When a Detective Calls About a Sex-Crime Allegation in Michigan

A call from a detective about a sexual misconduct allegation is a request, and the law gives the person called a set of rights that exist whether or not a charge is ever filed. The Michigan Constitution provides that no person shall be compelled in any criminal case to be a witness against himself.^[1] Miranda warnings, by contrast, are tied to custodial interrogation, and the opinion says general questioning of citizens in the fact-finding process is not affected by its holding.^[2][3]

This page sets out those rights and the rules that govern police questioning. It describes the law. It does not suggest what anyone should say or not say; that is a question for a lawyer who knows the facts, and Do you need a lawyer before charges are filed? explains how people find one at this stage.

What a detective's call is, legally

Before a charge, a detective is collecting information for a file that will go to the prosecuting attorney. By statute a warrant or summons for anything other than a minor offense may not issue unless a written authorization signed by the prosecuting attorney is filed, or unless security for costs is filed.^[8] The U.S. Supreme Court has said prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they can establish guilt beyond a reasonable doubt.^[9]

The statutes reviewed for this guide impose no duty on police to tell a person that an investigation is open or what the allegation is. Children's Protective Services works under a different rule: a department investigator who contacts a person about whom a report has been made must give his or her name, say whom he or she represents, and state the specific complaints or allegations made against that person.^[10] The two kinds of investigation can run together, as CPS investigations of sexual abuse explains.

The right against self-incrimination

The Michigan Constitution's text is short: "No person shall be compelled in any criminal case to be a witness against himself."^[1] The federal Fifth Amendment privilege is the one the U.S. Supreme Court protected in Miranda v Arizona, which bars the prosecution from using statements stemming from custodial interrogation unless procedural safeguards were used.^[2]

The same opinion draws a line. Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by the holding.^[3]

When Miranda warnings are required, and when they are not

Miranda defined custodial interrogation as "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."^[2] Both parts matter: custody, and interrogation.

Setting	What Miranda says
Questioning after a person has been taken into custody or otherwise significantly deprived of freedom of action	The four warnings are owed before any questioning.[2][11]
General on-the-scene questioning, or other general questioning of citizens in the fact-finding process	Not affected by the holding.[3]
A statement a person volunteers	Not barred by the Fifth Amendment.[3]

The four warnings are that the person has the right to remain silent, that anything said can be used against him or her in a court of law, that he or she has the right to the presence of an attorney, and that an attorney will be appointed before questioning if he or she cannot afford one and wants one.^[11]

Where a phone call, a conversation at a front door, or an interview a person drove to falls on that line is not answered by a statute. A court decides whether a given interview was custodial on the facts of that interview. A common misstatement is that a case "gets thrown out" if rights were never read. Miranda's own rule is narrower: it limits the prosecution's use of statements stemming from custodial interrogation.^[2]

What happens once a person in custody invokes a right

Miranda also describes what follows the warnings. If the individual indicates in any manner, at any time before or during questioning, that he or she wishes to remain silent, the interrogation must cease.^[7] If the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present, and the individual must have an opportunity to confer with the attorney and to have the attorney present during any later questioning.^[7]

Those passages concern a person in custody.^[7] Later decisions about how an invocation is expressed were not reviewed for this guide and are not described here.

The right to a lawyer

Two different sources of law use the word "counsel." Miranda's warning concerns the presence of an attorney during custodial questioning.^[11] The Michigan Constitution gives the accused "in every criminal prosecution" the right to have the assistance of counsel for his or her defense.^[12]

Nothing in either source prevents a person from consulting or hiring a lawyer before any charge exists. Neither source, as quoted here, states a right to a court-appointed lawyer for a person who has not been charged and is not in custody: Miranda's appointment warning is one of the warnings owed before custodial questioning, and the constitutional text speaks of "the accused" in a "criminal prosecution."^[11][12] When the right to counsel attaches was not researched for this guide. How appointed counsel works once a case is filed is covered in the sister guide's page on the right to a lawyer.

Statements are evidence

Under the Michigan Rules of Evidence, a statement offered against an opposing party that was made by that party in an individual capacity is not hearsay.^[4] In a criminal case the defendant is a party, so the hearsay rule does not keep out the defendant's own words when the prosecution offers them.

That rule is about hearsay only. It does not say every statement comes in; relevance rules and the constitutional rules above still apply. How texts and messages are treated is covered in Texts, apps and digital evidence. Conversations recorded by the other person or at police direction are covered in Recorded "pretext" calls and messages.

Michigan's interrogation-recording law

Since March 28, 2013, Michigan has had a recording statute for serious felonies.^[6] A law enforcement official interrogating an individual in custodial detention about the individual's involvement in a major felony must make a time-stamped, audiovisual recording of the entire interrogation, including the notification of Miranda rights.^[5] The section applies if the agency has audiovisual recording equipment that is operational or accessible as the statute provides, or once time periods set elsewhere in the chapter have expired, whichever occurs first.^[13]

• Which offenses. A "major felony" is a felony punishable by imprisonment for life, for life or any term of years, or for a statutory maximum of 20 years or more, or a violation of the third-degree criminal sexual conduct statute.^[6] The penalty for each degree is in the penalties chart.
• Which settings. "Custodial detention" means being in a place of detention because an official has told the individual he or she is under arrest, or because the individual reasonably could believe he or she is under an official's control and is not free to leave. A place of detention is a police station, correctional facility, prisoner holding facility or another governmental facility where a person may be held in connection with a criminal charge.^[14]
• Consent. The recording may be made without the consent or knowledge of, or despite the objection of, the individual being interrogated.^[15]
• Access. On a discovery request the prosecutor must provide a copy of the recorded statement to defense counsel, or to an unrepresented defendant.^[15]
• If no recording was made. An officer present may still testify about the statement if the court finds it otherwise admissible.^[16] The jury is then told that it is the law of this state to record such statements and that it may consider the absence of a recording.^[16]

The statute's definitions mean it does not reach an interview that is not custodial detention in a place of detention.^[14]

Other requests that may come with the call

A polygraph

A defendant alleged to have committed first- through fourth-degree criminal sexual conduct or assault with intent to commit it must be given a polygraph examination if he or she requests one.^[17] The statute speaks of a "defendant"; whether it gives a person who has not been charged an enforceable right to a test is not answered by the sources reviewed for this guide.^[17] The Court of Appeals has said testimony about a defendant's polygraph examination is not admissible in a criminal prosecution.^[18] See Polygraphs in CSC cases.

A phone or a DNA sample

A search conducted with consent is an established exception to the warrant and probable cause requirements, and when the person is not in custody the state must show the consent was voluntary and not the result of duress or coercion, express or implied.^[19] Without consent, a warrant issues on a sworn affidavit and a finding of probable cause.^[20] The DNA collection statute applies on arrest for a felony.^[21] See Phone and computer searches and DNA evidence.

Conduct that is a separate crime

Some reactions to an investigation are themselves offenses. Michigan's laws on interfering with witnesses are described in the sister guide's page on witness tampering and intimidation. This guide's pages for people under investigation, Accused of a sex offense: first steps and Ten mistakes that make an investigation worse, cover the rest.

If you are the person who reported

A detective's call to the person named in a report is one step in the process described in How a sex-crime investigation works. A sexual assault victim may ask the investigating agency for the current status of the case and whether it has been submitted to the prosecuting attorney for review; the agency must answer if the information is available and disclosure would not impede or compromise an ongoing investigation.^[22] Michigan's VOICES4 hotline can be reached by call or text at 1-855-864-2374.^[23]