One of the things that makes us successful Michigan criminal defense attorneys is the fact that we complete thorough investigations, and don’t merely rely on the police reports and discovery provided by prosecutors in determining the facts of the case. In these investigations, one of the most important aspects is making sure that we get a statement from the complaining witness, or alleged victim of the crime. Obtaining a statement from the complaining witness outside of that recorded in the police report can come in multiple ways.
First, in felony cases, we always encourage our clients not to waive their preliminary examination, because it gives them an opportunity to obtain a statement, under oath, of the complaining witness in the case. This will allow their defense attorney to elicit information from the alleged victim that the police did not seek or include in their reports. It may also create a situation where the complainant changes details in their story from the version that is documented in the police report or in other statements. The more times that a complainant makes a statement, the more likely it is that there will be inconsistencies in their story.
In misdemeanor cases, defendants are not entitled to a preliminary examination, so there may not be a chance in those cases to get the complaining witness under oath. However, there may be opportunities to file motions that require evidentiary hearings that would require testimony from the alleged victim. Taking those opportunities are important. In cases where opportunities do not exist to get the complainant’s testimony under oath, it is imperative that either the attorney directly interviews the complaining witness, or preferably, the attorney has the complainant interviewed by a private investigator.
We frequently, however, deal with situations where potential clients come to us, after already hiring counsel, and have been given various reasons for why these things were not done. Some attorneys will encourage their clients, in felony cases, to waive the preliminary examination, even though they have not reached an agreement to resolve the criminal case. The attorneys give various reasons for doing so, such as indicating that it is likely to be bound over to the circuit court anyway because the probable cause standard is so low, that it will anger the judge or the prosecutor if the preliminary examination is held, that additional charges may be added if the preliminary examination is held, or that they want to continue negotiations in the circuit court. None of those are valid reasons for waiving a preliminary examination, as a huge benefit can come from obtaining testimony from witnesses under oath at this hearing.
Other potential clients have reported that their current attorneys have refused to contact the alleged victim for an interview, either themselves or through an investigator, because they believed that doing so would violate the terms of the client’s bond. The attorneys are simply wrong. Frequently, a defendant’s bond will prohibit them from contacting an alleged victim, either themselves or through a third party. However, an attorney for a defendant who is accused of a crime has a duty to prepare the case and interview witnesses. It is not a violation of a defendant’s bond to have the attorney, or a private investigator hired by the attorney, contact the alleged victim to interview them with regard to the facts of the case. In fact, the attorney is duty-bound to do so.
Ensuring that your attorney makes every effort to obtain all possible statements from the complaining witness in a criminal case is critical to a successful defense. The criminal defense attorneys at Miel & Carr, PLC do this in each and every case. Completing a thorough investigation is often critical to winning. The discoveries that are made when a complainant is interviewed or placed under oath are often game-changers, and can provide the defendant in a criminal case with much-needed advantages.
If you are charged with a crime in Michigan, contact the attorneys at Miel & Carr, PLC at 616-773-2945 for a consultation.