The terms and definitions on this page are relevant to criminal cases in the State of Michigan, U.S.A., unless noted otherwise. Criminal laws & procedures in other states and countries may be very different.
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If the word you are looking for does not appear on this list, check one of the following web sites: American Bar Association, Law.com, or Nolo's Law Dictionary.
- ABSTRACT OF CONVICTION
- A form sent by courts to the Michigan Department of State (Secretary of State) reporting a person's conviction or adjudication for a traffic violation or other "reportable offense" (e.g., drug crime), or to the Michigan Department of State Police reporting a conviction or adjudication for a felony or 93-day or higher misdemeanor.
- A person who knowingly and intentionally contributes to or aids in committing a crime (before or after, but not necessarily during, the commission of the crime).
- Being an "accessory-after-the-fact" to a felony crime is a specific crime in and of itself. An "accessory after the fact" is a person who (i) knows that a crime has occured, and (ii) helps one or more of the people who committed it avoid discovery, arrest, trial, or punishment after the crime ended. The assistance given by an accessory after the fact must tend to frustrate the course of justice. A person cannot be convicted both of the principal crime as an aider/abettor, and as being an accessory after the fact to the same felony crime.
- An accessory can include a person charged with conspiracy to commit a felony or misdemeanor crime.
- See also Aiding / Abetting.
- A person who participates in the commission of a crime, other than the person actually doing the principal criminal act. This person may be charged with the actual crime committed under an "aider or abettor" theory (gave aid, assistance or encouragement to the principal defendant(s)).
- See also Accessory and Aiding / Abetting.
- Criminal defendant being found "not guilty" of the crime. An acquittal is not a declaration of the accused's "innocence"; it is a verdict that a Prosecutor failed to prove the accused's guilt beyond a reasonable doubt.
- ACTUS REUS
- A criminal act (Latin).
- Postponing or rescheduling a case or court session until another date or time.
- Generally, a final judicial determination of a case. In juvenile delinquency cases, it is the equivalent of a 'conviction' in adult criminal cases, when the court formally takes jurisdiction of the minor due to a plea or a trial verdict.
- A person who is no longer deemed to be a minor. In Michigan, a person becomes an adult for criminal cases when they turn 17 [MCL 712A.2(a)]. In most other proceedings, an adult is someone age 18 or older.
- ADVERSARY PROCEEDING
- Actions contested by opposing parties. The system of trial practice in the U.S. and some other countries in which each of the opposing or adversarial parties has full opportunity to present and establish its contentions before the court.
- A person who makes out an affidavit.
- Written statement of fact that is verified by oath or affirmation before a notary public or officer having authority to administer oaths. (Affidavits are generally not admissible in criminal trials or hearings in lieu of testimony because the opposing party has no opportunity to cross-examine the affiant.)
- AFFIRMATIVE DEFENSE
- Without denying the charge, the defendant raises extenuating or mitigating circumstances such as insanity, self-defense, or entrapment to avoid civil or criminal responsibility. The defendant usually must prove any affirmative defense he/she raises; but, in Michigan, a prosecuting attorney must disprove a claim of self-defense beyond a reasonable doubt. Court rules may require a defendant to notify the opponent before the trial that an affirmative defense will be raised.
- When an appellate court declares that a lower court's order is valid and will stand as rendered in the lower court.
- Someone authorized to act for another person (known as the "principal"). Violation of a principal-agent relationship is the core of an embezzlement.
- AIDING / ABETTING
- Intentionally assisting (procuring, counseling, encouraging, helping, etc.) another person in the commission of a crime.
- Examples: A bank robbery "get-away car" driver or look-out.
- There is no distinction between a principal and an aider/abettor. Every person involved in the commission of an offense, whether he directly commits the act constituting the offense or whether he procures, counsels, aids, or abets in its commission can be prosecuted, tried, convicted and punished as if he had directly committed such offense. [MCL 767.39] "Aiding/abetting" is not a specific crime, it is a legal theory that results in someone other than a principal actor in a crime beging charged with / convicted of the actual crime.
- Mere knowledge that another person is going to commit a crime, or mere presence at the scene of a crime, is not enough.
- A person cannot be convicted both of the principal crime as an aider/abettor, and as being an accessory after the fact to the same felony crime.
- See also Accessory and Accomplice.
- "Lack of presence" defense. The defendant need not prove that he was elsewhere when the crime happened; he need only notify the Prosecuting Attorney of his intent to claim an alibi (along with his list of alibi witnesses). Ultimately, the Prosecutor must prove beyond a reasonable doubt that the defendant was present (i.e., a Prosecutor must disprove a claimed alibi).
- A defendant's opportunity to make a statement to the judge at sentencing. A defendant may make a personal statement, but is not required to do so. His/her attorney may also make a statement.
- AMICUS BRIEF
- A brief filed by an amicus ("friend of the court") in support of a party in a lawsuit or pending appeal. The court may have to give the amicus permission to file the brief, and may limit the issues argued by the amicus.
- AMICUS CURIAE
- "Friend of the Court" (Latin). A party who volunteers information on some aspect of a case or law to assist the court in its deliberation.
- A party's written response to a legal pleading, such as a motion or brief.
- Abbreviation for Assistant Prosecuting Attorney.
- Request to a supervisory court, usually composed of a panel of judges, to change the legal ruling of a lower court. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the Appellant; the opposing party is the Appellee.
- Appeal by Application for Leave --- An appeal where a higher court must give permission to file it. A party must seek leave to appeal when a final order has not been entered, when the appeal is late, or in criminal cases when a defendant has pled guilty and is appealing an issue other than his sentence. An Application for Leave to Appeal explains the legal issues that the appellant wants reviewed, and the facts and law supporting them. The court has final discretion to accept or reject an application.
- Appeal by Right --- An appeal to a higher court where permission does not have to first be obtained. The appeal must be filed within a specified time frame after the lower court's final order has been entered.
- APPEAL RECORD
- The record sent by the trial court to the appellate court of what happened at the trial court. This includes a copy of the docket, the case file (court documents) and transcripts of court hearings.
- A document filed with the court (and provided to other parties) by an attorney advising that the attorney is representing a specific party.
- APPEARANCE TICKET
- A written notice to appear in court regarding a violation of a state law or local ordinance.
- APPREHENSION ORDER
- An order issued by the court to take a minor into custody. Also called a "pick-up order".
- The party appealing a decision or judgment to a higher court.
- APPELLATE COURT
- A court that reviews lower court decisions. Circuit Court is the appellate court for District Court cases. The Michigan Court of Appeals is the appellate court for Circuit Court and Probate Court cases. The Michigan Supreme Court is the appellate court for Court of Appeals decisions.
- The party responding to an appeal filed in a higher court.
- Criminal defendant's first appearance before a judge. The primary purpose is to inform the defendant of the charge(s) he is facing. The judge may also determine an appropriate bail and decide on a request for court-appointed counsel.
- To take into custody by legal authority.
- ARREST WARRANT
- An order issued by a judge or magistrate to a peace officer requiring the arrest of a named person.
- See Warrantless Arrest.
- ASSAULT [MCL 750.81, et seq]
- An unlawful act that places another person in reasonable apprehension of receiving an immediate battery. An attempt to commit a battery. The defendant must intend to injure the victim or make the victim reasonably fear being struck. An assault must be intentional, not an accident.
- Michigan has many types and levels of assaults:
- Assault, or Assault & Battery - penalty: Misdemeanor -- 93 days &/or $500
- Aggravated Assault - penalty: Misdemeanor -- 1 year &/or $1,000
- Domestic Violence - penalty: Misdemeanor -- 93 days &/or $500
- Aggravated Domestic Violence - penalty: Misdemeanor -- 1 year &/or $1,000
- Assault with a Dangerous Weapon (Felonious Assault) - penalty: Felony -- 4 years &/or $2,000
- Assault with Intent to Do Great Bodily Harm (Assault GBH) - penalty: Felony -- 10 years &/or $5,000
- Assault with Intent to Maim - penalty: Felony -- 10 years &/or $5,000
- Assault with Intent to Rob While Unarmed - penalty: Felony -- 15 years
- Assault with Intent to Rob While Armed - penalty: Felony -- Life or any number of years
- Assault with Intent to Murder - penalty: Felony -- Life or any number of years
- Note: The victim need not be actually injured for a "Simple Assault", but injuries can be circumstantial proof of higher levels of assaults. For example, proof that a victim was physically injured and needed immediate medical attention can distinguish "Simple Assault" from "Aggravated Assault". The type or severity of injury may also prove the defendant's "intent" (i.e., Assault With Intent to Do Great Bodily Harm Less Than Murder, Assault with Intent to Maim, Assault With Intent to Murder, etc.).
- Note: See self defense.
- ASSISTANT PROSECUTING ATTORNEY
- Lawyer hired by the elected Prosecuting Attorney to prosecute cases within that county as representatives of the People of the State of Michigan.
- A lawyer. A person authorized to practice law in a state to represent the legal interests of another person.
- AUTOMATIC WAIVER
- See "Waiver of Jurisdiction".
- Bond money paid to a court by or on behalf of a criminal defendant as security that, when released from jail, the defendant will appear at all future hearings. The court can also set conditions of release (i.e., no contact with the victim, no alcohol consumption, etc.) If another person posts the bail money, then that third party vouches that the defendant will appear at future court dates. Bail can be forfeited if the defendant fails to appear or violates release conditions.
- A court employee who assists the judge in maintaining order in the courthouse, and who is responsible for the custody of a jury.
- Intentional, unwanted and forceful/violent touching of another person, or something closely connected with that person.
- BENCH TRIAL
- Trial held before a judge and without a jury. The judge determines the facts.
- BENCH WARRANT
- A court order issued "from the bench" commanding the defendant's (or a missing witness') arrest and appearance in court after previously failing to appear for a hearing. A bench warrant can also be issued against a party for violating a court order, such as conditions of release or probation.
- BEYOND A REASONABLE DOUBT
- See Burden of Proof.
- Finding at a felony preliminary examination that probable cause evidence exists to require a trial at the Circuit Court level on the charges made against the defendant.
- BOND / BAIL BOND
- A promise or contract to do or perform a specified act, or pay a penalty for failure to perform. This is usually guaranteed by a 'surety', who promises to pay if the 'principal' defaults, or by paying a cash bond.
- In criminal cases, 'bond' means the same thing as 'bail': a financial obligation signed by the accused or a surety intended to guarantee the defendant's future appearances in court. The amount of the bond is set by a judge or magistrate. The bond can include conditions of release (i.e., no contact with the victim, no alcohol consumption, etc.) Factors influencing the amount of bond include the seriousness of the charge and risk to the community if the defendant is free, the defendant's criminal history, and the defendant's ties to the community.
- There are four types of bonds:
- Personal recognizance bonds (a.k.a. "PR" bonds or "signature bonds") do not require the defendant or a third party to pay money to the court, unless the defendant later fails to appear or violates other bond conditions.
- Percent bonds require the defendant to post a percentage of the full bond (generally as low as 10%) to get out of jail, and the remaining percentage is due only if the defendant later fails to appear or violates other bond conditions.
- Cash bonds require the full amount of the bond to be paid in cash before the defendant can be released. If the defendant appears at all future court dates, most of the monies are returned to the person who paid the bond.
- Surety bonds are posted by a professional bondsman after being paid a non-refundable fee (usually a percentage of the full bond amount.
- As in "breaking & entering" ... means using some force, no matter how slight, to enter a building (e.g., opening a closed door or pushing a partially-open door farther open, raising a window, taking screen off); damage need not result.
- Written arguments submitted by the lawyers for each side in a case explaining facts and/or law supporting their respective positions why the court should decide the case or a particular part of a case in favor of that party.
- BURDEN OF PROOF
- Duty to establish through evidence a requisite degree of belief concerning a fact in the mind of a trier of fact. The duty to establish facts in an adversary proceeding.
- Different burdens of proof exist in the law:
- Prima facie -- evidence which is good and sufficient "on its face" to establish a given fact when not rebutted or contradicted.
- Probable cause -- the burden of proof to issue an arrest or search warrant, or for a preliminary examination bind-over.
- Preponderance of the evidence -- the burden of proof in civil cases. Evidence which, as a whole, shows that the fact sought to be proved is more probable than not. Evidence which is more credible and convincing. It is generally visualized as that side of the dispute toward which the scales tip when the credible evidence is weighed by the trier of fact. Something more than 50% of the credible evidence.
- Clear and convincing -- the burden of proof in selected proceedings, such as termination of parental rights. A measure of proof which produces a firm belief or a high probability as to the allegations. It is difficult to quantify, but is more than a "preponderance" and less than "beyond a reasonable doubt".
- Beyond a reasonable doubt -- the burden of proof in criminal cases. The degree of belief a criminal juror (or the judge in a bench trial) must have regarding all factual elements of a charged crime. No doubt, based on reason and common sense, can exist as to any fact needed to be proved.
- CAPITAL OFFENSE
- Crime punishable by life in prison, or by death. (Michigan does not have a death penalty.)
- CARRYING A CONCEALED WEAPON
- Crime that prohibits:
- carrying a pistol or other firearm or dangerous weapon (e.g., dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length) with an intent to use the same unlawfully against the person of another [MCL 750.226]; or
- carrying a dagger, dirk, stiletto, double-edged non-folding stabbing instrument of any length, or any other dangerous weapon (except a hunting knife adapted and carried as such), concealed on or about his/her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person [MCL 750.227]; or
- carrying a pistol in a place or manner inconsistent with a license or permit issued pursuant to 1927 PA 372.
- Penalty: Felony -- up to 5 years or $2,500 fine.
- Unless licensed to carry a firearm, a person may not carry a concealed weapon for "self-defense".
- CASE LAW
- Published decisions issued by appellate courts. The legal principals announced in the decisions are binding authority for lower courts.
- The number of cases a judge handles in a specific time period.
- See Carrying a Concealed Weapon.
- CHALLENGES (Jury Selection)
- Method for striking prospective jurors.
- The Michigan Court Rules allow two types of juror challenges: for cause (unlimited number, the grounds for which must fit reasons specified in the Michigan Court Rules) and peremptory (limited number depending on the severity of the crime on trial, the grounds for which do not have to be specified). Appropriate challenges for cause exist when the juror is shown to be biased for or against a party, is related to a trial participant, etc. No reason need be announced for a peremptory challenge, although a purely racially-based challenge is not permitted.
- A party can also "challenge the array", which questions the qualifications of the entire jury array (panel) summoned for jury duty (e.g., racial discrimination).
- Judge's office.
- CHARGE TO THE JURY
- A judge's instructions to a jury. Information on the laws relating to the case, definitions of legal terms, and explanations of procedures relevant to the jury's duties.
- CHIEF JUDGE
- In courts with two or more judges, one judge is selected as the chief judge, who is a court administrator, in addition to handling his/her court docket.
- CHILD ABUSE [MCL 750.136b]
- Criminal mistreatment of a minor by an adult legally responsible for the minor. Concerns conduct toward an unemancipated child under 18 years of age by the parent, guardian or other person who cares for or has custody of or authority over the child. There are 4 degrees of child abuse.
- First Degree (felony --- up to 15 years in prison) --- knowingly or intentionally causing serious physical harm (i.e., substantial physical disfigurement or impairment of a body organ or limb) and/or serious mental harm to a child.
- Second Degree (felony --- up to 4 years in prison) --- causing serious physical harm and/or serious mental harm to a child by knowingly or intentionally committing an act that is cruel or is likely to cause serious physical or mental harm.
- Third Degree (high court misdemeanor --- up to 2 years in prison) --- knowingly or intentionally causing some physical harm to the child.
- Fourth Degree (misdemeanor --- up to 1 year in jail) --- causing physical harm to a child through a reckless act or an omission.
- A defendant may raise a defense that his/her forceful actions were reasonable "parental discipline".
- CHILD NEGLECT
- The failure of a parent, guardian, or custodian of a minor to provide the minor with proper or necessary support, education, medical care, or physical care. Also, the failure to provide a fit home environment for the minor.
- CHILD PROTECTIVE PROCEEDINGS
- Proceedings in the family division of the circuit court regarding children under age 18 who are abused or neglected.
- CHILDREN'S PROTECTIVE SERVICES (CPS)
- A division in the Office of Children's Services in the Michigan Department of Human Services (formerly called the Family Independence Agency). Children's Protective Services workers investigate reports of suspected child abuse or neglect. They can also provide services to families in an effort to prevent abuse or neglect.
- See DHS's on-line CPS Manual for more information.
- CHILD SEXUALLY ABUSIVE MATERIAL [MCL 750.145c]
- Developed or undeveloped photograph, film, slide, electronic visual image, computer diskette, or sound recording of a child engaging in a listed sexual act; a book, magazine, or other visual or print medium containing such a photograph, film, slide, electronic visual image, or sound recording; or any reproduction, copy, or print of such a photograph, film, slide, electronic visual image, book, magazine, other visual or print medium, or sound recording.
- A listed sexual act means sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity. These terms are defined by statute.
- Knowing Possession: Misdemeanor --- up to 1 year &/or $10,000 fine.
- Distribution / Promotion: Felony --- up to 7 years &/or $50,000 fine.
- Production / Financing / Inducement to Produce: Felony --- up to 20 years &/or $100,000 fine.
- CIRCUIT COURT
- Michigan's highest level trial court, with the broadest range of powers (including hearing appeals from District Court). Circuit Court has three divisions:
- Criminal (the trial court for all felony crimes)
- Civil (civil law suits over $25,000, or seeking injunctions or other equitable relief), and
- Family (every aspect of family law, including divorce, child custody, parenting time/visitation, paternity, adoption, child & spousal support, PPOs, juvenile delinquency, child protection proceedings [parental neglect or abuse], as well as emancipation of minors, name changes, and waiver of parental consent to abortions).
- The Friend of the Court office is a division of the Circuit Court.
- Michigan has 57 Circuits, covering all 83 counties. Circuit Court judges are elected on a non-partisan ballot to six-year terms.
- Eaton County has two Circuit Court Judges: Thomas S. Eveland and Calvin E. Osterhaven.
- CIRCUIT COURT MISDEMEANOR
- An offense designated by the legislature as a misdemeanor, but punishable by more than one year in jail. It is processed like a felony.
- CIRCUMSTANTIAL EVIDENCE
- Indirect evidence that implies something occurred but does not directly prove it. Evidence that suggests something by implication.
- Example: circumstantial evidence of embezzlement includes proof that the defendant-employee had access to missing money and made several big-ticket purchases in cash around the time of the alleged embezzlement.
- The law does not distinguish between the weight to be given to direct and circumstantial evidence. Jurors are instructed that they may give more weight to circumstantial evidence than direct evidence if they find the circumstantial evidence to be more credible.
- See also direct evidence.
- A reference to a source of legal authority.
- A direction to appear in court, as when a defendant is cited into court rather than arrested.
- CIVIL CASE
- Case between private litigants concerning personal wrongs, generally where the losing party must compensate the prevailing party with money or other property (e.g., divorces, personal injury, landlord-tenant, small claims and contract or property disputes). A civil plaintiff may be also be asking the court to tell the defendant to stop some behavior, or to do a specific thing. Both the plaintiff and the defendant may be represented by an attorney, unless the case is filed as a small claims case.
- CIVIL INFRACTION
- Non-criminal violation of a law prosecuted by the State or a local government unit. A person cannot be sent to jail for a civil infraction. The most common example is a traffic citation, like speeding. The penalty for a civil infraction is payment of fines, costs, and fees. For a traffic civil infraction, points may be added to the driving record.
- A person can be found responsible for a civil infraction in one of four ways:
- by failing to respond to the citation on time; a default judgment will be entered; in most cases, the person's driver's license will be suspended until the fines & costs + a surcharge are paid;
- by admitting responsibility for the violation and paying the amount indicated on the ticket;
- after an informal hearing before a district court judge or magistrate;
- after a formal hearing before a district court judge.
- CLEAR AND CONVINCING
- See Burden of Proof.
- CLERK OF THE COURT
- A constitutionally-elected officer: the Circuit Court Clerk.
- A court employee who is responsible for maintaining permanent records of all court proceedings and exhibits, and administering the oath to jurors and witnesses.
- COBBS PLEA
- Based on People v Cobbs, 443 Mich 276 (1993).
- A "Cobbs plea" allows a defendant to enter a conditional guilty plea which can be withdrawn if a judge's eventual sentence falls outside sentencing terms specified by the judge before the plea was tendered.
- Normally, defendants plead guilty without any legal expectation of a specific sentence, and judges are not bound by a sentencing agreement between the parties. But in "Cobbs agreements", the judge is asked to advise the parties before the plea is entered what an appropriate sentence range would be (based on case facts and the defendant's criminal history known to the judge at that time). The judge announces a sentencing 'preview', but the prosecutor is not a party to the terms of this possible sentence. If the defendant is induced to plead by this expected sentence, he may withdraw his plea if he does not receive that sentence.
- See also Killebrew Plea.
- A grouping of statutes, relating to a particular subject matter and arranged in classified order. Usually created by enactment of a new statute by the legislature embodying all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change would result in a new statutory concept. Examples: the Juvenile Code, Mental Health Code, etc.
- One who participates in the commission of a crime, along with another person.
- COMMON LAW
- Body of legal principles which derives its authority solely from usages, customs or court decisions since ancient times, or from the judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs, particularly the ancient unwritten law of England. Common law is distinguished from "statutory law", which is enacted by a legislative body such as Congress or a state legislature. Common law is the basis for the legal systems in every state except Louisiana. In Michigan, common law is still in effect except where it has been modified or repealed by statute.
- COMPETENCY (TO STAND TRIAL)
- A defendant is incompetent to stand trial only if incapable (1) of understanding the nature and object of the proceedings; or (2) of assisting the defense in a rational manner because of mental condition.
- See MCL 330.2020.
- Incompetence may be raised at any time during the proceedings by court or by motion of the parties. Where there is evidence of incompetency, the judge must halt the proceedings and refer the defendant to the center for forensic psychiatry or other facility officially certified by the department of mental health for a determination of competency.
- A competency hearing must be held within 5 days of receipt of the forensic center report.
- Treatment and/or medication may be ordered if there is substantial probability the defendant will regain competence.
- Civil commitment may be sought if no substantial likelihood that the defendant will regain competence, or the case is dismissed after 15 months of incompetency.
- Defendant may not be determined incompetent because medication is required to keep the defendant competent.
- Amnesia covering all events before, during, and after the charged offense does not render the defendant incompetent.
- In a criminal action, it is a written accusation (under oath or upon affirmation) that a felony, misdemeanor, or ordinance violation has been committed and probable cause exists that the named person is guilty of the offense.
- Document on which criminal misdemeanors are charged in District Court, as well as the initial charging document for felonies.
- CONCURRENT SENTENCE
- Upon conviction for multiple crimes, a criminal sentence served at the same time as another criminal sentence, rather than one after the other. The person is release at the expiration of the longest term specified.
- See also consecutive sentence.
- CONCURRING OPINION
- An opinion written by an appellate judge who agrees with the decision reached in the case, but would base the decision on different reasons than those expressed by the majority of judges.
- See also Dissenting Opinion and Majority Opinion.
- An oral or written statement by person admitting that he or she committed a certain offense.
- CONSECUTIVE SENTENCE
- Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time. Consecutive sentences may only be imposed if there is specific statutory authority to do so. In some circumstances, consecutive sentences may be imposed within the judge's discretion (e.g., when a person is convicted of a new offense committed while on parole status); in other circumstances, consecutive sentences are mandatory (e.g., convictions for felony firearm + another offense).
- See also concurrent sentence.
- CONSENT, AGE OF
- In Michigan, a minor has the legal capacity to consent to sexual activity at age 16. [See Criminal Sexual Conduct.]
- CONSENT CALENDAR
- An informal probation in some juvenile delinquency cases, usually for 1st-time misdemeanor offenders. If all probation terms are completed, the case is dismissed; if not, the court can transfer the case to the formal calendar for a pre-trial conference, formal plea, trial, etc. In victim rights cases, the court must notify the prosecutor if consent calendar may be approved so the victim can be consulted and the prosecutor can advise the court if he approves. Consent calendar can be granted over a prosecutor's and/or victim's objection.
- CONSPIRACY [MCL 750.157a; CJI2d 10.1-10.5]
- An agreement (express or implied) between two or more people to do an illegal act, or to commit a legal act in an illegal manner.
- See Wharton's Rule.
- A person can be convicted of both the crime of conspiracy to commit (insert name of crime) and of the actual crime (as a principal or as an aider/abettor). This does not violate principals of double jeaopardy.
- CONTEMPT OF COURT
- An act or failure to act that violates a court order, impedes the functioning of the court, or impairs the authority of the court.
- An act calculated to embarrass, hinder, or obstruct a court. Contempts are of two kinds: direct and indirect. Direct contempts are those committed in the immediate presence of the court; indirect contempts involve the failure or refusal to obey a court order. A party found in contempt of court normally receives sanctions.
- The postponement of a hearing until a later date.
- Goods barred by law (e.g., specific weapons, or drugs prohibited by law, etc.).
- Judge or jury's decision that the accused person is guilty of the crime.
- CORPUS DELICTI
- "Body of the crime" (Latin). The objective proof that a crime has been committed.
- A confession is not admissible if the "corpus" of the crime cannot be proven.
- CORROBORATING EVIDENCE
- Supplementary evidence that supports or confirms the initial evidence. A victim's or witness' version of events does not have to be backed up by corroborating evidence.
- One who gives advice, especially legal advice.
- See Attorney.
- Government entity authorized to resolve legal disputes. Judges sometimes use "court" to refer to themselves in the third person, as in "the court has read the briefs." Courts and judges are part of the Judicial Branch of government.
- COURT-APPOINTED ATTORNEY
- Legal counsel assigned by the court to represent an indigent criminal defendant. A court-appointed attorney is not necessarily a "free" attorney; the defendant may be ordered to reimburse some or all of the attorney's bill. If jail time will not be imposed on a misdemeanor, the judge need not appoint an attorney.
- See also Guardian ad Litem.
- COURT OF APPEALS
- "Intermediate" appellate court between the Supreme Court and the Michigan trial courts. Final decisions from a Circuit or Probate Court hearing may be appealed to the Court of Appeals. (See MCL 600.308.)
- Hearings are held in Detroit, Grand Rapids, Lansing and Marquette before a panel of three Court of Appeals judges. At least two of the three judges must agree on the ruling. The panels are frequently rotated so that a variety of judicial opinions are considered. The decision of the panel is final, except for those cases which the Supreme Court reviews.
- Court of Appeals judges are elected for 6-year terms.
- Visit the Michigan Court of Appeals web site at coa.courts.mi.gov.
- COURT OF CLAIMS
- Specialized court that handles only claims over $1,000 filed against the State of Michigan or one of its departments. (Claims for less than $1,000 should be filed with the Department of Management and Budget's State Administrative Board.) The Court of Claims is part of the 30th Circuit Court in Ingham County. All trials heard by the Court of Claims are heard by a judge, not a jury.
- COURT REPORTER or RECORDER
- Person who makes a word-for-word record (either through stenography/short-hand or audio/video recording) of what is said in a court proceeding and can produce a transcript of the proceedings upon request. Michigan court reporters or recorders must be trained and certified.
- An act in violation of criminal law: an offense against the State of Michigan.
- CRIMINAL CASE
- Charge filed by a prosecutor against a defendant concerning violation of a criminal law. The act of violating a criminal law is an offense against the community, not a private wrong. Examples of criminal cases include theft, murder and OWI.
- Criminal Responsibility
- See Insanity
- CRIMINAL SEXUAL CONDUCT
- Michigan categorizes four degrees of CSC:
- 1st Degree: (MCL 750.520b --- Felony--- life or any term of years + AIDS~HIV~STD testing) --- a sexual act involving penetration (sexual intercourse, anal intercourse, cunnilingus, fellatio, intrusion into any other body part or object in genital or anal openings) and any of the following:
- victim is under 13 years old
- victim is 13-15 years old + is a blood affiliation to the defendant, lives in the defendant's household, or the defendant is in an authority position to the victim
- multiple actors are involved and force/coercion was used to accomplish the sexual penetration or the victim is incapacitated (physically helpless, mentally incapacitated or mentally defective)
- weapon involved
- personal injury + force/coercion
- personal injury + victim incapacitated
- defendant/actor is in the process of committing another felony
- 2nd Degree: (MCL 750.520c --- Felony --- up to 15 years + AIDS~HIV~STD testing) --- sexual contact with the genital area, groin, inner thigh, buttock or breast, AND any of the circumstances listed for 1st Degree CSC.
- 3rd Degree: (MCL 750.520d --- Felony--- up to 15 years + AIDS~HIV~STD testing) --- sexual penetration and any of the following:
- victim is 13-15 years old
- force or coercion
- victim incapacitated
- 4th Degree: (MCL 750.520e --- High Court Misdemeanor--- up to 2 years in prison and/or $500.00 fine + AIDS~HIV~STD testing) --- sexual contact and any of the following:
- force or coercion
- victim incapacity
- defendant works for the Department of Corrections and the victim is an inmate
- All persons convicted of CSC must register as a sex offender.
- No need for corroboration of victim's testimony or resistance by victim.
- A person can be charged and convicted of CSC on a spouse.
- CROSS EXAMINATION
- Questioning of a witness by a party other than the one who called that witness to the witness stand, to test the truthfulness of the witness's testimony, to further develop it or to otherwise expand on it.
- See Criminal Sexual Conduct
- CUSTODY ORDER
- Order of the Court which places a juvenile in the custody of the Court for a specific length of time, with authority to place the juvenile in detention as needed.
- DATING RELATIONSHIP
- Frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context. If a "dating relationship" is present, a person can get a Domestic PPO, and an assault can be charged as Domestic Violence.
- Person who has been formally charged with committing a crime.
- DEFENSE ATTORNEY
- The attorney representing the accused (defendant).
- Jury's discussions to decide the outcome of a case, held after all evidence has been presented and jury instructions have ended.
- Chargeable violations of laws by a minor under the age of 17. Juvenile delinquency offenses are prosecuted in the Family Division of Circuit Court. Chargeable offenses include all crimes that an adult could be charged with (e.g., violations of the penal code, motor vehicle code, etc.), plus "status offenses" (e.g., truancy).
- Delinquency offenses are not considered 'criminal convictions'.
- DELINQUENCY PROCEEDINGS
- See Juvenile Delinquency Proceedings.
- DE NOVO
- "Anew" or "afresh" (Latin). A "trial de novo" is the retrial of a case. A "de novo" standard of review permits an appellate court to substitute its judgment for that of a trial judge, (e.g., interpretations of laws).
- DEPARTMENT OF HUMAN SERVICES (DHS)
- The state agency responsible for administering a broad range of social services programs in Michigan, including financial aid to families and the elderly, foster care services, Children's Protective Services, adoption services, juvenile justice, etc.
- Click here to locate your county's DHS office.
- The Department of Human Services was formerly known as the Family Independence Agency (until 03/15/2005), and before that as the Department of Social Services.
- Oral statement made before an officer authorized by law to administer oaths. They are used in civil cases to examine potential witnesses, to obtain discovery, or to be used later in trial. Depositions are not used in criminal cases.
- DESIGNATED PROCEEDINGS
- Proceedings in which a juvenile under age 17 is tried in criminal proceedings that occur within the Family Division of the Circuit Court. The juvenile is afforded all the legal and procedural protections that an adult would be given if charged with the same offense in a court of general criminal jurisdiction. The juvenile could receive the same consequences as an adult if found guilty.
- The secure, temporary care of a child who requires custody for his/her own welfare or the community's protection pending disposition or trial by the court or execution of an order of the court for placement or commitment.
- See Department of Human Services.
- DIRECT EVIDENCE
- Evidence that stands on its own to prove an alleged fact, such as what a witness claims he/she personally saw or heard. Example: testimony by a teller that she saw the defendant pointing a gun at her and heard him demand money during a bank robbery.
- See also circumstantial evidence.
- DIRECT EXAMINATION
- Questioning of a witness by the party who first called the witness to the stand.
- A court order terminating a case. May be voluntary (at the request of the parties) or involuntary.
- See nolle prosequi.
- DISORDERLY CONDUCT [MCL 750.167]
- Penalty: Misdemeanor --- up to 90 day and/or $100
- AKA "disorderly person" ... a compilation of socially offending conduct, including:
- refusing or neglecting to support one's family
- common prostitution
- window peeping
- public intoxication that is endangering people, or causing a public disturbance
- indecent or obscene conduct in a public place
- vagrancy, public begging, loitering in a place of illegal business, including a house of ill fame or prostitution
- jostling or roughly crowding people unnecessarily in a public place
- Family Court hearing in delinquency or neglect/abuse cases that is the equivalent of a "sentencing" in adult courts.
- DISSENTING OPINION
- An opinion written by an appellate judge explaining why he/she disagrees with the decision reached by the majority of judges considering the case.
- See also Concurring Opinion and Majority Opinion.
- DISTRICT COURT
- All criminal cases for persons 17 years or older start in the district court. This Court conducts initial criminal arraignments, sets and accepts bonds, and conducts preliminary examinations in felony cases.
- The trial court for all misdemeanors for which punishment does not exceed one year, civil infractions, civil small claims actions (up to $1,750), civil law suits for $25,000 or less, garnishments, landlord/tenant disputes, evictions, foreclosures and other proceedings.
- District Court procedures are essentially like those used in Circuit Court with the exceptions that a city/township ordinance may be prosecuted by that city's/township's attorney ... and pre-sentence investigations are not always prepared on misdemeanors.
- There are approximately 100 district courts in Michigan. District court judges are elected for 6-year terms on a non-partisan ballot.
- Eaton County has two District Court Judges: Harvey J. Hoffman and Julie Reincke.
- A process of removing some minor criminal, traffic, or juvenile cases from the full judicial process on the condition that the accused undergo rehabilitation &/or make restitution for damages. Diversion does not involve a formal conviction/adjudication, and may not require an admission of guilt. If the accused completes this informal probation successfully, then the entire matter may be closed, and is expunged (erased) from the person's record.
- Some Prosecutors' offices administer in-house diversion programs for first-time or property crime offenders. In those cases, charges are not issued unless the program is not completed.
- DOCKET / CASE DOCKET
- A written list of all important acts done in court in the conduct of an individual case, from beginning to end. This term is also commonly, but improperly, applied to the case calendar (a list of cases set for a hearing by a court on a specific day).
- DOCKET NUMBER
- Number assigned by the court's clerk to identify each case.
- DOUBLE JEOPARDY
- Being placed more than once in danger of being convicted and sentenced for the same offense. Being tried twice for the same offense. Jeopardy 'attaches' (begins) in a jury trial when the selected jury is sworn, and attaches in a bench trial when the first witness is sworn.
- If a judge declares a mistrial has occurred, a criminal case may be re-tried without violating double-jeopardy.
- DRUNK DRIVING
- See "OWI"
- DUE PROCESS (of Law)
- The fundamental procedural rules that guarantee "fair play" in the conduct of legal proceedings (e.g., the right to notice and a hearing, the right to an impartial judge and jury, the right to present evidence on one's own behalf, the right to confront one's accuser, the right to be represented by counsel, etc.).
- EMANCIPATION [1968 PA 293; MCL 722.1 et seq]
- Termination of the parents' rights to the custody, control, services and earnings of a minor.
- Rights & Responsibilities of Emancipated Minors: to enter enforceable contracts; to sue or be sued; to earn a living and retain earnings; to authorize medical, dental or medical care; to marry; to act autonomously in all business relationships; to apply for a driver's license and other state licenses; to apply for welfare; to make decisions and give authority in caring for a minor child; to make a will.
- Emancipation "by operation of law": occurs when the minor (a) turns 18 years old, (b) is validly married, or (c) is on active military duty or is in police custody and the parent's consent is not available.
- Emancipation "by order of the court": A minor who is 16 or 17 years old can petition the Circuit Court's Family Division for emancipation, but must prove that he/she can manage his/her financial and social affairs (including proof of employment or other means of support; housing; etc.), and attach affidavits from a physician, psychologist, therapist, nurse, clergy, school administrator, school counselor, teacher, law enforcement officer, duly regulated child care provider, or certified social worker with personal knowledge of the minor's circumstances and a belief that emancipation is in the minor's best interests. Receipt of General Assistance or ADC-F is not qualified "other means of support" and is not proof of self-support by the minor. The minor must also prove that the parent/guardian either does not object to emancipation or is not supporting the minor. The court must hold a hearing on the petition and determine (by a preponderance of the evidence) that the minor has met all of the legal requirements for emancipation, understands the rights and responsibilities of emancipation, and has shown that emancipation is in his/her best interest.
- An emancipation obtained by fraud is voidable. Voiding the order does not affect an obligation, responsibility, right, or interest that arose when the order was in effect.
- The minor or a parent or guardian of the minor may appeal (to the Court of Appeals) the Family Court's grant or denial of an emancipation petition.
- Approved SCAO forms for emancipation cases (including the petition) can be downloaded at courts.michigan.gov/scao/courtforms/emancipation/emindex.htm.
- The Prosecuting Attorney has no official role in an emancipation petition hearing.
- EMBEZZLEMENT [MCL 750.174]
- Michigan defines 4 levels of Embezzlement:
- under $200: Misdemeanor -- up to 93 days and/or $500, or 3 times amount embezzled, whichever is greater
- $200 or more but less than $1,000 (or repeat offender of above): Misdemeanor -- up to 1 year and/or $2,000, or 3 times amount embezzled, whichever is greater
- $1,000 or more but less than $20,000 (or repeat offender of above): Felony -- up to 5 years and/or $10,000, or 3 times amount embezzled, whichever is greater
- $20,000 or more (or repeat offender of above): Felony -- up to 10 years and/or $15,000, or 3 times amount embezzled, whichever is greater
- The essence of this crime is a violation of trust --- the agent (e.g., employee) was entrusted with the principal's (e.g., employer) property, acquired the principal's property through that relationship of trust, and dishonestly disposed of/took/hid/converted the property to his own use.
- EN BANC
- "In the bench" or "full bench." Refers to appellate court sessions with the entire membership of a court participating rather than the usual quorum. The Michigan Court of Appeals usually sits in three-judge panels, but may expand to a larger number in some cases. They are then said to be sitting en banc (pronounced "on bonk").
- Entrapment occurs when police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or when police engage in conduct so reprehensible that it cannot be tolerated by the court. Entrapment does not occur if the defendant has the propensity to commit the crime, and the police conduct only gives the defendant the opportunity to commit the crime.
- ETHNIC INTIMIDATION (MCL 750.147b)
- Penalty: Felony --- up to 2 years &/or fines up to $5,000.
- Malicious and intentional intimidation or harassment of another person because of that person's race, color, religion, gender, or national origin. This conduct must also (a) cause physical contact with another person, (b) damage, destroy, or deface real or personal property, or (c) threaten to do an act described in (a) or (b) if there is reasonable cause to believe that such an act will occur.
- Regardless of the existence or outcome of any criminal prosecution, a person who suffers injury to his/her person or damage to his/her property as a result of ethnic intimidation may sue the person who committed the offense to secure an injunction, actual damages, including damages for emotional distress, or other appropriate relief. A plaintiff may recover treble (triple) damages or $2,000.00, whichever is greater.
- Information presented in testimony, documents, physical objects or other things that are used to prove or disprove facts relevant to a case.
- See also direct evidence, circumstantial evidence, and corroborating evidence.
- EXCLUSIONARY RULE
- A court-made rule -- derived from the 4th and 5th Amendments to the US Constitution -- preventing illegally-obtained evidence from being used by the government in its case-in-chief against a criminal defendant.
- The exclusionary rule is directed only at official police misconduct or evidence that was the indirect product or fruit of unlawful police conduct.
- Exceptions to the exclusionary rule include: (i) if officers had an independent source for the discovery of the evidence; (ii) if the evidence would have been inevitably discovered by lawful means; (iii) if the connection between the illegal search and the discovery of the challenged evidence is so attenuated as to dissipate the taint; (iv) if the officers conducting the search acted in objectively reasonable reliance (good faith) on a search warrant that subsequently is determined to be invalid.
- "By or for one party" (Latin)
- Refers to situations in which only one party (without the adversary) appears before a judge. Such meetings are often forbidden.
- EX-PARTE ORDER
- Order entered without giving the party affected by the order an opportunity to be heard in court before the order is issued. An emergency order used when one party could be irreparably harmed by waiting for a hearing date. The orders are generally short-term, and hearings are scheduled soon to give the other party a chance to be heard.
- EX-POST FACTO
- After the fact. The Constitution prohibits the enactment of ex-post facto laws -- laws that make punishable as a crime an act done before the law was passed
- EXPUNGE / EXPUNGEMENT [Adults: MCL 780.621, et. seq.; Juveniles: MCL 712A.18e]
- Process where a conviction may be set aside. The official and formal elimination of part of a record. To legally void court records (including criminal records) in files, computers or other depositories under the courts jurisdiction.
- In Michigan, a person's first criminal conviction can be set aside, but only if at the time the request is made that person has no other misdemeanor or felony convictions.
- Expungement is not allowed for (i) felonies (attempts to commit felonies) punishable by life imprisonment, (ii) CSC 2nd or 3rd Degree or Assault with Intent to Commit CSC, or (iii) a traffic code violation.
- Expungement cannot be sought until at least 5 years have passed since the date of sentencing or completion of a term of imprisonment for the conviction, whichever is later.
- A court hearing is required after MSP reports to the court about pending charges against the applicant, any record of conviction of the applicant, and the setting aside of any conviction of the applicant obtained from its own records or from the FBI. The court may set the prior conviction aside if it determines that the circumstances and behavior of the applicant warrant it, and that it would be consistent with the public welfare.
- Setting aside a conviction is a privilege and conditional and not a right.
- EXTRADICT / EXTRADITION [1937 PA 144; MCL 780.1 et seq]
- The formal process of delivering a person found in one state (or nation) to authorities in another state (or nation) where that person has been accused or convicted of a crime.
- See the Uniform Criminal Extradition Act.
- FAMILY COURT (Family Division of Circuit Court)
- Since 01/01/1998, Michigan Circuit Courts have operated a "Family Court" division (in addition to Civil and Criminal divisions). The Family Division handles divorce, child custody, parenting time, paternity, adoption, child & spousal support, domestic violence (PPOs), juvenile delinquency, neglect and abuse, emancipation of minors, parental consent waivers (abortion), and name changes. The Family Court will also have ancillary jurisdiction over cases involving guardians and conservators, and mentally ill or developmentally disabled persons (typically when the affected person's family is already subject to the jurisdiction of the family division).
There is supposed to be one judge for one family. To the extent possible, all new cases involving a family will be automatically assigned to the judge hearing a previous case involving that family. Judges from both Probate and Circuit courts staff the Family Division. If two or more pending matters in the Family Court's jurisdiction involve the same family, they are assigned to the same judge whenever practical.
Within certain broad guidelines, each circuit decides how its Family Court operates. There is no mandated number or percentage of the total Circuit and Probate judges who must be assigned to the Family Division; the number of judges assigned "shall reasonably reflect the caseload of that Family Division."
- FAMILY INDEPENDENCE AGENCY
- See Department of Human Services.
- Crime carrying more than one year possible incarceration, unless it is specified as a misdemeanor. Felonies are tried in circuit court.
- FELONY FIREARM [MCL 750.227b]
- Penalty: Felony --- mandatory 2 years (or 5 years for second offense) imprisonment consecutive to and served before the term of imprisonment imposed for the felony or attempted felony conviction
- Crime committed when carrying or having in his possession a firearm at the time a felony is committed or attempted to be committed.
- A third party can be convicted of aiding/abetting a Felony Firearm charge, if the person procured, counseled, or assisted the accomplice in obtaining or retaining possession of the firearm.
- See Family Independence Agency.
- FLEEING & ELUDING [MCL 750.479a]
- A driver of a motor vehicle who willfully fails to obey a hand, voice, emergency light, siren, visual or audible signal by a police or conservation officer, acting in the lawful performance of his/her duty, that directs the driver to bring his/her motor vehicle to a stop. It may involve the defendant increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude the officer. The officer giving the signal must be in uniform, and the officer's vehicle must be identified as an official police or DNR vehicle.
- First Degree (Felony: up to 15 years &/or $10,000; license revocation) --- if the violation results in a death.
- Second Degree (Felony: up to 10 years &/or $5,000; license revocation) --- if the violation results in serious injury; or the defendant has one or more prior convictions for (attempted) 1st, 2nd or 3rd-degree F&E; or the defendant has any combination of two or more prior convictions for (attempted) 4th-degree F&E. "Serious injury" means a physical injury that is not necessarily permanent, but that constitutes serious bodily disfigurement or that seriously impairs the functioning of a body organ or limb, including loss of or loss of the use of a limb, hand, foot, finger, thumb, eye, or ear; loss or substantial impairment of a bodily function; serious visible disfigurement; a comatose state that lasts for more than 3 days; measurable brain damage or mental impairment; a skull fracture or other serious bone fracture; and a subdural hemorrhage or hematoma.
- Third Degree (Felony: up to 5 years &/or $1,000; license suspension) --- if the violation results in a collision or accident; or a portion of the violation occurred in an area where the speed limit is 35 miles an hour or less; or the defendant commits 4th-degree Fleeing and Eluding and has a prior conviction for F&E or Attempted F&E.
- Fourth Degree (Felony: up to 2 years &/or $500 fine; license suspension)
- Real or personal property to which a person loses his right of possession due to the commission of a crime or by way of an assessed penalty. A forfeiture may be either administrative or judicial.
- FORMAL HEARING
- Hearing in which a civil infraction is contested before a district court judge (similar to a bench trial). The defendant may be represented by an attorney. The People are represented by the Prosecuting Attorney or an attorney for the local municipality.
- See also Informal Hearing.
- Michigan Rule of Evidence 404(b):
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
- (a) Character Evidence Generally. ...
- (b) Other Crimes, Wrongs, or Acts.
- (1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
- (2) The prosecution in a criminal case shall provide reasonable notice in advance of trial ... of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence. If necessary for a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant's privilege against self-incrimination.
- Permits some "prior bad acts" evidence to be admitted at trial.
- FOSTER HOME
- A licensed home for the temporary board and care of abused and neglected or delinquent children.
- Intentional deception designed to deprive another person of property or to injure him or her in some other way.
- A means of collecting a monetary judgment (such as restitution) by ordering a third party (the garnishee) to pay money, otherwise owed to the defendant, directly to the plaintiff.
- Michigan allows several kinds of garnishment:
- Periodic garnishment (SCAO form MC 12) -- examples: periodic payments made to the defendant, such as wages, rental or land contract payments, etc.
- Non-Periodic garnishment (SCAO form MC 13) -- example: bank account
- Income Tax garnishment (SCAO form MC 52) -- available only for Michigan state income tax refunds/credits (not federal or local income tax)
- The SCAO forms are filed with the court where the original judgment was entered. The judge must approve the garnishment. It must then be served on the defendant (who can file a written objection with the court), and the entity that holds defendant's money (place of employment, bank, Michigan Department of Treasury, etc.).
- See the State Court Administrative Office's "self-help" web page about garnishment. The SCAO site has downloadable court forms used for garnishment.
- GINTHER HEARING
- Based on People v Ginther, 390 Mich 436 (1973), an evidentiary hearing on a defendant's motion for new trial claiming ineffective assistance of counsel.
- GOOD TIME
- Reduction in time served in county jails as reward for good behavior. "Truth in Sentencing" laws have eliminated good-time reduction of prison sentences for felonies.
- GRAND JURY
- Group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a felony. Grand juries are rarely used in Michigan state courts, but are used by Federal courts.
- An adult with the legal duty and power to care for the person of another individual who is: a) under age 18; or, b) a legally incapacitated person. A guardian may be appointed by a court or designated in a will.
- GUARDIAN AD LITEM
- Person appointed by the court to protect the legal interests of an infant, an incompetent adult, or a missing person who is involved in a court case. The court will appoint a guardian ad litem in cases of juvenile abuse or neglect. The "GAL" may be an attorney.
- HABEAS CORPUS
- Writ (order) to bring a person before a court. In its most common usage, the writ directs a warden or jailer to bring a prisoner or person detained so that the court may determine whether such person is lawfully confined. It may also be used to bring a person in custody before the court to give testimony, or to be prosecuted.
- Statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered as evidence in the courtroom to prove that the the statement was true, not merely that the statement was made. Second-hand evidence not arising from personal knowledge of a witness, but generally from repeating what the witness heard others say outside the courtroom.
- Hearsay is generally inadmissible, but dozens of long-established exceptions have been approved; the exceptions are based on circumstances where the out-of-court statements carry a likelihood of trustworthiness (e.g., deathbed statements, self-incriminating statements, statements made to doctors about medical conditions, excited utterances, etc.).
- HIGH COURT MISDEMEANOR
- See Circuit Court Misdemeanor.
- HUNG JURY
- A criminal jury that cannot reach a unanimous verdict.
- H.Y.T.A. / YTA (Holmes Youthful Trainee Act) [MCL 762.11, 762.12, 762.13, 762.14]
- Discretionary sentence where a person who pleads guilty to a crime committed between his/her 17th & 21st birthdays may, with the youth's consent and without entering an adjudication of guilt, is assigned the status of a youthful trainee. The person may be placed on probation, or committed to jail or prison. Upon successful completion of all terms set by the judge, the court will dismiss the charge. If the person fails to successfully complete the terms of probation, the judge may terminate YTA status, enter an adjudication of guilt and sentence the defendant.
- YTA is not permitted for life, major controlled substance or traffic offenses.
- YTA status is not a conviction for a crime.
- Unless the court enters a judgment of conviction against the individual for the criminal offense, all proceedings regarding the disposition of the criminal charge and the individual's assignment as youthful trainee are closed to public inspection, but are be open to the courts, the department of corrections, the department of social services, and law enforcement personnel for use only in the performance of their duties.
- A court-approved agreement by a prosecutor to not prosecute a person, usually in return for providing criminal evidence against another person or party.
- IMPAIRED DRIVING [MCL 257.625]
- Penalty: Misdemeanor --- jail up to 93 days (1st offense) or 1 year (2nd offense), fines up to $300 (1st offense) or $1,000 (2nd offense), community service, 4 points assessed on the driver's record, and a mandatory license suspension of at least 3 months (1st offense).
- Lesser-included offense to OWI. A person driving a vehicle while visibly affected by alcohol &/or controlled substances.
- Process of calling something into question, as in "impeaching the testimony of a witness." Impeachment generally challenges a witness' credibility (believability) with evidence of bias, prior inconsistent statements, etc.
- IN CAMERA
- In chambers; in private. A hearing or inspection of documents that takes place outside the presence of the jury and public, usually in a judge's office.
- Formal accusation of a felony, issued by a grand jury after considering evidence presented by a prosecutor.
- Meeting a court's standards of poverty, thereby qualifying a criminal defendant for representation by a public defendar, or for filing fees to be waived.
- INFORMAL HEARING
- Hearing in which a civil infraction is contested before a district court magistrate. Generally, the police officer and person ticketed testify under oath, each explaining what happened. Attorneys are not allowed at informal hearings, but witnesses may attend and testify, and the defendant may ask questions of the police officer and witnesses. An adverse decision can be appealed by demanding a formal hearing and posting an appeal bond worth at least the amount of fines & costs for the charge.
- INFORMAL PROCEEDING
- When a juvenile petition is not authorized, but services and/or consequences are provided with the cooperation of a juvenile and his/her family. The file is considered "diverted" and must be destroyed within 28 days of the juvenile's 17th birthday.
- See Consent Calendar.
- Document on which criminal felony charges are filed in Circuit Court after a Preliminary Examination bind-over or waiver.
- A violation of a law not punishable by imprisonment -- e.g., minor traffic offenses.
- Order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- A non-custodial conference held to determine further court action.
- A person is legally insane if, as a result of mental illness or mental retardation as defined by MCL 330.1400a and MCL 330.1500(h) respectively, that person lacks substantial capacity either to appreciate the wrongfulness of his or her conduct to conform that conduct to the requirements of law.
- The defendant has the burden of proof by preponderance of evidence. MCL 768.21a(1).
- The defendant may be precluded from presenting evidence of insanity for failure to cooperate in the forensics center examination.
- Judge's explanation to the jury before it begins deliberations of the questions it must answer, including information about the laws governing the case.
- Provisional, temporary, non-final orders and decrees of a court.
- JOYRIDING (Unlawful Use of an Automobile) [MCL 750.414]
- Penalty: High Court Misdemeanor --- up to 2 years or $1,000
- Taking or using a motor vehicle without authority, without the intent to steal (or being a party to such unauthorized taking or using). Unlike UDAA, Joyriding does not require proof of an intent to steal.
- Government official with authority to decide lawsuits brought before courts.
- Legal authority of a court to hear and decide a case before it, which depends on the type of case and how closely connected the parties are to the county where the court is located.
- The geographic area over which the authority to interpret and apply the law extends (e.g., the court's authority to decide cases, the prosecutor's authority to issue criminal charges, etc.). (See also venue.)
- In delinquency and abuse/neglect cases, the court's authority to enter orders affecting a youth and his/her parents or household.
- Persons selected according to law and sworn to inquire into and declare a verdict on matters of fact.
- District court and civil cases (including Family Court) use 6-person juries. Felony criminal cases use 12-person juries.
- Youth under the age of 17.
- JUVENILE CODE [1939 PA 288; MCL 712A.1 et seq]
- The set of laws governing juvenile delinquency proceedings, designated proceedings, and child protective proceedings.
- JUVENILE COURT
- Until 01/01/1998, Juvenile Court was a division of the Probate Court, and was responsible for all juvenile delinquency offenses. Since 01/01/1998, these cases are prosecuted in the Family Division of Circuit Court.
- JUVENILE DELINQUENCY PROCEEDINGS
- Proceedings in the Family Division of the Circuit Court regarding a minor under age 17 who has:
- committed an offense that would be a crime if committed by an adult, including a misdemeanor traffic offense;
- deserted his or her home;
- been absent from school;
- repeatedly violated school rules; or,
- disobeyed the reasonable and lawful commands of his or her parents.
- KIDNAPPING [MCL 750.349]
- Penalty: Felony --- up to Life or any term of years, &/or $50,000 fine.
- Knowlingly restraining a person with the intent to (i) hold the peron for ransom or hotage, (ii) use the person as a shield or hostage, (iii) engage in criminal sexual conduct with the person, (iv) take the person out of the state, or (v) hold the person in involuntary servitude.
- See also Unlawful Imprisonment
- KIDNAPPING, PARENTAL (Custodial Interference)
- Penalty: Felony --- up to 366 days incarceration and/or $2,000 fine
- Parental Kidnapping occurs when a natural or adoptive parent takes or retains a child for more than 24 hours with intent to detain or conceal the child from the parent who has legal custody or visitation rights at the time, the person who adopted the child, or the person who had lawful charge of the child.
- NOTE: The defendant may raise an affirmative defense that he/she took the child to protect the child from an immediate and actual threat of physical or mental harm, abuse or neglect.
- KILLEBREW PLEA
- Based on People v Killebrew, 416 Mich 189 (1992).
- A "Killebrew plea" allows a defendant to enter a conditional guilty which can be withdrawn if the judge's eventual sentence falls outside sentencing terms negotiated by the prosecutor and defense.
- Normally, defendants plead guilty without any legal expectation of a specific sentence, and judges are not bound by a sentencing agreement between the parties. But in "Killebrew agreements", the judge is advised before the plea of the sentencing terms approved by both sides and has allowed the defendant to enter this conditional plea. The judge is not a party to the agreement and may later impose any lawful sentence. But, because the defendant was induced to plead guilty by an expected sentence, he may withdraw his plea if he does not receive that sentence.
- See also Cobbs Plea.
- Stealing. The unlawful taking and carrying away of property of another with the intent to keep it from the owner. This is a specific intent crime, and cannot occur accidentally. The crime is completed when the defendant actually or constructively possesses or controls the property, moves or hides it, and specifically intends to permanently deprive the owner of it.
- An attorney. A person authorized to practice law in a state to represent the legal interests of another person.
- LEADING QUESTION
- A question that instructs a witness how to answer, or suggests which answer is desired. These questions are usually prohibited on direct examination.
- Law Enforcement Information Network.
- A computerized communication network accessed by law enforcement agencies. It contains information on active PPOs, pretrial release conditions in criminal cases, outstanding arrest warrants, driving records, and automobile registration, felony and high misdemeanor convictions, etc.
- LIFE OFFENSE
- One or more of the following offenses allegedly committed by a juvenile in which the prosecuting attorney may authorize the filing of a criminal complaint and warrant instead of proceeding in the juvenile court:
- assault with intent to commit murder
- assault with intent to rob while armed
- attempted murder
- first-degree murder
- second-degree murder
- first-degree criminal sexual conduct
- armed robbery
- possession of or manufacture, delivery, or possession with intent to manufacture or deliver 650 grams or more of any schedule I or II controlled substance.
- Used generally, this title means a judge.
- In Michigan, it is also quasi-judicial officer in a district court who has the authority to set bail, accept bonds, conduct informal hearings on civil infractions, accept guilty please and impose sentences for traffic violations, and perform marriage ceremonies.
- Eaton County has one Magistrate: Brien R. Fortino.
- MAJORITY OPINION
- A written decision of the majority of appellate judges considering the case announcing the court's ruling, and the legal basis for the decision.
- See also Concurring Opinion and Dissenting Opinion.
- MALA IN SE
- "Evil in itself".
- Behavior that is universally regarded as criminal -- e.g., murder.
- MALA PROHIBITA
- "Wrong because prohibited".
- Behavior that is criminal because society defines it -- e.g., manufacture of alcoholic beverages during Prohibition.
- Intent to commit a wrongful act without just cause or excuse. Evil intent, motive or purpose.
- Can be a lesser-included offense to murderif the defendant acted out of passion or anger brought about by adequate cause and before the defendant had a reasonable time to calm down.
- Voluntary Manslaughter: (Felony --- 15 years and/or $7,500 fine) --- defendant caused a death + intended to kill or knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result.
- Involuntary Manslaughter: (Felony --- 15 years and/or $7,500 fine) --- defendant caused a death + acted in a grossly negligent manner or intended to injure or commit an assault/battery. "Intent to kill" is not an element.
- MARIHUANA / MARIJUANA
- a Schedule 4 controlled substance.
- MENS REA
- The state of mind of the defendant that the prosecution must prove to establish criminal responsibility. Criminal intent. Some crimes require proof of a "specific intent" (e.g., in larcenies, the prosecutor must prove the defendant's specific intent to steal). Other "general intent" crimes require no proof of intent (e.g., OWI).
- Pronounced menz RAY-uh.
- MICHIGAN COMPILED LAWS (MCL)
- Volumes of books containing the official version of Michigan statutes enacted by the state Legislature. MCLs are published by the Legislative Service Bureau.
- MICHIGAN COMPILED LAWS ANNOTATED (MCLA)
- Volumes of books containing the text of Michigan statutes, plus brief references to caselaw and legal commentary discussing the statutes. MCLs are published by the West Publishing Company.
- MICHIGAN COURT RULES (MCR)
- Rules adopted by the Michigan Supreme Court to govern procedures in all state courts.
- MICHIGAN RULES OF EVIDENCE (MRE)
- Rules adopted by the Michigan Supreme Court to govern admissibility of evidence in all state courts.
- A youth under a law's age of majority. A youth is considered a minor regarding criminal offenses until his 17th birthday, and are handled in Juvenile Court; offenses committed after his 17th birthday are handled in District Court and Circuit Court. Some crimes have substantive age limits: alcohol offenses have an age of majority of 21, tobacco offenses have an age of majority of 18, etc.
- MIRANDA WARNING
- A warning given by police before custodial interrogation that the person does not have to talk to police, his silence will not be held against him, and he has a right to legal counsel before talking to police.
- Refers to a US Supreme Court decision: Miranda v Arizona, 384 US 436 (1966).
- Crime carrying maximum jail time of one year or less.
- Exception: a "high court" misdemeanor (e.g., CSC 4th Degree) can carry up to 2 years in prison, but is not labeled a "felony". High-court misdemeanors are handled procedurally like a felony.
- An erroneous or invalid trial; a trial declared by a judge to be defective and void, generally due to prejudicial error in the proceedings or a "hung jury" (a jury that could not agree upon a verdict).
- MOTIVE [CJI2d 4.9]
- Whether the defendant had a reason to commit the alleged crime ... but a reason to commit the crime, by itself, is not enough to find a person guilty of a crime.
- Motive is not an element of a crime that a prosecutor must prove.
- In Michigan, all murder is either in the first or second degree.
- First degree murder: [MCL 750.316] (Felony: mandatory Life; no parole) -- "felony murder" (murder committed in the course of another felony), murdering a peace officer in the line of duty, or "premeditated murder". Murder cannot occur accidentally, the defendant must have intended to kill. Premeditation means that the defendant had time to consider the pros and cons of the killing beforehand.
- Second degree murder: [MCL 750.317] (Felony: Life or any term of years) -- causing death + intending to kill or do great bodily harm or knowingly creating a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his/her actions.
- Open Murder: [MCL 767.71] -- Michigan law does not require a prosecutor to choose between First Degree or Second Degree Murder when issuing a complaint, or even at trial. A prosecutor may charge "Open Murder", which is a combination of First and Second Degree Murder, and the jury may determine the appropriate degree based on the proofs.
- There are 3 types/degrees of negligence:
- Slight negligence: doing something that isn't dangerous, that only an extremely careful person would have thought could cause injury.
- Ordinary negligence: carelessness ... not taking reasonable care under circumstances as they were at the time ... something that a sensible person would know could hurt someone.
- Gross negligence: more than carelessness ... failure to use even the slightest amount of care in a way that shows recklessness or willful disregard for the safety of others due to an act or failure to act ... defendant must have known of the danger to another (i.e., knew of a situation requiring ordinary care to avoid injuring another) and could have avoided injury by using ordinary care and failed to use ordinary care to prevent injuring another when a reasonable person would have seen that serious injury would likely result.
- NO CONTEST PLEA
- A plea in which the facts supporting the crime's elements come from a source other than the defendant's own words in court (generally, from police investigation reports, witnesses statements, photographs, etc.). A "nolo contendere" plea is used when the defendant cannot recall his criminal actions (sometimes due to intoxication), or his verbal plea from a traditional guilty plea would be used in a potential civil law suit. Regardless, the plea is treated the same as a guilty plea, and the defendant is treated by a sentencing judge the same as if he was convicted via a guilty plea or trial verdict.
- NOLLE PROSEQUI
- "Unwilling to prosecute" (Latin). Form filed by a prosecutor to dismiss criminal charges. A "nolle pros" usually means the end of the matter, but can be filed "without prejudice" so that the prosecutor may reopen the case against the defendant at a later date. It may not be used to deny the defendant's constitutional right to a speedy trial.
- NOLO CONTENDERE
- "I will not contest it" (Latin). See No Contest Plea.
- Taking exception to a statement or procedure in trial. Calling the court's attention to improper evidence or procedure.
- Objection Overruled - a judge's rejection of an objection as invalid.
- Objection Sustained - a judge's support or agreement with an objection.
- A crime or ordinance violation. Generally implies an act infringing on the public, as distinguished from private rights.
- Regarding minors, an offense is any act that violates provisions of the Juvenile Code and places the person committing the act in the jurisdiction of the juvenile court. Does not include civil infractions.
- 180 Day Rule
- A rule that allows people who are in county jails awaiting trial on felony charges for 180 days to be released on their own recognizance if the delay has not been caused by the accused or the accused's attorney.
- A rule that requires all pending charges against a state prison inmate be brought to trial in 180 days, or be dismissed with prejudice.
- Decision of a court made in writing.
- A local law or regulation enacted by the governing body of a municipality or county, such as the Eaton County Board of Commissioners. It has no effect outside that village, city, township or county.
- OWI (Operating While Intoxicated) [MCL 257.625]
- Commonly called "drunk driving". Formerly called Operating While Under the Influence of Liquor (OUIL).
- A person operating a motor vehicle on a public road, parking lot or other place open to the general public while being significantly or substantially affected by intoxicating liquor, controlled substances, or both. A person is presumed to be intoxicated with a blood-alcohol content of 0.08% or more.
- 1st offense penalty: Misdemeanor --- up to 93 days, $500 fines, community service; 6 points assessed on the driver's record, mandatory 6 month license suspension
- 2nd offense penalty: Misdemeanor --- up to 1 year, $1,000 fines, community service, 6 points; vehicle immobilization, mandatory 1 year license revocation
- 3rd offense penalty: Felony --- 1-5 years; $500-$5,000 fines; 6 points; vehicle immobilization; license revocation.
- A judge's decision to not allow an objection to prevail. Also, a decision by a higher court that a lower court's decision was in error.
- See also sustain.
- Prosecuting Attorneys Association of Michigan -- a voluntary association of Michigan's 83 elected prosecutors and their staffs, comprising over 1,000 prosecuting officials throughout the state. PAAM's mission is to provide services to the state's prosecuting attorneys in order to make local law enforcement of state laws more uniform and efficient statewide. PAAM works with the legislature to enact, revise and improve criminal laws and criminal procedure --- including such issues as truth-in-sentencing, juvenile justice, domestic violence, child protection, and victim's rights.
- PARENTING TIME
- Formerly called "visitation". The time a child spends with a non-custodial parent.
- Conditional release from prison of a convict before the expiration of a felony sentence. The parolee (the released person) need not serve the remainder of his incarceration unless he violates terms of his release. The parolee is under the supervision of a state parole officer during the parole period.
- See robation.
- Establishing legal "fatherhood". [See our Family Support web page for more information about Paternity cases.]
- PEACE BOND [1927 PA 175; MCL 722.1 - 722.15]
- A civil remedy for personal disputes where Circuit Court PPOs are not available. Obtained from the District Court.
- Differences between peace bonds and PPOs are: (i) peace bonds cannot be issued ex-parte in emergency situations because the peace bond procedure mandates a waiting period up to 7-days before the court can enter an order; (ii) the person against whom the peace bond complaint is named is entitled to a jury trial; (iii) although copies are filed with local police agencies, peace bonds cannot be entered into the state- and nation-wide LEIN network; (iv) the court's criminal contempt powers against a person violating a peace bond applies only in a limited category of domestic relationships (and does not apply to stalkers or people who are or have been in dating relationships).
- Knowingly making a material false statement about a material fact while under oath to tell the truth.
- PERMANENT WARD
- A child who is permanently placed under the care of the court or other guardian because the parents' rights to the child have been terminated by the Family Court.
- See also Temporary Ward.
- PERSONAL PROTECTION ORDER [MCL 600.2950 - MCL 600.2950a]
- Injunctive order to prevent reoccurrences of acts or threats of assault and harassment.
- See our PPO web pages for more details.
- See also Peace Bond.
- In juvenile delinquency or child protective proceedings before the Family Division of Circuit Court, a petition is the document in which the charged offenses or allegations are set forth. The petition includes the JC01 and JC02 forms, plus additional pages stating details of the allegations (if needed).
- The person signing or filing a petition.
- Person who originally filed a court action.
- Defendant's response to a criminal charge (guilty, not guilty or nolo contendere).
- PLEA AGREEMENT / BARGAIN
- A negotiated agreement between the Prosecutor and the defense counsel for the defendant to plead guilty or no-contest under certain terms and conditions. The agreement could include the defendant pleading to all pending charges with a sentence agreement, or pleading to less than all of his pending charges, or pleading to a less serious charge, or pleading guilty to one or more pending charges in exchange for dismissal of other charges. All plea agreements must be approved by the judge. Plea agreements are a means of arriving at a reasonable disposition without the necessity of a trial.
- POLLING THE JURY
- Asking jurors individually, after their verdict has been announced, whether they agreed (and still agree) with announced verdict. This occurs in the courtroom before the judge discharges the jury.
- See Personal Protection Order.
- Court decision in an earlier case with facts and law similar to a dispute currently before a court. The decision of the earlier case will usually govern the decision of a later, similar case unless a party can show that the earlier decision was wrongly decided or that it differed in some significant way.
- PRE-EXAM CONFERENCE
- Scheduled meeting between the prosecutor and defendant's attorney days before the preliminary examination date to discuss plea bargains, whether the "prelim" will be held or waived to circuit court, etc.
- This hearing is not required under the Michigan Court Rules. But they have been used locally in many counties (including Eaton County) to significantly reduce the number of cases scheduled for Preliminary Examination, to reduce the numbers of subpoenas issued and served for prelims, etc. The judge does not actively participate in pre-exam conferences.
- PREJUDICIAL ERROR
- Reversible error. Error committed during a trial serious enough to require an appellate court to reverse the judgment.
- PRELIMINARY EXAMINATION
- District Court evidentiary hearing for felonies where the prosecuting attorney must present evidence amounting to at least probable cause that the charged felony crime(s) in fact occurred and that the defendant committed it (them). Generally, the prosecutor presents just a fraction of his total evidence and witnesses. The defendant (or his attorney) can cross-examine the People's witnesses, and present his own proofs to refute the People's evidence. If the Prosecutor meets his burden of proof, the case is "bound over" to Circuit Court for arraignment on an information, and possible trial.
- 14-Day Rule: defendants have a statutory right to have their Preliminary Examination within 14 days after their arraignment. [See MCL 766.4, MCR 6.104(E)(4).]
- PRELIMINARY HEARING
- The first stage in a juvenile delinquency or child protective proceeding when the child is in custody. An informal proceeding in the Family Division of Circuit Court in which the juvenile &/or parents and attorney are informed about the allegations in the petition. Testimony by the petitioner may be required to determine if the juvenile should not be placed with his parents pending further action on the petition.
- PRELIMINARY INQUIRY
- The first stage in a juvenile delinquency or child protective proceeding when the child is not in custody. An informal proceeding in the Family Division of Circuit Court in which the juvenile &/or parents and attorney are informed about the allegations in the petition.
- PREPONDERANCE OF THE EVIDENCE
- See Burden of Proof.
- PRE-TRIAL CONFERENCE
- Scheduled meeting between the prosecutor and defendant (or defendant's attorney) prior to a trial dateto discuss plea bargains, trial issues, etc. The judge usually does not actively participate in pretrial conferences, but may do so to assist in expediting resolution of trial issues, or simplifying the trial.
- PRIMA FACIE
- Evidence that is sufficient to prove a fact, or facts sufficient to establish a party's right to legal relief, if no evidence to the contrary if offered.
- See Burden of Proof.
- PRIOR ACT EVIDENCE
- See MRE 404(b).
- PROBABLE CAUSE
- Facts and circumstance sufficient to convince a person of reasonable caution that an offense has been committed; mere suspicion or belief, unsupported by facts or circumstances, is insufficient. A search warrant may be authorized, or a warrantless arrest may be made, upon probable cause.
- See Burden of Proof.
- PROBATE COURT
- Court with primary jurisdiction for cases involving wills, guardians and conservators, and mentally ill or developmentally disabled persons.
- Probate Court judges may also be assigned to handle cases in the Family Division of Circuit Court, such as juvenile delinquency offenses, parental abuse/neglect, termination of parental rights, divorces, adoptions and name changes.
- There are 79 probate courts in Michigan; probate judges are elected for 6-year terms.
- Eaton County has one Probate Judge: Thomas Byerley.
- Discretionary sentencing option for most misdemeanor and felony convictions where the defendant avoids some/all incarceration, and is released back into the community under the supervision of a probation officer for a specific time period, with rules to follow. Some rules are standard (e.g., to not violate any more laws), and others are specific to the defendant or crime (e.g., alcohol counseling when convicted of OWI). If the defendant violates any term of probation, the assigned probation officer (or the Prosecutor) can ask the sentencing judge to impose additional penalties after a probation violation hearing.
- See arole.
- PROBATION ORDER
- An official written directive from a court ordering that a criminal defendant is sentenced to a term of probation. The document is signed by the judge and the defendant. It includes all legal conditions (both standard and special conditions) with which the defendant must comply during probation, including payment of fines, costs, restitution, etc.
- PRO BONO
- Legal services provided to a client free of charge.
- PRO PER / PRO SE
- Person who represents himself/herself in court without an attorney. The term comes from the Latin phrase in propria persona ("on one's own behalf").
- PROSECUTING ATTORNEY
- The term Michigan uses for a prosecutor.
- Elected or appointed official vested with authority by a constitution, statute or ordinance to represent the public interest and take legal action against persons violating state or local criminal laws. Michigan's prosecutors are known as "Prosecuting Attorneys". In other states they are called District Attorneys, State's Attorneys, County Attorneys, Commonwealth's Attorneys, or other titles.
- Nullify, void or declare invalid. To overthrow or vacate.
- See Receiving & Concealing Stolen Property.
- See Criminal Sexual Conduct.
- REASONABLE DOUBT
- Fair, honest doubt based on the evidence produced at trial (or missing from the proofs). A reasonable doubt must be based on reason and common sense, not on conjecture, speculation, possibilities or imaginary scenarios.
- See Burden of Proof.
The introduction of contrary evidence. A method of showing that statements by witnesses of what happened was not true. The stage of a trial at which such evidence may be introduced.
- RECEIVING & CONCEALING STOLEN PROPERTY [MCL 750.535]
- Buying, receiving, possessing, concealing or aiding in the concealment of stolen, embezzled or converted money, goods or property, knowing or having reason to know or reason to believe that it was stolen, embezzled or converted.
- Michigan defines 4 levels of R&C:
- $20,000 or more: Felony -- up to 10 years and/or $15,000 fine (or 3x property's value)
- $1,000 or more but less than $20,000: Felony -- up to 5 years and/or $10,000 fine (or 3x property's value)
- $200 or more but less than $1,000: Misdemeanor -- up to 1 year and/or $2,000 fine (or 3x property's value)
- Under $200: Misdemeanor -- up to 93 days and/or $500 fine (or 3x property's value)
- A prosecutor may charge one higher level of R&C if the defendant was previously convicted of R&C or Attempted R&C.
- The values of property purchased, received, possessed, or concealed in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total charged value.
- The value element is proven by the property's fair market value (the highest price for which it would have sold in the open market).
- A dealer in or collector of merchandise or personal property (or that person's agent, employee, or representative) who fails to reasonably inquire whether the person selling or delivering the stolen, embezzled, or converted property to the dealer or collector has a legal right to do so, or who buys or receives stolen, embezzled, or converted property that has a registration, serial, or other identifying number altered or obliterated on an external surface of the property, is presumed to have bought or received the property knowing the property is stolen, embezzled, or converted. This presumption is rebuttable.
Follows cross-examination and is exercised by the party who first called and questioned the witness.
- REDIRECT EXAMINATION
A person who takes testimony, prepares reports, and makes recommendations to the Family Court in domestic relations, juvenile delinquency, designated proceedings involving juveniles, and child protective proceedings.
Non-Attorney Referee may only preside over Preliminary Hearings and Inquiries regarding delinquent and child protective cases, and Arraignments in designation cases.
Attorney Referee may preside over any type of hearing, except a jury trial.
Evidence having any tendency to make the existance of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. MRE 401.
To send a case back to the court from which it came for further proceedings. This typically happens when an appellate court sends a case back to a lower court with instructions on further proceedings.
Juvenile delinquency offenses that requires fingerprinting --- murder or attempted murder, serious assaults (assault with intent to murder, to commit great bodily harm, to main, or to rob), arson of a dwelling, B&E, home invasion 1st degree, larceny in a building, car theft, car jacking, kidnapping, CSC 1st-3rd degree, robbery, possession or delivery of 650 grams or more of a schedule 1 or 2 narcotic.
- REPORTABLE JUVENILE OFFENSE
Knowingly and intentionally obstructing, resisting, opposing, assaulting, beating or wounding a law enforcement officer who is engaged in his lawful acts or attempting to maintain the peace. The defendant's acts must have actually interfered with the officer in carrying out those duties.
Penalty: Felony ~ up to 2 years incarceration or a $1,000 fine.
- RESISTING / OBSTRUCTING A POLICE OFFICER
The juvenile court equivalent of a defendant in a criminal case. The juvenile charged in a delinquency case, or the at-fault parents in a child protection proceeding, are respondents.
Payments ordered by the judge to repay victims for economic losses incurred as the result of the crime (property loss or injuries). Does not include compensation for pain and suffering, emotional distress or other non-economic damages that can result in compensation through a civil law suit.
Restitution is a constitutional right for crime victims. Mich Const 1963, Art I, Sec 24(10).
"Full restitution" must be ordered in all criminal cases where a victim suffers a loss directly caused by the course of conduct from which the conviction(s) arose. Restitution must be ordered for diversion, consent calendar, HYTA, charges dismissed in plea agreements, etc., or any resolution other than a trial acquittal or an unconditional dismissal. Michigan Crime Victim Rights Act, MCL 780.766(2).
Restitution must be a condition of probation, parole or a conditional sentence. MCL 780.766(11).
A restitution order is a civil judgment that never expires until it is paid in full. MCL 780.766(13).
Restitution cannot be discharged in bankruptcy. 11 USC 523(a)(9) & 1328(a)(3) .
Stealing merchandise (items offered for sale to the public) while the store is open for business, "price switching", or trying to get a fraudulent refund from a store. Retail Fraud is a theft crime requiring proof that the item was taken intentionally (not accidentally), with the intent to steal.
Michigan defines 3 degrees of retail fraud:
- RETAIL FRAUD [MCL 750.356c & .356d]
In addition to criminal penalties, a shoplifter may also be subject to civil penalties demanded by the store. The penalties include the full retail price of unrecovered property or recovered property that is not in salable condition, and civil damages of 10 times the retail price of the property, but not less than $50.00 and not more than $200.00.
- 1st Degree ($1,000 or more stolen; or 2nd Degree + prior conviction):
Felony -- up to 5 years and/or $10,000 fine (or 3x merchandise's value)
- 2nd Degree ($200 or more but less than $1,000 stolen; or 3rd Degree + prior conviction):
Misdemeanor -- up to 1 year and/or $2,000 fine (or 3x merchandise's value)
- 3rd Degree (under $200 stolen):
Misdemeanor -- up to 93 days and/or $500 fine (or 3x merchandise's value)
When an appellate court sets aside the decision of a lower court because of an error. A reversal is often accompanied by a remand.
Written order from a judge or magistrate that an officer may search a specific location for specific items which, if found, can be seized by the government for possible use in court as evidence. Search warrants are issued upon a showing of probable cause that the items are in the place to be searched, and are evidence of a crime.
Exceptions to the need for a search warrant include: (a) investigative stops and Terry pat-downs; (b) plain feel [detecting the evidence through the sense of touch during an authorized protective patdown search; the item's incriminating character must be immediately apparent]; (c) a search incident to an arrest; (d) automobile searches; (e) consent searches; (f) plain view [where the incriminating character of the evidence is immediately apparent, and officer had a lawful right of access to the object]; (g) administrative searches; (h) special needs searches [school searches, prisoner/probation searches]; (i) exigent circumstances, like hot pursuit of a fleeing felon, or preventing the imminent destruction of evidence, or precluding a suspect's escape, or rendering emergency aid; (j) searches by private persons who are not acting as agents of law enforcement in order to conduct the search.
- SEARCH WARRANT
Legally-justified use of force to protect one's self, another person, or property against some injury attempted by another person ... the right to repel force with force ... the defendant (i) must have honestly and reasonably believed that he had to use force for protection, (ii) may use only the type and degree of force that seems necessary for protection at the time based on the circumstances known to him, (iii) must not have acted wrongfully and brought on the assault (i.e., provoked the attack)
In Michigan, a prosecuting attorney has the burden of disproving a defendant's self-defense claim beyond a reasonable doubt.
- SELF DEFENSE
Punishment ordered by a court for a defendant convicted of a crime.
In Michigan, jail sentences are determinate, and prison sentences are indeterminate.
- Determinate Sentence - a sentence of imprisonment for a specific period of time (e.g., 30 days).
- Indeterminate Sentence - a sentence of imprisonment to a specified minimum and maximum period of time as authorized by statute, which is subject to termination by a parole board or other authorized agency after the prisoner has served the minimum term.
- SENTENCING GUIDELINES
- Criteria adopted by the Legislature that determine an appropriate range a judge may impose for the minimum sentence on felonies and high court misdemeanors (i.e., the "60" in a "60 to 120 month" sentence). The purpose of the guidelines is to ensure conformity of sentences across the state. "Prior Record Variables" (PRVs) and "Offense Variables" (OVs) are calculated and applied to a Sentencing Range Grid. A judge may depart from the sentencing guideline range (on either the high- or low-side) only where there are "substantial and compelling" reasons to do so.
- The Sentencing Guidelines can be seen at the Michigan Judicial Institute web site.
- SEQUESTER / SEQUESTRATION / SEPARATION OF WITNESSES
- To separate. A procedure to shelter a trial participant from outside influences.
- The term most frequently applies to witnesses, and prevents them from watching court proceedings and testimony (or talking outside the courtroom to other witnesses about the case) before they actually testify. In very rare cases, a jury can be sequestered during part or all of a trial.
- SEX OFFENDER [MCL 28.721 - 28.732]
Person convicted as an adult or adjudicated as a juvenile of CSC, Indecent Exposure, Gross Indecency, or other similar enumerated crimes. The person must register with the Michigan State Police (and verify their home address quarterly) for a minimum of 25 years, or for life.
Michigan's searchable database of adult sex offender registrants is maintained by the Michigan State Police.
Links to other states' on-line sex offender registries (inspired by New Jersey's original "Megan's Law") may be found on our Victim Resources page.
- See Retail Fraud.
- SHOW CAUSE HEARING
Court hearing held so a person can explain why (s)he should not be considered in violation of a specific court order (i.e., a defendant violating a term of the probation order).
Conference between the judge and lawyers held out of earshot of the jury and spectators.
- SMALL CLAIMS COURT
Division of the District Court in which civil lawsuits seeking a maximum $1,750 damages is heard. Like television's The People's Court, the parties represent themselves without attorneys. Jury trials are not allowed. The judge's or magistrate's decision cannot be appealed. If either party objects to these conditions, the case will be transferred to the Civil Division of the District Court.
- SPECIFIC INTENT
Acting with intent to cause a particular result ... a special mental element that must be proven for some crimes. For example, larceny requires proof that the defendant specifically intended to steal the victim's property (i.e., to permanently deprive the owner of the property); if the defendant unknowingly possessed the victim's property or was truly borrowing it temporarily, no theft/larceny occurred.
Specific Intent may be proved by what the defendant says, does, how he does it, etc.
- SPECIFIED JUVENILE VIOLATION
Crime for which a youth, convicted in a designated case, could be sentenced to prison --- murder or attempted murder; serious assaults (assault with intent to murder, commit great bodily harm, main, or rob); arson of a dwelling; home invasion 1st degree; car jacking; kidnapping; CSC 1st degree; armed robbery; bank or safe robbery; escape from a medium- or high-security juvenile facility; manufacture, sale, delivery or possession of 650 grams of a schedule 1 or 2 narcotic; or attempt, solicitation or conspiracy to commit these crimes.
- STALKING [MCL 750.411h & i]
Download our Stalking Victim's Log.
Stalking is (a) two or more willful acts of (b) continuing harassment or un-consented contact (c) that would cause a reasonable individual to suffer emotional distress, (d) that actually cause the victim to suffer emotional distress, (e) that would also cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested, and (f) that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested. Note: ALL of these elements must be present for "stalking" to be proven.
Penalty: Misdemeanor--- 1 year and/or $1,000 fine, up to 5 years probation;
Aggravated Stalking: Stalking (i) in violation of a restraining order of which the suspect has actual notice; or (ii) in violation of a condition of bond, probation or parole; or (iii) credible threats against the victim, a member of the victim's family or household; or (iv) by a person previously convicted of Stalking.
- "Continuing harassment" means repeated (i.e., more than one) instances of un-consented conduct that would cause a reasonable person emotional distress, and that actually causes emotional distress. (A single incident made up of a series of continuous acts, each immediately following the other, is not "stalking".)
- "Emotional distress" means significant suffering or distress that may result in, but does not necessarily require, medical or other professional treatment or counseling.
- "Un-consented contact" means contact that you do not want or contact that you expressed that you wanted to avoid. This includes, but is not limited to, someone following you, confronting you at your workplace, phoning you, sending you mail, or placing objects on your property.
Penalty: Felony --- 5 yrs &/or $10,000 fine; probation from five years to any additional term of yrs.
Stalking a minor is a 5-year felony. Aggravated stalking of a minor is now a 10-year felony.
Michigan's Stalking statute was found to be constitutional by the US 6th Circuit Court of Appeals (02/05/2001). Read the Opinion in Jerry Lee Staley v Kurt Jones.
Party's right to make a legal claim, or to seek judicial enforcement of a right or duty.
- STARE DECISIS
Doctrine that once a principle of law has been determined to be applicable to certain facts, that principle will be followed in future cases involving substantially identical facts. This body of "case law" --- along with Common Law and statutes --- becomes the Laws of the Land.
- STATE BAR OF MICHIGAN
An association for attorneys licensed to practice law in Michigan. All attorneys, including prosecutors, must be a member of the State Bar in order to practice law in Michigan.
Visit the State Bar of Michigan web site at www.michbar.org.
- STATUS OFFENSE
A non-delinquency violation of law giving the Family Court jurisdiction over a minor. Status offenders are habitual runaways from home, truants from school, and incorrigible youths. Parents may be petitioners.
A violation of the juvenile code by a minor that would not be considered a violation of the law if committed by an adult.
Law passed by a legislature.
- STATUTE OF LIMITATIONS
A time limit on the right to seek relief in court. Deadline set by law for filing a criminal charge or civil lawsuit after an event occurred that is the source of the charge or claim.
In criminal cases, there are several mandatory time limits to commence prosecution: no time limit for Murder; 10 years for Assault with Intent to Murder, Conspiracy to Murder, Kidnaping or Extortion; 6 years for other felonies or misdemeanors.
A suspension of a judicial proceeding by court order.
An agreement between opposing parties on any matter relating to the case, including case facts. Courts must approve stipulations to take legal effect.
Court order requiring a person to appear in court and give testimony as a witness, and/or to produce documents. An employer cannot act upon or threaten to discharge or discipline a witness for missing work to testify in court when subpoenaed.
- SUBPOENA DUCES TECUM
Court order to produce documents or records. (Pronounced DOO-suhz TEE-kum.)
Legal bar to admitting evidence at a trial or other court proceeding.
- SUPREME COURT
Highest appeals court in Michigan.
An appellant files an application for "leave to appeal" in the Supreme Court, which the Court can grant (accept) or deny (reject) at its discretion. If an application is granted, the Supreme Court will hear the case; if denied, the decision made by the lower court remains unchanged.
The Supreme Court usually selects cases involving important constitutional issues and questions of public policy. The Supreme Court also has administrative duties --- general administrative supervision of all courts in the state, establishing rules for practice and procedure in all Michigan courts, etc.
The Supreme Court consists of seven justices: the chief justice and six associate justices. The justices are elected to serve 8-year terms. Every two years the justices vote to elect the chief justice.
Visit the Michigan Supreme Court web site at courts.michigan.gov/supremecourt/.
A judge's decision to allow an objection or motion to prevail.
See also overrule.
- TEMPORARY WARD
A child who is permanently placed under the care of the court or other guardian because the parents' rights to the child have been permanently terminated by the family division of the circuit court.
See also Permanent Ward.
- TERMINATION (OF PARENTAL RIGHTS) HEARING
A hearing held in the Family Division of the Circuit Court to determine if the parental rights are to be taken away from the parties involved, and therefore the child will become a permanent ward of the court.
Evidence presented orally and under oath by witnesses during trials or other court proceedings.
- TRADITIONAL WAIVER OF JURISDICTION
See Waiver of Jurisdiction.
- TRANSFER CASE
Petitions are issued by the prosecutor in the county where the offenses occurred. But a case may be transferred to the Family Court in the county where the juvenile lives for adjudication and disposition, with the consent of both counties' courts. The county-of-residence is responsible for monitoring and rehabilitating their youth.
Official record of the testimony taken in a trial or hearing. A written, word-for-word (verbatim) record of what was said.
- TRUTH IN SENTENCING
Legislation requiring offenders to serve their entire minimum sentence without reduction for good behavior. These prisoners may also have their minimum sentence extended for "bad behavior" while in prison. They are not eligible for placement in a corrections center or on electronic monitoring ("tether").
Michigan's law went into effect 12/15/1998 for most serious crimes, and now applies to all felonies committed after 12/15/2000.
- TURNER HEARING
Based on People v Turner, 390 Mich 7 (1973), a hearing to determine whether a defendant was entrapped by law enforcement officials into committing an offense.
- UBAL (Operating with an Unlawful Blood Alcohol Level) [MCL 750.625]
Same penalties as OWI
Commonly called Per Se drunk driving. A person must be operating a vehicle with at least a 0.08% blood-alcohol concentration. Unlike OWI, it is irrelevant whether or not the driver is affected by the alcohol. If convicted, the penalties are identical to a conviction for OWI.
- UDAA (Unlawfully Driving Away an Automobile) [MCL 750.413]
Penalty: Felony --- up to 5 years.
Car theft. Wilfully and without authority, taking possession of and driving or taking away (or assisting in or being a party to such taking possession, driving or taking away) of any motor vehicle belonging to another. Unlike Joyriding, U.D.A.A. requires proof of theft.
- UNLAWFUL IMPRISONMENT [MCL 750.349b]
Penalty: Felony --- up to 15 years and/or $20,000 fine.
(i) Knowlingly restraining a person by means of a weapon or dangerous instrument, (ii) secretly confining and knowingly restraining a person, (iii) knowingly restraining a person to facilitate the commission of a felony, (iv) knowingly restraining a person to facilitate flight after the commission of a felony.
See also Kidnapping
Penalty: Felony --- up to 14 years.
Knowingly presenting a false, altered, forged, counterfeited or fictitious instrument (e.g., check, money order, credit sales slip) with an intent to defraud or cheat.
The instrument need not be accepted as good, or that an actual loss occurred. The crime focuses on it being offered as valid, directly or indirectly, by words or actions.
- UTTERING & PUBLISHING [MCL 750.249]
To set aside. Example: a court may vacate an earlier order.
Geographic location (e.g., city or county) where an event occurred. A "change of venue" happens when a case is moved to a court in another county or to a court having other jurisdictional powers ... generally because the case should have been filed there originally, or for the convenience of the parties/witnesses, or because a fair trial cannot be had in the original court's location.
Juvenile delinquency cases are routinely transferred to the county where the minor lives because that "home county" will ultimately be responsible for overseeing efforts to rehabilitate the child.
Decision of a jury or a judge on the issues submitted to the court for determination.
Person or entity who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.
- VOIR DIRE
Process of jury selection, generally involving the judge and attorneys asking potential jurors about their experiences and beliefs. The purpose is to determine if the jurors are appropriate for sitting on the case at hand, particularly their willingness to decide the case only on the evidence presented in court. This French term (pronounced "vwa dear") means "to speak the truth".
- WADE HEARING
Based on US v Wade, 388 US 218 (1967), a pre-trial hearing to test the fairness of a line-up. The issue is whether to admit or suppress an identification of an accused that resulted from the line-up.
Intentionally giving up a right. Example: a defendant waiving his right to remain silent to be interviewed by police.
- WAIVER OF JURISDICTION
A process by which a juvenile may be processed or convicted as an adult.
- WALKER HEARING
Based on People v Walker, 374 Mich 331 (1965), an evidentiary hearing on a defendant's motion to suppress his incriminating statement to the police. The hearing focuses on the totality of the circumstances surrounding the statement, including whether it was voluntarily and intelligently made, whether police advised the defendant of his Miranda rights and the defendant waived the rights, etc.
Court order authorizing an arrest or search.
- WARRANTLESS ARREST
A police officer may arrest a person without a warrantunder the following circumstances:
- a misdemeanor or felony is committed in the officer's presence [MCL 764.15];
- the officer has probable cause to believe that a crime punishable by imprisonment for more than 92 days has been committed, even outside of his presence [MCL 764.15];
- the officer has probable cause to believe that domestic violence has occurred [MCL 764.15a];
- the officer has probable cause to believe that a PPO violation [MCL 764.15b] or domestic assault no-contact bond condition violation [MCL 764.15e] has occurred;
- the officer has a reasonable belief that the suspect was the driver of a motor vehicle at the time of an accident and was driving while intoxicated or impaired [MCL 764.15].
A substantive limitation on the scope of the crime of conspiracy. This rule provides that an agreement by two persons to commit a crime cannot be prosecuted as a conspiracy when the target crime requires the participation of the same two persons (for example dueling, bigamy or incest). The applicability of the rule focuses on the elements of the target crime, rather than on the factual circumstances of the particular case. So, if the offense could logically be accomplished by a single person, or the number of alleged conspirators exceeds the minimum number logically necessary to complete the substantive offense, Wharton's Rule does not apply.
A dismissal "with prejudice" forever bars the same charge arising from the same incident from being brought against the same defendant again.
A dismissal "without prejudice" allows a prosecutor to re-file the same charge arising from the same incident against the same defendant again.
Person who comes to court (sometimes by subpoena) and swears under oath to give truthful evidence about information he/she has seen, heard or otherwise experienced.
- Hostile Witness - a witness who exhibits antagonism toward the attorney or party during direct examination. The trial judge may then permit the attorney or party to question the witness with leading questions.
Probation program where the defendant is permitted to maintain employment while residing in jail. The defendant leaves jail on work days only for his work hours, plus limited travel time.
See Holmes Youthful Trainee Act.