Michigan Criminal Sexual Conduct charges tend to go to jury trial more frequently than many other types of serious criminal charges, likely because there is so much at stake. If you or your loved one were going for a risky surgical procedure, you don't have to know everything the surgeon knows, but you'd want to have a general understanding of the basic stages of the procedure and how the surgeon defines success with each stage. Knowing those things would bring you comfort and confidence during a trying time...
So why is it that so many people accused of Criminal Sexual Conduct (CSC) walk into their trial with little clue what's about to happen? Is it because they don't want to think about it? Or is it more likely that their lawyers simply are not educating them?
Either way, the accused person needs to understand the stages of a Criminal Sexual Conduct jury trial, including the purpose of each stage, so that they are in the best position to help their lawyer to help them. So let’s take a moment and imagine that you’ve rejected all clear offers, and it’s the date that your trial is set to start.
You arrive in the empty courtroom and see that both your Criminal Sexual Conduct Attorney and the Prosecutor are getting their files, notes, exhibits, and computers set up and ready. Hopefully, your friends and family members who aren’t on either side's Witness List are there with you to observe the proceeding and to support you. The Attorneys will typically go back into the Judges chambers to discuss things like the Jury Instructions and any other matters that need to be handled. When the Judge officially takes the bench and Court is in session, the Court Reporter is present, the Clerk calls your case, “People of the State of Michigan versus…“, and all discussions are now “on the record."
Once on the record, the Judge typically asks the Attorneys “Are there any matters we need to address before we bring in jurors?” Even though most of the important pretrial matters and Motions, such as Rape Shield issues, expert witnesses, and DNA and scientific evidence have all been argued and decided well in advance of trial, it is not uncommon for either the prosecutor or your CSC defense lawyer to address whatever new or unresolved legal issues may be on their mind. Perhaps the Prosecution just disclosed to the defense a new photograph or other item of evidence they wish to use at trial which was not previously disclosed, and your Attorney may want to make the Court aware of this on the record and raise an objection to the items being used at trial. Or, maybe there’s a witness who failed to show up in response to a Subpoena, and the matter needs to be dealt with.
Finally, the Court Clerk, Court Officer, or Deputy calls out “All rise.“ Everyone in the courtroom stands up, turns around, and watches respectfully as anywhere between tens and hundreds of potential jurors enter the courtroom and completely fill the benches. Once everyone is seated, the Judge begins to read from chapter 1 of the Michigan Standard Criminal Jury Instructions ("M Crim JI"). These instructions explain to the jurors why they have been summoned to Court, the fact that you are the Defendant being charged with Criminal Sexual Conduct, and explains some basic procedures and legal principles, such as the presumption of innocence, the burden of proof, and the requirement of proof beyond a reasonable doubt. The Jurors are given an oath to answer all questions truthfully.
Meanwhile, you and your Attorney are not only listening to these instructions, but I also looking at printouts indicating each juror name, number, and certain basic information about each juror. Under ideal conditions, these lists and/or Juror Questionnaire’s are available for inspection at some point prior to the day trial begins.
After the basic introductory jury instructions, the Judge instructs the Clerk to randomly select juror numbers to fill typically 14 seats in the jury box - 12 jurors and two alternates, who will be randomly selected and excused after completion of all of the evidence and arguments, but before deliberations begin.
With 14 in the box and the remainder still packing the benches, so begins a process called "Voir Dire" ("to speak the truth"), or in simple terms, jury selection. Most often, the Judge reads a short list of standard questions to each potential juror in the box - basic demographic information and a few particulars to discover whether they’ve ever been a victim or know someone who’s been a victim of Criminal Sexual Conduct, or have been or know someone who has been accused of Criminal Sexual Conduct. Voir Dire practices very can vary significantly from one Judge to the next. Most Judges allow the Attorneys to get up and question the jurors, but sometimes the Judge conducts all of the questioning themselves.
The purpose of this questioning process called Voir Dire is to hopefully discover the 14 most unbiased and impartial jurors in the pool to stay on the case. During the process, jurors may be excused in one of two ways: either the Judge excuses a juror for legal reasons, such as having a bias in favor of one side or the other, knowing a party or witness, etc. These are called “challenges for cause,“ and there are an unlimited number of them, because they are based on legal reasons.
Or, one of the Attorneys may excuse a juror for any reason they wish (although certain Constitutional restrictions are placed on the Prosecution as to who they can exclude). These removals by the Attorneys at their discretion are called “preparatory challenges,“ and each side only has a limited number of them. For example, because First Degree Criminal Sexual Conduct, MCL 750.520b, is a “Capital offense,“ each side gets 12 peremptory challenges. For lesser degrees, such as Second Degree Criminal Sexual Conduct, MCL 750.520c, Third Degree Criminal Sexual Conduct, MCL 750.520d, and Fourth Degree Criminal Sexual Conduct, MCL 750.520e, there are far fewer peremptory challenges per side. Every time an individual juror is excused "for cause" or by peremptory challenge, another juror number is randomly selected to replace their empty seat in the box.
After each side and the judge exercise all of their remaining challenges and are satisfied with the remaining 14 people in the box, the Judge announces “Ladies gentlemen, we have a jury.“ The non-selected jurors still seated in the benches are now excused by the Court. As always, every time either a single juror / potential juror, or multiple / all jurors enter or exit the courtroom, everyone rises to show respect.
Now that the jury has been selected, they take another oath, this time, an oath to follow the law and properly execute their duties as jurors. The Judge then reads additional jury instructions, further describing legal principles and procedures. Note that it any given point, the Court may take breaks, or “recesses,“ and the Attorneys may be asked to approach the Judge's bench to address a matter outside the hearing of others. As you will see, this continues throughout the entire trial. Now that your jury has been selected, the Prosecution and Defense will give their Opening Statements.