Criminal Procedure Monograph 6: Pretrial Motions—Third Edition

September-December 2009 Updates

Updates have been issued for Criminal Procedure Monograph 6. A summary of each update
appears below. The updates have been integrated into the website version of the monograph;
consequently, some of the page numbers may have changed. Clicking on the links below will
take you to the page(s) in the monograph where the updates appear. The text added or changed in
each update is underlined.

6.32 Motion in Limine—Impeachment of Defendant by His or Her Silence

The Michigan Supreme Court affirmed its decision in People v Borgne, 483 Mich 178 (2009)
(the prosecutor’s references to the defendant’s post-arrest, post-Miranda silence violated Doyle v
Ohio, 426 US 610 (1976), but did not amount to plain error requiring reversal). People v Borgne,
___ Mich ___ (2009). The Court also found that the defendant was unable to demonstrate that he
was prejudiced by his attorney’s failure to object to the Doyle error; therefore, he was not
entitled to reversal on the basis of ineffective assistance of counsel under Strickland v
Washington, 466 US 668 (1984). Borgne, ___ Mich at ___.

6.36 Motion to Suppress Evidence Seized Pursuant to a Defective Search

Warrant

Stale information cannot be used in making a probable cause determination. United States v
Frechette, 583 F3d 374, 377 (CA 6, 2009). In determining whether information is stale, the court
should consider the following factors: (1) the character of the crime (is it a chance encounter or
recurring conduct?); (2) the criminal (is he or she “nomadic or entrenched?”); (3) the thing to be
seized (is it “perishable and easily transferrable or of enduring utility to its holder?”); and (4) the
placed to be searched (is it a “mere criminal forum of convenience or [a] secure operational
base?”). Frechette, supra at 378. In Frechette, supra at 378-379, the court applied the above-
listed factors to conclude that 16-month-old evidence that the defendant subscribed to a child
pornography website was not stale, because the crime of child pornography is not fleeting; the
defendant lived in the same house for the time period at issue; child pornography images can
have an infinite life span; and the place to be searched was the defendant’s home.

6.41 Motion to Dismiss—Denial of Right to Speedy Trial

Delays occasioned by the prosecution’s successful pursuit of an interlocutory appeal are “‘taken
out of the calculation,’” and therefore, are not attributable to either party when determining
whether a defendant’s right to a speedy trial has been violated. People v Waclawski, ___ Mich
App ___, ___ (2009), quoting People v Missouri, 100 Mich App 310, 321 (1980).

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Previous updates issued since the April 2009 CD was released:

May-August 2009 Updates

6.19 Motion to Suppress Confession for Violation of Sixth Amendment Right to

Counsel

Critical stages of the proceedings, in part, include the preliminary examination, a pretrial lineup,
and the entry of a plea. Duncan v State of Michigan, 284 Mich App 246, 264 (2009).

A defendant’s Sixth Amendment right to counsel is protected by the “three layers of

prophylaxis” established by the United States Supreme Court to ensure that a defendant’s Fifth
Amendment rights are protected. Montejo v Louisiana, 556 US ___, ___ (2009).

(Michigan v Jackson, 475 US 625 (1986), was overruled by Montejo v Louisiana, 556 US ___,
___ (2009); therefore, references to Michigan v Jackson have been deleted from the text.)

6.21 Motion to Compel Discovery

A witness’s informal and mutual agreement with law enforcement officials and the prosecution
(that charges against the witness would be reduced in exchange for his testimony against the
defendant) constituted evidence favorable to the defendant because of its impeachment value and
should have been disclosed under Brady v Maryland, 373 US 83 (1963). Akrawi v Booker, 572
F3d 252, 263-264 (CA 6, 2009).

6.22 Motion to Disqualify Judge

Judicial disqualification on due process grounds may be warranted when an individual with an
interest in the outcome of a case has contributed an extraordinary amount of money to the
election campaign of one of the judges who will decide the case. Caperton v AT Massey Coal
Co, Inc, 556 US ___, ___ (2009).

6.23 Motion to Dismiss Because of Double Jeopardy—Successive Prosecutions

for the Same Offense

The United States and other countries are separate sovereigns; therefore, the Double Jeopardy
Clause does not bar successive prosecutions for the same course of conduct. United States v
Studabaker, 578 F3d 423, 430 (CA 6, 2009).

6.32 Motion in Limine—Impeachment of Defendant by His or Her Silence

People v Shafier, 277 Mich App 137 (2007), was reversed by People v Shafier, 483 Mich 205
(2009); therefore, the current reference to Shafier has been replaced. In Shafier, 483 Mich at 215-
219, reversal was required because the defendant was prejudiced by the prosecutor’s repeated

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references to the defendant’s post-arrest, post-Miranda silence as evidence of the defendant’s
guilt, and to impeach the defendant’s testimony that he was not guilty. Cf. People v Borgne, 483
Mich 178, 181 (2009), where the prosecution violated the defendant’s due process rights by
referring to his post-arrest, post-Miranda silence, but the violation did not amount to plain error
requiring reversal.

6.39 Motion for Severance or Joinder of Multiple Charges Against a Single

Defendant

Some of the text in this section has been deleted, as it relied on nonbinding cases and former
versions of MCR 6.120. MCR 6.120(B) permits joinder if offenses are related, i.e., if they
comprise the same conduct or transaction; a series of connected acts; or a series of acts
constituting parts of a single scheme or plan. See People v Williams, 483 Mich 226, 233 n 5, 235
(2009), where joinder was appropriate because the defendant’s two separate arrests were
“ongoing acts constituting parts of his overall scheme or plan to package cocaine for
distribution.”

6.43 Motion to Dismiss—Violation of 180-Day Rule

The trial court erred in dismissing the pending charges against the defendant, because the
prosecution commenced proceedings against the defendant within 180 days of receiving notice
from the Department of Corrections that the defendant was incarcerated, thereby satisfying the
requirements of MCL 780.131 (prisoner must be brought to trial within 180 days) and MCL
780.133 (dismissal required only if action has not been commenced within 180 days). People v
Davis, 283 Mich App 737, 743 (2009).

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2006–December 2009
Pretrial Motions
6
Part 1—General Requirements
6.1 Introduction....................................................................................................2
6.2 Time Requirements for Filing and Serving Written Motions ..........................2
6.3 When a Motion to Suppress Evidence May Be Made During Trial................3
6.4 Required Form of Written Motions.................................................................4
6.5 Requirements for Supporting Affidavits .........................................................5
6.6 When Evidentiary Hearings Must Be Conducted ..........................................6
6.7 Rules of Evidence, Burden of Proof, and Findings of Fact at
Evidentiary Hearings .....................................................................................7
6.8 Motions for Rehearing or Reconsideration ....................................................8

Part 2—Individual Motions

6.9 Introduction....................................................................................................9
6.10 Motion for Adjournment or Continuance........................................................9
6.11 Notice and Pleading Requirements for Asserting an Alibi Defense.............12
6.12 Motion to Dismiss for Delay in Arrest Resulting in Prejudice to Defendant .14
6.13 Motion to Reduce or Increase Bail ..............................................................16
6.14 Motion to Determine Defendant’s Competency to Stand Trial ....................18
6.15 Motion for Compulsory Process of a Defense Witness or Appointment
of an Expert Witness at Public Expense......................................................25
6.16 Motion to Suppress Evidence Obtained as a Result of an Illegal
Prearraignment Detention ...........................................................................27
6.17 Motion to Suppress an Involuntary Confession ...........................................28
6.18 Motion to Suppress Confession Because of a Miranda Violation................33
6.19 Motion to Suppress Confession for Violation of Sixth Amendment Right
to Counsel ...................................................................................................41
6.20 Motion for Substitution of Counsel for Defendant or Motion to Withdraw
as Counsel for Defendant............................................................................45
6.21 Motion to Compel Discovery........................................................................46
6.22 Motion to Disqualify Judge ..........................................................................58
6.23 Motion to Dismiss Because of Double Jeopardy—Successive
Prosecutions for the Same Offense.............................................................60
6.24 Motion to Dismiss Because of Double Jeopardy—Multiple
Punishments for the Same Offense.............................................................64
6.25 Motion to Dismiss Because of Entrapment..................................................69
6.26 Motion to Exclude Public and Press From Preliminary Examination in
Sexual Misconduct Cases ...........................................................................72
6.27 Motion to Exclude Public and Press From Trial...........................................73
6.28 Motion to Suppress the Fruits of an Illegal Seizure of a Person..................75
6.29 Motion to Withdraw Guilty Plea ...................................................................86
6.30 Motion to Suppress Eyewitness Identification at Trial Because of Illegal
Pretrial Identification Procedure ..................................................................88
6.31 Motion in Limine—Impeachment of Defendant by Evidence of Prior
Convictions ..................................................................................................92

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Section 6.1

6.32 Motion in Limine—Impeachment of Defendant by His or Her Silence.........94

6.33 Notice and Examination Requirements for Asserting an Insanity Defense .96
6.34 Motion to Quash Information for Improper Bindover .................................101
6.35 Motion to Admit Evidence of Victim’s Prior Sexual Conduct in Criminal
Sexual Conduct Cases ..............................................................................103
6.36 Motion to Suppress Evidence Seized Pursuant to a Defective Search
Warrant......................................................................................................106
6.37 Motion to Suppress Evidence Seized Without a Search Warrant .............114
6.38 Motion for Separate Trials of Multiple Defendants ....................................126
6.39 Motion for Severance or Joinder of Multiple Charges Against a Single
Defendant ..................................................................................................128
6.40 Motion in Limine—Evidence of Other Crimes, Wrongs, or Acts ................130
6.41 Motion to Dismiss—Denial of Right to Speedy Trial..................................132
6.42 Motion to Release on Personal Recognizance—Delayed Felony and
Misdemeanor Cases .................................................................................133
6.43 Motion to Dismiss—Violation of 180-Day Rule..........................................135
6.44 Motion for Change of Venue .....................................................................139

Part 3—Summary of Individual Motions

6.45 Table Summarizing Individual Motions......................................................140

Part 1—General Requirements

6.1 Introduction

This monograph contains three parts. Part 1 discusses the general

requirements for pretrial motions in criminal cases. Part 2 discusses individual
motions that are commonly filed in criminal cases. Part 3 contains a table that
summarizes the individual motions discussed in Part 2.

6.2 Time Requirements for Filing and Serving Written

Motions

A. Time Requirements Under MCR 2.119

MCR 2.119 governs motion practice and generally applies to motions in

criminal cases. See MCR 6.001(D) (rules of civil procedure apply to criminal
cases except as otherwise provided by rule or statute, where a rule of civil
procedure clearly applies only to civil cases, or where a statute or court rule
provides a like or different procedure) and MCR 4.001 (“[p]rocedure in
district . . . courts is governed by the rules applicable to other actions”).

Unless the court sets a different time period, written motions must be filed at
least seven days before the hearing on the motion, and any response must be
filed at least three days before the hearing. MCR 2.119(C)(4). Unless a
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 Monograph 6—Pretrial Motions (2006–August 2009)

different period is provided by rule or set by the court for good cause, written
motions and accompanying papers (other than ex-parte motions) must be
served on the opposing party at least nine days before the time set for hearing
if service is by mail. MCR 2.119(C)(1)(a). Service by mail is complete at the
time of mailing. MCR 2.107(C)(3). If service is by delivery as defined in
MCR 2.107(C)(1) and (2), the motion must be served on the opposing party
at least seven days before the time set for hearing. MCR 2.119(C)(1)(b).

Unless a different period is provided by rule or set by the court for good cause,
any response to a motion must be served at least five days before the hearing
if service is by mail, or at least three days before the hearing if service is by
delivery. MCR 2.119(C)(2)(a)-(b).

If the court sets a different time period for serving a motion or response, the
court’s authorization must be in writing on the notice of hearing or in a
separate order. MCR 2.119(C)(3).

Local court rules may establish additional procedural requirements for motion
practice. For example, Rule 2.119 of the Third Judicial Circuit provides
requirements for motions not contained in MCR 2.119.

B. Deadlines for Written Motions

In misdemeanor cases, the court may require pretrial motions to be filed and
argued no later than the pretrial conference. MCR 6.610(B). See also Rule
6.100(B)(3) of the 40th Circuit Court Local Court Rules, which provides that,
except for good cause, no pretrial motion shall be accepted after the pretrial
conference is completed.

In People v Grove, 455 Mich 439, 469 (1997), the Michigan Supreme Court *This rule has
held that a trial court has discretion to refuse to accept a plea agreement been
renumbered
reached after a “plea cut-off date” established in a pretrial scheduling order. MCR
The Court reasoned that former MCR 2.401(B)(1)(b)* was applicable to 2.401(B)(1)(c),
criminal cases pursuant to MCR 6.001(D). Under current MCR but the text
2.401(B)(1)(c), a court may “enter a scheduling order setting time limitations remains the
same.
for the processing of the case and establishing dates when future actions
should begin or be completed in the case.” Read together, these rules
implicitly confer discretion to decline to entertain actions beyond the
deadlines set by such scheduling orders. Although the Grove case involved a
plea agreement, the Court’s holding also clearly applies to motion deadlines
in criminal cases.

6.3 When a Motion to Suppress Evidence May Be Made

During Trial

The general rule is that motions to suppress evidence must be made before
trial. People v Ferguson, 376 Mich 90, 94 (1965), People v Leonard, 81 Mich

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Section 6.4

App 86, 89 (1978) (motion to suppress confession), and People v Childers, 20

Mich App 639, 645-646 (1969) (motion to suppress evidence obtained from
pretrial identification procedure).

Despite the general rule, a trial court has discretion to entertain a motion to
suppress evidence at trial. In Ferguson, supra, the Michigan Supreme Court
stated that “except under special circumstances the trial court may, within its
sound discretion, entertain at trial a motion to suppress.” The Court declined
in that case to define the circumstances under which a trial court may exercise
its discretion to entertain a motion to suppress evidence at trial but gave as an
example a case in which facts concerning an allegedly illegal seizure are not
known sufficiently in advance of trial. Ferguson, supra at 94-96. In Ferguson,
the Court found no abuse of discretion in the trial court’s refusal to entertain
a motion to suppress evidence (a gun) that was allegedly the fruit of an illegal
search and seizure. The defendant did not claim that he was unaware of the
factual circumstances surrounding the allegedly illegal seizure prior to trial.
Moreover, the defendant was identified at the preliminary examination as
having wielded the gun, and the warrant and information referred to the gun.
See also People v Davis, 52 Mich App 59, 60 (1974) (trial court did not err in
refusing to conduct an evidentiary hearing during trial because defendants and
defense counsel knew well before trial that a weapon had been seized during
defendants’ arrest), and People v Williams, 23 Mich App 129, 130-131 (1970)
(where defendant was aware of all facts surrounding his arrest and the
challenged search and seizure, defendant waived the issue of the legality of
the search and seizure by failing to move to suppress the evidence before
trial). Defendants have the responsibility to inform defense counsel of facts
surrounding the acquisition of evidence. People v Soltis, 104 Mich App 53,
55-58 (1981), modified on other grounds 411 Mich 1037 (1981) (defendant
had the responsibility to inform defense counsel that he had given a written
statement to police).

Hearings on the admissibility of confessions must be conducted out of the

hearing of the jury. MRE 104(c). Hearings on other preliminary matters must
be conducted outside the jury’s presence where the interests of justice require
or, when the accused is a witness, if he or she so requests. Id.

6.4 Required Form of Written Motions

Unless made during a hearing or trial, a motion must be in writing, must state
with particularity the grounds and authority on which it is based, must state
the relief or order sought, and must be signed by the attorney or party filing
the motion. MCR 2.119(A).

A court may, in its discretion, dispense with or limit oral arguments on

motions and may require the parties to file briefs in support of and in
opposition to a contested motion. MCR 2.119(E)(3). MCR 2.119(A)(2)
requires a motion or response that presents an issue of law to be accompanied
by a brief citing the authority on which it is based.
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 Monograph 6—Pretrial Motions (2006–August 2009)

The formal requirements of motions and accompanying briefs are contained *Many
in MCR 2.119(A)(2).* That rule states, in part: jurisdictions
have local court
rules governing
“Except as permitted by the court, the combined length of the form of
any motion and brief, or of a response and brief, may not motions.
exceed 20 pages double spaced, exclusive of attachments
and exhibits. Quotations and footnotes may be single-
spaced. At least one-inch margins must be used, and
printing shall not be smaller than 12-point type. A copy of
a motion or response (including brief) filed under this rule
must be provided by counsel to the office of the judge
hearing the motion. The judge’s copy must be clearly
marked JUDGE’S COPY on the cover sheet; that notation
may be handwritten.”

Permission to file a motion and brief in excess of the 20-page limit should be
requested sufficiently in advance of the hearing on the motion to allow the
opposing party adequate opportunity for analysis and response. People v
Leonard, 224 Mich App 569, 578-579 (1997).

6.5 Requirements for Supporting Affidavits

Unless specifically required by rule or statute, a pretrial motion need not be

verified or accompanied by an affidavit. MCR 2.114(B)(1). However, when a
motion is based on facts not appearing on the record, the trial court has
discretion to require affidavits. MCR 2.119(E)(2). Affidavits must conform to
the requirements of MCR 2.113(A) (an affidavit must be verified by oath or
affirmation) and MCR 2.119(B). Pursuant to MCR 2.119(B)(1), an affidavit
filed in support of or in opposition to a motion must:

“(a) be made on personal knowledge;

“(b) state with particularity facts admissible as evidence

establishing or denying the grounds stated in the motion;
and

“(c) show affirmatively that the affiant, if sworn as a

witness, can testify competently to the facts stated in the
affidavit.”

Affidavits must be served on the opposing party within the time limits stated
above in Section 6.2. See Hubka v Pennfield Twp, 197 Mich App 117, 119
(1992) (trial court erred by relying on an affidavit produced on the day of the
hearing).

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Section 6.6

6.6 When Evidentiary Hearings Must Be Conducted

In People v Wiejecha, 14 Mich App 486, 488 (1968), the Court of Appeals
stated:

“The right to a separate evidentiary hearing when an attack

on the admissibility of evidence is made on constitutional
grounds was pronounced by the United States Supreme
Court in Jackson v Denno, [378 US 368 (1964)] . . . .

“The defendant has a right to have an evidentiary hearing

on his motion [to suppress evidence]. The defendant has
this right in every case, jury and non-jury, if such a hearing
is requested.”

However, in People v Reynolds, 93 Mich App 516, 519 (1979), where the
constitutionality of an identification procedure was challenged, the Court of
Appeals concluded that an evidentiary hearing must be conducted whenever
a defendant challenges the admissibility of evidence on constitutional grounds
and there is any factual dispute regarding the issue. In People v Johnson, 202
Mich App 281, 285-287 (1993), the Court of Appeals ruled that there is no
right to an evidentiary hearing on the issue of the constitutionality of an
identification procedure if there is no factual support for the challenge.
Therefore, a judge need not hold an evidentiary hearing if no factual dispute
exists. See also Bielawski v Bielawski, 137 Mich App 587, 592 (1984) (trial
court should first determine whether contested factual questions exist before
conducting an evidentiary hearing in a child custody case).

Under MCR 6.110(D), the court need not conduct an evidentiary hearing
during a preliminary examination if there is a preliminary showing that the
evidence in question is admissible. If an evidentiary hearing is conducted
during the preliminary examination, a party may obtain a review of the
District Court’s determination in the Circuit Court; if no evidentiary hearing
was conducted during the preliminary examination, a party may request an
evidentiary hearing in the Circuit Court. MCR 6.110(D) states:

“(D) Exclusionary Rules. If, during the preliminary

examination, the court determines that evidence being
offered is excludable, it must, on motion or objection,
exclude the evidence. If, however, there has been a
preliminary showing that the evidence is admissible, the
court need not hold a separate evidentiary hearing on the
question of whether the evidence should be excluded. The
decision to admit or exclude evidence, with or without an
evidentiary hearing, does not preclude a party from moving
for and obtaining a determination of the question in the trial
court on the basis of

(1) a prior evidentiary hearing, or

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 Monograph 6—Pretrial Motions (2006–August 2009)

(2) a prior evidentiary hearing supplemented with a

hearing before the trial court, or

(3) if there was no prior evidentiary hearing, a new

evidentiary hearing.”

If the attorneys for the parties agree, a motion to exclude evidence made or
filed in the Circuit Court may be premised on the preliminary examination
transcript. MCR 6.110(D) and People v Kaufman, 457 Mich 266, 275-276
(1998), overruling in part People v Talley, 410 Mich 378 (1981), and People
v Zahn, 234 Mich App 438, 442 (1999).

6.7 Rules of Evidence, Burden of Proof, and Findings of

Fact at Evidentiary Hearings
Pursuant to MRE 1101(b)(1), the Michigan Rules of Evidence, except those *The required
with respect to privileges, do not apply to the determination of questions of burden of proof
for
fact preliminary to admissibility of evidence under MRE 104(a). Michigan constitutional
Rule of Evidence 104(a) states that “[p]reliminary questions concerning . . . questions of
the admissibility of evidence shall be determined by the court, subject to the admissibility
provisions of subdivision (b).” Michigan Rule of Evidence 104(a) applies to varies and is
discussed
determinations of whether the technical or constitutional rules allow throughout this
admission of proffered evidence. The “preponderance of evidence” standard manual where
applies to determinations of whether the technical requirements of the rules of relevant.
evidence have been met. Bourjaily v United States, 483 US 171, 176 (1987).*

Michigan Rule of Evidence 104(b) deals with the admissibility of evidence,

the relevance of which must be established by proof of other facts. That rule
states:

“(b) Relevancy conditioned on fact. When the relevancy of

evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of
the fulfillment of the condition.”

For example, evidence proffered under MRE 404(b) of uncharged *See Section
misconduct* by the defendant may only be relevant if it is shown that the 6.40, below, for
further
misconduct occurred and that the defendant committed the misconduct. At an discussion of
evidentiary hearing on such issues, the court must only find that there is the admissibility
sufficient evidence for the trier of fact to find, by a preponderance of the of evidence of
evidence, that the conditional fact has been proven. Huddleston v United uncharged
misconduct.
States, 485 US 681, 690 (1988), and People v VanderVliet, 444 Mich 52, 74
(1993). Whether the conditional fact has actually been proven is for the finder
of fact to decide at trial. Id.

For determinations of admissibility under MRE 104(a), the trial court sits as
the trier of fact and determines the credibility of witnesses and resolves

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Section 6.8

conflicts in their testimony. People v Yacks, 38 Mich App 437, 440 (1972),
and People v Smith, 124 Mich App 723, 725 (1983). With regard to the
admissibility of evidence under MRE 104(b), the court must not determine the
credibility of witnesses or resolve conflicts in their testimony. Huddleston,
supra.

Findings of fact and conclusions of law are unnecessary in motion decisions

unless required by court rule. MCR 2.517(A)(4). If the court makes findings
and conclusions, they may be stated on the record or in a written opinion.
MCR 2.517(A)(3). Written findings on pretrial motions are not required.
People v Oliver, 63 Mich App 509, 522-523 (1975). For purposes of appellate
determination of whether a trial court has committed clear error in its findings
of fact, MCR 2.613(C), and whether the trial court properly applied the law,
findings of fact and conclusions of law are advisable. Compare People v
LaBate, 122 Mich App 644, 647-648 (1983) (in light of record evidence
raising questions about entrapment, the cause was remanded for an
evidentiary hearing following the trial court’s failure to make adequate
findings of fact and conclusions of law), and People v Shields, 200 Mich App
554, 558-559 (1993) (although specific findings of fact and conclusions of
law are preferred for purposes of appellate review, no court rule requires such
findings and conclusions, and no remand is necessary following a bench trial
where the trial court’s findings regarding the charged offense indicated that
the trial court was aware of and resolved the factual issues raised by the
motion to suppress evidence).

6.8 Motions for Rehearing or Reconsideration

A circuit court, acting as an appellate court in review of a district court order

or judgment, possesses the authority to reconsider its own previous order or
judgment on the matter. People of the City of Riverview v Walters, 266 Mich
App 341, 346-350 (2005).

Except as provided in MCR 2.604(A), a motion for rehearing or

reconsideration of the decision on a motion must be filed and served within
14 days of the entry of the order disposing of the motion. MCR 2.119(F)(1).
Under MCR 2.604(A), an order is “subject to revision before entry of final
judgment.” “[T]he 14-day time limit on motions for reconsideration contained
in MCR 2.119(F)(1) should not deter a trial court from correcting its interim
orders whenever legally appropriate.” Dean & Longhofer, Michigan Court
Rules Practice (4th ed), §2604.2, p 351. No response to the motion may be
filed and no oral argument is allowed unless the court directs otherwise. MCR
2.119(F)(2). The standard for granting or denying motions for rehearing or
reconsideration is set forth in MCR 2.119(F)(3), which states as follows:

“Generally, and without restricting the discretion of the

court, a motion for rehearing or reconsideration which
merely presents the same issues ruled on by the court,
either expressly or by reasonable implication, will not be
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 Monograph 6—Pretrial Motions (2006–August 2009)

granted. The moving party must demonstrate a palpable

error by which the court and the parties have been misled
and show that a different disposition of the motion must
result from correction of the error.”

In People v Turner, 181 Mich App 680, 683 (1989), the Court of Appeals
stated that the rehearing procedure contained in MCR 2.119(F) “allows a
court to correct mistakes which would otherwise be subject to correction on
appeal, though at much greater expense to the parties.”

Palpable error is not a mandatory prerequisite to a court’s decision to grant a

party’s motion for reconsideration. Walters, supra at 350-352. Adherence to
the palpable error provision contained in MCR 2.119(F)(3) is not required;
rather, the provision offers guidance to a court by suggesting when it may be
appropriate to grant a party’s motion for reconsideration. Walters, supra at
350.

Where a different judge is seated in the circuit court that issued the ruling or
order for which a party seeks reconsideration, the judge reviews the prior
court’s factual findings for clear error. Id. at 352. The fact that the successor
judge is reviewing the matter for the first time does not authorize the judge to
conduct a de novo review. Id.

Part 2—Individual Motions

6.9 Introduction

This part of the monograph contains discussion of commonly filed pretrial

motions in criminal cases. For each motion discussed, the moving party,
burden of proof, and general discussion of applicable law are provided. This
portion of the monograph contains a general discussion of applicable law. The
reader is urged to do further research when addressing more specific questions
that arise in a particular case.

6.10 Motion for Adjournment or Continuance

Moving Party: Defendant or prosecuting attorney

Burden of Proof: The moving party has the burden of establishing good
cause for the adjournment. MCL 768.2 and MCR 2.503(B)(1).

Discussion

MCL 768.2 states in part:

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Section 6.10

“No adjournments, continuances or delays of criminal

causes shall be granted by any court except for good cause
shown in the manner provided by law for adjournments,
continuances and delays in the trial of civil causes in courts
of record . . . .”

A trial court has no duty to order a continuance in the absence of a request by

a party. People v Elston, 462 Mich 751, 764-765 (2000). When requested by
a party, continuances and adjournments are within the discretion of the trial
court. People v Williams, 386 Mich 565, 575 (1972). However, the trial court
is not required to exercise that discretion unless there is a showing of good
cause and diligence by the moving party. People v Taylor, 159 Mich App 468,
489 (1987).

Four factors are important for determining whether a defendant is entitled to

an adjournment:

1) Is the defendant requesting the adjournment so that he or she may

assert a constitutional right (e.g., the right to be represented by
competent counsel)?

2) Does the defendant have legitimate grounds for asserting this right
(e.g., an irreconcilable bona fide dispute with counsel over
whether to call alibi witnesses)?

3) Is the defendant guilty of negligence for not having asserted this

right earlier?

4) Has the defendant caused the trial to be adjourned at other times?

Williams, supra at 578; People v Wilson, 397 Mich 76, 81-83
(1976); and People v Holleman, 138 Mich App 108, 112-114
(1984).

The Williams four-factor test for reviewing a defendant’s request for

continuance also applies to a defendant’s request to adjourn a preliminary
examination. People v Eddington, 77 Mich App 177, 185-191 (1977).

Effective January 1, 2006, MCR 6.005(E) allows a court to “refuse to adjourn

a proceeding to appoint counsel or allow a defendant to retain counsel if an
adjournment would significantly prejudice the prosecution, and the defendant
has not been reasonably diligent in seeking counsel.”

Requests for adjournments and continuances may also be made under MCR
2.503(C), the court rule governing the granting of adjournments on the basis
of a witness’s unavailability. MCR 2.503(C)(1)-(2) state:

“(C) Absence of Witness or Evidence.

(1) A motion to adjourn a proceeding because of

the unavailability of a witness or evidence must be

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made as soon as possible after ascertaining the

facts.

(2) An adjournment may be granted on the ground

of unavailability of a witness or evidence only if
the court finds that the evidence is material and that
diligent efforts have been made to produce the
witness or evidence.”

In People v Jackson, 467 Mich 272, 277-279 (2002), the Michigan Supreme
Court held that the trial court abused its discretion in denying a continuance
after a key prosecution witness, who previously had submitted a statement to
police and testified at the preliminary examination, failed to appear on the
date set for trial. The Supreme Court found that, contrary to the findings of the
trial court and Court of Appeals, the prosecution did not fail to make “diligent
efforts,” as required by MCR 2.503(C)(2), to produce the witness. The police
had successfully served a subpoena, and the witness had previously
cooperated with the police and prosecution. See also People v Coy, 258 Mich
App 1, 19 (2003) (trial court properly denied a defendant’s request for
adjournment where the motion was made on the first day of trial and “[t]here
was no evidence that [defendant] made any effort, much less a diligent one, to
locate [the witness] before requesting the adjournment”).

The defendant in Coy, supra, similarly failed to establish good cause for an
adjournment to complete DNA testing of an individual’s blood sample taken
one week before trial. Coy, supra at 20-22. The trial court denied the
defendant’s motion to adjourn until the DNA tests on the individual’s blood
were complete because the individual’s alibi was corroborated, he was not
considered a suspect, the defendant was dilatory in requesting the blood tests,
and the individual’s involvement in the victim’s death was highly speculative.
Id.

A trial court abused its discretion when it refused to grant the prosecution’s
motion for adjournment after the complainant and two other prosecution
witnesses failed to return to court following a lunch recess. People v Grace,
258 Mich App 274, 277-278 (2003). In Grace, the trial court dismissed the
charge against the defendant after 17 minutes elapsed following a lunch recess
and the complainant and two primary witnesses had not yet returned. The
Court of Appeals noted that the record showed the missing witnesses’
testimony was material to the case, the prosecutor had attempted to locate
them, and the witnesses’ history suggested their continued cooperation. Id.

Where the defendant is not at fault for the unavailability of an alibi witness,
the trial court’s refusal to grant a short continuance to obtain the witness’s
testimony is an abuse of discretion. People v Pullins, 145 Mich App 414, 417-
418 (1985). However, where the delay is caused in part by the defendant’s
negligence, the trial court does not abuse its discretion by denying a request
for continuance. People v Sekoian, 169 Mich App 609, 614 (1988).

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Section 6.11

Where the trial court permits the late endorsement of a witness, the trial court
should ordinarily grant a continuance to preserve the defendant’s right to a fair
trial. Wilson, supra at 81-83, and People v Powell, 119 Mich App 47, 50-52
(1982). Where four days before trial codefendants pled guilty, made new
statements describing the defendant’s participation in the charged offenses,
and agreed to testify against the defendant, the trial court abused its discretion
in denying defendant’s motion for a continuance. People v Suchy, 143 Mich
App 136, 139-148 (1985).

“[T]he desire of trial courts to expedite court dockets is not a sufficient reason
to deny an otherwise proper request for a continuance.” Williams, supra at
577.

MCL 768.2 states the following regarding stipulations for adjournments,

continuances, or delays:

“[N]o court shall adjourn, continue or delay the trial of any

criminal cause by the consent of the prosecution and
accused unless in his [or her] discretion it shall clearly
appear by a sufficient showing to said court to be entered
upon the record, that the reasons for such consent are
founded upon strict necessity and that the trial of said cause
cannot be then had without a manifest injustice being
done.” Id.

6.11 Notice and Pleading Requirements for Asserting an

Alibi Defense

Moving Party: Defendant

Burden of Proof: “Although a defendant does not have the burden of proof
on the alibi issue, he has the burden of producing at least some evidence in
support of his claim of alibi, possibly sufficient evidence to raise a reasonable
doubt.” People v Fiorini, 85 Mich App 226, 229-230 (1985). See also People
v McCoy, 392 Mich 231, 235 (1974) (a defendant need not prove his or her
alibi by a preponderance of the evidence but must only raise a reasonable
doubt concerning his or her presence at the crime scene). A defendant’s
general denial of the charges does not constitute an alibi defense; however,
uncorroborated testimony by the defendant regarding his or her whereabouts
at the time of the offense does constitute alibi testimony and entitles him or
her to a jury instruction. People v McGinnis, 402 Mich 343, 346-347 (1978).

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Discussion

In felony cases, MCL 768.20(1) requires that written notice of intent to claim *See Section
an alibi defense be filed and served within 15 days of arraignment but not less 6.10, above, for
the four factors.
than 10 days before trial, or at such other time as the court directs. However,
Michigan appellate courts have construed this statute to require only that the
notice be filed not less than 10 days before trial. People v Bennett, 116 Mich
App 700, 703-707 (1982). The notice must contain, as particularly as is
known to the defendant or defense counsel, the names of witnesses whom the
defendant intends to call to establish the alibi. The notice must also contain
specific information about the place where the defendant claims to have been
at the time of the offense. Requests for continuances to perfect an alibi notice
should be evaluated under the four-factor test set forth in People v Wilson, 397
Mich 76 (1976). People v Hill, 88 Mich App 50, 56 (1979).*

The prosecuting attorney must file and serve a rebuttal notice within 10 days
of receiving the defendant’s notice, but not later than 5 days before trial, or at
such other time as the court directs. The notice must contain, as particularly
as is known to the prosecuting attorney, the names of rebuttal witnesses whom
the prosecutor intends to call to controvert the defense. MCL 768.20(2). A
prosecutor must list the name of a rebuttal witness even though that witness is
listed in the defendant’s notice of alibi. People v Wilson, 90 Mich App 317,
320-321 (1979), relying on People v Alexander, 82 Mich App 621, 627
(1978). But see People v Coulter, 94 Mich App 531, 534-535 (1980), where
the Court of Appeals held that the trial court’s ruling during trial allowing the
testimony of rebuttal witnesses constituted notice “at such other time as the
court directs.” The Court of Appeals found that the defendants could not have
been surprised by the prosecutor’s calling the witnesses because the
prosecutor told defense counsel several days before trial of his intention to call
the witnesses, who were listed in defendants’ alibi notices. A prosecutor
“minimally complies” with the statute by listing “any or all endorsed
witnesses” as possible rebuttal witnesses. People v Finley, 161 Mich App 1,
10-11 (1987).

The parties are under a continuing duty to disclose the names of additional
witnesses as they become known after the filing of the required notices.
Additional witnesses may be called if the party shows that the names of the
additional witnesses were not known at the time the notice of defense or
rebuttal was required to be filed and could not have been discovered through
the exercise of due diligence. MCL 768.20(3). See People v Diaz, 98 Mich
App 675, 680-682 (1980) (where the prosecutor learned of a rebuttal witness’s
identity through the a codefendant’s trial testimony, the trial court properly
allowed the rebuttal witness to testify), and People v Bell, 169 Mich App 306,
308-310 (1988) (where defendant’s alibi witnesses declined to give
statements to police before trial and the prosecutor was unable to learn the
identity of a rebuttal witness until defendant’s alibi witnesses testified at trial,
the trial court did not err in allowing the rebuttal witness to testify).

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Section 6.12

MCL 768.21(1)-(2) allow the court to exclude evidence offered by the

defendant or prosecuting attorney for the purpose of establishing or rebutting
an alibi defense. If the required notice is not filed and served at all, the court
must exclude the proffered evidence. In addition, if the notice given by the
defendant or the prosecuting attorney does not state, as particularly as is
known to the party, the name of a witness to be called to establish or rebut the
defense, the court must exclude the testimony of the witness.

Despite the language in MCL 768.21(1)-(2) that suggests that exclusion is

mandatory if a proper notice is not filed, the trial court retains discretion to fix
the timeliness of a notice. People v Travis, 443 Mich 668, 679 (1993). In
exercising its discretion, a court should consider:

1) the amount of prejudice resulting from the failure to disclose;

2) the reason for nondisclosure;

3) the extent to which the harm caused by nondisclosure was

mitigated by subsequent events;

4) the weight of the properly admitted evidence supporting

defendant’s guilt; and

5) other relevant factors arising out of the circumstances of the case.

Id. at 681-683, citing United States v Myers, 550 F2d 1036, 1043 (CA 5,
1977).

6.12 Motion to Dismiss for Delay in Arrest Resulting in

Prejudice to Defendant

Moving Party: Defendant

Burden of Proof: The court must balance prejudice to the defendant’s need
for a prompt and fair adjudication and the prosecuting attorney’s reasons for
the delay. The defendant has the burden of coming forward with evidence of
actual and substantial prejudice to his or her right to a fair trial. If the
defendant makes a showing of prejudice, the prosecuting attorney has the
burden of persuading the court that the reasons for the delay outweigh the
prejudice resulting from the delay. People v Bisard, 114 Mich App 784, 791
(1982). In Bisard, the Court of Appeals stated the following with regard to the
amount of prejudice that must be shown:

“When a delay is deliberately undertaken to prejudice a

defendant, little actual prejudice need be shown to
establish a due process claim. Where, however, there is a
justifiable reason for the delay, the defendant must show
more—that the prejudice resulting from the delay
outweighs any reason provided by the state.” Id. at 790.

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Note: In federal courts, the defendant must show actual and

substantial prejudice to his right to a fair trial and intent by the
prosecution to gain a tactical advantage. Several Michigan Court
of Appeals decisions have set forth this test as the rule in
Michigan. See People v Crear, 242 Mich App 158, 166 (2000),
and People v White, 208 Mich App 126, 134 (1994), citing United
States v Marion, 404 US 307, 324 (1971), and United States v
Lash, 937 F2d 1077, 1088 (CA 6, 1991). For discussion of the
difference between the Michigan and federal tests, see People v
McIntire, 232 Mich App 71, 94 n 11 (1998), rev’d on other
grounds 461 Mich 147 (1999) (declining to decide which test
should be applied).

Discussion

The speedy trial guarantees in the United States and Michigan Constitutions
become operative only after the institution of formal proceedings. However,
due process requirements prohibit inordinate delay in the bringing of criminal
charges, even though the applicable statute of limitations has not expired.
United States v Marion, 404 US 307, 313–14 (1971), United States v Lovasco,
431 US 783, 789 (1977), and People v Anderson, 88 Mich App 513, 515
(1979). The actual prejudice resulting from a delay in arrest violates due
process, not the delay itself. People v Hernandez, 15 Mich App 141, 146
(1968).

The burden is on the defendant to show “actual and substantial” prejudice to

his or right to a fair trial. See People v Cain, 238 Mich App 95, 110 (1999),
People v Adams, 232 Mich App 128, 134 (1998), and People v Loyer, 169
Mich App 105, 120 (1988) (allegations of prejudice must be specific rather
than speculative). When arguing that the death of material witnesses or loss of
evidence has resulted in prejudice, the defendant must show that the witnesses
or evidence would have been beneficial to the defense. Cain, supra at 109-111
(witnesses’ “slight memory failure” regarding dates and unspecified
unpreserved evidence insufficient to establish prejudice), Adams, supra at
137-139 (defendants failed to show that testimony from deceased witnesses
and lost physical evidence would have been exculpatory), McIntire, supra at
95 (lost impeachment evidence is insufficient to demonstrate prejudice),
People v Dungey, 147 Mich App 83, 88 (1985) (where test results lost their
ability to exclude the defendant as the person who committed a sexual assault,
the defendant suffered requisite prejudice to shift the burden to the
prosecutor), People v Tanner, 255 Mich App 369, 415 (2003), rev’d on other
grounds 469 Mich 437 (2004) (defendant’s vague claims of “faded memories
and lost witnesses,” without a specific showing how the alleged deficiencies
actually and substantially impaired her defense, held to be too speculative and
insufficient to establish actual and substantial prejudice), and People v
Musser, 259 Mich App 215, 220 (2003) (defendant could not show actual and
substantial prejudice where a defense witness’s testimony in support of the
defendant never wavered, even though the record showed that the witness

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Section 6.13

“was exposed to intense cross-examination regarding his memory of the

events” that occurred 13 months before defendant’s arrest).

In Lovasco, supra at 795-796, the United States Supreme Court distinguished

between “investigative delay” and delay deliberately undertaken to prejudice
the defendant. The court must find not merely that the delay was intentional,
but that the delay was undertaken to prejudice the defendant, that the
prosecuting attorney acted in bad faith. Bisard, supra at 787-791, and People
v White, 59 Mich App 164, 165 (1975). See also Crear, supra at 166 (a
defendant must prove prejudice and an intent by the prosecution to gain a
tactical advantage). A prosecutor may wait to charge until satisfied that the
evidence is convincing beyond a reasonable doubt. A charge is not required
once probable cause exists. McIntire, supra at 95-96, and Lovasco, supra at
790-791. In Adams, supra at 139-145, the Court of Appeals found that the
prosecutor did not delay prosecution solely in anticipation of a change to the
rules of evidence that would allow the admission of the hearsay statements of
an alleged accomplice. See also Tanner, supra (trial court did not err in
finding that the five-year delay between the initial request for arrest warrant
and initiation of criminal charges resulted from the police conducting further
investigation and from the prosecutors being dissatisfied with the sufficiency
of the evidence—two proper bases to delay prosecution).

Other acceptable explanations include the delay occasioned by waiting for the
disposition of other charges or the impaneling of a grand jury, Lovasco, supra
at 797 n 19, and the delay that occurred because the defendant fled to avoid
prosecution, People v Johnson, 41 Mich App 34, 43 (1972). Delayed arrest
often occurs in cases involving undercover investigation of drug sales, and the
fear of “blowing the cover” of undercover officers is considered an adequate
explanation for delay. Bisard, supra at 787, Anderson, supra at 516, and
People v Betancourt, 120 Mich App 58, 62 (1982).

6.13 Motion to Reduce or Increase Bail

Moving Party: The prosecutor or defendant may file a motion to increase or

reduce the amount of bail. The trial court may also modify a prior release
decision.

Burden of Proof: “The party seeking modification of a release decision has

the burden of going forward.” MCR 6.106(H)(2)(c).

Discussion

The Michigan Rules of Evidence do not apply to “proceedings with respect to

release on bail. . . .” MRE 1101(b)(3).

On motion of a party or on its own initiative, the court may modify a prior
release decision or reopen a custody hearing regarding a defendant. MCR
6.106(H)(2) states in part:
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“(a) Prior to Arraignment on the Information. Prior to the

defendant’s arraignment on the information, any court
before which proceedings against the defendant are
pending may, on the motion of a party or its own initiative
and on finding that there is a substantial reason for doing
so, modify a prior release decision or reopen a prior
custody hearing.

“(b) Arraignment on Information and Afterwards. At the

defendant’s arraignment on the information and
afterwards, the court having jurisdiction of the defendant
may, on the motion of a party or its own initiative, make a
de novo determination and modify a prior release decision
or reopen a prior custody hearing.”

In People v Wershe, 166 Mich App 602, 606 (1988), a case decided prior to
the advent of MCR 6.106, the Court of Appeals held that a judge’s
redetermination of a magistrate’s initial bail decision does not constitute a
review of that magistrate’s bail decision. The Court of Appeals reasoned that
further information regarding the alleged offense and the accused is typically
presented as the case moves to preliminary examination and bindover;
therefore, a judge must have the authority to make a new bail decision, which
may then be appealed. Id. at 607. MCR 6.106(H)(2) now reflects a judge’s
authority to make this new bail decision.

In its initial bail determination, the court must state the reasons for its
determination on the record, but the court is not required to make findings on
each of the factors contained in MCR 6.106(F)(1). MCR 6.106(F)(2). Those
factors are:

“(a) defendant’s prior criminal record, including juvenile

offenses;

“(b) defendant’s record of appearance or nonappearance at

court proceedings or flight to avoid prosecution;

“(c) defendant’s history of substance abuse or addiction;

“(d) defendant’s mental condition, including character and

reputation for dangerousness;

“(e) the seriousness of the offense charged, the presence or

absence of threats, and the probability of conviction and
likely sentence;

“(f) defendant’s employment status and history and

financial history insofar as these factors relate to the ability
to post money bail;

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Section 6.14

“(g) the availability of responsible members of the

community who would vouch for or monitor the
defendant;

“(h) facts indicating the defendant’s ties to the community,

including family ties and relationships, and length of
residence, and

“(i) any other facts bearing on the risk of nonappearance or

danger to the public.” MCR 6.106(F)(1)(a)-(i).

If a party files a motion seeking review of a release decision, the lower court’s
order may not be stayed, vacated, modified, or reversed unless the reviewing
court finds an abuse of discretion. MCR 6.106(H)(1). The Circuit Court must
have a transcript of the District Court proceedings concerning the setting of
bail. Without such a transcript, there cannot be review of the issue. People v
Szymanski, 406 Mich 944 (1979). Upon a finding of an abuse of discretion by
the lower court in fixing bail, the trial court may only modify the bail
provisions (including the amount of the money bail) after having considered
the factors mandated by the court rule governing bail (MCR 6.106(F)(1)(a)-
(i)). People v Weatherford, 132 Mich App 165, 170 (1984). See also Atkins v
Michigan, 644 F2d 543, 550 (CA 6, 1981) (the Michigan Court of Appeals
erred by twice cancelling the defendant’s bond without stating its reasons for
doing so).

“In reviewing a bail decision, more than perfunctory compliance [with the
applicable court rule] is required . . . . Defendants must also be allowed to
present any additional material evidence, which could have originally been
considered in the setting of bail, if the evidence was not available when bail
was originally set. A record must be made of this proceeding. . . .” People v
Spicer, 402 Mich 406, 410-411 (1978).

“Money bail is excessive if it is in an amount greater than reasonably

necessary to adequately assure that the accused will appear when his presence
is required.” People v Edmond, 81 Mich App 743, 747-748 (1978), citing
Stack v Boyle, 342 US 1 (1951).

6.14 Motion to Determine Defendant’s Competency to

Stand Trial

Moving Party: The issue of defendant’s competence to stand trial is usually

raised by the defendant, but it may be raised by the prosecuting attorney or by
the court.

Burden of Proof: The defendant must prove incompetence by a

preponderance of the evidence. See Medina v California, 505 US 437, 449
(1992) (it does not violate the federal constitution for a state to presume that

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the defendant is competent and to require him or her to prove incompetence

by a preponderance of the evidence).

Discussion

A defendant must be competent to stand trial or plead guilty. MCL

330.2022(1) and People v Kline, 113 Mich App 733, 738 (1982). See also In
re Carey, 241 Mich App 222, 226 (2000) (a juvenile may not be adjudicated
delinquent while incompetent, and the procedures applicable to adults should
be employed). A criminal defendant is presumed competent to stand trial.
MCL 330.2020(1). The determination of a defendant’s competence is within
a trial court’s discretion. People v Newton (After Remand), 179 Mich App
484, 488 (1989).

The standard of competence to stand trial is stated in MCL 330.2020(1):

“[A defendant] shall be determined incompetent to stand

trial only if he is incapable because of his mental condition
of understanding the nature and object of the proceedings
against him or of assisting in his defense in a rational
manner. The court shall determine the capacity of a
defendant to assist in his defense by his ability to perform
the tasks reasonably necessary for him to perform in the
preparation of his defense and during trial.”

In People v Stolze, 100 Mich App 511, 513 (1980), the victim shot defendant
in the head during the charged assault; as a result defendant suffered amnesia
regarding the offense. The Court of Appeals held that the trial court did not
err in finding the defendant competent to stand trial. The Court relied on the
following language from Dusky v United States, 362 US 402, 403 (1960): “the
test must be whether [the defendant] has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the proceedings
against him.” Stolze, supra at 514.

In People v Hall, 97 Mich App 143, 145 (1980), rev’d on other grounds 418
Mich 189 (1983), defense counsel raised the issue of the defendant’s
competence prior to the preliminary examination. A preliminary examination
was conducted, but the parties agreed to delay the bindover determination
until the results of the defendant’s competency examination were returned.
The defendant was initially determined incompetent. After the defendant was
found competent to stand trial, he was bound over to Circuit Court and pled
guilty to second-degree murder. On appeal, the Court agreed that the
defendant had not been provided a valid preliminary examination because he
was found incompetent at the time of the exam. However, the Court found that
the defendant waived his right to preliminary examination by pleading guilty
to the charged offense in the Circuit Court. Id. at 147.

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Section 6.14

1. Raising the Issue of Competence

A criminal defendant’s competence to stand trial or participate in other

criminal proceedings may be raised by a party or the court at any time during
the proceedings. MCR 6.125(B) and MCL 330.2024. When facts are brought
to the trial court’s attention that raise a bona fide doubt about a defendant’s
competency to stand trial, the trial court has a duty to raise the issue sua sponte
even though defense counsel does not request a competency examination.
People v Harris 185 Mich App 100, 102-103 (1990). Otherwise, the
defendant must make a sufficient showing in order to be entitled to
commitment for an examination. People v Stripling, 70 Mich App 271, 276
(1976).

In Drope v Missouri, 420 US 162, 177 n 13, 180 (1975), the United States
Supreme Court set forth relevant considerations to determine when the issue
of a defendant’s competency should be explored further. Those considerations
are 1) an expressed doubt by counsel concerning a client’s competency
although a court is not required to accept such representations without
question, 2) evidence of a defendant’s irrational behavior and demeanor at
trial, and 3) prior medical opinion regarding the defendant’s competency to
stand trial. See also Owens v Sowder, 661 F2d 584, 586-587 (CA 6, 1981)
(defense counsel did not document prior psychiatric problems and
defendant’s behavior did not suggest need for examination). In People v
Whyte, 165 Mich App 409, 413 (1988), the Court of Appeals held that the
requisite showing that the defendant may have been incompetent to plead
guilty was made when the presentence investigation reports containing the
defendant’s extensive history of mental illness were disclosed to the trial
court.

“[W]here there is evidence of incompetency prior to the preliminary

examination and counsel for defendant requests a determination of
competency to stand trial, the examining magistrate should halt preliminary
proceedings against a defendant and refer the defendant to the Center for
Forensic Psychiatry for evaluation and recommendation. Upon receipt of the
written report and recommendation, the district judge should conduct a
hearing and make a determination of competency.” People v Thomas, 96
Mich App 210, 218 (1980).

2. Ordering the Examination

The court must order the defendant to undergo a forensic examination upon a
showing that the defendant may be incompetent to stand trial. MCR
6.125(C)(1) and MCL 330.2026(1). The examination must be conducted by
personnel of the Center for Forensic Psychiatry or of another facility officially
certified by the Department of Mental Health to perform examinations
relating to the issue of incompetence to stand trial. Id. “On a showing of good
cause by either party, the court may order an independent examination of the
defendant relating to the issue of competence to stand trial.” MCR 6.125(D).

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A forensic examination must be performed and a written report submitted to

the court and parties within 60 days after the examination is ordered. MCL
330.2028(1). Pursuant to MCL 330.2028(2)(a)-(d), the report must contain
the following elements:

“(a) The clinical findings of the center or other facility.

“(b) The facts, in reasonable detail, upon which the

findings are based, and upon request of the court, defense,
or prosecution additional facts germane to the findings.

“(c) The opinion of the center or other facility on the issue

of the incompetence of the defendant to stand trial.

“(d) If the opinion is that the defendant is incompetent to

stand trial, the opinion of the center or other facility on the
likelihood of the defendant attaining competence to stand
trial, if provided a course of treatment, within [15 months
or one-third of the maximum sentence the defendant could
receive if convicted, whichever is less].”

3. Conducting the Hearing

If a forensic examination is conducted, a competency hearing must be held

within five days of the court’s receipt of the report of the forensic examination
or on conclusion of the proceedings, whichever is sooner. The court may grant
an adjournment upon a showing of good cause. MCR 6.125(E) and MCL
330.2030(1). Although MCR 6.125(E) and MCL 330.2030(1) explicitly
require the court to conduct a hearing upon receiving the report of the forensic
examination, case law suggests that a hearing need be held only if there is
evidence of incompetence and a request by the defendant. “If there be
evidence of incompetence, the issue must be decided [at a hearing].” People v
Blocker, 393 Mich 501, 510 (1975) (emphasis in original). In Blocker, an
independent psychiatric examination of the defendant was conducted and a
report returned, but the defendant did not request a hearing following the
examination or present evidence of incompetence at trial. The Supreme Court
held that the trial court did not err in failing to decide the issue at a formal
hearing. Id. However, there is also authority for the proposition that the
defendant is entitled to a hearing on statutory and constitutional grounds. See
id. at 519 (Swainson, J, dissenting), and People v Lucas, 393 Mich 522, 527
(1975). The trial court may base its decision solely on the report only if the
parties choose not to present other evidence. People v Livingston, 57 Mich
App 726, 735-736 (1975) (“[t]he parties must be expressly made aware that a
competency hearing . . . is being held, that they have the right to present
evidence, and that failure to exercise that right will result in a determination
of competency . . .”).

The defendant must appear at the hearing. MCL 330.2030(1). See also People
v Thompson, 52 Mich App 262, 264-266 (1974) (because the defendant has a

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Section 6.14

constitutional right to be present at the hearing, defense counsel may not

waive that right by failing to contest the issue of the defendant’s competence).

The Michigan Rules of Evidence apply during the hearing. MRE 1101(a). The
court must determine the issue of competency based on evidence admitted at
the hearing. Absent objection, the written forensic examination report is
admissible at the hearing but is not admissible for any other purpose. The
defense, prosecution, and court may present additional evidence at the
hearing. MCL 330.2030(2) and (3).

If the court finds that the defendant is incompetent to stand trial and that there
is not a substantial probability that the defendant, if provided a course of
treatment, will attain competence to stand trial within 15 months or one-third
of the maximum sentence the defendant could receive if convicted, whichever
is less, the court may order the prosecuting attorney to petition for the
involuntary civil commitment of the defendant. MCL 330.2031. If the court
finds that there is a substantial probability that the defendant will attain
competence to stand trial within these time limits, the court must order the
defendant to undergo an appropriate course of treatment. MCL 330.2032(1).

4. Pretrial Motions While the Defendant Is Incompetent to

Stand Trial

Pretrial motions made while the defendant is incompetent to stand trial must
be heard and decided if the defendant’s presence “is not essential for a fair
hearing and decision on the motion.” MCR 6.125(F)(1) and MCL
330.2022(2). The court may take testimony on a pretrial motion by the
defense “if the defendant’s presence could not assist the defense.” MCR
6.125(F)(2).

5. Redetermining Competency

The court must conduct a hearing to redetermine the competence of the

defendant at least every 90 days. MCL 330.2040. The person supervising the
defendant’s treatment must submit a report to the court, parties, and Center for
Forensic Psychiatry every 90 days, whenever he or she believes that the
defendant is competent to stand trial, or whenever he or she believes that there
is a substantial probability that the defendant, with treatment, will attain
competence to stand trial within 15 months or one-third of the maximum
sentence the defendant could receive if convicted, whichever is less. MCL
330.2038(1)(a)-(c).

6. Dismissing the Charges Against Defendant

Pursuant to MCL 330.2044(1)(a)-(b), the court must dismiss the charges

against the defendant in the following cases:

“(a) When the prosecutor notifies the court of his intention

not to prosecute the case; or

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 Monograph 6—Pretrial Motions (2006–August 2009)

“(b) Fifteen months after the date on which the defendant

was originally determined incompetent to stand trial.”

The 15-month period starts when the defendant is adjudicated incompetent,

not when the defendant is committed for a diagnostic examination. People v
Davis, 123 Mich App 553, 557 (1983). When an accused has been adjudicated
incompetent for a total period of more than 15 months, regardless of whether
the period was continuous, the charges against the defendant must be
dismissed. People v Miller, 440 Mich 631, 633 (1992). However, if the
defendant was charged with a life offense, the prosecuting attorney may
petition at any time to refile the charge. For other offenses, the prosecuting
attorney may petition to refile the charge within the period of time equal to
one-third of the maximum possible sentence for the offense. MCL
330.2044(3). The court must grant the prosecuting attorney permission to
refile charges if after a hearing it determines that the defendant is competent
to stand trial. MCL 330.2044(4).

If the defendant is to be discharged or released, the person supervising the

defendant’s treatment may file a petition requesting the involuntary civil
commitment of the defendant. MCL 330.2034(3).

7. Maintaining the Defendant’s Competence Through the Use

of Psychotropic Drugs

MCL 330.2020(2) states:

“A defendant shall not be determined incompetent to stand

trial because psychotropic drugs or other medication have
been or are being administered under proper medical
direction, and even though without such medication the
defendant might be incompetent to stand trial. However,
when the defendant is receiving such medication, the court
may, prior to making its determination on the issue of
incompetence to stand trial, require the filing of a
statement by a treating physician that such medication will
not adversely affect the defendant’s understanding of the
proceedings or his ability to assist in his defense.”

In order to maintain the competence of the defendant, the trial court may order
that defendant continue to take such medication during trial. MCL
330.2030(4). In People v Hardesty, 139 Mich App 124, 137 (1984), the Court
of Appeals first held that MCL 330.2020(2) is constitutional. In addition, the
Court held that the issue of whether MCL 330.2030(4) improperly interferes
with a defendant’s right to present an insanity defense must be decided on a
case-by-case basis. Hardesty, supra at 145. A trial court must “balance the
state’s interest in safety and trial continuity . . . with the defendant’s interest
in presenting probative evidence of insanity through his manner and
demeanor on the witness stand . . . .” Id.

Michigan Judicial Institute © 2006–August 2009 Page 6–23

Section 6.14

In limited circumstances, the United States Constitution permits the

Government to administer antipsychotic drugs involuntarily to a mentally ill
criminal defendant — in order to render that defendant competent to stand
trial for serious, but nonviolent, crimes. Sell v United States, 539 US 166, 179
(2003). The Sell Court’s decision was guided by two previous Supreme Court
cases involving administering drugs to an inmate against the inmate’s will. In
Washington v Harper, 494 US 210, 221 (1990), the United States Supreme
Court recognized that an individual possesses a “‘significant’ and
constitutionally protected ‘liberty interest’ in avoiding the unwanted
administration of antipsychotic drugs.” However, forced administration in
Harper was justified by “legitimate” and “important” state interests,
including the constitutionally sound state interest of treating a prison inmate
with serious mental illness who poses a danger to himself or others, when that
treatment is in the inmate’s best medical interests. In Riggins v Nevada, 504
US 127, 134-135 (1992), the Court indicated that only an “essential” or
“overriding” state interest could overcome an individual’s constitutional right
to decline the administration of antipsychotic drugs. The Riggins Court
cautioned that an analysis of the competing interests (the defendant’s right to
deny medication and the state’s interest) must include determinations that the
medication was “medically appropriate” and “essential” to the safety of the
defendant or others.

On the facts of the Sell case, where the defendant’s offenses were primarily
nonviolent, but where the defendant verbally threatened to harm a specific
individual, the Sell Court held:

“[T]he Constitution permits the Government involuntarily

to administer antipsychotic drugs to a mentally ill
defendant facing serious criminal charges in order to
render that defendant competent to stand trial, but only if
the treatment is medically appropriate, is substantially
unlikely to have side effects that may undermine the
fairness of the trial, and, taking account of less intrusive
alternatives, is necessary significantly to further important
governmental trial-related interests.” Id.

The Sell Court predicted that cases permitting the forced administration of
antipsychotic medication solely for trial-competence purposes would be rare
due to the government’s high burden of proof to justify medication solely for
the sake of the defendant’s competence to stand trial. The Court suggested
that alternative grounds in support of forced drug administration (health and
safety issues, potential for harming self or others, etc.) be explored before
attempting to obtain permission on the basis of the defendant’s competence to
stand trial. Id. at 180-182.

8. Competency and the Right of Self-Representation

A criminal defendant may be found competent to stand trial but not competent
to act as his or her own counsel at trial. Indiana v Edwards, 554 US ___, ___

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 Monograph 6—Pretrial Motions (2006–August 2009)

(2008). According to the United States Supreme Court, when a trial judge,
after finding a defendant competent to stand trial, concludes that the defendant
“still suffer[s] from severe mental illness to the point where [he or she is] not
competent to conduct trial proceedings by [him- or herself],” the trial judge
may limit the defendant’s Sixth Amendment right to self-representation by
appointing counsel to represent the defendant at trial. Id. at ___.

6.15 Motion for Compulsory Process of a Defense Witness

or Appointment of an Expert Witness at Public
Expense

Moving Party: Defendant

Burden of Proof: Defendant has the burden of showing that a witness’s

testimony will be material and favorable to the defense, that defendant cannot
safely proceed to trial without the testimony of the witness, and that defendant
does not have the funds necessary to pay for subpoenaing the witness. MCL
775.15.

Discussion

A fundamental element of due process is a defendant’s right to present

witnesses in his or her favor. US Const, Am VI, Washington v Texas, 388 US
14, 19 (1967), Const 1963, art 1, § 20, and MCL 763.1. Fundamental fairness
requires that the state not deny indigent defendants “‘an adequate opportunity
to present their claims fairly within the adversary system.’” People v Leonard,
224 Mich App 569, 580-581 (1997), quoting Ross v Moffitt, 417 US 600, 612
(1974). An indigent defendant must demonstrate that the witness or expert
would be of assistance to the defense and that denial of the request would
result in a fundamentally unfair trial. Leonard, supra at 582, quoting Moore v
Kemp, 809 F2d 702, 709 (CA 11, 1987).

The requirement in MCL 763.1 that an accused “shall have the right to
produce witnesses and proofs in his favor” must not be superimposed on MCL
775.15. People v Morris, 12 Mich App 411, 416-417 (1968). Instead,
applications to summon witnesses or appoint experts at the state’s expense are
addressed to the sound discretion of the trial court. MCL 775.15 and People v
Thomas, 1 Mich App 118, 125 (1965).

Where the defendant satisfied the mandate of Ake v Oklahoma, 470 US 68, 83 *See Section
(1985),* by providing the trial court with specific facts in support of the 6.33, below, for
further
assertion that his sanity was “likely to be a significant factor at trial,” the court discussion of
erred in denying the defendant’s request for independent expert psychiatric the Ake case.
assistance at trial. Powell v Collins, 332 F3d 376, 392 (CA 6, 2003). In
Powell, the Court held that an indigent defendant’s constitutional right to
expert psychiatric assistance was not satisfied—at either the guilt or the
penalty phases of a capital case—by the trial court’s appointment of a
“neutral” clinician available to both parties. See People v Stone, 195 Mich
Michigan Judicial Institute © 2006–August 2009 Page 6–25
Section 6.15

App 600, 606 (1992) (appointed psychiatrist must be independent of

prosecution but need not be of defendant’s own choosing).

*Some statutes The trial court must subpoena defense witnesses or appoint expert witnesses
require the at public expense only if the defendant cannot otherwise proceed safely to
court to appoint
persons to
trial. MCL 775.15. In People v Rich, 110 Mich App 659, 663-664 (1981), the
assist the Court of Appeals held that the trial court did not abuse its discretion in
defense. See, refusing to subpoena requested witnesses where their proposed testimony was
e.g., MCL irrelevant to any defense to the charged offense. However, the Michigan
768.20a(3),
discussed in Supreme Court reversed the Court of Appeals’ decision, finding that the trial
Section 6.33 court erred in allowing the prosecutor to argue the implications of the
(an indigent defendant’s failure to produce witnesses where the prosecutor had
defendant is
entitled to an
successfully opposed the defendant’s motion for compulsory process. People
independent v Rich, 414 Mich 961 (1982). A defendant must “show a nexus between the
psychiatric facts of the case and the need for an expert [witness].” People v Jacobsen, 448
evaluation Mich 639, 641 (1995). See also People v Miller, 165 Mich App 32, 47-48
when preparing
an insanity
(1987) (the trial court properly denied defendant’s request for an expert to
defense), and testify regarding the credibility of children in child sexual abuse cases because
MCL 775.19a such testimony is inadmissible).*
(court must
appoint foreign
language In People v Tanner, 469 Mich 437, 442-444 (2003), the Michigan Supreme
interpreter). Court reversed the holding of the Court of Appeals in People v Tanner, 255
Mich App 369 (2003). The Michigan Supreme Court found that because the
prosecutor’s DNA evidence offered at trial was entirely exculpatory, the
defendant could not show that she could not safely proceed to trial without a
DNA expert.

MCL 775.15 refers to “witnesses within the jurisdiction of the court.” To

implement a defendant’s constitutional and statutory rights to compulsory
process when a material witness resides outside of the state, Michigan has
adopted the “uniform act to secure the attendance of witnesses from without
a state in criminal proceedings,” MCL 767.91 et seq. (the Uniform Act).
People v McFall, 224 Mich App 403, 407-408 (1997). To properly invoke the
procedures under the Uniform Act, a defendant must “(1) designate the
proposed witness’[s] location with a reasonable degree of certainty; (2) file a
timely petition; and (3) make out a prima facie case that the witness’[s]
testimony is material.” Id. at 409.

Cases interpreting the Uniform Act have held that a defendant’s unsupported
assertions that the witness’s testimony is material or necessary are insufficient
to establish a prima facie case of materiality. Instead, a defendant must
present an affidavit of the proposed witness or other competent evidence, such
as the proposed witness’s statements to police. Id. at 410, and People v
Williams, 114 Mich App 186, 201-202 (1982).

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 Monograph 6—Pretrial Motions (2006–August 2009)

6.16 Motion to Suppress Evidence Obtained as a Result of

an Illegal Prearraignment Detention

Moving Party: Defendant

Burden or Proof: The defendant must come forward with evidence that the
evidence in question was obtained as a result of a statutorily unlawful
detention. If the defendant does so, the prosecuting attorney has the burden of
proving the admissibility of the evidence. People v Jordan, 149 Mich App
568, 577 (1986).

Discussion

Following a warrantless arrest for a felony, the peace officer must take an
adult accused before a magistrate for arraignment “without unnecessary
delay.” MCL 764.13 and MCL 764.26. If a juvenile less than 17 years of age
is taken into custody, the juvenile must “immediately” be taken before the
Family Division of the Circuit Court of the county where the offense was
allegedly committed. MCL 764.27. However, if the prosecutor has authorized
the filing of a complaint in District Court under the “automatic” waiver
statute, MCL 600.606, the juvenile need not be taken to the Family Division
following apprehension but to the District Court for arraignment. People v
Brooks, 184 Mich App 793, 797-798 (1990), People v Spearman, 195 Mich
App 434, 443-445 (1992), overruled on other grounds 443 Mich 23, 43
(1993), MCR 6.907(A), and MCR 6.909(A).

In Riverside County v McLaughlin, 500 US 44, 56-57 (1991), the United

States Supreme Court held that a delay in a judicial finding of probable cause
for more than 48 hours is presumptively unreasonable. In addition, a judicial
determination of probable cause within 48 hours may violate the Fourth
Amendment if any delay is used to gather additional evidence to justify the
arrest, is motivated by ill will against the accused, or is otherwise
unreasonable. Id. at 56. In People v Manning, 243 Mich App 615, 638 (2000),
the Court of Appeals held that violations of the standards set forth in Riverside
County do not automatically render a defendant’s confession involuntary.
Instead, trial courts should consider such violations as one factor in the
analysis set forth in People v Cipriano, 431 Mich 315 (1988).

In Cipriano, supra at 333-334, the Michigan Supreme Court held that

“unnecessary delay” in bringing the accused before a magistrate for
arraignment is only one factor in determining whether a confession given
during the delay is voluntary:

“[W]e believe ‘unnecessary delay’ in arraignment is only *See Section

one of the factors that should be considered in evaluating 6.17, below, for
the factors to
the voluntariness of a confession. The test of consider when
voluntariness* should be whether, considering the totality determining the
of all the surrounding circumstances, the confession is ‘the voluntariness of
product of an essentially free and unconstrained choice by a confession.

Michigan Judicial Institute © 2006–August 2009 Page 6–27

Section 6.17

its maker,’ or whether the accused’s will has been

overborne and his capacity for self-determination critically
impaired. . . .’” (Citation omitted.)

The focus of the trial court should be on what occurred during the delay and
its effect on the accused, not only on the length of the delay. However,
prolonged unexplained delay should be a signal to the trial court that the
voluntariness of a confession obtained during the delay may have been
impaired. Id. at 334-335.

*See Section Similarly, in cases involving juveniles, a violation of the “immediacy rule,”
6.17, below, for MCL 764.27 and MCR 3.934, does not mandate exclusion of a confession
a list of the
factors to be
obtained following a violation of the rule, but is merely one factor to consider
applied in in determining the voluntariness of the confession. People v Good, 186 Mich
determining the App 180, 186-188 (1990) (the Court of Appeals held that a “totality of the
voluntariness of circumstances” analysis applies, under which violation of the “immediacy
a juvenile’s
confession. rule” is one factor to consider in determining the voluntariness of a juvenile’s
confession), People v Givans, 227 Mich App 113, 121 (1997), and In re SLL,
246 Mich App 204, 209 (2001).*

Where an unnecessary delay has occurred, admissions or confessions

obtained during the delay must be excluded if the delay was employed as a
tool to extract the statements. People v White, 392 Mich 404, 424 (1974), and
People v Mallory, 421 Mich 229, 240-241 (1984). Similarly, in cases
involving juveniles, a confession is inadmissible if the delay in bringing the
juvenile before the “juvenile court” is used as a tool to extract a confession.
People v Strunk, 184 Mich App 310, 314-322 (1990).

The exclusionary rule also applies to physical evidence obtained from a

detainee when unlawful detention was employed as a tool to directly procure
that evidence, and to any other evidence that would not have been discovered
but for that direct procurement. Mallory, supra at 240-241.

6.17 Motion to Suppress an Involuntary Confession

Moving Party: Defendant

Burden of Proof: The prosecutor has the burden of proving that the
confession was voluntarily given and not the product of coercion. People v
White, 401 Mich 482, 494 (1977). The voluntariness of a defendant’s
confession must be established by a preponderance of the evidence. Lego v
Twomey, 404 US 477, 489 (1972) (the prosecutor must prove by a
preponderance of the evidence that a defendant’s confession was voluntary
although states are free to set a higher standard of proof), and People v Sears,
124 Mich App 735, 738 (1983) (the Court of Appeals declined to require the
prosecutor to prove the voluntariness of a confession beyond a reasonable
doubt).

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 Monograph 6—Pretrial Motions (2006–August 2009)

Discussion

1. General Standard of “Voluntariness”

The standard for voluntariness of a confession is whether it is “the product of

an essentially free and unconstrained choice by its maker,” or whether the
accused’s “will has been overborne and his capacity for self-determination
critically impaired.” Culombe v Connecticut, 367 US 568, 602 (1961), and
People v Peerenboom, 224 Mich App 195, 198 (1997).

Although a defendant’s mental condition may be relevant to the voluntariness

of a confession, coercive police conduct must be present to support a
conclusion that a confession is involuntary within the meaning of the federal
constitution. Colorado v Connelly, 479 US 157, 167 (1986) (mentally ill
defendant’s confession freely offered to police did not violate the Fourteenth
Amendment’s Due Process Clause). See also People v Fike, 228 Mich App
178, 182 (1998) (citing Connelly, the Court of Appeals found no error where
the police did not exploit the defendant’s lack of intelligence). Where a
defendant claims that police conduct at the time of arrest rendered a
subsequent confession involuntary, there must be a sufficient causal link
between the police conduct and confession. People v Wells, 238 Mich App
383, 386-390 (1999) (factors to consider when evaluating the connection
between an alleged beating by police at time of arrest and a subsequent
confession).

A promise of leniency is merely one factor to be considered in evaluating the

voluntariness of a defendant’s or juvenile’s confession. People v Conte, 421
Mich 704, 751, 761-762 (1984) (in a 4-3 decision, the Michigan Supreme
Court rejected a rule that rendered a confession inadmissible if it was induced
by a promise of leniency). In People v Givans, 227 Mich App 113, 119-120
(1997), the Court of Appeals held that a police officer’s promise to mention
the 16-year-old suspect’s cooperation in a report to the prosecutor did not
constitute a promise of leniency. Promises to help the accused and statements
that cooperation will “make things go easier for the accused” or be taken into
account at sentencing are not improper promises of leniency. People v Ewing
(On Remand), 102 Mich App 81, 85-86 (1980), and People v Carigon, 128
Mich App 802, 810-812 (1983).

Similarly, courts have found that police misrepresentation of facts is one

factor to be considered but does not alone render a confession involuntary.
Frazier v Cupp, 394 US 731, 740 (1969), Ledbetter v Edwards, 35 F3d 1062,
1069 (CA 6, 1994), and People v Hicks, 185 Mich App 107, 113 (1990). See
also Givans, supra at 122-1–23 (officer erroneously implying that a 16-year-
old suspect’s fingerprints were found at the crime scene did not render an
otherwise voluntary confession involuntary).

Michigan Judicial Institute © 2006–August 2009 Page 6–29

Section 6.17

2. Disputes Regarding Whether a Confession or Statement

Was Made

The determination of whether a statement was made is separate from a

determination of voluntariness. People v Spivey, 109 Mich App 36, 37 (1981).
Although both issues are questions of fact which would normally be left to the
jury to decide, the Michigan Supreme Court in People v Walker (On
Rehearing), 374 Mich 331 (1965), delegated the determination of
voluntariness to the trial court. However, all other fact issues relevant to the
weight and credibility of a defendant’s statement are left to the jury. Id. at 337,
and People v Robinson, 386 Mich 551, 557-558 (1972).

The Court of Appeals has taken two approaches in cases involving claims that
the police fabricated a confession and coerced the accused to sign it. In People
v Weatherspoon, 171 Mich App 549, 553-555 (1988), the trial court was
found to have justifiably denied a Walker hearing at trial to a defendant who
denied making the confession at issue in the case. After the confession was
admitted into evidence at trial and the defendant found guilty, however, the
Court of Appeals remanded the case to the trial court for a hearing on the
voluntariness of the confession. The jury’s guilty verdict implied its finding
that the defendant had made the confession; that determination having been
made, the defendant was entitled to a hearing on whether the confession was
voluntary. In People v Neal, 182 Mich App 368, 372 (1990), the Court of
Appeals disapproved of the approach taken in Weatherspoon. In Neal, the
Court held that where a defendant claims that he or she involuntarily signed a
statement that was fabricated by police, a Walker hearing is required before
admission of the statement at trial. If the court finds that the defendant
voluntarily made the statement, the issue of whether the police fabricated it
may be presented to the jury. However, if the court finds that the statement
was involuntary, the statement is inadmissible. See also People v Neal, 436
Mich 1201 (1990) (the Michigan Supreme Court declined to order a conflict
resolution panel to resolve the conflict between Weatherspoon and Neal).

3. Evidentiary Hearing Procedures

A defendant has the right to an evidentiary hearing upon request when he or

she challenges the admissibility of evidence on constitutional grounds and a
factual dispute exists. People v Wiejecha, 14 Mich App 486, 488 (1968),
citing Jackson v Denno, 378 US 368 (1964), People v Reynolds, 93 Mich App
516, 519 (1979), and People v Johnson, 202 Mich App 281, 285-287 (1993).
Where “a defendant’s mental, emotional or physical condition, evidence of
police threats, or other obvious forms of physical and mental duress,” or other
alerting circumstances, clearly and substantially raise a question about the
voluntariness of the confession, the court may be required to conduct a
hearing without a request by the defendant. People v Hooks, 112 Mich App
477, 480, 482 (1982), and People v Ray, 431 Mich 260, 271 (1988).

The trial judge alone must make a determination at a separate evidentiary

hearing of the voluntariness of a confession. Jackson, supra at 395, and

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 Monograph 6—Pretrial Motions (2006–August 2009)

Walker, supra at 336-338. The mere hearing of legal arguments is insufficient.

People v Wright, 6 Mich App 495, 502 (1967). The purpose of the hearing is
to determine whether a statement was made voluntarily, in light of the totality
of the circumstances surrounding the statement. People v Crawford, 89 Mich
App 30, 32 (1979), People v Stricklin, 162 Mich App 623, 635-636 (1987),
and People v Good, 186 Mich App 180, 186-190 (1990) (totality of the
circumstances test applies to cases involving juveniles). The defendant may
testify for the limited purpose of making a record of his or her version of the
facts and circumstances under which the confession was obtained without
waiving the right to decline to take the stand at trial. Walker, supra at 338, and
MRE 104(d).

The sole issue in a hearing to determine the voluntariness of a confession is

whether the confession was coerced. “Whether [the confession] is true or false
is irrelevant; indeed, such an inquiry is forbidden. The judge may not take into
consideration evidence that would indicate that the confession, though
compelled, is reliable, even highly so.” Lego, supra at 484 n 12.

If the court determines that the confession was voluntary, the issue of
voluntariness is not submitted to the jury; jury consideration is limited to the
weight and credibility of the defendant’s statements. Walker, supra at 337-
338. Involuntary confessions must not be used to establish guilt or to impeach
the defendant’s credibility if he or she testifies at trial. Mincey v Arizona, 437
US 385, 398 (1978), and People v Reed, 393 Mich 342, 356 (1975). When the
first of two confessions was involuntary, the second confession is admissible
only if intervening events, such as consultation with counsel, broke any
connection between the confessions, and if the second confession was itself
both voluntary and made by the defendant after sufficient explanation and
consideration of his rights. People v Bieri, 153 Mich App 696, 706-712
(1982).

There is no need to conduct an evidentiary hearing to determine the *If a violation of

voluntariness of the defendant’s statements unless he or she has confessed. Miranda is
alleged, the trial
People v Wytcherly, 172 Mich App 213, 219 (1988). “If the fact admitted court must
necessarily amounts to a confession of guilt, it is a confession. If, however, conduct a
the fact admitted does not of itself show guilt but needs proof of other facts, hearing
which are not admitted by the accused, in order to show guilt, it is not a regardless of
whether the
confession but an admission.” People v Porter, 269 Mich 284, 290 (1934). statements in
See also People v Drielick, 56 Mich App 664, 668 (1974), aff’d 400 Mich 559 question
(1977) (the defendant’s statement that he killed the victim was an admission, constitute
admissions or
not a confession, since other facts were necessary to establish murder). confessions.
Admissions by a party are non-hearsay. MRE 801(d)(2).* Miranda v
Arizona, 384
4. Factors to Determine Whether a Confession Was Voluntary US 436, 476-
477 (1966).
Miranda is
In determining whether a confession is voluntary, the trial court should discussed in
examine the totality of the circumstances surrounding the making of the Section 6.18,
statement, including the following factors: below.

Michigan Judicial Institute © 2006–August 2009 Page 6–31

Section 6.17

1) the age of the accused;

2) the accused’s lack of education or intelligence level;

3) the extent of the accused’s previous experience with the police;

4) the repeated and prolonged nature of the questioning;

5) the length of the detention of the accused before he or she gave the
statement in question;

6) the lack of any advice to the accused of his or her constitutional

rights;

7) whether there was an unnecessary delay in bringing the accused

before a magistrate before he or she gave the confession;

8) whether the accused was injured, intoxicated or drugged, or in ill

health when he or she gave the statement;

9) whether the accused was deprived of food, sleep, or medical

attention;

10) whether the accused was physically abused; and

11) whether the suspect was threatened with abuse. People v Cipriano,
431 Mich 315, 334 (1988)

“The absence or presence of any one of these factors is not necessarily

conclusive on the issue of voluntariness. The ultimate test of admissibility is
whether the totality of the circumstances surrounding the making of the
confession indicates that it was freely and voluntarily made.” Id.

Confessions obtained after a defendant has been confronted with evidence

that is later ruled to have been illegally seized are inadmissible because “[t]he
use of the illegally seized evidence undoubtedly had a coercive influence on
defendant’s decision to confess and consequently it must be considered
involuntarily made.” People v Douglas, 50 Mich App 372, 379-380 (1973),
and Fahy v Connecticut, 375 US 85, 89 (1963).

A “non-exhaustive” list of factors to be used to determine whether a juvenile’s

statement was voluntarily made are:

*See Section 1) whether Miranda rules were complied with, and whether the
6.18, below, for juvenile clearly understood and waived his or her Miranda rights;*
discussion of
Miranda.
2) the degree of police compliance with statutory and court rule
requirements;

3) the presence of an adult parent, custodian, or guardian;

4) the juvenile’s personal background;

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 Monograph 6—Pretrial Motions (2006–August 2009)

5) the juvenile’s age, education, and intelligence level;

6) the extent of the juvenile’s prior experience with police;

7) the length of the detention prior to the statement;

8) the repeated or prolonged nature of the questioning; and

9) whether the juvenile was injured, intoxicated, in ill health,

physically abused or threatened with abuse, or deprived of food,
sleep, or medical attention. Good, supra at 186-190. See also
People v Rode, 196 Mich App 58, 69-70 (1992) (discussing the
importance of the presence of a parent, guardian, or custodian),
and People v Hall, 249 Mich App 262, 269 (2002) (violation of
MCL 764.27 and former 5.934 did not warrant suppression where
15-year-old defendant was reasonably intelligent and had prior
experience with police).

Provisions of the Juvenile Code and related court rules require the police to
immediately take a juvenile to the Family Division of Circuit Court when he
or she is taken into custody. MCL 712A.14 and MCR 3.933 and 3.934. This
requirement is also stated in MCL 764.27. Because the “automatic waiver”
statute, MCL 600.606, divests the Family Division of jurisdiction and gives
the Criminal Division original jurisdiction over specified juvenile violations
if the prosecutor files a complaint and warrant instead of a petition, juveniles
charged under this statute need not be taken before the “juvenile court.” MCR
6.907(A), 6.909(A), People v Spearman, 195 Mich App 434, 443-445 (1992),
overruled on other grounds 443 Mich 23, 43 (1993), and People v Brooks, 184
Mich App 793, 797-798 (1990). Often the juvenile who becomes the subject
of the “automatic” waiver procedure is initially detained on a juvenile
complaint, upon authorization to detain from a court representative (usually
the referee on duty). Typically, when the juvenile is apprehended at night, the
police present the complaint to the prosecutor the next morning, and the
prosecutor then writes the criminal complaint and warrant rather than a
juvenile petition. The juvenile is then arraigned in district court, and the
juvenile case is “closed.”

6.18 Motion to Suppress Confession Because of a

Miranda Violation

Moving Party: Defendant

Burden of Proof: Prior to admission of a defendant’s statements in the

prosecutor’s case-in-chief, the prosecutor must make an affirmative showing
that Miranda warnings were given prior to a custodial interrogation and that
a waiver was properly obtained. Miranda v Arizona, 384 US 436, 444 (1966),
and People v Arroyo, 138 Mich App 246, 249-250 (1984). In Miranda, supra,
the United States Supreme Court held that the prosecutor must present
evidence that the defendant voluntarily, knowingly, and intelligently waived

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Section 6.18

his or her privilege against self-incrimination and rights to consult with and
have counsel present during a custodial interrogation. If the defendant claims
that he or she did not validly waive Miranda rights, the prosecutor has the
burden of proving by a preponderance of the evidence that there was a
voluntary, knowing, and intelligent waiver of those rights. Colorado v
Connelly, 479 US 157, 168 (1986), People v Cheatham, 453 Mich 1, 27
(1996), and People v Daoud, 462 Mich 621, 634 (2000). The court must
examine the totality of the circumstances surrounding the interrogation when
evaluating the validity of a purported waiver of Miranda rights. Fare v
Michael C, 442 US 707, 724-725 (1979).

Discussion

Miranda, supra, and cases interpreting its requirements govern the

admissibility in state courts of statements obtained during custodial
interrogation. Dickerson v United States, 530 US 428, 432 (2000) (the
Miranda procedures are required by the Fifth Amendment of the federal
constitution; therefore Miranda could not be overruled by an act of Congress).
The privilege against self-incrimination found in the Michigan Constitution is
no different than the privilege found in the federal constitution. US Const, Am
V, 1963 Const, art 1, § 17, and Paramount Pictures Corp v Miskinis, 418 Mich
708, 726 (1984).

The Miranda rules have been applied to juveniles. See Fare, supra at 717 n 4,
725 (assuming without deciding that Miranda applies to cases involving
juveniles, a juvenile’s request to speak with his probation officer did not
constitute an invocation of the juvenile’s rights to counsel and to remain
silent), People v Anderson, 209 Mich App 527, 530-535 (1995) (juvenile
corrections officer is not a law enforcement officer for Miranda purposes),
and People v Black, 203 Mich App 428, 430 (1994) (in an “automatic” waiver
case, a juvenile’s confession was admissible, where the juvenile initiated a
conversation with police after invoking her Miranda rights).

1. When an Evidentiary Hearing Must Be Conducted

A separate evidentiary hearing must be conducted by the court when the

defendant challenges the admissibility of his or her statements on the basis of
an alleged Miranda violation. Arroyo, supra at 249-250.

2. When Miranda Warnings Must Be Given—Custody and

Interrogation Requirements
*See also Miranda warnings must be given only in situations involving “custodial
Traffic interrogation.” Custodial interrogation means “‘questioning initiated by law
Benchbook—
Third Edition
enforcement officers after a person has been taken into custody or otherwise
(MJI, 2005-April deprived of his freedom of action in any significant way.’” People v Hill, 429
2009), Vol 3, Mich 382, 387 (1987), quoting Miranda, supra at 444.*
Section 2.2(E),
for further
discussion.

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 Monograph 6—Pretrial Motions (2006–August 2009)

• Custody

Under both federal and Michigan law, Miranda warnings must be given to a
suspect prior to questioning only when the suspect is in custody or otherwise
deprived of freedom of action in any significant way, not at the time a person
becomes the focus of an investigation. Oregon v Mathiason, 429 US 492, 495
(1977), Hill, supra at 391-399, and People v Peerenboom, 224 Mich App 195,
197-198 (1997). Warnings need not be given unless the person is arrested or
deprived of his or her freedom to a degree associated with formal arrest.
California v Beheler, 463 US 1121, 1125 (1983), Terry v Ohio, 392 US 1
(1968), People v Chinn, 141 Mich App 92, 96 (1985) (warnings not required
during routine traffic stop), and People v Edwards, 158 Mich App 561, 564
(1987) (warnings not required during routine traffic stop where officer asks if
there are weapons in the car). “[T]he initial determination of custody depends
on the objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person being
questioned. Stansbury v California, 511 US 318, 323 (1994). See also People
v Zahn, 234 Mich App 438, 449 (1999) (interrogating officer’s unspoken
intent to prevent the defendant from leaving the apartment where the
interrogation took place was improperly considered by the trial court).

Additional factors to consider in evaluating a custody determination are: “‘(1)

the purpose of the questioning; (2) whether the place of the questioning was
hostile or coercive; (3) the length of the questioning; and (4) other indicia of
custody such as whether the suspect was informed at the time that the
questioning was voluntary or that the suspect was free to leave or to request
the officers to do so; whether the suspect possessed unrestrained freedom of
movement during questioning; and whether the suspect initiated contact with
the police or voluntarily admitted the officers to the residence and acquiesced
to their requests to answer some questions.’” Coomer v Yukins, 533 F3d 477,
486 (CA 6, 2008), quoting United States v Salvo, 133 F3d 943, 950 (CA 6,
1998).

• Interrogation

In addition to the requirement that a person be in custody, Miranda warnings

must be provided only if a person is subjected to “interrogation.”
“Interrogation” means “express questioning [or] any words or actions on the
part of police that the police should know are reasonably likely to elicit an
incriminating response from the subject.” Anderson, supra at 532, citing
Rhode Island v Innis, 446 US 291, 301 (1980). See also People v Fisher, 166
Mich App 699, 708 (1988), rev’d on other grounds 442 Mich 560 (1993), and
cases cited therein (placing incriminating evidence in the suspect’s view is
generally not “interrogation”). Even where a person is in custody,
spontaneous and volunteered statements are not inadmissible due to a failure
to provide Miranda warnings. People v Raper, 222 Mich App 475, 479-480
(1997).

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Section 6.18

• Exceptions to Miranda Warning Requirement

The police need not give Miranda warnings prior to making on-the-scene
inquiries to determine whether an offense has been committed. People v
Ingram, 412 Mich 200, 204-205 (1981). Moreover, police need not give
Miranda warnings to a suspect who is in custody when the officer’s questions
are prompted by a reasonable concern for public safety. New York v Quarles,
467 US 649, 655-656 (1984). For the “public safety exception” to Miranda
requirements to apply, “the police inquiry must have been an objectively
reasonable question necessary to protect the police or the public from an
immediate danger.” People v Attebury, 463 Mich 662, 671 (2001). The
“public safety exception” applies to questions necessary to protect the police
and the general public but does not apply to investigatory questions
concerning the underlying offense. Id.

3. Invocation of Miranda Rights

A suspect’s request for an attorney or assertion of the right to remain silent

must be affirmative, unequivocal, and unambiguous. Davis v United States,
512 US 456, 459 (1994) (suspect “must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an
attorney”), People v Tierney, 266 Mich App 687, 711 (2005) (defendant’s
statements, “Maybe I should talk to an attorney” and “I might want to talk to
an attorney” were equivocal and did not properly invoke his right to counsel),
United States v Suarez, 263 F3d 468, 482-483 (CA 6, 2001) (suspect’s
acknowledgment that a third party had retained counsel for the suspect did not
constitute an affirmative assertion of the right to have counsel present),
People v Granderson, 212 Mich App 673, 676-678 (1995) (suspect’s
statement that he would need an attorney in the future held insufficient to
invoke Miranda right), Abela v Martin, 380 F3d 915, 925-926 (CA 6, 2004)
(defendant’s request for counsel was unequivocal where defendant “named
the specific individual with whom he wanted to speak and then showed [the
police officer] the attorney’s business card”), and McGraw v Holland, 257
F3d 513, 518 (CA 6, 2001) (suspect’s assertion that she did not want to talk
about the rape held to be unambiguous invocation of her right to silence
regarding the alleged rape). When determining whether a suspect has invoked
the rights to consult with and have counsel present during interrogation, courts
must evaluate the objective circumstances surrounding the interview. Davis,
supra at 458, and People v Adams, 245 Mich App 226, 237 (2001).

*Miranda v See also People v Reginald Williams, 275 Mich App 194, 197-198 (2007),
Arizona, 384 where the defendant unsuccessfully claimed that a second custodial
US 436 (1966).
interrogation violated his Miranda* rights because his earlier refusal to reduce
his first statement to writing constituted an invocation of his right to silence.

In Miranda, supra at 473-474, the Court stated the following regarding the
required procedure following the invocation of a suspect’s rights:

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 Monograph 6—Pretrial Motions (2006–August 2009)

“Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any
manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease. . . . If
the individual states that he wants an attorney, the
interrogation must cease until an attorney is present. At
that time, the individual must have an opportunity to
confer with the attorney and to have him present during
any subsequent questioning. If the individual cannot obtain
an attorney and he indicates that he wants one before
speaking to police, they must respect his decision to
remain silent.”

A suspect’s invocation of his or her right to silence must be “scrupulously

honored.” Michigan v Mosley, 423 US 96, 103 (1975), quoting Miranda,
supra at 479.

4. Interrogation After Miranda Rights Have Been Invoked

The United States Supreme Court has stated that if police “scrupulously
honored” a suspect’s prior invocation of his or her right to remain silent, they
may subsequently question the suspect “only after the passage of a significant
period of time and the provision of a fresh set of warnings, and restrict[ing]
the second interrogation to a crime that had not been a subject of the earlier
interrogation.” Mosley, supra at 106. The Michigan Court of Appeals has held
that the police are not limited to questioning the suspect regarding a separate
offense if the police have otherwise followed the requirements set forth in
Mosley. People v Slocum (On Remand), 219 Mich App 695, 702 (1996).

If the suspect has invoked his or her right to consult with and have counsel
present during interrogation, the suspect must not be subsequently
interrogated unless he or she initiates subsequent communication, exchanges,
or conversations with police. Edwards v Arizona, 451 US 477, 484-485
(1981), and People v Paintman, 412 Mich 518, 524-526 (1982). “When
counsel is requested, interrogation must cease, and officials may not reinitiate
interrogation without counsel present, whether or not the accused has
consulted with his attorney.” Minnick v Mississippi, 498 US 146, 153 (1990).
But see People v Kowalski, 230 Mich App 464, 482 (1998) (asking the
accused whether he “would still like to talk to an attorney” did not constitute
police-initiated interrogation). After the suspect has invoked the Miranda
right to counsel, the police may not interrogate the suspect regarding a
different offense. Arizona v Roberson, 486 US 675, 677-678 (1988). Although
the suspect may reinitiate an exchange with the police, such a reinitiation does
not alone constitute a waiver of the right to have counsel present. Oregon v
Bradshaw, 462 US 1039, 1044 (1983) (plurality opinion), and People v
Myers, 158 Mich App 1, 11-12 (1987) (the police must honor the accused’s
request for counsel before a court may find that subsequent statements by the
accused constituted a waiver of the right to counsel).

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Section 6.18

Edwards, supra does not apply to a suspect who was not in continuous
custody during the time between the suspect’s first interrogation, at which he
invoked his right to counsel and denied involvement in the crime, and the
suspect’s second interrogation 11 days later, at which the suspect
acknowledged and waived his right to counsel and implicated himself in the
crime. People v Harris, 261 Mich App 44, 54-55 (2004).

5. Limited Invocations of Miranda Rights

A suspect’s request for an attorney before making a written statement does not
constitute an invocation of his or her right to counsel with regard to oral
statements made to police. Connecticut v Barrett, 479 US 523, 529 (1987).
Similarly, a suspect may choose to discuss certain subjects but assert his or
her right to silence regarding others, or may deal with the police through
counsel concerning certain subjects but directly concerning other subjects.
People v Adams, 245 Mich App 226, 230-234 (2001) (suspect’s limited
request for counsel in conjunction with questions concerning motive allowed
police to continue to question him concerning other topics), People v Spencer,
154 Mich App 6, 13 (1986) (suspect’s assertion that he wanted to limit his
answers was not an unequivocal invocation of his right to remain silent), and
People v Jackson, 158 Mich App 544, 550-551 (1987) (defendant’s assertion
that “he didn’t want to say anything about the gun” held a limitation on the
subject matter of interrogation or, at best, an equivocal assertion of the right
to remain silent).

6. The Requirements for a Valid Waiver of Miranda Rights

To establish a valid waiver of Miranda rights, the prosecutor must prove that
the suspect voluntarily, knowingly, and intelligently waived those rights.
Miranda, supra at 444, 475. A waiver is valid if the “suspect’s decision not to
rely on his rights was uncoerced, that he at all times knew he could stand mute
and request a lawyer, and that he was aware of the State’s intention to use his
statements to secure a conviction . . . .” Moran v Burbine, 475 US 412, 422
(1986). Coercive police conduct must be present to support a conclusion that
a waiver of Miranda rights is involuntary. Connelly, supra at 165, 169-170,
and People v Howard, 226 Mich App 528, 538 (1997). When determining
whether a waiver was knowing and intelligent, the court must conduct a
subjective inquiry into the suspect’s level of understanding of his or her rights,
irrespective of police behavior. Cheatham, supra at 26. However, “a suspect
need not understand the ramifications and consequences of choosing to waive
or exercise the rights that the police have properly explained to him.” Id. at
28. See also Daoud, supra at 636-639, and In re Abraham, 234 Mich App 640,
646-655 (1999) (11-year-old defendant knowingly and intelligently waived
his Miranda rights).

A defendant who is intoxicated and claims to be suicidal may make a valid

waiver of his or her Miranda rights as long as the totality of the circumstances
supports a finding that the waiver was voluntary and that it was made

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 Monograph 6—Pretrial Motions (2006–August 2009)

knowingly and intelligently. People v Tierney, 266 Mich App 687, 708-709
(2005).

Waiver of Miranda rights need not be explicit but may be determined by

examining the surrounding circumstances, “including the background,
experience, and conduct of the accused.” North Carolina v Butler, 441 US
369, 375 (1979). In Butler, supra at 373, the United States Supreme Court
stated as follows:

“An express written or oral statement of waiver of the right

to remain silent or of the right to counsel is usually strong
proof of the validity of that waiver, but is not inevitably
either necessary or sufficient to establish waiver. The
question is not one of form, but rather whether the
defendant in fact knowingly and voluntarily waived the
rights delineated in the Miranda case. As was
unequivocally said in Miranda, mere silence is not enough.
That does not mean that the defendant’s silence, coupled
with an understanding of his rights and a course of conduct
indicating waiver, may never support a conclusion that a
defendant has waived his rights. The courts must presume
that a defendant did not waive his rights; the prosecution’s
burden is great; but in at least some cases waiver can be
clearly inferred from the actions and words of the person
interrogated.”

“[A] valid waiver will not be presumed simply from the silence of the accused *Miranda v
after warnings are given or simply from the fact that a confession was in fact Arizona, 384
US 436 (1966).
eventually obtained.” Miranda, supra at 475.

A defendant’s “responses” during a one-sided three-hour interrogation,

“consisting of [occasional] eye contact, head nods, declining a peppermint,
complaining about his chair, and occasional statements of ‘I don’t know’” in
answer to unidentified questions did not “suffice to meet the state’s ‘great’
burden of showing that [the defendant] waived his right to remain silent.”
Thompkins v Berghuis, 547 F3d 572, 584, 586 (CA 6, 2008) (appeal of the
federal district court’s denial of the defendant’s habeas corpus petition). The
Thompkins Court stated:

“Had [the detective] testified that [the defendant] nodded his head
in response to a question asking whether [the defendant] wanted
his side of the story to be known, such testimony would obviously
be powerful evidence of waiver; a head nod in response to a
question asking whether [the defendant] was comfortable
declining to exercise his opportunity to tell his side of the story (or
a ‘no’ to a question about whether [the defendant] wished to tell
his story) would present an entirely different situation. Without the
context of [the defendant’s] occasional eye contact or head nods,
we cannot say that [the defendant’s] conduct indicated a waiver of

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Section 6.18

his rights; to the contrary, refusing to sign even an advice of rights

form, being ‘so uncommunicative,’ ‘remain[ing] silent,’ and
spen[ding] a lot of his time sitting . . . simply holding his head
looking down,’ form a course of conduct that powerfully suggests
[the defendant] did not waive his rights.” Id. at 587.

A preponderance of the evidence proved that a deaf-mute defendant

knowingly, intelligently, and voluntarily waived her Miranda* rights when
she made inculpatory statements during interrogation after a detective placed
a constitutional rights form within the defendant’s range of vision, read
portions of the form aloud while a sign language interpreter signed and
mouthed the detective’s words to the defendant, and the defendant signed the
form. People v McBride, 480 Mich 1047 (2008); People v McBride, 273 Mich
App 238, 240-244 (2006).

A suspect’s refusal to sign a written “advice of rights and waiver form” does
not, by itself, preclude a valid waiver. Butler, supra at 370-371, and People v
Wirth, 87 Mich App 41, 46 (1978).

“[W]hen an accused has invoked his right to have counsel present during
custodial interrogation, a valid waiver of that right cannot be established by
showing only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.” Edwards, supra at
484.

The “valid waiver rule” of Edwards does not apply to the subsequent
interrogation of a suspect who was not held in continuous custody between his
first interrogation, at which he requested counsel and denied involvement in
the crime, and his second interrogation 11 days later, at which he
acknowledged his right to counsel and implicated himself in the crime.
Harris, supra at 54. Notwithstanding the time that passed between
interrogations in Harris and the fact that the defendant was not held in custody
during that time, the Court found that the prosecution had established by a
preponderance of the evidence that the defendant executed a valid waiver of
his right to counsel at the second interrogation. Id. at 55.

The police must inform a suspect “that a retained attorney is immediately

available to consult with him,” and the failure to do so precludes a knowing
and intelligent waiver of the suspect’s Miranda rights. People v Bender, 452
Mich 594, 597, 620-621 (1992). See also Burbine, supra at 425-428 (although
the federal constitution does not require police to notify a suspect that a
retained attorney is attempting to reach the suspect, states are free to adopt
different requirements). It should be noted that only three justices based the
rule in Bender on Const 1963, art 1, § 17; however, four justices supported the
prophylactic rule stated above. The Court of Appeals has held that an
attorney’s phone contact with the police is sufficient to invoke the rule set
forth in Bender. People v Leversee, 243 Mich App 337, 343-347 (2000).

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 Monograph 6—Pretrial Motions (2006–August 2009)

7. Use of Confessions Obtained in Violation of Miranda

A defendant may be impeached with a confession that was obtained in

violation of Miranda if the confession was otherwise voluntary. Harris v New
York, 401 US 222, 226 (1971), and People v Stacy, 193 Mich App 19, 23-25
(1992).

The fruits of a Miranda violation are admissible if the defendant’s statements

were otherwise voluntary. Thus, physical evidence, the defendant’s
subsequent confession, or another witness’s testimony discovered as a result
of a statement obtained in violation of Miranda is admissible if the statement
is otherwise voluntary. United States v Patane, 542 US 600, 636-637 (2004)
(plurality opinion) (physical evidence admissible), Oregon v Elstad, 470 US
298, 306-307 (1985) (defendant’s subsequent voluntary confession obtained
after proper waiver of Miranda rights admissible), Michigan v Tucker, 417
US 433, 445-446 (1974) (witness’s testimony admissible where witness’s
identity was discovered as a result of defendant’s unwarned statement),
People v Kusowski, 403 Mich 653, 660-662 (1978) (relying on Tucker), and
United States v Crowder, 62 F3d 782, 786 (CA 6, 1995). However, in a
plurality decision addressing a police policy of deliberately omitting Miranda
warnings, obtaining a confession, and then administering proper Miranda
warnings and obtaining a purported waiver, the U.S. Supreme Court
concluded that an accused’s post-warning statement was inadmissible.
Missouri v Seibert, 542 US 600, 604 (2004). Whether a failure to provide
Miranda warnings is purposeful or not, a reviewing court should ask if “it
would be reasonable to find that in these circumstances the warnings could
function ‘effectively’ as Miranda requires.” Seibert, supra at 611-612. The
Seibert Court focused on whether the two interrogations were close in time
and similar in content. “[W]hen Miranda warnings are inserted in the midst of
coordinated and continuing interrogation, they are likely to mislead and
‘deprive a defendant of knowledge essential to his ability to understand the
nature of his rights and the consequences of abandoning them.’” Seibert,
supra at 613-614, quoting Burbine, supra at 424. See also Coomer v Yukins,
533 F3d 477, 490-492 (CA 6, 2008) (where the defendant gave three
confessions—an unwarned, voluntary oral confession at her home; an
unlawfully obtained written confession at her home; and a voluntary oral
confession at the police station following a valid waiver of Miranda rights—
the third confession was properly admitted because the defendant was in a
new location, there had been a break in time between the second and third
statements, the defendant was specifically informed that she was in custody,
and the first and third statements were substantially similar in content).

6.19 Motion to Suppress Confession for Violation of Sixth

Amendment Right to Counsel

Moving Party: Defendant

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Section 6.19

Burden of Proof: To use in its case-in-chief a confession deliberately elicited

following arraignment, the prosecuting attorney must prove that police
obtained a voluntary, knowing, and intelligent relinquishment of the Sixth
Amendment right to counsel before they interrogated the accused. Brewer v
Williams, 430 US 387, 410 (1977) (Powell, J, concurring), and Patterson v
Illinois, 487 US 285, 292 (1988).

Discussion

The Sixth Amendment to the United States Constitution states that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” The relevant provision of the state
constitution is virtually identical. See Const 1963, art 1, § 20. In Massiah v
United States, 377 US 201, 205-206 (1964), the United States Supreme Court
held that the use as substantive evidence of an accused’s confession
deliberately elicited by federal agents after the accused had been indicted but
in the absence of counsel violated the Sixth Amendment right to counsel.

Rights to counsel are protected under both the Fifth and Sixth Amendments to
the United States Constitution. Rhode Island v Innis, 446 US 291, 300 n 4
(1980).

A defendant’s Sixth Amendment right to counsel is protected by the “three

layers of prophylaxis” established by the United States Supreme Court to
ensure that a defendant’s Fifth Amendment rights are protected. Montejo v
Louisiana, 556 US ___, ___ (2009). “[O]nce ‘an accused has invoked his [or
her] right to have counsel present during custodial interrogation . . . [he or she]
is not subject to further interrogation by the authorities until counsel has been
made available,’ unless he [or she] initiates the contact.” Montejo, supra at
___, quoting Edwards v Arizona, 451 US 477, 484-485 (1981). The
prophylactic rule in Edwards protects a suspect’s voluntary decision to remain
silent when his or her counsel is not present. Montejo, supra at ___.
Additionally, “no subsequent interrogation may take place until counsel is
present, ‘whether or not the accused has consulted with his [or her] attorney.’”
Montejo, supra at ___, quoting Minnick v Mississippi, 498 US 146, 153
(1990). In sum, “[u]nder the Miranda-Edwards-Minnick line of cases . . . a
defendant who does not want to speak to the police without counsel present
need only say as much when he [or she] is first approached and given the
Miranda warnings. At that point, not only must immediate contact end, but
‘badgering’ by later requests is prohibited.” Montejo, supra at ___. “[T]hese
cases . . . protect the right to have counsel during custodial interrogation—
which right happens to be guaranteed (once the adversary judicial process has
begun) by two sources of law,” i.e., the Fifth and Sixth Amendments. Id. at
___. Because “the right under both sources is waived using the same
procedure . . . doctrines ensuring voluntariness of the Fifth Amendment
waiver simultaneously ensure the voluntariness of the Sixth Amendment
waiver.” Id. at ___, overruling Michigan v Jackson, 475 US 625 (1986)
(police forbidden from initiating interrogation of a criminal defendant once he

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 Monograph 6—Pretrial Motions (2006–August 2009)

or she invoked the Sixth Amendment right to counsel at an arraignment or

similar proceeding).

The Sixth Amendment right to counsel attaches at the initiation of adversarial

judicial criminal proceedings against a defendant, i.e., at the first appearance
before a judicial officer at which the defendant is told of the formal accusation
against him or her, and restrictions are imposed on his or her liberty (e.g.,
formal charge, preliminary hearing, indictment, information, or arraignment).
Rothgery v Gillespie Co, 554 US ___, ___ (2008). See also Duncan v State of
Michigan, 284 Mich App 246, 264 (2009) (critical stages, in part, include the
preliminary examination, a pretrial lineup, and the entry of a plea). The Sixth
Amendment right to counsel attaches without regard to whether a public
prosecutor is aware of the initial proceeding or is involved in its conduct.
Rothgery, supra at ___.

“[W]hen the Sixth Amendment right to counsel attaches, it . . . encompasses *See Section
offenses that, even if not formally charged, would be considered the same 6.23, below, for
discussion of
offense under . . . Blockburger [v United States, 284 US 299 (1932)]. . . .”* the Blockburger
Texas v Cobb, 532 US 162, 173 (2001). case.

Where police officers initiated contact with the defendant regarding a

polygraph examination after the defendant was arraigned and appointed
counsel and while the defendant remained in custody, the defendant’s
statements were obtained in violation of his Sixth Amendment right to
counsel and should have been suppressed. People v Harrington, 258 Mich
App 703, 706-707 (2003).

Although the Michigan Supreme Court was bound by the federal district *People v
court’s habeas corpus decision concerning the defendant’s ineffective Frazier (Frazier
I), 270 Mich App
assistance of counsel claim, the Court discussed “the correctness of this 172, 179-180
analysis” because the Court of Appeals endorsed the federal court’s decision (2006).
in a published opinion.* People v Frazier (Frazier II), 478 Mich 231, 242
(2007). The Supreme Court determined that the federal court wrongly
determined that the defendant’s confession was inadmissible because the
federal court incorrectly considered the defendant’s ineffective assistance
claim under the standard in United States v Cronic, 466 US 648 (1984), rather
than under the test in Strickland v Washington, 466 US 668 (1984). Frazier II,
supra at 245-246.

In Frazier I, the Court of Appeals agreed with the federal district court’s
conclusion that “the prosecution could not use defendant’s custodial
statements in its case-in-chief because counsel had abandoned defendant at a
critical stage of the proceedings (the police interrogation),” and that counsel’s
conduct constituted a violation of the defendant’s Sixth Amendment right to
counsel under Cronic. Frazier II, supra at 239. In Frazier II, supra at 244, the
Supreme Court concluded that the federal district court’s Cronic analysis was
improper because “[t]he Cronic test applies when the attorney’s failure is
complete, while the Strickland test applies when counsel failed at specific
points of the proceeding.” According to the Frazier II Court, “[b]ecause

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Section 6.19

counsel consulted with defendant, gave him advice, and did nothing contrary
to defendant’s wishes, counsel’s alleged failure was not complete.” Frazier II,
supra at 244-245.

Even though the Frazier II Court could not disturb the federal court’s ruling
under Cronic—that defense counsel’s conduct violated the defendant’s
constitutional right to counsel, the Court pointed out that the exclusionary rule
was not appropriate under the circumstances of the case. Frazier II, supra at
255-256. Although the exclusionary rule may be an appropriate remedy for a
Sixth Amendment violation, the Frazier II Court explained that “[e]xcluding
defendant’s confession because of attorney error does not fulfill the goal of
the exclusionary rule by deterring the police from future misconduct.” Id. at
250. The Court also noted that derivative evidence obtained as a result of the
defendant’s confession, but in the absence of any interference by police with
the defendant’s counsel, was similarly not subject to the exclusionary rule. Id.
at 250-252. The Frazier II Court further commented that even if the
defendant’s confession did result from police misconduct, the exclusionary
rule did not apply to the street sweepers’ testimony because any connection
between the misconduct involved in obtaining the defendant’s confession was
sufficiently attenuated to dissipate any taint. Id. at 252-253.

On the basis of its analysis, the Frazier II Court reversed the Frazier I Court’s
holding that subjected the street sweepers’ testimony to the exclusionary rule.
Frazier II, supra at 247, 256. In addition, the Court vacated the Frazier I
Court’s endorsement of the federal court’s application of Cronic to the
defendant’s ineffective assistance claim. Frazier II, supra at 256.

If the accused has requested counsel at arraignment, a waiver of the right

made during police-initiated discussion is presumed involuntary. “[W]hen an
accused has invoked his right to have counsel present. . . , a valid waiver of
that right cannot be established by showing only that he responded to further
police-initiated custodial interrogation even if he has been advised of his
rights.” Edwards, supra at 484. If the accused chooses to initiate
communications, he or she must be sufficiently aware of his or her Fifth and
Sixth Amendment rights to effectuate a voluntary, knowing, and intelligent
waiver of each right. People v McElhaney, 215 Mich App 269, 274 (1996).

To determine whether a waiver of an accused’s Sixth Amendment right to

counsel is knowing and intelligent, the court must examine the circumstances
surrounding the purported waiver, including the background, experience, and
conduct of the accused. People v Riley, 156 Mich App 396, 399 (1986),
overruled on other grounds 453 Mich 132 (1996). The giving of Miranda
warnings is sufficient to ensure that an accused’s waiver of his or her Sixth
Amendment right to counsel is knowing and intelligent. Patterson, supra at
298-300, and McElhany, supra at 276-277.

Even where the accused initiates communication with authorities, it is a

violation of ethical rules for the prosecuting attorney to communicate with, or
cause the police to communicate with, the accused regarding the charged

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 Monograph 6—Pretrial Motions (2006–August 2009)

offense without notifying defense counsel. People v Green, 405 Mich 273,
289-292 (1979), construing former DR 7-104(A)(1). See current MRPC 3.8
and 4.2.

A defendant’s Sixth Amendment right to counsel was violated when the

defendant’s former friend and neighbor (Heintzelman) was permitted to
testify at the defendant’s trial about inculpatory statements the defendant
made during a late-night conversation Heintzelman, a reserve deputy in full
uniform at the time of the conversation, had with the defendant in his
maximum-security jail cell. People v McRae, 469 Mich 704, 715-718 (2004).

6.20 Motion for Substitution of Counsel for Defendant or

Motion to Withdraw as Counsel for Defendant

Moving Party: Defendant or counsel for defendant

Burden of Proof: The moving party bears the burden of proof. An indigent
defendant who seeks substitution of assigned counsel must show good cause
for substitution. People v Ginther, 390 Mich 436, 441 (1973).

Discussion

An indigent defendant is guaranteed the right to counsel but has no right to

appointed counsel of his or her choice. People v Wilson, 43 Mich App 459,
461-462 (1972), and People v Mack, 190 Mich App 7, 14 (1991).
Appointment of substitute counsel is warranted only upon a showing of good
cause and only if substitution will not unreasonably disrupt the judicial
process. Where there is a legitimate difference of opinion between the
defendant and appointed counsel as to a fundamental trial tactic, including a
bona fide irreconcilable dispute regarding a substantial defense, there is good
cause for substitution of counsel. People v Jones, 168 Mich App 191, 194
(1988), People v Krist, 93 Mich App 425, 436-437 (1979), and Mack, supra.
Disagreements over trial strategy do not provide adequate grounds for
substitution of counsel. Krist, supra. A defendant may not purposely break
down the attorney-client relationship by refusing to cooperate with assigned
counsel and then argue that there is good cause for substitution of counsel.
People v Meyers (On Remand), 124 Mich App 148, 166-167 (1983), and
People v Traylor, 245 Mich App 460, 462-463 (2001). A defendant’s filing of
a grievance against trial counsel does not establish good cause per se for
substitution of counsel. Id. A defendant’s allegations that counsel did not see
things defendant’s way and did not pursue futile motions or meaningless
discovery does not establish good cause for substitution of counsel. See
People v Russell, 254 Mich App 11, 14 (2002), rev’d on other grounds 471
Mich 182 (2004) (matters of general legal expertise and strategy fall within
the sphere of counsel’s professional judgment).

The matter of substitution of counsel is addressed to the sound discretion of

the court. Wilson, supra at 462, and Mack, supra. If there is a factual dispute
Michigan Judicial Institute © 2006–August 2009 Page 6–45
Section 6.21

concerning the defendant’s claim that assigned counsel is not adequate or

diligent, or that counsel is disinterested, the judge should take testimony and
make findings. Ginther, supra at 441-442. By challenging the effectiveness of
counsel, a defendant waives the attorney-client privilege regarding matters
relevant to counsel’s competence. MRPC 1.6(c)(5) and People v Houston,
448 Mich 312, 332-333 (1995). However, a defendant should receive
protection from self-incrimination if he or she testifies at a “Ginther hearing.”
People v Walker (On Rehearing), 374 Mich 331, 338 (1965), and
Commonwealth v Chmiel, 738 A2d 406, 424 (Pa, 1999).

Under certain circumstances, an attorney may be obligated to request to

withdraw from representation of a defendant. See MRPC 1.16.
Notwithstanding good cause for terminating representation, an attorney must
continue to represent a defendant if so ordered by the court. MRPC 1.16(c).

6.21 Motion to Compel Discovery

Moving Party: Defendant, but the prosecuting attorney may also file a
motion to compel discovery.

Burden of Proof: The defendant has the burden of showing facts indicating
that the information sought is necessary to prepare a defense and to ensure a
fair trial. People v Maranian, 359 Mich 361, 368 (1960). To be entitled to a
remedy for a discovery violation, the moving party must show actual
prejudice. People v Taylor, 159 Mich App 468, 482 (1987).

To establish a violation of Brady v Maryland, 373 US 83, 87 (1963), the

defendant has the burden of showing 1) that the state possessed evidence
favorable to him or her, 2) that the defendant did not possess the evidence and
could not have obtained it through the exercise of due diligence, 3) that the
prosecution suppressed the favorable evidence, and 4) that had the evidence
been disclosed to the defense, a reasonable probability exists that the outcome
of the proceedings would have been different. People v Lester, 232 Mich App
262, 281 (1998), and People v Fox (After Remand), 232 Mich App 541, 549
(1998).

Discussion

1. Information That Must Be Disclosed by Both Parties

*Effective In felony cases, discovery is governed by MCR 6.201. MCR 6.001(A). In
January 1, misdemeanor cases, discovery is within the court’s discretion. See People v
2006.
Laws, 218 Mich App 447, 454 (1996). MCR 6.201(A)* lists the information
that is subject to mandatory disclosure:

“(A) Mandatory Disclosure. In addition to disclosures

required by provisions of law other than MCL 767.94a, a
party upon request must provide all other parties:

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(1) the names and addresses of all lay and expert

witnesses whom the party may call at trial; in the
alternative, a party may provide the name of the
witness and make the witness available to the other
party for interview; the witness list may be
amended without leave of the court no later than 28
days before trial;

(2) any written or recorded statement pertaining to

the case by a lay witness whom the party may call
at trial, except that a defendant is not obliged to
provide the defendant’s own statement;

(3) the curriculum vitae of an expert the party may

call at trial and either a report by the expert or a
written description of the substance of the proposed
testimony of the expert, the expert’s opinion, and
the underlying basis of that opinion;

(4) any criminal record that the party may use at

trial to impeach a witness;

(5) a description or list of criminal convictions,

known to the defense attorney or prosecuting
attorney, of any witness whom the party may call at
trial; and

(6) a description of and an opportunity to inspect

any tangible physical evidence that the party may
introduce at trial, including any document,
photograph, or other paper, with copies to be
provided on request. A party may request a hearing
regarding any question of costs of reproduction. On
good cause shown, the court may order that a party
be given the opportunity to test without destruction
any tangible physical evidence.”

The January 1, 2006, amendment to MCR 6.201(A) requires disclosure when

a party “may” call a witness or introduce evidence; prior to the amendment,
the rule required disclosure if a party “intended to” call a witness or introduce
evidence. The newly added alternative to disclosure of a witness’s address in
MCR 6.201(A)(1) is intended to preserve the witness’s safety.

In addition to required disclosure under MCR 6.201(A)(1), the prosecuting

attorney must attach a list of certain witnesses to the information and may be
required to give reasonable assistance to the defendant to locate known
witnesses. MCL 767.40a provides in pertinent part:

“(1) The prosecuting attorney shall attach to the filed

information a list of all witnesses know to the prosecuting
attorney who might be called at trial and all res gestae

Michigan Judicial Institute © 2006–August 2009 Page 6–47

Section 6.21

witnesses known to the prosecuting attorney or

investigating law enforcement officers.

“(2) The prosecuting attorney shall be under a continuing

duty to disclose the names of any further res gestae
witnesses as they become known.

“(3) Not less than 30 days before the trial, the prosecuting
attorney shall send to the defendant or his or her attorney a
list of the witnesses the prosecuting attorney intends to
produce at trial.

“(4) The prosecuting attorney may add or delete from the

list of witnesses he or she intends to call at trial at any time
upon leave of the court and for good cause shown or by
stipulation of the parties.

“(5) The prosecuting attorney or investigative law

enforcement agency shall provide to the defendant, or
defense counsel, upon request, reasonable assistance,
including investigative assistance, as may be necessary to
locate and serve process upon a witness. The request for
assistance shall be made in writing by defendant or defense
counsel not less than 10 days before the trial of the case or
at such other time as the court directs. If the prosecuting
attorney objects to a request by the defendant on the
grounds that it is unreasonable, the prosecuting attorney
shall file a pretrial motion before the court to hold a
hearing to determine the reasonableness of the request.”

MCR 6.112(D) similarly requires that a list be attached to the information of

all witnesses known to the prosecuting attorney who might be called at trial
and all res gestae witnesses known to the prosecutor or investigating law
enforcement officers.

“A res gestae witness is a person who witnesses some event in the continuum
of a criminal transaction and whose testimony will aid in developing full
disclosure of the facts.” People v O’Quinn, 185 Mich App 40, 44 (1990).

The prosecutor has no duty to exercise due diligence to locate and produce res
gestae witnesses. People v Burwick, 450 Mich 281, 293 (1995), and People v
Snider, 239 Mich App 393, 422-423 (2000). In Burwick, supra at 288-289, the
Michigan Supreme Court stated that MCL 767.40a

“. . . 1) contemplates notice at the time of filing the

information of known witnesses who might be called and
all other known res gestae witnesses, 2) imposes on the
prosecution a continuing duty to advise the defense of all
res gestae witnesses as they become known, and 3) directs

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 Monograph 6—Pretrial Motions (2006–August 2009)

that the list be refined before trial to advise the defendant

of the witnesses the prosecutor intends to produce at trial.
The prosecutor’s duty [under previous law] has been
replaced with an obligation to provide notice of known
witnesses and reasonable assistance to locate witnesses on
defendant’s request.”

Subject to court rules and rules of evidence, parties have discretion in

deciding what witnesses and evidence to present. MCR 6.416.

A prosecuting attorney is not required by MCR 6.201(A)(2) to provide

unrecorded statements made by a complaining witness. People v Tracey, 221
Mich App 321, 323-324 (1997). A prosecuting attorney’s notes of a witness
interview do not constitute a statement subject to discovery. People v
Holtzman, 234 Mich App 166, 168 (1999). To determine whether a witness
has “adopted or approved” a statement, there must be a finding of
“unambiguous and specific approval” by the witness. Id. at 179-180, quoting
Goldberg v United States, 425 US 94, 115-116 (1976). A witness who reviews
the prosecutor’s notes for inaccuracies or in anticipation of the witness’s
testimony at trial does not “adopt or approve” the notes as a statement of the
witness. Holtzman, supra at 180.

2. Information or Evidence That Must Be Disclosed by the

Prosecuting Attorney

Pursuant to MCR 6.201(B), the prosecuting attorney must disclose certain

information upon request. That rule states as follows:

“(B) Discovery of Information Known to the

Prosecuting Attorney. Upon request, the prosecuting
attorney must provide each defendant:

(1) any exculpatory information or evidence

known to the prosecuting attorney;

(2) any police report and interrogation records

concerning the case, except so much of a report as
concerns a continuing investigation;

(3) any written or recorded statements by a

defendant, codefendant, or accomplice pertaining
to the case, even if that person is not a prospective
witness at trial;

(4) any affidavit, warrant, and return pertaining to

a search or seizure in connection with the case; and

(5) any plea agreement, grant of immunity, or other

agreement for testimony in connection with the
case.”

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Section 6.21

A tacit agreement between the prosecution and a witness concerning potential

or actual leniency related to the witness’s criminal conduct is favorable
evidence subject to disclosure under Brady v Maryland, 373 US 83 (1963).
Bell v Bell, 512 F3d 223, 233 (CA 6, 2008). Upon the defendant’s request,
disclosure of an “agreement for testimony in connection with the case” is
required under MCR 6.201(B)(5).

A witness’s informal and mutual agreement with law enforcement officials

and the prosecution (that charges against the witness would be reduced in
exchange for his testimony against the defendant) constituted evidence
favorable to the defendant because of its impeachment value and should have
been disclosed under Brady v Maryland, 373 US 83 (1963). Akrawi v Booker,
572 F3d 252, 263-264 (CA 6, 2009).

Moreover, the defendant has a due-process right to obtain evidence in the

prosecutor’s possession if it is favorable to the defendant and material to guilt
or punishment. Brady, supra. The prosecutor must provide such evidence to
the defendant regardless of whether the defendant makes a request. United
States v Agurs, 427 US 97, 104 (1976). However, withholding inadmissible
exculpatory evidence is not necessarily a Brady violation. Wood v
Bartholomew, 516 US 1, 5-6 (1995). To establish a Brady violation, a
defendant must prove the following four elements. Strickler v Greene, 527 US
263, 281-282 (1999), Lester, supra, and Fox, supra.

1) The state possessed the evidence favorable to him or her. A

violation does not occur simply because evidence is not disclosed.
The undisclosed evidence must truly be favorable to the
defendant, which means that it is exculpatory or impeaching.
United States v Bagley, 473 US 667, 676 (1985), and People v
Elston, 462 Mich 751, 759-763 (2000). For example, the
prosecution has a duty to disclose charges pending against one of
its witnesses, but not that a witness is under investigation in an
unrelated matter. People v Brownridge (On Remand), 237 Mich
App 210, 215 (1999). The prosecutor has an obligation to learn of
favorable evidence known to others acting on behalf of the
government. Kyles v Whitley, 514 US 419, 437 (1995).

2) The defendant did not possess the evidence and could not have
obtained it through the exercise of reasonable diligence.

3) The prosecuting attorney suppressed the favorable evidence,

either willfully or inadvertently.

4) Had the evidence been disclosed to the defense, there is a

reasonable probability that the outcome of the case would have
been different. “The question is not whether the defendant would
have been more likely than not to have received a different verdict,
but whether he received a fair trial in the absence of the evidence,
i.e., a trial resulting in a verdict worthy of confidence.” People v
Fink, 456 Mich 449, 454 (1998), citing Kyles, supra.

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 Monograph 6—Pretrial Motions (2006–August 2009)

In People v Banks, 249 Mich App 247 (2002), the Court of Appeals, applying
the Brady standard for discovery violations, found no abuse of discretion in
the trial court’s denial of defendant’s motion for mistrial, where a police
report detailing the victim’s statement to the investigating detective was first
disclosed to the defense (and prosecution) at trial, after the victim testified. In
this armed robbery case, the victim testified at trial that he was able to identify
his attackers because they removed their masks; however, during the victim’s
preliminary examination testimony, he made no mention of this. On appeal,
the Court of Appeals found that, under the Brady standard, the police report
was not “favorable evidence” and that it did not meet the Brady requirement
of “materiality,” which requires that there be a reasonable probability that the
result of the proceeding would have been different had the police report been
disclosed earlier. Banks, supra at 253-254. The Court found that discrepancies
between the victim’s preliminary examination and trial testimony existed
despite what was contained in the police report, and that the trial was not
rendered fundamentally unfair by the failure to disclose the report earlier. Id.
at 254.

Even when the evidence was made known only to a law enforcement officer *Brady v
and not to the prosecutor, a Brady* violation may result from the failure to Maryland, 373
US 83 (1963).
disclose the exculpatory evidence to the defendant. Youngblood v West
Virginia, 547 US 867, 869-870 (2006). In Youngblood, the defendant was
convicted of sexual assault charges, a weapons charge, and indecent exposure.
Id. at 868. Months after the defendant was sentenced, a law enforcement
officer was shown a potentially exculpatory note written by two victims of the
crime. Id. The officer refused to take the note and told the individual in
possession of it to destroy it. Id. The note’s existence was not disclosed to the
defendant, and the United States Supreme Court remanded the case to the
West Virginia Supreme Court of Appeals for that court’s “view[]” of the
Brady issue the defendant raised in his motion to set aside the verdict.
Youngblood, supra at 870. The Court did not decide the issue; instead, the
Court conditioned its review of the merits on first having the West Virginia
court consider the Brady issue. Youngblood, supra at 870.

“[T]he Constitution does not require the Government to disclose material

impeachment evidence prior to entering a plea agreement with a criminal
defendant.” United States v Ruiz, 536 US 622, 633 (2002).

Michigan Judicial Institute © 2006–August 2009 Page 6–51

Section 6.21

3. Discovery of Privileged or Confidential Information

*For a more If the defendant seeks to discover privileged or confidential information,

complete MCR 6.201(C) applies.* That provision states as follows:
discussion of
this and related
topics, see “(C) Prohibited Discovery.
Sexual Assault
Benchbook (1) Notwithstanding any other provision of this rule, there
(MJI, 2002-April
2009), Sections is no right to discover information or evidence that is
5.14(C)(3) and protected from disclosure by constitution, statute, or
7.14-7.15, and privilege, including information or evidence protected by a
Crime Victim
Rights Manual
defendant’s right against self-incrimination, except as
(Revised provided in subrule (2).
Edition) (MJI,
2005-April (2) If a defendant demonstrates a good-faith belief,
2009), Chapter
5.
grounded in articulable fact, that there is a reasonable
probability that records protected by privilege are likely to
contain material information necessary to the defense, the
trial court shall conduct an in camera inspection of the
records.

(a) If the privilege is absolute, and the privilege

holder refuses to waive the privilege to permit an in
camera inspection, the trial court shall suppress or
strike the privilege holder’s testimony.

(b) If the court is satisfied, following an in camera

inspection, that the records reveal evidence
necessary to the defense, the court shall direct that
such evidence as is necessary to the defense be
made available to defense counsel. If the privilege
is absolute and the privilege holder refuses to
waive the privilege to permit disclosure, the trial
court shall suppress or strike the privilege holder’s
testimony.

(c) Regardless of whether the court determines that

the records should be made available to the
defense, the court shall make findings sufficient to
facilitate meaningful appellate review.

(d) The court shall seal and preserve the records for
review in the event of an appeal

(i) by the defendant, on an interlocutory basis or

following conviction, if the court determines that
the records should not be made available to the
defense, or

(ii) by the prosecution, on an interlocutory basis, if

the court determines that the records should be
made available to the defense.”
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 Monograph 6—Pretrial Motions (2006–August 2009)

(e) Records disclosed under this rule shall remain in the

exclusive custody of counsel for the parties, shall be used
only for the limited purpose approved by the court, and
shall be subject to such other terms and conditions as the
court may provide.”

MCR 6.201(C)(2) is based on the Michigan Supreme Court’s decision in

People v Stanaway, 446 Mich 643 (1994). In Stanaway, the Court concluded
that the “defendant’s generalized assertion of a need to attack the credibility
of his accuser did not establish the threshold showing of a reasonable
probability that the records contain information material to his defense
sufficient to overcome the [applicable] statutory privileges.” Id. at 650.

In camera inspection of records is not required “simply because psychological

harm is the alleged ‘personal injury’ which must be established to satisfy the
‘personal injury’ element of first-degree criminal sexual conduct.” People v
Tessin, 450 Mich 944 (1995).

When considering whether a defendant has a due-process right to obtain

material and exculpatory evidence from privileged or confidential sources, a
court should utilize the standards articulated in Brady and its progeny. Fink,
supra at 455, citing Kyles, supra, and Pennsylvania v Ritchie, 480 US 39
(1987).

Subject to certain exceptions, confidential communication to a crime stoppers

organization is privileged. MCL 600.2157b(1) prohibits requiring a person to:

“(a) Disclose, by way of testimony or otherwise, a

confidential communication to a crime stoppers
organization.

“(b) Produce, under subpoena, any records, documentary

evidence, opinions, or decisions relating to a confidential
communication to a crime stoppers organization by way of
any discovery procedure.”

Records of confidential communication to a crime stoppers organization may

be subject to disclosure under the following circumstances:

“(2) An individual arrested and charged with a criminal offense

. . . may petition the court for an inspection conducted in camera
of the records of a confidential communication to a crime stoppers
organization concerning that individual. The petition shall allege
facts showing that the records would provide evidence favorable
to the defendant . . . and relevant to the issue of guilt or punishment
. . . . If the court determines that the person is entitled to all or any
part of those records, the court may order production and
disclosure as it deems appropriate.

Michigan Judicial Institute © 2006–August 2009 Page 6–53

Section 6.21

“(3) The prosecution in a criminal proceeding may petition the

court for an inspection conducted in camera of the records of a
confidential communication to a crime stoppers organization that
the prosecution contends was made by the defendant, or by
another individual acting on behalf of the defendant, for the
purpose of providing false or misleading information to the crime
stoppers organization. The petition shall allege facts showing that
the records would provide evidence supporting the prosecution’s
contention and would be relevant to the issue of guilt or
punishment. If the court determines that the prosecution is entitled
to all or any part of those records, the court may order production
and disclosure as it deems appropriate.

“(4) As used in this section:

“(a) ‘Confidential communication to a crime stoppers

organization’ means a statement by any person, in any
manner whatsoever, to a crime stoppers organization for
the purpose of reporting alleged criminal activity.

“(b) ‘Crime stoppers organization’ means a private,

nonprofit organization that distributes rewards to persons
who report to the organization information concerning
criminal activity and that forwards the information to the
appropriate law enforcement agency.” MCL
600.2157b(2)-(4).

4. Other Provisions of MCR 6.201

Other provisions of MCR 6.201 deal with excision of nondiscoverable

information, protective orders, time requirements, the use of copies, the
continuing duty of both parties to disclose newly discovered information, and
modification of discovery orders. MCR 6.201(D)-(I) state as follows:

“(D) Excision. When some parts of material or

information are discoverable and other parts are not
discoverable, the party must disclose the discoverable
parts and may excise the remainder. The party must
inform the other party that nondiscoverable information
has been excised and withheld. On motion, the court must
conduct a hearing in camera to determine whether the
reasons for excision are justifiable. If the court upholds the
excision, it must seal and preserve the record of the hearing
for review in the event of an appeal.

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 Monograph 6—Pretrial Motions (2006–August 2009)

“(E) Protective Orders. On motion and a showing of *See also MCL

good cause, the court may enter an appropriate protective 780.651 for
rules governing
order.* In considering whether good cause exists, the nondisclosure
court shall consider the parties’ interests in a fair trial; the of search
risk to any person of harm, undue annoyance, intimidation, warrant
embarrassment, or threats; the risk that evidence will be affidavits.

fabricated; and the need for secrecy regarding the identity

of informants or other law enforcement matters. On
motion, with notice to the other party, the court may permit
the showing of good cause for a protective order to be
made in camera. If the court grants a protective order, it
must seal and preserve the record of the hearing for review
in the event of an appeal.

“(F) Timing of Discovery. Unless otherwise ordered by

the court, the prosecuting attorney must comply with the
requirements of this rule within 21 days of a request under
this rule and a defendant must comply with the
requirements of this rule within 21 days of a request under
this rule.

“(G) Copies. Except as ordered by the court on good cause

shown, a party's obligation to provide a photograph or
paper of any kind is satisfied by providing a clear copy.

“(H) Continuing Duty to Disclose. If at any time a party

discovers additional information or material subject to
disclosure under this rule, the party, without further
request, must promptly notify the other party.

“(I) Modification. On good cause shown, the court may

order a modification of the requirements and prohibitions
of this rule.”

Without a showing of good cause, a trial court is not authorized to order

discovery of an item not set forth in MCR 6.201. People v Greenfield (On
Reconsideration), 271 Mich App 442, 448 (2006). Because a videotape of a
defendant’s post-arrest Datamaster breath tests is not a subject of mandatory
discovery expressly listed in MCR 6.201(A) and is not contemplated by the
categories of discoverable evidence described in MCR 6.201(B), a trial court
may not compel its discovery absent good cause. Greenfield, supra at 449-
451. A prosecutor’s failure to produce evidence not addressed by MCR
6.201’s description of discoverable evidence does not constitute “good cause”
for entry of an order under MCR 6.201(I) to produce such evidence.
Greenfield, supra at 451.

Note: By order issued June 29, 2006, the Michigan Court of

Appeals vacated its first opinion in People v Greenfield and issued
an opinion identical to the first with the exception of footnote six.

Michigan Judicial Institute © 2006–August 2009 Page 6–55

Section 6.21

In footnote six of its reissued opinion, the Court expressly

recognized that MCR 6.201 applies only to felony crimes.
Footnote six as it appears in the second Greenfield opinion reads
as follows (added language appears in bold):

“MCR 6.201 applies to discovery in the district and circuit

courts of this state. See People v Sheldon, 234 Mich App
68, 70-71; 592 NW2d 121 (1999); People v Pruitt, 229
Mich App 82, 87-88; 580 NW2d 462 (1998). We
recognize that, in Administrative Order No. 1999-3,
our Supreme Court made clear that, contrary to a
statement in Sheldon, MCR 6.201 applies only to felony
cases. While, as a multiple offender, defendant
Greenfield was clearly charged with a felony in this
case, we reiterate for the bench and bar that MCR
6.201 does not apply to misdemeanor cases.” Greenfield,
supra at 450 n 6.

5. Remedy for Violation of Discovery Order

The remedy for a violation of a discovery order is within the court’s

discretion. MCR 6.201(J) states as follows:

“(J) Violation. If a party fails to comply with this rule, the

court, in its discretion, may order the party to provide the
discovery or permit the inspection of materials not
previously disclosed, grant a continuance, prohibit the
party from introducing in evidence the material not
disclosed, or enter such other order as it deems just under
the circumstances. Parties are encouraged to bring
questions of noncompliance before the court at the earliest
opportunity. Wilful violation by counsel of an applicable
discovery rule or an order issued pursuant thereto may
subject counsel to appropriate sanctions by the court. An
order of the court under this section is reviewable only for
abuse of discretion.”

See also People v Clark, 164 Mich App 224, 229 (1987) (denial of discovery
of inculpatory evidence does not necessarily constitute a denial of due
process, and trial courts have discretion to fashion appropriate remedies).
“The court may impose such sanctions as it deems just” under MCR 2.313(B).
People v Elkhoja, 251 Mich App 417, 439 (2002), rev’d on other grounds 467
Mich 916 (2003).

When fashioning an appropriate remedy, a court must balance the defendant’s

interest in optimal preparation and minimizing prosecutorial opportunities to
falsify evidence, the public’s and prosecutor’s interest in proceeding to trial,
and the interest of the court in compliance with procedural rules. People v
Loy-Rafuls, 198 Mich App 594, 597 (1993), rev’d on other grounds 442 Mich

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 Monograph 6—Pretrial Motions (2006–August 2009)

915 (1993). The court must examine all relevant circumstances, including
“the causes and bona fides of tardy, or total, noncompliance, and a showing
by the objecting party of actual prejudice.” Taylor, supra at 482. Precluding
the use of evidence is to be the remedy in only the most egregious cases where
other remedies, such as a continuance, do not adequately protect the interests
at stake. People v Burwick, 450 Mich 281, 294, 298 (1995), and Taylor, supra
at 487. Where there is no cognizable prejudice to a defendant in not producing
information or in permitting its late production, exclusion is inappropriate.
Burwick, supra at 297. The court may also dismiss the charges in egregious
cases. People v Davie (After Remand), 225 Mich App 592, 598 (1997)
(dismissal without prejudice was the proper remedy for “prosecutor’s
complete failure to insure that defendants were provided with timely
discovery”).

If the undisclosed evidence is no longer available, having been destroyed or

lost, and if it relates exclusively to a particular witness, exclusion at trial of
testimony from that witness will usually adequately protect the defendant’s
interests. People v Albert, 89 Mich App 350, 351 (1979), and People v Drake,
64 Mich App 671, 680-683 (1979). However, if the evidence is no longer
available, and if the impact of its loss cannot be readily determined, further
inquiries are needed. Absent intentional suppression or a showing of bad faith,
the loss of evidence that occurs before a defense request for it does not call for
discovery sanctions. People v Somma, 123 Mich App 658, 663 (1983). When
the state fails to preserve evidence that can be established to be exculpatory,
its motivation is irrelevant. A severe sanction must be imposed. When,
however, the state has failed to preserve evidence of which no more can be
said than that it could be exculpatory, that failure is not subject to a sanction
unless the defendant can show bad faith by the police. People v Leigh, 182
Mich App 96, 97-98 (1989), applying Arizona v Youngblood, 488 US 51
(1981).

If the prosecution attempts to use at trial evidence that should have been
disclosed pursuant to a discovery order, that evidence may not be used in the
case-in-chief. The Court of Appeals is split on whether it may be used for
impeachment. Compare People v Pace, 102 Mich App 522, 528-533 (1980),
and People v Turner, 120 Mich App 23, 29-–33 (1982), excluding the
evidence even for impeachment, with People v Lynn, 91 Mich App 117, 126-
127 (1979), aff’d 411 Mich 291 (1981), allowing impeachment by
undisclosed evidence. The Supreme Court’s affirmance of the Court of
Appeals should not be read as affirming this evidentiary point. The only item
under consideration by the Supreme Court was the definition of kidnapping.

Michigan Judicial Institute © 2006–August 2009 Page 6–57

Section 6.22

6.22 Motion to Disqualify Judge

*For further Moving Party: Defendant or prosecutor*
discussion, see
Michigan Circuit
Court
Burden of Proof: The moving party has the burden of showing grounds for
Benchbook: disqualification. A party challenging a judge on the basis of bias or prejudice
Criminal bears the burden of overcoming the heavy presumption of judicial
Proceedings impartiality. Cain v Dep’t of Corrections, 451 Mich 470, 497 (1996), and In
(MJI, 2009).
re Forfeiture of $1,159,420, 194 Mich App 134, 151 (1992). One who
challenges a judge on the basis of the constitutional right to an unbiased and
impartial tribunal also bears a heavy burden. Cain, supra at 498-499 n 33.

Discussion

Pursuant to MCR 2.003(B), “[a] judge is disqualified when the judge cannot
impartially hear a case.” Michigan Court Rule 2.003(B) sets forth a
nonexhaustive list of circumstances in which a judge is disqualified, including
instances when a judge is personally biased or prejudiced against a party or
attorney. MCR 2.003(B)(1).

Bias or prejudice is defined as an attitude or state of mind belying an aversion

or hostility of such a degree that a fair-minded person could not entirely set it
aside when judging certain persons or causes. Cain, supra at 495. For
purposes of disqualification, a judge’s bias or prejudice must be actual and
personal. Id. Unless the alleged bias or prejudice displays such deep-seated
favoritism or antagonism that a fair judgment would be impossible, a judge’s
favorable or unfavorable disposition must arise from facts or events outside
the current judicial proceeding. Id. at 495-496, 513. The mere fact that a judge
conducted a prior proceeding against the defendant does not amount to proof
of disqualifying bias. People v White, 411 Mich 366, 386 (1981), and People
v Koss, 86 Mich App 557, 560 (1978). A judge who sits as trier of fact and
finds the defendant guilty is not automatically disqualified from acting as trier
of fact at the defendant’s retrial after reversal on appeal. People v Upshaw,
172 Mich App 386, 388-389 (1988). A judge who presides over a plea
proceeding, during which the defendant provides a factual basis for a guilty
plea but then decides not to plead guilty, need not sua sponte disqualify
himself or herself from conducting the defendant’s subsequent bench trial.
People v Cocuzza, 413 Mich 78, 83 (1982).

Motions for disqualification may also be based on an alleged violation of the

due-process requirement that a decisionmaker be unbiased and impartial.
Cain, supra at 497-498, and Crampton v Dep’t of State, 395 Mich 347, 350
(1975). It is only in the most extreme cases that a judge will be disqualified
for bias or prejudice on due-process grounds. Cain, supra at 497-498.
Examples of instances in which the probability of actual bias may be too high
to be constitutionally tolerable, and in which a judge may therefore be
disqualified notwithstanding the absence of a showing of actual bias, include
situations where a judge: 1) has a pecuniary interest; 2) has been insulted,
slandered and vilified by a party; 3) has revealed deep prejudice against the

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defendant’s profession and has recently been a losing party in a civil rights
lawsuit filed by the defendant; or 4) might have prejudged the case because of
prior participation in the case as one who personally conducted the initial
investigation, amassed evidence, and filed and prosecuted the charges, or as
one who made the initial decision which is under review. Crampton, supra at
351-355, and Cain, supra at 497-502, 514. Due process is violated when full-
time law enforcement officials, charged with responsibility for arrest and
prosecution of law violators, sit as adjudicators in law enforcement disputes
between citizens and police officers. Crampton, supra at 356-358.

Judicial disqualification on due process grounds may be warranted when an

individual with an interest in the outcome of a case has contributed an
extraordinary amount of money to the election campaign of one of the judges
who will decide the case. Caperton v AT Massey Coal Co, Inc, 556 US ___,
___ (2009). While “[n]ot every campaign contribution by a litigant or attorney
creates a probability of bias that requires a judge’s recusal,” “there is a serious
risk of actual bias—based on objective and reasonable perceptions—when a
person with a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the case by raising funds or
directing the judge’s election campaign when the case was pending or
imminent.” Caperton, supra at ___. “The inquiry centers on the contribution’s
relative size in comparison to the total amount of money contributed to the
campaign, the total amount spent in the election, and the apparent effect such
contribution had on the outcome of the election.” Id. at ___. In Caperton,
supra at ___, the chairman of a company contributed $3 million, more than
the total amount spent by all other supporters, to the campaign of a
prospective state supreme court justice who, if elected, would hear a major
case the company recently lost. Id. at ___. Once the justice was elected, the
other party in the case moved to disqualify the justice on due process grounds,
based on the conflict caused by the chairman’s campaign contribution. Id. at
___. The justice denied all motions to disqualify himself, and the United
States Supreme Court ultimately ruled that due process required recusal
because the probability of actual bias on the part of the justice was too high to
be constitutionally tolerable. Id. at ___.

A defendant is not denied his right to a fair and impartial trial when, after the
defendant has interrupted the court proceedings on several occasions, the trial
judge threatens to tape the defendant’s mouth shut if the defendant continues
his disruptive verbal outbursts. People v Conley, 270 Mich App 301, 309
(2006).

MCR 2.003(C)(1) states as follows:

“(1) Time for Filing. To avoid delaying trial and

inconveniencing the witnesses, a motion to disqualify must
be filed within 14 days after the moving party discovers the
ground for disqualification. If the discovery is made within
14 days of the trial date, the motion must be made
forthwith. If a motion is not timely filed, untimeliness,

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Section 6.23

including delay in waiving jury trial, is a factor in deciding

whether the motion should be granted.”

The 14-day deadlines for filing a motion to disqualify are mandatory. Cain,
supra at 493, and Dean & Longhofer, Michigan Court Rules Practice (4th ed),
§2003.8, p 55 (the 14-day deadlines in the subrule are mandatory, and the
“untimeliness” in the third sentence refers to time requirements other than
those stated in the first two sentences of the subrule). “Whenever a challenged
judge has denied a disqualification motion and a request for a hearing before
another judge comes after a trial or hearing has started[,] the challenged judge
should have the option of proceeding with the trial or hearing unless a chief
judge or a higher court orders that the trial or hearing be interrupted or delayed
so that the disqualification motion may be considered by another judge before
the trial or hearing is concluded.” People v McDonald, 97 Mich App 425, 433
(1980), vacated on other grounds 411 Mich 870 (1981). See also In re
Contempt of Steingold (In re Smith), 244 Mich App 153, 160-161 (2000) (the
juvenile court referee did not err in denying defense counsel’s oral motion for
disqualification on the first day of trial, but the referee did err by not referring
the matter to the chief judge as required under MCR 2.003(C)(3)).

The motion must be accompanied by an affidavit and must include all known
grounds for disqualification. MCR 2.003(C)(2). The challenged judge decides
the motion and, if the motion is denied and a party so requests, the challenged
judge must refer the motion to the chief judge (if the court has more than one
judge) or to a judge appointed by the state court administrator (if the court has
only one judge or where the challenged judge is the chief judge) for de novo
decision. MCR 2.003(C)(3). The parties may agree to waive disqualification
for grounds other than personal bias or prejudice concerning a party. MCR
2.003(D).

6.23 Motion to Dismiss Because of Double Jeopardy—

Successive Prosecutions for the Same Offense

Moving Party: Defendant

Burden of Proof: “[I]f a defendant can make a prima facie showing of a

violation of the Double Jeopardy Clause, a second prosecution is barred
unless the government can demonstrate by a preponderance of the evidence
why double jeopardy principles do not bar prosecution.” People v Wilson, 454
Mich 421, 428 (1997).

If the defendant claims that prosecution in Michigan for a controlled

substance offense is barred by MCL 333.7409, the defendant must prove by a
preponderance of the evidence that the statute bars a second prosecution.
People v Mezy, 453 Mich 269, 282-283, 286 (1996).

Discussion

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 Monograph 6—Pretrial Motions (2006–August 2009)

The federal and Michigan constitutions both prohibit putting a defendant

twice in jeopardy for the same offense. US Const, Am V, and Const 1963, art
1, § 15. The guarantee against double jeopardy affords a criminal defendant
the following two protections:

1) Protection against successive prosecutions for the same offense.

This protection preserves the finality of criminal judgments.
People v Sturgis, 427 Mich 392, 398-399 (1986). It prohibits a
second prosecution of the same offense after an acquittal or
conviction. People v Garcia, 448 Mich 442, 448 (1995) (Riley, J).
The protection against successive prosecutions for the same
offense is discussed in this section.

2) Protection against multiple punishments for the same offense. This

protection prevents the courts from sentencing a defendant more
than once for the same offense by requiring them to confine their
sentences within the limits established by the Legislature. Sturgis,
supra at 399. The protection against multiple punishments for the
same offense is discussed in Section 6.24, below.

1. Multiple Charges for Conduct Related to Same Act or

Transaction

The Michigan Supreme Court readopted the “same-elements” test to

determine whether the prohibition against double jeopardy is violated when
multiple charges are brought against a defendant for conduct related to a
single criminal transaction. People v Nutt, 469 Mich 565, 567-568 (2004). In
Nutt, the Court overruled its decision in People v White, 390 Mich 245 (1973),
where the Court disapproved of the “same-elements” test in favor of the
“same transaction” test as the means of resolving double jeopardy issues. The
“same transaction” test generally prohibited serial prosecutions of a defendant
for entirely different crimes arising from a single criminal episode or
“transaction.” Nutt, supra. Until the White decision in 1973, Michigan courts
had interpreted the prohibition against double jeopardy as precluding multiple
prosecutions of a defendant for crimes involving identical elements. Id.

Michigan’s return to the same-elements test signifies a return to “the well-

established method of defining the Fifth Amendment term ‘same offence’”
known as the Blockburger test. Nutt, supra at 576; Blockburger v United
States, 284 US 299, 304 (1932). The Blockburger test “focuses on the
statutory elements of the offense. If each requires proof of a fact that the other
does not, the Blockburger test is satisfied, notwithstanding a substantial
overlap in the proof offered to establish the crimes.” Nutt, supra at 576,
quoting Iannelli v United States, 420 US 770, 785 n 17 (1975).

The same-elements test, as dictated directly by the Blockburger Court,

provides:

“The applicable rule is that where the same act or

transaction constitutes a violation of two distinct statutory
Michigan Judicial Institute © 2006–August 2009 Page 6–61
Section 6.23

provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each
provision requires proof of a fact which the other does
not.” Blockburger, supra at 304; Nutt, supra at 577-578.

2. Retrial for the Same Offense After Declaration of a Mistrial

If the termination of a criminal trial prior to verdict is a “manifest necessity,”

the defendant’s right to avoid being twice placed in jeopardy is not implicated.
Richardson v United States, 468 US 317, 323-324 (1984), and People v
Thompson, 424 Mich 118, 123 (1985). “Manifest necessity” includes the
illness of a witness, People v Raybon, 125 Mich App 295, 297-298 (1983),
and the failure of a jury to agree on a verdict, Richardson, supra, and
Thompson, supra.

A deadlocked jury does not preclude another trial as a matter of double

jeopardy. People v Herron, 464 Mich 593, 602-603 (2001). A trial judge
enjoys broad discretion in finding manifest necessity to discharge a
deadlocked jury. Arizona v Washington, 434 US 497, 509-510 (1978). In
cases involving deadlocked juries, in the absence of objection by either party,
trial courts are not required to examine alternatives to mistrial or make
findings on the record. Washington, supra at 515-517. A trial court is not
required to poll a jury that announces that it is deadlocked. MCR 6.420(D) and
People v Daniels, 192 Mich App 658, 663 (1992). Multiple deadlocked juries
in a case do not preclude continuing to try the defendant. People v Sierb, 456
Mich 519, 533 (1998) (third prosecution of the defendant does not violate the
due-process guarantees of the federal and state constitutions).

A defense motion for or consent to a mistrial operates as a waiver of a double

jeopardy objection to retrial where the mistrial results from unintentional
conduct by the court or the prosecutor. People v Benton, 402 Mich 47, 54
(1977), and People v Bommarito, 110 Mich App 207, 210 (1981). However,
mere silence or failure to object to the jury’s discharge does not constitute
adequate consent. There must be “an affirmative showing [of consent] on the
record.” A request for mistrial is consent. People v Johnson, 396 Mich 404,
432-433 (1976), repudiated on other grounds 427 Mich 482 (1986), and
People v Harvey, 121 Mich App 681, 688-689 (1982). An objection to
continuation of a trial also constitutes consent although a mistrial per se is also
objected to. People v Tracey, 221 Mich App 321, 329 (1997). A defendant’s
right against double jeopardy is not violated when a trial court reinstates a
defendant’s charge after granting the defendant’s motion to dismiss when the
complainant and two other prosecution witnesses failed to return on time after
a lunch recess. People v Grace, 258 Mich App 274, 279-280 (2003). The
defendant in Grace requested and received a dismissal, which is the
equivalent of the defendant’s consent to a mistrial, after which retrial on the
same charge is constitutionally permissible. Id.

If the defendant’s motion for mistrial is precipitated by prosecutorial

misconduct that was intended to provoke the defendant into moving for a

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 Monograph 6—Pretrial Motions (2006–August 2009)

mistrial, retrial is barred. Oregon v Kennedy, 456 US 667, 679 (1982), People
v Dawson, 431 Mich 234, 257 (1988) (the court must evaluate the objective
facts and circumstances, not the prosecutor’s subjective intent), and People v
Gaval, 202 Mich App 51, 53-54 (1993).

3. Retrial Barred by Acquittal

If a defendant has been tried and acquitted, he or she may not be retried for
the same offense. Retrial is barred even if the acquittal was by directed verdict
or the trier of fact was the court and the legal ruling underlying the acquittal
was clearly erroneous. Smalis v Pennsylvania, 476 US 140, 145 (1986),
People v Nix, 453 Mich 619, 624 (1996), and In re Wayne County Pros, 192
Mich App 677, 680-681 (1992). The prosecution can appeal only to get a legal
ruling; the case cannot be reinstated. Wayne County Pros v Recorder’s Court
Judge, 177 Mich App 762, 765 (1989). However, the court’s characterization
of its ruling as a directed verdict does not necessarily preclude an appeal and
another trial if the ruling was actually that the verdict was against the great
weight of the evidence, not insufficient as a matter of law. People v
Hutchinson, 224 Mich App 603, 607 (1997), and People v Mehall, 454 Mich
1, 5-6 (1997). A retrial is not permitted if the trial court evaluated the
evidence, found that it was legally insufficient to sustain a conviction, and
said so with sufficient clarity and finality that the judge’s statement can be
construed as an order. People v Vincent, 455 Mich 110, 120 (1997).

If a defendant has been tried and convicted of a lesser-included offense, that

conviction constitutes an implied acquittal of the more serious charge or
charges and precludes another trial on them. Price v Georgia, 398 US 323,
327 (1970), and MCL 768.33. See People v McPherson, 21 Mich App 385,
389 (1970) (defendant charged with “rape” but convicted of assault with
intent to commit “rape” could not be retried on the original charge), and
People v Hilliker, 29 Mich App 543, 549 (1971) (a defendant charged with
first-degree murder but convicted of manslaughter may not be retried for first-
degree or second-degree murder). In a prosecution for felony murder for a
killing during an armed robbery, a conviction of second-degree murder that is
subsequently reversed on appeal bars a retrial of the armed robbery charge and
the first-degree murder charge. The first conviction implied an acquittal of the
armed robbery charge and an express acquittal of the felony murder charge.
People v Garcia (After Remand), 203 Mich App 420, 425-426 (1994).

4. Retrial Barred by Appellate Reversal

If a reversal on appeal is due to lack of evidence, there can be no retrial. The

defendant is entitled to discharge. Burks v United States, 437 US 1, 18 (1978),
Greene v Massey, 437 Mich 19, 25 (1978), and People v Murphy, 416 Mich
453, 467 (1982). However, if the reason for reversal is anything else, the
defendant may be retried. People v Torres, 209 Mich App 651, 659 (1995),
aff’d and remanded on other grounds 452 Mich 43 (1996). See Tibbs v
Florida, 457 US 31, 45 (1982) (retrial is permitted when a new trial is granted
because the verdict was against the great weight of the evidence). Double

Michigan Judicial Institute © 2006–August 2009 Page 6–63

Section 6.23

jeopardy does not bar reinstatement of an original charge following a guilty

plea and sentencing on a reduced charge where the basis for the reduction is
overturned on appeal. People v Howard, 212 Mich App 366, 370 (1995).

Double jeopardy does not bar an appellate court from reversing an order
setting aside a guilty verdict and reinstating the conviction. The protection
against double jeopardy is not offended because there is no need for a second
trial. People v Jones, 203 Mich App 74, 78-79 (1993).

The resentencing, upon reversal procured by the prosecution, as an adult of an

individual who was originally sentenced as a juvenile and who was
discharged from the juvenile system before the reversal does not violate the
protection against double jeopardy. People v Thenghkam, 240 Mich App 29,
69-71 (2000).

5. Michigan’s “Separate Sovereign” Rules

Two entities seeking to prosecute a defendant for the same offense are
separate sovereigns when their authority to prosecute the offense comes from
two independent sources; a separate sovereign is not barred by double
jeopardy from prosecuting a defendant for a crime resulting from the same
conduct for which the defendant was already convicted and sentenced by a
different sovereign. People v Davis, 472 Mich 156, 158 (2005). In Davis, the
defendant stole a car in Michigan and drove it to Kentucky where he was
apprehended. He pled guilty to Kentucky’s charges for the theft and was
sentenced. Michigan charged the defendant for the same conduct, and the
defendant argued that double jeopardy principles as explained in People v
Cooper, 398 Mich 450 (1976), prohibited Michigan from prosecuting him
because he had already been punished in Kentucky for the same criminal
conduct.

The Davis Court expressly overruled the Cooper Court’s ruling after finding
that ratifiers of Michigan’s constitution intended for Michigan’s double
jeopardy clause to be interpreted the same as was the federal double jeopardy
clause. United States Supreme Court decisions in Bartkus v Illinois, 359 US
121 (1959), and Heath v Alabama, 474 US 82 (1985), establish that
successive prosecutions by dual sovereigns (whether federal/state or state/
state) are not barred by the federal double jeopardy clause provided the
entities involved derive their power to prosecute crimes from distinct and
independent sources. Davis, supra at 162, 166-167.

See also United States v Studabaker, 578 F3d 423, 430 (CA 6, 2009) (the
United States and other countries are separate sovereigns; therefore, the
Double Jeopardy Clause does not bar successive prosecutions for the same
course of conduct).

A provision of the Controlled Substances Act, MCL 333.7409, states:

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 Monograph 6—Pretrial Motions (2006–August 2009)

“If a violation of this article is a violation of federal law or

the law of another state, a conviction or acquittal under
federal law or the law of another state for the same act is a
bar to prosecution in this state.”

If this statute applies to the case, it operates as a complete bar to subsequent

prosecution in Michigan; constitutional double jeopardy principles do not
apply. People v Avila (On Remand), 229 Mich App 247, 250-252 (1998),
overruled on other grounds 469 Mich 80 (2003).

In People v Zubke, 469 Mich 80, 84 (2003), the Michigan Supreme Court
ruled that the state’s possession with intent to deliver charge was not
precluded under MCL 333.7409 by the defendant’s federal drug-conspiracy
conviction because the conduct on which the federal conviction was based
was not the “same act” on which the state charge relied.

6.24 Motion to Dismiss Because of Double Jeopardy—

Multiple Punishments for the Same Offense

Moving Party: Defendant

Burden of Proof: “[I]f a defendant can make a prima facie showing of a

violation of the Double Jeopardy Clause, a second prosecution is barred
unless the government can demonstrate by a preponderance of the evidence
why double jeopardy principles do not bar prosecution.” People v Wilson, 454
Mich 421, 428 (1997).

Discussion

The federal and Michigan constitutions both prohibit putting a defendant

twice in jeopardy for the same offense. US Const, Am V, and Const 1963, art
1, § 15. The guarantee against double jeopardy affords a criminal defendant
the following two protections:

1) Protection against successive prosecutions for the same offense.

This protection preserves the finality of criminal judgments.
People v Sturgis, 427 Mich 392, 398-399 (1986). It prohibits a
second prosecution of the same offense after an acquittal or
conviction. People v Garcia, 448 Mich 442, 448 (1995) (Riley, J).
The protection against successive prosecutions for the same
offense is discussed in Section 6.23, above.

2) Protection against multiple punishments for the same offense. This

protection prevents the courts from sentencing a defendant more
than once for the same offense by requiring them to confine their
sentences within the limits established by the Legislature. Sturgis,

Michigan Judicial Institute © 2006–August 2009 Page 6–65

Section 6.24

supra at 399. The protection against multiple punishments for the

same offense is briefly outlined in this section.

The Legislature’s intent is determinative in cases involving multiple

punishment. In People v Roubideau, 419 Mich 458, 486-488 (1984),
overruled by People v Smith, 478 Mich 292, 315 (2007), the Michigan
Supreme Court set forth the following guidelines for ascertaining legislative
intent:

“Statutes prohibiting conduct that is violative of distinct

social norms can generally be viewed as separate and
amenable to permitting multiple punishments. A court
must identify the type of harm the Legislature intended to
prevent. Where two statutes prohibit violations of the same
social norm, albeit in a somewhat different manner, as a
general principle it can be concluded that the Legislature
did not intend multiple punishments. . . .

“A further source of legislative intent can be found in the

amount of punishment expressly authorized by the
Legislature. . . . Where one statute incorporates most of the
elements of a base statute and then increases the penalty as
compared to the base statute, it is evidence that the
Legislature did not intend punishment under both statutes.
The Legislature has taken conduct from the base statute,
decided that aggravating conduct deserves additional
punishment, and imposed it accordingly, instead of
imposing dual convictions. . . .

“We do not intend these principles to be an exclusive list.

Whatever sources of legislative intent exist should be
considered. If no conclusive evidence of legislative intent
can be discerned, the rule of lenity requires the conclusion
that separate punishments were not intended.”

In Blockburger v United States, 284 US 299, 304 (1932), the United States
Supreme Court articulated the following test for deciding whether a defendant
has been punished twice for the same offense:

“[W]here the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the
other does not.”

In Sturgis, supra at 404-405, the Michigan Supreme Court noted its rejection
of a “wooden application” of the Blockburger test and its adoption of the more
flexible standard set forth in Robideau, supra. However, the Sturgis Court
acknowledged the continuing usefulness of Blockburger as a rule of statutory

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construction to be applied when it is probative of legislative intent. See also

People v Harding, 443 Mich 693, 712-713 (1993) (whether one offense is a
lesser-included offense of another offense may also be helpful in determining
the Legislature’s intent to allow multiple punishments for the two offenses).

In People v Herron, 464 Mich 593 (2001), the defendant was charged with
second-degree murder and operating a motor vehicle while intoxicated
causing death (OWI causing death). The jury deadlocked on the second-
degree murder charge and convicted defendant of negligent homicide as a
lesser offense of OWI causing death. Following retrial of the second-degree
murder charge, the jury convicted defendant of involuntary manslaughter.
The Michigan Supreme Court held that defendant’s conviction of both
negligent homicide and involuntary manslaughter, at successive trials,
constituted impermissible multiple punishments. Id. at 596. The Court also
held that the proper remedy was to affirm defendant’s conviction of the
greater offense, involuntary manslaughter, and vacate his conviction of
negligent homicide, the lesser offense. Id. After noting that Harding, supra at
715-716, determined that multiple-punishment issues arising from successive
trials should be treated in the same manner as such issues arising from a single
trial, the Herron Court extended that rule to cases in which the multiple-
punishment issue arises in a second trial following declaration of a mistrial.
Herron, supra at 608-609.

In People v Ford, 262 Mich App 443 (2004), the Court first noted that the *See Section
Michigan Supreme Court’s decision in People v Nutt, 469 Mich 565 (2004),* 6.23, above, for
a discussion of
while signaling a return to the “same elements” test for determining whether Nutt.
double jeopardy protections prohibited successive prosecutions for the “same
offense,” did not address the multiple punishment prong of a defendant’s
double jeopardy protections. Ford, supra at 450 n 2. The Blockburger “same
elements” test creates only a presumption that the “legislature intended
multiple punishments where two distinct statutes cover the same conduct but
each requires proof of an element the other does not; the contrary presumption
arises when one offense’s elements are encompassed in the elements of the
other.” Ford, supra at 448-449. Either presumption may be overcome by a
clear legislative expression of contrary intent. Id. at 449. The Ford Court
explained:

“[U]nder both the federal and Michigan Double Jeopardy

Clauses the test is the same: ‘in the context of multiple
punishment at a single trial, the issue whether two
convictions involve the same offense for purposes of the
protection against multiple punishment is solely one of
legislative intent.’” Ford, supra at 450, quoting Sturgis,
supra at 399.

The Blockburger* test for determining whether the protection against double *Blockburger v
jeopardy prohibits multiple prosecutions is the appropriate test for United States,
284 US 299
determining whether double jeopardy considerations bar multiple (1932).
punishments. People v Bobby Lynell Smith, 478 Mich 292, 316 (2007). In

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Section 6.24

Smith, supra at 316, the Michigan Supreme Court expressly stated that the
definition of “same offense” for purposes of the multiple punishments strand
of the prohibition against double jeopardy is the same as the definition of
“same offense” determined by the Court in People v Nutt, 469 Mich 565
(2004), for purposes of the multiple prosecutions strand.

Under the “same elements” test adopted in People v Bobby Lynell Smith, 478
Mich 292 (2007), armed robbery and felonious assault are not the “same
offense” for purposes of the multiple punishments strand of double jeopardy
because each offense requires for its commission an element not required by
the other. People v Chambers, 277 Mich App 1, 8-9 (2007). The Chambers
Court explained that armed robbery, MCL 750.529, does not require that an
offender actually possess a weapon but does require that the assault occur
during the commission of a larceny, while felonious assault, MCL 750.82(1),
requires that an offender actually possess and use a dangerous weapon during
the assault. Chambers, supra at 8-9. Because the offenses are not the “same
offense” under the “same elements” test, the defendant’s convictions and
sentences did not violate his protection against having multiple punishments
imposed for the same offense. Chambers, supra at 9.

See also People v Strawther, 480 Mich 900 (2007) (no double jeopardy
violation where the defendant was convicted of both assault with intent to
commit great bodily harm, MCL 750.84, and felonious assault, MCL 750.82).

*Blockburger v “[C]onvicting and sentencing a defendant for both first-degree felony murder
United States, and the predicate felony does not violate the ‘multiple punishments’ strand of
284 US 299
(1932).
the Double Jeopardy Clause if each offense has an element that the other does
not.” (Emphasis added). People v Ream, 481 Mich 223, 240-241 (2008),
overruling People v Wilder, 411 Mich 328, 342 (1981). The Ream Court
reiterated its holding in People v Smith, 478 Mich 292, 316 (2007), that the
Blockburger* test should be employed to determine whether the protection
against double jeopardy prohibits multiple punishments; multiple
punishments are authorized if each statute requires proof of an additional fact
not required by the other. Ream, supra at 228. In Ream, supra at 225-226, the
Supreme Court held that there was no double jeopardy violation where the
defendant was convicted and sentenced for both first-degree felony murder
and the predicate felony of first-degree criminal sexual conduct (CSC-1). One
element required to prove first-degree felony murder, but not required to
prove CSC-1, is the killing of a human being. Id. at 241. One element of CSC-
1, but not an element of first-degree felony murder, is sexual penetration. Id.
Because each of the offenses contained an element that the other did not, they
were not the “same offense” and the defendant could be punished for both. Id.
at 241-242.

Convicting and sentencing a defendant for both carjacking, MCL

750.529a(1), and assault with intent to rob while armed, MCL 750.89, does
not violate the multiple punishments strand of the Double Jeopardy Clause,
because each offense contains an element that the other does not. People v
McGee, 280 Mich App 680, 684-685 (2008). One element required to prove

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carjacking, but not required to prove assault with intent to rob while armed, is
the larceny of a motor vehicle. Id. at 685. One element required to prove
assault with intent to rob while armed, but not required to prove carjacking, is
the use of a weapon. Id. at 684-685.

With respect to ascertaining legislative intent, the Ford Court repeated

principles set forth by the Michigan Supreme Court in Robideau, supra
(overruled by People v Smith, 478 Mich 292, 315 (2007)):

“‘Statutes prohibiting conduct that is violative of distinct

social norms can generally be viewed as separate and
amenable to permitting multiple punishments. A court
must identify the type of harm the Legislature intended to
prevent. Where two statutes prohibit violations of the same
social norm, albeit in a somewhat different manner, as a
general principle it can be concluded that the Legislature
did not intend multiple punishments.’” Ford, supra at 450,
quoting Robideau, supra at 487-488.

Where the statutory language expressly states that a penalty imposed under
the home invasion statute does not preclude the imposition of a penalty under
other applicable law, the Legislature clearly intended to allow multiple
punishments for criminal conduct occurring during the same incident from
which a defendant’s home invasion conviction arose. People v Conley, 270
Mich App 301, 311-312 (2006). Therefore, in Conley, the defendant’s
convictions of first-degree home invasion and felonious assault did not violate
the defendant’s constitutional protection against double jeopardy. Id.

Where a conviction is predicated on conviction of an underlying felony and

double jeopardy concerns mandate that the underlying felony conviction be
vacated, an appellate court may reinstate the underlying felony conviction if
the greater conviction is reversed on grounds affecting only the greater
offense. People v Joezell Williams, 475 Mich 101, 104-105 (2006) (if
defendant’s felony-murder conviction was reversed on grounds affecting only
the elements necessary to murder, an appellate court could reinstate the
conviction for the underlying offense).

Enhanced sentences for habitual offenders do not constitute multiple

punishment for the earlier offenses. Monge v California, 524 US 721, 728
(1998), and United States v Watts, 519 US 148, 154 (1997).

6.25 Motion to Dismiss Because of Entrapment

Moving Party: Defendant

Burden of Proof: The defendant must prove a claim of entrapment by a

preponderance of the evidence. People v D'Angelo, 401 Mich 167, 183
(1977).
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Section 6.25

Discussion

1. Procedural Issues

Entrapment is an affirmative defense to be decided by the judge outside the

presence of the jury. D'Angelo, supra at 174, 176-177. A motion to dismiss on
the basis of entrapment may be raised and decided either before or during trial.
Id. at 177-178. An entrapment defense presents facts that are collateral to the
charge and that justify barring a defendant’s prosecution; if entrapment is
found, the related charge is dismissed. Id. at 179, and People v Jones, 203
Mich App 384, 386 (1994). Thus, pretrial consideration of the entrapment
issue is preferred.

When the defendant raises the issue of entrapment, the court must conduct an
evidentiary hearing outside of the jury’s presence and make specific findings
of fact. D'Angelo, supra at 176-178, 183, and People v Woods, 241 Mich App
545, 554-555 (2000). A defendant need not admit the crime to claim
entrapment. People v LaBate, 122 Mich App 644, 646 (1983).

The defense of entrapment may only be advanced at the trial level. An

examining magistrate does not have jurisdiction to resolve a claim of
entrapment. People v Moore, 180 Mich App 301, 308-309 (1989).

The defense of entrapment is personal to the defendant who was the victim of
police misconduct. A codefendant of an entrapped defendant may not assert
the defense where an informant’s activities were directed only at the
entrapped defendant and were not within the knowledge of the codefendant.
People v Soltis, 104 Mich App 53, 55 (1981). However, where the charges
against a defendant and codefendant arise from the same allegedly
impermissible police misconduct, it is proper for a trial court to apply its
entrapment findings to both defendants. People v Forrest, 159 Mich App 329,
333 (1987), and People v Matthews, 143 Mich App 45, 54 (1985).

2. The Test for Entrapment

In People v Turner, 390 Mich 7, 22 (1973), the Michigan Supreme Court

rejected the subjective test of entrapment prevalent in other states and used in
federal courts. The “subjective test” focused on whether the defendant was
“predisposed” to commit the alleged offense or “otherwise innocent.” Id. at
19. The Court in Turner adopted an objective test that focuses on “whether the
actions of the police were so reprehensible under the circumstances that the
Court should refuse, as a matter of public policy, to permit a conviction to
stand.” Id. at 22. In People v Fabiano, 192 Mich App 523, 526 (1992), the
Court of Appeals held that the Supreme Court had modified the objective test
in People v Juillet, 439 Mich 34 (1991). Claims of entrapment must be
analyzed according to a two-pronged test. Where the defense is asserted, a
trial court must consider whether:

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1) the police engaged in impermissible conduct that would induce a

law-abiding person situated as the defendant was to commit a
crime in similar circumstances, OR

2) the police engaged in conduct so reprehensible that it cannot be

tolerated, irrespective of whether the conduct caused the defendant
to commit the crime. Id. See also People v Hampton, 237 Mich
App 143, 156 (1999), People v Williams, 196 Mich App 656, 661
(1992), and People v Kent, 194 Mich App 206, 211 (1992).

• Causation Test

The first type of entrapment does not exist if the police conduct would induce
only those persons who are ready and willing to commit the offense to do so.
Fabiano, supra at 531. With regard to the first type of entrapment, several
factors may be considered when determining whether the governmental
activity would have induced criminal conduct:

1) whether there existed any appeals to the defendant’s sympathy as

a friend;

2) whether the defendant had been known to commit the crime with
which he was charged;

3) whether there were any long lapses of time between the

investigation and arrest;

4) the existence of any inducements that would make the crime

particularly attractive;

5) offers of excessive consideration or other enticement;

6) a guarantee that the acts alleged as crimes were not illegal;

7) whether and to what extent any pressure was applied;

8) the offering and/or giving of sexual favors;

9) whether there were any threats of arrest;

10) the existence of any government procedures that tend to escalate

the criminal culpability of the defendant;

11) the police control over any informant; and

12) whether the investigation was targeted. People v Juillet, 439 Mich
34, 56-57 (1991) (Brickley, J).

When a defendant claims that the activities of a person who is not a police
officer entrapped him or her, those activities must be undertaken as an agent
of the police. People v Potra, 191 Mich App 503, 509-510 (1991) (no
entrapment found where informant may have induced defendant to sell drugs
on the basis of their past friendship).
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Section 6.25

• Reprehensible Conduct Test

Although the foregoing considerations are relevant to the reprehensible

conduct test, more reprehensible conduct is necessary to establish entrapment
of the second type. Fabiano, supra at 531. Except for People v Brown, 439
Mich 34 (1991), and People v Martin, 199 Mich App 124, 126 (1993), there
are no cases finding reprehensible conduct entrapment. In Brown, trading sex
for drugs was found to be reprehensible conduct. In Martin, it was found to be
reprehensible conduct to condition an informant’s payments on a defendant’s
conviction.

So-called “reverse buys” are not entrapment when they merely furnish an
opportunity to commit an offense. People v Butler, 444 Mich 965, 965-966
(1994), and Williams, supra at 663. Law enforcement officers may distribute
controlled substances, at least in small amounts, to other persons as a means
of detecting criminal activity. The distribution of large quantities as bait might
be intolerable, on the other hand. People v Connolly, 232 Mich App 425, 430-
432 (1998).

3. “Sentence Entrapment”

It is not “sentence entrapment” for the police to wait to arrest a defendant

while engaging him or her in additional, larger drug transactions with the
result that the potential penalty increases, either because of greater amounts
of drugs, consecutive sentences, or higher sentencing guidelines scores, so
long as all the police did was give the defendant an opportunity to commit
additional crimes. People v Ealy, 222 Mich App 508, 510-512 (1997).

4. “Entrapment by Estoppel”

“Entrapment by estoppel” is a variation of ordinary entrapment. It applies

when a defendant establishes by a preponderance of evidence that

1) a government official told him or her that certain conduct, which

was actually criminal, was legal;

2) that the defendant actually relied on the official’s statements;

3) that the reliance was in good faith and reasonable in light of the
identity of the government official, the point of law represented,
and the substance of the official’s statements; and

4) that, given the defendant’s reliance, prosecution would be unfair.

Woods, supra at 558-559.

In other words, the defense is available only where an earnest, law-abiding

citizen attempts in good-faith to comply with the law by consulting an
appropriate government official but unfortunately receives misinformation.
Id. at 550. The defense is not available when the citizen knows better or
should know better, or manipulated the official into giving bad advice, but

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attempts to seek immunity by claiming reliance on misinformation from a

government official. Then, prosecution is not unfair.

6.26 Motion to Exclude Public and Press From Preliminary

Examination in Sexual Misconduct Cases

Moving Party: Defendant or prosecutor

Burden of Proof: In cases involving charges of criminal sexual conduct in

any degree, assault with intent to commit criminal sexual conduct, sodomy,
gross indecency, or any other offense involving sexual misconduct, the court
may close the preliminary examination to the public if the moving party
shows that the need for protection of a victim, a witness, or the defendant
outweighs the public’s right of access to the examination. Denial of access to
the examination must be narrowly tailored to accommodate the interest being
protected. MCL 766.9(1)(a)-(b).

Discussion

To determine whether closure of the preliminary examination is necessary to

protect a victim or witness, the court must consider:

“(a) The psychological condition of the victim or witness.

“(b) The nature of the offense charged against the

defendant.

“(c) The desire of the victim or witness to have the

examination closed to the public.” MCL 766.9(2).

The court may close a preliminary examination to protect the right of a party
to a fair trial only if both of the following apply:

“(a) There is a substantial probability that the party’s right

to a fair trial will be prejudiced by publicity that closure
would prevent.

“(b) Reasonable alternatives to closure cannot adequately

protect the party’s right to a fair trial.” MCL 766.9(3).

If the judge or magistrate decides to close the preliminary examination to

members of the general public, he or she must state on the record the specific
reasons for the decision. MCL 766.9(1)(c). The decision is within the
discretion of the judge or magistrate. In narrowly tailoring closure to
accommodate the interests of a victim testifying about sensitive matters, the
magistrate should only close those portions of the examination in which such
matters are discussed. In re Closure of Prelim Exam (People v Jones), 200
Mich App 566, 569-570 (1993).
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Section 6.27

6.27 Motion to Exclude Public and Press From Trial

Moving Party: Defendant or prosecuting attorney

Burden of Proof: The moving party bears a heavy burden to show a

substantial probability that prejudicial error depriving the defendant of a fair
trial will result if the case is open to the press and public, a substantial
probability that closure will be effective in dealing with the danger, and a
substantial probability that no alternative to closure exists that would protect
the defendant’s right to a fair trial. Detroit Free Press v Recorder’s Court
Judge, 409 Mich 364, 390 (1980), and People v Kline, 197 Mich App 165, 169
(1992).

Discussion

A criminal trial must be open to the public unless the trial court enters findings
that no alternative short of closure will adequately assure a fair trial for the
defendant. Richmond Newspapers, Inc v Virginia, 448 US 555, 580-581
(1980). In determining if there is a right of access to criminal proceedings, the
courts examine whether the place and process at issue have historically been
open to the press and general public, and whether public access plays a
significant positive role in the functioning of the process in question. In re
People v Atkins (Detroit News v Recorder’s Court Judge), 444 Mich 737, 739-
740 (1994). Absent the necessary findings supporting closure, voir dire of
prospective jurors, pretrial suppression hearings, and preliminary
examinations must be open. Press-Enterprise Co v Superior Court, 464 US
501 (1984), Waller v Georgia, 467 US 39, 43-47 (1984), and Press-Enterprise
Co v Superior Court, 478 US 1 (1986).

Before closing proceedings to the public and the press, a trial court must
consider alternatives, including the following:

1) adoption of stricter rules governing use of the courtroom by

reporters;

2) insulation or sequestration of witnesses;

3) regulation of the release of information to the press by law

enforcement personnel, witnesses, or counsel;

4) a court order proscribing extrajudicial statements by any law

enforcement personnel, party, witness, or court official that
divulge prejudicial matters;

5) continuance of the case until the threat of news prejudicial to

defendant’s fair trial rights abates;

6) change of venue; and

7) sequestration of the jury.

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Sheppard v Maxwell, 384 US 333, 358-363 (1966).

Parties to a criminal trial may not, by their mere agreement, empower a judge
to exclude the public and press from a session of the court, and the defendant
cannot waive his or her Sixth Amendment right to public trial in absolute
derogation of the public interest in seeing that justice is administered openly
and publicly. Detroit Free Press v Macomb Circuit Judge, 405 Mich 544, 546,
549 (1979), and Detroit Free Press v Recorder’s Court Judge, 409 Mich 364,
385-393 (1980). On the rare occasion when closure may be appropriate, the
court must exercise its discretion to balance the fundamental principle of open
trials with the specific unusual circumstances that allegedly endanger a fair
trial. Id. at 390. The size of the courtroom may justify limiting attendance, and
it is permissible to exclude members of the public who create disturbances or
are dangerous. Id. at 386-387. Closure orders must be narrowly tailored to the
circumstances of the case. In re Closure of Jury Voir Dire (People v
Lawrence), 204 Mich App 592, 595 (1994), and Kline, supra at 171.

The court may exclude witnesses for good cause when they are not testifying
and, in cases involving scandal or immorality, the court for good cause may
exclude minors who are not parties or witnesses. MCL 600.1420. See also
MRE 615.

6.28 Motion to Suppress the Fruits of an Illegal Seizure of

a Person

Note: See also the following sections: 6.16 (suppression of

evidence due to illegal prearraignment detention), 6.30 (exclusion
of in-court identification), 6.36 (suppression of evidence obtained
pursuant to a defective search warrant), and 6.37 (suppression of
evidence obtained through warrantless search and seizure).

Moving Party: Defendant

Burden of Proof: If the defendant seeks to suppress evidence derived from

illegal police conduct, he or she must present evidence demonstrating the
illegality and establish that the derivative evidence is the “fruit” of the
illegality, and that a substantial portion of the case against him or her was “a
fruit of the poisonous tree.” Nardone v United States, 308 US 338, 341 (1939).
The prosecutor has the burden of proving by a preponderance of the evidence
that the evidence was free of the primary taint of a defendant’s illegal arrest,
Brown v Illinois, 422 US 590, 604 (1975), and People v Mosley (After
Remand), 400 Mich 181, 183 (1977), or that the derivative evidence
inevitably would have been discovered by lawful means, Nix v Williams, 467
US 431, 444 (1984), People v Stevens (After Remand), 460 Mich 626, 637
(1999), and People v Brzezinski, 243 Mich App 431, 435-436 (2000), or that
the evidence was discovered from a source wholly independent of the
illegality. Segura v United States, 468 US 796, 805 (1984), People v Smith,

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Section 6.28

191 Mich App 644, 648-650 (1991), and People v Harajli, 148 Mich App 189,
194 (1986).

A motion to suppress evidence obtained from illegal police conduct should be

made contemporaneously with the motion to suppress evidence directly
obtained from the illegality. People v Jones, 66 Mich App 223, 233-234
(1975), modified on other grounds 397 Mich 871 (1976).

Discussion

The exclusionary rule prohibits use of evidence directly and indirectly

obtained through a violation of an accused’s constitutional rights. Wong Sun
v United States, 371 US 471, 484-485 (1963). The United States Supreme
Court noted, however, that not all evidence is inadmissible simply because it
would not have come to light but for the police illegality:

“We need not hold that all evidence is ‘fruit of the

poisonous tree’ simply because it would not have come to
light but for the illegal actions of the police. Rather, the
more apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to
which instant objection is made has been come at by
exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.’” Id. at 487-488 (citation omitted).

See also Johnson v Louisiana, 406 US 356, 365 (1972) (where the defendant
was illegally arrested and detained following arraignment, placing him in a
subsequent lineup did not exploit the illegal arrest), and United States v
Crews, 445 US 463, 471-473 (1980) (robbery victims’ in-court identification
of the juvenile did not exploit the illegal arrest of the juvenile).

The exclusionary rule applies to evidence obtained as a result of a

constitutionally invalid arrest; it does not apply to evidence obtained as a
result of a statutorily invalid arrest. People v Hamilton, 465 Mich 526, 535
(2002), and People v Lyon, 227 Mich App 599, 610-613 (1998). The
exclusionary rule does not apply to violations of Michigan’s “knock and
announce statute,” MCL 780.656. Stevens, supra at 643-647, and People v
Vasquez (After Remand), 461 Mich 235, 242 (1999). But see Wilson v
Arkansas, 514 US 927, 934 (1995) (violations of common-law knock-and-
announce principles should be assessed in determining the reasonableness of
a search and seizure).

When law enforcement officers violate the knock-and-announce rule before

executing a search warrant, application of the exclusionary rule is not the
proper remedy. Hudson v Michigan, 547 US 586, 588, 594 (2006).

In Hudson, police officers arrived at the defendant’s home with a search

warrant authorizing them to search for drugs and firearms. Id. at 588. Outside

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the entrance to the defendant’s home, the officers announced their presence
and waited three to five seconds before entering the house through the
unlocked front door. Id. Officers found and seized both drugs and firearms
from the home. Id. The Michigan Court of Appeals, relying on Michigan
Supreme Court precedent, ruled that application of the exclusionary rule is not
the proper remedy when evidence is seized pursuant to a warrant but in
violation of the knock-and-announce rule. Id. at 588-589.

The Hudson Court restated the three interests protected by the common-law
knock-and-announce rule. Id. at 593. First, compliance with the knock-and-
announce rule protects the safety of the resident and the law enforcement
officer because it minimizes the number of situations when “an unannounced
entry may provoke violence in supposed self-defense by the surprised
resident.” Id. at 594. Secondly, when law enforcement officers delay entry by
knocking and announcing their presence, a resident is given the opportunity
to cooperate with the officers “‘and to avoid the destruction of property
occasioned by a forcible entry.’” Id., quoting Richards v Wisconsin, 520 US
385, 393 n 5 (1997). Finally, when officers avoid a sudden entry into a
resident’s home, it protects a resident’s dignity and privacy by affording the
resident an opportunity “to collect oneself before answering the door.”
Hudson, supra at 594. The Court found none of those interests present in this
case:

“What the knock-and-announce rule has never protected,

however, is one’s interest in preventing the government from
seeing or taking evidence described in a warrant. Since the
interests that were violated in this case have nothing to do with the
seizure of the evidence, the exclusionary rule is inapplicable.” Id.
at (emphasis in original).

The Court further supported its conclusion by referencing three of its own
prior opinions. Id. at 599-600. In Segura v United States, 468 US 796 (1984),
the Court distinguished the effects of “an entry as illegal as can be” from the
effects of the subsequent legal search and excluded only the evidence
obtained as a result of the unlawful conduct. Hudson, supra at 600-601. In
Segura, the evidence at issue resulted from a legal search warrant based on
information obtained while police officers occupied an apartment they had
illegally entered. Because the warrant was not derived from the officers’
initial entry, the Court did not exclude the evidence seized under the warrant.
Hudson, supra at 600-601. As applied to the Hudson case, the Court noted that
a different outcome in this case could not logically follow the disposition of
Segura. Hudson, supra at 600-601. According to the Court:

“If the search in Segura could be ‘wholly unrelated to the prior

entry,’ when the only entry was warrantless, it would be bizarre to
treat more harshly the actions in this case, where the only entry
was with a warrant. If the probable cause backing a warrant that
was issued later in time could be an ‘independent source’ for a
search that proceeded after the officers illegally entered and

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Section 6.28

waited, a search warrant obtained before going in must have at

least this much effect.” Hudson, supra at 600-601 (footnote and
citations omitted, emphasis in original).

In New York v Harris, 495 US 14, 20 (1990), the Court refused to exclude a
defendant’s incriminating statement when, although the defendant’s
statement resulted from his warrantless arrest and subsequent custodial
interrogation, it “was not the fruit of the fact that the arrest was made in the
house rather than someplace else.” Hudson, supra at 601. As for the Harris
case’s import on this case, the Hudson Court noted:

“While acquisition of the gun and drugs [from Hudson’s home]

was the product of a search pursuant to warrant, it was not the fruit
of the fact that the entry was not preceded by knock and
announce.” Hudson, supra at 601 (footnote omitted.)

In United States v Ramirez, 523 US 65, 72 n 3 (1998), the Court explained that
whether the exclusionary rule applied in a specific case turned on whether
there was a “sufficient causal relationship” between the Fourth Amendment
violation and the evidence discovered during the course of events surrounding
the violation. Hudson, supra at 602. Said the Hudson Court with regard to the
Ramirez case: “What clearer expression could there be of the proposition that
an impermissible manner of entry does not necessarily trigger the
exclusionary rule?” Hudson, supra at 602.

The Michigan Supreme Court has described the three “tiers” or levels of
police-citizen encounters and the required degree of suspicion for each:

“The first tier consists of an officer asking a person

questions in a public place.

‘[L]aw enforcement officers do not violate the

Fourth Amendment by merely approaching an
individual on the street or in another public place,
by asking him if he is willing to answer some
questions, by putting questions to him if the person
is willing to listen, or by offering in evidence in a
criminal prosecution his voluntary answers to such
questions. . . . Nor would the fact that the officer
identifies himself as a police officer, without more,
convert the encounter into a seizure requiring some
level of objective justification. . . . The person
approached, however, need not answer any
questions put to him; indeed, he may decline to
listen to the questions at all and may go on his way.
. . . He may not be detained even momentarily
without reasonable, objective grounds for doing so;
and his refusal to listen or answer does not, without
more, furnish those grounds. . . . If there is no
detention--no seizure within the meaning of the

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Fourth Amendment--then no constitutional rights

have been infringed.’

“The second tier of contact is the Terry stop . . . . As a

limited exception to the general rule that all restraints of
the person must be justified by probable cause, Terry
provides that certain seizures are justifiable under the
Fourth Amendment if there is articulable suspicion that a
person has committed or is about to commit a crime.

‘Terry and its progeny, nevertheless, created only

limited exceptions to the general rule that seizures
of the person require probable cause to arrest.
Detentions may be ‘investigative’ yet violative of
the Fourth Amendment absent probable cause. In
the name of investigating a person who is no more
than suspected of criminal activity, the police may
not carry out a full search of the person or of his
automobile or other effects. Nor may the police
seek to verify their suspicions by means that
approach the conditions of arrest.’

“The third tier of contact is the arrest of a person based on probable cause.

‘This Court repeatedly has explained that ‘probable

cause’ to justify an arrest means facts and
circumstances within the officer’s knowledge that
are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the
circumstances shown, that the suspect has
committed, is committing, or is about to commit an
offense.’” People v Shabaz, 424 Mich 42, 56-58
(1985). (Citations and footnote omitted.)

A consensual encounter between an officer and a private citizen does not

implicate the citizen’s constitutional right to be free from unreasonable
searches and seizures. An initially consensual encounter may become a
seizure when, based on the information obtained and observations made, an
officer develops reasonable suspicion that the citizen has been involved in
criminal activity. People v Jenkins, 472 Mich 26, 32-33 (2005). In addition,
an investigatory stop may lead to an arrest based on other information gained
and observations made. Evidence discovered as a result of a lawful arrest is
properly seized at the time of the arrest. Jenkins, supra at 32-35.

Inculpatory evidence obtained after police officers refused a defendant’s

request that they leave the defendant’s home is inadmissible as fruit of the
poisonous tree. People v Bolduc, 263 Mich App 430, 443-445 (2004). In
Bolduc, the defendant opened his door to two law enforcement officers and
allowed them to enter his home. The defendant denied possessing marijuana,
refused to consent to a search of his home, and asked the officers to leave.
Instead of leaving, however, one of the officers began questioning the
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Section 6.28

defendant about a bulge in the defendant’s pocket. The defendant explained

that the bulge was $6,500 from a sale he made earlier that day at the
defendant’s used car lot. The defendant offered to confirm the source of the
money by taking the officers to the car lot to verify the sale. The defendant
was unable to prove that the sum of money in his pocket was the result of a
sales transaction. The defendant eventually admitted to possessing marijuana
and took the officers back to his house where the defendant turned over nine
bags of marijuana to the officers.

Under these circumstances, the Court of Appeals ruled that the police officers
exceeded the constitutional limits of a properly conducted “knock and talk”
interaction with the defendant and in doing so, created a coercive environment
in which the defendant’s subsequent cooperation could not be considered
voluntary. Id. at 436-443. Applying the standard test to the facts in Bolduc, the
Court concluded that under the totality of circumstances—the “knock and
talk” encounter occurred inside the defendant’s home where no real retreat
was possible beyond the verbal and physical indication given by the defendant
that he wished the officers to leave—a reasonable person would not have felt
free to ignore the police officers’ presence and go about his business. Id. at
441. According to the Court:

“By failing to leave defendant’s home when requested to

do so, the police officers suggested that they were in
control of the situation and would not accept defendant’s
exercise of the right to preclude them from further activity
at the home.

***

“Unlike a street encounter, a person such as defendant does

not have the option to test whether he is actually confined
by the police conduct that he is faced with by simply
walking away. Where was defendant to go to avoid the
intrusion of the police upon his own property? At that
point, defendant had done everything that was reasonably
possible for him to convey the message that the police were
no longer welcome in his home.” Id. at 442-443.

Although the inculpatory evidence was obtained after the coercive “knock and
talk” incident inside the defendant’s home, the coercion tainted any evidence
obtained as a result of the officers’ initial visit to the defendant’s home. The
incriminating evidence obtained during the defendant’s later “cooperation”
with the officers “ensued from the police officers’ improper conduct in failing
to leave when requested[ and was] properly suppressed as the fruit of the
illegal seizure . . . .” Id. at 444. The Court reiterated the constitutional
considerations present in such an encounter:

“In sum, while the police are free to employ the knock and
talk procedure, [People v ]Frohriep, [247 Mich App 692

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 Monograph 6—Pretrial Motions (2006–August 2009)

(2001)], they have no right to remain in a home without

consent, absent some other particularized legal
justification. A person is seized for purposes of the Fourth
Amendment when the police fail to promptly leave the
person’s house following the person’s request that they do
so, absent a legal basis for the police to remain independent
of the person’s consent.” Bolduc, supra at 444-445.

Where police officers knocked on a defendant’s door and asked him *Sharrar v
repeatedly to step outside but did not threaten to compel his exit, did not touch Felsing, 128
F3d 810, 819
him until after he stepped out of the house, and did not draw their weapons or (CA 3, 1997);
otherwise make a show of force, the officers did not constructively enter the United States v
defendant’s home in violation of his Fourth Amendment right to privacy. Al-Azzawy, 784
People v Gillam, 479 Mich 253, 266 (2007). In reaching its conclusion, the F2d 890, 893
(CA 9, 1985);
Court reviewed cases from the Third, Sixth, Ninth, and Tenth circuit courts of United States v
appeals,* all of which are courts that recognize the doctrine of constructive Maez, 872 F2d
entry (where a suspect leaves his or her home not because of law 1444, 1450 (CA
10, 1989). The
enforcement’s unlawful physical entry into the home but as a result of United States
coercive police conduct). Id. at 261. In a Sixth Circuit case in which the Supreme Court
defendant established a case of constructive entry, the circumstances involved has not yet
“siege tactics” like “encircling of the suspect’s house with nine officers and addressed the
issue. Gillam,
several patrol cars, the strategic blocking of the suspect’s car with one of the supra at 261.
patrol cars, and the use of floodlights and a bullhorn in the dark of night to
summon the suspect from the home.” Gillam, supra at 262, citing United
States v Morgan, 743 F2d 1158, 1161, 1164 (CA 6, 1984). In contrast to
Morgan, the Gillam Court noted that “the actions of the officers in the instant
case, according to defendant himself, merely involved knocking on his front
door and asking him to step outside. Gillam, supra at 262.

Also of note according to the Gillam Court was the defendant’s initial refusal
to leave his home because he was tethered and prohibited from doing so. Id.
at 256. With regard to the tether, the Court explained that although the
defendant’s tether complicated a review of the situation, “[the tether] alone
d[id] not lead to a presumption that defendant’s will was overborne by a show
of police force.” Id. at 266. Instead, the Court reasoned that “armed with a
court order [to remain in the apartment], defendant should have felt
reasonably confident in refusing police requests that he leave the apartment.”
Id.

After its review of the federal case law, the Court declined to recognize the
doctrine of constructive entry and stated that even if it was to recognize the
doctrine, “defendant in this case would fail to establish that police
constructively entered his home in violation of his Fourth Amendment right
to privacy.” Id. The Court continued, “[I]t being clear that there was no
improper entry, constructive or otherwise, defendant was arrested legally, and
the trial court erred in suppressing evidence [discovered in defendant’s
home].” Id.

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Section 6.28

A police officer needs no probable cause or articulable suspicion to conduct a

computer check of a vehicle’s license plate number. People v Jones, 260 Mich
App 424, 427-429 (2004). An investigatory stop of the vehicle is justified if a
computer check reveals that the vehicle’s registered owner is subject to arrest,
and no visible evidence contradicts the inference that the vehicle’s driver is
the registered owner of the vehicle. Id. at 438. Provided the investigatory stop
was proper and the subsequent arrest was warranted, the search of the driver’s
person and vehicle does not violate the Fourth Amendment’s prohibition
against unreasonable search and seizure, and any evidence discovered during
the warrantless search was lawfully obtained. Id. at 430.

Although an investigative stop implicates the Fourth Amendment, an

investigative stop is proper if based on a reasonable suspicion that a person
has engaged or is engaging in criminal activity. People v Oliver, 464 Mich
184, 192 (2001).

Reasonable suspicion that a person has engaged or is engaging in criminal

activity may properly be based on a tip from an anonymous caller, where there
is sufficient police knowledge of the identity of the caller to render the call
reliable. United States v Long, 464 F3d 569, 573-574 (CA 6, 2006).

In Long, the police stopped defendant as he approached the freeway in his

truck, after receiving a tip from an anonymous caller advising that a burglary
was in process and describing a vehicle similar to defendant’s and containing
items similar to those observed in the back of defendant’s truck. Id. at 570-
571. The defendant brought a motion to exclude the evidence seized from the
back of his truck as fruits of an illegal seizure of a person. Id. at 571. The trial
court denied this motion, finding that the police had reasonable suspicion to
conduct an investigatory stop of defendant. Id. at 571-572. The defendant then
pled guilty, reserving the right to appeal the denial of his motion to suppress.
Id. at 572.

The Court of Appeals affirmed the trial court’s ruling. Id. at 576. The Court
noted that the call upon which the police based their stop of the defendant was
more akin to a call from a known citizen than a call from an anonymous
tipster, because the police were aware of the address at which the caller lived
and actually pulled up in front of the caller’s house while the call was still
ongoing. Id. at 573. The Court accordingly found that the call was sufficiently
reliable to provide the police with reasonable suspicion to conduct an
investigatory stop of defendant. Id. at 574.

For Fourth Amendment purposes, a “seizure” of a person occurs when a

reasonable person, innocent of any crime, would have believed that he or she
was not free to leave. Brower v Inyo Co, 489 US 593, 595-598 (1989). A
seizure involves “an intentional acquisition of physical control” of a person
by a law enforcement officer. Id. at 596. If a suspect flees, he or she is not
“seized” under the Fourth Amendment to the U.S. Constitution until he or she
submits or is forced to submit to police authority. Mere police pursuit of a
fleeing suspect does not constitute a seizure; thus, evidence abandoned by the

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 Monograph 6—Pretrial Motions (2006–August 2009)

fleeing suspect does not fall within the ambit of the Fourth Amendment.
California v Hodari D, 499 US 621, 626, 629 (1991), People v Lewis, 199
Mich App 556, 558-560 (1993), and United States v Martin, 399 F3d 750,
752-753 (CA 6, 2005).

A passenger in a vehicle stopped by the police is seized for purposes of the

Fourth Amendment and may properly challenge the constitutionality of the
traffic stop. Brendlin v California, 551 US 249 (2007). According to the
Brendlin Court, the passenger’s formal arrest did not constitute the time at
which the passenger was seized; rather, the passenger was seized at the
moment the car in which he was riding came to a stop on the side of the road.

“A lawful roadside stop begins when a vehicle is pulled over for investigation
of a traffic violation. The temporary seizure of driver and passengers
ordinarily continues, and remains reasonable, for the duration of the stop.
Normally, the stop ends when the police have no further need to control the
scene, and inform the driver and passengers they are free to leave.” Arizona v
Lemon Johnson, 555 US ___, ___ (2009). “An officer’s inquiries into matters
unrelated to the justification for the traffic stop . . . do not convert the
encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.” Id. at ___. In
Lemon Johnson, supra at ___, a policewoman “was not constitutionally
required to give [the defendant, who was a backseat passenger,] an
opportunity to depart the scene after he exited the vehicle without first
ensuring that, in so doing, she was not permitting a dangerous person to get
behind her.”

Probable cause is required for an arrest; “arrests” for questioning or

investigation are illegal. See Dunaway v New York, 442 US 200, 206-216
(1979), and People v Kelly, 231 Mich App 627, 633-634 (1998). If a person
has been arrested without probable cause, evidence obtained following the
arrest may be excluded as a fruit of that arrest. However, the illegal arrest must
be employed as a tool to directly procure evidence to warrant its suppression.
Kelly, supra at 634, quoting People v Mallory, 421 Mich 229, 240-241, 243 n
8 (1984). The prosecutor must show that there was no causal connection
between the illegal arrest and the discovery of the evidence. People v Martin,
94 Mich App 649, 653 (1980). A confession must be voluntary and
“‘sufficiently an act of free will to purge the primary taint.’” Brown, supra,
422 US at 602, quoting Wong Sun, supra at 486. Where the police have
probable cause to arrest a suspect but enter the suspect’s home without a
warrant, consent, or exigent circumstances, the exclusionary rule does not
require suppression of the suspect’s statements made outside his or her home.
New York v Harris, 495 US 14, 21 (1990), and People v Dowdy, 211 Mich
App 562, 568-570 (1995).

In Brown, supra at 603-604, the United States Supreme Court set forth a non-
exhaustive list of factors to determine whether the police have exploited an
illegal arrest to obtain a confession:

Michigan Judicial Institute © 2006–August 2009 Page 6–83

Section 6.28

1) The giving of Miranda warnings does not purge the confession of

the taint of the illegal arrest. Id. at 603, Dunaway, supra at 218-
219, and Martin, supra.

2) The lapse of time between the defective arrest and the giving of the
confession. Martin, supra, and People v Spinks, 206 Mich App
488, 496-497 (1994).

3) The presence of any intervening factors, such as the defendant

being free to leave and returning later of his own volition, Wong
Sun, supra at 491, or the defendant volunteering a statement
without any police prompting or questioning, Rawlings v
Kentucky, 448 US 98, 108-109 (1980). A lineup is not an
intervening circumstance that tends to dissipate the taint. Mallory,
supra, and People v Casey, 102 Mich App 595, 604 n 6 (1980),
aff’d 411 Mich 179 (1989). The development in the interim of
probable cause to arrest may dissipate the taint of the initial illegal
arrest. Kelly, supra at 634-637, and People v Hampton, 138 Mich
App 235, 238 (1984).

4) The purpose and flagrancy of the official misconduct that rendered

the initial arrest defective. Brown, supra at 605, and Spinks, supra.

A court may also consider events occurring before the arrest. People v
Emanuel, 98 Mich App 163, 177-179 (1980) (defendant’s intention to “turn
himself in” is sufficient to attenuate the connection between illegal arrest and
subsequent confession).

“[D]iscovery of an outstanding arrest warrant can dissipate or attenuate the

taint of an initial illegal stop or arrest.” People v Reese, 281 Mich App 290,
303, 305 (2008). The proper inquiry is “whether the evidence came to light
through exploitation of the illegal conduct or by means sufficiently
distinguishable to be purged of the taint from the illegal conduct.” Id. at 299.
Three factors to consider in determining “‘whether the causal chain has been
sufficiently attenuated to dissipate the taint of illegal conduct [are]: (1) the
time elapsed between the illegality and the acquisition of the evidence; (2) the
presence of the intervening circumstances; and (3) the purpose and flagrancy
of the official misconduct.’” Id., quoting United States v Green, 111 F3d 515,
521 (CA 7, 1997). However, “whether the discovery of a preexisting warrant
dissipates or attenuates the illegality of the initial stop or arrest will usually
depend on two main points: ‘(1) what evidence did the police obtain from the
initial illegal stop before they discovered the outstanding arrest warrant, and
(2) whether that initial illegal stop was a manifestation of flagrant police
misconduct—i.e., conduct that was obviously illegal, or that was particularly
egregious, or that was done for the purpose of abridging the defendant’s
rights.’” Reese, supra at 303-304, quoting McBath v Alaska, 108 P3d 241, 248
(Ala, 2005).

“Purposeful and flagrant misconduct exists where: ‘(1) the impropriety of the
official’s misconduct was obvious or the official knew, at the time, that his [or

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 Monograph 6—Pretrial Motions (2006–August 2009)

her] conduct was likely unconstitutional’ but engaged in it anyway; or where

‘(2) the misconduct was investigatory in design and purpose and executed “in
the hope that something might turn up.”’” Reese, supra at 304, quoting United
States v Simpson, 439 F3d 490, 496 (CA 8, 2006), quoting Brown, supra at
605. “But where the police only discover the defendant’s identity as a result
of the initial illegal stop or arrest, and the police misconduct was not
particularly egregious or the result of bad faith, the discovery of a preexisting
warrant will constitute an intervening circumstance that dissipates the taint of
the initial illegal stop or arrest.” Reese, supra at 304. Accordingly, “evidence
discovered in a subsequent search incident to the lawful arrest[] need not be
suppressed.” Id.

In Reese, supra at 293, the defendant was illegally arrested for loitering. The
police subsequently discovered that the defendant had an outstanding
misdemeanor warrant, and conducted an inventory search of his car, which
yielded drugs. Id. The trial court granted the defendant’s motion to suppress
evidence of the drugs on the basis that because the initial arrest was illegal,
everything discovered as a result of that arrest had to be suppressed. Id. The
charges against the defendant were dismissed, and the prosecutor appealed,
arguing that because the arrest on the outstanding misdemeanor warrant was
proper, a search of the defendant’s car incident to that arrest was proper. Id. at
294. The Court of Appeals found no evidence that the initial decision of the
police to speak to the defendant was motivated by an improper purpose or that
the police improperly detained the defendant, and no evidence that the
ultimate decision of the police to arrest the defendant for loitering was
motivated by an investigatory purpose. Id. at 304. The Court noted that
evidence existed that the police genuinely believed that the defendant was in
fact loitering, and emphasized the fact that the police only searched the
defendant’s car after arresting him on the outstanding misdemeanor warrant.
Id. at 305.

“Because the officers’ initial misconduct—the arrest for

loitering—was not particularly egregious or motivated by bad
faith and only yielded [the defendant’s] identity, the subsequent
discovery of the preexisting arrest warrant was not tainted by the
illegality of that arrest. As such, the discovery of the preexisting
warrant constituted an intervening circumstance that broke the
causal connection between the illegal arrest and the discovery of
the [drug] evidence. Because the search was independently
justified as a search incident to the lawful arrest on the warrant,
[the defendant] was not entitled to have the [drug] evidence
suppressed.” Id.

“To trigger the exclusionary rule, police conduct must be sufficiently

deliberate that exclusion can meaningfully deter it, and sufficiently culpable
that such deterrence is worth the price paid by the justice system.” Herring v
United States, 555 US ___, ___ (2009). In Herring, supra at ___, the police
arrested the defendant on a warrant listed in the database of a neighboring
county. A search incident to arrest yielded drugs and a gun. Id. at ___. It was

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Section 6.29

subsequently discovered that the warrant had been recalled but that the recall
information was never entered into the database. Id. at ___. The defendant
moved to suppress the evidence on the basis that his initial arrest was illegal.
The United States Supreme Court held that the exclusionary rule was not
applicable to bar the admission of the evidence, because the police error arose
“from nonrecurring and attenuated negligence . . . far removed from the core
concerns that led [the Court] to adopt the [exclusionary] rule in the first
place.” Id. at ___.

The “independent source doctrine” may permit introduction of tainted

evidence despite the exclusionary rule if the government can show that the
same evidence was subject to discovery on the basis of information
completely separate from information obtained unlawfully. United States v
Jenkins, 396 F3d 751, 757 (CA 6, 2005) (evidence was admissible because
information contained in the affidavit was sufficient to show probable cause
so that a valid warrant would have issued even without using information
obtained in violation of a defendant’s Fourth Amendment rights).

The “inevitable discovery” doctrine may be used to avoid exclusion of

physical evidence derived from an illegal arrest. Nix v Williams, 467 US 431,
444 (1984), and People v Thomas, 191 Mich App 576, 580-583 (1991).
However, in Thomas, supra at 584, the Court of Appeals stated that “the
inevitable discovery doctrine ordinarily cannot be applied to justify the
admission into evidence of a tainted confession.”

6.29 Motion to Withdraw Guilty Plea

*For further Moving Party: Defendant*
discussion, see
Criminal
Procedure
Burden of Proof: The defendant has an absolute right to withdraw a guilty
Monograph 3, plea before the court accepts it on the record. MCR 6.310(A). The defendant
Misdemeanor may have a right to withdraw a guilty plea after acceptance but before
Arraignments & sentence as provided in MCR 6.310(B), which states:
Pleas—Third
Edition (MJI,
2006-April “(B) Withdrawal After Acceptance but Before
2009), Sections Sentence. After acceptance but before sentence,
3.23(B), 3.29,
3.38, and 3.39,
and Michigan (1) a plea may be withdrawn on the defendant’s
Circuit Court motion or with the defendant’s consent only in the
Benchbook: interest of justice, and may not be withdrawn if
Criminal withdrawal of the plea would substantially
Proceedings
(MJI, 2009).
prejudice the prosecutor because of reliance on the
plea. If the defendant’s motion is based on an error
in the plea proceeding, the court must permit the
defendant to withdraw the plea if it would be
required by subrule (C).

(2) the defendant is entitled to withdraw the plea if

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 Monograph 6—Pretrial Motions (2006–August 2009)

(a) the plea involves a prosecutorial sentence

recommendation or agreement for a specific
sentence, and the court states that it is unable to
follow the agreement or recommendation; the trial
court shall then state the sentence it intends to
impose, and provide the defendant the opportunity
to affirm or withdraw the plea; or

(b) the plea involves a statement by the court that it

will sentence to a specified term or within a
specified range, and the court states that it is unable
to sentence as stated; the trial court shall provide
the defendant the opportunity to affirm or withdraw
the plea, but shall not state the sentence it intends
to impose.”

For withdrawal under MCR 6.310(B)(1), the defendant must show “a fair and
just reason for withdrawal of the plea.” If the defendant establishes a ground
for withdrawal under MCR 6.310(B)(1), the prosecutor who opposes
withdrawal must show that withdrawal will substantially prejudice the
prosecutor because of reliance on the plea. Id. and People v Jackson, 203
Mich App 607, 611-612 (1994).

Discussion

There is no absolute right to withdraw a guilty plea once it has been accepted.
People v Harris, 224 Mich App 130, 131 (1997). Withdrawal of a plea in the
interest of justice pursuant to MCR 6.310(B)(1) is discretionary with the trial
court. People v Spencer, 192 Mich App 146, 150 (1991). To establish that
withdrawal is in the interest of justice, the defendant must show a fair and just
reason for withdrawal. Id. Inducement of a plea by inaccurate legal advice, the
defendant’s misunderstanding of the ramifications of trial, ineffective
assistance of counsel, and the defendant’s inability personally to recount a
sufficient basis for the plea may support a finding that withdrawal is in the
interest of justice. Id. at 151-152. Concern about the potential penalty is not a
sufficient basis for withdrawal of a guilty plea. People v Lafay, 182 Mich App
528, 530 (1990). The discarding of vital physical evidence or the death of a
chief government witness may support a finding that the prosecutor has been
substantially prejudiced because of reliance on a plea; trial preparations and
costs are also appropriate considerations in evaluating prejudice. Spencer,
supra at 150-152.

When a defendant pleads guilty to an offense and may be sentenced according

to the sentencing guidelines for habitual offenders, a trial court must inform
the defendant of the maximum enhanced sentence possible in order for the
defendant to tender an understanding plea as required by MCR 6.302. People
v Boatman, 273 Mich App 405 (2006). The validity of a defendant’s plea to
an offense for which he or she is to be sentenced as a habitual offender is
questionable when the defendant is informed only of the maximum sentence
permitted for a first conviction of the offense. Id. at 412. According to the

Michigan Judicial Institute © 2006–August 2009 Page 6–87

Section 6.29

Boatman Court, the sentencing court’s failure to specify whether the

maximum sentence to which it was referring was based on the habitual
offender or the first-time offender guidelines “constituted a procedural flaw
that resulted in the failure to properly inform defendant of the consequences
of his plea, rendering it unintelligent.” Id. at 412.

Doubt about the veracity of a defendant’s nolo contendere plea, by itself, is

not an appropriate reason to permit the defendant to withdraw an accepted
plea before sentencing. People v Patmore, 264 Mich App 139, 152 (2004). In
Patmore, the defendant moved to withdraw his no contest plea on the basis
that the complainant had recanted her preliminary examination testimony on
which the defendant’s plea was based. The Court explained that

“for recanted testimony, which provided a substantial part

of the factual basis underlying a defendant’s no-contest
plea, to constitute a fair and just reason for allowing the
defendant to withdraw his plea, at a minimum, the
defendant must prove by a preponderance of credible
evidence that the original testimony was indeed untruthful.
If the defendant meets this burden, the trial court must then
determine whether other evidence is sufficient to support
the factual basis of the defendant’s plea. If the defendant
fails to meet this burden or if other evidence is sufficient to
support the plea, then the defendant has not presented a fair
and just reason to warrant withdrawal of his no-contest
plea. Even if the defendant presents such a fair and just
reason, prejudice to the prosecution must still be
considered by the trial court [internal citations omitted].”
Id.

A defendant who escapes from custody before sentencing waives the right to
withdraw his or her guilty plea based on the judge’s failure to follow a
sentence recommendation. People v Garvin, 159 Mich App 38, 43 (1987).

If a defendant withdraws his or her plea, he or she may be tried on the original
charges or on any charges that could have been brought if the plea had not
been entered. MCR 6.312.

If a defendant has pled guilty in reliance on a bargain with the prosecution,

should the prosecution not honor the agreement, the courts must specifically
enforce the agreement if it can be fulfilled, or if the agreement can no longer
be fulfilled, the defendant must be allowed to withdraw his or her plea. Guilty
Plea Cases, 395 Mich 96, 127 (1975).

However, because no defendant has a right to plead guilty, let alone any right
to a plea bargain, People v Grove, 455 Mich 439, 469 n 36, 471 (1997), the
right to specific performance of a plea agreement does not inure to the
defendant “until after he has pled guilty or performed part of the plea
agreement to his prejudice in reliance upon the agreement. In re Robinson,

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 Monograph 6—Pretrial Motions (2006–August 2009)

180 Mich App 454, 459 (1989). “Detrimental reliance” occurs only when a
defendant does exactly what he or she promised—substantial compliance is
insufficient. People v Walton, 176 Mich App 821, 825-826 (1989), People v
Lombardo, 216 Mich App 500, 511 (1996), and People v Hannold, 217 Mich
App 382 (1996). There must also be “no other remedy . . . available which will
return the defendant to the position he enjoyed prior to making the agreement
at issue. People v Gallego, 430 Mich 443, 456 n 10 (1988).

There may, however, be an exception to the rules stated above. In People v

Mooradian, 221 Mich App 316, 319-320 (1997), and People v Sawyer, 215
Mich App 183, 195-196 (1996), the Court of Appeals held that MCR
2.507(H) applies in criminal cases. That subrule has long been recognized as
making binding in a civil case any final settlement, as well as lesser
agreements, e.g., regarding authentication of documents, order of witnesses,
etc., placed on the record in open court or memorialized in a writing signed by
the person against whom the settlement is sought to be enforced or by that
person’s attorney.

The prosecutor may seek to set aside a plea if the defendant has failed to
comply with the terms of a plea agreement. MCR 6.310(E).

6.30 Motion to Suppress Eyewitness Identification at Trial

Because of Illegal Pretrial Identification Procedure

Moving Party: Defendant

Burden of Proof: The defendant has the burden of establishing that his or her
right to counsel was violated. People v Morton, 77 Mich App 240, 244 (1977).
The prosecuting attorney has the burden of showing that the defendant waived
his or her right to counsel. United States v Wade, 388 US 218, 237 (1967) (an
intelligent waiver of the right to counsel must be shown), and People v
Daniels, 39 Mich App 94, 96-97 (1972) (prosecutor proved by clear and
convincing evidence that the defendant voluntarily, knowingly, and
intelligently waived his right to assistance of counsel at a lineup). If counsel
was not present, the prosecutor must establish that the procedure was not
unduly suggestive. If counsel was present, the defendant has the burden of
proving that the procedure was unduly suggestive. People v Young, 21 Mich
App 684, 693-694 (1970).

If the court finds a violation of the right to counsel or that a pretrial

identification procedure was unduly suggestive, in-court identification of the
defendant at trial is inadmissible as the fruit of the illegal procedure unless the
prosecution establishes by clear and convincing evidence that the in-court
identification is based upon observations of the suspect other than the illegal
pretrial identification. Wade, supra at 240, and People v Gray, 457 Mich 107,
115 (1998).

Discussion
Michigan Judicial Institute © 2006–August 2009 Page 6–89
Section 6.30

An evidentiary hearing must be held where the defendant claims that a pretrial
identification procedure was constitutionally improper. See People v
Piscunere, 26 Mich App 52, 55 (1970), and People v Johnson, 202 Mich App
281, 285 (1993) (no hearing is required where it is apparent that the challenges
are insufficient to raise a constitutional question or where the defendant does
not substantiate the allegations with factual support). The defendant has a
right to testify at the hearing “for the limited purpose of making a record of
his version of the facts and circumstances regarding the lineup.” Piscunere,
supra at 56.

1. Right to Counsel

There is a federal constitutional right to counsel at a corporeal lineup. Wade,

supra, and Gilbert v California, 388 US 263 (1967). A defendant’s right to
counsel at corporeal identifications attaches at the time adversarial judicial
criminal proceedings are initiated against that defendant. People v Hickman,
470 Mich 602, 609 n 4 (2004). In Hickman, the challenged identification took
place “on-the-scene” and before the initiation of adversarial proceedings;
therefore, counsel was not required. The Michigan Supreme Court’s decision
in Hickman overruled the Court’s previous decision in People v Anderson,
389 Mich 155 (1973), where “the right to counsel was extended to all pretrial
corporeal identifications, including those occurring before the initiation of
adversarial proceedings.” Hickman, supra at 606. Adopting the U.S. Supreme
Court’s holding in Moore v Illinois, 434 US 220, 226-227 (1977), the
Hickman Court stated that

“it is now beyond question that, for federal Sixth

Amendment purposes, the right to counsel attaches only at
or after the initiation of adversarial judicial proceedings.

This conclusion is also consistent with our state

constitutional provision, Const 1963, art 1, § 20[.]”
Hickman, supra at 607-608.

The Court added that “identifications conducted before the initiation of

adversarial judicial criminal proceedings could still be challenged” on the
basis that a defendant’s due process rights were violated by the
identification’s undue suggestiveness or by other factors unfairly prejudicial
to the defendant. Id., citing Moore, supra at 227.

Counsel is required at a photographic showup when the accused is in custody,

but not when police have not yet arrested the accused or focused their
investigation on the accused alone. People v Kurylczyk, 443 Mich 289, 301-
302 (1993).

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 Monograph 6—Pretrial Motions (2006–August 2009)

2. Impermissible Suggestiveness and Due-Process

Limitations

Substantive evidence concerning any “pre-indictment” identification

procedure is inadmissible if the procedure is so unnecessarily suggestive and
conducive to irreparable misidentification that it amounts to a denial of due
process. Stovall v Denno, 388 US 293, 302 (1967), and Kurylczyk, supra at
302-311 (photographic identifications).

Physical differences among a suspect and other lineup participants do not

alone establish impermissible suggestiveness; such differences are significant
only when apparent to the witness and when they serve to substantially
distinguish the defendant from the other participants. People v Hornsby, 251
Mich App 462, 466 (2002). Physical differences generally affect the weight
rather than the admissibility of identification evidence. People v Sawyer, 222
Mich App 1, 3 (1997). See also Kurylczyk, supra at 304-305, 311-314
(appearance of the accused in a lineup wearing the same clothes as allegedly
worn during the commission of the offense does not automatically render a
procedure impermissibly suggestive).

Where the witness has failed to identify the accused in a pretrial identification
procedure, a later confrontation during a preliminary examination will not be
held to be impermissibly suggestive per se. People v Barclay, 208 Mich App
670, 675-676 (1995), People v Solomon, 47 Mich App 208, 216-221 (1973),
and People v Whitfield, 214 Mich App 348, 351 (1995) (confrontation during
juvenile waiver hearing).

The suggestiveness of an identification procedure is determined by

considering the totality of the circumstances surrounding the procedure.
Stovall, supra at 301-302, and People v Lee, 391 Mich 618, 626 (1974). In
ascertaining whether a pretrial identification procedure is impermissibly
suggestive, a court must look to the totality of the circumstances, especially
the time between the criminal act and the procedure, and the duration of the
witness’s contact with the perpetrator during commission of the offense.
People v Johnson, 58 Mich App 347, 352-355 (1975), and Neil v Biggers, 409
US 188, 199 (1972).

Absent any improper suggestions or the provision of a photograph of the

defendant following the complainant’s failure to make a definitive
identification of the defendant at a lineup, a prosecutor’s post-lineup
communication with the complainant did not violate the defendant’s due
process rights. People v Harris, 261 Mich App 44, 50-53 (2004).

3. Consequences of Violation

If the pretrial identification procedures are impermissibly suggestive or

conducive to irreparable misidentification, testimony as to the out-of-court
identification must be excluded. Gilbert, supra at 273. In-court identification
is only permissible if the prosecuting attorney shows by clear and convincing

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Section 6.31

evidence that the in-court identification has a basis independent of the illegal
lineup. Wade, supra at 240, Manson v Braithwaite, 432 US 98 (1977), and
Anderson, supra at 167.

These factors must be considered when determining whether an in-court

identification has an independent basis:

1) prior relationship with or knowledge of the defendant;

2) the opportunity to observe the offense, including such factors as
the length of time of the observation, lighting, noise, or other
factors affecting sensory perception and proximity to the alleged
criminal act;
3) length of time between the offense and the disputed identification;
4) accuracy or discrepancies in the pre-lineup or showup description
and defendant’s actual description;
5) any previous proper identification or failure to identify the
offender;
6) any identification prior to the lineup or showup of another person
as defendant;
7) the nature of the alleged offense and the physical and
psychological state of the witness, including such factors as
fatigue, nervous exhaustion, intoxication, age, and intelligence of
the witness; and

8) any idiosyncratic or special features of the defendant. People v

Kachar, 400 Mich 78, 95-96 (1977).

6.31 Motion in Limine—Impeachment of Defendant by

Evidence of Prior Convictions

Moving Party: Defendant or prosecutor

Burden of Proof: If a prior conviction contains no element of dishonesty,

false statement, or theft, evidence of the prior conviction is not admissible for
impeachment purposes. If a prior conviction contains an element of
dishonesty or false statement, evidence of the prior conviction is admissible if
more than ten years have not elapsed since the date of the conviction or the
defendant’s release from confinement, whichever is later. MRE 609(a) and
MRE 609(c). The trial court has discretion to admit evidence of prior
convictions for impeachment purposes if the prior conviction is a theft offense
punishable by imprisonment for more than one year and the time requirement
of MRE 609(c) is satisfied. MRE 609(a)(2)(A). If the prior conviction is such
a theft offense, the court must balance its probative value and prejudicial
effect. MRE 609(a)(2)(B). The prosecutor bears the burden of justifying
admission of the evidence. People v Crawford, 83 Mich App 35, 38 (1978).

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Discussion

MRE 609 provides in part:

“(a) General Rule. For the purpose of attacking the

credibility of a witness, evidence that the witness has been
convicted of a crime shall not be admitted unless the
evidence has been elicited from the witness or established
by public record during cross examination, and

(1) the crime contained an element of dishonesty or

false statement, or

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in

excess of one year or death under the law under
which the witness was convicted, and

(B) the court determines that the evidence has

significant probative value on the issue of
credibility and, if the witness is the defendant in a
criminal trial, the court further determines that the
probative value of the evidence outweighs its
prejudicial effect.

“(b) Determining Probative Value and Prejudicial

Effect. For purposes of the probative value determination
required by subrule (a)(2)(B), the court shall consider only
the age of the conviction and the degree to which a
conviction of the crime is indicative of veracity. If a
determination of prejudicial effect is required, the court
shall consider only the conviction’s similarity to the
charged offense and the possible effects on the decisional
process if admitting the evidence causes the defendant to
elect not to testify. The court must articulate, on the record,
the analysis of each factor.

“(c) Time Limit. Evidence of a conviction under this rule

is not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of
the witness from the confinement imposed for that
conviction, whichever is the later date.”

MRE 609(d) addresses the effect of pardons, annulments and certificates of

rehabilitation, MRE 609(e) addresses evidence of juvenile adjudications, and
MRE 690(f) discusses the effect of the pendency of an appeal from a
conviction.

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Section 6.31

MRE 609 sets forth a bright-line rule excluding evidence of all prior
convictions for impeachment if they do not contain an element of dishonesty,
false statement, or theft. The rule that evidence of all other convictions is not
admissible for impeachment purposes recognizes that crimes not containing
elements of dishonesty, false statement, or theft have no strong relationship to
credibility and have strong potential for prejudice. People v Allen, 429 Mich
558, 596 (1988).

The first task for the trial court is to determine if the prior conviction is for an
offense containing an element of dishonesty or false statement. If so,
exclusion of evidence of that prior conviction for impeachment purposes is
not permitted, assuming satisfaction of the time requirement of MRE 609(c).
MRE 609(a)(1). This rule of admissibility recognizes that crimes containing
an element of dishonesty or false statement are directly probative of a
witness’s truthfulness, have high probative value, and are inherently more
probative than prejudicial. Crimes in this category contain elements of deceit,
untruthfulness, and falsification, and include, but are not limited to, perjury,
subornation of perjury, false statement, criminal fraud, embezzlement, and
false pretenses. Crimes of thievery may or may not contain an element of
dishonesty or false statement for purposes of MRE 609(a)(1). The prejudicial
effect of evidence of prior convictions containing an element of dishonesty or
false statement is irrelevant for purposes of MRE 609. Allen, supra at 593-
595, 605, and People v Parcha, 227 Mich App 236, 243-246 (1997) (evidence
of a prior conviction of misdemeanor larceny is not admissible under MRE
609(a)(1); whether misdemeanor retail fraud involves dishonesty or false
statement depends on the specific factual underpinnings of the conviction).

If the prior conviction does not contain an element of dishonesty or false

statement, the court must determine if it contains an element of theft. If not,
evidence of the prior conviction is not admissible. If it does contain an
element of theft, evidence of the prior conviction may be admissible. If the
prior conviction containing an element of theft was not punishable by
imprisonment for more than one year, evidence of that conviction is not
admissible. If the prior conviction containing an element of theft was
punishable by imprisonment for more than one year, admission of evidence of
the prior conviction to impeach the defendant is discretionary with the trial
court. In exercising his or her discretion in determining the admissibility of
the prior theft-related conviction punishable by more than one year’s
imprisonment, the trial court must determine whether the probative value of
the evidence outweighs its prejudicial effect. In determining probative value,
the trial court may consider only two factors: the degree to which the prior
crime is indicative of veracity and the vintage of the prior conviction. For
purposes of the determination of probative value, the offense of armed
robbery, for example, is considered less indicative of veracity than some other
theft-related offenses. The more recent the prior conviction, the greater its
probative value. It is not permissible to consider the parties’ need for the
evidence in determining its probative value. In assessing the prejudicial effect
of the evidence, the court may consider only two factors: the similarity
between the prior conviction and the charged offense, and the importance of

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the defendant’s testimony to the decisional process. The more similar the prior
conviction and the current charge, the greater is the prejudicial effect of the
evidence. As the importance of the defendant’s testimony increases, the
prejudicial effect of the evidence also increases. If the defendant’s testimony
is the sole means for presentation of the defense version of the facts, for
example, the prejudicial effect of evidence of a prior conviction is heightened.
Evidence of a prior theft-related offense is not admissible unless its probative
value outweighs its prejudicial effect. Allen, supra at 605-606, 610-611,
People v Cross, 202 Mich App 138, 146-147 (1993), and People v Bartlett,
197 Mich App 15, 19-20 (1992).

The balancing of probative value and prejudicial effect is addressed to the

discretionary authority of the trial court and applies only to certain prior theft
convictions and only if the witness is a criminal defendant. Allen, supra at
596, 606-607.

MRE 609(c) prohibits admission of evidence of any prior conviction if more

than ten years have elapsed since the date of the conviction or since the date
of the witness’s release from confinement for that conviction, whichever is
later. People v Coddington, 188 Mich App 584, 595-596 (1991). There is no
requirement that the defendant have been sentenced on the prior conviction
before trial on the current charge, and the prior conviction need not have
involved events preceding the events which gave rise to the current trial.
People v Kennebrew, 220 Mich App 601, 606 (1996), and Hurt v Michael’s
Food Ctr, 220 Mich App 169, 176-177 (1996).

6.32 Motion in Limine—Impeachment of Defendant by His

or Her Silence

Moving Party: Defendant or prosecutor

Burden of Proof: The general rule is that the party proffering evidence must
establish its admissibility.

Discussion

If a defendant’s silence is attributable to invocation of the Fifth Amendment *See Section

privilege against self-incrimination or to reliance on Miranda warnings,* 6.18, above, for
a discussion of
admission of evidence of that silence is error. People v McReavy, 436 Mich Miranda.
197, 201 (1990). Admission of evidence of a defendant’s silence during
contact with the police that does not occur at the time of arrest and in the face
of accusation does not violate the Fifth Amendment or the Michigan
Constitution. People v Collier, 426 Mich 23, 39 (1986), and People v
Cetlinski, 435 Mich 742, 746-747, 759-760 (1990), clarifying People v Bobo,
390 Mich 355 (1973). A defendant’s silence, not in the face of accusation,
may be admissible as conduct evidence to impeach the defendant’s testimony
that he or she was an innocent bystander. People v Hackett, 460 Mich 202,
215-216 (1999), clarifying People v Bigge, 288 Mich 417 (1939). Evidence of

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Section 6.32

nonresponsive conduct or silence that did not occur during custodial

interrogation or in reliance on Miranda warnings may be admissible as
evidence of consciousness of guilt. People v Solmonson, 261 Mich App 657,
664-667 (2004), and People v Schollaert, 194 Mich App 158, 160-167 (1992).

A prosecutor may not “seek to impeach a defendant’s exculpatory story, told

for the first time at trial, by cross-examining the defendant about his [or her]
failure to have told the story after receiving Miranda [v Arizona, 384 US 436
(1966)] warnings at the time of his [or her] arrest.” Doyle v Ohio, 426 US 610,
611 (1976). “[U]se of the defendant’s post-arrest silence in this manner
violates due process,” Doyle, supra at 611, and is commonly referred to as
“Doyle error.” See People v McReavy, 436 Mich 197, 202 n 2 (1990).

A defendant’s post-arrest, post-Miranda silence may not be used to impeach

a defendant’s exculpatory testimony, or as direct evidence of a defendant’s
guilt in the prosecution’s case-in-chief. People v Shafier, 483 Mich 205, 213-
214 (2009). This is because “‘there is no way to know after the fact whether
[the defendant’s post-arrest, post-Miranda] silence was due to the exercise of
constitutional rights or to guilty knowledge.’” Shafier, supra at 214, quoting
People v McReavy, 436 Mich 197, 218 (1990). However, “in some
circumstances a single reference to a defendant’s silence may not amount to a
violation of Doyle [v Ohio, 426 US 610 (1976)] if the reference is so minimal
that ‘silence was not submitted to the jury as evidence from which it was
allowed to draw any permissible inference . . . .’” Shafier, supra at 214-215,
quoting Greer v Miller, 483 US 756, 764-765 (1987).

In Shafier, 483 Mich at 215-219, the prosecution violated the defendant’s due
process rights by making repeated references to the defendant’s post-arrest,
post-Miranda silence as evidence of the defendant’s guilt, and to impeach the
defendant’s testimony that he was not guilty. In Shafier, supra at 219-220, the
defendant had not preserved the issue; therefore, the Court had to apply plain
error review: (1) was there error?; (2) was the error plain?; (3) did the error
affect substantial rights?; and (4) did the error result in the conviction of an
actually innocent defendant or seriously affect the fairness, integrity, or public
reputation of judicial proceedings?

In Shafier, 483 Mich at 220-221, the Court determined that plain error
occurred. In considering whether the error affected substantial rights, i.e., was
prejudicial, the Court considered “(1) the extent of the prosecutor’s
comments, (2) the extent to which the prosecutor attempted to tie [the]
defendant’s silence to his guilt, and (3) the overall strength of the case against
[the] defendant when considered in light of the degree to which the jury’s
assessment of the evidence might have been affected by the prosecutor’s
references to [the] defendant’s silence.” The Court noted that “the more
extensive a prosecutor’s references to a defendant’s post-arrest, post-Miranda
silence, the more likely it is that the references had a prejudicial effect.”
Shafier, supra at 221-222. The Court further noted that “a prosecutor’s
references to a defendant’s post-arrest, post-Miranda silence are more likely
to be prejudicial the more directly or explicitly the prosecutor uses the silence

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to challenge a defendant’s credibility or show a defendant’s guilt.” Shafier,

supra at 222.

Applying the considerations to determine whether the Doyle error was

prejudicial to the defendant in Shafier, the Court held that “in light of the
prosecutor’s extensive references to [the] defendant’s silence, the extensive
connection of that silence to [the] defendant’s guilt, the inconsistencies in the
prosecutor’s case and the other evidence presented against him, and the nature
of [the] defendant’s defense—which hinged on his own credibility, [] the error
was prejudicial.” Shafier, 483 Mich at 223. The Court concluded that because
“[t]he violation of [the] defendant’s due process rights rendered the trial
fundamentally unfair and cast a shadow on the integrity of [the] state’s
judicial processes,” all four requirements of plain error review were met, and
reversal was required. Id. at 224.

Cf. People v Borgne, 483 Mich 178, 181 (2009), aff’d ___ Mich ___ (2009),
where a Doyle error violated the defendant’s due process rights, but did not
amount to plain error requiring reversal. Even though the prosecutor made
numerous references to the defendant’s post-arrest, post-Miranda silence, the
references were not pervasive. Borgne, supra at 198. Further, even though the
prosecutor used the defendant’s silence to challenge the credibility of the
defendant’s exculpatory version of events, the prosecutor did not suggest to
the jury, either implicitly or explicitly, that it should infer guilt from the
silence. Shafier, 483 Mich at 222. Additionally, the prosecutor presented
“compelling, largely consistent, untainted evidence to prove th[e] defendant’s
guilt,” and “did not overtly tie [the] defendant’s post-arrest, post-Miranda
silence to its argument that [the] defendant was guilty of the charged crime.”
Borgne, supra at 199. Finally, the prosecution’s case was strong and
consisted of untainted evidence independent of the Doyle violation. Borgne,
supra at 199-201. Because the defendant was unable to establish prejudice,
his convictions were affirmed. Id. at 202-203. Additionally, the defendant was
unable to demonstrate that he was prejudiced by his attorney’s failure to
object to the Doyle error; therefore, he was not entitled to reversal on the basis
of ineffective assistance of counsel under Strickland v Washington, 466 US
668 (1984). Borgne, ___ Mich at ___.

Cross-examination of a defendant concerning his or her prearrest failure to

give the police the version of the events in question that the defendant later
offers at trial, or concerning omissions within prearrest statements voluntarily
given to the police during their investigation, may be admissible if it would
have been natural for the defendant to come forward with the story which was
later related at trial. Collier, supra at 34-36, 39, and Cetlinski, supra at 746-
747, 760-761.

Evidence of a defendant’s behavior and demeanor during a custodial

interrogation after a valid waiver of his or her Fifth Amendment privilege
against compulsory self-incrimination is admissible. When a defendant
speaks after receiving Miranda warnings, a momentary pause or failure to
answer a question does not constitute invocation of the right to remain silent.

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Section 6.33

McReavy, supra at 200, 221-222. If a defendant was generally prepared to talk

to the police and did so, the defendant’s statements, the manner in which those
statements were phrased and the defendant’s varying degrees of candor may
be appropriate matters for jury consideration. People v Sholl, 453 Mich 730,
738 (1996). See also People v Rice (On Remand), 235 Mich App 429, 435-
437 (1999) (when defendant was given Miranda warnings, waived his Fifth
Amendment right to remain silent, answered some questions posed to him by
the police, and then was silent but did not verbally invoke his right to be silent
or state that he did not want to answer more questions, a police officer’s
testimony concerning the defendant’s nonverbal conduct and silence is not an
impermissible commentary on the defendant’s silence).

A defendant who testifies that he or she made a statement to the police that
was consistent with his or her trial testimony may be impeached with evidence
that no such statement was made. People v Sutton (After Remand), 436 Mich
575, 591-600 (1990).

A defendant must testify at trial to preserve for appellate review his or her
challenge to the trial court’s ruling in limine permitting the prosecution to
introduce evidence of the defendant’s post-Miranda silence. People v Boyd,
470 Mich 363, 365 (2004). The requirement that a defendant testify in order
to contest the admission of his or her post-Miranda silence is necessary
because a defendant’s post-Miranda silence is admissible in one very specific
context—to rebut a defendant’s assertion at trial that he or she told the police
something contrary to what actually occurred during the defendant’s
statement to police. Id., citing Doyle v Ohio, 426 US 610 (1976).

6.33 Notice and Examination Requirements for Asserting

an Insanity Defense

Moving Party: Defendant

Burden of Proof: “It is an affirmative defense to a prosecution for a criminal

offense that the defendant was legally insane when he or she committed the
acts constituting the offense.” MCL 768.21a(1). “The defendant has the
burden of proving the defense of insanity by a preponderance of the
evidence.” MCL 768.21a(3).

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If the defendant properly asserts an insanity defense, the trier of fact may find *In contrast to a
him or her “guilty but mentally ill”* if the trier of fact finds all of the “not guilty by
reason of
following: insanity”
verdict, a “guilty
“(a) The defendant is guilty beyond a reasonable doubt of but mentally ill”
an offense. verdict does not
absolve a
defendant of
“(b) The defendant has proven by a preponderance of the criminal
evidence that he or she was mentally ill at the time of the responsibility;
instead, it
commission of that offense. affords the
defendant
“(c) The defendant has not established by a preponderance psychiatric
of the evidence that he or she lacked the substantial treatment as
part of his or her
capacity either to appreciate the nature and quality or the sentence. MCL
wrongfulness of his or her conduct or to conform his or her 768.36(3)-(4).
conduct to the requirements of the law.” MCL
768.36(1)(a)-(c).

Discussion

1. Definition of “Legal Insanity”

MCL 768.21a(1)-(2) state in part as follows:

“(1) . . . An individual is legally insane if, as a result of

mental illness . . . , or as a result of being mentally retarded
. . . , that person lacks substantial capacity either to
appreciate the nature and quality or the wrongfulness of his
or her conduct or to conform his or her conduct to the
requirements of the law. Mental illness or being mentally
retarded does not otherwise constitute a defense of legal
insanity.

“(2) An individual who was under the influence of

voluntarily consumed or injected alcohol or controlled
substances at the time of his or her alleged offense is not
considered to have been legally insane solely because of
being under the influence of the alcohol or controlled
substances.”

“‘Mental illness’ means a substantial disorder of thought or mood that

significantly impairs judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life. MCL 330.1400(g). “‘Mental
retardation’ means significantly subaverage general intellectual functioning
that originates during the developmental period and is associated with
impairment in adaptive behavior.” MCL 330.2001a(6).

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Section 6.33

Note: MCL 768.21a(1) references MCL 330.1400a for the

definition of “mental illness.” This statute was repealed by 1995
PA 290. For purposes of the insanity statute, the definition in MCL
330.1400(g) should be used. People v Mette, 243 Mich App 318,
325 (2000). Similarly, “mentally retarded” is no longer defined in
MCL 330.1500 as referenced in MCL 768.21a(1). However, a
substantially similar definition of “mentally retarded” appears in
MCL 330.2001a(6) of the Mental Health Code.
*For a more “[A] ‘settled condition of insanity’ caused by [voluntary] drug abuse, even if
complete temporary in nature, may nevertheless be legal insanity if the condition was
discussion of
the insanity
not limited merely to periods of intoxication.” People v Conrad, 148 Mich
defense, see App 433, 439 (1986) (the trial court erroneously precluded defendant’s
Sexual Assault insanity defense, which was based on the effects of defendant’s voluntary
Benchbook ingestion of phencyclidine (PCP or “angel dust”) for two weeks prior to the
(MJI, 2002-April
2009), Section offense).*
4.10(A)(3)-(4).
“[T]he Legislature’s enactment of a comprehensive statutory scheme
concerning defenses based on either mental illness or mental retardation
demonstrates the Legislature’s intent to preclude the use of any evidence of a
defendant’s lack of mental capacity short of legal insanity to avoid or reduce
criminal responsibility by negating specific intent.” People v Carpenter, 464
Mich 223, 236 (2001). Thus, the defense of “diminished capacity” has been
abrogated in Michigan. Id. at 237.

2. Notice and Examination Requirements

The defendant in a felony case must file and serve on the prosecutor and the
court written notice of intent to claim an insanity defense no less than 30 days
before the trial date, or at such other time as the court directs. MCL
768.20a(1).

Upon receipt of the notice, the trial court must order examination of the
defendant for a period not to exceed 60 days by the Center for Forensic
Psychiatry or other qualified personnel. MCL 768.20a(2). Both parties also
may obtain independent psychiatric examinations. MCL 768.20a(3). But see
People v Smith, 103 Mich App 209, 210-211 (1981) (the trial court properly
denied defendant’s request for an independent examination made on the first
day of trial). If the defendant is indigent, he or she is entitled to one
independent examination at public expense. Id.; Ake v Oklahoma, 470 US 68,
78-79, 83 (1985).

The trial court has discretion to allow defense counsel to be present during an
examination conducted at the request of the prosecuting attorney. People v
Martin, 386 Mich 407, 429 (1971).

After the examination is conducted, the examiner(s) must prepare a written

report and submit it to the prosecuting attorney and defense counsel. MCL
768.20a(6). The report must contain the following information:

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“(a) The clinical findings of the center [for forensic

psychiatry], the qualified personnel, or any independent
examiner.

“(b) The facts, in reasonable detail, upon which the

findings were based.

“(c) The opinion of the center or qualified personnel, and

the independent examiner on the issue of the defendant’s
insanity at the time the alleged offense was committed and
whether the defendant was mentally ill or mentally
retarded at the time the alleged offense was committed.”
MCL 768.20a(6)(a)-(c).

Within 10 days of receipt of the report from the forensic center or from the
prosecutor’s independent examiner, whichever occurs later, but no less than
five days before trial, or at such other time as the court directs, the prosecutor
must file and serve notice of rebuttal, including witnesses’ names. MCL
768.20a(7).

MCL 768.21(1)-(2) allow the court to exclude evidence offered by the

defendant or prosecuting attorney for the purpose of establishing or rebutting
an insanity defense. If the required notice is not filed and served at all, the
court must exclude the proffered evidence. In addition, if the notice given by
the defendant or the prosecuting attorney does not state, as particularly as is
known to the party, the name of a witness to be called to establish or rebut the
defense, the court must exclude the testimony of the witness.

However, strict compliance with the statutory notice requirements regarding

an insanity defense may not be necessary, where the parties have actual notice
of witnesses who may be called and no surprise will result from the
noncompliance. People v Blue, 428 Mich 684, 690 (1987), People v Stinson,
113 Mich App 719, 723-726 (1982) (the trial court properly ordered a one-
week adjournment of trial to allow the prosecutor to file a notice of rebuttal,
where defense counsel was aware of the prosecutor’s intent to call an expert
witness), and People v Jurkiewicz, 112 Mich App 415, 417 (1982)
(prosecutor’s failure to file notice of rebuttal or request permission to file a
late notice of rebuttal required exclusion of witness’s testimony).

3. Required Cooperation With the Examination

If the defendant has been released from custody before trial, he or she must
make himself or herself available for examination “at the time and place
established by the center [for forensic psychiatry] or the other qualified
personnel.” MCL 768.20a(2). If the defendant fails to make himself or herself
available, the court may order the defendant’s commitment to the forensic
center without a hearing. Id.

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Section 6.33

The defendant must fully cooperate in an examination by the Center for

Forensic Psychiatry, other qualified personnel, or independent examiners for
the defense or prosecution. MCL 768.20a(4). If the defendant fails to
cooperate during the examination, and the failure is “established to the
satisfaction of the court at a hearing prior to trial, the defendant shall be barred
from presenting testimony relating to his or her insanity at the trial of the
case.” Id. See People v Hayes, 421 Mich 271, 282 (1985) (statute does not
deny a defendant his or her right to present a defense).

4. Admissibility of a Defendant’s Statements Made During

Examination

MCL 768.20a(5) states as follows:

“Statements made by the defendant to personnel of the

center for forensic psychiatry, to other qualified personnel,
or to any independent examiner during an examination
shall not be admissible or have probative value in court at
the trial of the case on any issues other than his or her
mental illness or insanity at the time of the alleged
offense.”

Statements made during an examination cannot be used to impeach the

defendant. People v Toma, 462 Mich 281, 293 (2000).

5. Pleas of “Guilty but Mentally Ill” and “Not Guilty by Reason

of Insanity”

With the consent of the court and prosecuting attorney, a defendant may plead
“guilty but mentally ill” or “not guilty by reason of insanity.” MCR 6.301(A)
and (C). The defendant must have asserted an insanity defense and undergone
an examination and otherwise complied with MCL 768.20a. MCR 6.301(C)
and MCL 768.36(2).

MCR 6.303 states:

“Before accepting a plea of guilty but mentally ill, the

court must comply with the requirements of MCR 6.302.
In addition to establishing a factual basis for the plea
pursuant to MCR 6.302(D)(1) or (D)(2)(b), the court must
examine the psychiatric reports prepared and hold a
hearing that establishes support for a finding that the
defendant was mentally ill at the time of the offense to
which the plea is entered. The reports must be made a part
of the record.”

The defendant must prove by a preponderance of the evidence that he or she

was mentally ill at the time of the offense. MCL 768.36(2).

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 Monograph 6—Pretrial Motions (2006–August 2009)

MCR 6.304(A) provides that before accepting a plea of not guilty by reason
of insanity, the court must comply with the requirements of MCR 6.302
except that MCR 6.304(C), rather than MCR 6.302(D), governs the manner of
determining the accuracy of the plea.

MCR 6.304(B) states:

“(B) Additional Advice Required. After complying with

the applicable requirements of MCR 6.302, the court must
advise the defendant, and determine whether the defendant
understands, that the plea will result in the defendant’s
commitment for diagnostic examination at the center for
forensic psychiatry for up to 60 days, and that after the
examination, the probate court may order the defendant to
be committed for an indefinite period of time.”

MCR 6.304(C)(1)-(2) contain the requirements for determining the accuracy

of the plea.

“(C) Factual Basis. Before accepting a plea of not guilty

by reason of insanity, the court must examine the
psychiatric reports prepared and hold a hearing that
establishes support for findings that:

(1) the defendant committed the acts charged, and

(2) that, by a preponderance of the evidence, the

defendant was legally insane at the time of the
offense.”

MCR 6.304(D) states:

“(D) Report of Plea. After accepting a defendant’s plea,

the court must forward to the center for forensic psychiatry
a full report, in the form of a settled record, of the facts
concerning the crime to which the defendant pleaded and
the defendant’s mental state at the time of the crime.”

Michigan Judicial Institute © 2006–August 2009 Page 6–103

Section 6.34

6.34 Motion to Quash Information for Improper Bindover

*For further Moving Party: Defendant*
discussion, see
Criminal
Procedure
Burden of Proof: If the defendant challenges the factual sufficiency of the
Monograph 5, evidence presented at the preliminary examination, the defendant must
Preliminary establish that the examining magistrate abused his or her discretion in binding
Examinations— over the defendant for trial in circuit court. If the defendant challenges the
Third Edition
(MJI, 2006-April bindover on legal grounds, the decision is reviewed for error. People v
2009), Section Thomas, 438 Mich 448, 452 (1991).
5.43, and
Michigan Circuit
Court
Discussion
Benchbook:
Criminal MCR 6.110(E) provides in pertinent part:
Proceedings
(MJI, 2009).
“(E) Probable Cause Finding. If, after considering the
evidence, the court determines that probable cause exists
to believe both that an offense not cognizable by the
district court has been committed and that the defendant
committed it, the court must bind the defendant over for
trial.”

MCL 766.13 provides in pertinent part:

“If it shall appear to the magistrate at the conclusion of the

preliminary examination that a felony has been committed
and there is probable cause for charging the defendant
therewith, the magistrate shall forthwith bind the
defendant to appear before the circuit court . . . for trial.”

The district court has a duty to bind the defendant over to circuit court for trial
if the court finds that a felony has been committed and probable cause that the
defendant committed it. People v Stone, 463 Mich 558, 561 (2001), and
People v Goecke, 457 Mich 442, 469 (1998). Probable cause exists where the
court finds a reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves, to warrant a cautious person to believe that
the defendant is guilty of the charged offense. People v Orzame, 224 Mich
App 551, 558 (1997), and People v Reigle, 223 Mich App 34, 37 (1997). Guilt
beyond a reasonable doubt need not be proved at the preliminary examination.
Id. To justify bindover, there must be some evidence from which each element
of the charged offense may be inferred. If the credible evidence conflicts and
raises a reasonable doubt as to the defendant’s guilt, the issue of guilt or
innocence should be left to the trier of fact. People v King, 412 Mich 145,
153–54 (1981), Goecke, supra at 469-470, and Reigle, supra at 37. In
determining whether to bind the defendant over to circuit court, the examining
magistrate must determine the weight and competency of the evidence and the
credibility of witnesses. People v Paille #2, 383 Mich 621, 627 (1970), People
v Talley, 410 Mich 378, 386 (1981), overruled in part on other grounds 457
Mich 266, 276 (1998), and King, supra at 153. The magistrate must make his

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 Monograph 6—Pretrial Motions (2006–August 2009)

or her determination after examination of the whole matter and may consider
evidence offered in defense. Id. at 153-154. Only legally admissible evidence
may be considered. People v Kubasiak, 98 Mich App 529, 536 (1980).

An abuse of discretion is found if the result is so palpably and grossly

violative of fact and logic that it evidences not the exercise of will but the
perversity of will, not the exercise of judgment but defiance of judgment, not
the exercise of reason but of passion or bias. Talley, supra at 387. If an
unprejudiced person, considering the facts upon which the court acted, would
conclude that there was no justification or excuse for the ruling, the ruling
reflects an abuse of discretion. Orzame, supra at 557, and Reigle, supra at 36-
37.

A defendant may not appeal a trial court’s ruling on his motions to quash
several charges against him after he was convicted of the charges at trial.
People v Wilson, 469 Mich 1018 (2004).

6.35 Motion to Admit Evidence of Victim’s Prior Sexual

Conduct in Criminal Sexual Conduct Cases
Moving Party: Defendant* *For a more
complete
discussion, see
Burden of Proof: If the defendant in a criminal sexual conduct case proposes Sexual Assault
to offer evidence of the victim’s past sexual conduct with the defendant or Benchbook
evidence of specific instances of sexual activity to show the source or origin (MJI, 2002-April
of semen, pregnancy, or disease, the defendant must file a written motion and 2009), Section
7.2.
offer of proof within 10 days after arraignment. MCL 750.520j(2). Violation
of this time requirement may result in preclusion of the proposed evidence.
People v Lucas (On Remand), 193 Mich App 298, 301 (1992) and People v
Lucas (After Remand), 201 Mich App 717, 719 (1993). The court may
conduct an in-camera hearing prior to trial to determine the admissibility of
the proposed evidence. In addition, if new information is discovered during
trial that may make the proposed evidence admissible, the court may conduct
an in-camera hearing during trial. MCL 750.520j(2).

If the defendant proposes to offer evidence of the victim’s past sexual conduct
with third persons, the court must determine whether admission of the
evidence is necessary to preserve the defendant’s constitutional right of
confrontation. The procedure to be followed in determining admissibility of
this evidence was set forth in People v Hackett, 421 Mich 338, 350-351
(1984):

“The defendant is obligated initially to make an offer of

proof as to the proposed evidence and to demonstrate its
relevance to the purpose for which it is sought to be
admitted. Unless there is a sufficient showing of relevancy
in the defendant’s offer of proof, the trial court will deny
the motion. If there is a sufficient offer of proof as to a

Michigan Judicial Institute © 2006–August 2009 Page 6–105

Section 6.35

defendant’s constitutional right to confrontation, as

distinct simply from use of sexual conduct as evidence of
character or for impeachment, the trial court shall order an
in camera evidentiary hearing to determine the
admissibility of such evidence in light of the constitutional
inquiry previously stated. At this hearing, the trial court
has, as always, the responsibility to restrict the scope of
cross-examination to prevent questions which would
harass, annoy, or humiliate sexual assault victims and to
guard against mere fishing expeditions. . . . We again
emphasize that in ruling on the admissibility of the
proffered evidence, the trial court should rule against the
admission of evidence of a complainant’s prior sexual
conduct with third persons unless that ruling would unduly
infringe on the defendant’s constitutional right to
confrontation.” [Citations omitted.]

Discussion

Michigan Rule of Evidence 404(a)(3) severely limits the admission of

evidence concerning the reputation or past sexual conduct of an alleged
criminal sexual conduct victim. This rule limits admission to “evidence of the
alleged victim’s past sexual conduct with the defendant and evidence of
specific instances of sexual activity showing the source or origin of semen,
pregnancy, or disease” in a criminal sexual conduct case. The “rape shield
statute,” MCL 750.520j, adds that such evidence is admissible “only to the
extent that the . . . proposed evidence is material to a fact at issue in the case
and that its inflammatory or prejudicial nature does not outweigh its probative
value.” MCL 750.520j(1).

Note: The “rape shield statute” requires exclusion of the proffered

evidence when its probative value is outweighed by its prejudicial
effect. On the other hand, MRE 403 requires exclusion of relevant
evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” It is unclear which
standard applies. Compare People v Adair, 452 Mich 473, 481
(1996) (the “rape shield statute” modifies the standard in MRE 403
in criminal sexual conduct cases), and Hackett, supra at 361-362
(Kavanagh, J, concurring) (MRE 404(a)(3) supersedes MCL
750.520j(1), and MRE 403 must be applied.) For a general
discussion of the relationship between the “rape shield statute” and
MRE 404(a)(3), see McDougall v Schanz, 461 Mich 15, 44-46
(1999) (Cavanagh, J, dissenting).

However, if the proffered evidence is relevant, cross-examination of the

victim regarding past sexual history may be required to preserve the
defendant’s right to confrontation. In Hackett, supra at 348, the Michigan

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 Monograph 6—Pretrial Motions (2006–August 2009)

Supreme Court provided examples of circumstances in addition to those

contained in MRE 404(a)(3) in which evidence of the victim’s reputation or
past sexual conduct may be admissible:

“We recognize that in certain limited situations, such

evidence may not only be relevant, but its admission may
be required to preserve a defendant’s constitutional right to
confrontation. For example, where the defendant proffers
evidence of a complainant’s prior sexual conduct for the
narrow purpose of showing the complaining witness’[s]
bias, this would almost always be material and should be
admitted. . . . Moreover in certain circumstances, evidence
of a complainant’s sexual conduct may also be probative of
a complainant’s ulterior motive for making a false charge.
. . . Additionally, the defendant should be permitted to
show that the complainant has made false accusations of
rape in the past.” [Citations omitted.]

1. Cases Deciding What Constitutes “Sexual Conduct” With

Persons Other Than the Defendant

A victim’s statements to third persons may be “sexual conduct” if they

amount to or reference specific actions. People v Ivers, 459 Mich 320, 329
(1998). The defendant’s viewing of public sexual conduct between the victim
and others is not sexual conduct between the victim and defendant. People v
Wilhelm (On Rehearing), 190 Mich App 574, 584-585 (1991).

2. The Admissibility of Sexual Conduct With the Defendant

That Occurred After the Charged Conduct

Consensual conduct between the defendant and the complainant that occurred
after the alleged criminal conduct may be admissible at trial. Adair, supra at
483. In balancing the probative value and prejudicial nature of the evidence,
the trial court should consider the time that elapsed between the charged and
the subsequent conduct, whether a personal relationship existed between the
defendant and the complainant, and “other human emotions intertwined with
the relationship” that may have led to the subsequent conduct. Id. at 486-487.
Compare People v Stull, 127 Mich App 14, 16-18 (1983) (evidence that the
complainant had sexual intercourse with a third party seven hours after the
alleged assault was inadmissible).

3. The Admissibility of Evidence Explaining the Victim’s

Physical Condition

If the prosecutor introduces evidence that the victim does not have an intact
hymen to prove that the alleged penetration occurred, the defendant may be
allowed to present evidence of the victim’s prior sexual activity to show an
alternative explanation for the victim’s physical condition. People v Mikula,
84 Mich App 108, 113-115 (1978) (construing MCL 750.520j(1)(b), which
allows admission of evidence of sexual activity showing “the source or origin
Michigan Judicial Institute © 2006–August 2009 Page 6–107
Section 6.35

of semen, pregnancy, or disease”), and People v Haley, 153 Mich App 400,
405 (1986). See also People v Garvie, 148 Mich App 444, 449 (1986) (the rule
established in Mikula may be extended to the prior sexual abuse of a child
explaining a change in the child’s disposition).

Evidence of the victim’s virginity is inadmissible under MRE 404(a)(3) to

demonstrate that, because of her or his sexual inexperience, the victim was
less likely to have consented to the alleged criminal sexual conduct. People v
Bone, 230 Mich App 699, 702 (1998).

4. Cases Addressing the Defendant’s Rights to Confrontation

and to Present a Defense

In cases involving child victims of criminal sexual conduct, evidence of prior

sexual conduct with a third person may be admissible to show the child’s age-
inappropriate sexual knowledge or motive to make false charges. People v
Morse, 231 Mich App 424, 436 (1998). To obtain an in camera hearing, the
defendant must make an offer of proof of the relevance of the proffered
evidence. Id. at 437, citing People v Byrne, 199 Mich App 674, 678 (1993).
At an in camera hearing, the court must determine whether “(1) defendant’s
proffered evidence is relevant, (2) defendant can show that another person
was convicted of criminal sexual conduct involving the complainants, and (3)
the facts underlying the previous conviction are significantly similar to be
relevant to the instant proceeding.” Morse, supra at 437. In addition, if the
evidence is deemed admissible, the trial court may consider alternate means
of admitting the evidence, such as eliciting testimony from another witness,
introducing documents from the previous conviction, or by stipulation. Id. at
438. See also Haley, supra at 403 (where defendant was allowed to show the
jury pornographic movies viewed by the child complainant and depicting the
charged acts, defendant’s right to present a defense was preserved).

Evidence of prior false accusations of improper sexual conduct made by the

victim may be admissible. People v Makela, 147 Mich App 674, 685 (1985),
and People v Williams, 191 Mich App 269, 271-274 (1991) (defendant failed
to offer sufficient evidence of prior false accusation to obtain an evidentiary
hearing).

*People v In reversing the Court of Appeals and remanding the case to the trial court for
Jackson, retrial,* the Michigan Supreme Court stated:
unpublished
opinion per
curiam of the “[T]he defendant must be afforded the opportunity to introduce
Court of testimony that the complainant has previously been induced by his
Appeals, issued father to make false allegations of sexual abuse against other
October 21,
2003 (Docket persons disliked by the father. MRE 404(b). Such testimony
No. 242050). concerning prior false allegations does not implicate the rape
shield statute. MCL 750.520j.” People v Jackson, 477 Mich 1019
(2007).

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 Monograph 6—Pretrial Motions (2006–August 2009)

Where defendant alleges that the victim is a prostitute, consented to the

alleged conduct in exchange for money, and alleged a sexual assault when
defendant refused to pay, evidence of the victim’s reputation or past sexual
conduct may be admissible. People v Slovinski, 166 Mich App 158, 178-180
(1988) (evidence of the victim’s status as a prostitute was probative of the
issue of consent, its probative value outweighed the danger of unfair
prejudice, and exclusion of the evidence would violate the defendant’s
procedural due process rights by precluding the defendant’s only defense),
and People v Powell, 201 Mich App 516, 520 (1993) (victim’s alleged
employment as a topless dancer and alleged association with known
prostitutes were not probative of the issue of whether she was a prostitute).

6.36 Motion to Suppress Evidence Seized Pursuant to a

Defective Search Warrant

Moving Party: Defendant

Burden of Proof: Where the defendant seeks to suppress evidence seized *Required
pursuant to a search warrant,* the defendant has the burden of proving the procedures and
standards for
illegality of the search or seizure. See People v Ward, 107 Mich App 38, 52 issuing search
(1981), citing Franks v Delaware, 438 US 154, 171 (1978), and People v warrants are
Williams, 134 Mich App 639, 643 (1984) (defendant must show by a discussed in
preponderance of the evidence that affiant knowingly and intentionally or Criminal
Procedure
with reckless disregard for the truth inserted false material in the affidavit Monograph 2,
supporting the search warrant to have such information excluded from the Issuance of
affidavit). The defendant also has the burden of establishing his or her Search
Warrants—
standing to challenge the search. People v Zahn, 234 Mich App 438, 446 Third Edition
(1999), and People v Lombardo, 216 Mich App 500, 505 (1996). (MJI, 2006-April
2009).
Discussion

The Fourth Amendment to the United States Constitution states:

“The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”

Michigan’s constitutional provision, Const 1963, art 1, §11, is substantially

similar to the federal provision, except for the provision prohibiting
suppression of guns, narcotics, and explosives following a violation of the
state constitution. Absent compelling reasons, the Michigan constitution
affords the same protection against unreasonable searches and seizures as
does the federal constitution. People v Nash, 418 Mich 196, 214 (1983).

Michigan Judicial Institute © 2006–August 2009 Page 6–109

Section 6.36

To establish his or her standing to challenge a search or seizure, a defendant

must show that he or she had an expectation of privacy in the objects or
premises searched, and that the expectation of privacy is one that society
recognizes as reasonable. People v Smith, 420 Mich 1, 28 (1984). The trial
court must examine the totality of the circumstances surrounding the search
or seizure when making this determination. Id. Compare Minnesota v Olson,
495 US 91, 93-94, 100 (1990) (overnight guest had standing to challenge
nonconsensual warrantless search of residence), and People v Parker, 230
Mich App 337, 339-341 (1998) (visitor to apartment searched pursuant to
warrant did not have standing to challenge search and seizure). For discussion
of the factors to consider in cases involving searches of business offices, see
People v Powell, 235 Mich App 557 (1999).

*Franks v “Determining that a defendant has Fourth Amendment standing is a

Delaware, 438 prerequisite to granting a motion for a Franks* hearing.” United States v
US 154 (1978).
Mastromatteo, 538 F3d 535, 544 (CA 6, 2008). Standing is determined by
examining whether the defendant is able to establish a legitimate expectation
of privacy in the area to be searched or the items to be seized. Id. “A
defendant’s standing is determined independently from his co-defendant’s
standing with regard to the same items and places that are searched.” Id. In
Mastromatteo, the defendant lacked standing to challenge the search at issue
because, unlike his codefendant, he was unable to demonstrate that he had a
legitimate expectation of privacy in the place that was searched. Id.

Where the defendant challenges the truthfulness of factual statements made in

the affidavit supporting a search warrant, the defendant must make “a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit . . . .” Franks, supra at 155-156. If probable
cause to support the search warrant does not exist without the allegedly false
statement, the court must conduct a hearing upon the defendant’s request; no
hearing is required if, without the allegedly false statement, the warrant
affidavit supports a finding of probable cause. Id. at 156, 171-172. The Court
in Franks set forth in detail the procedure to be followed to determine whether
the defendant is entitled to an evidentiary hearing:

“To mandate an evidentiary hearing, the challenger’s

attack must be more than conclusory and must be
supported by more than a mere desire to cross-examine.
There must be allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations must
be accompanied by an offer of proof. They should point
out specifically the portion of the warrant affidavit that is
claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
Allegations of negligence or innocent mistake are
insufficient.” Id. at 171.

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 Monograph 6—Pretrial Motions (2006–August 2009)

Franks dealt only with the impeachment of the affiant’s statements, not of
nongovernmental informants’ statements. Where the defendant alleges that an
informant who supplied the police with information which led to the issuance
of the search warrant does not exist, the court is required to hold an
evidentiary hearing utilizing the procedure set forth in Franks. People v
Poindexter, 90 Mich App 599, 605, 609-610 (1979). However, because of the
difficulty of proving the nonexistence of an informant, the trial court has wide
discretion to conduct an evidentiary hearing where the defendant raises a
legitimate question regarding the informant’s existence. Id. at 609 n 4.
Following an evidentiary hearing, if the judge determines that there is some
doubt as to the affiant’s credibility, the judge has discretion to require the state
to produce the informant at a closed hearing. Id. at 610, and People v Thomas,
174 Mich App 411, 417-418 (1989) (notwithstanding the parties’ stipulation
to the contents of the proposed witnesses’ testimony, where the credibility of
the affiant concerning an informant’s existence is the determining factor, a
trial court abuses its discretion by resolving the issue of the credibility of the
affiant and supporting witnesses solely on the basis of the court’s prior
experience with the affiant, especially where the court did not observe the
witnesses testifying).

On the other hand, no evidentiary hearing is required where the defendant

alleges that the affidavit in support of the search warrant does not establish
probable cause for the issuance of the warrant, as probable cause must appear
from the contents of the affidavit. MCL 780.653 and People v Sundling, 153
Mich App 277, 286 (1986).

Stale information cannot be used in making a probable cause determination.

United States v Frechette, 583 F3d 374, 377 (CA 6, 2009). In determining
whether information is stale, the court should consider the following factors:
(1) the character of the crime (is it a chance encounter or recurring conduct?);
(2) the criminal (is he or she “nomadic or entrenched?”); (3) the thing to be
seized (is it “perishable and easily transferrable or of enduring utility to its
holder?”); and (4) the placed to be searched (is it a “mere criminal forum of
convenience or [a] secure operational base?”). Frechette, supra at 378. In
Frechette, supra at 378-379, the court applied the above-listed factors to
conclude that 16-month-old evidence that the defendant subscribed to a child
pornography website was not stale, because the crime of child pornography is
not fleeting; the defendant lived in the same house for the time period at issue;
child pornography images can have an infinite life span; and the place to be
searched was the defendant’s home.

Where portions of a search warrant are invalid because too general or

unsupported by probable cause, a reviewing court may sever the invalid
portions and determine whether the remaining facts establish probable cause
for a search of the place or persons named. People v Kolniak, 175 Mich App
16, 22 (1989). Similarly, if an affidavit is based partially on unlawfully
obtained information and partially on information obtained from an
independent source, a reviewing court may sever the unlawfully obtained
information and determine whether the information obtained from an

Michigan Judicial Institute © 2006–August 2009 Page 6–111

Section 6.36

independent source establishes probable cause. People v Melotik, 221 Mich

App 190, 200-202 (1997).

See People v Mullen, 282 Mich App 14, 26-28 (2008), where the Michigan
Court of Appeals found that despite a police officer’s intentional or reckless
omission of material information from the affidavit and his intentional or
reckless inclusion of false information in the affidavit, probable cause still
existed to issue a search warrant. In Mullen, supra at 16-19, the defendant was
stopped and arrested for operating a motor vehicle while intoxicated. The
arresting police officer filed an affidavit seeking a search warrant to test the
defendant’s blood alcohol content. Id. at 19. The trial court determined that
the officer both included false information in and omitted material
information from the affidavit. Id. at 23, 26. For example, although the officer
failed to properly conduct a few of the field sobriety tests, the officer indicated
that the defendant performed poorly on the tests. Id. at 25-26. In addition, the
officer failed to indicate that the defendant had a piece of paper in his mouth
a few minutes before taking a preliminary breath test (PBT). Id. at 23-24. The
Michigan Court of Appeals agreed with the trial court’s factual
determinations, but disagreed with its decision to suppress the evidence
because

“the evidence presented . . . did not establish that the 0.15 PBT test
result was significantly unreliable so as to preclude the reasonable
belief by a police officer or a magistrate that defendant’s blood
might contain evidence of intoxication. Given the absence of any
basis to significantly call into question the 0.15 PBT result, and
given the other circumstantial evidence that defendant was
intoxicated, we find that the circuit court erred by determining that
a reasonable magistrate would not have found probable cause to
issue a search warrant.” Id. at 28.

“[A] search warrant and the underlying affidavit are to be read in a common-
sense and realistic manner. Affording deference to the magistrate’s decision
simply requires that reviewing courts ensure that there is a substantial basis
for the magistrate’s conclusion that there is a ‘fair probability that contraband
or evidence of a crime will be found in a particular place.’” People v Russo,
439 Mich 584, 604 (1992), quoting Illinois v Gates, 462 US 213, 238 (1983).

The affidavit or warrant request must state a nexus between the place to be
searched and the evidence sought, and the belief that the items sought will be
found at the search location must be supported by more than mere suspicion.
United States v Williams, 544 F3d 683, 686 (CA 6, 2008). “A magistrate may
infer a nexus between a suspect and his [or her] residence, depending upon
‘the type of crime being investigated, the nature of [the] things to be seized,
the extent of an opportunity to conceal the evidence elsewhere and the normal
inferences that may be drawn as to likely hiding places.’” Id. at 687, quoting
United States v Savoca, 761 F2d 292, 298 (CA 6, 1985).

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 Monograph 6—Pretrial Motions (2006–August 2009)

“[A]n issuing judge may infer that drug traffickers use their homes to store
drugs and otherwise further their drug trafficking.” Williams, supra at 687.

In People v Hawkins, 468 Mich 488, 500 (2003), the defendant moved to
suppress evidence obtained pursuant to a search warrant based on an affidavit
that failed to satisfy the statutory requirements of MCL 780.653(b) for an
affiant’s reliance on unnamed sources. In deciding that the exclusionary rule
did not apply to the evidence obtained in Hawkins, the Court overruled in part
its previous ruling in People v Sloan, 450 Mich 160 (1995), the case on which
the Court of Appeals relied in its disposition of the case. In Sloan, the “Court
held that evidence obtained under a search warrant issued in violation of §653
must be suppressed,” and the Court of Appeals affirmed the trial court’s order
suppressing the proceeds of the search warrant. Hawkins, supra at 493. The
Hawkins Court disagreed with the earlier Sloan analysis and held:

“[W]here there is no determination that a statutory

violation constitutes an error of constitutional dimensions,
application of the exclusionary rule is inappropriate unless
the plain language of the statute indicates a legislative
intent that the rule be applied.” Hawkins, supra at 507.

The Court predicted that some statutory violations would be of constitutional

magnitude, and the exclusionary rule would likely be appropriate to suppress
any evidence obtained from warrants issued on inadequate affidavits.
However, the Court concluded that

“[n]othing in the plain language of §653 provides us with

a sound basis for concluding that the Legislature intended
that noncompliance with its affidavit requirements,
standing alone, justifies application of the exclusionary
rule to evidence obtained by police in reliance of a search
warrant.” Hawkins, supra at 510.

It is unnecessary to determine for purposes of MCL 780.653 whether an *Reversing

anonymous informant had personal knowledge of the information contained People v Keller,
270 Mich App
in the affidavit on which a search warrant is based when the affidavit contains 446 (2006).
additional information sufficient in itself to support a finding of probable
cause. People v Keller, 479 Mich 467, 477 (2007).* In Keller, the information
contained in the affidavit supported the magistrate’s conclusion that it was
fairly probable that contraband would be found in the defendants’ home
because the affidavit was based in part on the small amount of marijuana
discovered in the defendants’ trash. Id. Although the evidence discovered in
the defendants’ trash did not support the anonymous informant’s allegation
that the defendants were engaged in drug trafficking, the evidence from the
defendants’ trash adequately established the probable cause necessary to
justify a search of the defendants’ home for additional contraband. Id. at 483.
In other words, even though the anonymous tip prompted the initial
investigation into the defendants’ possible illegal activity, the marijuana alone
supports the probable cause necessary to issue a search warrant and “the

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Section 6.36

statutory requirement that an anonymous tip bear indicia of reliability does

not come into play.” Id.

The Michigan Supreme Court adopted the “good-faith” exception to the

exclusionary rule in People v Goldston, 470 Mich 523, 526 (2004). The
“good-faith” exception was first announced by the United States Supreme
Court in United States v Leon, 468 US 897 (1984), as a remedy for automatic
exclusion of evidence obtained from a law enforcement officer’s reasonable,
good-faith reliance on a search warrant later found to be defective. According
to the Goldston Court:

“The purpose of the exclusionary rule is to deter police

misconduct. That purpose would not be furthered by
excluding evidence that the police recovered in objective,
good-faith reliance on a search warrant.” Goldston, supra
at 526.

As adopted by the Michigan Supreme Court in Goldston, “[t]he ‘good faith’

exception [to the exclusionary rule] renders evidence seized pursuant to an
invalid search warrant admissible as substantive evidence in criminal
proceedings where the police acted in reasonable reliance on a presumptively
valid search warrant that was later declared invalid [internal citation
omitted].” People v Hellstrom, 264 Mich App 187, 193 (2004). Without
deciding whether the search warrant in Hellstrom was valid, the Court of
Appeals applied the good-faith exception to evidence seized by police officers
pursuant to a warrant based on a magistrate’s probable cause determination.
Id. at 199-201.

An affidavit in support of a search warrant that “references facts supporting a

finding that a place over which defendant has control would contain evidence
of a crime” but that fails to connect the defendant to the place to be searched
does not allow a reasonably cautious person to conclude that evidence of a
crime is in the stated place. People v Osantowski, 274 Mich App 593, 615, 617
(2007), rev’d in part on other grounds 481 Mich 103 (2008). However, the
omission of that information does not necessarily require the exclusion of
evidence obtained as the result of a search executed on the basis of the invalid
warrant. Id. at 618.

In Osantowski, the defendant, whose last name was the same as his father’s,
resided in a house belonging to his father. Id. at 617. The affidavit in support
of the warrant clearly identified the location and residence to be searched and
noted that the vehicle parked in the driveway was registered to the defendant’s
father. Id. at 616-617. Nowhere in the affidavit was there information
indicating that the defendant lived at the residence or had any other
connection with the residence described in the affidavit. Id. at 617. Because
the officers involved were aware that the defendant and his father lived at the
residence (during the morning on which the search took place, both the
defendant and his father were arraigned on unrelated charges), the Court
concluded that

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“the affidavit’s failure in this instance [was] merely a good-faith

oversight and not the product of police misconduct. Accordingly,
the stated purpose of the exclusionary rule, to deter police
misconduct, would not be served by applying the rule on the basis
of the affidavit’s identified deficiency.” Id. at 618.

Even where a search warrant is based in part on tainted evidence obtained as

a result of an officer’s Fourth Amendment violation—“fruit of the poisonous
tree”—the good-faith exception to the exclusionary rule may apply to
evidence seized pursuant to the warrant if “‘an objectively reasonable officer
could have believed the seizure valid.’” United States v McClain, 430 F3d
299, 308 (CA 6, 2005), quoting United States v White, 890 F2d 1413, 1419
(CA 8, 1989).

In McClain, after a nearby resident reported that lights were on at an

unoccupied house in the neighborhood, police officers searched the residence
without a warrant and without having probable cause to conduct a search of
the residence. McClain, supra at 302-303. Officers entered the residence
through a door that was “slightly ajar” even though the officers “observed no
movement in or around the home, no signs of forced entry or vandalism, and
no suspicious noises or odors emanating from the house.” Id. at 305-306.
During their warrantless search of the home, the officers discovered evidence
that the basement was being readied to house “a marijuana-grow operation.”
Id. at 303. Because no exception to the warrant requirement justified the
warrantless search, the defendant argued that any evidence seized during the
“execution of search warrants issued on the basis of evidence obtained as a
result of that initial warrantless search” should be suppressed. Id. at 301.

The district court agreed with the defendant and suppressed the evidence. Id.
at 301-302. The Sixth Circuit Court of Appeals concluded that the good-faith
exception to the exclusionary rule applied to the evidence seized as a result of
the “tainted” search warrant and reversed the district court’s decision. Id. at
302, 307. According to the Sixth Circuit:

“The facts surrounding these officers’ warrantless entry into the

house at 123 Imperial Point were not sufficient to establish
probable cause to believe a burglary was in progress, but we do not
believe that the officers were objectively unreasonable in
suspecting that criminal activity was occurring inside [the
defendant’s] home, and we find no evidence that the officers knew
they were violating the Fourth Amendment by performing a
protective sweep of the home. More importantly, the officers who
sought and executed the search warrants were not the same
officers who performed the initial warrantless search, and [the
officer’s] warrant affidavit fully disclosed to a neutral and
detached magistrate the circumstances surrounding the initial
warrantless search. . . . . Because the officers who sought and
executed the search warrants acted with good faith, and because
the facts surrounding the initial warrantless search were close

Michigan Judicial Institute © 2006–August 2009 Page 6–115

Section 6.37

enough to the line of validity to make the executing officers’ belief

in the validity of the search warrants objectively reasonable, we
conclude that despite the initial Fourth Amendment violation, the
[good faith] exception bars application of the exclusionary rule in
this case.” Id. at 308-309.

The good-faith exception to the exclusionary rule does not apply to evidence
obtained pursuant to a search warrant based on an affiant’s admitted and
purposeful false statements. People v McGhee, 268 Mich App 600, 619-620
(2005).

In McGhee, the defendant argued that evidence obtained in 1992 through the
execution of an illegal search warrant should not be admissible against him in
a 1998 criminal proceeding. Id. at 614-615. Citing Elkins v United States, 364
US 206 (1960), and United States v Janis, 428 US 433 (1976), the McGee
Court agreed:

“Although much of the quoted text is dicta with respect to

the instant issue, it indicates that evidence obtained by a
law enforcement officer with respect to any criminal
proceeding falls within the officer’s zone of primary
interest. It also appears to suggest that the 1992 evidence
should have been excluded. . . . Here, because the
evidentiary hearing with respect to the 1992 search
indicated that the officer who swore to the affidavit for the
warrant provided false statements, the violation was
substantial and deliberate, and [the evidence] should have
been suppressed.” McGhee, supra at 619-620 (footnote
and citations omitted).

6.37 Motion to Suppress Evidence Seized Without a

Search Warrant
*For a more Moving Party: Defendant*
complete
discussion, see
Michigan Circuit
Burden of Proof: Where the defendant seeks to suppress evidence seized
Court pursuant to a warrantless search and seizure, the burden of proof is on the
Benchbook: prosecution to show that the search and seizure were reasonable and fell under
Criminal a recognized exception to the warrant requirement. People v White, 392 Mich
Proceedings
(MJI, 2009). 404, 410 (1974). Because warrantless searches are per se unreasonable and
violate US Const, Am IV, and Const 1963, art 1, §11, the burden is on the
party who seeks exemption from the constitutional mandate to show that the
exigencies of the situation made the warrant requirement unreasonable.
People v Reed, 393 Mich 342, 362 (1975), and People v Mason, 22 Mich App
595, 617-618 (1970). See also White, supra at 420-421:

“The judicial preference for searches conducted under the

authority of a search warrant should be expressed not only

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 Monograph 6—Pretrial Motions (2006–August 2009)

in terms of the narrowly drawn exceptions to the warrant

requirement but also in terms of a more stringent standard
of review applied to all aspects of warrantless searches.
The courts thereby encourage police officers to seek a
warrant before acting.”

Where the prosecution relies on consent* to justify a warrantless search and *For further
seizure, it has the burden to prove that the consent was unequivocal and discussion of
consent, see
specific, and freely and intelligently given. People v Kaigler, 368 Mich 281, Criminal
294 (1962). See also People v Dinsmore, 103 Mich App 660, 672 (1981) Procedure
(prosecutor has the burden of establishing the voluntariness of the consent by Monograph 2,
“direct and positive evidence”), and United States v Matlock, 415 US 164, 177 Issuance of
Search
(1974) (prosecutor must show the voluntariness of consent by a Warrants—
preponderance of the evidence). Because a consent to search involves the Third Edition
waiver of a constitutional right, the prosecutor cannot discharge this burden (MJI, 2006-April
2009), Section
by showing a mere acquiescence to a claim of lawful authority. Bumper v 2.14(F).
North Carolina, 391 US 543, 548-549 (1968). Where the defendant is under
arrest at the time of the alleged consent, the prosecutor’s burden is
“particularly heavy.” Kaigler, supra at 294.

The defendant has the burden of establishing his or her standing to challenge
the search or seizure. People v Zahn, 234 Mich App 438, 446 (1999), and
People v Lombardo, 216 Mich App 500, 505 (1996).

Discussion

The Fourth Amendment to the United States Constitution states:

“The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”

Michigan’s constitutional provision, Const 1963, art 1, §11, is substantially

similar to the federal provision, except for the provision prohibiting
suppression of guns, narcotics, and explosives following a violation of the
state constitution. Absent compelling reasons, the Michigan constitution
affords the same protection against unreasonable searches and seizures as
does the federal constitution. People v Nash, 418 Mich 196, 214 (1983).

To establish his or her standing to challenge a search or seizure, a defendant

must show that he or she had an expectation of privacy in the objects or
premises searched, and that the expectation of privacy is one that society
recognizes as reasonable. People v Smith, 420 Mich 1, 28 (1984), People v
Custer (On Remand), 248 Mich App 552, 561-562 (2002) (police officer’s
looking through front window of house with flashlight did not violate
defendant’s reasonable expectation of privacy), and People v Tierney, 266

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Section 6.37

Mich App 687, 694-704 (2005) (defendant did not have reasonable
expectation of privacy in the enclosed porch of his parents’ home). The trial
court must examine the totality of the circumstances surrounding the search
or seizure when making this determination. Id. Compare Minnesota v Olson,
495 US 91, 93-94, 100 (1990) (overnight guest had standing to challenge
nonconsensual warrantless search or residence), and People v Parker, 230
Mich App 337, 339-341 (1998) (visitor to apartment searched pursuant to
warrant did not have standing to challenge search and seizure). For discussion
of the factors to consider in cases involving searches of business offices, see
People v Powell, 235 Mich App 557 (1999).

For a discussion of factors that are relevant to a determination of standing, see

People v Brown, 279 Mich App 116, 130-131 (2008) (the defendant did not
have standing to challenge the warrantless search of a computer he did not
own, but to which he was allowed access, because he exercised no control
over others’ access to the computer and he did not own the residence in which
the computer was located).

Under Michigan law, a trespasser has no legitimate expectation of privacy in

a dwelling house even when the trespasser lawfully occupied the premises at
an earlier date. United States v Hunyady, 409 F3d 297, 302-303 (CA 6, 2005).

There is no legitimate expectation of privacy in contraband. People v Jones,

279 Mich App 86, 91-92 (2008). Accordingly, a canine sniff, which only
detects contraband, is not a search within the meaning of the Fourth
Amendment “as long as the sniffing canine is legally present at its vantage
when its sense is aroused.” Id. at 93. In Jones, supra at 94-95, a canine sniff
from outside the defendant’s house that alerted police to the presence of a
controlled substance inside the house did not violate the defendant’s Fourth
Amendment rights because the sniff was conducted from a lawful position on
the defendant’s porch.

*Michigan law A suspicionless search or seizure conducted solely on the basis of an

authorizes a individual’s status as a probationer or parolee does not violate the Fourth
police officer to
arrest without a
Amendment’s protection against unreasonable searches and seizures. Samson
warrant any v California, 547 US 843, 849-850, 857 (2006). The Samson case involved a
probationer or California statute* authorizing law enforcement officers to search a parolee—
parolee if the without a warrant and without suspicion of criminal conduct—solely on the
officer has
reasonable basis of the person’s status as a parolee. Id. at 846-847.
cause to believe
the person has The question to be decided by the Samson Court was “whether a condition of
violated a
condition of
[a parolee’s] release can so diminish or eliminate a released prisoner’s
probation or reasonable expectation of privacy that a suspicionless search by a law
parole. MCL enforcement officer would not offend the Fourth Amendment.” Id. at 847. The
764.15(1)(h). Court concluded that under the totality of the circumstances and in light of the
legitimate government interests furthered by monitoring parolee activity, the
suspicionless search of a parolee does not impermissibly intrude on the
parolee’s already diminished expectation of privacy. Id. at 850-857.

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 Monograph 6—Pretrial Motions (2006–August 2009)

A parolee living in a community residential home* while “physically *“‘Community

connected . . . to a device that monitored his every movement and made him residential
home’ means a
obtain approval before leaving the walls of [the] home,” is treated as a location where
prisoner, not as a parolee. United States v Smith, 526 F3d 306, 309 (CA 6, electronic
2008). Accordingly, the police have as much freedom to enter and search that monitoring of
parolee’s community residential home as they do to enter and search a prisoner
presence is
defendant’s prison cell; just as with an incarcerated offender, a community- provided by the
resident prisoner has no legitimate expectation of privacy and is subject to [D]epartment [of
unannounced searches, with or without suspicion. Id. Corrections] 7
days per week,
24 hours per
See also United States v Conley, 453 F3d 674, 677-678, 681 (CA 6, 2006), day . . . .” MCL
where the Court of Appeals for the Sixth Circuit ruled that ordering a 791.265a(9)(b).
probationer—even a probationer convicted of a “white collar” crime—to
submit a DNA sample did not require individualized suspicion and did not
violate the prohibition against unreasonable searches. According to the Court:

“In view of [the defendant]’s sharply reduced expectation of

privacy, and the minimal intrusion required in taking a blood
sample for DNA analysis for identification purposes only, the
government’s interest in the proper identification of convicted
felons outweighs [the defendant’s] privacy interest. Under a
totality of the circumstances analysis, the search is reasonable, and
does not violate the Fourth Amendment.” Id. at 680-681.

The court must conduct an evidentiary hearing if the defendant challenges the
legality of a warrantless search and seizure and factual issues are in dispute.
People v Wiejecha, 14 Mich App 486, 488 (1968), citing Jackson v Denno,
378 US 368 (1964), People v Reynolds, 93 Mich App 516, 519 (1979), and
People v Johnson, 202 Mich App 281, 285-287 (1993). See also People v
Ramos, 17 Mich App 515, 519 (1969) (trial judge’s refusal to hear testimony
in support of a motion to suppress evidence in a bench trial was not error,
where the judge concluded that no favorable testimony would have been
forthcoming). If the defendant testifies at the hearing, taking the stand is not
a general waiver of the right not to testify at trial. Wiejecha, supra at 489;
MRE 104(d).

Defense counsel may agree to have the motion to suppress evidence decided
on the basis of a preliminary examination transcript. People v Kaufman, 457
Mich 266, 276 (1998), overruling in part People v Talley, 410 Mich 378, 390
(1981). See also MCR 6.110(D) (a party may move to suppress evidence in
the trial court on the basis of a prior evidentiary hearing). In addition, the trial
court may decide the motion based on a stipulation of facts sufficiently
complete to determine the constitutional issue in question, including facts
appearing in the preliminary examination transcript. People v Futrell, 125
Mich App 568, 571 (1983).

“[S]earches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.”

Michigan Judicial Institute © 2006–August 2009 Page 6–119

Section 6.37

Katz v United States, 389 US 347, 357 (1967). The following discussion
includes only the major cases dealing with three commonly used exceptions
to the warrant requirement.

In the context of automobile searches, a computer may be considered a

container of the data stored in the computer’s memory. People v Dagwan, 269
Mich App 338, 345 (2005).

1. Searches of Automobiles for Evidence

Because of their mobility, warrantless searches of automobiles based on

probable cause may be justified by fewer foundational facts than required to
justify the search of a residence or office. Chambers v Maroney, 399 US 42,
50 (1970), Texas v White, 423 US 67 (1975), and People v Garvin, 235 Mich
App 90, 102 (1999) (lessened expectation of privacy in automobiles also
justifies warrantless searches based on probable cause). Where the police
have probable cause to search an automobile, they may conduct a warrantless
search of the automobile immediately or later at the “station house.”
Chambers, supra at 51-52.

Where police officers have probable cause to search an automobile, they may
conduct a warrantless search of every part of the vehicle that may conceal the
object of the search, including separate containers. United States v Ross, 456
US 798, 824-825 (1982), and People v Sinistaj, 184 Mich App 191, 199-200
(1990). See also Wyoming v Houghton, 526 US 295, 307 (1999) (officers may
search a passenger’s belongings if they have probable cause to search the
entire automobile). Where they have probable cause to believe a container
within an automobile contains evidence or contraband, officers may search
the container without a warrant even though they do not have probable cause
to search the entire vehicle. California v Acevedo, 500 US 565, 579-580
(1991).

Probable cause to search an automobile may be premised on an officer’s

recognition of the smell of burned or unburned marijuana. People v
Kazmierczak, 461 Mich 411, 420-424 (2000).

Brief investigative stops short of arrest are permitted where police have a
reasonable suspicion of ongoing criminal activity. The criteria for a
constitutionally valid investigative stop are that the police have “a
particularized suspicion, based on an objective observation, that the person
stopped has been, is, or is about to be engaged in criminal wrongdoing.”
People v Peebles, 216 Mich App 661, 665 (1996), citing People v Shabaz, 424
Mich 42, 59 (1985). “Reasonable suspicion entails something more than an
inchoate or unparticularized suspicion or ‘hunch,’ but less than the level of
suspicion required for probable cause.” People v Champion, 452 Mich 92, 98
(1996). A totality of the circumstances test is used in cases involving
investigative stops. United States v Arvisu, 534 US 266, 273-276 (2002),
People v Christie (On Remand), 206 Mich App 304, 308 (1994), citing Terry
v Ohio, 392 US 1 (1968), and People v Faucett, 442 Mich 153, 168 (1993).

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 Monograph 6—Pretrial Motions (2006–August 2009)

Reasonable suspicion that a person has engaged or is engaging in criminal

activity may properly be based on a tip from an anonymous caller, where there
is sufficient police knowledge of the identity of the caller to render the call
reliable. United States v Long, 464 F3d 569, 573-574 (CA 6, 2006).

In Long, the police stopped defendant as he approached the freeway in his

truck, after receiving a tip from an anonymous caller advising that a burglary
was in process and describing a vehicle similar to defendant’s and containing
items similar to those observed in the back of defendant’s truck. Id. at 570-
571. The defendant brought a motion to exclude the evidence seized from the
back of his truck as fruits of an illegal seizure of a person. Id. at 571. The trial
court denied this motion, finding that the police had reasonable suspicion to
conduct an investigatory stop of defendant. Id. at 571-572. The defendant then
pled guilty, reserving the right to appeal the denial of his motion to suppress.
Id. at 572.

The Court of Appeals affirmed the trial court’s ruling. Id. at 576. The Court
noted that the call upon which the police based their stop of the defendant was
more akin to a call from a known citizen than a call from an anonymous
tipster, because the police were aware of the address at which the caller lived
and actually pulled up in front of the caller’s house while the call was still
ongoing. Id. at 573. The Court accordingly found that the call was sufficiently
reliable to provide the police with reasonable suspicion to conduct an
investigatory stop of defendant. Id. at 574.

Reasonable suspicion that a person has engaged or is engaging in criminal

activity may properly be based on an in-person tip from a citizen who declines
to identify him- or herself, where the tipster provides the police with
sufficiently detailed information. People v Horton, 283 Mich App 105, 107,
113 (2009). In determining “‘whether the information from [a] citizen-
informant carrie[s] enough indicia of reliability to provide the [police] with a
reasonable suspicion,’” the trial court should consider: “‘(1) the reliability of
the particular informant, (2) the nature of the particular information given to
the police, and (3) the reasonability of the suspicion in light of the above
factors.’” Horton, supra at 109, quoting People v Tooks, 403 Mich 568, 577
(1978). In Horton, supra at 107, the police received in-person information
from a citizen who declined to identify himself that a black male,
approximately 30 years of age who “seemed to be pretty nervous and upset”
was driving a burgundy Chevrolet Caprice at a gas station one mile away, and
was waving an “[U]zi type weapon” with a long clip. The Court of Appeals
held that “[t]he totality of the circumstances provided reasonable suspicion for
the police to briefly detain [the] defendant” because “[t]he descriptive
information was detailed, and the police corroborated it in less than five
minutes.” Horton, supra at 113. The Court reversed the trial court’s grant of
the defendant’s motion to suppress evidence of a gun found in the defendant’s
car that matched the description of the gun given by the tipster. Id. at 107, 113.

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Section 6.37

In People v Whalen, 390 Mich 672, 682 (1973), the Michigan Supreme Court
articulated the following rules regarding the stopping, searching, and seizing
of motor vehicles and their contents:

• Reasonableness is the test that is to be applied for both the stop and
search of motor vehicles.

• Reasonableness will be determined from the facts and

circumstances of each case.

• Fewer foundation facts are needed to support a finding of

reasonableness when moving vehicles are involved than if a house
or home were involved.

• An investigatory stop of a vehicle may be based upon fewer facts

than needed to support a finding of reasonableness where both a
stop and a search are conducted by police.

Police may properly stop a vehicle for an observed defective equipment

violation. People v Rizzo, 243 Mich App 151, 156 (2000).

Although a police officer needs no probable cause or articulable suspicion to

conduct a computer check of a vehicle’s license plate number, an
investigatory stop of any vehicle is valid only if the stop is predicated on an
officer’s articulable and reasonable suspicion that an occupant of the vehicle
has violated the law. People v Jones, 260 Mich App 424, 427-429 (2004). If
a law enforcement officer has probable cause to believe a driver has violated
a traffic law, he or she may stop the vehicle. Whren v United States, 517 US
806, 813 (1996), and People v Davis, 250 Mich App 357, 362-364 (2002).

Further detention of a motorist after a valid traffic stop is permissible if a

police officer has a reasonable, articulable suspicion that the motorist was
involved or was about to be involved in criminal activity. Champion, supra at
98, Shabaz, supra at 54, and People v Lewis, 251 Mich App 58, 70-71 (2002).
To determine whether an investigatory detention was reasonable, a court must
examine the totality of the circumstances as understood by law enforcement
officers. A suspect’s behavior need only be “evasive” or “nervous” to support
a reasonable suspicion. Illinois v Wardlaw, 528 US 119, 124 (2000), People v
Oliver, 464 Mich 184, 192-197 (2001), and Lewis, supra at 70-73.

Following a proper investigative stop of an automobile, a law enforcement

officer is “permitted to briefly detain the vehicle and make reasonable
inquiries aimed at confirming his [or her] suspicions.” People v Yeoman, 218
Mich App 406, 411 (1996), citing People v Nelson, 443 Mich 626, 637 (1993).
A police officer may order the driver and passengers out of a vehicle during a
valid traffic stop. Pennsylvania v Mimms, 434 US 106, 109-111 (1977), and
Maryland v Wilson, 519 US 408, 415 (1997). “[O]fficers who conduct
‘routine traffic stop[s]’ may ‘perform a “patdown” of a driver and any
passengers upon reasonable suspicion that they may be armed and

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 Monograph 6—Pretrial Motions (2006–August 2009)

dangerous.’” Arizona v Lemon Johnson, 555 US ___, ___ (2009), quoting

Knowles v Iowa, 525 US 113, 117-118 (1998).

“[C]ircumstances unique to the automobile context justify a search incident to

arrest when it is reasonable to believe that evidence of the offense of arrest
might be found in the vehicle.” Arizona v Gant, 556 US ___, ___ (2009). In
Gant, supra at ___, the defendant was arrested for driving with a suspended
license. After the police handcuffed the defendant and locked him in the back
of a patrol car, they searched his car and found drugs in a jacket on the
backseat. Id. at ___. The United States Supreme Court noted that “[i]n many
cases, as when a recent occupant is arrested for a traffic violation, there will
be no reasonable basis to believe the vehicle contains relevant evidence.” Id.
at ___. Because the “likelihood of discovering offense-related evidence” did
not authorize the search of the defendant’s vehicle, the United States Supreme
Court held that the search was unreasonable. Id. at ___.

In Illinois v Caballes, 543 US 405, 406-407 (2005), a police officer lawfully

stopped the defendant for a traffic violation. Another officer—one
accompanied by a narcotic-sniffing dog—heard the police dispatch about the
traffic stop and joined the defendant and the first officer at the scene. Id. at
406. As the first officer completed his duties with regard to the traffic stop, the
second officer walked the drug-sniffing dog around the exterior of the
defendant’s vehicle, and the dog alerted to the trunk of the defendant’s car. Id.
A search of the defendant’s trunk revealed a quantity of marijuana for which
the defendant was charged and convicted. Id. The defendant claimed that the
marijuana was inadmissible against him because he was detained beyond the
time necessary to process the initial traffic stop, and because no reasonable
suspicion existed to support the search of his vehicle. Id. at 407.

Citing United States v Jacobsen, 466 US 109 (1984), the Caballes Court
explained that when police conduct does not affect a defendant’s legitimate
interest in privacy, the conduct cannot be characterized as a search and
therefore, the conduct does not demand Fourth Amendment analysis.
Caballes, supra at 408. The Court reiterated its reasoning in Jacobsen: a
defendant can have no legitimate interest in possessing contraband. Caballes,
supra at 408. Thus, where police conduct reveals only the defendant’s
possession of contraband, no legitimate interest in privacy was implicated.
Caballes, supra at 408, citing Jacobsen, supra at 123.

In the Caballes Court’s opinion:

“[C]onducting a dog sniff would not change the character

of a traffic stop that is lawful at its inception and otherwise
executed in a reasonable manner, unless the dog sniff itself
infringed respondent’s constitutionally protected interest
in privacy.” Caballes, supra at 408.

Relying on the decision reached in United States v Place, 462 US 696 (1983),
the Caballes Court further concluded:

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Section 6.37

“[T]he dog sniff was performed on the exterior of

respondent’s car while he was lawfully seized for a traffic
violation. Any intrusion on respondent’s privacy
expectations does not rise to the level of a constitutionally
cognizable infringement.” Caballes, supra at 409.

The Michigan Supreme Court reversed the Court of Appeals decision in

People v LaBelle (LaBelle I), 273 Mich App 214 (2006), and ruled that the
search of the defendant’s backpack did not violate her constitutional right to
be free of unreasonable searches and seizures. People v LaBelle (LaBelle II),
478 Mich 891 (2007). According to the LaBelle II Court, the search of the
defendant’s backpack was proper because the driver consented to a search of
the vehicle and, under those circumstances, the police were authorized to
search the entire passenger compartment, including the defendant’s backpack.
Id. at 892. The Court further commented that “the defendant did not assert a
possessory or proprietary interest in the backpack before it was searched but,
rather, left the backpack in a car she knew was about to be searched.” Id.

2. Searches Incident to Valid Arrest

Contemporaneous with the lawful custodial arrest of a person, police officers

may conduct a warrantless full search of that person. United States v
Robinson, 414 US 218, 235 (1973). Such a search may extend to the
immediately surrounding area, “the area from within which [the person
arrested] might gain possession of a weapon or destructible evidence.” Chimel
v California, 395 US 752, 763 (1969). Police may also lawfully search the
passenger compartment of an automobile and any open or closed containers
found in the passenger compartment incident to the lawful arrest of an
occupant of the automobile. New York v Belton, 453 US 454, 460-461 (1981),
People v Davis, 250 Mich App 357, 364-365 (2002) (after LEIN check,
defendant was arrested on outstanding warrants, and subsequent search of
vehicle incident to arrest was proper), and People v Fernengel, 216 Mich App
420 (1996) (where the defendant was arrested 20 to 25 feet from his
automobile after voluntarily exiting it, neither Chimel nor Belton allowed the
warrantless search of the automobile).

The Fourth Amendment is not violated where the police make an arrest based
on probable cause and conduct a search incident to the arrest, even if the arrest
is prohibited by state law. Virginia v Moore, 553 US ___, ___ (2008) (police
arrested the defendant for an “unarrestable” offense under state law).
“[O]fficers may perform searches incident to constitutionally permissible
arrests in order to ensure their safety and safeguard evidence.” Id. at ___. This
rule covers any “lawful arrest,” i.e., “an arrest based on probable cause.” Id.
at ___. While some States have taken “lawful” to mean in “compliance with
state law,” the United States Supreme Court intends “lawful” to mean in
“compliance with constitutional constraints.” Id. at ___, citing United States
v Robinson, 414 US 218 (1973).

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A police officer may lawfully search an individual’s vehicle incident to that

individual’s arrest, even when the officer’s first contact with the arrestee
occurs after the individual has gotten out of the vehicle. Thornton v United
States, 541 US 615, 617 (2004). In Thornton, supra at 619, the defendant
contested the admissibility of evidence obtained from the officer’s search of
his car when the officer who arrested the defendant did not address him until
he was already out of, and away from, his vehicle. The United States Supreme
Court disagreed with the defendant’s argument that a search incident to arrest
under Belton “was limited to situations where the officer initiated contact with
an arrestee while he was still an occupant of the car.” Thornton, supra at 619.
According to the Court:

“In all relevant aspects, the arrest of a suspect who is next

to a vehicle presents identical concerns regarding officer
safety and the destruction of evidence as the arrest of one
who is inside the vehicle. An officer may search a
suspect’s vehicle under Belton only if the suspect is
arrested. . . . The stress [and the risk of danger to the police
officer] is no less merely because the arrestee exited his car
before the officer initiated contact, nor is an arrestee less
likely to attempt to lunge for a weapon or to destroy
evidence if he is outside of, but still in control of, the
vehicle. In either case, the officer faces a highly volatile
situation. It would make little sense to apply two different
rules to what is, at bottom, the same situation.” Thornton,
supra at 621 (internal citations omitted).

The Court further reasoned:

“Belton allows police to search the passenger compartment

of a vehicle incident to a lawful custodial arrest of both
‘occupants’ and ‘recent occupants.’ Indeed, the respondent
in Belton was not inside the car at the time of the arrest and
search; he was standing on the highway. In any event,
while an arrestee’s status as a ‘recent occupant’ may turn
on his temporal or spatial relationship to the car at the time
of the arrest and search, it certainly does not turn on
whether he was inside or outside the car at the moment that
the officer first initiated contact with him.” Thornton,
supra at 622 (internal citations and footnote omitted).

“Police may search a vehicle incident to a recent occupant’s arrest only if the
arrestee is within reaching distance of the passenger compartment at the time
of the search or it is reasonable to believe the vehicle contains evidence of the
offense of arrest.” Arizona v Gant, 556 US ___, ___ (2009). “When these
justifications are absent, a search of an arrestee’s vehicle will be unreasonable
unless police obtain a warrant or show that another exception to the warrant
requirement applies.” Id. at ___. In Gant, supra at ___, the defendant was
arrested for driving with a suspended license. After the police handcuffed the

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Section 6.37

defendant and locked him in the back of a patrol car, they searched his car and
found drugs in a jacket on the backseat. Id. at ___. The United States Supreme
Court held that the search was improper because New York v Belton, 453 US
454 (1981), “does not authorize a vehicle search incident to a recent
occupant’s arrest after the arrestee has been secured and cannot access the
interior of the vehicle.” Gant, supra at ___. Because the police could not
reasonably have believed that the defendant could have accessed his car at the
time of the search, the Court held that the search was unreasonable. Id. at ___.
The Court specifically noted that “[b]ecause officers have many means of
ensuring the safe arrest of vehicle occupants, it will be the rare case in which
an officer is unable to fully effectuate an arrest so that a real possibility of
access to the arrestee’s vehicle remains . . . [b]ut in such a case a search
incident to arrest is reasonable under the Fourth Amendment.” Id. at ___ n 4.

Incident to a lawful arrest and without probable cause or reasonable suspicion,

officers may “look in closets and other spaces immediately adjoining the
place of arrest from which an attack could be immediately launched.”
Maryland v Buie, 494 US 325, 334 (1990). A “protective sweep” of an arrest
scene is permissible if the officer possesses a reasonable belief based on
specific and articulable facts that, together with rational inferences from those
facts, reasonably warrant the officer in believing that the area swept contained
an individual posing a danger to the officer or others. Id. at 327, quoting
Michigan v Long, 463 US 1032, 1049-1050 (1983) (limited “frisk” of
automobile passenger compartment for weapons permissible in conjunction
with investigative stop), and Terry v Ohio, 392 US 1, 21 (1968) (limited
“frisk” of individual permissible in conjunction with investigative stop). “A
‘protective sweep’ is a quick and limited search of premises, incident to an
arrest and conducted to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places in which a
person might be hiding.” Buie, supra at 327.

A consensual encounter between an officer and a private citizen does not

implicate the citizen’s constitutional right to be free from unreasonable
searches and seizures. An initially consensual encounter may become a
seizure when, based on the information obtained and observations made, an
officer develops reasonable suspicion that the citizen has been involved in
criminal activity. People v Jenkins, 472 Mich 26, 32-35 (2005). In addition,
an investigatory stop may lead to an arrest based on other information gained
and observations made. Evidence discovered as a result of a lawful arrest is
properly seized at the time of the arrest. Id.

Evidence was properly seized and admitted at trial against the defendant when
it was discovered during a police officer’s lawful investigatory detention of
the defendant. People v Dunbar, 264 Mich App 240, 245-250 (2004).

3. Seizure of Items in Plain View

If police officers are lawfully in a position to view an object, the object’s

incriminating character is immediately apparent, and the officers have a

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 Monograph 6—Pretrial Motions (2006–August 2009)

lawful right of access to the object, they may seize it without obtaining a
warrant. Horton v California, 496 US 128, 136-137 (1990), and People v
Moore (On Remand), 186 Mich App 551 (1990) (seizure of items in plain
view is permissible regardless of whether police had a prior reason to suspect
the items would be found). See also Long, supra at 1050 (“plain view”
doctrine used to uphold seizure of marijuana from passenger compartment of
automobile during limited search for weapons). However, if police lack
probable cause to believe that the object is contraband without conducting a
further search of the object, it may not be seized without a warrant pursuant
to the “plain view” doctrine. Arizona v Hicks, 480 US 321, 326 (1987). In
People v Custer, 465 Mich 319, 336-338 (2001) (Markman, J), the Court
stated that “the exterior of an item [here, photographs] that is validly seized
during a patdown search may be examined without a search warrant . . . .”

The plain view doctrine may justify an officer’s seizure of items not
specifically enumerated in a search warrant if the incriminating nature of the
items seized was immediately apparent to the officer, and the officer was
lawfully in the position from which the items were seen. People v Fletcher,
260 Mich App 531, 550-551 (2004).

Marijuana plants growing in a shed behind the defendant’s house were

inadmissible at trial because although the marijuana plants were in plain view
from the police officer’s vantage point in the defendant’s backyard, the
officer’s entry into the defendant’s backyard was unlawful. People v
Galloway, 259 Mich App 634, 639-642 (2003). In Galloway, the prosecution
contended that the police officers—via their initiation of a “knock and talk”
procedure—were lawfully in the defendant’s backyard when they saw the
marijuana plants in the defendant’s shed. The Court of Appeals, first noting
that the ordinary rules governing police conduct apply to circumstances
surrounding a “knock and talk,” explained the proper execution of the “knock
and talk” procedure:

“‘Generally, the knock and talk procedure is a law *Frohriep

enforcement tactic in which the police, who possess some upheld the
constitu-
information that they believe warrants further tionality of the
investigation, but that is insufficient to constitute probable “knock and talk”
cause for a search warrant, approach the person suspected procedure.
of engaging in the illegal activity at the person’s residence Frohriep, supra
at 698.
(even knock on the front door), identify themselves as
police officers, and request consent to search for the
suspected illegality or illicit items.’” Galloway, supra at
639, quoting People v Frohriep, 247 Mich App 692, 697
(2001).*

The Court further stated that the police officers’ claim that they were lawfully
in the defendant’s backyard by virtue of their “knock and talk” approach
constituted a misuse of the tactic:

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Section 6.38

“[T]he knock and talk visit can[not] be used as the premise

for a warrantless entry of the backyard area of [a]
defendant’s home [and the warrantless entry cannot then]
justify the seizure of evidence under the plain view
exception to the search and seizure warrant requirement.”
Galloway, supra at 636.

In Terry, supra at 24, the United States Supreme Court held that an officer
may conduct a limited patdown search for weapons during an investigative
encounter. “If a police officer lawfully pats down a suspect’s outer clothing
and feels an object whose contour or mass makes its identity immediately
apparent, there has been no invasion of the suspect’s privacy beyond that
already authorized by the officer’s search for weapons; if the object is
contraband, its warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context.” Minnesota v Dickerson,
508 US 366, 375-376 (1993). See also Champion, supra at 105 (adopting
Dickerson’s “plain feel” exception to the warrant requirement and stating that
the officer must develop probable cause to believe the item is contraband
before going beyond the scope of a patdown search).

6.38 Motion for Separate Trials of Multiple Defendants

Moving Party: Defendant or prosecutor

Burden of Proof: A defendant has a right to severance of unrelated offenses.

MCR 6.121(B). When related offenses alleged against two or more
defendants are joined for trial, a defendant who seeks severance bears the
burden of clearly, affirmatively, and fully showing that joint trial will
prejudice his or her substantial rights. People v Hana, 447 Mich 325, 346-347
(1994), and MCR 6.121(C). A defendant may also seek severance of related
offenses on the basis that severance is necessary to promote fairness to the
parties and a fair determination of guilt or innocence. MCR 6.121(D). If the
prosecutor seeks severance of the trial of multiple defendants charged with
related offenses, he or she must show that severance is necessary to promote
fairness to the parties and a fair determination of guilt or innocence. Id.

Discussion

MCL 768.5 provides:

“When two (2) or more defendants shall be jointly indicted

for any criminal offense, they shall be tried separately or
jointly, in the discretion of the court.”

MCR 6.121 provides:

“(A) Permissive Joinder. An information or indictment

may charge two or more defendants with the same
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 Monograph 6—Pretrial Motions (2006–August 2009)

offense. It may charge two or more defendants with two or

more offenses when

(1) each defendant is charged with accountability

for each offense, or

(2) the offenses are related as defined in MCR

6.120(B).

When more than one offense is alleged, each offense must

be stated in a separate count. Two or more informations or
indictments against different defendants may be
consolidated for a single trial whenever the defendants
could be charged in the same information or indictment
under this rule.

(B) Right of Severance; Unrelated Offenses. On a

defendant’s motion, the court must sever offenses that are
not related as defined in MCR 6.120(B).

(C) Right of Severance; Related Offenses. On a

defendant’s motion, the court must sever the trial of
defendants on related offenses on a showing that severance
is necessary to avoid prejudice to substantial rights of the
defendant.

(D) Discretionary Severance. On the motion of any party,

the court may sever the trial of defendants on the ground
that severance is appropriate to promote fairness to the
parties and a fair determination of the guilt or innocence of
one or more of the defendants. Relevant factors include the
timeliness of the motion, the drain on the parties’
resources, the potentialfor confusion or prejudice
stemming from either the number of defendants or the
complexity or nature of the evidence, the convenience of
witnesses, and the parties’ readiness for trial.”

MCR 6.120(B)(1)* defines related offenses as those that are based on *Effective
January 1,
2006.
“(a) the same conduct or transaction, or

“(b) a series of connected acts, or

“(c) a series of acts constituting parts of a single scheme or

plan.”

In Michigan, there is a strong public policy favoring joint trials. People v

Carroll, 396 Mich 408, 414 (1976). The decision to sever or join defendants
lies within the discretion of the trial court. Severance is mandated only if a
defendant provides the court with a supporting affidavit, or makes an offer of
Michigan Judicial Institute © 2006–August 2009 Page 6–129
Section 6.39

proof, that clearly, affirmatively, and fully demonstrates that his or her
substantial rights will be prejudiced absent severance. A defendant seeking
severance must show that there is a serious risk that a joint trial would
compromise a specific trial right of the moving party or prevent the jury from
making a reliable judgment as to guilt or innocence. The moving party must
show that severance is necessary, i.e., that no other avenue of relief is
available. Hana, supra at 345-347, 355, 359. See also People v Schram, 378
Mich 145, 156 (1966), and Carroll, supra. Examples of prejudice resulting
from joinder include the admission of evidence against one defendant that is
inadmissible against another defendant or the exclusion of evidence that is
exculpatory as to one defendant because it is inadmissible in a joint trial.
Hana, supra at 346 n 7.

Inconsistency or antagonism of defenses is not alone sufficient to mandate

severance. Severance is required if the defenses of separate defendants are
mutually exclusive or irreconcilable. Defenses are mutually exclusive if a
jury, in order to believe the core of evidence offered on behalf of one
defendant, must disbelieve the core of evidence offered by another defendant.
The tension between the defenses must be so great that the jury would have to
believe one defendant at the expense of another defendant. Id. at 349-350.

The risk of prejudice from a joint trial may be allayed by proper jury
instructions and by the use of dual juries. Dual juries, a partial form of
severance, may be used if the procedure does not prejudice the substantial
rights of a defendant. Id. at 351-352, 359, 362.

6.39 Motion for Severance or Joinder of Multiple Charges

Against a Single Defendant

Moving Party: Defendant or prosecutor

Burden of Proof: A defendant is entitled to severance of joined charges if he

or she shows that the charges are not related. MCR 6.120(C). A court may join
offenses charged in two or more informations or indictments or sever offenses
charged in a single information or indictment when it is appropriate to
promote fairness to the parties and a fair determination of the defendant’s guilt
or innocence of each offense. MCR 6.120(B).

Discussion

*Effective MCR 6.120* provides:

January 1,
2006.
“(A) Charging Joinder. The prosecuting attorney may
file an information or indictment that charges a single
defendant with any two or more offenses. Each offense
must be stated in a separate count. Two or more
informations or indictments against a single defendant may
be consolidated for a single trial.

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 Monograph 6—Pretrial Motions (2006–August 2009)

“(B) Postcharging Permissive Joinder or Severance. On

its own initiative, the motion of a party, or the stipulation
of all parties, except as provided in subrule (C), the court
may join offenses charged in two or more informations or
indictments against a single defendant, or sever offenses
charged in a single information or indictment against a
single defendant, when appropriate to promote fairness to
the parties and a fair determination of the defendant’s guilt
or innocence of each offense.

(1) Joinder is appropriate if the offenses are related.

For purposes of this rule, offenses are related if
they are based on

(a) the same conduct or transaction, or

(b) a series of connected acts, or

(c) a series of acts constituting parts of a single

scheme or plan.

(2) Other relevant factors include the timeliness of

the motion, the drain on the parties’ resources, the
potential for confusion or prejudice stemming from
either the number of charges or the complexity or
nature of the evidence, the potential for
harassment, the convenience of witnesses, and the
parties’ readiness for trial.

(3) If the court acts on its own initiative, it must

provide the parties an opportunity to be heard.

“(C) Right of Severance; Unrelated Offenses. On the

defendant’s motion, the court must sever for separate trials
offenses that are not related as defined in subrule (B)(1).”

*See Section
6.40, below, for
discussion of
MCR 6.120(B) permits joinder if offenses are related, i.e., if they comprise the MRE 404(b).
same conduct or transaction; a series of connected acts; or a series of acts
constituting parts of a single scheme or plan. See People v Williams, 483 Mich
226, 233 n 5 (2009). In Williams, supra at 228-229, the defendant was
convicted of two drug charges, stemming from two separate arrests. The
Court determined that “the offenses charged were related because the
evidence indicated that [the] defendant engaged in ongoing acts constituting
parts of his overall scheme or plan to package cocaine for distribution, and
joinder was appropriate.” Id. at 235.

“To determine whether joinder is permissible, a trial court must first find the
relevant facts and then must decide whether those facts constitute ‘related’
offenses for which joinder is appropriate.” Williams, 483 Mich at 231.
Michigan Judicial Institute © 2006–August 2009 Page 6–131
Section 6.40

See also People v Girard, 269 Mich App 15, 17 (2005), where the trial court
properly denied the defendant’s request to sever the CSC-I charges from the
charges of possession of child sexually abusive material. In Girard, supra at
18, the evidence showed that the conduct underlying the charges against the
defendant was plainly accounted for by the language of MCR 6.120(B)—
“offenses are related if they are based on the same conduct or a series of
connected acts or acts constituting part of a single scheme or plan.” Testimony
at the defendant’s trial established “that defendant used child pornography for
stimulation before and during his sexual abuse of the complainant, and, thus,
the use of child pornography was part of his modus operandi.” Girard, supra
at 18.

It is permissible to join related felony and misdemeanor charges in circuit

court. MCL 767.1; People v Loukas, 104 Mich App 204, 207-208 (1981).

6.40 Motion in Limine—Evidence of Other Crimes,

Wrongs, or Acts
*For a more Moving Party: Prosecutor*
complete
discussion, see
Sexual Assault
Burden of Proof: The prosecutor must provide reasonable notice of the
Benchbook general nature of the evidence of other crimes, wrongs, or acts that he or she
(MJI, 2002-April intends to introduce at trial, and the rationale for admitting the evidence.
2009), Section Notice must be given in advance of trial, or during trial if the prosecutor shows
7.3.
good cause for failing to give pretrial notice. MRE 404(b)(2). The prosecutor
bears the burden of establishing the relevance of the proffered evidence.
People v Crawford, 458 Mich 376, 385-386 n 6 (1998).

Discussion

MCL 768.27 provides:

“In any criminal case where the defendant’s motive, intent,

the absence of mistake or accident on his part, or the
defendant’s scheme, plan or systemin doing an act is
material, any like acts or other acts of the defendant which
may tend to show his motive, intent, the absence of mistake
or accident on his part, or the defendant’s scheme, plan or
system in doing theact in question, may be proved,
whether they are contemporaneous with or prior or
subsequent thereto; notwithstanding that such proof may
show or tend to show the commission of another or prior or
subsequent crime by the defendant.”

*Effective MCL 768.27a* states:

January 1,
2006. See 2005
PA 135.
“(1) Notwithstanding [MCL 768.]27, in a criminal case in
which the defendant is accused of committing a listed

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 Monograph 6—Pretrial Motions (2006–August 2009)

offense against a minor, evidence that the defendant

committed another listed offense against a minor is
admissible and may be considered for its bearing on any
matter to which it is relevant. If the prosecuting attorney
intends to offer evidence under this section, the
prosecuting attorney shall disclose the evidence to the
defendant at least 15 days before the scheduled date of trial
or at a later time as allowed by the court for good cause
shown, including the statements of witnesses or a summary
of the substance of any testimony that is expected to be
offered.

“(2) As used in this section:

(a) “Listed offense” means that term as defined in

section 2 of the sex offenders registration act, 1994
PA 295, MCL 28.722.

(b) “Minor” means an individual less than 18 years

of age.”

MRE 404(b) provides:

“(1) Evidence of other crimes, wrongs, or acts is not

admissible toprove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, scheme, plan, or system in
doing an act, knowledge, identity, or absence of mistake or
accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior
or subsequent to the conduct at issue in the case.

“(2) The prosecution in a criminal case shall provide

reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce
at trial and the rationale, whether or not mentioned in
subparagraph (b)(1), for admitting the evidence. If
necessary to a determination of the admissibility of the
evidence under this rule, the defendant shall be required to
state the theory or theories of defense, limited only by the
defendant’s privilege against self-incrimination.”

Evidence is inadmissible under MRE 404(b) if the sole theory of relevance is

that evidence of another act shows the defendant’s inclination to wrongdoing
in general to prove that he or she committed the conduct in question. It is not
permissible to infer the defendant’s character from evidence of prior acts; nor
is it permissible to infer that the defendant engaged in the charged conduct

Michigan Judicial Institute © 2006–August 2009 Page 6–133

Section 6.41

from evidence of his or her subjective character. People v VanderVliet, 444

Mich 52, 61-65 (1993).

To be admissible, evidence of other acts must be:

1) offered for a proper purpose under MRE 404(b), i.e., offered for a
purpose other than propensity to commit wrongdoing;

2) relevant to an issue or fact of consequence at trial, MRE 402; and

3) of probative value which is not substantially outweighed by its

prejudicial effect, MRE 403. VanderVliet, supra at 55 n 1, 74-75,
People v Starr, 457 Mich 490, 496-498 (1998), and Crawford,
supra at 388-390.

Upon request, the trial court may give a limiting jury instruction concerning
the purposes for which the evidence of other acts may be considered.
VanderVliet, supra at 75.

There is no rule limiting admissibility of evidence of other acts to the specific

exceptions listed in MRE 404(b)(1). VanderVliet, supra at 65, Starr, supra at
496, and Crawford, supra at 390 n 8. A defendant’s general denial of the
charge does not render evidence of other acts inadmissible. VanderVliet,
supra at 65, 75-78, 83, 89 n 49, and Starr, supra at 501.

If offered to prove the defendant’s plan, scheme, or system, the uncharged act
and the charged offense must be sufficiently similar to support an inference
that they manifest a common plan, scheme, or system. If offered to prove the
defendant’s plan, scheme, or system, the uncharged and charged acts need not
be part of a single continuing conception or plan, and the plan need not be
unusual or distinctive. People v Sabin (After Remand), 463 Mich 43, 63-66
(2000). Mere similarity between the uncharged and charged acts may be
sufficient if the evidence is offered to prove intent. Id. at 64. If the evidence is
offered to prove identity, the evidence must necessarily suggest employment
of a unique, peculiar, or special style so distinctive as to justify a reasonable
inference of a personalized modus operandi and to earmark both offenses as
the handiwork of the same person. People v Golochowicz, 413 Mich 298, 310-
312 (1982), and Sabin, supra at 65-66.

6.41 Motion to Dismiss—Denial of Right to Speedy Trial

Moving Party: Defendant

Burden of Proof: Where there has been a delay of at least six months after a
defendant’s arrest, further investigation into a claim of denial of the right to a
speedy trial is necessary. People v Daniel, 207 Mich App 47, 51 (1994).
Where the delay following a defendant’s arrest is less than 18 months, the
defendant bears the burden of showing prejudice by reason of the delay. After

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 Monograph 6—Pretrial Motions (2006–August 2009)

a delay of 18 months, prejudice to the defendant is presumed and the burden

shifts to the prosecutor to rebut the presumption. People v Collins, 388 Mich
680, 695 (1972), and People v Cain, 238 Mich App 95, 112 (1999).

Discussion

A defendant’s right to a speedy trial is guaranteed by US Const, Am VI, Const

1963, art 1, § 20, and MCL 768.1. Factors to be balanced in determining
whether a defendant’s right to speedy trial has been violated are 1) the length
of the delay, 2) the reasons for the delay, 3) whether the defendant has asserted
his or her right to a speedy trial, and 4) whether the defendant has been
prejudiced by the delay. People v Grimmett, 388 Mich 590, 606 (1972),
overruled in part on other grounds 390 Mich 245 (1973), and People v Collins,
388 Mich 680, 682 (1972). If the delay following the defendant’s arrest
exceeds 18 months, prejudice is presumed and inquiry into the first three of
these factors is required in balancing competing interests. People v Wickham,
200 Mich App 106, 109-110 (1993).

Delays occasioned by defense motions and adjournments requested by the

defense are charged to the defendant in examining his or her speedy trial
claim. Cain, supra at 113, and People v Gilmore, 222 Mich App 442, 461
(1997). Delays inherent in the court system, including those attributed to
docket congestion, scheduling of pretrial conferences, and adjournments for
motions, are attributed to the prosecutor but are assigned minimal weight. Id.
at 460, and Wickham, supra at 111. The complexity of the case and the
resultant burden of gathering and analyzing evidence may establish legitimate
reason for the delay. Cain, supra.

Delays occasioned by the prosecution’s successful pursuit of an interlocutory

appeal are “‘taken out of the calculation,’” and therefore, are not attributable
to either party when determining whether a defendant’s right to a speedy trial
has been violated. People v Waclawski, ___ Mich App ___, ___ (2009),
quoting People v Missouri, 100 Mich App 310, 321 (1980).

Ordinarily, “delays caused by defense counsel are properly attributed to the

defendant, even where counsel is assigned[,]” because “assigned counsel
generally are not state actors for purposes of a speedy-trial claim.” Vermont v
Brillon, 556 US ___, ___ (2009). However, it is possible that an assigned
counsel’s delay could be charged to the state if a breakdown in a state’s public
defender system caused the delay. Id. at ___.

Potential prejudice caused by delay after arrest includes both prejudice to the
defendant’s person by reason of oppressive pretrial incarceration, anxiety and
concern, and prejudice to the defense. Impairment of the defense is the most
serious concern. Collins, supra at 694. General allegations of prejudice to the
defense are insufficient, as is a showing of anxiety alone. Gilmore, supra at
462. The causal connection between alleged prejudice and the delay must be
shown. See Wickham, supra at 112.

Michigan Judicial Institute © 2006–August 2009 Page 6–135

Section 6.42

“Whenever the defendant’s constitutional right to a speedy trial is violated,

the defendant is entitled to dismissal of the charge with prejudice.” MCR
6.004(A).

6.42 Motion to Release on Personal Recognizance—

Delayed Felony and Misdemeanor Cases

Moving Party: Defendant or prosecutor

Burden of Proof: The moving party has the burden of proof. The party
opposing the motion has the burden to show good cause for delay. See MCR
6.004(C)(1)-(6). The prosecutor has the burden to show that a period of delay
resulting from an adjournment requested by the prosecutor shall not be
included in determining whether the defendant has been incarcerated for the
requisite period. MCR 6.004(C)(4).

Discussion

*Effective MCR 6.004(C)* states as follows:

January 1,
2006.
“(C) Delay in Felony and Misdemeanor Cases;
Recognizance Release. In a felony case in which the
defendant has been incarcerated for a period of 180 days or
more to answer for the same crime or a crime based on the
same conduct or arising from the same criminal episode, or
in a misdemeanor case in which the defendant has been
incarcerated for a period of 28 days or more to answer for
the same crime or a crime based on the same conduct or
arising from the same criminal episode, the defendant must
be released on personal recognizance, unless the court
finds by clear and convincing evidence that the defendant
is likely either to fail to appear for future proceedings or to
present a danger to any other person or the community. In
computing the 28-day and 180-day periods, the court is to
exclude

(1) periods of delay resulting from other

proceedings concerning the defendant, including
but not limited to competency and criminal
responsibility proceedings, pretrial motions,
interlocutory appeals, and the trial of other charges,

(2) the period of delay during which the defendant

is not competent to stand trial,

(3) the period of delay resulting from an

adjournment requested or consented to by the
defendant’s lawyer,

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 Monograph 6—Pretrial Motions (2006–August 2009)

(4) the period of delay resulting from an

adjournment requested by the prosecutor, but only
if the prosecutor demonstrates on the record either

(a) the unavailability, despite the exercise of due

diligence, of material evidence that the prosecutor
has reasonable cause to believe will be available at
a later date; or

(b) exceptional circumstances justifying the need

for more time to prepare the state’s case,

(5) a reasonable period of delay when the

defendant is joined for trial with a codefendant as
to whom the time for trial has not run, but only if
good cause exists for not granting the defendant a
severance so as to enable trial within the time limits
applicable, and

(6) any other periods of delay that in the court’s

judgment are justified by good cause, but not
including delay caused by docket congestion.”

If an accused has been incarcerated for the requisite period and no good cause
for the delay is shown, a presumption arises that the accused should be
released on personal recognizance. However, that presumption may be
rebutted “by clear and convincing evidence that the defendant is likely either
to fail to appear for future proceedings or to present a danger to any other
person or the community.” MCR 6.004(C). If the presumption is rebutted, see
Const 1963, art 1, § 15, MCL 765.6, and MCR 6.106 for the applicable pretrial
release considerations.

6.43 Motion to Dismiss—Violation of 180-Day Rule

Moving Party: Defendant

Burden of Proof: In order to invoke the 180-day rule, the defendant must
show that he or she was an inmate of a Michigan correctional facility or in a
local facility awaiting imprisonment in a state prison. See People v Williams,
66 Mich App 521, 524 (1976). Once it is shown that a defendant covered by
the rule has not been brought to trial within the 180-day period described in
MCL 780.131(1) and MCR 6.004(D), the prosecution bears the burden of
establishing good faith in readying the case for trial during the 180-day
period. See People v Ferguson, 94 Mich App 137, 143 (1979).

Note: The requirement that the prosecuting attorney show a good-

faith effort to ready the case for trial is based on the Michigan
Supreme Court’s interpretation of MCL 780.131 in People v
Hendershot, 357 Mich 300, 304 (1959). That interpretation was

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Section 6.43

incorporated into MCR 6.004(D). Effective January 1, 2006, MCR

6.004(D) was amended to eliminate the requirement of good-faith
action, and the continuing viability of Hendershot is unclear.

Discussion

MCL 780.131(1) provides in pertinent part:

“(1) Whenever the department of corrections receives

notice that there is pending in this state any untried
warrant, indictment, information, or complaint setting
forth against any inmate of a correctional facility of this
state a criminal offense for which a prison sentence might
be imposed upon conviction, the inmate shall be brought to
trial within 180 days after the department of corrections
causes to be delivered to the prosecuting attorney of the
county in which the warrant, indictment, information, or
complaint is pending written notice of the place of
imprisonment of the inmate and a request for final
disposition of the warrant, indictment, information, or
complaint. The request shall be accompanied by a
statement setting forth the term of commitment under
which the prisoner is being held, the time already served,
the time remaining to be served on the sentence, the
amount of good time or disciplinary credits earned, the
time of parole eligibility of the prisoner, and any decisions
of the parole board relating to the prisoner. The written
notice and statement shall be delivered by certified mail.”

Pursuant to MCL 780.131(2), the 180-day rule does not apply when a person
has been charged with certain criminal offenses:

“(2) This section does not apply to a warrant, indictment,

information, or complaint arising from either of the
following:

(a) A criminal offense committed by an inmate of a

state correctional facility while incarcerated in the
correctional facility.

(b) A criminal offense committed by an inmate of

a state correctional facility after the inmate has
escaped from the correctional facility and before he
or she has been returned to the custody of the
department of corrections.”

MCL 780.133 states:

“In the event that, within the time limitation set forth in
section 1 of this act, action is not commenced on the matter
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for which request for disposition was made, no court of this

state shall any longer have jurisdiction thereof, nor shall
the untried warrant, indictment, information or complaint
be of any further force or effect, and the court shall enter
an order dismissing the same with prejudice.”

MCR 6.004(D)* incorporates the requirements of MCL 780.131 et seq. MCR *Effective
6.004(D) states: January 1,
2006.

“(D) Untried Charges Against State Prisoner.

(1) The 180-Day Rule. Except for crimes exempted

by MCL 780.131(2), the inmate shall be brought to
trial within 180 days after the department of
corrections causes to be delivered to the
prosecuting attorney of the county in which the
warrant, indictment, information, or complaint is
pending written notice of the place of
imprisonment of the inmate and a request for final
disposition of the warrant, indictment, information,
or complaint. The request shall be accompanied by
a statement setting forth the term of commitment
under which the prisoner is being held, the time
already served, the time remaining to be served on
the sentence, the amount of good time or
disciplinary credits earned, the time of parole
eligibility of the prisoner, and any decisions of the
parole board relating to the prisoner. The written
notice and statement shall be delivered by certifies
mail.

(2) Remedy. In the event that action is not

commenced on the matter for which request for
disposition was made as required in subsection (1),
no court of this state shall any longer have
jurisdiction thereof, nor shall the untried warrant,
indictment, information, or complaint be of any
further force or effect, and the court shall enter an
order dismissing the same with prejudice.”

The purpose of the 180-day rule is to give inmates the opportunity to have
“‘sentences run concurrently consistent with the principle of law disfavoring
accumulations of sentences.’” People v Smith, 438 Mich 715, 718 (1991),
quoting People v Loney, 12 Mich App 288, 292 (1968). A person whose status
is that of a pretrial detainee or a person being detained locally under a parole
hold cannot invoke the 180-day rule. People v Chambers, 439 Mich 111, 115-
116 (1992), Chavies, supra at 279-280, and People v Wright, 128 Mich App
374, 378-379 (1983). A person whose conviction has been reversed or
otherwise set aside but who nonetheless remains in the custody of the
Department of Corrections, albeit not pursuant to any conviction and
sentence, may not invoke the 180-day rule. Chambers, supra.

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Section 6.43

*Overruled to In People v Cleveland Williams, 475 Mich 245, 247-248 (2006), the Michigan
the extent of its Supreme Court, contrary to People v Smith, 438 Mich 715 (1991),* ruled that
inconsistency
with MCL
MCL 780.131 “contains no exception for charges subject to consecutive
780.131. sentencing.” Consequently, unless specifically excepted under MCL
780.131(2), the 180-day rule applies to any untried charge against any
prisoner, without regard to potential penalty. Cleveland Williams, supra at
255. According to the Court, the plain language of MCL 780.131 permits a
prisoner subject to mandatory consecutive sentencing to assert his right to a
speedy trial. Cleveland Williams, supra at 254. However, that the defendant
in this case was entitled to raise the speedy trial issue did not end the Court’s
review of this case. Id. at 260. After concluding that the defendant raised a
valid claim under MCL 780.131, the Court considered the delay in bringing
the defendant to trial and determined that the defendant’s speedy trial rights
had not been violated. Cleveland Williams, supra at 260-265.

*Hill and In addition to the defendant’s speedy trial claim, the Court addressed specific
Castelli were case law that incorrectly interpreted the statutory language governing the
overruled to the
extent of their
notice required to trigger application of the statute. Id. at 259. Contrary to
inconsistency People v Hill, 402 Mich 272 (1978), and People v Castelli, 370 Mich 147
with MCL (1963),* the Court noted that the statutory time period of 180 days begins to
780.131. run when the prosecution receives notice from the Department of Corrections:

“The statutory trigger is notice to the prosecutor of the defendant’s

incarceration and a departmental request for final disposition of
the pending charges. The statute does not trigger the running of the
180-day period when the Department of Corrections actually
learns, much less should have learned, that criminal charges were
pending against an incarcerated defendant.” Cleveland Williams,
supra at 259.

The 180-day rule applies only to persons incarcerated in state prisons in

Michigan or in local facilities in Michigan awaiting incarceration in Michigan
state prisons; it has no application to persons serving prison sentences in
foreign countries. People v Mackle, 241 Mich App 583, 605 (2000). A
community corrections center under the control of the Michigan Department
of Corrections is a state correctional facility within the meaning of MCL
780.131. People v McCullum, 201 Mich App 463, 465 (1993).

The 180-day rule does not require that trial be commenced within 180 days
but rather that the prosecutor take good-faith action on the case during the
180-day period and that the prosecutor then proceed promptly to ready the
case for trial. People v Hendershot, 357 Mich 300, 304 (1959). See also
People v Bradshaw, 163 Mich App 500, 505 (1987). If the prosecutor takes
preliminary action within the 180-day period but the initial action is followed
by inexcusable delay that evidences an intent not to bring the case to trial
promptly, the court may find the absence of good-faith action and thus may
order dismissal. Hendershot, supra at 303-304.

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For example, in People v Davis, 283 Mich App 737, 743-744 (2009), the trial
court erred in dismissing the pending charges against the defendant, because
the prosecution commenced proceedings against the defendant within 180
days of receiving notice from the Department of Corrections that the
defendant was incarcerated, thereby satisfying the requirements of MCL
780.131 (prisoner must be brought to trial within 180 days) and MCL 780.133
(dismissal required only if action has not been commenced within 180 days).
“The prosecution made good-faith efforts to proceed promptly with pretrial
proceedings,” and “[t]here [wa]s no indication that any delay in bringing [the]
defendant to trial was inexcusable or demonstrated an intent not to promptly
bring the case to trial.” Davis, supra at 743.

All adjournments without reason and unexplained delays, including docket

congestion, are charged to the prosecution. People v England, 177 Mich App
279, 285 (1989). Short delays related to exceptional circumstances hampering
the normally efficient functioning of the trial court are excusable. People v
Schinzel (After Remand), 97 Mich App 508, 511-512 (1980). Delays beyond
the 180-day period are not charged to the prosecution if caused by the
prosecution’s good-faith action to bring an intervening charge against the
defendant promptly to trial and if the prosecution thereafter acted promptly to
bring the pending case to trial. People v Freeman, 122 Mich App 260, 265
(1982). Delay caused by the prosecution’s interlocutory appeal of a trial
court’s ruling is not charged to the prosecution. Bradshaw, supra. Delay
caused by the trial court’s decision to hold in abeyance a ruling on a defense
motion pending a Supreme Court decision is charged against the prosecution.
People v Farmer, 127 Mich App 472, 477 (1983).

Delays attributable to the defendant, including delays resulting from the filing
of motions by the defense, are not charged against the prosecution in
determining whether the 180-day period has expired. People v Pelkey, 129
Mich App 325, 329 (1983). Delays caused by adjournments to which the
defendant has stipulated are charged to the defendant, as is a delay occasioned
by a defendant’s motion for new counsel. People v Crawford, 232 Mich App
608, 614-615 (1998). The running of the 180-day period is tolled during the
pendency of a defendant’s appeal or application for leave to appeal. People v
Smielewski, 235 Mich App 196, 200 (1999).

6.44 Motion for Change of Venue

Moving Party: Defendant or prosecutor

Burden of Proof: The moving party has the burden to show good cause for a
change of venue. MCL 762.7. The focus is on whether the moving party can
secure a fair and impartial trial in the jurisdiction where the action is brought.
In re Attorney General, 129 Mich App 128, 133 (1983).

Discussion

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Section 6.44

MCL 762.7 provides:

“Each court of record having jurisdiction of criminal cases

upon good cause shown by either party may change the
venue in any cause pending therein, and direct the issue to
be tried in the circuit court of another county.”

A motion for change of venue is addressed to the trial court’s discretion; the
court’s ruling will not be disturbed on review unless there has clearly been a
palpable abuse of discretion. People v Jendrzejewski, 455 Mich 495, 500
(1997). There is an abuse of discretion only if an unprejudiced person would
find no justification or excuse for the ruling. People v DeLisle, 202 Mich App
658, 662 (1993). Convenience of the parties and witnesses in a criminal case
does not constitute good cause for purposes of MCL 762.7. See In re Attorney
General, supra at 133-135.

The preferred practice is that the trial court defer ruling on a motion for
change of venue until after jury selection has been attempted in the original
county. People v Jancar, 140 Mich App 222, 229-230 (1985), and People v
Passeno, 195 Mich App 91, 98 (1992), overruled in part on other grounds 229
Mich App 218 (1998).

Pretrial publicity, standing alone, does not entitle a party to a change of venue.
Passeno, supra. A change of venue is required when there has been such
extensive highly inflammatory pretrial publicity that the entire community
may be presumed to have been both exposed to and prejudiced by it.
Jendrzejewski, supra at 500-501. Where there has been extensive pretrial
publicity about a case, the trial court must ensure that, in voir dire of
prospective jurors, there is no impediment to discovery of possible bias and
prejudice. Id. at 509-510.

The general rule is that, if potential jurors swear that they will put aside
preexisting knowledge and opinions about the case, and that they will be able
to try the case impartially based on the evidence, such pre-existing knowledge
and opinions do not constitute good cause justifying a change of venue.
DeLisle, supra, Passeno, supra at 98-99, and Jancar, supra. Jurors’ sworn
statements of impartiality may be disregarded only in egregious cases of deep
community hostility to the defendant. DeLisle, supra at 663-669. The number
of members of the jury array who were excused because they admitted
prejudice against the defendant may be examined to determine whether
community prejudice was so extensive as to impeach the stated impartiality of
the remaining jurors. Jendrzejewski, supra at 511-514.

See People v Cline, 276 Mich App 634, 641 (2007), where, to determine
whether the defendant’s counsel was ineffective for failing to bring a motion
for change of venue, the Court reviewed the circumstances of the defendant’s
case in light of the standards set forth in People v DeLisle, 202 Mich App 658
(1993), and People v Jendrzejewski, 455 Mich 495 (1997), and concluded that
“because the [trial] court would not have erred in denying a motion to change

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 Monograph 6—Pretrial Motions (2006–August 2009)

venue, defendant was not deprived of his right to a fair trial by defense
counsel’s failure to raise such a motion.”

A district court does not have authority to order a change of venue in a felony
case. In re Attorney General, supra at 131-132.

Part 3—Summary of Individual Motions

6.45 Table Summarizing Individual Motions

The following table summarizes the motions discussed in Part 2 of this

monograph. For each motion, the moving party and burden of proof is
provided. A cross-reference to the section of this monograph in which each
motion is discussed in more detail is also provided.

Motion Moving Party Burden of Proof

Adjournment or Defendant or
Moving party must establish good cause for the adjournment or
Continuance prosecuting
See §6.10 continuance.
attorney
Alibi Defense—
Notice and Defendant has the burden of producing at least some evidence in
Pleading Defendant support of his claim of alibi, possibly sufficient evidence to raise
Requirements a reasonable doubt.
See §6.11
Arrest—Delay Defendant must come forward with evidence of actual and
Resulting in substantial prejudice to his or her right to a fair trial. Several
Prejudice appellate decisions have also required the defendant to show an
See §6.12 Defendant intent by the prosecuting attorney to gain a tactical advantage. If
the defendant makes the required showing, the prosecuting
attorney must persuade the court that the reasons for the delay
outweigh the resulting prejudice.
Bail—Reduction A party seeking modification of a release decision has the burden
or Increase Defendant or of going forward. Prior to arraignment on the information, a court
See §6.13 prosecuting may modify a release decision if there is a substantial reason for
attorney. Court may doing so. At arraignment on the information and afterwards, the
also modify a prior court may review a release decision de novo. A party seeking
release decision. review of a release decision must show that the lower court
abused its discretion in setting bail.
Competency to Defendant. Court or Defendant must prove incompetency by a preponderance of the
Stand Trial prosecuting evidence. A defendant is incompetent to stand trial if he or she is
See §6.14 attorney may also incapable because of his or her mental condition of understanding
raise the issue of the nature and object of the proceedings or of assisting in his or
competency. her defense in a rational manner.
Compulsory
Process or Defendant must show that a witness’s testimony will be material
Appointment of Defendant
and favorable to the defense, that defendant cannot proceed
Expert Witness at safely to trial without the witness’s testimony, and that defendant
Public Expense does not have the funds to pay for subpoenaing the witness.
See §6.15

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Section 6.45

Motion Moving Party Burden of Proof

Confession or
Other Evidence— Defendant must come forward with evidence showing that the
Suppress Because evidence in question was obtained as a result of a statutorily
of Illegal Defendant
unlawful detention. If the defendant does so, the prosecuting
Prearraign-ment
Detention attorney must prove the admissibility of the evidence.
See §6.16
Confession— The prosecuting attorney must prove by a preponderance of the
Suppress Because evidence that a confession was voluntary. A confession is
Involuntary voluntary if it is the product of an essentially free and
See §6.17 Defendant
unconstrained choice by its maker; a confession is involuntary if
the defendant’s will was overborne and his or her capacity for
self-determination critically impaired.
Confession— Before using a defendant’s statements in its case-in-chief, the
Suppress Because prosecution must make an affirmative showing that Miranda
of Miranda warnings were given prior to custodial interrogation and that a
Violation Defendant
proper waiver was obtained. The prosecuting attorney must prove
See §6.18 by a preponderance of the evidence that a waiver was voluntary,
knowing, and intelligent.
Confession— Before using in its case-in-chief a confession deliberately elicited
Suppress Because from an accused following arraignment, the prosecuting attorney
of Violation of Defendant must show that police obtained a voluntary, knowing, and
Right to Counsel intelligent waiver of the Sixth Amendment right to counsel
See §6.19 before they interrogated the accused.
Counsel— Defendant or
Substitution or counsel for
The moving party bears the burden of proof. An indigent
Withdrawal defendant must show good cause for substitution of counsel.
See §6.20 defendant

Discovery The moving party has the burden of proving that the information
See §6.21 sought is necessary to prepare a defense and to ensure a fair trial.
If the defendant seeks privileged or confidential information, he
Defendant, but may or she must demonstrate a good-faith belief, grounded in
also be prosecuting articulable fact, that there is a reasonable probability that the
attorney records are likely to contain material information necessary to the
defense before the court may order an in-camera inspection of
the records. To be entitled to a remedy for a discovery violation,
the moving party must show actual prejudice.
Disqualifi-cation of Defendant or
The moving party has the burden of showing grounds for
Judge disqualification. Parties challenging a judge on the basis of bias,
See §6.22 prosecuting
prejudice, or the right to an impartial tribunal bear a heavy
attorney
burden of establishing those grounds.
Double If the defendant makes a prima facie showing of a violation of the
Jeopardy— Double Jeopardy Clause, a second prosecution is barred unless
Successive the prosecuting attorney can show by a preponderance of the
Prosecutions for evidence why double jeopardy principles do not bar a second
the Same Offense Defendant
prosecution. If the defendant claims that a prosecution in
See §6.23 Michigan is barred by MCL 333.7409, the defendant must prove
by a preponderance of the evidence that the statute bars a second
prosecution.
Double If the defendant makes a prima facie showing of a violation of the
Jeopardy— Double Jeopardy Clause, a second prosecution is barred unless
Multiple Defendant the prosecuting attorney can show by a preponderance of the
Punishments for
the Same Offense evidence why double jeopardy principles do not bar a second
See §6.24 prosecution.

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Motion Moving Party Burden of Proof

Entrapment Defendant
The defendant must prove a claim of entrapment by a
See §6.25 preponderance of the evidence.
Exclusion of Public In cases involving sexual offenses or misconduct, the moving
and Press From Defendant or party must show that the need to protect a victim, witness, or
Preliminary prosecuting defendant outweighs the public’s right of access to the
Examination attorney examination. Denial of access to the examination must be
See §6.26 narrowly tailored to accommodate the interest being protected.
Exclusion of Public The moving party bears a heavy burden of proving a substantial
and Press From probability that 1) prejudicial error depriving the defendant of a
Trial Defendant or
fair trial will result if the trial is open to the press and public, 2)
See §6.27 prosecuting
closure will be effective in dealing with the danger, and 3) no
attorney
alternative short of closure exists that would protect the
defendant’s right to a fair trial.
Fruits of Illegal The defendant must present evidence demonstrating the illegality,
Police Seizure of a establish that the derivative evidence is the “fruit” of the
Person— illegality, and show that a substantial portion of the case against
Suppression him or her is a “fruit of the poisonous tree.” The prosecuting
See §6.28 Defendant attorney must prove by a preponderance of the evidence that the
evidence was free of the primary taint of a defendant’s illegal
arrest, or that the derivative evidence inevitably would have been
discovered by lawful means, or that the evidence was discovered
from a source wholly independent of the illegality.
Guilty Plea— The defendant has a right to withdraw a guilty plea before
Withdrawal sentence if there was an error in the plea proceeding, the court is
See §6.29 unable to follow a sentence agreement or recommendation, or the
court is unable to sentence to an agreed-upon sentence or within a
Defendant specified range. If a plea has been accepted, the defendant must
show that withdrawal is in the interest of justice. If the defendant
makes this showing, the prosecuting attorney must show that
withdrawal will substantially prejudice him or her because of
reliance on the plea.
Identification at If counsel was not present, the prosecutor must establish that the
Trial— procedure was not unduly suggestive. If counsel was present, the
Suppression defendant has the burden of proving that the procedure was
Because of Illegal unduly suggestive. If a violation of the right to counsel occurred
Pretrial or the identification procedure was unduly suggestive, in-court
Identification Defendant
identification of the defendant at trial is precluded unless the
Procedure
prosecuting attorney establishes by a preponderance of the
See §6.30
evidence that the in-court identification is based on observations
of the suspect other than the illegal pretrial identification
procedure.
Impeachment of The prosecutor bears the burden of justifying admission of the
Defendant by evidence. If a prior conviction contains an element of dishonesty
Prior Convictions or false statement, evidence of the prior conviction is admissible
See §6.31 if less than ten years have elapsed since the date of the conviction
or the defendant’s release from confinement, whichever is later.
Prosecuting
The trial court has discretion to admit evidence of prior
attorney
convictions for impeachment purposes if the prior conviction is a
theft offense punishable by imprisonment for more than one year
and the time requirement stated above is satisfied. If the prior
conviction is such a theft offense, the court must balance its
probative value and prejudicial effect.
Impeachment of Defendant or
Defendant by His prosecuting
The general rule is that the party proffering evidence must
or Her Silence establish its admissibility.
See §6.32 attorney

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Section 6.45

Motion Moving Party Burden of Proof

Insanity Defense— The defendant has the burden of proving the defense of insanity
Notice and by a preponderance of the evidence. The trier of fact may find the
Examination defendant guilty but mentally ill if it is shown 1) that the
Requirements defendant is guilty of an offense beyond a reasonable doubt, 2)
See §6.33 Defendant that the defendant has proven by a preponderance of the evidence
that he or she was mentally ill at the time of the commission of
the offense, and 3) that the defendant has not established by a
preponderance of the evidence that he or she was legally insane at
the time of the commission of that offense.
Quash If the defendant challenges the factual sufficiency of the evidence
Information for presented at the preliminary examination, the defendant must
Improper establish that the examining magistrate abused his or her
Bindover Defendant
discretion in binding the defendant over for trial in circuit court.
See §6.34 If the defendant challenges the bindover on legal grounds, the
decision is reviewed for error.
Rape Shield If the defendant in a criminal sexual conduct case proposes to
Statute— offer evidence of the victim’s past sexual conduct with the
Admission of defendant or evidence of specific instances of sexual activity to
Evidence of show the source or origin of semen, pregnancy, or disease, the
Victim’s Prior defendant must file a written motion and offer of proof within 10
Sexual Conduct Defendant
days after arraignment. If the defendant proposes to offer
See §6.35
evidence of a victim’s past sexual conduct with third persons to
preserve his or her right of confrontation, the defendant must
make an offer of proof as to the proposed evidence and
demonstrate its relevance.
Search and The defendant has the burden of proving by a preponderance of
Seizure— the evidence that an affiant knowingly and intentionally or with
Suppression of reckless disregard for the truth inserted false material in the
Evidence Because Defendant
affidavit supporting the search warrant. The defendant also has
of Defective Search
Warrant the burden of establishing his or her standing to challenge the
See §6.36 search and seizure.

Search and The burden of proof is on the prosecution to show that the search
Seizure— and seizure were reasonable and fell under a recognized
Suppression of exception to the warrant requirement. Where the prosecution
Evidence Seized relies on consent to justify a warrantless search and seizure, it has
Without a Search Defendant
the burden to prove by a preponderance of the evidence that the
Warrant consent was unequivocal and specific, and freely and
See §6.37
intelligently given. The defendant has the burden of establishing
his or her standing to challenge the search and seizure.
Separate Trials of When related offenses alleged against two or more defendants are
Multiple joined for trial, a defendant who seeks severance bears the burden
Defendants of clearly, affirmatively, and fully showing that joint trial will
See §6.38 prejudice his or her substantial rights. A defendant may also seek
Defendant or severance of related offenses on the basis that severance is
prosecuting necessary to promote fairness to the parties and a fair
attorney determination of guilt or innocence. If the prosecutor seeks
severance of the trial of multiple defendants charged with related
offenses, he or she must show that severance is necessary to
promote fairness to the parties and a fair determination of guilt or
innocence.
Severance or Joinder or severance of related offenses, joinder of unrelated
Joinder of offenses, and severance of unrelated offenses that the defendant
Multiple Charges Defendant or
has not requested to be severed, may be granted upon a showing
Against a Single prosecuting
that severance or joinder is appropriate to promote fairness to the
Defendant attorney
parties and a fair determination of the defendant’s guilt or
See §6.39 innocence of each offense.

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Motion Moving Party Burden of Proof

Similar Acts The prosecutor must provide reasonable notice of the general
Evidence nature of evidence of other crimes, wrongs, or acts that he or she
See §6.40 intends to introduce at trial, and the rationale for admitting the
evidence. The prosecutor bears the burden of establishing the
Prosecuting
relevance of the proffered evidence. To be admissible, evidence
Attorney
of other acts must be offered for a purpose other than to show
propensity to commit wrongdoing, relevant to an issue or fact of
consequence at trial, and of probative value that is not
substantially outweighed by its prejudicial effect.
Speedy Trial— Where the delay following a defendant’s arrest is less than 18
Dismissal months, the defendant bears the burden of showing prejudice by
See §6.41 Defendant reason of the delay. After a delay of 18 months, prejudice to the
defendant is presumed and the burden shifts to the prosecutor to
rebut the presumption.
Speedy Trial— The moving party has the burden of proof. A felony defendant
Release on who is shown to have been incarcerated for more than 180 days,
Personal and a misdemeanor defendant who is shown to have been
Recognizance incarcerated for more than 28 days, must be released on personal
See §6.42 recognizance, unless the prosecutor shows by clear and
Defendant or
convincing evidence that the defendant is likely either to fail to
prosecuting
appear for future proceedings or to present a danger to any other
attorney
person or the community. The party opposing the motion has the
burden to show good cause for delay. The prosecutor must show
that periods of delay resulting from adjournments requested by
the prosecutor shall not be included in determining whether the
defendant has been incarcerated for the requisite period.
Speedy Trial— In order to invoke the 180-day rule, the defendant must show that
Dismissal or he or she was an inmate of a Michigan correctional facility or in a
Sentence Credit local facility awaiting incarceration in a state prison. Once it is
for Violation of Defendant shown that a defendant covered by the rule has not been brought
180-Day Rule to trial within the 180-day period, the prosecution bears the
See §6.43 burden of establishing good faith in readying the case for trial
during the 180-day period.
Venue—Change Defendant or
The moving party has the burden to show good cause for a
See §6.44 change of venue. The focus is on whether the moving party can
prosecuting
secure a fair and impartial trial in the jurisdiction where the
attorney
action is brought.

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