Offices in East Lansing & Birmingham Michigan
What is Due Process?
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness.1 In California v. Trombetta,2 the United States Supreme Court articulated:
We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed what might loosely be called the area of constitutionally guaranteed access to evidence. Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.3
Does the Prosecutor Have a Duty to Turn Over Evidence?
In Brady v. Maryland,4 the United States Supreme Court held that suppression of material evidence by the Government that favors a citizen charged with a crime upon request amounts to a violation of the citizen’s fundamental due process rights regardless of the good or bad faith on the part of the Government.5
Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice…6
In United States v. Agurs,7 the Court went a step further and held that for the purposes of a citizen’s Fourteenth Amendment due process right to a fair trial, a prosecutor has a constitutional duty to turn over, even without request, exculpatory material to the defense. The issue was revisited in Arizona v. Youngblood,8 where the United States Supreme Court made a distinction between “material exculpatory evidence” and “potentially exculpatory evidence,” the latter imposing a requirement of a showing of bad faith on the part of the Government in failing to preserve the evidence.9
Does the Prosecutor Have a Duty to Preserve Material Exculpatory Evidence?
In California v. Trombetta,10 the United States Supreme Court held that the government violates a citizen’s due process rights where material exculpatory evidence is not preserved, which is “expected to play a significant role in the suspect’s defense.”11 This constitutional duty means:
that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.12
The destruction of material exculpatory evidence violates due process regardless of whether the government acted in bad faith.13
The United States Supreme Court in United States v. Bagley14 went into depth on the issue of materiality for the purposes of a due process violation.
Bagley’s touchstone of materiality is a reasonable probability of a different result, and the adjective is important. The question is not whether the citizen would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial.15
A violation as set forth in Brady v. Maryland (Brady violation) can be established “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”16 It is also important to note that once the reviewing court finds a constitutional error, it need not undergo further harmless-error review, as no Bagley error could be treated as harmless.17
Does the Government Have a Duty to Preserve Potentially Exculpatory Evidence?
The Government not only has a duty to preserve material exculpatory evidence, but also a duty to preserve potentially exculpatory evidence. “Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.”18
In nondisclosure cases, a court can grant the citizen a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing . . . the State’s most probative evidence.19
It amounts to a denial of the due process of law where a citizen can show bad faith on the part of the Government in failing to preserve potentially useful evidence.20 In People v Wallace,21 the Court of Appeals articulated:
Generally, absent intentional suppression or bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. Still, the government has the duty to preserve relevant evidence and the burden to explain nonproduction thereof. Where there was no effort made to preserve the evidence initially, this Court has remanded the matter to the trial court for a determination of the quality of the prosecutor’s conduct and the nature of the lost evidence. However, once bad faith on the part of the prosecution is shown, suppression is required. 22
How Does One Establish a Brady Violation?
There are three components of a Brady violation:
- The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;
- that evidence must have been suppressed by the State, either willfully or inadvertently; and
- prejudice must have ensued.23
Notably, impeachment evidence (evidence that impeaches the testimony of a Government witness), as well as exculpatory evidence, falls within the Brady rule.24 Impeachment evidence is evidence that harms a witness’s credibility. It “is evidence favorable to an accused, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.”25
For example in Giglio v. United States,26 the court held that due process requires a citizen have a new trial when the Government failed to disclose evidence relevant to the credibility of a witness whose testimony was an important issue in the case.
What Do the Michigan Court Rules Say Regarding Preservation of Evidence?
MCR 6.201(6) provides as follows:
(6) a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request. A party may request a hearing regarding any question of costs of reproduction. On good cause shown, the court may order that a party be given the opportunity to test without destruction any tangible physical evidence.
Here, the rule is clear. The court has the authority to grant inspection and testing of tangible physical evidence. Additionally, MCR 6.201 provides also that the court has discretion to enter an Order for a violation of the Court rule. Specifically it provides:
(J) Violation. If a party fails to comply with this rule, the court, in its discretion, may order the party to provide the discovery or permit the inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances. Parties are encouraged to bring questions of noncompliance before the court at the earliest opportunity. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. An order of the court under this section is reviewable only for abuse of discretion.
What is the Difference between a District Court and Circuit Court Criminal Case?
All criminal cases start off in District Court – misdemeanors stay in district court throughout the entire proceeding (with the exception of appeals), but felonies are ultimately bound over (transferred) to Circuit Court.
How Do Felonies Go From District Court to Circuit Court?
The mechanism by which a felony is bound over from district court to circuit court is called a Preliminary Examination.
What is a Preliminary Examination?
A preliminary examination is like a mini trial wherein the burden is on the Prosecutor to establish by probable cause that (1) a crime was committed and (2) that the accused committed the crime. The preliminary examination takes place before a judge who acts as the finder of fact and ultimately determines whether the Prosecutor has met his/her burden is establishing probable cause in order to bind the case over. The citizen shall be discharged when the Prosecutor fails to establish each element of the charged offense.
People v. King27 is the seminal case in which the Michigan Supreme Court established the duties of the Court at a preliminary examination. It is well established that in order for the Court to operate within its discretion to bind over the citizen at a preliminary examination, the Court has the duty to pass judgment on the weight and competency of the evidence, the credibility of the witnesses, and any defenses raised. The Court must consider the matter as a whole when reaching his decision, not solely the evidence presented relating to the charged offense.28
The preliminary examination tests the sufficiency of the Prosecutor’s case. While probable cause is a low standard, the preliminary examination can be a very important tool for the citizen to see the prosecution’s strengths and weaknesses, cross-examine the prosecution’s witnesses, and potentially have the case dismissed. Even where the district court binds the case over to circuit court, a citizen can file what is called a Motion to Quash the Bindover in Circuit Court wherein the citizen argues that the prosecutor did not meet his/her burden in establishing probable cause, which is why it is so important to hire an experienced attorney to perfect the record at the preliminary examination.
What if an Officer Did Not Read Me my Rights?
One of the more common questions we hear from a client is “What if the police did not read me my rights?” Typically when that question is asked, the client is referring to Miranda Warnings. The answer is that a police officer is only required to read an individual their Miranda warnings in certain situations and only when that individual is subjected to what is called “custodial interrogation.” Custodial interrogation is a legal term of art and is fact specific. Unlike how it sounds, it does not necessarily mean that a person has to be in traditional custody (i.e. under arrest) nor does it mean that an officer has to give Miranda warnings to anyone that they place under arrest. For these reasons, it is essential to hire an attorney that is practiced in the intricacies of what constitutes custodial interrogation.
What are Miranda Warnings and Why are they Important?
Miranda warnings are implicated as part of a citizen’s Fifth Amendment right against self-incrimination. The Fifth Amendment privilege against self-incrimination provides that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself…”29 One rationale in support of the privilege against self-incrimination is that an individual should not be exposed to “the cruel trilemma of self-accusation, perjury or contempt.”30 Therefore, a citizen must be offered a fourth choice, to remain silent.
“[T]he constitutional foundation underlying the privilege is the respect a government must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load,’ to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.”31
An individual’s constitutional rights are protected “only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.”32
In order to protect this fundamental right, the United States Supreme Court established in Miranda v. Arizona that “the prosecution may not use any statement, whether exculpatory or inculpatory, stemming from the custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”33
What Rights Do I Have?
Prior to any questioning of the accused, the accused must be advised “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and he has a right to the presence of an attorney.”34 The Court held such pre interrogation warnings are required when a citizen is subjected to a custodial interrogation “given the compulsion inherent in custodial surroundings.”35
What is the Remedy if An Officer Fails to Advise Me of My Miranda Warnings?
Unless the Prosecution demonstrates that an individual was advised of his/her Miranda warnings from the outset of the custodial interrogation, no evidence obtained as a result of the interrogation may be used against him/her at trial.36 When a person’s freedom of action is curtailed, certain procedural safeguards must be followed to insure that the citizen’s constitutional rights are “enforced against overzealous police practices,” such that the protections afforded by the United States Constitution do not become but a mere “form of words.”37
When Does an Officer Have to Advise Me of My Miranda Warnings?
Miranda Warnings are required when and individual is being subjected to custodial interrogation.
What Does it Mean to Be in Custody?
Courts look at the totality of the circumstances at the time of an interview to determine whether a citizen was in custody for the purpose of Fifth Amendment analysis.38 The Court articulated that “custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”39 The “inquiry centers around whether the [citizen] could have reasonably believed that he was not free to leave.”40 Courts have also considered other factors to determine whether a citizen is the subject of a custodial interrogation. Such factors include:
(1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during the questioning; and whether the suspect initiated contact with the police or voluntarily admitted the officers to the residence and acquiesced to their requests to answer some questions.41
The analysis is an objective one: “[a] policeman’s unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time”; rather, “the only relevant inquiry is how a reasonable [person] in the suspect’s position would have understood the situation.”42
What is Considered an Interrogation?
In Schmerber v. California, the Court held that the privilege extended only to evidence that was “testimonial and communicative in nature.”43 Only questioning that reflects “a measure of compulsion above and beyond that inherent in custody itself constitutes interrogation, the fruits of which may be received in evidence only after Miranda warnings have been given.”44 The questions must be “both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the ‘will’ of his examiner.”45 Miranda rights can be waived. It is the Government’s burden to establish a valid waiver in order for a statement that is the result of custodial interrogation to be admissible.
It is important to note that the inquiry surrounding whether a citizen’s statement is admissible at trial does not end with reading the suspect his Miranda rights. Regardless of whether warnings are given, if the court finds that the citizen’s statements were involuntarily made, the statements will be suppressed.46
As opposed to a Miranda violation where the citizen’s statements are held inadmissible in the Prosecutor’s case in chief, but may still be used for impeachment purposes, an involuntary statement is held inadmissible for all purposes. Not surprisingly, similar to aforementioned Fifth Amendment analysis the court applies a totality of the circumstances analysis to determine “whether a confession had been “made freely, voluntarily and without compulsion or inducement of any sort.”47 Long before Miranda was decided, the Court recognized the evils presented by involuntary confessions. However, Miranda provided additional procedural protections mandated by the United States Supreme Court to check the Government’s power over its citizens.
While a citizen should always refuse to make statements or answer questions posed to them by officers throughout the course of a criminal investigation, if statements are given, it is important to contact a skilled attorney to determine whether the statements were given in violation of Miranda, which could potentially suppress the statements.
Contact the Best Criminal Defense Attorneys in East Lansing & Birmingham Michigan
Our experienced criminal defense attorneys are ready to assist you with your legal needs and protect your legal rights in any type of criminal case. Contact our office for a free consultation, call our East Lansing office at 517-332-5900 or our Birmingham office at 248-549-0000.
Best Criminal Defense & Divorce Attorneys serving Ingham & Oakland County, Michigan
Abood Law Firm has been providing legal services throughout the state of Michigan since 1956. With offices in East Lansing and Birmingham, Abood Law Firm provides legal representation primarily in Ingham, Eaton, Clinton, Oakland, Macomb, and Wayne Counties. Specifically, Abood Law Firm specializes in matters of Criminal Defense, Criminal Expungements, Civil Litigation, Personal Injury, Civil Rights, and Family Law. Our attorneys are also considered to be amongst the top OWI, DUI and DWI lawyers in the State of Michigan. Abood Law Firm is experienced, aggressive, and knowledgeable and gets promising results for its clients. If you, or a loved one, has been charged with a criminal offense or are in a civil dispute, your choice of hiring an attorney is important. Call our office today for a free consultation and let us show you how we can provide you with all the protection you need.
The criminal defense and personal injury attorneys at the Abood Law Firm are happy to provide initial consultations at no charge to prospective clients, and are able to advise clients 365 days a year. Contact us today to see how Abood Law Firm in Birmingham and Lansing, MI can help you.