Michigan Criminal Attorneys Blog

Movies, television shows, and books portray public defenders as second-class attorneys that are incompetent while private attorneys only care about making money and do not put their clients first. Both of these classifications of attorneys portrayed in entertainment are false. While there is a difference between public defenders and private attorneys, it is not what is shown on television or movies.

Public defenders and private attorneys embarked on their journey of law school, graduated and passed the bar exam. They all have considerable experience to represent clients. The main difference between public defenders and private attorneys is that public defenders are hired as counsel for those people who have no means to hire their own counsel while private attorneys are hired without any approval from the court.

Private attorneys can devote much of their time to a client’s case because they can decide which cases they would like to take on and how many they can handle at a time. It can be more beneficial for the clients to hire private counsel because they can be very selective. They have the ability to interview different attorneys and choose who they think would best represent their case while clients with public defenders do not have this option. Furthermore, a client can change their private counsel at any time if they do not feel the attorney is representing them to the best of their ability while the client cannot discharge their public defender without approval from the Court.

It is very common for someone accused of a crime to seek an adjournment of their trial.  There are many reasons why someone would want an adjournment, including: the desire to retain new counsel; the need to obtain additional discovery; the need for additional preparation; the unavailability of witnesses on the date scheduled for trial; the unavailability of the lawyer due to another trial or other conflict; personal reasons such as a family emergency or illness; a desire to negotiate longer with the prosecution concerning a possible plea bargain or sentence bargain; the desire of the Defendant and his/her lawyer to address another case pending against the Defendant first; the lawyer’s desire to have his client evaluated for mental competency; etc., etc.

Typically when a confession is being contested in a criminal case the Defendant’s lawyer will file a motion with the Court assigned to the case and request an evidentiary hearing pursuant to People v Walker, 374 Mich 331 (1965).  The hearing considers the totality of the circumstances surrounding the statement made.

The Fourth Amendment to the United States and Michigan Constitutions, Michigan Statutory law, and case law govern the use and legality of search warrants in Michigan for State court proceedings.  The 4th Amendment to the United States Constitution provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.  The remedy for an improper search is the exclusion of evidence.  Mapp v. Ohio, 367 US 643 (1961).  There are a number of exceptions to the search warrant requirement that sometimes justify warrantless searches to occur (for example:  consent, plain view; exigent circumstances, automobile, search to lawful arrest, searches at the boarder or airport, the Patriot Act, etc.).  The applicability of these exceptions depends upon the facts of the particular case.  With regard to any criminal law issue that may pertain to you – seek the assistance of an experienced criminal lawyer such as the lawyers at Hilf & Hilf, PLC.

Obtaining a Search Warrant

Search warrants are issued by either District Court Judges or magistrates that are authorized by a District Court Judge to issue search warrants to law enforcement.  A District Court Judge or magistrate may issue a search warrant for anywhere in the State of Michigan, and is not limited by the District Court’s jurisdiction where the Judge is seated.  People v. Fiorillo, 195 Mich App 701 (1992).  The standard of proof for the issuance of search warrants is probable cause.  A District Court Judge or magistrate needs to find that there is a “fair probability” that the evidence seized will be at the location to be searched.  People v. Russo, 439 Mich 584 (1992).  Probability is not a prima facie showing, nor a preponderance of the evidence.  Illinois v. Gates, 103 S Ct 2317 (1983).  It is permissible for law enforcement to obtain a search warrant that anticipates that evidence will be found at a particular location as long as the search warrant indicates that there is probable cause that the item described is likely to be found in the place described.  For example, a seizure of drugs from a traffic stop that suggest drug distribution may lead to a search warrant of the home of the vehicle occupant.  United States v. Grubbs, 126 S Ct 1494 (2006); People v. Kaslowski, 239 Mich App 320 (2000).  The search warrant can contain multiple locations to search if the allegations in the affidavit for search warrant satisfy the requisite finding of probable cause.  People v. Cyr, 113 Mich App 213 (1982).

The prosecution in Michigan generally does not have to present every witness at trial, but must produce enough evidence on every element of the charged offense to withstand a motion for directed verdict at the conclusion of the prosecution’s case.  Michigan Court Rule 6.419 provides that “after the prosecutor has rested the prosecution’s case in chief or after the close of all evidence, the court on Defendant’s motion must direct a verdict of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction.  The court may on its own consider whether the evidence is insufficient to sustain a conviction.  If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the Defendant may offer evidence without having reserved the right to do so”.  The Defense has to convince the trial Judge that the evidence in the light most favorable to the prosecution cannot support a conviction.