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xavierjd
xavierjd, Lawyer
Category: Criminal Law
Satisfied Customers: 3400
Experience:  Over 20 yrs experience in prosecution and defense work
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A few days ago I called the police on my fiance. We were both

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A few days ago I called the police on my fiance. We were both drinking and he tried to force my pants down. When the police showed up I wrote a statement he had stuck his fingers in my vagina so they arrested him for csc 1st. My problem now is that, now I do not think he did it. I had been drinking and I just don't think it happened. I think maybe I made it up in my head because thats what I thought he was going to do when he was trying to force my pants down. I want to talk to the prosecutor b/c I don't think he should be charged with this serious charge since I believe he is innocent. The prosecutor is acting like he is too busy to speak with me and I do not want to get charged with filing a false police report but I strongly believe he is innocent. Does the prosecutor need more evidence besides my two sentence statement to proceed if I testify that I do not remember and am not fully convinced that it happend? (I also told the detective I was not drinking that night).
Submitted: 5 years ago.
Category: Criminal Law
Expert:  xavierjd replied 5 years ago.

Thank you for using JustAnswer.com

 

If the prosecutor won't take your calls, write a letter and keep a copy of it for your records. Hopefully, if the police completed their investigation and presented it to the prosecutor, given the information you have related, no formal charges will be brought.

 

If your fiance was charge, because of the nature of the crime, if a victim advocate was appointed for you, then let s/he know about your conerns. If s/he won't talk by phone, again...write a letter and keep a copy.

 

Further, if your fiancee is charged, make sure that you attend any hearing dates that your fiance has. That way you can sign in when you get to court, and then ask that you be able to speak to the prosecutor about your issues.

 

If you are subpoeaned to appear in court, MAKE SURE YOU SHOW UP!! If you don't you could possibly be held in contempt of court, and also run the risk of having a bench warrant issued for your aarrest.

 

You are the complaining witness (victim). Your testimony will most likely be NECESSARY for the prosecution to sustain its burden of proving your fiance guilty of the offense "beyond a reasonable doubt." However, if there were other, independent witnesses that could testify as to your fiance's "bad conduct", then although your testimony would still be important, it would become less so because of the independent witness' testimony as to any alleged misconduct.

 

If by chance, after all attempts by you (and your fiancee's attorney if there are charges brought) to let the prosecutor know that you don't believe that he did anything to harm you, and it becomes necessary that your fiancee goes to trial, you will be called to testify. Again, YOU MUST show up for court. You will be placed under oath. The only thing you can do is tell the truth. If you do not believe that the incident happened, then you should say so. The prosecutor may call your 2 sentence statement into question, and try to impeach you on the stand...eg. "Were you lying then, or are you lying now?" Don't put yourself in the position of committing purjury. You can honestly say that you don't believe that the incident happened....you were drunk and said things while you were under the influence of alcohol that weren't true....the alcohol was talking, not you, and you made your "statement" while under the influence of alcohol.

 

Your fiancee's attorney could then ask you questions to rehabilitate any testimony that the prosecution poked holes in.

 

Also, the police officers who responded to the call will be put on the stand to testify. If they didn't see the incident, they can only testify as to what you said to them. They can't testify as to the actual facts. Also, while your 2 sentence statement may be able to be introduced into evidence, any police report is heresay.

 

If you were taken to the hospital and given a forensic exam/rape kit, that may be also be presented into evidence. Also, if you made any statements to a physician about your "condition", that may also be used by the prosecution.

 

But......all of the above being said, make sure that you keep trying by phone, letter or in person to be in contact with the prosecutor and/or victim advocate. Hopefully, you will be able to convince them of your position and the matter would be dismissed. Unfortunately, there is no guarantee.

 

Hopefully you won't have to worry about any of this because there is not enough evidence for the prosecution to even charge your fiancee.

 

Good Luck!

 

 

xavierjd, Lawyer
Category: Criminal Law
Satisfied Customers: 3400
Experience: Over 20 yrs experience in prosecution and defense work
xavierjd and 9 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.

Thank you for your help. I have another question. He has already been charged. I have heard that most defense attorneys waive the preliminary hearing. Should he insist on having a preliminary hearing since his csc charge would likely be dropped at that time? I have already been told I will have to testify if he has a preliminary. There are no witnesses besides myself, and there was no exam done by a physician. There is nothing except for my initial statement that I don't remember writing. Right now he has a bond set at $250,000 cash. I would like to make an appointment to meet with his lawyer, is that violating some kind of law?

Expert:  xavierjd replied 5 years ago.

At a preliminary hearing, the prosecution must prove probable cause to believe that a crime is committed and probable cause to believe that he committed the crime.

 

Sometimes, with respect to sex crimes, the prosecutor may demand a preliminary hearing. This means that people can be locked into their testimony at the hearing, and it can be used at trial.

 

Unfortunately, even if your fiancee demands his exam, the charges MAY not be dismissed at that time if the prosecution proves enough evidence to the judge that the matter should go to trial. Your fiancee's attorney should advise your fiancee whether it is in his best interest to hold or waive the exam. Also, you can try to contact your fiancee's attorney. S/he will advise you if there is any problem that would prohibit him from speaking to you. If you do speak to your fiancee's attorney, he can advise you as to the pluses and minuses of holding a hearing, based on what your testimony would be. At a preliminary hearing, the burden of the prosecution is not very high.

 

If a preliminary exam is held, it is most likely that you would have to testify. If the testimony/evidence showed that nothing occured, his attorney may ask for a dismissal at that time. If there should be enough evidence for the judge to bind the matter over for trial, it will proceed to the next level.

 

Finally, the bond is high, but CSC I is a VERY SERIOUS crime. Your fiancee's attorney, if nothing else, can ask that at the bond be lowered. Whether the bond is lowered will be up to the judge, and depends on many things, including your fiancee's criminal history, work history, education, ties to the community, whether he is a flight risk, etc. A bond is set to insure a person's appearance in court.

 

 

 

Customer: replied 5 years ago.

Hi - thanks for your reply and I will submit your payment. So, you are saying that my statement "he forced my pants down and stuck his fingers in my vagina" alone could be enough evidence for the judge to bind it over to trial? There really is no other evidence besides that. I honestly am not certain at all that he did this. I am afraid that he did not do it .

 

Another lawyer had answered me that, without me being able to verify what I wrote in my statement that I would not be competent witness and the prosecutor would not have a "prima facie" case and would have to drop charges.

 

Now I feel that I am getting conflicting statements. Please help me - I feel terrible that he is in this situation when he may not have commited that act!

Expert:  xavierjd replied 5 years ago.

Any charge has to be backed up by evidence, including testimony. if there is no testimony or other evidence to back up the charge, the case will fall.

 

A "prima facie" case in terms at a preliminary exam means is there probable cause to believe that a crime was committed, and was there probable cause to believe that you committed the crime.

 

Playing devil's advocate.......you were sober enough to call 911 for help, so why weren't you sober enough to give a statement?

 

But.....if you can HONESTLY state at the hearing that it didn't happen, and there is not other evidence, the prosecutor or the judge most likely would have to dismiss the case.

 

But, remember..... if you do testify and you change your story from your statement, be prepared to be asked if you were lying then or now. You can say that you were too intoxicated at the time, you don't remember calling the police and that you honestly believe that it didn't happen. That is a matter of credibility....not necesarily competency. eg. whether the judge believes your testimony on the stand. If the case is dismissed, and the prosecutor feels that s/he has enough to charge you with filing a false police report, s/he could do so. But, I wouldn't worry about crossing that bridge yet. Sometimes, the prosecutor's bark (or threat to charge) is worse than his/her bite. eg. Do they REALLY want to go through all of the trouble of charging you?

 

I think that all of your leg work regarding the case will pay off for you. Again, keep on the prosecutor about the fact that you honestly don't believe an assault happened, and attempt to speak to your fiancee's lawyer.

 

If you are not sure if the assault occurred, is it more or less probable that it did? That's the question for the judge at the preliminary exam. Remember, the standard at the hearing is whether or not there is probable cause to believe a crime was committed, and whether or not the defendant committed the crime.

 

Again, GOOD LUCK!

 

 

 

 

xavierjd, Lawyer
Category: Criminal Law
Satisfied Customers: 3400
Experience: Over 20 yrs experience in prosecution and defense work
xavierjd and 9 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.

I believe it is much less probable that it occured. I would say I am 99% certain that it did not happen. When asked, I would have to give an honest answer as "I am fairly cretain that it did not occur." I wanted to ask you something else. Can they (the prosecutor), under Michigan law, charge me with filing a false police report if I did not intentionally file a false police report? It seemed very real to me at the time, but I think it is because I thought that was what he was going to do. But, after my head cleared, the more that I don't think he did.

 

I am not sure that I can bring up my intoxication that night because I already told the detective the next day that I had not been drinking. I don't know why :( This whole matter is so stressful. We live in a small town and the prosecutor has nothing better to do than go after every case as hard as possible.

Expert:  xavierjd replied 5 years ago.

Here is a link to the Michigan law. If you can't click directly onto it, you can copy and paste it into your browser

 

http://legislature.mi.gov/doc.aspx?mcl-750-411a

 

As the statute reads, there must be INTENT.

 

 

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