Edward James Bruner, 58, an Ann Arbor Tae Kwan Do instructor, has been charged with the sexual molestation of a 12 year old child. Reportedly, the incident took place on I-94 near Chelsea.
Compounding Bruner's plight is a second claim of sexual abuse by another minor.
Though few details are available at this early juncture, the fact that the arraigning judge denied bail fills in blanks.
Generally, the average criminal defendant is entitled to bail and release from custody, pending trial. Under a related court rule, however, a judge may deny bail in cases involving criminal sexual conduct 1st degree (CCS 1).
CSC 1 is a felony carrying up to life in prison. It is applicable to a range of circumstances, including cases where the criminal defendant engaged in sexual penetration with a minor under the age of 13.
The strengths and weaknesses of Bruner's case will turn on the quality of the evidence. Those facts will emerge at the preliminary examination. That is an adversary proceeding which takes place in the district court.
At that hearing, the prosecutor is required to produce evidence in support of each of the necessary elements of the charged offense. In this case, the necessary elements of the offense are (1) sexual penetration (2) of a person under the age of 13. If even one element of the offense lacks a factual basis, technically, the judge must dismiss the case.
On the other hand, where each element is supported by at least some evidence, the judge is required to transfer the matter to the higher court for trial. In other words, at the lower court level, the hearing is not a trial, but a gate keeping function.
The criminal defense lawyer is entitled to cross examine and challenge the prosecution witnesses. Undermining credibility rarely results in a dismissal at the preliminary examination level, because the applicable burden of proof is so low. If the credibility of an indispensable witness is completely lacking, however, according to the Michigan court of appeals and the Michigan supreme court, a dismissal on that basis may be justified.
Because over 90% of all preliminary examinations in Michigan result in transference to the trial court, most criminal defense lawyers handling such cases use the preliminary examination for information gathering purposes. Another goal of the criminal defense lawyer is to lead the witnesses into making various statements that may prove helpful to the criminal defendant at trial.
The fact is, all testimony comes from the mouths of the witnesses (even most documents, photographs and things must be introduced into evidence through the testimony of knowledgeable witnesses).
Thus, the quality of the testimony at trial is critical. That is due in part to an instruction that the judge reads to the jury at the beginning and the end of every trial. In a nutshell, the judge informs the jury that they may reject witness testimony which the jury deems to be lacking in credibility.
The judge also gives the jury a list of circumstances that might indicate incredibility. Prior inconsistent statements are included in that list.
At trial, the lawyers possess written transcripts of the preliminary examination. Where a witness gives a different answer at trial to a question that he answered at the preliminary examination, the criminal defense lawyer is within his rights to highlight that discrepancy in closing arguments.
The prosecutor's burden of proof at trial is "beyond a reasonable doubt". A reasonable doubt is a doubt based on the facts or lack of facts adduced at trial. The size of the doubt is not mentioned in the jury instructions. If follows, therefore, that even a small doubt may suffice as a reasonable doubt--and compel a verdict of not guilty.
And as most prosecutors and criminal defense lawyers know, few things shout reasonable doubt like dubious witness testimony.
CHELSEA: Tae Kwon Do teacher accused of molesting child on I-94, Chelsea Standard Newspaper, January 20, 2011
