Michigan Criminal Attorneys Blog
In many instances a victim pursues a criminal case with vigor and determination to receive justice, and will stop at nothing to have his or her position heard and advanced. In Michigan a victim has an absolute right to be heard, informed, and consulted with as to the prosecution of the Defendant. A victim has a right to hire a lawyer to advocate on his or her behalf.
On many occasions a victim regrets the decision to involve law enforcement with an argument or dispute that arose with a wife, husband, fiancée , mother, father, son, daughter, other family member, or friend. In most cases in Michigan the position of the Prosecutor or city attorney is that they represent the People of the community, and protect the community in general from harms or disturbances of the peace. A criminal case is never entitled the name of the victim versus the name of the Defendant – it is always the People or City versus the Defendant. Even when the victim strongly tells the Prosecutor and police that they wish for the matter to be dismissed, the desire of the victim is often not followed.
When a victim’s position is contrary to the Prosecution and police, this is a good time to retain an experienced lawyer. Victims are often met with disrespect and threats of what will happen if he or she fails to cooperate with the prosecution of the case. The Court itself will sometimes try to place pressure on the victim and the Defendant by establishing stringent bond conditions, such as no contact between the Defendant and the victim with a delay before the next Court hearing. A no contact provision can create a real hardship, often causing monetary (such as the cost for the Defendant to live in a hotel or elsewhere), emotional, and child care issues.
A victim is usually issued a subpoena or other Court order to appear in Court to testify. A lawyer can never ethically tell a witness, or anyone else, to disobey a Court order. Telling a witness to not come to Court could be interpreted to be a criminal act, such as Obstruction of Justice. The failure of a victim to appear in Court sometimes results in a dismissal of the case. On some occasions the Prosecutor or city attorney asks the Court to sign a material witness warrant that allows law enforcement to arrest the victim in order to secure their presence for Court. On some occasions the Court will issue an order to show cause against the victim to explain why he or she should not be held in Contempt of Court for failing to appear. The punishment for Contempt of Court can result in no sanction, a fine, incarceration, or a fine and incarceration – the determination of which is at the discretion of the Judge.
A victim can avoid testifying if he or she has a valid privilege that is asserted at Court. A victim can assert a 5th Amendment privilege if his or her response could incriminate them. Examples of occasions when it may be valid to assert the 5th Amendment privilege include: a concern that the victim lied to the police and made or Filed a False Police Report; In Domestic Violence cases there may be a concern that the testimony could indicate that the victim was the aggressor, committed an Assault, committed a Battery, or otherwise committed a crime. The prosecution can sidestep this issue by offering the victim immunity to testify. However, Prosecutors are often reluctant to allow for immunity because it may compromise the value of the witness, and leave the Judge or jury with the impression that the victim has been given permission to be less than truthful. Although any witness is subject to prosecution for Perjury for lying under oath, Prosecutors do not pursue Perjury cases in many instances against victims for public policy reasons such as not wanting to discourage people from coming forward as witnesses. Other important privileges that are sometimes asserted include: Doctor/patient; Clergy/parishioner; Attorney/client; Spousal communications; etc. Privileges sometimes are not absolute. On occasion a Prosecutor will challenge the Defense to see if the privilege is legitimate. It is important to speak with an experienced criminal defense lawyer anytime the issue of privilege may be asserted.
Many victims do not realize that they have a legal right to retain a lawyer to defend or present their issues to the Prosecution and the Court. An experienced lawyer can do the following:
First, represent the interests of the victim, which sometimes are contrary to, or not properly treated by a Prosecutor or City Attorney;
Second, review the case in order to see if a privilege is applicable. If the privilege is applicable the experienced criminal defense attorney can make sure that the privilege is properly asserted;
Third, help prepare a victim to testify a preliminary examination or trial when applicable;
Fourth, negotiate with the Prosecutor or City Attorney as to the resolution of the case;
Fifth, address the position of the victim with the Court, and deliver a victim impact statement if the Defendant is convicted. Depending upon the circumstances, the experienced lawyer can advocate for leniency or a severe sentence. The experienced lawyer can address conditions of sentence concerning the Defendant that may be of importance to the victim, such as no contact provisions, tether, work release, restitution, etc.
Sixth, pursue proper, full restitution;
Seventh, help protect victim’s rights under the William Van Regenmorter Crime Victim’s Rights Act (MCL 780.751 et seq) when applicable;
Eighth, explore civil remedies which may be available, such as a civil lawsuit for damages or obtaining a Personal Protection Order.
Ninth, help make the experience of having to appear in Court less intimidating and frightening.