Dismissal of Michigan Criminal Charge Due to Pre Arrest Delay

There are many instances when a person is arrested and charged with an offense years after a crime allegedly occurred.  Sometimes these persons serve time in jail or prison between the date of an alleged offense and the date that they are charged with that alleged offense.  This is troubling, especially in instances where the person would have been sentenced concurrently (serving the sentences at the same time) rather than consecutively (having the sentences stacked one after the other).

As a general rule, a Defendant does not have a speedy trial right to be arrested, and that speedy trial rights attach once the charge is filed against the Defendant.  The prosecution is prevented from going forward with a case if it is barred by the statute of limitations.

What can a Defendant pursue who falls into this gap in which a prosecution is delayed, but a prosecution is still lawful and actually pursued?  Generally, a Defendant will have to demonstrate to the court that he or she experienced actual and substantial prejudice results from the delay in his or her arrest on the charge.

Courts recognize that pre-arrest delay implicates important due process rights under the Michigan and United States Constitutions (see People v Cain, 238 Mich App 95 (1999).  In People v Woolfolk, 304 Mich App 450, the Michigan Court of Appeals determined that a pre arrest delay that causes substantial prejudice to a Defendant’s right to a fair trial and that was used to gain tactical advantage was deemed to be a violation of the Defendant’s due process rights.

However, just because there is a delay between the time of a offense and arrest it does not automatically equate to a denial of due process, because a Defendant does not have a right to a timely arrest.  If this issue is addressed in Court, a balancing test is applied by the Judge to determine if there was a violation of the Defendant’s due process rights.  Once the Defendant shows some prejudice, the prosecution has the opportunity that the reason for the delay sufficiently justified the alleged prejudice (see People v Adams, 232 Mich App 128 (1998).

In every case when this issue is presented the defense argues that because of the passage of time the memory of witnesses are not as good now as opposed to the time of the offense.  In some instances, there is the destruction of evidence, such as police car video or in store video that no longer is available.  In other cases, maybe there is a witness or witnesses that are no longer available because of death, illness, they moved away, or they cannot be located.  So in about every case it can be argue that there is some form of prejudice to the Defendant when delay occur.  However, in many cases the delay actually benefits the defense, and prejudice is minimal.  In other cases, this becomes a big issue.  The question becomes, how much prejudice is actually needed to arise to the level of a due process violation.  As previously stated, the prejudice must be both actual and substantial, and not just speculative or general.  Substantial prejudice basically means that the prejudice that exists meaningfully impairs the Defendant’s ability to defend the charge or charges in such a manner as the outcome of the proceedings was likely affected.

If this issue is addressed in Court, it is important for the Defendant to make a clear record as to why the delay impacted the case.  For example, if the defense argues that due to the delay there is no longer a surveillance video, the Court may find that this argument, without more, is a general statement and mere speculation.  The proof could be elicited by questioning a police officer about a statement in the police report about a video, or whether not producing a video is a routine practice by the law enforcement evidence.  However, even if the Defendant is able to establish that video evidence was destroyed, the question becomes how critical was the video to the case.  Can the defense establish that the video was exculpatory?

There is also a question of whether or not the delay was used by the prosecution to gain a tactical advantage.  In many of these cases the delay is due to manpower issues, or sometimes files fall between the cracks.  In these instances the Court may conclude that there was gamesmanship occurring.  However, the Court is likely to only consider this issue in its analysis only after it is established by the defense that there was actual and substantial prejudice due to the delay.  Even if you convince the Judge, there is still a chance that an Appellate Court panel of Judges may feel differently.

For great legal representation concerning all criminal law issues, contact attorney Daniel Hilf of Hilf & Hilf, PLC.

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