At Prain Law, PLLC, we specifically concentrate our criminal defense practice on defending those accused of Criminal Sexual Conduct (CSC). Michigan Criminal Sexual Conduct Attorney Brian J. Prain has saved the lives and futures of countless clients with his skill and ability to stand and deliver in front of Juries all across the State of Michigan, earning NOT GUILTY verdict after NOT GUILTY verdict in CSC cases. So when it comes to Criminal Sexual Conduct, Prain Law knows a thing or two!
If you are facing Michigan Criminal Sexual Conduct charges, contact Prain Law, PLLC to find out how we can help you. We’d love to add you to our extensive and ever growing list of satisfied clients whose lives and futures have been saved, and who have been finally been relieved of the stressful burden of these awful allegations and looming Court dates - now peacefully enjoying life as it should be lived once again (imagine that).
In times past, audio and video evidence essentially revolved around various types of recording systems inside police stations, inside police cars, and on the officers' uniforms. It used to be that win a police officer arrived at a location where to investigate a scene or interview a witness or suspect, they would utilize a video system having a video camera pointing out the front windshield of their squad car, another video camera pointing toward the backseat of the squad car, and an on-person microphone on their uniform wirelessly connected to the rest of the system. Thus, where an officer left their car and went inside a home or other location, a video produced by a system like this might show a view looking out the front windshield of their cruiser with a steady image of someone's garage door or even the back of another police car while their microphone would capture only the audio but no video of their interactions inside. Only if these interactions occurred in view of either the forward-facing or rearward-facing cameras of the squad car would we be watching actual video of the officers and citizens as opposed to just audio.
And of course, for the Defense attorneys to even have possession of the videos in the first place as they should assumes that the law enforcement agency had the recording equipment installed to begin with, that it was functioning properly, that they actually chose to use it (typically, in accordance with a department policy or "general order"), that they properly retained the recordings afterwards, and finally, that they were actually properly produced by the Prosecution in response to a Defense Discovery Request after the Court case begins. But ask any criminal defense attorney and they’ll probably tell you that it is not uncommon for one or more of those things not to have happened, preventing them from receiving valuable evidence in a case, in whole or in part.
Those were the systems used in times past. Now more recently, we have seen the implementation of police "bodycams," often referred to in Michigan as "Body Worn Cameras," or "BWC" for short. Many people are aware of this nowadays due to pop-culture and the media. Bodycams are essentially a self-contained units worn on the officer's uniform that captures both audio and video in real-time of conversations and other officer actions. In a sense, bodycams have "swallowed-up" and integrated some of the separate components of the older systems.
As a law, practice concentrating specifically on defending those accused of Michigan Criminal Sexual Conduct charges, a question we sometimes hear is “Is there bodycam evidence in a Criminal Sexual Conduct case?”
The basic answer is, it depends. Criminal Sexual Conduct investigations certainly involve the use of bodycams from time to time, albeit much less frequently then other types of investigations, such as drunk driving and domestic cases where officers have either pulled someone over or are responding to a scene shortly after the fact while the involved parties are still present.
In contrast, CSC investigations sometimes involve a delay between the time the alleged victim claims the sexual assault occurred and when they formally state the allegation to authorities. In some cases of “delayed disclosure,“ this can involve a delay of many years or even decades. If the alleged victim of a CSC allegation is a minor, a complaint is often initiated by a parent, guardian, or other responsible adult by reaching out to law enforcement and/or Children's Protective Services (CPS) under non-emergency conditions (although that is not always the case). A child claiming to have been sexually abused may make such a claim to a teacher, counselor, or doctor. By law, professionals such as these have an obligation to make a report to authorities if they have a reasonable belief that alleged sexual abuse occurred, and these so-called "mandatory reporters" typically don't take chances and weigh in favor of reporting.
They may initiate such a report by contacting CPS, who in-turn will contact law enforcement. From there, both entities may conduct parallel investigations involving reaching out to parents, other adults, other children, and the alleged perpetrator to obtain statements. This is a great time to mention that if you have been accused of sexual assault or sexual abuse, it is recommended that you contact legal counsel immediately. These investigations can sometimes last weeks to months and may or may not lead to CSC charges being brought by the Prosecutors Office.
The point is, in a Criminal Sexual Conduct case, police interviews of various individuals are far more likely to be prearranged in a structured way over the course of time, as opposed to a police officer arriving on an emergency scene with lights flashing and sirens blaring. As a result, police interviews of the various involved parties typically occur in interview rooms at police departments at predetermined dates and times, more like an “appointment." The interview rooms where these conversations usually take place are most often already equipped with their own built-in audio and video recording equipment (just think of the interrogation rooms on an episode of "The First 48."). Thus, use of bodycams in these situations is unlikely.
The same is true when police are interrogating the suspect of Criminal Sexual Conduct allegations, either because the accused has agreed to appear voluntarily or perhaps after an arrest. Although it is not the subject of this article, please note that when someone is the suspect in a criminal investigation, they possess a 5th Amendment privilege not to make any statements or answer any questions, and most if not all criminal defense attorneys would agree that in just about every situation imaginable, it would be advisable to seek legal counsel before deciding to proceed with any interview. We suspect that most lawyers would tell their clients not to speak to police and can help their clients understand why this is the case. This is a topic where an accused person should seek legal advice.
Importantly, where a suspect is "interrogated" in a case of First Degree Criminal Sexual Conduct, MCL 750.520b, or Third Degree Criminal Sexual Conduct, MCL 750.520d (both defined as “major felonies“), Michigan has a law, MCL 763.8, requiring an audiovisual recording of that interrogation which meets certain requirements if the interrogation is "custodial" (which is a complex definition in and of itself), and if the department has recording equipment that is operable and accesible. If police fail to do this properly, the accused person may be entitled to a special jury instruction at trial that helps to jury to weigh this failure in the accused's favor.
In the case of an alleged victim of CSC who is a minor, absent unusual circumstances, they'd likely be interviewed at a special place designated for conducting "forensic interviews" of children, often known as a “Child Advocacy Center ("CAC"). A few examples of this are "CARE House of Oakland County," "CARE House of Macomb County," "Kids Talk of Wayne County," "Small Talk of Ingham County," and others. At these centers, the child will be interviewed by a trained professional applying the Michigan DHHS Forensic Interviewing Protocol. Under the Protocol, audiovisual recording of the interview is highly suggested as a best practice, and most if not all of these centers are up to speed and video recording these interviews. How and when these interview videos can be viewed or released to the accused or others is governed by law and subject to special protective conditions. Defense lawyers handling Michigan CSC charges should be very familiar with this. Again, no bodycam video here.
So the bottom line is, the nature and structure of Criminal Sexual Conduct investigations makes it less likely that bodycam evidence will be created than in the case of other types of criminal charges.
However, this is not to say that bodycam evidence never becomes a part of a CSC case. Here are a few examples of where police body cam evidence might still be obtained in a Michigan Criminal sexual conduct case:
Bodycam recording could be utilized when, for example, an alleged victim of Criminal Sexual Conduct who is an adult physically walks into the front lobby of the police station to formally make a report. The officer working the desk may have a conversation with them, and may utilize their bodycam to record it. If that person is later taken to an interview room, an officer or Detective could use their bodycam there, but will more likely rely on the stationary equipment in the room.
Bodycam recordings of police interviews with other citizen witnesses might be utilized when a patrol officer, rather than a Detective, is sent to someone’s home for other location to interview that person. Again, this is a less-common circumstance, but it might be done we’re time is of the essence, where attempts to reach the person by telephone have failed, or where the person has a disability or other condition making it difficult for them to personally appear at the station.
In a very, very limited number of circumstances, we have seen a patrol officer sent to the home of a suspect where they knocked on the door and did an impromptu interrogation of that suspect who did not exercise their right to remain silent and thus spoke to the officer.
Unbeknownst to them, the suspect may have an active Warrant for their arrest for Criminal Sexual Conduct charges and may encounter a police officer out in public who runs their name through the system and discovers the Warrant. This could occur under many different circumstances, but most commonly a traffic stop. Obviously, this could lead to a discussion about the CSC allegations which could be captured on bodycam. Such a discussion likely would not amount to a full discussion about the merits of the allegations as most officers encountering the individual by chance will know little to nothing about the case, other than the fact that they can see the person has a Warrant to be arrested.
Or, a Warrant may be issued for Criminal Sexual Conduct charges and police specifically go and find the accused with the specific intent of arresting them on that Warrant. Sometimes, this involves many police cars and officers, so you can see the potential for statements to be captured on bodycam if the accused fails to exercise their right to remain silent.
We have also had cases where a Detective or other police officer will place telephone calls to the accused or other individuals who they believe might have information about the case - in other words, a telephone interview. What we have seen recently is that instead of using other recording equipment (like a pocket recorder) if they choose to record the conversation at all (which is a whole other topic), they now sometimes simply turn on their bodycam and put the phone on speaker, essentially using it as an audio recorder.
These are just a few examples that serve as exceptions to the general rule that bodycams are not often part of Criminal Sexual Conduct investigations. Most law enforcement agencies have department policies or "general orders" on how and when to use bodycams and other recording equipment, including retention of the recordings.
Aside from just department policy, there is actually law governing bodycams (Body-Worn Camera). Michigan has a law known as the Law Enforcement Body-Worn Camera Privacy Act, MCL 780.316 et seq. Under Section (6) law, police have obligations under certain circumstances to "retain audio and video recordings that are the subject of an ongoing criminal or internal investigation, or an ongoing criminal prosecution or civil action, until the completion of the ongoing investigation or legal proceeding." However, sometimes police are sometimes still unable to produce BWC videos that once existed, for whatever reason. A skilled Defense attorney will know about this law, how it may apply to a particular case, and the appropriate steps to take under these circumstances.