THE LEGAL SYSTEM CAN BE FILLED with confusing phrases and terms. This list should help you to understand that system a little better.
ABSTRACT OF CONVICTION
- A form sent by courts to the Michigan Department of Statereporting a person's conviction or adjudication for a traffic violation, or other "reportable offense" (e.g., drug crimes).
- 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). If the crime was a felony, the person could be charged with being an "accessory-after-the-fact". The facts could also support a charge of Conspiracy.
- A person who participates in the commission of a crime, other than the person actually doing to principal criminal act. This person may be charged with actual crime committed under an "aider or abettor" theory (gave aid or encouragement to the principal defendant(s)).
- when a criminal defendant is 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.
- 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.
- 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.
- actions contested by opposing parties.
- A person who makes out an affidavit.
- a written statement of fact that is verified by oath or affirmation before a notary public.
- Without denying the charge, the defendant raises extenuating or mitigating circumstances such as insanity, self-defense, or entrapmentto avoid civil or criminal responsibility. The defendant usually must prove any affirmative defense he/she raises. Court rules may require a defendant to notify the opponent before the trial that an affirmative defense will be raised.
- Someone authorized to act for another person (known as the "principal"). Violation of a principal-agent relationship is the core of an embezzlement.
- a "lack of presence" defense. Defendant need not prove that he was elsewhere when the crime happened; rather, a Prosecutor must disprove a claimed alibi (i.e., Prosecutor must prove beyond a reasonable doubt that the defendant was present).
- 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.
- 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.
- "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 formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
- 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 permission must be obtained from the higher court before the appeal may be filed. A party must seek permission to appeal when a final order has not been entered, when the appeal is not timely, 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 is filed, which 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.
- 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 individual.
- The party appealing a decision or judgment to a higher court.
- A court that reviews lower court decisions. Circuit Court serves as the appellate court for District Court cases. The Michigan Court of Appeals serves as the appellate court for Circuit Court and Probate Court cases. The Michigan Supreme Court serves as 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 what charge he is facing. The judge may also determine an appropriate bailand decide on a request for court-appointed counsel.
- An order issued by a judge or magistrate to a peace officer requiring the arrest of a named person.
ASSAULT [MCL 750.81]
- A&B 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.
- an unlawful act that places another person in reasonable apprehension of receiving an immediate battery. The defendant must have intended to injure the victim or make the victim reasonably fear being struck. An assault is intentional, not an accident.
- Note: The victim need not be actually injured for a "Simple Assault", but injuries can be circumstantial proof of higher levels of assaults. 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.
- Bondmoney paid to a court, by or on behalf of a criminal defendant, as security that, when released from jail, the defendant will appear at future hearings. 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.
- an intentional, unwanted and forceful/violent touching of another person, or something closely connected with that person.
- a trial held before a judge and without a jury.
- A court order commanding the defendant's (or a missing witness') arrest and appearance in court after the person had previously failed to appear for a hearing. A bench warrant could also be issued against a defendant for violating a court order, such as conditions of release or probation.
- a finding at a preliminary examinationthat sufficient 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 set include the seriousness of the charge, 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.
- Percent bondsrequire 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.
- Cash bondsrequire 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 posting the bond.
- Surety bonds are posted by a professional bondsman after being paid a non-refundable percentage of the full amount by the defendant.
- as in "breaking & entering" ... using some force to enter a building (opening a door, raising a window, taking screen off, etc.); damage need not result.
- a written statement submitted by the lawyer for each side in a case that explains to the judges why they should decide the case or a particular part of a case in favor of that lawyer's client.
BURDEN OF PROOF
- the duty to establish by 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 unrebutted or not contradicted.
- Probable cause~~~ facts and circumstance sufficient to convince a person of reasonable caution that an offense has been committed.
- Preponderance ~~~ 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 to the mind. 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 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 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.
- a crime punishable 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];
- 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];
- 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".
- 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)
- a method for striking a prospective juror. The Michigan Court Rules allow two types of juror challenges: for cause (unlimited number; when the juror is shown to be biased for or against a party, is related to a trial participant, etc.) and peremptory(limited number depending on the severity of the crime on trial). No reason need be announced for a peremptory challenge, although a purely racially-based challenge is not permitted.
- Judge's office.
CHARGE TO THE JURY
- A judge's instructions to a jury. They contain information on the laws relating to the case, definitions of legal terms, and explanations of procedures relevant to the jury's duties.
- In courts with two or more judges, one judge is selected as the chief judge, who has responsibilities as a court administrator, in addition to his/her court docket.
CHILD ABUSE [MCL 750.136b; MSA 28.331(2)]
- conduct toward an unemancipated child under 18 years of age by the parent, guardian or other person who cares for, has custody of or authority over the child. There are four degrees of child abuse:First Degree
(felony --- up to 15 years in prison) occurs when the defendant knowingly or intentionally causes serious physical harm (i.e., substantial physical disfigurement or impairment of a body organ or limb) or serious mental harm to a child.
(felony --- up to 4 years in prison) occurs when the defendant willfully abandons the child, fails to provide food, clothing or shelter necessary for the child's welfare, or commits a reckless act which results in serious physical/mental harm.
(high court misdemeanor --- up to 2 years in prison) occurs when the defendant knowingly or intentionally causes some physical harm to the child.
(misdemeanor --- up to 1 year in jail) occurs when the defendant abandons the child, or willfully fails to provide food, clothing or shelter necessary for the child's welfare, or commits a reckless act, which results in some physical harm to the child.
- NOTE:A defendant may raise a defense that his/her forceful actions were reasonable "parental discipline".
CHILD SEXUALLY ABUSIVE MATERIAL [1998 PA 35; MCL 750.145c]
- a 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.
- 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, domestic violence, 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 Courtoffice 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.
CIRCUIT COURT MISDEMEANOR
- An offense designated by the legislature as a misdemeanor, but punishable by more than one year in jail. It is processed in circuit court like a felony.
- indirect evidence that implies something occurred but does not directly prove it. For example, circumstantial evidence of embezzlement includes proof that the defendant-employee made several big-ticket purchases in cash around the time of the alleged embezzlement. [See also direct evidence.]
- a case between private litigants concerning personal wrongs, generally where the losing party must compensate the prevailing party with money or other property. Examples of civil cases include 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.
- a 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;
- after a formal hearing.
- 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 body of legal principles which derives its authority solely from usages and customs of 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 to be distinguished from "statutory law", which is enacted by a legislative body such as Congress or a state legislature.
- the document on which criminal misdemeanors are charged in District Court, as well as the initial charging document for felonies.
- upon conviction for multiple crimes, a criminal sentence served at the same time as another criminal sentence, rather than one after the other. [See also consecutive sentence.]
- 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.
- 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.]
- 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 750.157aCJI2d 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.
- Goods barred by law (e.g., specific weapons, or drugs prohibited by law, etc.).
- a judge or jury's decision that the accused person is guilty of the crime.
- "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.
- 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.
- a 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.
- legal counsel assigned by the court to represent an indigent criminal defendant. A court-appointed attorney is not necessarily a "free" attorney; the court can order that some or all of the attorney's bill be reimbursed. 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
- an "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. 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.
COURT OF CLAIMS
- a 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 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.
- a person who makes a word-for-word record (either through stenography/short-hand or audio/video recording) of what is said in court, and can produce a transcriptof the proceedings upon request. Michigan court reporters or recorders must be trained and certified.
- a 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 OUIL.
CRIMINAL SEXUAL CONDUCT 1st Degree CSC (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
the victim is incapacitated (physically helpless, mentally incapacitated or mentally defective)
personal injury + force/coercion
personal injury + victim incapacitated
defendant/actor is in the process of committing another felony
2nd Degree CSC (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 CSC (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
4th Degree CSC (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:
defendant works for the Department of Corrections and the victim is an inmate
Note:All persons convicted of CSC must register as a sex offender.
Note:No need for corroboration of victim's testimony or resistance by victim.
Note:A person can be charged and convicted of CSC on a spouse.
- the questioning of a witness by a party other than the one who called that witness to the stand.
- See Criminal Sexual Conduct
- 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 Personal Protection Order, and (as of 04/01/2002) an assault can be charged as Domestic Violence.
- a person who has been formally charged with committing a crime.
- Discussions held by the jury, after all evidence has been presented, to decide the outcome of a case.
- a crime committed by a minor under the age of 17. Juvenile delinquency offenses are prosecuted in the Family Division of Circuit Court.
- "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).
- an oral statement made before an officer authorized by law to administer oaths. Such statements 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.
- evidence that stands on its own to prove an alleged fact, such as 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.]
- the questioning of a witness by the party who first called the witness to the stand.
DISORDERLY CONDUCT [MCL 750.167]
- 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
Penalty: Misdemeanor --- up to 90 day and/or $100.
- a Juvenile Court hearing that is the equivalent of a "sentencing" in adult courts.
- An opinion written by an appellate judge explaining why he or shoe disagrees with the decision reached by the majority of judges considering the case.
- See also Concurring Opinion and Majority Opinion.
- all criminal cases, for persons 17 years or older, are started in the district court. It is 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 under $25,000, garnishments, evictions, foreclosures and other proceedings. This Court conducts initial arraignments, sets and accepts bond and conducts preliminary examinations in felony cases. 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.
- 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 withheld 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).
- Number assigned by the court's clerk to identify each case.
- Domestic violence is a learned pattern of physical, verbal, sexual and/or emotional behaviors in which one person in a relationship uses force and intimidation to dominate or control the other person. The partners may be married or not married; heterosexual, gay or lesbian; living together, separated or dating. Domestic violence occurs in all ages, races, genders and social classes.
- The violence takes many forms and can happen all the time or once in a while. Examples of domestic violence are:
- physical assault or abuse --- hitting, pushing, shoving, slapping, choking, punching, kicking, grabbing, beating, throwing her down, tripping, twisting arms, biting, using a weapon threatened physical harm
- sexual assault or abuse --- unwanted, forced sexual activity, making her do sexual things against her will, physically attacking the sexual parts of her body, etc.
- emotional abuse --- mind games, name-calling, put-downs, making the victim feel bad about herself
- jealousy --- a sign of possessiveness and lack of trust
- controlling behavior and forced isolation (from family or friends) --- controlling what the victim does, who the victim sees or talks to, where the victim goes, relocating to a remote area, etc.
- economic abuse --- preventing the victim from getting or holding a job, and controlling the purse-strings by withholding money, taking her earned money, giving her an allowance, making her ask for money, etc.
- An important step to help yourself or someone you know prevent or stop violence is recognizing the warning signs listed on the Violence Wheel.
- 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.
DRUNK DRIVING See "OUIL"
EMANCIPATION [1968 PA 293; MCL 722.1 et seq]
- Termination of the rights of the parents 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 to seek emancipation, but must demonstrate that he/she can manage his/her financial and social affairs (including but not limited to proof of employment or other means of support, and housing), 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 considered qualified "other means of support", and cannot be offered as 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 hearingon 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 such an order does not affect an obligation, responsibility, right, or interest that arose during the period of time 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]
- the core 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.
- on 1/1/1999, Michigan doubled the levels of Embezzlement to:
- under $200--- Misdemeanor --- up to 93 days and/or $500, or 3 times amount embezzled, whichever is greater
- at least $200 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
- at least $1,000 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
- "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 sit in panels of three judges, but may expand to a larger number in certain 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)
- 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.
Penalty: Felony --- up to 2 years &/or fines up to $5,000.
... 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 damages or $2,000.00, whichever is greater.
- information presented in testimony or documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other. [See also direct evidence and circumstantial evidence.]
- A court-made rule preventing illegally-obtained evidence from being used by the government in its case-in-chief against a criminal defendant. The rule is derived from the 4th and 5th Amendments to the US Constitution.
- Latin that means "by or for one party." Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.
- an 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 after the order is entered to give the other party a chance to be heard.
EXPUNGMENT [ADULTS: MCL 780.621, et. seq.; JUVENILES: MCL 712A.18e]
- a process where a conviction may be set aside.
EXTRADICT / EXTRADITION [1937 PA 144; MCL 780.1 et seq]
- The formal process of delivering a person found in one state to authorities in another state where that person has been accused or convicted of a crime.
- See the Uniform Criminal Extradition Act.
- beginning January 1, 1998, Michigan Circuit Courts operate a "Family Court" division (in addition to Civil and Criminal divisions). The Family Division will handle divorce, child custody, parenting time, paternity, adoption, child & spousal support, domestic violence (PPOs), juvenile delinquency, neglect and abuse, as well as 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 will 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 courtswill staff the Family Division. If two or more pending matters within the Family Court's jurisdiction involve the same family, they will be assigned to the same judge whenever practical.
Within certain broad guidelines, each circuit will decide how its Family Court will operate. There is no mandated number or percentage of the total Circuit and Probate bench that must be assigned to the Family Division; the number of judges assigned "shall reasonably reflect the caseload of that Family Division."
- a crime carrying more than one year possible incarceration.
FELONY FIREARM [MCL 750.227b]
- a crime committed when carrying or having in his possession a firearm at the time a felony is committed or attempted to be committed.
- Penalty: Felony --- mandatory 2 years (or 5 years for second offense) imprisonment consecutive to served before the term of imprisonment imposed for the felony or attempted felony conviction
FRIEND OF THE COURT
- The Friend of the Court is a division of the Circuit Court; there is at least one office for each County.
- The Friend of the Court is NOT a division of the Prosecuting Attorney's office.
- The Friend of the Court Act (1982 PA 294)makes the office responsible for: investigating, reporting and making recommendations to the Circuit Court on custody, parenting time ("visitation") and the amount of child support providing mediation sessions to resolve child custody and parenting time disagreements collecting, recording and sending out all support payments ordered by the Court initiating enforcement of all custody, support and parenting time ("visitation") orders entered by the Court.
- 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.
- a hearing in which a civil infraction is contested before a District 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.
- 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.
- 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.
- a 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.
GUARDIAN AD LITEM
- a person appointed by the court to protect the legal interests of an infant or 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.
- a 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.
- a statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered into evidence not merely to prove that the statement was made but to prove that it was true. Dozens of long-established exceptions exist to the general rule that hearsay statements are inadmissible in court; 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, etc.).
HIGH COURT MISDEMEANOR
- See Circuit Court Misdemeanor.
- A criminal jury that cannot reach a unanimous verdict.
H.Y.T.A. (Holmes Youthful Trainee Act) [ MCL 762.11, MCL 762.12, MCL 762.13, MCL 762.14]
- discretionary sentence where 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, be 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.
- 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.
- A court-approved agreement by a prosecutor to not prosecute a person, in return for providing criminal evidence against another person or party.
IMPAIRED DRIVING [MCL 257.625]
- a lesser-included offense to OUIL. A person driving a vehicle while visibly affected by alcohol. A driver is considered "impaired" with a blood-alcohol level of 0.08-0.09%.
- Penalty:Misdemeanor --- jail up to 90 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).
- the process of calling something into question, as in "impeaching the testimony of a witness." Impeachment generally challenges a witness' credibility with evidence of bias, prior inconsistent statements, etc.
- a formal accusation of a felony, issued by a grand juryafter considering evidence presented by a prosecutor.
- a 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 hearingand posting an appeal bond worth at least the amount of fines & costs for the charge.
- the document on which criminal felony charges are filed in Circuit Court after a Preliminary Examination bind-over or waiver.
- an order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Provisional, temporary, non-final orders and decrees of a court.
JOYRIDING (Unlawful Use of an Automobile) [MCL 750.414]
- taking or using an automobile 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.
Penalty: High Court Misdemeanor --- up to 2 years or $1,000.
- government official with authority to decide lawsuits brought before courts.
- the power of the court to 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. [See also venue.]
- persons selected according to law and sworn to inquire into and declare a verdict on matters of fact.
- a youth under the age of 17.
- until January 1, 1998, Juvenile Court was a division of the Probate Court, and was responsible for all juvenile delinquency offenses. After January 1, 1998, these cases are prosecuted in the Family Division of Circuit Court
KIDNAPPING [MCL 750.349]
- Penalty: Felony --- up to Life or any term of years.
- The unlawfully taking and carrying away or confinement of a person by force and against his/her will.
- 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.
- Penalty: Felony --- up to 366 days incarceration and/or $2,000 fine
- 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 rare, conditional plea. The judge is not a party to the plea 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.
- A question that instructs a witness how to answer, or suggests which answer is desired. These questions are usually prohibited on direct examination.
- the Law Enforcement Information Network. A computer network accessed by police. L.E.I.N. (pronounced "lean") maintains a database that includes active arrest warrants, active PPOs, felony and high misdemeanor convictions, etc.
- Used generally, this title means a judge. In Michigan, it is a 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.
- 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.
- Intent to commit a wrongful act without just cause or excuse. Evil intent, motive or purpose.
- can be a lesser-included offense to murder if 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 orintended to injure or commit an assault/battery. "Intent to kill" is not an element.
MARIHUANA / MARIJUANA
- a Schedule 4 controlled substance.
- The state of mind of the defendant that the prosecution must prove in order to establish criminal responsibility. Criminal intent. Some crimes require proof of a "specific intent" (i.e., in larcenies, the prosecutor must prove the defendant's specific intent to steal). Other "general intent" crimes require no proof of intent.
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 courts.
MICHIGAN RULES OF EVIDENCE (MRE)
- Rules adopted by the Michigan Supreme Court to govern admissibility of evidence in all courts.
- a youth under a law's age of majority. Procedurally, 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.
- A warning given by police before custodial interrogation. It advises the person that he does not have to talk to police, and his silence will not be held against him, and his right to legal counsel before talking to police.
- Refers to a US Supreme Court decision: Miranda v Arizona, 384 US 436(1966).
- a crime carrying maximum jail time of one year or less.
- Exception: a "high court" misdemeanor (e.g., Resisting/Obstructing a Police Officer) can carry up to 2 years in prison, but is not labeled a "felony". High-court misdemeanors are handled procedurally like a felony.
- 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: (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: (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:--- 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.
- 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 andfailed to use ordinary care to prevent injuring another when a reasonable person would have seen that serious injury would likely result.
NO CONTEST PLEA
- also known as a nolo contendereplea ... 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" 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 defendant is treated by a sentencing judge the same as if he was convicted via a guilty plea or trial verdict.
- a form filed by a prosecutor to dismiss the prosecution of a particular defendant. A "nol 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. This device may not be used to deny the defendant's constitutional right to a speedy trial. NOLO CONTENDERE
- Latin term meaning "I will not contest it.". See No Contest Plea.
- Taking exception to a statement or procedure in trial. Used to call the court's attention to improper evidence or procedure.
- Objection Overruled - a judge's rejection of an objection as invalid.
- Objection Sustained - support or agree with an objection. Used by the judge to indicate agreement with a motion or request.
180 Day Rule
- A rule that allows people who are in county jailsawaiting 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 prisoninmate be brought to trial in 180 days, or be dismissed with prejudice.
- a decision of a court made in writing.
- A local law or regulation enacted by the governing body of a municipality or county. It has no effect outside that village, city, township or county.
OUIL (Operating Under the Influence of Intoxicating Liquor) [MCL 257.625]
- commonly called "drunk driving". A person driving a vehicle while significantly or substantially affected by alcohol.
- Penalty: Misdemeanor (1st & 2nd offenses --- up to 90 days jail (1st offense) or 1 year (2nd offense); fines; community service; 6 points assessed on driving record; mandatory license suspension of at least 6 months (1st offense) or 1 year revocation (2ndoffense).
- Penalty: Felony (3rd conviction for OUIL or UBALin last 10 years) --- 1-5 years prison; fines; 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.
- the Prosecuting Attorneys Association of Michigan. PAAM is a voluntary association of Michigan's 83 elected prosecutors and their staffs, comprising over 700 prosecutors throughout Michigan. 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.
- Formerly called "visitation". The time a child spends with a non-custodial parent.
- the 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 sentence, unless he violates terms of his release. The parolee is under the supervision of a state parole officer during the parole period.
- establishing legal "fatherhood".
- knowingly making a material false statement while under oath to tell the truth.
PERSONAL PROTECTION ORDER [MCL 600.2950 - MCL 600.2950]
- an injunctive order to prevent reoccurrences of acts or threats of assault and harassment.
- 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 Delinquency Proceedings - JC04a01 and Child Protective Proceedings - JC04bforms, plus additional text pages of allegations (if needed).
- The person signing or filing a petition.
- the person who originally filed a court action.
- the defendant's response to a criminal charge (guilty, not guilty or nolo contendere).
PLEA AGREEMENT / BARGAIN
- an agreement between the Prosecutor and the defendant 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 unrelated 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 agree with verdict.
- See Personal Protection Order.
- a court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- Reversible error. Error committed during a trial serious enough to require an appellate court to reverse the judgment.
- a District Court evidentiary hearing for felonies where the Prosecutor 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.
- 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 petitionermay be required to determine if the juvenile should not be placed with his parents pending further action on the petition.
- 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.
- a scheduled meeting between the Prosecutor and defendant (or defendant's attorney), generally weeks before the trial date, to discuss plea bargains, trial issues, etc. The judge does not actively participate in misdemeanor pretrial conferences in district court, unless the meeting results in a plea. A circuit court judge may participate in a felony pretrial conference.
- Evidence that are 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.
PRIOR BAD ACT
- See MRE 404(b).
- 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 warrant-less arrest may be made, upon probable cause.
- has primary jurisdiction for cases involving wills, guardians and conservators, and mentally ill or developmentally disabled persons. After January 1, 1998, Probate Court judges may also be assigned to handle other cases assigned to the Family Division of Circuit Court, such as juvenile delinquencyoffenses, parental abuse/neglect actions, termination of parental rights, adoptions and name changes.
- There are 79 probate courts in Michigan; probate judges are elected for 6-year terms.
- a 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 many rules to follow. Some rules are standard (i.e., to not violate any more laws), while others are specific to the defendant or crime (i.e., alcohol counseling when convicted of OUIL). If the defendant violates any term of probation, the assigned probation officer (or the Prosecutor) can ask the sentencing judge to impose additional penalties.
- An official written directive from the court ordering that a defendant in a criminal case is sentenced to a term of probation. This document is signed by both the judge and the defendant, and includes all legal conditions (both standard condition and special conditions) with which the defendant must comply during probation, fines, costs, restitution, etc.
- Legal services provided to a client free of charge.
PRO PER / PRO SE
- a person who represents himself/herself in court without an attorney. The term comes from the Latin phrase in propria persona.
- The term Michigan uses for a Prosecutor.
- an 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 prosecutorsare known as "Prosecuting Attorneys". In other states they are called District Attorneys, State's Attorneys, County Attorneys, Commonwealth's Attorneys, or other titles.
- to nullify, void or declare invalid.
R&C See Receiving & Concealing Stolen Property.
- See Criminal Sexual Conduct.
- a 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.
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 that it was stolen, embezzled or converted.
- Michigan defines 3 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 has been previously convicted of (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 value.
- 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.
- 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.
- when an appellate court sends a case back to a lower court for further proceedings.
REPORTABLE JUVENILE OFFENSE
- 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.
RESISTING / OBSTRUCTING A POLICE OFFICER
- 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: "High court" misdemeanorpunishable by up to 2 years incarceration or a $1,000 fine.
- 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.
RETAIL FRAUD [MCL 750.356c & MCL 750.356d]
- stealing merchandise (items offered for sale to the public) from a store while the store is open for business. Retail Fraud also occurs when a defendant "price switches" or tries to get a fraudulent refund. Retail fraud is a theft crime requiring proof that the item was taken intentionally (not accidentally), with the intent to steal. There are currently two "degrees" of Retail Fraud: First Degree (when more than $100 in goods is stolen, or for repeat offenders) and Second Degree (when less than $100 in goods is stolen).
- on 1/1/1999, Michigan added another category to include three degrees of retail fraud:
- 3rd Degree (under $200 stolen):--- Misdemeanor --- up to 93 days and/or $500 fine (or 3x merchandise's value)
- 2nd Degree ($200 - under $1,000 stolen; or 3rd Degree with prior conviction):--- Misdemeanor --- up to 1 year and/or $2,000 fine (or 3x merchandise's value)
- 1st Degree ($1,000 or more stolen; or 2nd Degree with prior conviction): --- Felony --- up to 5 years and/or $10,000 fine (or 3x merchandise's value)
- a court order that a specific location may be searched for items which, if found, can be seized by the government for possible use in court as evidence.
- a 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 Prosecutor has the burden of disproving a defendant's self-defense claim beyond a reasonable doubt.
- the punishment ordered by a court for a defendant convicted of a crime.
- 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). "Prior Record Variables" (PRVs) and "Offense Variables" (OVs) are calculated and applied to a Sentencing Range Grid. A judge may "depart" from the sentening 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 www.sado.org/guidelines.htm
- 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) 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.
- Michigan's searchable database of adult sex offender registrantsis 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
- a court hearing held so a person can explain why (s)he should not be considered in violation of a specific court order.
- a conference between the judge and lawyers held out of earshot of the jury and spectators.
SMALL CLAIMS COURT
- a 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.
- 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 & MCL 750.411i]
- 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 is (i) 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.
Penalty: Felony --- 5 years and/or $10,000 fine; probation of at least five years.
- Definitions of key terms: Continuing harassment means repeated instances of un-consented conduct that would cause a reasonable person emotional distress, and that actually causes emotional distress.
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 contactmeans 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.
- NOTE: Stalking a minor is now a 5-year felony. Aggravated stalking of a minoris now a 10-year felony (eff. April 1, 1998).
- a party's right to make a legal claim, or to seek judicial enforcement of a right or duty.
- the 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 Lawand 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 their web site at www.michbar.org.
- An act declared to be a delinquency offense which can only be committed by a juvenile --- e.g., habitual truancy, running away from home, violating curfew.
- a law passed by a legislature.
STATUTE OF LIMITATIONS
- deadlines set by statute for filing criminal charges or civil lawsuits within a certain time after events occur that are the source of the charge or claim. The time limit on the right to seek relief in court.
- An agreement between opposing parties on any matter relating to the case, including case facts. Courts must approve stipulations to take legal effect.
- a 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
- a court order to produce documents. (Pronounced DOO-suhz TEE-kum.)
- Legal bar to admitting evidence at a trial or other court proceeding.
- the 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.
- A judge's decision to allow an objection or motion to prevail.
- See also overrule.
- evidence presented orally and under oath by witnesses during trials or other court proceedings.
- the official record of the testimony adduced in a trial or hearing.
- 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.
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. These prisoners are not eligible for placement in a corrections center or on electronic monitoring ("tether"). The law went into effect 12/15/1998.
- Based on People v Turner, 390 Mich 7 (1973), a hearing to determine whether a defendant was entrappedby law enforcement officials into committing an offense.
UBAL (Operating with an Unlawful Blood Alcohol Level) [MCL 257.625]
- commonly called per se drunk driving. A person must be operating a vehicle with at least a 0.10% blood-alcohol concentration. Unlike OUIL, it is irrelevant whether or not the driver is affected by the alcohol.
- Penalty: Identical to a conviction for OUIL.
UDAA (Unlawfully Driving Away an Automobile) [MCL 750.413]
- 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.
Penalty: Felony --- up to 5 years.
- To set aside. Example: a court may vacate an earlier order.
- the 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 jurisdictionalpowers ... 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.
- Decision of a jury or a judge on the issues submitted to the court for determination.
- a person or entity who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.
- the 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. This French term (pronounced "vwa dear") means "to speak the truth".
- 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 suppressan 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.
- 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 rightsand the defendant waived the rights, etc.
- a court order authorizing an arrest.
- 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.
- a 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.