Who Decides Whether to Charge a Sex Crime in Michigan

In Michigan the prosecuting attorney decides whether a sex-crime charge is filed. A judge or magistrate "shall not issue a warrant or summons for other than a minor offense unless an authorization in writing allowing the issuance of the warrant or summons is filed" and signed by the prosecuting attorney.^[1] The same subsection adds "or unless security for costs is filed"; how that alternative is used was not researched for this guide.^[1] The person who reported does not make that decision and cannot reverse it.^[2]

This page explains the steps between a police investigation and a filed charge, the legal standards at each step, and what the complainant's wishes count for.

The three decision-makers

Who	Role	Source
Police	Investigate and, in a sexual assault case, tell the victim on request whether the case has been submitted to the prosecuting attorney's office for review.	[7]
Prosecuting attorney	Signs the written authorization without which no warrant or summons may issue for anything other than a minor offense.	[1]
Judge or magistrate	Issues a warrant or summons on a proper complaint and a finding of probable cause to believe that the accused committed the alleged offense.	[4]

Step by step

1. The file goes to the prosecutor. A sexual assault victim may ask the investigating agency whether that has happened.^[7]
2. The prosecutor authorizes or declines. The authorization must be in writing and signed.^[1]
3. A complaint is sworn. The complaint must be sworn to before a magistrate or clerk.^[8]
4. A court finds cause. The statute speaks of "reasonable cause to believe that the individual accused in the complaint committed that offense"; the court rule uses "probable cause."^[8][4] The finding may be based on hearsay evidence and may rely on factual allegations in the complaint, affidavits, or sworn testimony.^[4]
5. A warrant or summons issues. The case then begins in district court.^[4][9]

What follows is described in the timeline of a felony CSC case. Because every degree of criminal sexual conduct is tried in circuit court, the steps after arraignment are the probable cause conference and the preliminary examination.^[9][10]

What standard does the prosecutor apply?

Michigan's statutes and court rules set a floor for the court, not a formula for the prosecutor. The floor is probable cause.^[4]

Above that floor the law leaves room for judgment. In United States v Lovasco the U.S. Supreme Court wrote that "prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt."^[11] That passage describes what the Constitution permits. It is not a Michigan charging rule, and each county prosecutor's office sets its own practice.

Evidence questions that come up at charging

No corroboration requirement

A widely held belief is that a "he said, she said" case cannot be charged. The statute says otherwise: "The testimony of a victim need not be corroborated in prosecutions under sections 520b to 520g."^[5] The model jury instruction is worded carefully. It says it is not necessary that there be evidence other than the complainant's testimony "if that testimony proves guilt beyond a reasonable doubt," and its use note calls it a permissive instruction.^[12]

The rule removes a legal barrier. It does not tell a prosecutor to charge or a jury to believe; witness credibility is a question for the fact-finder.^[13] See cases without other witnesses.

No resistance requirement

A victim need not resist the actor in a criminal sexual conduct prosecution.^[14]

Time since the event

The passage of time bars a charge only when the statute of limitations has run. First-degree criminal sexual conduct may be charged at any time.^[15] See Delayed reports and old allegations.

A polygraph

The polygraph statute gives a defendant accused of criminal sexual conduct the right to a test on request, but contains no provision on what a prosecutor must do with a result.^[16][17] See Polygraphs in CSC cases.

What the complainant's wishes count for

The Court of Appeals put the rule this way in People v Williams (2001): a crime victim may not "determine whether [the Penal C]ode has been violated or whether the prosecution of a crime should go forward or be dismissed."^[2] That cuts both ways. A complainant cannot require a charge, and cannot withdraw one.

The law does give the complainant a voice.

• A constitutional right to confer. The Michigan Constitution gives crime victims the right to confer with the prosecution, along with the right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.^[18]
• Consultation before a deal. Before finalizing any negotiation that may result in a dismissal, plea or sentence bargain, or pretrial diversion, the prosecuting attorney must offer the victim the opportunity to consult, to obtain the victim's views about the disposition of the prosecution.^[6]
• Information from police. On request, the investigating agency must tell a sexual assault victim the status of the case and, if it has been closed, the documented reason for closure, subject to the conditions in the statute.^[7]

Consultation is a right to be heard, and the decision stays with the prosecutor.^[6][2] Plea negotiations are covered in Plea agreements in CSC cases, and victims' rights in court in Privacy and rights of victims in sex-crime cases. The sister guide discusses the same rule in domestic cases in Can the victim drop the charges?

If the complainant's account changes

A recantation does not by law end a prosecution. In People v Morrow (1995) the Court of Appeals said: "It is the province of the jury to determine which of the victim's accounts is the truth, and there is no abuse of power in the prosecutor relying upon and arguing for the victim's earlier sworn testimony in support of the criminal charges against defendant."^[19]

A separate statute makes it a crime to intentionally make a false report of a crime to police knowing it is false; a false report of a felony is itself a felony punishable by imprisonment for not more than 4 years, a fine of not more than $2,000, or both.^[20] That statute requires knowledge that the report was false. How courts test credibility, without assuming anything about either side, is the subject of When the allegation is false: how courts test credibility.

When the prosecutor declines, or changes course

Before a charge. The sources reviewed for this guide establish no formal procedure by which a complainant, or a person under investigation, can obtain review of a prosecutor's decision not to authorize a charge. A decision not to charge does not carry the finality of a verdict; the limitations period keeps running, and for first-degree criminal sexual conduct there is none.^[15]

After a preliminary examination. Here a statute applies. If the prosecuting attorney determines that an information (the charging document in circuit court) ought not be filed, the prosecutor must file a signed written statement of reasons in fact and in law with the clerk of the court.^[21] The court may examine the statement and the evidence, and if it is not satisfied, the prosecuting attorney "shall be directed by the court to file the proper information and bring the case to trial."^[21]

After charges are filed. A prosecutor cannot drop a case on his or her own say-so either. Under the statute on discontinuing an indictment, a prosecuting attorney may not enter a nolle prosequi (a formal abandonment of the charge), or discontinue or abandon the indictment, without stating the reasons on the record and without the leave of the court having jurisdiction to try the offense.^[3] The prosecutor's duty to offer the victim a chance to consult applies before any negotiation that may result in a dismissal is finalized.^[6]

Publicity at the charging stage

In a criminal sexual conduct prosecution, on the request of counsel, the victim or the accused, the magistrate must order that the names of the victim and the accused and the details of the alleged offense be suppressed until the accused is arraigned on the information, the charge is dismissed, or the case is otherwise concluded, whichever occurs first.^[22] The order has to be requested, and it protects the accused's name as well as the complainant's.^[22]

What people get wrong

• "The victim pressed charges." The authorization is the prosecuting attorney's.^[1]
• "She can just drop it." A crime victim may not determine whether a prosecution goes forward or is dismissed.^[2]
• "No physical evidence means no case." The testimony of a victim need not be corroborated.^[5]
• "No charge after a few months means it is over." Prosecutors are under no duty to file as soon as probable cause exists, and the limitations statute allows a first-degree charge at any time and a fourth-degree charge for at least 10 years.^[11][15][23]
• "A charge means the judge already found him guilty." A warrant rests on probable cause; a conviction requires proof beyond a reasonable doubt, and the model instructions tell jurors the defendant does not have to prove he or she was somewhere else.^[4][12][24]

For the stages that come before this decision, see How a sex-crime investigation works.