Police Required to Record Interrogation in Major Felonies

When we represent an individual accused of committing a major felony, we are mindful of the new statute in Michigan requiring police to record a custodial interrogation of that individual.  Although the statute took effect last March, some local law enforcement agencies have not been able to comply with the law due to funding limitations and budget cuts.

The express wording of the statute requires the police to make a time-stamped audio-visual recording of the entire custodial interrogation, including the Miranda warning component of the interrogation.  The statute also requires that equipment be utilized in this process that prevents editing or altering the original content of the recording.

When the police conduct a custodial interrogation for a major felony they are not required to secure the consent of the suspect, nor are they required to inform the suspect of the recording.  If the suspect objects to the recording, that is noted, and the interrogation continues unless the suspect invokes a right to have an attorney present.

Major felonies are defined in the new law as any felony that has life imprisonment, or a maximum punishment of 20-years; this includes Criminal Sexual Conduct in the 3rd degree [i.e. victim between age of 13 and 16].  In our experience with such cases, most interrogations have long been recorded.

Making a recording helps the system to the extent that such a recording makes compelling evidence at a criminal trial.  If the suspect confesses, then "the cloth is cut" as we say in the criminal defense bar.  When an accused's confession is recorded, and the criminal defense lawyer is unable to suppress the recording, a guilty plea usually results.

On the other hand, sometimes the recording depicts an individual ardently asserting their innocence, non-involvement, or an alibi.  Once produced, as required by the new statute, the defense attorney is entitled to a copy of the recorded statement.

If local law enforcement is unable to produce the major felony recording, either due to malfunctioning equipment [happens more than you would think] or because there is no equipment due to budget cuts, then the defendant is entitled to a jury instruction advising the jurors of the statutory requirement for a recording, and further advising jurors they can take the missing recording into account.

A more effective remedy, from the criminal defense perspective, is the preclusion of the substance of any unrecorded statement into evidence during the trial.  The best evidence is the actual recording of the accused's statement, not the officer's summary or re-telling of such a statement.

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Posted in: attorney,criminal defense lawyer,custodial interrogation,Michigan Penal Code,Miranda

Michigan Supreme Court Acknowledges an "Impossibility" Defense to Felony Child Support

This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.  

Just sayin; had they done so, those convictions also may have been reversed.

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Posted in: child support,divorce lawyer,felony child support,Judge Linda Hallmark,Michigan Penal Code,Michigan Supreme Court,Oakland Circuit Court,Selesa Likine

Michigan Senate Seeks to Repeal Adultery as Felony

State Senator Ron Jelinek (R - Berrien County) has introduced a bill in Lansing to repeal adultery as a crime. The bill, which has a companion in the Michigan House, has been referred to the Senate Judiciary Committee. The bill, expected to be presented for the Governor's signature sometime during this legislative session, could become law in 2009.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute was codified into the penal code back in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case coming out of Senator Jelinek's own Berrien County. The case, People v Hendrickson, stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union can supply the requisite evidence to support a conviction.

In the here and now of 2009, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

Senator Jelinek's proposed legislation seeks to align the penal code with the unfortunate reality of post-modern society. Immoral, but all to common, adultery has always posed the biggest threat to the traditional family unit. Adultery is a rarely charged felony, however, thus, it's persistent inclusion within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family courts.

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Posted in: adultery,Michigan Compiled Laws,Michigan Penal Code,Ron Jelinek