Plea or Trial in a Michigan Domestic Violence Case: How to Think About the Decision

Whether to resolve a Michigan domestic violence charge by a plea or take it to trial is the defendant's decision, made after consulting a lawyer, and the points people weigh include how strong the evidence is on each element, what sentence is at stake either way, what exactly is being offered, which lasting consequences each outcome carries, and what rights a plea gives up.^[1][2] This page lays out six such factors. It does not recommend either course, because the answer depends on facts no general guide can know.

Whose decision it is

In a criminal case, a Michigan lawyer "shall abide by the client's decision, after consultation with the lawyer, with respect to a plea to be entered, whether to waive jury trial, and whether the client will testify."^[1] The lawyer's part is to inform: a lawyer must promptly pass on all proposed plea bargains and explain the matter well enough for the client to make an informed decision.^[8] For a noncitizen, that advice must include whether a plea carries a risk of deportation.^[9]

The court checks the same point. A judge may not accept a guilty or no-contest plea unless convinced it is understanding, voluntary and accurate, and must ask whether anyone has made promises or threats and whether pleading is the defendant's own choice.^[10][11]

What each path keeps and gives up

Question	Plea of guilty or no contest	Trial
Who decides guilt?	No one; there is no trial of any kind.[2]	A jury, or the judge if a jury is waived with the prosecutor's consent and the court's approval.[12][13]
Burden of proof	Given up along with the presumption of innocence.[2]	The prosecutor must prove each element beyond a reasonable doubt.[3]
Confronting witnesses	The right to call and cross-examine witnesses is waived.[2]	The defendant may question the witnesses and have the court order defense witnesses to appear.[14]
Silence	On a guilty plea the court establishes that the plea is accurate; on a no-contest plea it may not question the defendant about participation in the crime.[10][15]	The defendant may remain silent, and that silence may not be used against the defendant.[14]
Control over the result	Terms of an agreement are stated on the record or in a signed writing.[11]	The verdict is not negotiated; under the felony trial rule a jury verdict must be unanimous.[16]
Appeal	In a felony case, appeal is by application for leave rather than by right, and the plea may give up issues that could have been appealed after a trial.[17]	The warning the plea rule requires is about pleas; it describes issues that "would otherwise be appealable" after a conviction at trial.[17]

Factor 1: the evidence, element by element

For domestic assault the prosecutor must prove two things beyond a reasonable doubt: that the accused assaulted, or assaulted and battered, the complainant, and that the complainant was in one of the listed relationships with the accused.^[18] An injury is not required.^[19] The evidence is the starting point. On request the prosecutor must provide police reports, the defendant's own recorded statements and any exculpatory information, and discovery applies in misdemeanor cases.^[20][21]

Questions to work through with a lawyer:

• What can the prosecution use if the complaining witness does not testify or changes the account? Michigan evidence law offers several possible routes, each with its own requirements, among them statements to police under MCL 768.27c, which do not require the witness to be unavailable, and 911 calls offered as excited utterances or present sense impressions.^[22][23] An earlier unsworn statement that conflicts with trial testimony, on the other hand, goes to credibility and is not substantive evidence unless a hearsay exception applies.^[24]
• Are there earlier incidents? In a domestic violence case, evidence of the defendant's other acts of domestic violence is admissible for any relevant purpose, including to show propensity, unless it is excluded under Michigan Rule of Evidence 403; an act more than 10 years before the charged offense is inadmissible under that statute unless an exception applies.^[25][26][27]
• What did you say? Statements made in custodial interrogation without the required warnings and a waiver cannot be used.^[28] General on-the-scene questioning is outside that rule.^[29]
• Is there a defense? A defendant does not have to prove self-defense; once there is some evidence of it, the prosecutor must prove beyond a reasonable doubt that the defendant did not act in self-defense.^[30]

The underlying rules are in Evidence used in domestic violence cases, Statements to police under MCL 768.27c, Prior acts of domestic violence and Defenses.

Factor 2: sentencing exposure on each path

Start with the maximums. A first domestic assault carries up to 93 days in jail and a fine of up to $500; with one prior conviction, up to 1 year and $1,000; with two or more, it is a felony carrying up to 5 years and $5,000.^[31][32][33] A misdemeanor probation term can run up to 2 years, and jail of up to 12 months, but never more than the offense maximum, can be a condition of probation.^[34][35]

The next question is what is being offered. A court may not accept a plea to an offense other than the one charged without the prosecutor's consent.^[36] In a felony case a plea in exchange for a specified sentence can be withdrawn if the court declines to follow the agreement, but a prosecutor's mere sentence recommendation carries no such protection.^[37] Before any negotiation is final in a serious misdemeanor case, which includes domestic assault, the prosecutor must offer the victim the opportunity to consult, unless the defendant already pleaded guilty or no contest at the arraignment; the prosecutor, not the victim, has the authority to decide whether to prosecute.^[38][39]

No source reviewed for this guide describes how sentences after a trial compare with sentences after a plea in any particular court, so this guide says nothing about it.

Factor 3: what exactly the offer is

"A deal" can mean very different things, and the label matters less than the legal result.

1. A plea to the charge with a deferral under MCL 769.4a. The court may hold off entering a judgment of guilt and place the person on probation; if the terms of probation are fulfilled the case is discharged and dismissed without an adjudication of guilt.^[40][41] It requires the consent of the accused and of the prosecuting attorney, is available once, and still counts as a prior conviction for later domestic assault charges.^[40][41] If probation is violated the court may enter an adjudication of guilt, and for three kinds of violation, including a violation of a no-contact order, it must.^[42][43] See Should you take the deferral?
2. A plea to a different or reduced charge. This needs the prosecutor's consent.^[36] Whether it avoids a given consequence depends on the statute behind that consequence, not on the name of the offense (see Factor 4).
3. A delayed sentence. The court may delay sentencing for up to 1 year to give the defendant an opportunity to show eligibility for leniency.^[44] The charge remains pending, and the statute itself does not provide for dismissal at the end.^[45]
4. A "plea under advisement." No Michigan statute or court rule creating such a disposition for domestic assault was found; the court rules use that phrase only in the felony plea rule.^[46][47] If the term is used, ask what statute or agreement produces the promised result.

The range of results is described in Plea bargains in domestic violence cases and Possible outcomes.

Factor 4: consequences that outlast the sentence

These follow a conviction whether it comes from a plea or a verdict, which is why they belong in the comparison.

• Firearms, Michigan. A person convicted of a misdemeanor involving domestic violence may not possess a firearm or ammunition until 8 years after fines are paid, imprisonment served and probation completed.^[4][48] The listed offenses include domestic assault under MCL 750.81(2), and a local-ordinance conviction counts if it substantially corresponds or is specifically designated as domestic violence.^[49][50]
• Firearms, federal. The federal ban after a misdemeanor crime of domestic violence has no time limit, apart from a 5-year rule for a single conviction involving a dating relationship.^[51][5][6] Under United States v Hayes, a conviction under a general assault or battery law counts if the victim was in fact in a covered relationship.^[52]
• Later charges. A conviction, a completed deferral, and a conviction under a substantially corresponding city ordinance each count as a prior for the second- and third-offense penalties.^[41][53]
• Record. Domestic assault is excluded from automatic set-aside and falls under a 5-year waiting period for an application.^[54][55]
• Immigration. A noncitizen convicted of a "crime of domestic violence" after admission is deportable under federal law.^[56] That term has its own federal definition, built on the federal definition of a "crime of violence," and this guide does not say whether a particular Michigan conviction meets it.^[57] Michigan's plea rules do not list immigration consequences among the advice the judge must give.^[58]
• Family court and employment. Domestic violence is one of the best-interest factors in custody decisions; the factor refers to domestic violence, not to a conviction.^[59] A misdemeanor conviction under MCL 750.81 or 750.81a can lead to suspension of a teaching certificate.^[60] Other occupations are covered in Professional licenses and domestic violence.

The consequences above that depend on a conviction do not follow an acquittal, and they follow a conviction after trial just as they follow one after a plea. The custody factor is different, because it is not worded in terms of a conviction.^[59] A dismissal before trial leads to removal of the arrest record from the public criminal history database.^[61]

Factor 5: guilty or no contest

Under the felony plea rules a no-contest plea requires the court's consent.^[62] On a no-contest plea the court may not question the defendant about participation in the crime and determines the accuracy of the plea from other information.^[15] The differences that matter outside the criminal case are covered in Guilty vs. no-contest pleas.

Factor 6: time, bond conditions and conduct while the case is pending

While a case is pending, a release decision, including any no-contact condition, can be modified only by the court.^[63] Michigan has no fixed number of days within which a trial must start; speedy-trial claims are decided by balancing the length of and reasons for delay, the defendant's assertion of the right, and prejudice.^[64] A defendant held in jail on a misdemeanor for 28 days or more awaiting trial must be released on personal recognizance unless the court finds by clear and convincing evidence that the defendant is likely to fail to appear or to present a danger; some periods of delay are not counted.^[65]

Conduct during that time affects both paths. Violating bond conditions after a plea is accepted but before sentencing is "misconduct" under the felony plea rule and can cost the defendant the right to withdraw the plea if the court declines to follow a sentence agreement.^[66]

What people get wrong

"If the witness will not come, a trial is a sure thing." The prosecutor decides whether to proceed, and may have a basis to go forward without the witness.^[39][67] Willfully impeding or interfering with a witness's ability to attend or testify, or attempting to, is a felony under MCL 750.122.^[68][69]

"A plea to the city charge keeps it off the record for enhancement." A conviction under a local ordinance substantially corresponding to MCL 750.81 counts as a prior.^[53]

"A plea can always be withdrawn later." The right to withdraw exists until the court accepts the plea on the record.^[7]

"The judge will explain every consequence." The advice the plea rules require covers the maximum penalty, any mandatory minimum, and the trial rights being waived; the rules do not list immigration consequences.^[2][58]

A worksheet for the conversation with your lawyer

1. What is the weakest element of the prosecution's proof, and what evidence fills it?^[18]
2. If the complaining witness testifies consistently with the police report, what then? If not, what comes in anyway?^[22]
3. What is the exact offer, in writing, and which statute produces each promised result?^[11]
4. Under the offer and under a conviction after trial, what happens to firearms, immigration status, record, license and custody?^[4][56][59]
5. Is a jury or a bench trial realistic here, given that a jury waiver needs the prosecutor's consent?^[12]
6. Would I testify? That decision is also the client's.^[1]

What the trial itself looks like is covered in What happens at a domestic violence trial and Bench trial or jury trial.