At Prain Law, PLLC, Michigan Criminal Sexual Conduct Attorney, we specifically concentrate on defending people accused of Criminal Sexual Conduct in Michigan. Therefore, even though we only take cases at the trial stage, whenever the Michigan Supreme Court or Michigan Court of Appeals decides a Criminal Sexual Conduct (CSC) case on appeal, we pay attention because it may affect how future CSC trials (and therefore the Motions, preparation, and other work leading up to a CSC trial) will be handled.
On October 14, 2021, the Michigan Court of Appeals issued an Unpublished Opinion in the case of People v. Todd Thomas Small, Docket No. 352306. Mr. Small was apparently convicted of two Counts of Second Degree Criminal Sexual Conduct, MCL 750.520c (a 15-year Felony) after a very short trial involving only two witnesses, the accuser (his daughter) and the Detective who was the Officer in Charge of the Investigation.
However, on October 14, 2021, the Michigan Court of Appeals reversed Mr. Small's Second Degree Criminal Sexual Conduct convictions and granted him a new trial because they found that Small was denied his Constitutional right to the effective assistance of his Attorney because his Attorney failed to effectively challenge the Detective's testimony on cross-examination where the Detective's testimony made it sound like Mr. Small had all but confessed to inappropriate "sexual contact" (which would amount to CSC Second Degree if he were guilty) while under interrogation when, in fact, he hadn't.
You can read the entire Court of Appeals Opinion in People v. Todd Thomas Small, the bottom line is that the Court of Appeals reversed Small's conviction when it became apparent to them that Small's Attorney failed to bring out what they found to be a wealth of material in a transcript of the actual interrogation because they felt that had the Attorney gone into these topics that they felt would have helped Mr. Small, the verdict in his case may have been different.
And while Mr. Small will be heading back to Court for a new trial, the point here is not to attack the decisions of Small's Attorney, whoever that may be. An Attorney has many calculations running through his or her mind during trial preparation and trial, and we will leave it to the Court of Appeals and Supreme Court to determine whether or not any Attorney has met the objective standard of reasonableness due to any person accused of Criminal Sexual Conduct or any other crime. For all we know, Small's Attorney may have had other considerations on their mind that caused them to Mae the decision they made and had the verdict gone the other way, perhaps their decisions may have been praised.
Rather, we believe the takeaway here is much broader . . .
Mr. Small never had to be in this position in the first place, because every person accused of a crime, whether it be Criminal Sexual Conduct 2nd Degree, any of the other Degrees of Criminal Sexual Conduct in Michigan, or any other crime in general, has a Fifth Amendment right to remain silent and not participate in police interrogation in the first place. Not to mention, if the accused chooses to exercise their right to remain silent, they don't have to worry that their silence will be used against them in Court to make them look guilty - the Prosecution cannot even bring it up.
If you read the entire Opinion in People v. Todd Thomas Small, you might even be thinking "Wait...a lot of the things that Small said to the Detective actually would have been helpful to his defense had his Attorney chosen to use them." And that may ultimately be true, but one must agree that at the time someone chooses to speak to police, they will ultimately be unable to have total control over what unfolds thereafter, including whether their Attorney will decide to (or be allowed by the Judge to) use it to their benefit in Court if they are later charged with Criminal Sexual Conduct.
So rather than professing to know whether it is absolutely the best choice for every accused person to exercise their right to remain silent and not speak to police, we will instead leave you with a statement made in 1949 by the U.S. Supreme Court in Watts v. Indiana when considering that it is the ultimately duty of a criminal defense attorney to protect his or her client above all other interests:
"Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."