Defendant was legally required to take an oath in a proceeding in a court of justice. An Oath is a solemn promise to tell the truth;

December 6, 2011

Cobbs Agreement, Plea Bargain, Sentence Bargain

by Hilf & Hilf, PLC

There are several types of criminal charge and sentence agreements in the State of Michigan:

A Cobbs agreement is a practice in Michigan criminal law Courts, based upon the case of People v Cobbs, 443 Mich 276 (1993), which allows a Judge to make an agreement with a Defendant concerning the sentence the Court will impose if the Defendant pleads guilty or no contest. Typically after a Defendant tenders a guilty or no contest plea pursuant to People v. Cobbs he or she is referred to the probation department for a presentence investigation and given a date to return for sentencing. At the presentence investigation the probation department obtains information concerning the conviction offense, a statement from the victim, the Defendant’s prior criminal and traffic related history, level of education, work history, alcohol and substance abuse history, family background, assets, and debts. The probation typically orders a drug and/or alcohol test as part of its investigation. The information collected by the probation department is placed into a sentencing report for the Judge, Prosecutor, Defense Counsel, and the Defendant to read and correct if necessary. If the Court cannot follow the Cobbs agreement the Defendant is allowed to withdraw his or her plea and proceed to trial, or enter into a new Cobbs agreement with the Court. If the matter proceeds to trial, the jury is not allowed to hear about the plea entered pursuant to People v Cobbs unless the Defendant elects to testify and that testimony is different from what he or she told the Court previously under oath during the taking of the plea. Not all Courts will entertain Cobbs agreements – different Judges have their own judicial philosophy and will not negotiate with a Defendant concerning sentencing. Some Judges limit their Cobbs agreement to staying within sentencing guidelines (which is what the Judge is legally obligated to do anyways. A Judge can only sentence outside of the guideline range if substantial and compelling reasons exist to allow for the deviation, which does not exist in the vast majority of cases). Furthermore, some Courts will condition the Cobbs agreement on the Defendant staying out of any further trouble, appearing at Court dates, and not violating the terms of his or her bond. If the Defendant does not follow these conditions, he or she is not allowed to withdraw his or her plea, and the Judge imposes the sentence it deems proper (which may be outside the Cobbs understanding.

A plea bargain is an agreement reached between the Prosecutor and the Defendant that if the Defendant pleads guilty or no contest to a particular criminal charge other charges will be dismissed or reduced in severity. Not all Prosecutor’s offices offer plea bargains. Sometimes a Prosecutor’s office will not offer a plea bargain based upon the philosophy of the Prosecutor, the nature of the charge, the opinion of the police department, the opinion of the alleged victim, and the Defendant’s prior history. Different counties within Michigan can have radically different positions concerning the plea bargain that they may be willing, or not willing, to offer. Some Prosecutors are not willing to allow a Cobbs agreement or a sentence bargain as a condition of an offered and accepted plea bargain. For any criminal charge related negotiation a skillful, experienced criminal defense lawyer is a necessity.

November 28, 2011

The Motivation To Lie – A Criminal Law Perspective

by Hilf & Hilf, PLC

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.

November 21, 2011

Solicitation

by Hilf & Hilf, PLC

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.

November 20, 2011

Conspiracy in Michigan

by Hilf & Hilf, PLC

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.

November 20, 2011

Weird Criminal Law Statistics

by Hilf & Hilf, PLC

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.

November 14, 2011

Self Defense

by Hilf & Hilf, PLC

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.

November 7, 2011

Duress as a Criminal Defense.

by Hilf & Hilf, PLC

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;

November 7, 2011

Alibi Criminal Defense

by Hilf & Hilf, PLC

Alibi essentially is a claim made by a Defendant that he or she was somewhere else when a crime that he or she was accused of occurred. The Prosecution has the burden of proving beyond a reasonable doubt that the Defendant was actually present when the crime was committed. The Defendant does not have to prove that he or she was somewhere else, however a trial Court will not instruct the jury as to the defense of alibi unless there is some testimony or evidence presented at trial as to that issue.

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.

November 1, 2011

Carrying a Concealed Weapon – CCW

by Hilf & Hilf, PLC

Carrying a Concealed Weapon (CCW) is a felony in Michigan that carries a maximum punishment of 5 years in prison or a $2500 fine. If charged with Carrying a Concealed Weapon, the prosecutor must prove beyond a reasonable doubt that:

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.