Michigan Criminal Lawyers Blog

Is it possible that wanting to learn more about your family tree and that of your ancestors could lead to the incarceration of loved ones? An April 27, 2018 article written by USA Today journalist Ashley May leads to that conclusion and has caught the attention of the criminal law community. To discuss the matter in greater detail, we have posed the question to members of the Michigan legal community to provide insight on the matter.

Scott Grabel is the founder of Grabel and Associates and has developed a reputation as having the top criminal defense firm in the state of Michigan. When asked about the possibility that a DNA test could lead to a criminal conviction, Grabel was quoted as saying, “There are a lot of companies that offer this service. When we review the “Golden State Killer” case we see that Joseph James DeAngelo was arrested after DNA was found due to a match from a DNA website. It’s interesting because when one gets their DNA done on one of these sites there is a possibility they assume the risk of loved ones being subjected to new prosecutions.”

Matthew McManus is the Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and has been heavily involved in criminal cases throughout the state. McManus stated, “We can view DNA sites in the same fashion as cell phone companies. With the cell phone industry, we see a situation where the company will generally attempt to not provide metadata that could be helpful to criminal prosecution. With DNA there is a strong possibility that someone could become a genetic informant and there would be no 4th Amendment protection afforded the defendant. The possibility of compromising one’s rights are present.”

The jailhouse call may be the most dangerous weapon to destroying an individual’s freedom. The call is one way that a criminal defendant can lose the protection of the attorney-client privilege and the United States Constitution. While the Michigan Rules of Professional Conduct will protect conversations between the attorney and their client and the 4th Amendment provides a reasonable expectation of privacy, any protection that the defendant has will be washed away once they make a call from jail. To discuss this issue in greater detail, we gathered commentary from several of the top criminal defense lawyers in the state of Michigan.

Scott Grabel is the founder of Grabel and Associates and has developed a reputation as running the top criminal defense firm within the state. Grabel spoke of how a criminal defendant can destroy their own case by not understanding the danger of the jailhouse call. Grabel was quoted as saying, “The expectation of privacy is forfeited when someone is incarcerated. A simple conversation can turn into a party admission that could destroy someone’s defense. Many prosecutors lay in wait for the jailhouse call to gain an advantage should a case go to trial. It is important that the client understands this upon retention. There are far too many lawyers that become careless in this regard.”

Matthew McManus is a Managing Member of Ann Arbor Legal in Ann Arbor, Michigan and provided insight when he said, “The lawyer needs to make a face-to-face interaction with the client to protect the 4th Amendment Rights that the client has. In law school we were taught that the client loses these rights once the jailhouse doors are shut but the face-to-face meeting still provides a strong level of protection. Making the trip to the jail and/or prison and doing a contact visit is what is required to fulfill your obligation of diligence.”

When a defense attorney takes on a capital case, one piece of ammunition that can sway the court is the polygraph examination. While the polygraph examination is believed to not be admissible, there are misconceptions about how and when to use the test. Today, we will break apart the concept of the polygraph and explain how the exam can be the difference between incarceration or freedom.

We start with an understanding of what the polygraph is. If we were to look up the term in Black’s Law Dictionary, we learn that a polygraph is defined as: a machine designed to detect and record changes in physiological characteristics, such as a person’s pulse and breathing rates, used especially as a lie detector. In essence, the polygraph is a key to tell the prosecution if a defendant is telling the truth and while the test is not admissible as a general rule, there are major exceptions that a strong criminal defense attorney should be aware of.

To begin, the polygraph may not be admissible at trial without a stipulation from all parties but it can be used by defense counsel to argue for a new trial and also can play a vital role at sentencing. More importantly, the polygraph can carry a great deal of leverage in the pretrial stages which can set the tone for the outcome of the case.

For those that practice criminal law, our profession has taken a new turn. Allegations from decades ago are showing up at the courthouse steps as the media is encouraging people to bring claims that would be deemed stale under normal circumstances. With that being said, the lack of physical evidence or eye witness testimony seems to be an issue that is being overlooked in recent prosecutions. One way to fight the issue of a frivolous prosecution is “The Stanaway Motion.”

While most lawyers in the field are not even familiar with this seldom used motion, the presence of the Stanaway case has provided a lot of power to the aggressive criminal defense attorney (People v. Stanaway, 446 Mich. 643 [1994]). The Stanaway case presents the question of whether, and under what circumstances, records of a psychologist, a sexual assault counselor, a social worker, or a juvenile diversion officer regarding a witness should be discoverable by the accused in a criminal trial. This means medical records of one that was a minor at the time of the allegation can potentially come into admissibility with a successful Stanaway motion. This presents an issue that can sway a judge and/or jury upon reviewing the psychological makeup of the complaining witness.

Scott Grabel is the Founder of Grabel and Associates and is the leader in criminal defense within the state of Michigan. Grabel has won many cases with strong “Stanaway Motions” and uses them whenever the issue is relevant. When asked about the Stanaway motion, Grabel stated, “The attorney has to walk a fine line when crafting the motion. In essence, the court is faced with a major dilemma: Do they breach the privilege of the alleged victim to protect the constitutional rights of the defendant? There will either be a privilege that is pierced or a constitutional right that is violated. We have to remember that the material within those documents could provide a solid defense and can also prevent against frivolous claims. When someone has their freedom at risk, the attorney has an obligation to use all of their resources in an ethical manner. This motion allows the attorney to complete that task.”

When people talk about the arraignment, there is a misconception that a defendant does not need an attorney to be at this stage of the proceedings. While the arraignment is our first introduction to the reaching the court house steps, the absence of an attorney can lead down the road of disaster. Today, we are going to discuss the topic of the arraignment and then provide commentary from three lawyers that also have served as educators in our profession to develop a greater understanding of the issue.

When we look up the topic of the arraignment in Black’s Law Dictionary, we find that the issue is defined as a formal reading of a criminal charging document in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea. In the law school classroom, the topic is not generally discussed in detail and until you take a Barbri course or listen to a Hugh Reed lecture while studying for the bar exam, there is not much said on the topic other than it is one of the 8 testable issues where the right to an attorney attaches. Reality differs greatly from the Michigan Bar Exam and while the Michigan Board of Bar Examiners will test on it, the courtroom will test the issue in far greater detail. Due to the misconception that the arraignment is not a pivotal topic, we decided to get insight from leaders in the criminal defense field.

Scott Grabel is the founder of Grabel and Associates and has developed a reputation for having the top criminal defense firm in the state of Michigan. In addition to being a leader in the field, Grabel has also served as an Adjunct Professor at Western Michigan University-Cooley Law School. Grabel stated, “The arraignment is the first step but it truly sets the tone for what is forthcoming. Quite often, we will visit a client in jail before even being retained because we want to let the court and the prosecutor know that we are here to protect our client’s constitutional rights. When the day of the arraignment comes, we have our notice of appearance and demand for discovery in and we are ready to argue for bond. If you’re not ready, the client will suffer.”