Pretrial procedures like arraignment and the bail decision process are the same for both misdemeanor and felony defendants, but later processes differ based on whether the defendant is accused of committing a felony or a misdemeanor.
Pretrial Detention and Bail
The first arraignment in district court is the hearing at which the judge determines whether the defendant can be released on bond or must be detained in advance of further proceedings. If bond is approved by the judge, the court will set the bail amount. “Posting a bond” means that the defendant, in exchange for being released back into the community, pledges to the court that he will appear in court when required and comply with any additional orders from the judge, such as refraining from certain activity or travel. “Bail” refers to the sum of money that a defendant may be asked to pay the court to ensure his return, if he can afford it. He will forfeit this money to the court if he does not appear as required and a warrant will be issued for his arrest. If he does follow all the requirements of the bond, he may either get the money back or the court may apply it towards the court costs, fees or fines that the defendant may owe after the trial concludes.
In Michigan, defendants may be offered four different types of bonds:
- A personal recognizance bond allows the defendant to be released in exchange for promising to return to court when required and requires no bail payment.
- A cash bond allows a defendant to obtain release from jail if he can pay the full amount of the bail set by the court.
- A 10-percent bond enables the defendant to be released if he can pay 10 percent of the total bail amount. If he fails to return to court when required, he will forfeit this amount and will have to also pay the remaining 90 percent.
- A surety bond introduces a third party to the process, a bondsman. A bondsman assumes the risk of the defendant’s failure to appear in court and promises to pay the bail if the defendant does not return. The bondsman could be a friend or relative who might pay the bail as a favor, or a commercial bondsman, who usually charges the defendant a percentage of the bail amount in return for this service.
Most offenses are “bailable,” meaning that if the defendant can provide enough collateral, or have someone provide it on his behalf, he will be able to obtain his release while awaiting trial or other proceedings. Only people charged with very serious crimes are denied bail. In fact, the Michigan Constitution enumerates nonbailable offenses, which are the crimes of murder and treason. Michigan court rules also state that judges can deny bail to defendants who committed a violent felony while on probation, parole or on pretrial release for another felony, to defendants with two other violent felony convictions within the last 15 years and to defendants are charged with first-degree criminal sexual conduct, armed robbery, kidnapping with intent to extort money or valuables.
Judges set different bail amounts for different defendants and crimes. State law requires that the bail amounts be sufficient to ensure compliance with the conditions of the bond, but not be excessive.146 are to take the defendant’s criminal history, financial resources and the nature of the offense into account when selecting the type of bond and amount of bail.
Pretrial procedures for misdemeanors
At a misdemeanor arraignment, conducted in district court, the defendant responds to the charges by pleading guilty, not guilty or no contest, which means that he does not admit guilt but is willing to be sentenced as though he had. If the defendant pleads guilty or no contest, the judge may immediately impose a sentence, or may schedule a sentencing hearing for a later date. Delaying sentencing allows for the probation department to prepare a presentencing report. A presentencing report contains information about the crime and the defendant’s background and recommends a sentence. If the defendant stands mute or pleads not guilty, the case will go to trial and the court will schedule a pretrial conference.
All misdemeanor trials begin with a pretrial conference. The conference is a meeting between a prosecutor and a defendant and his attorney, or just his attorney, to allow for “plea bargaining.” Plea bargaining is a process by which the prosecutor offers to drop a charge, reduce a charge or recommend a certain sentence to the judge in exchange for the defendant’s guilty or no contest plea, or for information or testimony on another defendant or case. If a plea deal is reached, the resulting “negotiated plea” usually means the case will not proceed to trial. Most criminal convictions are the result of negotiated pleas.[a]
Pretrial procedures for felonies
The defendant in a felony case does not enter a plea at the district court arraignment. Instead, plea bargaining happens after the arraignment in a pre-exam conference. If no deal is reached, the judge then conducts a preliminary examination, which is a “probable cause hearing” because the judge reviews testimony to ensure that a crime occurred and that there is enough evidence to support a felony charge against the defendant for that crime.[b] If there is, the judge transfers, or “binds over,” the case to circuit court, where the defendant is arraigned again and then enters a plea before proceeding to trial. If a judge determines there is not enough evidence to demonstrate that the defendant committed the charges against him, then the charges must be dismissed or revised to reflect the court’s finding.
A criminal trial is a legal proceeding in which a prosecutor, arguing on behalf of the people of Michigan, accuses the defendant of a crime and presents evidence to establish the defendant’s guilt beyond a reasonable doubt. The defendant, represented by himself or his attorney, is not required to prove his innocence or even present any evidence, although he has the opportunity to do both and to present competing evidence of his own.
Although both the prosecution and the defense are entitled to a jury trial, they may opt to allow the judge to assume the jury’s role as a “trier of fact” and decide the case. This is called a bench trial. If the parties opt for a jury trial, potential jurors are randomly selected from within the court’s geographic jurisdiction using the Secretary of State’s list of citizens with state-issued ID and summoned to the court for a process called “voir dire.” The prosecutor and defense attorney question the jurors and may request to have certain candidates removed from the pool if there is something objectionable about their background or beliefs as they relate to the case. When the attorneys accept enough candidates to complete a jury — 12 for felonies and six for misdemeanors — the judge administers an oath to the jurors and instructs them on the trial process.
The trial itself proceeds in the following manner:
- The prosecution gives an opening statement outlining its case and the evidence against the defendant;
- The defense gives an opening statement outlining its case, which may challenge the accuracy of the prosecutor’s evidence;
- The prosecution presents evidence and calls witnesses;
- The defense cross-examines the prosecution’s witnesses;
- The “people close their proofs” (the prosecutor indicates that he has presented his entire case);
- The defense presents evidence and calls witnesses, if it chooses to;
- The prosecutor cross-examines the defense witnesses;
- The defense rests;
- The prosecution may present additional witnesses or evidence to rebut those presented by the defense;
- The prosecution rests.
- The prosecution gives a closing statement summarizing the case against the defendant;
- The defense presents a closing statement to the jury summarizing its arguments;
- The prosecution may present a final argument as a rebuttal to the defense’s closing statement;
- The judge instructs the jury about the charged crime and the deliberation process;
- The jury deliberates and returns a verdict (which must be unanimous).
If the defendant is found not guilty, he is released. If he is found guilty of a misdemeanor, he may be immediately sentenced. Sentences for felonies are usually determined at a separate sentencing hearing. After the conviction has been finalized, the defendant has the right to appeal the verdict or the sentence to a higher court, as described in Chapter III.[c] If he does not file an appeal on time, he forfeits this right and must petition the court for permission to hear a belated appeal.
After the trial has concluded with a finding of the defendant’s guilt or a guilty or no contest plea has been negotiated, the judge will have the parties reconvene for a sentencing hearing, where the judge delivers the sentence. If the judge is merely approving a mutually agreed-upon sentence determined during plea bargaining, the hearing may only take a few minutes.[d] For more serious matters involving long periods of incarceration, however, the judge may hear arguments regarding the sentencing from the prosecutor, defense attorney, victims of the crime or the convict himself.[e]
At the conclusion of the hearing, the judge will impose the sentence, which may consist of fines, probation, time in jail or prison, or some combination thereof. Judges are also required to order the defendant to pay restitution to victims who have suffered financial damage as the result of his crime. Michigan trial courts are empowered to require criminal defendants to pay “costs,” which are a portion of the court’s operating expenses. These are only assessed when a conviction is secured and only assigned to convicts. The sum is usually an amount equal to the court’s total cost for handling felony cases divided by the number of felony defendants in a year.[f]
[a]For more information, see: Dylan Walsh, “Why U. S. Criminal Courts Are So Dependent on Plea Bargaining,” The Atlantic, May 2, 2017, https://perma.cc/PL8T-9M8S. Criminal trials can take weeks or even months, putting pressure on judges and prosecutors to resolve cases quickly using plea bargaining, which may take only a few hours. Plea bargaining affords both parties some control over the result, rather than dealing with the uncertainty of a trial. If no deal is reached, the case proceeds to trial.
[b]Defendants may waive their right to this hearing.
[c]This does not apply if the defendant pleads guilty, in which case he is generally not entitled to an appeal and must request permission to appeal if he wishes to have the conviction reviewed.
[d]The judge can reject the agreement, accept it with or without considering the presentencing report, or take it under advisement. The court is not bound to honor the plea agreement. MCR § 6.302.
Prosecutors obviously have limits on what they can charge because it has to be consistent with their duty to defend the public. But they could dismiss charges in exchange for testimony in another case. In this regard, they have a significant amount of discretion.
[e]Probation officers are required by law to conduct presentencing investigations for all felony convictions, which help judges make sentencing determinations. These reports include the probation agent’s evaluation of the offender, the circumstances of the offense, the offender’s personal and criminal history and the agent’s sentencing recommendation. “Pre-Sentence Investigation Reports” (Michigan Department of Corrections, 2018), https://perma.cc/359N-C7KJ.
[f]MCL § 769.1f. MCL § 769.1k(1)(b)(iii) states that court costs must be reasonably related to the cost of a felony case, but the specific costs of individual cases need not be separately calculated.