Do You Need a Lawyer Before Sex Crime Charges Are Filed in Michigan?

No source reviewed for this guide requires a person under investigation to have a lawyer, and none prevents a person from consulting one at any point. What the sources do fix is when a person must be told about a lawyer at public expense: in a felony case the court rule requires that advice at the arraignment on the warrant or complaint, and Miranda requires a warning about an appointed attorney before custodial questioning.^[3][6]

This page explains what the sources say about counsel during an investigation, what a lawyer may and may not do at that stage, and the three routes to a lawyer: retaining one, using the State Bar of Michigan's referral service, and appointed counsel. It treats each as a full option. Whether to consult a lawyer, and when, is the reader's decision.

What rights to counsel exist before a charge?

Two different rights are involved, and they begin at different points.

• The trial right. The Michigan Constitution gives the accused in every criminal prosecution the right to the assistance of counsel for his or her defense.^[1] In Rothgery v Gillespie County the U.S. Supreme Court held that the Sixth Amendment right attaches at the defendant's initial appearance before a magistrate, where the defendant learns the charge and liberty is subject to restriction.^[2]
• The interrogation right. Before questioning a person in custody, police must warn that the person has the right to the presence of an attorney, and that if the person cannot afford one an attorney will be appointed before any questioning if the person so desires.^[6] If the person states that he or she wants an attorney, the interrogation must cease until an attorney is present.^[8]

Custodial interrogation means 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.^[9] The sources reviewed for this guide do not give a person who is under investigation, not in custody and not charged a lawyer at public expense. The routes open to a person in that position are described under "Three ways to find a lawyer" below.

Stage	What the sources say about counsel
Investigation, not in custody	The Michigan Constitution provides that no person shall be compelled in any criminal case to be a witness against himself; no source reviewed provides a lawyer at public expense at this stage.[10]
Custodial interrogation	Warnings must include the right to the presence of an attorney and to an appointed attorney before questioning.[6]
Arraignment on the warrant or complaint (felony rules)	The court must advise of the right to a lawyer at all court proceedings and to a lawyer at public expense if the defendant wants one and is financially unable to retain one.[3] An arrested person is entitled to the assistance of an attorney at arraignment unless the person makes an informed waiver or the court issues a personal bond and will not accept a plea at arraignment.[11]
Arraignment on a district-court offense	The defendant must be informed of the right to the assistance of an attorney at all court proceedings, including arraignment; an indigent defendant has a right to an appointed attorney whenever the offense charged requires on conviction a minimum term in jail or the court determines it might sentence to a term of incarceration, even if suspended.[5]
After a finding of eligibility	Counsel must be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.[12]

What may a lawyer do during an investigation?

The Rules of Professional Conduct and the statutes below describe a lawyer's duties in general terms; none of the passages quoted is limited to cases that have been charged.

• Keep the consultation confidential. A lawyer who has learned information from a prospective client shall not use or reveal it, with the exception the rule states, and a lawyer shall not knowingly reveal a confidence or secret of a client except as the rule permits.^[13] Communications between attorneys and their clients are privileged by statute when they were necessary to enable the attorney to serve as such.^[14]
• Explain the law that applies. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.^[15] In a sex offense investigation that can include the elements of the possible charges, the penalties, and consequences such as registration. The guides on criminal sexual conduct law and the penalties chart cover the same ground in general terms.
• Be present for questioning in custody. That is the right Miranda describes.^[6][8]
• Advise about a polygraph. A defendant who allegedly has committed first- through fourth-degree criminal sexual conduct or assault with intent to commit it must be given a polygraph examination on request, and the Sexual Assault Benchbook states that a defendant has the right to have counsel present during a polygraph that takes place after the Sixth Amendment right has attached.^[16][17] Testimony about a defendant's polygraph is not admissible in a criminal prosecution.^[18]
• Act within the limits of the witness statute. Subsections (1) and (3) of MCL 750.122 do not apply to the lawful conduct of an attorney in the performance of his or her duties, such as advising a client.^[19] The provision covers only lawful conduct by the attorney; it says nothing about a client or a client's family, and a lawyer is separately barred from offering a witness an inducement that is prohibited by law.^[19][20]

Whether a lawyer speaks to a detective or prosecutor for a client, arranges a surrender on a warrant, or gathers material during an investigation depends on the lawyer, the client's decisions and the case. Practice varies, and none of the sources reviewed states what effect any of those steps has on a charging decision.

What may a lawyer not do?

Decide whether charges are filed. 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.^[21] The Sexual Assault Benchbook, citing the Court of Appeals, states that a crime victim may not determine whether a prosecution should go forward or be dismissed; no source reviewed gives defense counsel that decision either.^[22] See Who decides to charge a sex crime.

Help with evidence or witnesses in a way the law forbids. A lawyer shall not unlawfully obstruct another party's access to evidence, unlawfully alter, destroy or conceal material having potential evidentiary value, counsel or assist another person to do so, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.^[20]

Make the client's decisions. In a criminal case the 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.^[23]

Promise a result. Nothing in the sources reviewed supports a prediction about what any investigation will produce, with or without counsel.

Three ways to find a lawyer

Retaining a lawyer

When a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.^[24] If a relative pays, the lawyer may accept that payment only if the client consents after consultation, there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship, and information relating to the representation is protected.^[24] A neutral list of things to ask is in Questions to ask a defense lawyer about a CSC case.

The State Bar of Michigan directory and referral service

The State Bar of Michigan offers a free online directory that lets a person search for lawyers accepting clients by practice area and geographic location. It also runs a Lawyer Referral Service in which a referral assistant matches a caller with an attorney who will provide an initial consultation; the State Bar charges an administrative fee for the referral and says the fee will be waived in some instances.^[25] This guide makes no statement about any lawyer found through any of the three routes. The service is described at lrs.michbar.org.

Appointed counsel

Michigan's indigent defense statute provides that all adults, except those appearing with retained counsel or those who have made an informed waiver of counsel, must be screened for eligibility, and that counsel must be assigned as soon as an indigent adult is determined to be eligible.^[12] The indigency determination must be made not later than the defendant's first appearance in court.^[26] The state commission's Standard 4 says the determination shall be made and counsel appointed as soon as the defendant's liberty is subject to restriction by a magistrate or judge, and that representation includes the arraignment on the complaint and warrant.^[27]

A defendant is considered indigent if unable, without substantial financial hardship to himself or herself or to dependents, to obtain competent, qualified legal representation on his or her own; the statute lists circumstances in which that hardship is rebuttably presumed.^[26] A defendant who does not fall below the statute's presumptive thresholds must be given a more rigorous screening that looks at his or her particular circumstances, and if a defendant is found partially indigent the local system determines the amount the defendant must contribute, subject to judicial review.^[26] The statute and the commission's indigency standard state their income presumptions separately; this page gives neither figure, and the local system applies them. Under the commission's standards there is no cost for requesting an indigency assessment, and an appointing authority cannot require an indigent defendant to contribute to the cost of the defense.^[28]

That is different from saying the lawyer is free. If a defendant pleads guilty or no contest, or is found guilty, the costs a court may impose at sentencing include the expenses of providing legal assistance to the defendant.^[7]

The statute lists principles that the commission must follow in setting minimum standards, including that defense counsel is provided sufficient time and a space where confidentiality is safeguarded for meetings with the client, that workload is controlled to permit effective representation, and that the same defense counsel continuously represents the client, although systems may exempt ministerial, nonsubstantive tasks and hearings.^[29] The commission's standards require appointed counsel to interview the client as soon as practicable, to conduct an independent investigation of the charges and offense as promptly as practicable, to request funds to retain an investigator when appropriate, and to request the assistance of experts where it is reasonably necessary.^[30] Standard 5 provides that the selection of lawyers and the payment for their services shall not be made by the judiciary or employees reporting to the judiciary.^[28] The sister guide's court-appointed lawyer vs. hiring a lawyer page compares the two routes in more detail.

What people commonly get wrong

"Asking for a lawyer can be used as proof of guilt." This page does not state a rule on that point, because the sources reviewed do not address it outside the Miranda setting, where a request for an attorney requires questioning to stop.^[8] It is a question for a lawyer.

"Appointed counsel is available as soon as police call." The felony court rule places the advice about a lawyer at public expense at the arraignment on the warrant or complaint, and the indigent defense statute speaks of a "criminal defendant."^[3][12]

"I make too much money to qualify." The statutory presumptions are not the only route; a defendant above them must be given a more rigorous screening, and partial indigency exists.^[26]

For the rules that apply whether or not a person has a lawyer, see Accused of a sex offense: first steps; for other organizations, see Resources for people accused and registrants.