Accused of a Sex Offense in Michigan: First Steps and the Rules Behind Them

A person who learns of a sex offense allegation in Michigan is not yet a defendant, but several rules already apply. Michigan's witness statute applies whether or not a proceeding is pending, tampering with evidence to be offered in a present or future official proceeding is a felony, and a person's own statement offered against that person is not hearsay under the Rules of Evidence.^[1][2][4]

This page sets out those rules in five steps, with the source for each, and links to the guides that explain the law in more depth. It is general legal information. It does not tell any reader what to do in a particular case; that is the role of a lawyer who knows the facts.

Step 1: Know the rules on contact with the complainant and witnesses

Michigan's witness statute, MCL 750.122, has three separate prohibitions.^[8][9][10]

• Anything of value. A person shall not give, offer to give, or promise anything of value to an individual to discourage any individual from attending, testifying or giving information at a present or future official proceeding, to influence any individual's testimony, or to encourage any individual to avoid legal process, withhold testimony or testify falsely.^[8]
• Threat or intimidation. A person shall not, by threat or intimidation, discourage or attempt to discourage an individual from attending, testifying or giving information, influence or attempt to influence testimony, or encourage or attempt to encourage an individual to avoid legal process, withhold testimony or testify falsely.^[9]
• Interference. A person shall not willfully impede, interfere with, prevent or obstruct, or attempt to do so, the ability of a witness to attend, testify or provide information in or for a present or future official proceeding.^[10]

The statute applies regardless of whether an official proceeding actually takes place or is pending, and regardless of whether the individual has been subpoenaed, if the person knows or has reason to know the other person could be a witness at any official proceeding.^[1] By those words it is not limited to the period after a charge is filed.^[1]

A violation is a felony punishable by up to 4 years; by up to 10 years if committed in a criminal case for which the maximum term of imprisonment is more than 10 years or which is punishable by life or any term of years; and by up to 15 years if the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[11] First-degree criminal sexual conduct (CSC) is punishable by life or any term of years, and second- and third-degree CSC by up to 15 years.^[12][13] Which penalty tier applies in a given case is decided by the court. A separate subsection makes it a felony punishable by up to 10 years to retaliate, attempt to retaliate, or threaten to retaliate against another person for having been a witness in an official proceeding.^[14]

A second statute covers the investigation stage directly. MCL 750.483a(3) prohibits giving or promising anything of value to any person, or threatening or intimidating any person, to influence a person's statement to a police officer conducting a lawful investigation of a crime.^[15] The same section prohibits retaliating or attempting to retaliate against another person for having reported or attempted to report a crime committed or attempted by another person, where "retaliate" means committing or attempting a crime against any person or threatening to kill or injure any person or to cause property damage.^[16]

MCL 750.122(4) states an affirmative defense "under subsections (1) and (3)," for which the defendant has the burden of proof by a preponderance of the evidence: that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully.^[17] That is all the subsection says. It describes something a person who has already been charged must prove in court; it is not worded as permission to contact a complainant or a witness, and it does not name the interference prohibition in subsection (6).^[17] A no-contact condition of release is a separate court order with its own consequences (Step 5).^[6][7]

These statutes use the words "a person," so they are not limited to the person under investigation.^[8][9][10] The position of relatives and friends is covered in When a family member is accused.

Step 2: Know the rule on evidence

Under MCL 750.483a(5)(a), a person shall not knowingly and intentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding.^[2] The offense is a felony punishable by up to 4 years or a fine of up to $5,000, or both, and by up to 10 years or a fine of up to $20,000, or both, if committed in a criminal case for which the maximum term of imprisonment is more than 10 years or which is punishable by life or any term of years.^[2]

The words "present or future" matter: the statute is not limited to cases that have already been filed.^[2] The statute's verbs are remove, alter, conceal, destroy and tamper; keeping messages, photographs, accounts and devices exactly as they are is none of those.^[2] A Michigan lawyer is barred by the Rules of Professional Conduct from unlawfully altering, destroying or concealing material having potential evidentiary value, and from counseling or assisting another person to do so.^[18]

A Michigan search warrant may be issued to search for and seize property that is evidence of crime or criminal conduct.^[19] An officer executing a warrant must give the person from whom property was taken a copy of the warrant and a tabulation of what was seized, or leave copies at the place.^[20] The rules on phones and computers, including warrants and consent, are explained in Phone and computer searches and Digital evidence in sex crime cases.

Step 3: Know the rights that apply to statements

Three rules apply to statements about the allegation. This page states the rights; it does not suggest what anyone should say or not say.

1. The Michigan Constitution provides that no person shall be compelled in any criminal case to be a witness against himself.^[3]
2. Before questioning a person in custody, police must give warnings that include the right to remain silent, that anything said can be used against the person in court, the right to the presence of an attorney, and that an attorney will be appointed before questioning if the person cannot afford one and wants one.^[21] If the person indicates a wish to remain silent, the interrogation must cease, and if the person states that he or she wants an attorney, the interrogation must cease until an attorney is present.^[22]
3. Under the Michigan Rules of Evidence, a party's own statement offered against that party is not hearsay.^[4]

Miranda's warnings are tied to custodial interrogation, meaning questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.^[23] The opinion states that volunteered statements of any kind are not barred by the Fifth Amendment.^[24] When police interrogate a person in custodial detention about a major felony, a category that expressly includes third-degree CSC, the entire interrogation must be audiovisually recorded.^[25]

The evidence rule speaks of a statement "made by the party"; its text is not limited to statements made to police.^[4] The rule says such a statement is not hearsay; it does not say the statement is admissible, which depends on other rules.^[4] Michigan's eavesdropping statute does not prohibit eavesdropping or surveillance, not otherwise prohibited by law, by a peace officer or the officer's agent in the performance of the officer's duties.^[26] See When a detective calls and Pretext phone calls and recorded conversations.

Step 4: Understand when a lawyer becomes available

Anyone may consult a lawyer at any time. A person who consults a Michigan lawyer about possible representation is a "prospective client," and the lawyer may not use or reveal what was learned, with exceptions the rule lists, even if no representation follows.^[27]

The sources reviewed for this guide provide for a lawyer at public expense in two settings: the Miranda warnings before custodial questioning (Step 3) and the court case.^[21][5] None of them gives a person who is under investigation, but not in custody and not charged, a right to a lawyer at public expense. In a case under the felony court rules, at the arraignment on the warrant or complaint the court must advise the defendant of the right to a lawyer's assistance at all court proceedings and to a lawyer at public expense if the defendant wants one and is financially unable to retain one.^[5] The U.S. Supreme Court held in Rothgery v Gillespie County (2008) that a defendant's initial appearance before a magistrate judge, where the defendant learns the charge and his or her liberty is subject to restriction, marks the start of the adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.^[28] If a defendant pleads guilty or no contest or is found guilty, the court may impose the expenses of providing legal assistance to the defendant, so appointed counsel is not accurately described as free.^[29]

The options before charges, including the State Bar of Michigan's referral service, are set out in Do you need a lawyer before charges are filed?

Step 5: If a charge is filed, read the release order

A judge or magistrate may not issue a warrant or summons for other than a minor offense unless a written authorization signed by the prosecuting attorney is filed, or unless security for costs is filed.^[30] A crime victim does not decide whether a prosecution goes forward or is dismissed.^[31] How that decision is made is covered in Who decides to charge a sex crime.

All persons are bailable before conviction under the Michigan Constitution, but bail may be denied to a person charged with first-degree CSC when the proof is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.^[32]

A court may make release conditional on complying with any condition limiting or prohibiting contact with a named person, and may make that condition effective immediately, while the defendant is still in custody.^[6] When a court imposes conditions for the protection of named persons, it must tell the defendant the specific conditions and that a defendant who violates one will be subject to arrest without a warrant and may have bail forfeited or revoked and new conditions imposed, in addition to other penalties.^[7] A peace officer may arrest without a warrant on reasonable cause to believe the defendant is violating or has violated such a condition.^[33] A no-contact condition is the court's order; the sources reviewed give the person it protects no power to waive it, and a release decision is modified only by the court.^[34]

A release decision is changed by the court, on the motion of a party or on the court's own initiative.^[34] The details are in Bond in Michigan CSC cases, and the stages that follow are in the timeline of a felony CSC case.

What people commonly get wrong

"No arrest means no case." The U.S. Supreme Court has said that prosecutors are under no duty to file charges as soon as probable cause exists.^[35] A charge of first-degree CSC may be brought at any time.^[36] The periods for other offenses are in Statute of limitations for sex crimes.

"The complainant can withdraw it." The Sexual Assault Benchbook, citing the Court of Appeals, states that a crime victim may not determine whether the prosecution of a crime should go forward or be dismissed.^[31]

"The rules about witnesses start when I am charged." MCL 750.122 applies whether or not a proceeding is pending.^[1]

"A polygraph will end it." A defendant who allegedly has committed first- through fourth-degree CSC or assault with intent to commit CSC must be given a polygraph examination on request, but testimony about a defendant's polygraph examination is not admissible in a criminal prosecution.^[37][38] See Polygraph tests in CSC cases.

The companion page, Ten mistakes that make an investigation worse, takes each of these rules and states the legal consequence the sources attach to it.