MJI (Criminal)

CRIMINAL
PROCEEDINGS
BENCHBOOK, VOLUME 1,
REVISED EDITION
Content formerly part of the original MJI Circuit Court
Benchbook and the MJI Criminal Procedure Monograph
Series
•Pretrial Proceedings
•Trial
Cover and Acknowledgments
Title Page
MICHIGAN JUDICIAL INSTITUTE © 2019

Michigan Supreme Court
• The Honorable Bridget Mary McCormack, Chief Justice
• The Honorable David F. Viviano, Chief Justice Pro Tem
• The Honorable Elizabeth T. Clement, MJI Supervising Justice
• The Honorable Stephen J. Markman, the Honorable Brian

K. Zahra, the Honorable Richard H. Bernstein, and the
Honorable Megan K. Cavanagh, Justices
• The Honorable Milton L. Mack, Jr., State Court Administrator
• Mr. Thomas P. Clement, Supreme Court General Counsel
• Mr. Larry S. Royster, Supreme Court Chief of Staff
Michigan Judicial Institute Staff

• Dawn F. McCarty, Director
• Alessa Boes, Research Attorney Specialist
• Amanda Clark, Judicial Education Analyst
• Anne M. DeMarco, Program Assistant
• Rachael Drenovsky, Learning Center Coordinator
• Amy Feinauer, Program Assistant
• Heather Leidi, Administrative Specialist
• Sarah Roth, Publications Manager
• Corrie S. Schmidt-Parker, Research Attorney
• Danielle Stackpole, Research Attorney
• Peter C. Stathakis, Program Manager
• Cathy Weitzel, Training & Development Specialist
Statements in this benchbook represent the professional judgment of

the author and are not intended to be authoritative statements by the
justices of the Michigan Supreme Court. This revised edition was
originally published in December 2017. The first edition of this
benchbook was originally created in 2013 by consolidating materials
ii
that were initially published in 2006, 2009, and 2013. The text has been
revised, reordered, and updated through April 17, 2019.
Acknowledgments
The Criminal Proceedings Benchbook, Volume 1, is part of a two-volume set.

The Criminal Proceedings Benchbook, Volume 1, concerns pretrial and trial
matters, and the Criminal Proceedings Benchbook, Volume 2, concerns
posttrial matters.
This revised edition of the Criminal Proceedings Benchbook, Volume 1, was

authored by MJI Research Attorneys Lisa Schmitz and Kimberly
Muschong and was edited by MJI Publications Manager Sarah Roth. The
author of this edition was greatly assisted by an editorial advisory
committee whose members reviewed draft text and provided valuable
feedback. The members of the editorial advisory committee were:
• The Honorable James M. Biernat, Jr., Chief Judge, 16th

Circuit Court, Macomb County
• The Honorable Kathleen M. Brickley, Chief Judge, Van

Buren County Courts
• The Honorable Miriam Cavanaugh, Chief Judge,

Livingston County Courts
• Brett DeGroff, State Appellate Defender Office, Assistant

Defender
• The Honorable J. Richardson Johnson, 9th Circuit Court,

Kalamazoo County (Retired)
• The Honorable Raymond J. Kostrzewa, Jr., Chief Judge,

60th District Court, Muskegon County
• Donald A. Kuebler, Genesee County Prosecutor’s Office,

Chief, Appellate Division (Retired)
• Bradene Moore, Michigan Judicial Institute (SCAO),

Judicial Education Analyst
• Bobbi Morrow, Trial Court Services (SCAO), District Court

Analyst
iii
• Samuel R. Smith, Michigan Supreme Court
Commissioners’ Office, Commissioner
• Stacy L. Westra, Trial Court Services (SCAO), Circuit Court

Analyst
The Criminal Proceedings Benchbooks, Volumes 1 and 2, derive from the

former MJI Circuit Court Benchbook: Criminal Proceedings and MJI Criminal
Procedure Monograph Series. The information from those publications has
been combined and reorganized to better serve MJI’s core audience.
The MJI Michigan Circuit Court Benchbook was originally authored by

Judge J. Richardson Johnson, 9th Circuit Court. In 2009, the Michigan
Circuit Court Benchbook was revised and broken into three volumes:
Circuit Court Benchbook: Civil Proceedings—Revised Edition; Circuit Court
Benchbook: Criminal Proceedings—Revised Edition; and Evidence Benchbook.
The three volumes were revised by MJI Research Attorneys Sarah Roth
and Lisa Schmitz.
The MJI Criminal Procedure Monograph series formerly contained the

following titles:
• Monograph 1: Issuance of Complaints & Arrest Warrants—

Fourth Edition
• Monograph 2: Issuance of Search Warrants—Fourth Edition
• Monograph 3: Misdemeanor Arraignments & Pleas—Third

Edition
• Monograph 4: Felony Arraignments & Pleas—Third Edition
• Monograph 5: Preliminary Examinations—Third Edition
• Monograph 6: Pretrial Motions—Third Edition
• Monograph 7: Probation Revocation—Fourth Edition
• Monograph 8: Felony Sentencing—Revised Edition
• Monograph 9: Postconviction Proceedings
Former MJI Criminal Procedure Monographs 1-7 were originally authored

in 1992 by MJI staff members Leonhard J. Kowalski, Dawn F. McCarty,
and Margaret Vroman. The 1992 edition was funded in part by a grant
from the W.K. Kellogg Foundation. Subsequent editions of these
monographs were revised by MJI Research Attorneys with the assistance
of an editorial advisory committee.
iv
Former MJI Criminal Procedure Monograph 8 was originally authored by
former MJI Publications Manager Phoenix Hummel. Ms. Hummel and
MJI Research Attorney Lisa Schmitz contributed to the revised edition
and were assisted by an editorial advisory committee. MJI Publications
Manager Sarah Roth served as editor.
Former MJI Criminal Procedure Monograph 9 was originally authored by

MJI Research Attorney Lisa Schmitz. Former MJI Publication Manager,
Phoenix Hummel, served as editor. In addition, Ms. Schmitz was assisted
by an editorial advisory committee.
v
Using This Benchbook
This benchbook is intended for Michigan judges who handle criminal

cases. The purpose of this benchbook is to provide a single source to
address issues that may arise while the judge is on the bench. The
benchbook is designed to be a quick reference, not an academic
discussion. In that context, one of the most difficult challenges is
organizing the text so that the user can readily find any topic as it arises.
This book has underlying themes that may assist the user to understand
the overarching concepts around which the book is organized. This book
is based upon the following concepts:
• The focus is on process rather than substantive law

although substantive law is discussed when important or
necessary to decision-making and the process as a whole.
• The text covers the routine issues that a judge may face and
non-routine issues that require particular care when they
arise.
• The text is intended to include the authority the judge

needs to have at his or her fingertips to make a decision.
• The text is designed to be read aloud or incorporated in a

written decision.
• The text attepmts to identify whether the court’s decision is

discretionary.
With these concepts in mind, the text is organized as follows:
• The format generally follows the sequence of the Michigan

Court Rules and the Michigan Rules of Evidence.
• The format generally follows the typical sequence in which

issues arise during the course of a case.
• At the beginning of each chapter is a table of contents that

lists what is covered in the chapter.
• Sections in each chapter are identified by the word or

phrase typically used to identify the topic (a keyword
concept).
vi
• The discussion of each topic is designed to move from the
general to the specific without undue elaboration.
• If the court is required to consider particular factors when

making a decision, every effort has been made to identify
the necessary elements.
• Every effort has been made to cite the relevant Michigan

law using either the seminal case or the best current
authority for a body of law. United States Supreme Court
decisions are cited when Michigan courts are bound by that
authority and they are the original source. There are
references to federal decisions or decisions from other
states when no applicable Michigan authority could be
located.
• Every effort has been made to cite the source for each
statement. If no authority is cited for a proposition, then the
statement is the committee’s opinion.
• If a proceeding or rule of evidence is based upon a statute,

reference to that authority is given in the text.
The Michigan Judicial Institute (MJI) was created in 1977 by the Michigan
Supreme Court. MJI is responsible for providing educational programs and
written materials for Michigan judges and court personnel. In addition to formal
seminar offerings, MJI is engaged in a broad range of publication activities,
services, and projects that are designed to enhance the professional skills of all
those serving in the Michigan court system. MJI welcomes comments and
suggestions. Please send them to Michigan Judicial Institute, Hall of Justice,
P.O. Box 30048, Lansing, MI 48909. (517) 373–7171.
vii
viii
Table of Contents
Cover and Acknowledgments

Title Page ........................................................................................................... i
Michigan Supreme Court .................................................................................. ii
Michigan Judicial Institute Staff ........................................................................ ii
Acknowledgments ............................................................................................ iii
Using This Benchbook ...................................................................................... vi
Chapter 1: Common Issues Arising in Trial Court Proceedings

1.1 Access to Court Proceedings and Records ........................................... 1-2
A. Record of Proceedings................................................................... 1-2
B. Open or Closed Trial ..................................................................... 1-3
C. Gag Orders .................................................................................... 1-3
D. Access to Court Files and Records ................................................ 1-4
E. Access to Judge ........................................................................... 1-11
F. Standard of Review ..................................................................... 1-12
1.2 Attorney Conduct............................................................................... 1-13
A. Disciplinary Proceedings.............................................................. 1-13
B. Motion to Disqualify Attorney .................................................... 1-14
C. Standard of Review ..................................................................... 1-14
1.3 Contempt of Court ............................................................................. 1-14
1.4 Judicial Disqualification ...................................................................... 1-15
1.5 Pro Se Litigants................................................................................... 1-16
1.6 Interpreters ........................................................................................ 1-17
A. Statutory and Constitutional Rights to Simultaneous
Translation ................................................................................... 1-17
B. Appointment of Interpreter for Deaf or Deaf-Blind Person ....... 1-18
C. Appointment of Foreign Language Interpreters ......................... 1-25
Chapter 2: Criminal Jurisdiction and Venue

2.1 Introduction ......................................................................................... 2-2
2.2 Subject Matter Jurisdiction .................................................................. 2-2
2.3 Territorial Jurisdiction .......................................................................... 2-3
2.4 Personal Jurisdiction ............................................................................ 2-5
2.5 Circuit Court’s Subject Matter Jurisdiction .......................................... 2-7
2.6 Personal Jurisdiction in Circuit Court ................................................... 2-8
2.7 District Court Jurisdiction..................................................................... 2-9
A. Applicable Definitions of Felony and Misdemeanor...................... 2-9
B. Proceedings Over Which District Court Has Jurisdiction ............ 2-10
2.8 Applicable Court Rules ....................................................................... 2-12
A. Misdemeanors (Criminal Cases Cognizable in District Court)...... 2-12
B. Felonies and Circuit Court Misdemeanors (Criminal Cases Cognizable
in Circuit Court) ........................................................................... 2-14
2.9 Overview of District Court Magistrates’ Authority ............................ 2-14
A. Appointment of Counsel.............................................................. 2-15
B. Arrest Warrants and Search Warrants ........................................ 2-16
C. Arraignments and First Appearances ......................................... 2-16
D. Fixing Bail and Accepting Bond ................................................... 2-17
E. Proceedings Involving Civil Infractions, Misdemeanors, and
Ordinance Violations Not Punishable by Imprisonment ............ 2-18
F. Pleas to Enumerated Offenses Punishable by Imprisonment .... 2-18
G. Probable Cause Conferences ...................................................... 2-20
H. Appeal From District Court Magistrate’s Ruling ......................... 2-21
2.10 Record Requirements......................................................................... 2-21
2.11 Venue: General Principles .................................................................. 2-21
2.12 Determination of Proper Venue......................................................... 2-22
A. General Rules Based on Political District and Location of Criminal
Conduct........................................................................................ 2-22
B. Criminal Conduct Near County Boundary Lines .......................... 2-23
C. Acts Occurring at More Than One Location ................................ 2-23
D. Location of Offense Impossible to Determine ............................ 2-27
E. Proceedings in District Court ...................................................... 2-28
2.13 Sufficiency of Evidence to Prove Venue............................................. 2-29
2.14 Motion to Change Venue ................................................................... 2-30
A. Generally...................................................................................... 2-30
B. Timing ......................................................................................... 2-31
2.15 Standard of Review for Venue Error .................................................. 2-32
Chapter 3: Initiating Criminal Proceedings

3.1 Electronic Filing .................................................................................... 3-3
A. Electronic Filing Process ................................................................ 3-4
B. Electronic-Service Process ............................................................ 3-5
C. Transmission Failures .................................................................... 3-5
3.2 Arrest.................................................................................................... 3-6
A. Probable Cause .............................................................................. 3-6
B. Delay Between Crime and Arrest .................................................. 3-6
C. Delay Between Warrantless Arrest and Arraignment ................ 3-10
D. Standard of Review ..................................................................... 3-10
3.3 Complaints and Warrants .................................................................. 3-11
3.4 Filing a Complaint............................................................................... 3-13
A. Persons Who May File a Complaint............................................. 3-13
B. Drafting and Typing a Complaint ................................................ 3-14
C. Required Signatures on a Complaint .......................................... 3-14
3.5 Substantive Requirements of a Complaint......................................... 3-16
A. Nature of the Offense.................................................................. 3-16
B. Date and Place of Offense .......................................................... 3-17
C. Requirements Under the Crime Victim’s Rights Act ................... 3-18
3.6 Finding Probable Cause to Issue Arrest Warrant ............................... 3-20
A. Probable Cause Defined .............................................................. 3-21
B. Evidentiary Support for a Finding of Probable Cause ................. 3-22
C. Record of Testimony and Affidavits ............................................ 3-23
3.7 Issuing an Arrest Warrant .................................................................. 3-24
A. Persons Who May Issue Arrest Warrants.................................... 3-25
B. Determining a Person’s Parolee Status ...................................... 3-25
3.8 Substantive Requirements of Arrest Warrants .................................. 3-27
3.9 Arrest Warrants and Complaints for Juveniles Charged with Specified
Juvenile Violations.............................................................................. 3-28
3.10 Execution of Arrest Warrants............................................................. 3-28
A. Executing an Arrest Warrant ....................................................... 3-28
B. Return on an Arrest Warrant ...................................................... 3-28
C. Execution of Warrant by Electronic Device ................................ 3-29
3.11 Collection of Biometric Data .............................................................. 3-29
A. Biometric Data Collection Requirements .................................... 3-29
B. District Court’s Obligation to Ensure Fingerprinting ................... 3-31
C. Forwarding Biometric Data to the Department of State Police .. 3-31
D. Destruction of Biometric Data and Arrest Card .......................... 3-31
3.12 Information or Indictment ................................................................. 3-35
A. Content ........................................................................................ 3-35
B. Amendments .............................................................................. 3-36
C. Joinder of Counts ........................................................................ 3-37
E. Notice of Intent to Seek Enhanced Sentence ............................. 3-40
3.13 Circumstances Allowing Warrantless Arrests .................................... 3-41
3.14 Alternatives to a Formal Complaint and Arrest Warrant ................... 3-45
A. Appearance Tickets for Non-Misdemeanor Traffic Violations.... 3-45
B. Citations to Appear for Traffic Misdemeanors or Traffic Civil
Infractions ................................................................................... 3-46
C. Summons to Appear ................................................................... 3-49
3.15 Interim Bail......................................................................................... 3-50
3.16 Initiating the Search Warrant Process............................................... 3-50
A. Drafting and Typing the Documents............................................ 3-51
B. Signature of Prosecuting Official ................................................ 3-51
C. Neutral and Detached Magistrate .............................................. 3-52
D. Authority to Issue Search Warrants ............................................ 3-53
E. Review of Decision to Issue Search Warrant .............................. 3-54
3.17 Description of the Place to be Searched ............................................ 3-55
A. Specific Description of Premises to be Searched......................... 3-55
B. Scope of Premises Search and Seizure ....................................... 3-56
3.18 Description of the Person to be Searched, Searched For, and/or
Seized ................................................................................................. 3-57
A. Persons to be Searched ............................................................... 3-57
B. Persons to be Searched For and/or Seized ................................. 3-58
3.19 Description of Property to be Seized ................................................. 3-58
A. Descriptions Sufficient................................................................. 3-59
B. Descriptions Insufficient ............................................................. 3-59
3.20 Property Subject to Seizure................................................................ 3-60
3.21 Probable Cause .................................................................................. 3-61
A. Probable Cause Defined .............................................................. 3-61
B. Staleness ..................................................................................... 3-62
3.22 Anticipatory Search Warrant.............................................................. 3-64
3.23 Affidavit.............................................................................................. 3-64
A. Requirements .............................................................................. 3-64
B. Validity ........................................................................................ 3-65
C. Affidavits Based upon Hearsay Information ............................... 3-66
3.24 Invalidity of Search Warrant and Suppression of Evidence ............... 3-69
3.25 Verifying and Executing the Affidavit................................................. 3-70
A. Affiant’s Signature Requirement ................................................. 3-71
B. Judge’s or District Court Magistrate’s Signature Requirement .. 3-71
C. Information in Affidavit and Supplementation with Oral
Statements .................................................................................. 3-71
3.26 Submission of Affidavit and Issuance of Search Warrant by Electronic
Device................................................................................................. 3-72
3.27 Issuance of Search Warrant in Operating While Intoxicated/Operating
While Visibly Impaired Cases ............................................................. 3-73
3.28 Issuance of Search Warrants for Electronic Communications ........... 3-76
3.29 Executing the Search Warrant ........................................................... 3-77
A. Knock-and-Announce .................................................................. 3-77
B. Required Actions Upon Seizure of Property ............................... 3-78
3.30 Public Access to Search Warrant Affidavits........................................ 3-80
3.31 Grand Jury .......................................................................................... 3-80
A. One-Person Grand Jury................................................................ 3-81
B. Citizen Grand Jury ....................................................................... 3-81
C. Multicounty Grand Jury .............................................................. 3-82
D. Oath for the Grand Jury .............................................................. 3-83
E. Right to Counsel .......................................................................... 3-83
F. Rules of Evidence ........................................................................ 3-84
G. Discovery .................................................................................... 3-84
H. Investigative Subpoenas ............................................................. 3-84
Chapter 4: Right to Counsel, Waiver of Counsel, and Forfeiture of

Counsel
4.1 Introduction ......................................................................................... 4-2
4.2 Constitutional Rights to Counsel .......................................................... 4-2
A. Actual Imprisonment ..................................................................... 4-3
B. Counsel of Choice ......................................................................... 4-3
C. Standard of Review ....................................................................... 4-4
4.3 Multiple Representation of Defendants .............................................. 4-4
4.4 Right to Appointed Counsel Under the Michigan Indigent Defense
Commission Act.................................................................................... 4-5
A. Advice of the Right to Counsel ...................................................... 4-7
B. Screening for Eligibility for Appointed Counsel ............................ 4-8
C. Appointment of Counsel ............................................................. 4-12
D. Bond and Right to Counsel ......................................................... 4-13
E. Review of Determination of Eligibility ........................................ 4-13
F. Effective Assistance of Counsel .................................................. 4-13
G. Collection of Contribution or Reimbursement from Partially Indigent
Individuals ................................................................................... 4-14
H. Standard of Review ..................................................................... 4-15
4.5 Scope of Counsel’s Responsibilities ................................................... 4-15
A. Responsibilities at Trial ................................................................ 4-15
B. Responsibilities on Appeal .......................................................... 4-15
C. Responsibilities at Grand Jury Proceedings ................................ 4-16
4.6 Substitution or Withdrawal of Counsel.............................................. 4-16
A. Good Cause.................................................................................. 4-17
B. Procedure ................................................................................... 4-18
4.7 Removal of Counsel............................................................................ 4-18
4.8 Withdrawal of Assigned Appellate Counsel ....................................... 4-19
4.9 Valid Waiver of Right to Counsel........................................................ 4-19
A. Right of Self-Representation........................................................ 4-19
B. Scope of Right ............................................................................. 4-20
C. Requirements for Valid Waiver .................................................. 4-21
4.10 Advice at Subsequent Proceedings .................................................... 4-25
4.11 Standby Counsel................................................................................. 4-26
4.12 Doctrine of Forfeiture of Counsel ...................................................... 4-26
4.13 Forfeiture of Right to Counsel and Presumption of Prejudice ........... 4-28
Chapter 5: District Court Arraignments

5.1 Introduction ......................................................................................... 5-2
5.3 Applicable Court Rules ......................................................................... 5-5
A. Misdemeanors (Criminal Cases Cognizable in District Court)........ 5-6
B. Felonies and Circuit Court Misdemeanors (Criminal Cases Cognizable
in Circuit Court) ............................................................................. 5-7
5.4 Overview of District Court Magistrates’ Authority .............................. 5-8
A. District Court Magistrates May Exercise Only Expressly-Granted
Authority........................................................................................ 5-8
B. Videoconferencing Technology .................................................... 5-9
C. Appointment of Counsel ............................................................... 5-9
D. Arrest Warrants and Search Warrants ........................................ 5-10
E. Arraignments and First Appearances ......................................... 5-10
F. Fixing Bail and Accepting Bond ................................................... 5-11
G. Proceedings Involving Civil Infractions, Misdemeanors, and
Ordinance Violations Not Punishable by Imprisonment ............ 5-12
H. Pleas to Enumerated Offenses Punishable by Imprisonment .... 5-12
I. Probable Cause Conferences ...................................................... 5-14
J. Appeal From District Court Magistrate’s Ruling ......................... 5-15
5.6 Right to a Prompt Arraignment.......................................................... 5-16
A. Arraignment “Without Unnecessary Delay”................................ 5-16
B. Consequences of a Lengthy Delay .............................................. 5-18
5.7 Location of Arraignment .................................................................... 5-20
A. Video and Audio Technology ....................................................... 5-20
B. Arraignment on Arrest by Warrant ............................................. 5-21
C. Arraignment on Arrest Without a Warrant ................................ 5-25
5.8 Fingerprinting..................................................................................... 5-29
5.9 Waiver of Rights ................................................................................. 5-29
A. Right to Arraignment ................................................................... 5-29
B. Right to Counsel .......................................................................... 5-30
5.10 Required Advice of Rights and Procedures at Misdemeanor
Arraignment ....................................................................................... 5-31
5.11 Right To Counsel................................................................................. 5-32
5.12 Entering a Plea at Arraignment .......................................................... 5-33
5.13 Pretrial Release .................................................................................. 5-34
5.14 Misdemeanor Traffic Violations and Appearance Tickets.................. 5-34
A. Beginning a Misdemeanor Traffic Case ....................................... 5-34
B. Arraignment on a Misdemeanor Traffic Citation ........................ 5-35
C. Conducting Hearings on Contested Cases .................................. 5-36
D. Appearance Tickets ..................................................................... 5-36
5.15 Violations of the Marine Safety Act ................................................... 5-37
A. Arraignment After a Warrantless Arrest ..................................... 5-38
B. Written Notice To Appear After a Warrantless Arrest ............... 5-39
5.16 A Crime Victim’s Rights Following Misdemeanor Arraignment ......... 5-39
5.17 Procedure Required for Felony Arraignments in District Court ......... 5-42
5.19 Advice of Right to Counsel at Felony Arraignments........................... 5-45
5.20 Scheduling the Probable Cause Conference and Preliminary
Examination ....................................................................................... 5-47
5.21 Juvenile Proceedings in District Court................................................ 5-49
A. Arraignments in “Automatic Waiver” Cases................................ 5-49
B. Procedure Required for Juvenile Arraignments in District Court 5-50
C. Juvenile Pretrial Release ............................................................. 5-51
5.22 A Crime Victim’s Rights Following Felony Arraignment ..................... 5-52
Chapter 6: Pleas
6.1 Introduction ......................................................................................... 6-4
6.2 Competency to Enter a Plea................................................................. 6-4
6.3 Sentence Bargaining............................................................................. 6-5
A. Sentence Agreements and Recommendations ............................. 6-5
B. Court’s Refusal To Accept a Plea or Plea Agreement ................. 6-12
C. Violations of a Sentence Agreement or Recommendation ........ 6-12
D. Ineffective Assistance of Counsel During Plea Bargain
Negotiation ................................................................................. 6-16
6.4 Guilty Pleas and Nolo Contendere Pleas............................................ 6-17
A. Guilty Pleas .................................................................................. 6-17
B. Nolo Contendere (No Contest) Pleas .......................................... 6-18
C. Unconditional Pleas .................................................................... 6-19
D. Conditional Pleas ........................................................................ 6-20
E. Plea to Lesser Offense ................................................................ 6-21
6.5 General Accurate, Understanding, and Voluntary Plea
Requirements..................................................................................... 6-21
6.6 Specific Required Advice of Rights at Plea Proceedings..................... 6-24
A. Advice About the Right To Counsel ............................................. 6-24
B. Advice About the Right to Trial ................................................... 6-25
C. Jaworski Rights ............................................................................ 6-26
D. Method of Recital ....................................................................... 6-27
E. Substantial Compliance with Rule Requirements ....................... 6-29
6.7 Deferral .............................................................................................. 6-32
A. Taking Plea Under Advisement.................................................... 6-32
B. Deferred Adjudication Provisions and Problem-Solving Courts . 6-33
6.8 Admissibility of Pleas and Plea Discussions........................................ 6-39
6.9 Appealing a Plea-Based Conviction .................................................... 6-40
A. Application for Leave to Appeal .................................................. 6-40
B. Appointment of Appellate Counsel ............................................ 6-41
C. Appeal Following the Execution of an Appeal Waiver ................ 6-43
D. No Appeal on Grounds Related to Factual Guilt or Nonjurisdictional
Defects ........................................................................................ 6-43
E. Appeals Challenging the Constitutionality of the Underlying
Statute ........................................................................................ 6-44
6.10 Collateral Attack on Uncounseled Plea or Conviction Used for Purpose of
Enhancing Charge or Sentence .......................................................... 6-44
6.11 Introduction ....................................................................................... 6-46
A. Available Pleas ............................................................................. 6-46
B. Applicable Court Rules ................................................................ 6-46
6.12 Authority of District Court Judges and Magistrates to Accept
Misdemeanor Pleas............................................................................ 6-46
6.13 Record Requirements for Plea Proceedings....................................... 6-48
6.14 Entering a Plea ................................................................................... 6-48
A. Standing Mute or Pleading Not Guilty......................................... 6-48
B. Pleading Guilty or Nolo Contendere ........................................... 6-49
C. Written Plea of Guilty or Nolo Contendere ................................ 6-49
6.15 Guilty and Nolo Contendere Pleas ..................................................... 6-50
6.16 Required Advice of Rights at Plea Proceedings.................................. 6-51
A. Advice About the Right To Counsel ............................................. 6-51
B. Waiver of Constitutional Trial Rights .......................................... 6-51
C. Advice About Possible Sentence ................................................. 6-54
6.17 Plea Must Be Understanding, Voluntary, and Accurate..................... 6-54
A. Accurate Plea ............................................................................... 6-54
B. Understanding Plea .................................................................... 6-55
C. Voluntary Plea ............................................................................. 6-55
6.18 Misdemeanor Pleas Under Michigan Vehicle Code, § 625 ................ 6-56
6.19 Marine Safety Act Pleas ..................................................................... 6-56
6.20 Refusing To Accept a Plea or Plea Agreement ................................... 6-57
6.21 Withdrawing or Challenging a Plea .................................................... 6-57
A. Timing of Motion to Withdraw Plea ............................................ 6-57
B. Standards for Withdrawal of Pleas ............................................. 6-57
C. Appeal ......................................................................................... 6-58
6.22 Authority of District Court Judges to Accept Felony Pleas................. 6-59
6.23 Available Pleas.................................................................................... 6-60
6.24 Plea of Guilty or Nolo Contendere ..................................................... 6-61
A. Plea Procedure and Advice of Rights ........................................... 6-61
B. Understanding, Voluntary, and Accurate Plea Requirements .... 6-63
6.25 Plea of Guilty but Mentally Ill............................................................. 6-66
6.26 Plea of Not Guilty by Reason of Insanity ............................................ 6-67
6.27 Refusing to Accept a Defendant’s Plea .............................................. 6-68
6.28 Withdrawal of a Plea.......................................................................... 6-68
A. Withdrawal of Plea Before Acceptance....................................... 6-68
B. Withdrawal of Plea After Acceptance But Before Sentencing .... 6-69
C. Withdrawal of Plea After Sentencing ......................................... 6-73
D. Divisibility of Multiple Pleas Arising From Single Plea
Agreement .................................................................................. 6-75
E. Effect of Withdrawal or Vacation of Plea ................................... 6-77
F. Inadmissibility of Withdrawn Plea .............................................. 6-77
G. Appealing a Guilty Plea ............................................................... 6-77
H. Standard of Review ..................................................................... 6-79
I. Defects in Previous Plea-Based Conviction May Not Necessarily
Invalidate Its Use to Enhance Future Offenses ........................... 6-79
Chapter 7: Probable Cause Conferences, Preliminary Examinations,

and Bindover
7.1 Introduction ......................................................................................... 7-3
7.2 District Court Jurisdiction in Felony Pretrial Proceedings .................... 7-3
A. Introduction................................................................................... 7-3
B. Jurisdiction and Duties of District Court Magistrates in Pre-Bindover
Proceedings .................................................................................. 7-6
Examination ......................................................................................... 7-7
7.4 Joint Probable Cause Conference and/or Preliminary Examination for
Codefendants ....................................................................................... 7-8
7.5 Probable Cause Conference ................................................................. 7-8
7.6 Pleas ................................................................................................... 7-10
7.7 Right to a Preliminary Examination.................................................... 7-10
A. General Provisions ....................................................................... 7-10
B. Right to Preliminary Examination on New Charges Added By
Amendment of Information ........................................................ 7-11
C. No Right to Preliminary Examination Following Grand Jury
Indictment .................................................................................. 7-12
D. No Right to Preliminary Examination for Fugitive From Justice . 7-12
E. Juvenile’s Right to a Preliminary Examination ............................ 7-12
7.8 Waiver of Preliminary Examination ................................................... 7-14
A. Waiver of Examination Without Counsel and Remand for
Examination ................................................................................. 7-15
B. Waiving the Right to Preliminary Examination by Entering a
Plea ............................................................................................. 7-16
C. Waiver of Examination in Problem-Solving Courts ..................... 7-16
7.9 Jurisdiction and Venue ....................................................................... 7-17
A. Jurisdiction of Preliminary Examination and Attendant Hearings 7-17
B. Venue for Preliminary Examination ............................................ 7-18
7.10 Persons Who May Conduct Preliminary Examinations ...................... 7-19
7.11 Timing of Preliminary Examinations................................................... 7-20
A. Immediate Commencement of Preliminary Examination for Purpose
of Taking Victim Testimony ......................................................... 7-21
B. Adjournment, Continuance, or Delay of Preliminary
Examination ................................................................................ 7-21
7.12 Discovery Before or at Preliminary Examination ............................... 7-24
7.13 Subpoenas to Compel Attendance at Preliminary Examination ........ 7-24
7.14 Right to Counsel at Preliminary Examinations ................................... 7-26
A. Authorities Establishing Right to Counsel.................................... 7-26
B. Advice by Court at Preliminary Examination of Defendant’s Right to
Counsel ....................................................................................... 7-26
C. Appointment of Counsel at Preliminary Examination ................ 7-27
D. Waiver of Right to Counsel ......................................................... 7-27
E. Deprivation of Counsel at Preliminary Examination ................... 7-29
7.15 Closure of Preliminary Examination to Members of the Public ......... 7-30
7.16 Sequestration of Witnesses ............................................................... 7-31
7.17 Probable Cause Inquiry and Applicable Evidentiary Standards at
Preliminary Examination .................................................................... 7-32
A. Admission of Evidence in Preliminary Examination..................... 7-34
B. Examination of Witnesses .......................................................... 7-38
C. Corpus Delicti Rule ...................................................................... 7-39
7.18 Victims’ Rights at Preliminary Examination ....................................... 7-40
A. Notice Requirements................................................................... 7-40
B. Separate Waiting Areas .............................................................. 7-40
C. Limitations on Testimony Identifying a Victim’s Address, Place of
Employment, or Other Information ............................................ 7-40
D. Immediate Commencement of Preliminary Examination for Purpose
of Taking Victim Testimony ........................................................ 7-41
7.19 Order for Competency Evaluation at Preliminary Examination ......... 7-42
7.20 Communicable Disease Testing and Examination.............................. 7-43
A. Mandatory Testing or Examination ............................................. 7-43
B. Expedited Examination or Testing for Criminal Sexual Conduct
Offenses ...................................................................................... 7-44
7.21 Record of Preliminary Examination.................................................... 7-45
7.22 Transcript of Testimony ..................................................................... 7-45
7.23 Bindover Following Preliminary Examination .................................... 7-46
A. Bindover After Waiver ................................................................. 7-46
B. Bindover After Finding of Probable Cause .................................. 7-47
C. Bindover on a Greater Offense ................................................... 7-47
D. Bindover on a Lesser Offense ..................................................... 7-47
E. Bindover When Defendant Is Charged With Open Murder ........ 7-48
F. Jurisdiction of District Court Following Bindover ....................... 7-48
G. Remand to District Court Following Bindover ............................ 7-50
H. Prosecutor’s Appeal to Circuit Court .......................................... 7-52
7.24 Setting Case for Trial When There Is Probable Cause to Believe That
Defendant Committed a Misdemeanor ............................................. 7-52
7.25 Discharge of Defendant and Prosecutor’s Right to Bring New
Charges............................................................................................... 7-53
7.26 Bindover Certificate and Return......................................................... 7-54
7.27 Ordering Pretrial Release at the Conclusion of Preliminary
Examination ....................................................................................... 7-54
7.28 Circuit Court Review of Error at Preliminary Examination................. 7-55
A. Motion to Dismiss........................................................................ 7-55
B. Prosecutor’s Appeal to Circuit Court .......................................... 7-55
7.29 Circuit Court Arraignment.................................................................. 7-56
A. Introduction................................................................................. 7-56
B. Waiver of Arraignment ............................................................... 7-56
C. Elimination of Circuit Court Arraignment by Local Administrative
Order ........................................................................................... 7-57
D. Scheduling the Circuit Court Arraignment .................................. 7-58
E. Circuit Court Arraignment in District Court ................................ 7-58
F. Circuit Court Arraignment Procedures ....................................... 7-59
G. Felony Plea in District Court ....................................................... 7-60
Chapter 8: Pretrial Release

8.1 Right to Pretrial Release....................................................................... 8-2
8.2 Types of Pretrial Release...................................................................... 8-3
A. Personal Recognizance ................................................................. 8-3
B. Conditional Release ...................................................................... 8-5
C. Money Bail .................................................................................... 8-7
D. Interim Bond ................................................................................. 8-9
8.3 Denial of Pretrial Release ................................................................... 8-15
A. Generally...................................................................................... 8-15
B. Custody Hearing .......................................................................... 8-16
8.4 Rationale for Decision ........................................................................ 8-17
8.5 Review of Release Decision................................................................ 8-18
A. Appeals ........................................................................................ 8-18
B. Modification of Release Decision ............................................... 8-19
C. Emergency Release ..................................................................... 8-19
8.6 Bond Forfeiture .................................................................................. 8-20
A. Default, Arrest of Accused, and Release of Surety ...................... 8-20
B. Setting Aside Bond Forfeiture ..................................................... 8-23
8.7 Termination of Release Order............................................................ 8-26
8.8 Revocation of Release on Conviction................................................. 8-26
8.9 Release Pending Appeal ..................................................................... 8-27
8.10 Standard of Review ............................................................................ 8-27
Chapter 9: Pretrial Matters

9.1 Introduction ......................................................................................... 9-2
9.2 Pretrial Procedures—Generally ........................................................... 9-2
A. Form of Motions ............................................................................ 9-2
B. Time for Service and Filing of Motions and Responses ................ 9-3
C. Pretrial Conferences ..................................................................... 9-4
D. Evidentiary Hearing ...................................................................... 9-4
E. Timing of Disposition .................................................................... 9-5
9.3 Discovery.............................................................................................. 9-6
A. Mandatory Disclosure.................................................................... 9-6
B. Discovery of Information Known to the Prosecuting Attorney .... 9-8
C. Prohibited Discovery ..................................................................... 9-9
D. Excision ....................................................................................... 9-10
E. Protective Orders ........................................................................ 9-11
F. Timing of Discovery .................................................................... 9-11
G. Copies ......................................................................................... 9-11
H. Continuing Duty to Disclose ........................................................ 9-11
I. Modification ............................................................................... 9-12
J. Violation ...................................................................................... 9-12
9.4 Bill of Particulars ................................................................................ 9-15
9.5 Witnesses ........................................................................................... 9-15
A. Witness Disclosure....................................................................... 9-15
B. Amending Witness List ............................................................... 9-17
C. Defendant’s Right to Present Witnesses .................................... 9-17
9.6 Adjournment or Continuance ............................................................ 9-21
A. Generally...................................................................................... 9-21
B. Considerations ............................................................................ 9-21
9.7 Motions for Rehearing or Reconsideration........................................ 9-23
9.8 Joinder and Severance ....................................................................... 9-24
A. Single Defendant ......................................................................... 9-24
B. Multiple Defendants ................................................................... 9-26
C. Use of Dual Juries as an Alternative to Severance ...................... 9-28
9.9 Motion to Dismiss .............................................................................. 9-28
9.10 Double Jeopardy Issues...................................................................... 9-29
A. Generally...................................................................................... 9-29
B. Multiple Prosecutions for the Same Offense .............................. 9-29
C. Multiple Punishments for the Same Offense .............................. 9-37
9.11 Speedy Trial........................................................................................ 9-41
A. Right to a Speedy Trial ................................................................. 9-41
B. Length of the Delay ..................................................................... 9-42
C. Reasons for the Delay ................................................................. 9-42
D. Assertion of the Right ................................................................. 9-43
E. Resulting Prejudice ..................................................................... 9-43
F. Recognizance Release ................................................................. 9-43
G. Untried Charges Against State Prisoners—180-Day Rule ........... 9-45
H. Extradition and Detainers ........................................................... 9-47
I. Standard of Review ..................................................................... 9-47
9.12 Motion to Suppress Evidence ............................................................ 9-48
A. Timing .......................................................................................... 9-48
B. Evidentiary Hearing .................................................................... 9-48
C. Interlocutory Appeal ................................................................... 9-48
9.13 Motion to Suppress Identification of Defendant ............................... 9-49
A. Generally...................................................................................... 9-49
B. Right to Counsel .......................................................................... 9-51
C. Evaluating a Lineup’s Suggestiveness ......................................... 9-52
D. Photo Lineup ............................................................................... 9-53
E. Defendant’s Request for a Lineup .............................................. 9-55
F. Standard of Review ..................................................................... 9-56
Chapter 10: Mens Rea Requirements and Selected Defenses

10.1 Mens Rea and Criminal Liability ......................................................... 10-2
A. Applicability ................................................................................. 10-2
B. General Criminal Liability Standards ........................................... 10-2
C. Strict Liability .............................................................................. 10-3
D. Degree of Culpability Satisfying Intent, Knowledge, or Recklessness
Requirement ............................................................................... 10-3
E. Unspecified Mens Rea ................................................................ 10-3
F. Voluntary Intoxication ................................................................ 10-4
10.2 Defenses Involving a Defendant’s Mental Status............................... 10-4
A. Competence To Stand Trial.......................................................... 10-4
B. Insanity and Criminal Responsibility ......................................... 10-12
C. Guilty but Mentally Ill ............................................................... 10-17
D. Diminished Capacity ................................................................. 10-18
E. Intoxication as a Defense .......................................................... 10-19
10.3 Entrapment ...................................................................................... 10-22
A. Generally.................................................................................... 10-22
B. Hearing ..................................................................................... 10-22
C. Test for Entrapment .................................................................. 10-22
D. Entrapment by Estoppel ........................................................... 10-24
E. Standard of Review ................................................................... 10-25
10.4 Alibi Defense .................................................................................... 10-25
A. Notice and Timing...................................................................... 10-25
B. Failure to Provide Timely Notice ............................................... 10-26
C. Impeachment with Alibi Notice ................................................ 10-27
D. Cross-Examination of Alibi Witness .......................................... 10-28
E. Jury Instruction ......................................................................... 10-28
F. Standard of Review ................................................................... 10-29
Chapter 11: Fourth Amendment Search and Seizure Issues

11.1 Suppression of Evidence on Fourth Amendment Grounds–Generally 11-2
11.2 Collection of Data by a Federal Agency.............................................. 11-3
11.3 Existence of a Search or Seizure......................................................... 11-4
11.4 Standing Generally (Expectation of Privacy) ...................................... 11-9
11.5 Exceptions to the Warrant Requirement ......................................... 11-11
A. Exigent Circumstances: Hot Pursuit, Emergency Aid, and Community
Caretaking Exceptions ............................................................... 11-11
B. Search Incident to Arrest .......................................................... 11-15
C. Automobile Exception .............................................................. 11-18
D. Inventory Search ....................................................................... 11-18
E. Investigatory Stop—Terry Stop ................................................. 11-19
F. Consent ..................................................................................... 11-20
G. Special Needs, Inspections, Border Searches, and Regulatory
Searches ................................................................................... 11-24
11.6 Location of the Search...................................................................... 11-25
A. Dwelling Searches...................................................................... 11-25
B. Automobile Searches/Seizures ................................................. 11-32
C. School Searches ........................................................................ 11-43
D. Prison or Jail Searches .............................................................. 11-44
E. The Use of Roadblocks/Checkpoints ........................................ 11-45
11.7 Searching a Parolee or Probationer ................................................. 11-45
11.8 Exclusionary Rule ............................................................................. 11-46
A. Exceptions Involving the Causal Relationship Between the
Unconstitutional Act and the Discovery of the Evidence .......... 11-46
B. Good Faith Doctrine .................................................................. 11-52
C. Statutory Violations .................................................................. 11-55
11.9 Standard of Review .......................................................................... 11-55
Chapter 12: Trial

12.1 Overview of Trial Rights ..................................................................... 12-2
12.2 Jury Trial or Jury Waiver..................................................................... 12-2
A. Right to a Jury Trial ...................................................................... 12-2
B. Waiver of a Jury Trial .................................................................. 12-2
12.3 Bench Trial.......................................................................................... 12-5
A. Is Disqualification An Issue? ........................................................ 12-5
B. Pretrial Motions in a Bench Trial ................................................ 12-5
C. Evidentiary Issues in a Bench Trial .............................................. 12-6
D. Court View .................................................................................. 12-6
E. Motion for Acquittal ................................................................... 12-7
F. Findings and Judgment ............................................................... 12-7
G. Standard of Review ..................................................................... 12-8
12.4 Open or Closed Trial........................................................................... 12-8
12.5 Jury Selection ..................................................................................... 12-9
A. Representative Cross-Section...................................................... 12-9
B. Number of Jurors ...................................................................... 12-11
C. Identity of Jurors ....................................................................... 12-13
D. Voir Dire .................................................................................... 12-13
E. Removal or Substitution of a Juror at Trial ............................... 12-23
F. Substitution of Judges After Voir Dire ...................................... 12-24
12.6 Oaths or Affirmations....................................................................... 12-24
A. Juror Oath Before Voir Dire ....................................................... 12-24
B. Juror Oath Following Selection ................................................. 12-25
C. Oath for Bailiff Before Deliberation .......................................... 12-26
D. Oath for Witnesses ................................................................... 12-27
E. Oath for Interpreter .................................................................. 12-28
F. Child Witness ............................................................................ 12-28
12.7 Subpoenas........................................................................................ 12-29
A. In General .................................................................................. 12-29
B. Subpoena Duces Tecum (Subpoena for Production of
Evidence) .................................................................................. 12-30
C. Motion to Quash Subpoena ...................................................... 12-30
12.8 Conducting the Trial ......................................................................... 12-30
A. Duty of Court to Control Proceedings ....................................... 12-30
B. Stipulations ............................................................................... 12-30
C. Opening Statement ................................................................... 12-31
D. Interim Commentary ................................................................ 12-32
E. Witness Examination ................................................................ 12-32
F. Questions or Comments by Judge ............................................ 12-37
G. Closing Argument ..................................................................... 12-39
H. Claims of Prosecutorial Error and Attorney Misconduct
During Trial ............................................................................... 12-45
I. Summation of Evidence by Court ............................................. 12-50
12.9 Issues Affecting the Jury During Trial ............................................... 12-50
A. Reference Document................................................................. 12-50
B. Jury Note Taking ....................................................................... 12-50
C. Jury Questions .......................................................................... 12-51
D. Jury View of Property or Place .................................................. 12-51
E. Prohibited Jury Actions ............................................................. 12-53
12.10 Defendant’s Conduct and Appearance at Trial ................................ 12-53
A. Presumption of Innocence......................................................... 12-53
B. Right to Be Present .................................................................. 12-56
C. Right to Testify .......................................................................... 12-58
D. Medication ................................................................................ 12-58
12.11 Directed Verdict ............................................................................... 12-59
A. Rule............................................................................................ 12-59
B. Test Applied by the Court ......................................................... 12-59
C. Double Jeopardy Implications .................................................. 12-60
D. Standard of Review .................................................................. 12-61
12.12 Jury Instructions ............................................................................... 12-61
A. Generally.................................................................................... 12-61
B. Model Jury Instructions ............................................................ 12-62
C. Request for Instructions ........................................................... 12-63
D. Preliminary Instructions ............................................................ 12-64
E. Interim Instructions .................................................................. 12-65
F. Final Instructions ...................................................................... 12-65
G. Jurors’ Questions About Instructions and Clarifications ........... 12-65
H. Instructions on Lesser Included Offenses ................................. 12-66
I. Objections to the Instructions and Preservation of Error ......... 12-73
J. Instructional Error and Standard of Review ............................. 12-75
12.13 Jury Matters During Deliberations ................................................... 12-78
A. Separation or Sequestration of the Jury.................................... 12-78
B. Communication with the Jury ................................................... 12-78
C. Materials in Jury Room and Juror Exposure to Extraneous
Evidence .................................................................................... 12-80
D. Requests to Review Testimony or Evidence ............................. 12-82
12.14 Hung Jury.......................................................................................... 12-82
A. Instructions ................................................................................ 12-82
B. Discharge of Hung Jury and Mistrial ......................................... 12-84
C. Multiple Defendants ................................................................. 12-85
D. Multiple Charges—Verdict on One or More Counts But
Not All ....................................................................................... 12-85
E. Standard of Review ................................................................... 12-86
12.15 Verdict.............................................................................................. 12-86
A. Unanimity Requirement and Alternate Theories of the
Offense ...................................................................................... 12-86
B. Inconsistent and Mutually Exclusive Verdicts ........................... 12-88
C. Several Counts .......................................................................... 12-90
D. Use of Special Verdicts .............................................................. 12-90
E. Polling ....................................................................................... 12-91
12.16 No-Impeachment Rule ..................................................................... 12-92
12.17 Mistrial and Double Jeopardy Implications of Mistrial Declaration. 12-93
A. Determination and Permissibility of Retrial .............................. 12-93
B. Retrial Following Mistrial Due to Hung Jury ............................. 12-94
C. Examples of Other Common Bases for Mistrial Motions .......... 12-95
D. Standard of Review ................................................................... 12-96
Glossary
Chapter 1: Common Issues Arising in Trial
Court Proceedings
1.1 Access to Court Proceedings and Records ........................................... 1-2

1.2 Attorney Conduct............................................................................... 1-13
1.3 Contempt of Court ............................................................................. 1-14
1.4 Judicial Disqualification ...................................................................... 1-15
1.5 Pro Se Litigants................................................................................... 1-15
1.6 Interpreters ........................................................................................ 1-17
Michigan Judicial Institute Page 1-1

Section 1.1 Criminal Proceedings Benchbook, Vol. 1, Revised Ed.
1.1 Access to Court Proceedings and Records
A. Record of Proceedings
MCR 8.108(B)(1) states that a “court reporter or recorder shall attend
the court sessions under the direction of the court and take a verbatim
record of the following:
“(a) the voir dire of prospective jurors;
(b) the testimony;
(c) the charge to the jury;
(d) in a jury trial, the opening statements and final

arguments;
(e) the reasons given by the court for granting or

refusing any motion made by a party during the course
of a trial; and
(f) opinions and orders dictated by the court and other

matters as may be prescribed by the court.”
MCR 8.108(E) states in part that “[t]he court reporter or recorder shall
furnish without delay, in legible English, a transcript of the records
taken by him or her (or any part thereof) to any party on request.”
MCR 8.109(A) indicates that a trial court is “authorized to use audio

and video recording equipment for making a record of court
proceedings” if the equipment meets the standards published by the
State Court Administrative Office (SCAO)1 or is analog equipment
that SCAO has approved for use. In addition, trial courts that use
audio or video recording equipment “must adhere to the audio and
video recording operating standards published by [SCAO].” MCR
8.109(B).
Occasionally, proceedings occur without a court reporter present, or

with a recording system that was not turned on or did not function
correctly. MCR 7.210(B)(2) provides specific steps for an appellant to
follow “[w]hen a transcript of the proceedings in the trial court or
tribunal cannot be obtained from the court reporter or recorder . . . to
settle the record and to cause the filing of a certified settled statement
of facts to serve as a substitute for the transcript.” If a settled
statement of facts is made and certified as prescribed by MCR
7.210(B)(2), it controls the timing of the appellant’s brief in the same
manner as would a transcript. MCR 7.212(A)(1)(a)(iii).
1 See SCAO’s Standards for Digital Video and Audio Recording.
Page 1-2 Michigan Judicial Institute

Criminal Proceedings Benchbook, Vol. 1, Revised Ed. Section 1.1
Committee Tip:
It is of the utmost importance to assure that
proceedings are being recorded to avoid
situations in which records need to be recreated
when courts have failed to record proceedings.
B. Open or Closed Trial

Defendants are entitled to a public trial. US Const, Am VI; Const 1963,
art 1, § 20; MCL 600.1420. A criminal trial must be open to the public,
unless the court finds that no alternative short of closure will
adequately assure a fair trial for the accused. Richmond Newspapers,
Inc v Virginia, 448 US 555, 580-581 (1980). The right to a public trial
extends to pretrial hearings, Waller v Georgia, 467 US 39, 43-47 (1984),
and the jury selection process, Presley v Georgia, 558 US 209, 212-216
(2010). See also Weaver v Massachusetts, 582 US ___, ___ (2017).
C. Gag Orders
The term gag order refers to a court order prohibiting attorneys,
witnesses, and parties from discussing a case with reporters, or to a
court order prohibiting reporters from publishing information related
to a case. A court order prohibiting publication of information related
to a case is unconstitutional if it imposes a prior restraint on speech.
Nebraska Press Ass’n v Stuart, 427 US 539, 556 (1976) (“The [United
States Supreme] Court has interpreted [First Amendment] guarantees
to afford special protection against orders that [impose a prior
restraint on speech by] prohibit[ing] the publication or broadcast of
particular information or commentary”). See People v Sledge, 312 Mich
App 516, 537 (2015), in which “[t]he trial court issued a gag order
precluding all potential trial participants from making any
extrajudicial statement regarding the case to the media or to any
person for the purpose of dissemination to the public.” The Court of
Appeals vacated the gag order, holding that “[t]he overbroad and
vague gag order constituted a prior restraint on freedom of speech,
freedom of expression, and freedom of the press, and the trial court
failed to justify the gag order.” Id.
MCR 8.116(D)(1) should be followed in assessing whether to issue a

gag order prohibiting discussion of the case with reporters:

“Except as otherwise provided by statute or court rule, a

court may not limit access by the public to a court
proceeding unless
(a) a party has filed a written motion that identifies

the specific interest to be protected, or the court sua
sponte has identified a specific interest to be
protected, and the court determines that the
interest outweighs the right of access;
(b) the denial of access is narrowly tailored to

accommodate the interest to be protected, and
there is no less restrictive means to adequately and
effectively protect the interest; and
(c) the court states on the record the specific

reasons for the decision to limit access to the
proceeding.”
D. Access to Court Files and Records
1. Records
“For purposes of [MCR 8.119(A)], records are as defined in MCR
1.109, MCR 3.218, MCR 3.903, and MCR 8.119(D)-(G).” MCR
8.119(A). “Court records are recorded information of any kind
that has been created by the court or filed with the court in
accordance with Michigan Court Rules[,]” and “may be created
using any means and may be maintained in any medium
authorized by these court rules provided those records comply
with other provisions of law and these court rules.” MCR
1.109(A)(1). MCR 1.109(A)(1)(a) provides that “[c]ourt records
include, but are not limited to:
(i) documents, attachments to documents,

discovery materials, and other materials filed with
the clerk of the court,
(ii) documents, recordings, data, and other

recorded information created or handled by the
court, including all data produced in conjunction
with the use of any system for the purpose of
transmitting, accessing, reproducing, or
maintaining court records.”
“Discovery materials that are not filed with the clerk of the court
are not court records. Exhibits that are maintained by the court
reporter or other authorized staff pursuant to MCR 2.518 or

MCR 3.930[2] during the pendency of a proceeding are not court

records.” MCR 1.109(A)(2) (emphasis added).
The clerk of the court is required to “maintain a file of each

action,” including “all pleadings, process, written opinions and
findings, orders, and judgments filed in the action, and any
other materials prescribed by court rule, statute, or court order
to be filed with the clerk of the court.” MCR 8.119(D)(1)(b).
2. Access to Records
MCR 1.109(F) provides that “[r]equests for access to public court
records shall be granted in accordance with MCR 8.119(H).”
MCR 8.119(H) provides, in part:
“Except as otherwise provided in [MCR 8.119](F),

only case records as defined in [MCR 8.119](D) are
public records, subject to access in accordance with
these rules.”
Additionally, MCR 8.119(H)(1) provides that “[u]nless access to

a case record or information contained in a record as defined in
[MCR 8.119](D) is restricted by statute, court rule, or an order
[sealing a record] pursuant to [MCR 8.119](I),[3] any person may
inspect that record and may obtain copies as provided in [MCR
8.119](J).”4
MCR 8.119(G) provides, in part, that “[a]ll court records not

included in [MCR 8.119(D)-(F)] are considered administrative
and fiscal records or nonrecord materials and are not subject to
public access under [MCR 8.119](H).”
Administrative Order No. 2006-2, 474 Mich cliv (2006) addresses

the confidentiality of social security numbers and management
of non-public information contained within public documents.
“[A] court is prohibited from sealing court orders and court

opinions under [the plain language of MCR 8.119(I)(6)5.]” Jenson
v Puste, 290 Mich App 338, 347 (2010). “Significantly, [MCR
8.119(I)(6)] does not allow a court the authority to exercise
discretion in deciding whether to seal [a court order or opinion],
2 MCR 3.930 governs exhibits in juvenile proceedings. See the Michigan Judicial Institute’s Juvenile Justice
Benchbook, Chapter 21, for discussion of court records in juvenile proceedings.

3 See Section (D)(3) for discussion of sealing records under MCR 8.119(I).
4 MCR 8.119(J) governs access and reproduction fees.
5 Formerly MCR 8.119(F)(5), MCR 8.119(I)(6) provides that “[a] court may not seal a court order or opinion,
including an order or opinion that disposes of a motion to seal the record.” See Section (D)(3) for
discussion of sealing records under MCR 8.119(I).

unlike the limited discretion that [MCR 8.119(I)(1)] allows when

a motion involves other court records.” Jenson, 290 Mich App at
342-347 (trial court properly held that it did not have the
authority to seal a personal protection order (PPO) pursuant to
MCR 8.119(I)(6)).
Access to court records can be restricted by the Legislature. In re

Midland Publishing Co, Inc, 420 Mich 148, 159 (1984). For example,
MCL 750.520k allows a court, in a criminal sexual conduct case,
to order the suppression of the victim’s and actor’s names and
details of the alleged offense until after the preliminary
examination. For a partial listing of statutes, court rules, and
cases that restrict public access to court records, see the State
Court Administrative Office’s Michigan Trial Court Case File
Management Standards.
To determine whether a right of access exists regarding a

document, a court should ask whether the document has
historically been open to the public and press, and whether
access “‘plays a significant positive role in the function of the
particular process in question.’” In re People v Atkins, 444 Mich
737, 740 (1994), quoting Press-Enterprise Co v Superior Ct of
California, 478 US 1, 8 (1986) (after the defendant was found
competent to stand trial, the court provided newspapers with an
edited (as opposed to full text) version of the psychiatrist’s
written report; because competency reports that have not been
admitted into evidence have traditionally been viewed as
confidential, and public access would not play a significant
positive role in the functioning of the particular process in
question, the court’s denial of full access to the report was
affirmed).
“[T]he press has a qualified right of postverdict access to jurors’

names and addresses, subject to the trial court’s discretion to
fashion an order that takes into account the competing interest of
juror safety and any other interests that may be implicated by
the court’s order.” In re Disclosure of Juror Names (People v
Mitchell), 233 Mich App 604, 630-631 (1999). If a court determines
that jurors’ safety concerns are “legitimate and reasonable,” the
court may deny media access to jurors’ names and addresses. Id.
at 630. Jurors’ privacy concerns alone are insufficient to deny
access to jurors’ names. Id.
Committee Tips:
Reports and records may be privileged or
confidential and their treatment should be

scrutinized in each case. Examples are substance

abuse evaluations and treatment records,
medical records and reports, and psychological/
psychiatric records and reports.
Consider whether access to the record is limited

by statute, court order, or court rule. See the
Nonpublic and Limited-Access Court Records
chart.
Consider whether a filed document can be

removed from the file by court order. See MCR
8.119(H).
For other information parties wish to keep

confidential, consider having the document
marked as an exhibit, reviewed by the court on
the record, and then returned to the parties at
the conclusion of the proceeding. See MCR
1.109(A)(2); MCR 2.518(A) (exhibits received and
accepted into evidence under MCR 2.518 are not
court records).
3. Sealing Court Records

MCR 8.119(I)(1)-(3) provide information on sealing records, as
follows:
“(1) Except as otherwise provided by statute or

court rule, a court may not enter an order that seals
courts [sic] records, in whole or in part, in any
action or proceeding, unless
(a) a party has filed a written motion that

identifies the specific interest to be protected,
(b) the court has made a finding of good

cause, in writing or on the record, which
specifies the grounds for the order, and
(c) there is no less restrictive means to

adequately and effectively protect the specific
interest asserted.
(2) In determining whether good cause has been

shown, the court must consider,
(a) the interests of the parties, including,

where there is an allegation of domestic

violence, the safety of the alleged or potential

victim of the domestic violence, and
(b) the interest of the public.
(3) The court must provide any interested person

the opportunity to be heard concerning the sealing
of the records.”
MCR 8.119(I) is not intended to limit a court’s authority to issue

protective orders under MCR 2.302(C) for trade secrets, etc.
MCR 8.119(I)(8). “A protective order issued under MCR 2.302(C)
may authorize parties to file materials under seal in accordance
with the provisions of the protective order without the necessity
of filing a motion to seal under [MCR 8.119].” MCR 8.119(I)(8).
“[A] court is prohibited from sealing court orders and court

opinions under [the plain language of MCR 8.119(I)(6).6]” Jenson
v Puste, 290 Mich App 338, 347 (2010). “Significantly, [MCR
8.119(I)(6)] does not give a court the authority to exercise
discretion in deciding whether to seal [a court order or opinion],
unlike the limited discretion that [MCR 8.119(I)(1)7] allows when
a motion involves other court records.” Jenson, 290 Mich App at
342-347 (trial court properly held that it did not have the
authority to seal a personal protection order (PPO) pursuant to
MCR 8.119(I)(6)).
“Any person may file a motion to set aside an order that disposes
of a motion to seal the record, to unseal a document filed under
seal pursuant to MCR 2.302(C), or an objection to entry of a
proposed order. MCR 2.119[8] governs the proceedings on such a
motion or objection.” MCR 8.119(I)(9).
If a court grants a motion to seal a court record, the court must

send a copy of the order to the Clerk of the Michigan Supreme
Court and to the State Court Administrative Office. MCR
8.119(I)(7).
When a party files an appeal in a case where the trial court

sealed the file, the file remains sealed while in the possession of
the Court of Appeals. MCR 7.211(C)(9)(a). Any requests to view
the sealed file will be referred to the trial court. Id. MCR 8.119(I)
also governs the procedure for sealing a Court of Appeals file.
6Formerly MCR 8.119(F)(5), MCR 8.119(I)(6) provides that “[a] court may not seal a court order or opinion,
including an order or opinion that disposes of a motion to seal the record.”

7 Formerly MCR 8.119(F)(1).
8 See the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 3, for a discussion of MCR
2.119.

MCR 7.211(C)(9)(c). “Materials that are subject to a motion to

seal a Court of Appeals file in whole or in part shall be held
under seal pending the court’s disposition of the motion.” MCR
7.211(C)(9)(c).
MCR 8.119(D) sets out procedures to protect the confidentiality

of a sealed record:
“Documents and other materials made nonpublic

or confidential by court rule, statute, or order of
the court [sealing a record] pursuant to [MCR
8.119](I) must be designated accordingly and
maintained to allow only authorized access. In the
event of transfer or appeal of a case, every rule,
statute, or order of the court under [MCR 8.119](I)
that makes a document or other materials in that
case nonpublic or confidential applies uniformly to
every court in Michigan, irrespective of the court in
which the document or other materials were
originally filed.”
See also MCR 2.518(C), which provides:
“Confidentiality. If the court retains discovery

materials filed pursuant to MCR 1.109(D) or an
exhibit submitted pursuant to [MCR 2.518] after a
hearing or trial and the material is confidential as
provided by law, court rule, or court order
pursuant to MCR 8.119(I), the court must continue
to maintain the material in a confidential manner.”
4. Record Retention
“The [SCAO] shall establish and maintain records management
policies and procedures for the courts, including a records
retention and disposal schedule, in accordance with [S]upreme
[C]ourt rules.” MCL 600.1428(1). “The record retention and
disposal schedule shall be developed and maintained as
prescribed in . . . MCL 399.811.” MCL 600.1428(1).
“Subject to the records reproduction act, . . . MCL 24.401 to

[MCL] 24.406, a court may dispose of any record as prescribed in
[MCL 600.1428(1)].” MCL 600.1428(2).
“A record, regardless of its medium, shall not be disposed of

until the record has been in the custody of the court for the
retention period established under [MCL 600.1428(1)].” MCL
600.1428(3).

MCR 8.119(K) provides:
“Retention Periods and Disposal of Court Records.

For purposes of retention, the records of the trial
courts include: (1) administrative and fiscal
records, (2) case file and other case records, (3)
court recordings, log notes, jury seating charts, and
recording media, and (4) nonrecord material. The
records of the trial courts shall be retained in the
medium prescribed by MCR 1.109. The records of a
trial court may not be disposed of except as
authorized by the records retention and disposal
schedule and upon order by the chief judge of that
court. Before disposing of records subject to the
order, the court shall first transfer to the Archives
of Michigan any records specified as such in the
Michigan trial courts approved records retention
and disposal schedule. An order disposing of court
records shall comply with the retention periods
established by the State Court Administrative
Office and approved by the state court
administrator, Attorney General, State
Administrative Board, Archives of Michigan, and
Records Management Services of the Department
of Management and Budget, in accordance with
MCL 399.811.”
For additional information on records management, and for

links to records retention and disposal schedules, see the State
Court Administrative Office’s Records Management website.
5. Access and Reproduction Fees9

“A court may not charge a fee to access public case history
information or to retrieve or inspect a case document
irrespective of the medium in which the record is retained, the
manner in which access to the case record is provided (including
whether a record is retained onsite or offsite), and the
technology used to create, store, retrieve, reproduce, and
maintain the case record.” MCR 8.119(J)(1). “A court may charge
a reproduction fee for a document pursuant to MCL 600.1988,
except when required by law or court rule to provide a copy
without charge to a person or other entity.” MCR 8.119(J)(2).
“The court may provide access to its public case records in any
9See SCAO Memorandum regarding Court Rule Amendments Pertaining to Court Records, December 6,
2012, for highlights of the comprehensive set of court rule revisions designed to update and clarify various
rules pertaining to court records.

medium authorized by the records reproduction act, 1992 PA

116; MCL 24.401 to [MCL] 24.403.” MCR 8.119(J)(3).
“Reproduction of a case document means the act of producing a

copy of that document through any medium authorized by the
records reproduction act, 1992 PA 116; MCL 24.401 to [MCL]
24.403.
(a) A court may charge only for the actual cost of

labor and supplies and the actual use of the
system, including printing from a public terminal,
to reproduce a case document and not the cost
associated with the purchase and maintenance of
any system or technology used to store, retrieve,
and reproduce the document.
(b) If a person wishes to obtain copies of

documents in a file, the clerk shall provide copies
upon receipt of the actual cost of reproduction.
(c) Except as otherwise directed by statute or court

rule, a standard fee may be established, pursuant
to [MCR 8.119(H)(2)], for providing copies of
documents on file.” MCR 8.119(J)(4).
E. Access to Judge
1. Ex Parte Communications
“A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties concerning a pending
or impending proceeding, except” in the limited circumstances
set out in Code of Judicial Conduct 3(A)(4). The exceptions
include communications for scheduling, consulting with court
personnel, and, with the consent of the parties, conferring
separately with the parties and their attorneys in an effort to
reach resolution. Code of Judicial Conduct. See MCJC 3(A)(4)(a)-
(e). The prohibition on ex parte communications with a judge
may also apply to nonparties such as probation agents. See
People v Smith (Timothy), 423 Mich 427, 459 (1985) (while “[e]x
parte communications between probation officers and judges,
whether in written or oral form, threaten the ability of counsel to
effectively challenge unreliable information and hence threaten a
defendant’s right to counsel[,]” . . . resentencing [for violating
this right] is only necessary when the sentencing judge obtains
information about the defendant from the probation officer that
is not included in the written presentence report[]”).

Committee Tip:
The prohibition on ex parte communications
precludes a judge from obtaining or seeking
substantive information without both parties
having the opportunity to participate. It is
recommended that court staff be carefully
trained to intercept prohibited ex parte
communications. These communications can
include efforts by the parties or other persons
interested in the case to contact the judge,
contacts with or from police or other agencies,
and communications with jurors. The judge also
should not view the scene without notifying the
parties, who should have the opportunity to be
present.
2. Judge’s Appearance by Video Communication

Equipment
“The State Court Administrative Office is authorized[] . . . to
approve the use of two-way interactive video technology in the
trial courts to allow judicial officers to preside remotely in any
proceeding that may be conducted by two-way interactive
technology or communication equipment without the consent of
the parties under the Michigan Court Rules and statutes.
Administrative Order No. 2012-7, 493 Mich cx (2013).
Remote participation is limited to specific situations, including

judicial assignments and circuits and districts that are comprised
of more than one county and would require a judicial officer to
travel to a different courthouse within the circuit or district. AO
2012-7.
“The judicial officer who presides remotely must be physically

present in a courthouse located within his or her judicial circuit,
district, or multiple district area.” AO 2012-7.
F. Standard of Review
A trial court’s decision to permit public access to court proceedings
and documents is reviewed for an abuse of discretion, in light of the
facts and circumstances of the particular case. Int’l Union, United Auto,
Aerospace & Agricultural Implement Workers of America v Dorsey, 268
Mich App 313, 329 (2005), rev’d in part on other grounds 474 Mich

1097 (2006),10 citing Nixon v Warner Communications, Inc, 435 US 589,

599 (1978).
1.2 Attorney Conduct11

“A lawyer is a representative of clients, an officer of the legal system and
a public citizen having special responsibility for the quality of justice.”
Preamble to the Michigan Rules of Professional Conduct. “Many of a
lawyer’s professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law.
However, a lawyer is also guided by personal conscience and the
approbation of professional peers. A lawyer should strive to attain the
highest level of skill, to improve the law and the legal profession and to
exemplify the legal profession’s ideals of public service.” Id. “Every
lawyer is responsible for observance of the Rules of Professional
Conduct[, and a] lawyer should also aid in securing their observance by
other lawyers.” Id. “Neglect of these responsibilities compromises the
independence of the profession and public interest in which it serves. Id.
A. Disciplinary Proceedings
An attorney is responsible for aiding the administration of justice. An
attorney has a duty to uphold the legal process and act in conformity
with standards imposed on members of the bar. These standards
include the rules of professional responsibility and judicial conduct
adopted by the Michigan Supreme Court. MCR 9.103(A). Grounds for
discipline are set forth in MCR 9.104.
The authority to supervise and discipline Michigan attorneys derives

from the state constitution and rests with the Michigan Supreme
Court. Schlossberg v State Bar Grievance Bd, 388 Mich 389, 395 (1972).
This constitutional responsibility is discharged, in turn, by the
Attorney Grievance Commission (acting as the Supreme Court’s
prosecution arm) and the Attorney Discipline Board (acting as the
Supreme Court’s adjudicative arm). MCR 9.100 et seq.
“Michigan has a long tradition of judicial oversight of the ethical

conduct of its court officers.” Evans & Luptak, PLC v Lizza, 251 Mich
App 187, 194 (2002). All Michigan judges have an “independent
10“[A] prior Court of Appeals decision that has been reversed on other grounds has no precedential value. .
. . [W]here the Supreme Court reverses a Court of Appeals decision on one issue and does not specifically
address a second issue in the case, no rule of law remains from the Court of Appeals decision.” Dunn v
Detroit Auto Inter-Ins Exch, 254 Mich App 256, 262 (2002). See also MCR 7.215(J)(1). However, its analysis
may still be persuasive. See generally Dunn, 254 Mich App at 263-266.
11 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 1, for information
related to ineffective assistance of counsel.

responsibility to supervise the ethical conduct of . . . court officers[.]”

Attorney Gen v Michigan Pub Svc Comm, 243 Mich App 487, 492 (2000).
This tradition is reflected in the Michigan Code of Judicial Conduct.
Code of Judicial Conduct, 3(B)(3) provides that “[a] judge should take
or initiate appropriate disciplinary measures against a judge or
lawyer for unprofessional conduct of which the judge may become
aware.” Judges, as well as lawyers, are obliged by the MRPC to report
attorney misconduct. Grievance Administrator v Fieger, 476 Mich 231,
240-241 (2006); MRPC 8.3.
B. Motion to Disqualify Attorney

Although not specifically addressed by court rule, caselaw suggests
that the court has the authority to consider a motion to disqualify
counsel. Rymal v Baergen, 262 Mich App 274, 316-322 (2004); Evans &
Luptak, 251 Mich App at 193-203. Typically, a motion to disqualify is
based on an alleged conflict of interest. See MRPC 1.7 (General Rule),
MRPC 1.8 (Prohibited Transactions), and MRPC 1.9 (Former Client).
Another potential ground for disqualification may arise if the lawyer
is a potential witness. MRPC 3.7. A conflict of interest exists where
“the prosecutor has a personal, financial, or emotional interest in the
litigation or a personal relationship with the accused.” People v
Mayhew, 236 Mich App 112, 126-127 (1999). A conflict of interest also
exists where the prosecutor becomes privy to confidential
information while in an attorney-client relationship. People v Herrick,
216 Mich App 594, 599 (1996).
C. Standard of Review
Whether a conflict of interest exists is a question of fact that is
reviewed for clear error. Avink v SMG, 282 Mich App 110, 116 (2009).
The application of “ethical norms” to a decision whether to disqualify
counsel is reviewed de novo. Id.
1.3 Contempt of Court

“Michigan courts have, as an inherent power, the power at common law
to punish all contempts of court.” In re Contempt of Dougherty, 429 Mich
81, 91 n 14 (1987). “This contempt power inheres in the judicial power
vested in th[e Michigan Supreme Court], the Court of Appeals, and the
circuit and probate courts by Const 1963, art 6, § 1.” Dougherty, 429 Mich
at 91 n 14. MCL 600.1701 defines a court’s power to punish contempt by
fine or imprisonment or both. Contempt may be either civil or criminal
and either direct or indirect. Civil contempt “seeks to change . . . conduct
by threatening . . . a penalty if [the contemnor] does not change it[;]”
criminal contempt “seeks to punish [the contemnor] for past misdoings
which affront the dignity of the court.” Jaikins v Jaikins, 12 Mich App 115,
120 (1968). Direct contempt occurs in the immediate view and presence
of the court; indirect contempt is outside of the immediate view and
presence of the court. In re Contempt of Auto Club Ins Ass’n, 243 Mich App
697, 712 (2000).
For a more detailed discussion on contempt of court, see the Michigan

Judicial Institute’s Contempt of Court Benchbook.
1.4 Judicial Disqualification

Due process requires an unbiased and impartial decisionmaker. Cain v
Dep’t of Corrections, 451 Mich 470, 497 (1996). “A judge should raise the
issue of disqualification whenever the judge has cause to believe that
grounds for disqualification may exist under MCR 2.003(B).” Code of
Judicial Conduct, 3(C). In addition, a party may ask a judge to disqualify
(recuse) himself or herself. MCR 2.003(C)(1) sets out a nonexhaustive list
of grounds for the disqualification of a judge.
“Under the Due Process Clause [of the Fourteenth Amendment of the
United States Constitution] there is an impermissible risk of actual bias
when a judge earlier had significant, personal involvement as a
prosecutor in a critical decision regarding the defendant’s case.” Williams
v Pennsylvania, 579 US ___, ___ (2016). “No attorney is more integral to
the accusatory process than a prosecutor who participates in a major
adversary decision[, and w]hen a judge has served as an advocate for the
State in the very case the court is now asked to adjudicate, a serious
question arises as to whether the judge, even with the most diligent
effort, could set aside any personal interest in the outcome.” Id. at ___
(holding that where a state supreme court justice was formerly involved
in a case as the prosecutor and had given his official approval to seek the
death penalty against the defendant, the justice’s failure to recuse himself
from postconviction proceedings in which the defendant sought relief
from his conviction and death sentence constituted reversible
constitutional error).
“[A]n unconstitutional failure to recuse constitutes structural error even

if the judge in question did not cast a deciding vote.” Williams, 579 US at
___ (quoting Puckett v United States, 556 US 129, 141 (2009), and holding
that “a due process violation arising from the participation of an
interested judge is a defect ‘not amenable’ to harmless-error review,
regardless of whether the judge’s vote was dispositive[]”) (alteration in
original).
For a more detailed discussion on judicial disqualification, see the

Michigan Judicial Institute’s Judicial Disqualification in Michigan.

1.5 Pro Se Litigants

In both civil and criminal cases, a party has a right to represent himself or
herself. Const 1963, art 1, § 13. See also MCL 600.1430 and MCL 763.1.
Committee Tips:
No special warnings or cautions are required.
However, it is good practice to caution the pro se
litigant that he or she has a right to consult with
and be represented by an attorney and that he or
she should not expect special treatment because
he or she is a pro se litigant.
The court may reference particular statutes, court

rules, or rules of evidence that may have
significance in a particular case.
Explain to a pro se litigant that he or she does not

have to testify, but if testifying, he or she may be
subject to cross-examination.
Although a party has a right to represent himself or herself, an individual

may not represent another person or entity. For example, a corporation
can only appear through an attorney. Peters Production, Inc v Desnick
Broadcasting Co, 171 Mich App 283, 287 (1988). Also, a minor’s next friend
cannot act as the minor’s attorney unless he or she is an attorney.
Marquette Prison Warden v Meadows, 114 Mich App 121, 124 (1982). Finally,
a personal representative may not represent an estate. Shenkman v
Bragman, 261 Mich App 412, 416 (2004).
“[A] person who represents himself or herself cannot recover actual

attorney fees even if the pro se individual is a licensed attorney.” Omdahl
v West Iron Co Bd of Ed, 478 Mich 423, 432 (2007). This is because the
phrase actual attorney fees requires that an agency relationship exist
between an attorney and the attorney’s client and that a fee for the
attorney’s services be a sum of money actually paid or charged. Id. at 428,
432. An award of actual attorney fees requires that an attorney be acting
on behalf of a client separate from the attorney. Id. at 432.

1.6 Interpreters
A. Statutory and Constitutional Rights to Simultaneous

Translation
MCL 775.19a provides:
“If an accused person is about to be examined or tried

and it appears to the judge that the person is incapable
of adequately understanding the charge or presenting a
defense to the charge because of a lack of ability to
understand or speak the English language, the inability
to adequately communicate by reason of being mute, or
because the person suffers from a speech defect or other
physical defect which impairs the person in maintaining
his or her rights in the case, the judge shall appoint a
qualified person to act as an interpreter. Except as
provided in the [Deaf Persons’ Interpreters Act, MCL
393.501 et seq.], the interpreter shall be compensated for
his or her services in the same amount and manner as is
provided for interpreters in [MCL 775.19].”
Under MCL 775.19a, a trial court “has an affirmative duty to establish

[a] defendant’s proficiency in English or appoint an interpreter”
where there is record evidence “that [the] defendant [is] incapable of
understanding English at a level necessary to effectively participate in
his [or her] defense without simultaneous translation of the trial
proceedings.” People v Gonzalez-Raymundo, 308 Mich App 175, 189
(2014) (citations omitted). “[W]hen presented . . . with indications that
a defendant may lack sufficient comprehension of the English
language, [the trial court should] either satisfy itself of the defendant’s
proficiency, provide for simultaneous interpretation, or, if the
defendant wishes to waive the right to an interpreter, secure the
defendant’s personal, informed waiver.” Id. at 193 (citations omitted).
A court’s “fail[ure] to satisfy this duty[] . . . [may] effectively prevent[]
[a] defendant from being truly present at his [or her] trial and
arguably interfere[] with his [or her] ability to assist in his [or her]
defense, including in the cross-examination of witnesses.” Id. at 190.
Additionally, “[t]he lack of simultaneous translation [may] implicate[

a] defendant’s rights to due process of law guaranteed by the United
States and Michigan Constitutions.” Gonzalez-Raymundo, 308 Mich
App at 188, citing US Const, Am V; US Const, Am XIV; Const 1963, art
1, § 17. “Specifically, a defendant has a right to be present at a trial
against him[ or her] . . . and a defendant’s lack of understanding of the
proceedings against him [or her] renders him [or her] effectively
absent[.]” Gonzalez-Raymundo, 308 Mich App at 188 (citations
omitted). “In addition, lack of simultaneous translation impairs a

defendant’s right to confront witnesses against him [or her] and

participate in his [or her] own defense.” Id. (citations omitted).
Because the right to simultaneous translation “is . . . not merely
statutory as codified by MCL 775.19a, but [also] constitutional, . . . [it
is] subject to every reasonable presumption against its loss.” Gonzalez-
Raymundo, 308 Mich App at 188.
B. Appointment of Interpreter for Deaf or Deaf-Blind

Person12
1. Right to Appointment of Interpreter for Deaf or Deaf-

Blind Person Under MCL 393.501 et seq.
A deaf or deaf-blind person has the right to a qualified
interpreter and to meaningful participation in judicial or
investigative proceedings. People v Brannon, 194 Mich App 121,
127 (1992); Bednarski v Bednarksi, 141 Mich App 15, 19 (1985);
MCL 393.503(3); MCL 393.504(1).
“An appointing authority, when it knows a deaf or deaf-blind

person is or will be coming before it, shall inform the deaf or
deaf-blind person of the right to a qualified interpreter.” MCL
393.504(2). See also Bednarski, 141 Mich App at 20 (“an
appointing authority . . . who knows a deaf person will be
coming before it is obliged to inform the deaf person of the right
to an interpreter[]”).
2. Interpreters in Arrest/Custodial/Interrogation
Situations
“If a deaf or deaf-blind person is arrested and taken into custody
for any alleged violation of a criminal law of this state, the
arresting officer and the officer’s supervisor shall procure a
qualified interpreter in order to properly interrogate the deaf or
deaf-blind person and to interpret the deaf or deaf-blind
person’s statements.” MCL 393.505(1).
“A statement taken from a deaf or deaf-blind person before a

qualified interpreter is present is not admissible in court.” MCL
393.505(2).
“An evidentiary hearing should be conducted when there is a

challenge of the admissibility of a statement from a defendant
12Information
on interpreters for the deaf is available at http://courts.mi.gov/Administration/admin/op/
access/Pages/americans-with-disabilities-act.aspx. For a list of sign language interpreters or
accommodations available for the deaf, hard of hearing, and deaf-blind persons, see www.michigan.gov/
mdcr/0,4613,7-138-58275_28545---,00.html.

who asserts he [or she] should have been provided with an

interpreter under MCL 393.505.” Brannon, 194 Mich App at 128.
Testimony at the hearing “should center on whether the [alleged
deaf] individual lacked the necessary communication skills to
make a statement without the aid of an interpreter.” Id.
“[A] reviewing court must engage in a two-step analysis when

determining whether a defendant’s statement is admissible
when he [or she] claims he [or she] has a hearing deficiency.”
Brannon, 194 Mich App at 129. “First, if the court finds the
defendant is ‘deaf,’ as defined by [MCL 393.502(b)], then the
Legislature has provided that the defendant cannot be
interrogated unless he [or she] is provided with an interpreter
and that any statement made by a deaf defendant unaided by an
interpreter must be automatically excluded.” Brannon, 194 Mich
App at 129. “Second, if the court finds the defendant is not
‘deaf,’ as provided by [MCL 393.502(b)], the court must still
determine whether the hearing-impaired defendant was able to
comprehend his [or her] rights and make a knowing and
intelligent waiver of his [or her] rights.” Brannon, 194 Mich App
at 129-130.
“Before utilizing a statement made by a hearing-impaired

defendant either with or without the assistance of an interpreter,
it must be established that the defendant comprehended his [or
her] Miranda[13] rights and intelligently waived them before
making the statement.” Brannon, 194 Mich App at 130-131. “A
waiver is intelligently made when the Miranda warnings are
explained to the defendant by an interpreter familiar with and
competent in the defendant’s primary language.” Id. at 131.
“Where a hearing-impaired defendant is subjected to polygraph
examination, even greater care must be taken in explaining the
rights and questions involved.” Id. (noting that “the Deaf
Persons’ Interpreters Act is generally based on the same Fifth
Amendment concepts associated with the waiver of rights and
the voluntariness of statements[]” and holding that “the basic
principles applicable to Walker[14] hearings are applicable to
hearings under the Deaf Persons’ Interpreters Act[]”).
13Miranda v Arizona, 384 US 436 (1966). See the Michigan Judicial Institute’s Evidence Benchbook, Chapter
3, for discussion of self-incrimination and Miranda.

14People v Walker (On Rehearing), 374 Mich 331 (1965).

3. Determining Whether to Appoint an Interpreter for

Deaf or Deaf-Blind Person
a. Appointment for Witness or Party

“In any action before a court or a grand jury where a deaf
or deaf-blind person is a participant in the action, either
as a plaintiff, defendant, or witness, the court shall
appoint a qualified interpreter to interpret the
proceedings to the deaf or deaf-blind person, to interpret
the deaf or deaf-blind person’s testimony or statements,
and to assist in preparation of the action with the deaf or
deaf-blind person’s counsel.” MCL 393.503(1).
“In a proceeding before an appointing authority, other

than a court, the appointing authority shall appoint a
qualified interpreter to interpret the proceedings to the
deaf or deaf-blind person and to interpret the deaf or
deaf-blind person’s testimony or statements in any
proceeding before the appointing authority.” MCL
393.503(2).
See also Bednarski, 141 Mich App at 20 (“[t]he Deaf

Persons’ Interpreters Act . . . provides for the mandatory
appointment of an interpreter in any action before a court
or a grand jury where a deaf person is a participant in the
action, either as a plaintiff, defendant, or witness, to
perform three specific functions: (1) to interpret the
proceedings to the deaf person; (2) to interpret the deaf
person’s testimony or statements; and (3) to assist in
preparation of the action with the deaf person[]”). In
Bednarski, 141 Mich App at 20-21, the defendant was
entitled to a new trial where the procedure followed at
trial only satisfied the second function set out in MCL
393.503(1). See also People v Thomas (Michael), 441 Mich
879 (1992), where the defendant moved for a new trial on
the basis of the court’s failure to appoint an interpreter on
his behalf “under either the Deaf Persons’ Interpreters
Act, MCL 393.501 et seq., MCL 775.19a[,] or constitutional
principles[.]” The trial court denied the motion,
“allud[ing] to the fact that neither the defendant nor the
attorneys ever mentioned any need for the court to
appoint an interpreter for the defendant.” Thomas
(Michael), 441 Mich at 879. “However, the record
include[d] statements by the court that it was aware that
the defendant had a hearing problem at the time [he]
waived his right to a jury trial . . . and during the trial
itself[.]” Id. “The record also contain[ed] an assertion by

defense counsel during trial that the defendant was 80%

deaf and . . . suggest[ed] that the court appointed an
interpreter for the defendant to assist in proceedings in
another case that took place at about the same time as or
soon after the trial of this matter.” Id. The Michigan
Supreme Court remanded for “supplemental findings as
to why an interpreter was not appointed on the
defendant’s behalf.” Id.
b. Notification of Need for/Right to Interpreter

“Each deaf or deaf-blind person whose appearance in an
action or other proceeding entitles the deaf or deaf-blind
person to a qualified interpreter shall provide reasonable
notice to the appointing authority of the need of a
qualified interpreter before the appearance.” MCL
393.504(1).
“Each deaf or deaf-blind person who is entitled to a

qualified interpreter as an accommodation under state or
federal law shall provide reasonable notice to the
appointing authority of the need for a qualified
interpreter.” MCL 393.504(1).
c. Reasonable Proof of Deafness

“An appointing authority may require a person
requesting the appointment of a qualified interpreter to
furnish reasonable proof of the person’s deafness, if the
appointing authority has reason to believe that the person
is not deaf or deaf-blind.” MCL 393.504(3).
d. Making a Determination
“A trial court’s decision regarding whether an individual
is a deaf person is based upon factual findings[.]”
Brannon, 194 Mich App at 127-128.
“A qualified interpreter shall not be appointed unless the

appointing authority and the deaf or deaf-blind person
make a preliminary determination that the qualified
interpreter is able to readily communicate with the deaf
or deaf-blind person and to interpret the proceedings in
which the deaf or deaf-blind person is involved.” MCL
393.503(4). “[T]he record should affirmatively disclose
that the required preliminary determination was made.”
Bednarski, 141 Mich App at 22.

“If a qualified interpreter states that the interpreter is

unable to render a satisfactory interpretation and that an
intermediary interpreter or deaf interpreter will improve
the quality of the interpretation, the appointing authority
shall appoint an intermediary interpreter or deaf
interpreter to assist the qualified interpreter.” MCL
393.503(5).
e. Fulfilling Requests
“The appointing authority shall channel requests for
qualified interpreters, intermediary interpreters, and deaf
interpreters through the division.” MCL 393.508(1). “The
division shall compile and update annually a listing of
qualified interpreters, intermediary interpreters, and deaf
interpreters and shall make this listing available to an
appointing authority that may need the services of a
qualified interpreter, intermediary interpreter, or deaf
interpreter as required by [the Deaf Persons’ Interpreters
Act, MCL 393.501 et seq.]” MCL 393.508(2).
Committee Tip:
An ADA Coordinator or contact has been
designated in each court to assist with questions
or requests regarding accommodations for
individuals who are deaf, deaf-blind, or hard of
hearing.
4. Waiver of Right to Interpreter

“The right of a deaf or deaf-blind person to a qualified
interpreter shall not be waived except by a request for waiver in
writing by the deaf or deaf-blind person.” MCL 393.503(3).
“A written waiver of a plaintiff or defendant is subject to the

approval of the deaf or deaf-blind person’s counsel and the
approval of the appointing authority.” MCL 393.503(3). See also
Bednarski, 141 Mich App at 20 (“[a]ny waiver of the right to an
interpreter must be in writing by the deaf person).

5. Classifications of Interpreters for Deaf Person15

“If an interpreter is required as an accommodation for a deaf or
deaf-blind person under state or federal law, the interpreter shall
be a qualified interpreter.” MCL 393.503a.
a. Qualified Interpreter
A qualified interpreter is “a person who is certified through
the national registry of interpreters for the deaf or
certified through the state by the division.” MCL
393.502(f).
b. Qualified Oral Interpreter

A qualified oral interpreter is “a qualified interpreter who is
able to convey information through facial and lip
movement.” MCL 393.502(g).
c. Qualified Sign Language Interpreter

A qualified sign language interpreter is “a qualified
interpreter who uses sign language to convey
information.” MCL 393.502(h).
d. Intermediary Interpreter/Deaf Interpreter

An intermediary interpreter or deaf interpreter is “any
person, including any deaf or deaf-blind person, who is
able to assist in providing an accurate interpretation
between spoken English and sign language or between
variants of sign language by acting as an intermediary
between a deaf or deaf-blind person and a qualified
interpreter.” MCL 393.502(e).
6. Appointing More Than One Interpreter

In a situation where both parties and several additional
witnesses were deaf, the Court of Appeals stated its opinion that
“the provisions of [the Deaf Persons’ Interpreters Act] require
the appointment of an interpreter for each plaintiff and
15On
February 22, 2016, the Michigan Department of Civil Rights (MDCR)—Division of Deaf, Deaf-Blind,
and Hard of Hearing released its policies and procedures for certified interpreters who provide American
Sign Language (ASL) services enforcing Michigan’s Deaf Persons’ Interpreters Act and the Qualified
Interpreter-General Rules. For more information, see http://courts.mi.gov/Administration/SCAO/
OfficesPrograms/TCS/Documents/TCS%20Memoranda/TCS-2016-06.pdf.

defendant, and a third interpreter for the court, if necessary.”

Bednarski, 141 Mich App at 21.
7. Interpreter Oath or Affirmation

“Before a qualified interpreter participates in any action or other
proceeding because of an appointment under [the Deaf Persons’
Interpreters Act, MCL 393.501 et seq.], the qualified interpreter
shall make an oath or affirmation that the qualified interpreter
will make a true interpretation in an understandable manner to
the deaf or deaf-blind person for whom the qualified interpreter
is appointed and that the qualified interpreter will interpret the
statements of the deaf or deaf-blind person in the English
language to the best of the interpreter’s skill.” MCL 393.506(1).
The Court of Appeals noted that MCL 393.506(1) may have been
violated where “[p]rior to trial, counsel stipulated that the
interpreter would ‘paraphrase’ the answers of the witnesses to
‘expedite’ the proceeding.” Bednarski, 141 Mich App at 22. The
Court recognized that “[d]ue to the conceptual nature of sign
language, a verbatim translation of oral testimony (or vice versa)
may not be possible[;] [h]owever, the very fact of the
unavoidable translation difficulty renders the need for accurate
and skillful interpretation even more critical.” Id.
“The appointing authority shall provide recess periods as

necessary for the qualified interpreter when the qualified
interpreter so indicates.” MCL 393.506(1).
“The information that the qualified interpreter, intermediary

interpreter, or deaf interpreter gathers from the deaf or deaf-
blind person pertaining to any action or other pending
proceeding shall at all times remain confidential and privileged,
unless the deaf or deaf-blind person executes a written waiver
allowing the information to be communicated to other persons
and the deaf or deaf-blind person is present at the time the
information is communicated.” MCL 393.506(2).
8. Interpreter Costs
“A court appointed interpreter, qualified interpreter,
intermediary interpreter, or deaf interpreter shall be paid a fee
by the court that it determines to be reasonable.” MCL
393.507(1).
“A qualified interpreter, intermediary interpreter, or deaf

interpreter appointed by an appointing authority other than a
court shall be paid a fee by the appointing authority[] . . . out of

funds available to the appropriate appointing authority.” MCL

393.507(1)-(2).
“In addition, a qualified interpreter, intermediary interpreter, or

deaf interpreter shall be paid for his or her actual expenses for
travel, meals, and lodging.” MCL 393.507(1).
“A qualified interpreter appointed for the deaf or deaf-blind

person shall be available for the duration of the deaf or deaf-
blind person’s participation in the action or other proceeding.”
MCL 393.507(3).
C. Appointment of Foreign Language Interpreters16
1. Right to Appointment of Foreign Language

Interpreter Under the Michigan Court Rules
To support access to justice, MCR 1.111 provides for court-
appointed foreign language interpreters for limited English
proficient (LEP) persons.17 MCR 1.111 “focuses on the critical
legal requirement[ of] meaningful access[,]” and requires a court
“to provide an interpreter for a party or witness if the court
determines one is needed for either the party or the witness to
meaningfully participate.” ADM File No. 2012-03, 495 Mich clvii,
clviii-clix (2013). See MCR 1.111(B)(1).
Limited English proficient person means “a person who does not

speak English as his or her primary language, and who has a
limited ability to read, write, speak, or understand English, and
by reason of his or her limitations, is not able to understand and
meaningfully participate in the court process.” Administrative
Order No. 2013-8.
2. Determining Whether to Appoint a Foreign Language

Interpreter18
“Any doubts as to eligibility for interpreter services should be
resolved in favor of appointment of an interpreter.” MCR
1.111(F)(6). “At the time of determining eligibility, the court shall
inform the party or witness of the penalties for making a false
16 For information on Language Access, see http://courts.mi.gov/administration/scao/officesprograms/fli/
pages/default.aspx. For information on requesting a court interpreter, see http://courts.mi.gov/Self-help/

interpreter/Pages/default.aspx.
17 For a summary of MCR 1.111, see http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FLI/
Documents/MCR_%201_111_RuleSummary.pdf.
18 See Section 1.6(C) for information on the various types of foreign language interpreters, including when
it is appropriate to appoint each one.

statement. The party has the continuing obligation to inform the

court of any change in financial status and, upon request of the
court, the party must submit financial information.” MCR
1.111(F)(7).
Committee Tips:
A Language Access Coordinator has been
designated in each court to assist with questions
or requests regarding appointment of foreign
language interpreters.
Whether to appoint multiple interpreters is in

the discretion of the trial court. See MCR
1.111(E)(1) and MCR 1.111(F)(3). The court rules
were purposefully crafted to allow the trial
courts broad discretion to consider all of the
facts of any circumstance and decide for
themselves. For example, in a situation in which
a defendant and a victim both need an
interpreter, the court should seriously consider
appointing separate interpreters for each. The
court should avoid any appearance that
proceedings are not equitable.
a. Appointment for Witness or Party

“If a person requests a foreign language interpreter and
the court determines such services are necessary for the
person to meaningfully participate in the case or court
proceeding, or on the court’s own determination that
foreign language interpreter services are necessary for a
person to meaningfully participate in the case or court
proceeding, the court shall appoint a foreign language
interpreter for that person if the person is a witness
testifying in a civil or criminal case or court proceeding or
is a party.” MCR 1.111(B)(1).
See also People v Sepulveda, 412 Mich 889 (1981),19 where

“[n]otwithstanding the failure of the defendant to request
an interpreter, it was [reversible] error to fail to appoint
an interpreter [at trial] where the record clearly show[ed]
that the defendant spoke no English whatsoever.”
19Note that this case predates MCR 1.111.

b. Appointment for Person Other than Witness or

Party
“The court may appoint a foreign language interpreter for
a person other than a party or witness who has a
substantial interest in the case or court proceeding.” MCR
1.111(B)(2).
c. Determining Whether Services are Necessary

for Meaningful Participation
“In order to determine whether the services of a foreign
language interpreter are necessary for a person to
meaningfully participate under [MCR 1.111(B)(1)], the
court shall rely upon a request by an LEP individual (or a
request made on behalf of an LEP individual) or prior
notice in the record.” MCR 1.111(B)(3). “If no such
requests have been made, the court may conduct an
examination of the person on the record to determine
whether such services are necessary.” Id.
“During the examination, the court may use a foreign

language interpreter.” MCR 1.111(B)(3). “For purposes of
this examination, the court is not required to comply with
the requirements of [MCR 1.111(F)] and the foreign
language interpreter may participate remotely.” MCR
1.111(B)(3).
d. Denying Request for Interpreter

“Any time a court denies a request for the appointment of
a foreign language interpreter . . . , it shall do so by
written order.” MCR 1.111(H)(1). “An LEP individual
may immediately request review of the denial of
appointment of a foreign language interpreter[.]” MCR
1.111(H)(2). “A request for review must be submitted to
the court within 56 days after entry of the order.” Id.
3. Waiver of Right to Interpreter

“A person may waive the right to a foreign language interpreter
established under [MCR 1.111(B)(1)] unless the court determines
that the interpreter is required for the protection of the person’s
rights and the integrity of the case or court proceeding.” MCR
1.111(C). “The court must find on the record that a person’s
waiver of an interpreter is knowing and voluntary.” Id. “When
accepting the person’s waiver, the court may use a foreign
language interpreter.” Id. “For purposes of this waiver, the court

is not required to comply with the requirements of [MCR

1.111(F)] and the foreign language interpreter may participate
remotely.” MCR 1.111(C).
A defendant does not make “an informed waiver of his [or her]
right to receive simultaneous translation during his [or her]
trial[]” under MCL 775.19a where there is no indication “that
[the] defendant [has] made a personal and informed decision to
waive his [or her] right to an interpreter[]” and where “the trial
court [does not] ask[] [the] defendant personally whether he [or
she] [is] aware of his [or her] constitutional and statutory right to
an interpreter[.]” Gonzalez-Raymundo, 308 Mich App at 187-189
(holding that defense counsel’s assertion that the defendant
“went along with” counsel’s advice to waive his right to an
interpreter “[did not] operate[] to affirmatively waive [the]
defendant’s rights[]”).
4. Classifications of Foreign Language Interpreters
a. Certified Foreign Language Interpreters

“When the court appoints a foreign language interpreter
under [MCR 1.111(B)(1)], the court shall appoint a
certified foreign language interpreter whenever
practicable.” MCR 1.111(F)(1).
b. Qualified Foreign Language Interpreters

“If a certified foreign language interpreter is not
reasonably available, and after considering the gravity of
the proceedings and whether the matter should be
rescheduled, the court may appoint a qualified foreign
language interpreter who meets the qualifications in
[MCR 1.111(A)(6)].” MCR 1.111(F)(1). “The court shall
make a record of its reasons for using a qualified foreign
language interpreter.” Id.
A qualified foreign language interpreter is:
“(a) A person who provides interpretation

services, provided that the person has:
(i) registered with the State Court

Administrative Office; and
(ii) met the requirements established by
the state court administrator for this
interpreter classification; and

(iii) been determined by the court after

voir dire to be competent to provide
interpretation services for the
proceeding in which the interpreter is
providing services, or
(b) A person who works for an entity that

provides in-person interpretation services
provided that:
(i) both the entity and the person have

registered with the State Court
Administrative Office; and
(ii) the person has met the requirements
established by the state court
administrator for this interpreter
classification; and
(iii) the person has been determined by
the court after voir dire to be competent
to provide interpretation services for the
providing services, or
(c) A person who works for an entity that

provides interpretation services by
telecommunication equipment, provided
that:
(i) the entity has registered with the State

Court Administrative Office; and
(ii) the entity has met the requirements
established by the state court
administrator for this interpreter
classification; and
(iii) the person has been determined by
the court after voir dire to be competent
to provide interpretation services for the
providing services[.]” MCR 1.111(A)(6).
c. Other Capable Person

“If neither a certified foreign language interpreter nor a
qualified foreign language interpreter is reasonably
available, and after considering the gravity of the
proceeding and whether the matter should be
rescheduled, the court may appoint a person whom the
court determines through voir dire to be capable of

conveying the intent and content of the speaker’s words
sufficiently to allow the court to conduct the proceeding
without prejudice to the limited English proficient
person.” MCR 1.111(F)(2).
d. Court Employee As Foreign Language

Interpreter
“A court employee may interpret legal proceedings as
follows:
(a) The court may employ a person as an

interpreter. The employee must meet the
minimum requirements for [certified foreign
language] interpreters established by [MCR
1.111(A)(4)]. The state court administrator
may authorize the court to hire a person who
does not meet the minimum requirements
established by [MCR 1.111(A)(4)] for good
cause including the unavailability of a
certification test for the foreign language and
the absence of certified interpreters for the
foreign language in the geographic area in
which the court sits. The court seeking
authorization from the state court
administrator shall provide proof of the
employee’s competency to act as an
interpreter and shall submit a plan for the
employee to meet the minimum requirements
established by [MCR 1.111(A)(4)] within a
reasonable time.
(b) The court may use an employee as an

interpreter if the employee meets the
minimum requirements for interpreters
established by [MCR 1.111] and is not
otherwise disqualified.” MCR 1.111(E)(2).
5. Appointing More Than One Interpreter

In general, “[t]he court shall appoint a single interpreter for a
case or court proceeding.” MCR 1.111(F)(3). However, “[t]he
court may appoint more than one interpreter after consideration
of[:]
• the nature and duration of the proceeding;

• the number of parties in interest and witnesses

requiring an interpreter;
• the primary languages of those persons; and
• the quality of the remote technology that may be

utilized when deemed necessary by the court to
ensure effective communication in any case or court
proceeding.” MCR 1.111(F)(3) (bullets added).
6. Avoiding Potential Conflicts of Interest

“The court should use all reasonable efforts to avoid potential
conflicts of interest when appointing a person as a foreign
language interpreter and shall state its reasons on the record for
appointing the person if any of the following applies:
(a) The interpreter is compensated by a business

owned or controlled by a party or a witness;
(b) The interpreter is a friend, a family member, or

a household member of a party or witness;
(c) The interpreter is a potential witness;
(d) The interpreter is a law enforcement officer;
(e) The interpreter has a pecuniary or other interest

in the outcome of the case;
(f) The appointment of the interpreter would not

serve to protect a party’s rights or ensure the
integrity of the proceedings;
(g) The interpreter does have, or may have, a

perceived conflict of interest;
(h) The appointment of the interpreter creates an

appearance of impropriety.” MCR 1.111(E)(1).
7. Recordings
“The court may make a recording of anything said by a foreign
language interpreter or a limited English proficient person while
testifying or responding to a colloquy during those portions of
the proceedings.” MCR 1.111(D).
8. Interpreter Oath or Affirmation

“The court shall administer an oath or affirmation to a foreign
language interpreter substantially conforming to the following:
‘Do you solemnly swear or affirm that you will

truly, accurately, and impartially interpret in the
matter now before the court and not divulge
confidential communications, so help you God?’”
MCR 1.111(G).
9. Interpreter Costs
“The court may set reasonable compensation for interpreters
who are appointed by the court.” MCR 1.111(F)(4). “Court-
appointed interpreter costs are to be paid out of funds provided
by law or by the court.” Id. See also MCL 775.19a; MCL 775.19.
“If a party is financially able to pay for interpretation costs, the

court may order the party to reimburse the court for all or a
portion of interpretation costs.” MCR 1.111(F)(5). “Any time a
court . . . orders reimbursement of interpretation costs, it shall do
so by written order.” MCR 1.111(H)(1). “An LEP individual may
immediately request review of . . . an assessment for the
reimbursement of interpretation costs.” MCR 1.111(H)(2). “A
request for review must be submitted to the court within 56 days
after entry of the order.” Id.

Chapter 2: Criminal Jurisdiction and Venue
2.1 Introduction ......................................................................................... 2-2

Part A: Criminal Jurisdiction: Generally-Applicable Principles
2.2 Subject Matter Jurisdiction .................................................................. 2-2
2.3 Territorial Jurisdiction .......................................................................... 2-3
2.4 Personal Jurisdiction ............................................................................ 2-5
Part B: Circuit Court Jurisdiction
2.5 Circuit Court’s Subject Matter Jurisdiction .......................................... 2-7
2.6 Personal Jurisdiction in Circuit Court ................................................... 2-8
Part C: District Court Proceedings
2.8 Applicable Court Rules ....................................................................... 2-12
2.9 Overview of District Court Magistrates’ Authority ............................ 2-14
Part D: Venue
2.11 Venue: General Principles .................................................................. 2-21
2.12 Determination of Proper Venue......................................................... 2-22
2.13 Sufficiency of Evidence to Prove Venue............................................. 2-29
2.14 Motion to Change Venue ................................................................... 2-30
2.15 Standard of Review for Venue Error .................................................. 2-32

2.1 Introduction
This chapter provides an overview of jurisdiction and venue in criminal
cases. Part A provides a discussion of jurisdiction principles as generally
applicable in all criminal proceedings. Part B more specifically discusses
circuit court jurisdiction. Part C provides a comprehensive discussion of
district court proceedings, including matters cognizable before district
court magistrates. Finally, Part D discusses venue.
Part A: Criminal Jurisdiction: Generally-Applicable Princi-

ples
2.2 Subject Matter Jurisdiction

“It is the right of the court to exercise jurisdiction over a class of cases,
such as criminal cases.” People v Goecke, 457 Mich 442, 458 (1998). “Subject
matter jurisdiction ‘concerns a court’s “abstract power to try a case of the
kind or character of the one pending” and is not dependent on the
particular facts of the case.’” People v Lown, 488 Mich 242, 268 (2011)
(citations and emphasis omitted). “Subject matter jurisdiction is
presumed unless expressly denied by constitution or statute[.]” Goecke,
457 Mich at 458 (citation omitted).
The circuit court generally has jurisdiction over all felony criminal cases
and misdemeanor criminal cases punishable by at least one year of
imprisonment. See MCL 600.8311; Const 1963, art 6, § 13.
The district court generally has jurisdiction over all proceedings

involving misdemeanors punishable by a fine or imprisonment not
exceeding 1 year, or both, and ordinance and charter violations
punishable by a fine or imprisonment, or both; additionally, the district
court has jurisdiction over certain preliminary proceedings, such as
arraignments and preliminary examinations, in felony cases. MCL
600.8311.1
Because subject matter jurisdiction concerns the court’s power to hear a

case, it is not subject to forfeiture, waiver, or stipulation. See United States
v Cotton, 535 US 625, 630 (2002); Lown, 488 Mich at 268; People v Eaton, 184
Mich App 649, 653 (1990). The issue of subject matter jurisdiction “can be
raised at any time by any party or the court[,]” In re Contempt of Dorsey,
1 See the Michigan Judicial Institute’s table including information on the jurisdiction of district court judges
and magistrates over preliminary matters in all criminal proceedings.

306 Mich App 571, 581 (2014) (citation omitted), and the court is required
to recognize that it lacks subject matter jurisdiction, “regardless of
whether the parties raised the issue[,]” People v Clement, 254 Mich App
387, 394 (2002) (citations omitted).
“A trial court must dismiss an action when there is a lack of subject-

matter jurisdiction, and a party cannot be estopped from raising the
issue.” Dorsey, 306 Mich App at 581 (citation omitted). “‘When a court is
without jurisdiction of the subject matter, its acts and proceedings are of
no force and validity; they are a mere nullity and are void. . . . Thus, an
order entered without jurisdiction may be challenged collaterally as well
as directly.’” Clement, 254 Mich App at 394 (citation omitted).
2.3 Territorial Jurisdiction

Territorial jurisdiction refers to “[t]he authority to exercise jurisdiction
over acts that occur outside the state’s physical borders[, which]
developed as an exception to the rule against extraterritorial
jurisdiction.” People v Blume, 443 Mich 476, 480, 486-487 (1993),
superseded in part by statute as stated in People v Gayheart, 285 Mich App
202, 209 (2009); see also Gayheart, 285 Mich App at 208-210.
“[T]erritorial jurisdiction and venue are two different concepts.

‘[J]urisdiction refers to the judicial power to hear and determine a
criminal prosecution, whereas venue relates to and defines the place
where the prosecution is to be brought or tried.’” Gayheart, 285 Mich App
at 215-216 (citations omitted).2 The Gayheart Court explained:
“‘The authority of every tribunal is necessarily restricted by

the territorial limits of the State in which it is established,’
and ‘[a]ny attempt to exercise authority beyond those limits’
constitutes ‘an illegitimate assumption of power.’ However,
nearly 100 years ago, the United States Supreme Court
announced that ‘[a]cts done outside a jurisdiction, but
intended to produce and producing detrimental effects
within it, justify a State in punishing the cause of the harm[.]’
Until 2002, the common-law rule in Michigan[] . . . was that
the state could not exercise territorial jurisdiction over
criminal conduct committed in another state unless that
conduct was intended to have, and did in fact have, ‘a
detrimental effect within the state.’ Blume, 443 Mich at 477.
The Blume Court observed that ‘[u]nlike some states,
Michigan has not enacted legislation generally defining the
2
However, there is some necessary overlap; for example, see MCL 600.8312 (governing venue based on
location of offense) and MCL 762.3 (governing jurisdiction based on location of offense). See Part D for
discussion of venue in criminal proceedings.

reach of its criminal statutes.’ Id. at 480 n 7.” Gayheart, 285

Mich App at 208 (some citations omitted).
However, in 2002, the Legislature enacted MCL 762.2, which “broadened

the scope of Michigan’s territorial jurisdiction over criminal matters,
significantly expanding upon the common-law rule explained in Blume[,
443 Mich 476].” Gayheart, 285 Mich App at 208-209. MCL 762.2 provides:
“(1) A person may be prosecuted for a criminal offense he or

she commits while he or she is physically located within this
state or outside of this state if any of the following
circumstances exist:
(a) He or she commits a criminal offense wholly or

partly within this state.
(b) His or her conduct constitutes an attempt to commit

a criminal offense within this state.
(c) His or her conduct constitutes a conspiracy to

commit a criminal offense within this state and an act in
furtherance of the conspiracy is committed within this
state by the offender, or at his or her instigation, or by
another member of the conspiracy.
(d) A victim of the offense or an employee or agent of a

governmental unit posing as a victim resides in this
state or is located in this state at the time the criminal
offense is committed.
(e) The criminal offense produces substantial and

detrimental effects within this state.
(2) A criminal offense is considered under [MCL 762.2(1)] to
be committed partly within this state if any of the following
apply:
(a) An act constituting an element of the criminal

offense is committed within this state.
(b) The result or consequences of an act constituting an

element of the criminal offense occur within this state.
(c) The criminal offense produces consequences that

have a materially harmful impact upon the system of
government or the community welfare of this state, or
results in persons within this state being defrauded or
otherwise harmed.”
“[P]ursuant to MCL 762.2(1)(a) and [MCL 762.2(2)(a)], Michigan now has

statutory territorial jurisdiction ‘over any crime where any act

constituting an element of the crime is committed within Michigan,’

[People v King (Genevieve), 271 Mich App 235, 243 (2006)], even if there is
no indication that the accused actually intended the detrimental effects of
the offense to be felt in this state.” Gayheart, 285 Mich App at 209-210.
However, “the Due Process Clause forbids a state from applying its own
substantive law to a transaction or occurrence in which the state has
insufficient interests or with which the state has insufficient contacts.”
Gayheart, 285 Mich App at 221 (citations omitted). Accordingly, in order
“to permit the constitutional exercise of territorial jurisdiction[,]” the
state must have “‘a significant contact or significant aggregation of
contacts’ [with the defendant’s conduct] so that application of Michigan’s
criminal law [is] ‘neither arbitrary nor fundamentally unfair.’” Id. at 217,
220-221, 224-225 (holding that territorial jurisdiction was constitutionally
exercised under MCL 762.2(1)(a) and MCL 762.2(2)(a) where “even
though the evidence suggested that the fatal blows were struck in
Indiana, and despite the discovery of the victim’s body in Indiana,” the
evidence “showed that [the] defendant premeditated the killing,
kidnapped the victim, and selected the murder weapon in Michigan[,]”
demonstrating that “at least one essential element of both felony murder
and premeditated murder was actually committed within the state of
Michigan[]”) (citations omitted).
“[W]hen the matter of territorial jurisdiction is placed in issue in a given

case—and assuming that the trial court has determined that the facts to
be offered by the prosecution, if proven, would be legally adequate to
confer jurisdiction under MCL 762.2—the prosecution must prove to the
trier of fact beyond a reasonable doubt that the alleged act, consequence,
or other condition that would confer territorial jurisdiction under MCL
762.2 has in fact occurred within the state of Michigan.” Gayheart, 285
Mich App at 214. “[L]ike venue, the existence of territorial jurisdiction
may be proven by circumstantial evidence.” Id. at 216 (citations omitted).
In general, state courts in Michigan, not federal courts, “have jurisdiction

over a criminal prosecution in which a defendant is a non-Indian, the
offense is committed on Indian lands or in Indian country, and the
offense is either victimless or the victim is not an Indian.” People v Collins
(Stormy), 298 Mich App 166, 177 (2012).
2.4 Personal Jurisdiction

Personal jurisdiction “‘deals with the authority of the court over
particular persons[.]’” People v Lown, 488 Mich 242, 269 (2011) (citation
omitted). For example, a statute that “requires dismissal of a particular
defendant in a particular case when the [statute] is violated[] . . . governs
personal jurisdiction” rather than subject matter jurisdiction. Id. at 268-269
(holding that “the jurisdictional aspect of the 180-day rule, MCL

780.133,” pertains to personal jurisdiction over a particular defendant

rather than to the court’s subject matter jurisdiction). “[A]ny legislative
intent to divest jurisdiction once it has properly attached must be clearly
and unambiguously stated.” People v Veling, 443 Mich 23, 32 n 13 (1993)
(citation omitted). “[A] party may stipulate to, waive, or implicitly
consent to personal jurisdiction.” Lown, 488 Mich at 268 (citations and
emphasis omitted); see also People v Eaton, 184 Mich App 649, 653 (1990).
With respect to juvenile offenders,3 the family division of circuit court

(“Family Division”) and the court of general criminal jurisdiction have
concurrent jurisdiction over certain classes of cases.4 The circuit court has
jurisdiction over specified juvenile violations as described in MCL
600.606 (automatic waiver proceedings); the Family Division has
jurisdiction over a juvenile between the ages of 14 and 17 who is charged
with a specified juvenile violation only if the prosecutor files a petition in
the Family Division rather than in the court of general criminal
jurisdiction. MCL 712A.2(a)(1); Veling, 443 Mich at 30-31.5 The Family
Division may waive its jurisdiction over a proceeding in which a juvenile
14, 15, or 16 years of age is accused of an act that if committed by an adult
would be a felony (traditional waiver proceedings).6 MCL 712A.4. The
Family Division also has concurrent jurisdiction over proceedings
involving 17-year-old wayward minors.7 MCL 712A.2(d). Additionally,
the Family Division has concurrent jurisdiction over “proceedings
concerning a juvenile under 18 years of age” if “the juvenile is dependent
and is in danger of substantial physical or psychological harm[]” under
certain circumstances, MCL 712A.2(b)(3), including if the juvenile “is
alleged to have committed a commercial sexual activity” under MCL
750.462a “or a delinquent act that is the result of force, fraud, coercion, or
3 The Family Division of Circuit Court (“Family Division”) has jurisdiction over “[c]ases involving juveniles as
provided in [the Juvenile Code], MCL 712A.1 to [MCL] 712A.32.” MCL 600.1021(1)(e); see also MCL
600.601(4); MCL 600.1001; MCL 712A.1(1)(e). “Except as otherwise provided in [MCL 712A.2(a)(1)],” the
Family Division has “[e]xclusive original jurisdiction superior to and regardless of the jurisdiction of another
court” over a proceeding in which a juvenile under the age of 17 is accused of violating a law or ordinance,
MCL 712A.2(a)(1), or of committing a status offense, MCL 712A.2(a)(2)-(4). The Family Division also has
jurisdiction over proceedings involving personal protection orders (PPOs), including a PPO proceeding in
which a juvenile under the age of 18 is the respondent, MCL 712A.2(h); MCL 600.1021(1)(k). For a
complete discussion of jurisdiction over juvenile offenders, see the Michigan Judicial Institute’s Juvenile
Justice Benchbook.
4 “A circuit court’s authority to exercise jurisdiction over a defendant charged with a felony committed as a
minor constitutes a question of personal, not subject matter, jurisdiction.” People v Kiyoshk, 493 Mich 923,
923 (2013). A “[d]efendant’s age when the offense was committed does not pertain to the ‘kind or
character’ of the case, but rather constitutes a defendant-specific, ‘particular fact[].’ Whether [a]
defendant was of an age that [makes] circuit court jurisdiction appropriate is thus a question of personal
jurisdiction.” Kiyoshk, 493 Mich at 923, quoting Lown, 488 Mich at 268, and citing Veling, 443 Mich at 31-
32 (additional citations omitted).
5
See Chapter 16 of the Michigan Judicial Institute’s Juvenile Justice Benchbook for discussion of automatic
waiver proceedings.
6 See Chapter 14 of the Michigan Judicial Institute’s Juvenile Justice Benchbook for discussion of traditional
waiver proceedings.

manipulation exercised by a parent or other adult[,]” MCL

712A.2(b)(3)(C).8
Part B: Circuit Court Jurisdiction9
2.5 Circuit Court’s Subject Matter Jurisdiction10

The circuit court is the court of general jurisdiction. Const 1963, art 6, §
13; MCL 600.601; MCL 600.605; MCL 767.1; see also People v Lown, 488
Mich 242, 268 (2011). It has jurisdiction over all matters not assigned to
other courts, except as otherwise provided by the Legislature. Const
1963, art 6, § 13; MCL 600.605. The circuit court may share jurisdiction
with other courts under a plan of concurrent jurisdiction and is subject to
the requirements of MCL 600.401 et seq. “A concurrent jurisdiction plan
that was adopted, approved by the [S]upreme [C]ourt, and in effect on
December 31, 2012, is considered valid and in compliance with the
requirements of [MCL 600.401 et seq].” MCL 600.412.11
The circuit court has subject matter jurisdiction over felonies and
misdemeanors12 punishable by at least one year of imprisonment.13 See
MCL 600.8311; Const 1963, art 6, § 13; Lown, 488 Mich at 268.14 The circuit
court has jurisdiction over these offenses “from the bindover from the
district court unless otherwise provided by law.” MCR 6.008(B).15
7See Chapter 2 of the Michigan Judicial Institute’s Juvenile Justice Benchbook for discussion of wayward
minors.
8
In addition, the Family Division has ancillary jurisdiction over cases involving guardians and conservators
as provided in article 5 of the Estates and Protected Individuals Code (EPIC), MCL 700.5101 et seq., and
over cases involving mentally ill or developmentally disabled persons under the Mental Health Code, MCL
330.1001 et seq. MCL 600.1021(2)(a)-(b).
9
See the Michigan Judicial Institute’s Civil Proceedings Benchbook for a complete discussion of trial court
jurisdiction. See the Michigan Judicial Institute’s Juvenile Justice Benchbook for discussion of jurisdiction
over juvenile offenders.
10 For general discussion of subject matter jurisdiction, see Section 2.2.
11 See the Michigan Judicial Institute’s Civil Proceedings Benchbook for additional discussion of concurrent
jurisdiction planning. See also SCAO’s Concurrent Jurisdiction Planning, Guidelines, and Application, as well
as SCAO’s concurrent jurisdiction webpage, available at http://courts.michigan.gov/Administration/admin/
op/Pages/Concurrent-Jurisdiction.aspx.
12 See Section 2.7(A) for discussion of the definitions of felony and misdemeanor.
13
The district court has jurisdiction over all proceedings involving misdemeanor punishable by a fine or
imprisonment not exceeding one year, or both, and ordinance and charter violations punishable by a fine
or imprisonment, or both. MCL 600.8311(a)-(b). In addition, the district court has jurisdiction over certain
preliminary proceedings involving felonies and circuit court misdemeanors. MCL 600.8311(c)-(f); see also
MCR 6.008(A). See Section 2.7 for discussion of district court jurisdiction.

MCR 6.008(C)-(E) provide guidance regarding circuit court jurisdiction

following bindover in the event that the defendant ultimately pleads
guilty to or is convicted of a misdemeanor offense that would normally
be cognizable in the district court.
• Misdemeanor pleas. “The circuit court retains jurisdiction over

any case in which a plea is entered or a verdict rendered to a
charge that would normally be cognizable in the district court.”
MCR 6.008(C).
• Sentencing. “The circuit court shall sentence all defendants

bound over to circuit court on a felony that either plead guilty
to, or are found guilty of, a misdemeanor.” MCR 6.008(D).
• Concurrent jurisdiction and probation officers. “As part of a

concurrent jurisdiction plan, the circuit court and district court
may enter into an agreement for district court probation
officers to prepare the presentence investigation report and
supervise on probation defendants who either plead guilty to,
or are found guilty of, a misdemeanor in circuit court. The case
remains under the jurisdiction of the circuit court.” MCR
6.008(E).
2.6 Personal Jurisdiction in Circuit Court16

“In personam jurisdiction is vested in the circuit court upon the filing of a
return of the magistrate before whom the defendant waived preliminary
examination[] or ‘before whom the defendant had been examined.’”
People v Goecke, 457 Mich 442, 458-459 (1998) (citations omitted). “And just
as the filing of the magistrate’s return confers jurisdiction on the circuit
court, . . . it has the effect of divesting the district court of jurisdiction[.]”
People v Taylor (Robbie), 316 Mich App 52, 54 (2016), citing People v McGee
(Keangela), 258 Mich App 683, 695 (2003); People v Sherrod, 32 Mich App
183, 186 (1971) (emphasis added). “Having once vested in the circuit
14 The Family Division of Circuit Court (“Family Division”) has jurisdiction over “[c]ases involving juveniles
as provided in [the Juvenile Code], MCL 712A.1 to [MCL] 712A.32.” MCL 600.1021(1)(e); see also MCL
600.601(4); MCL 600.1001; MCL 712A.1(1)(e). “Except as otherwise provided in [MCL 712A.2(a)(1)],” the
Family Division has “[e]xclusive original jurisdiction superior to and regardless of the jurisdiction of another
court” over a proceeding in which a juvenile under the age of 17 is accused of violating a law or ordinance,
MCL 712A.2(a)(1), or of committing a status offense, MCL 712A.2(a)(2)-(4). The Family Division also has
jurisdiction over proceedings involving personal protection orders (PPOs), including a PPO proceeding in
which a juvenile under the age of 18 is the respondent, MCL 712A.2(h); MCL 600.1021(1)(k). See Section
2.4 for a brief discussion of personal jurisdiction over juveniles charged with felony offenses. For a
complete discussion of jurisdiction over juvenile offenders, see the Michigan Judicial Institute’s Juvenile
Justice Benchbook.
15
“The failure of the court to properly document the bindover decision shall not deprive the circuit court
of jurisdiction.” MCR 6.008(B). See Chapter 7 for discussion of bindover.
16 For general discussion of personal jurisdiction, see Section 2.4.

court, personal jurisdiction is not lost even when a void or improper

information is filed.” Goecke, 457 Mich at 458-459, citing In re Elliott, 315
Mich 662, 675 (1946).
“[T]here is a presumption against divesting a [circuit] court of its

jurisdiction once it has properly attached, and any doubt is resolved in
favor of retaining jurisdiction.” People v Veling, 443 Mich 23, 32 (1993)
(citation omitted); see also People v Reid (Michael), 488 Mich 917, 917
(2010). “Moreover, any legislative intent to divest jurisdiction once it has
properly attached must be clearly and unambiguously stated.” Veling,
443 Mich at 32 n 13 (citation omitted); see also Reid (Michael), 488 Mich at
917. “Having once vested in the circuit court, personal jurisdiction is not
lost even when a void or improper information is filed.” Goecke, 457 Mich
at 459 (citation omitted).
“[W]here the circuit court acquires jurisdiction over a defendant because

of a felony charge, that jurisdiction is not lost because of a subsequent
conviction of a lesser included misdemeanor.” Veling, 443 Mich at 32-33,
citing People v Schoeneth, 44 Mich 489, 491 (1880). “Similarly, Michigan
courts extend circuit court jurisdiction to all same transaction offenses an
adult is alleged to have committed, even though the circuit court had
original jurisdiction over only some of the offenses[;] [f]or example,
where an adult is charged with a felony and a misdemeanor, the circuit
court has jurisdiction to dispose of the entire case, even though a circuit
court has no jurisdiction over misdemeanor charges alone.” Veling, 443
Mich at 33 (citations omitted). See also Reid (Michael), 488 Mich at 917
(reversing “the Court of Appeals[’] decision that the circuit court did not
have jurisdiction to try the defendant’s misdemeanor charge once the
felony charge was dismissed on the day of trial[]”).
Part C: District Court Proceedings
2.7 District Court Jurisdiction
A. Applicable Definitions of Felony and Misdemeanor

By statute, an offense designated as a misdemeanor is nevertheless
considered a felony for purposes of determining trial-court
jurisdiction if it is punishable by more than one year of
imprisonment.
• Felony. The Michigan Code of Criminal Procedure, MCL

760.1 et seq., defines felony as a violation of Michigan’s penal
law “for which the offender, upon conviction, may be

punished by imprisonment for more than 1 year or an

offense expressly designated by law to be a felony.” MCL
761.1(f); see also MCL 750.7, defining felony, for purposes of
the Michigan Penal Code, as “an offense for which the
offender, on conviction may be punished by death, or by
imprisonment in state prison.”
• Misdemeanor. The Code of Criminal Procedure defines

misdemeanor as a violation of Michigan’s penal law “that is
not a felony or a violation of an order, rule, or regulation of
a state agency that is punishable by imprisonment or a fine
that is not a civil fine.” MCL 761.1(n). Some misdemeanors
are classified under the Code of Criminal Procedure as
minor offenses, violations for which the maximum
permissible imprisonment does not exceed 92 days and the
maximum fine does not exceed $1,000.00. MCL 761.1(m).
See also MCL 750.8, defining misdemeanor, for purposes of
the Michigan Penal Code, as “any act or omission, not a
felony, [that] is punishable according to law, by a fine,
penalty or forfeiture, and imprisonment, or by such fine,
penalty or forfeiture, or imprisonment, in the discretion of
the court[.]”
A district court’s jurisdiction is limited by MCL 600.8311(a) to

misdemeanors that are punishable by not more than one year of
imprisonment. However, “circuit court misdemeanors” (sometimes
also colloquially referred to as “serious” or “high court”
misdemeanors) are punishable by more than one year of
imprisonment. Any misdemeanor punishable by more than one
year of imprisonment is not cognizable in the district court and is
jurisdiction.
B. Proceedings Over Which District Court Has Jurisdiction

• One-Year Misdemeanors, Ordinance Violations, and
Charter Violations. The district court has jurisdiction over
all proceedings involving misdemeanors punishable by a
fine or imprisonment not exceeding 1 year, or both, and
ordinance and charter violations punishable by a fine or
imprisonment, or both. MCL 600.8311(a)-(b); see also MCR
6.008(A).
• Arraignments. In all cases, the district court has

jurisdiction to conduct arraignments, set bail, and accept
bonds. MCL 600.8311(c).
• Other Preliminary Proceedings Involving Felonies and

“Circuit Court Misdemeanors.” In cases involving felonies
and misdemeanors cognizable by the circuit court
(misdemeanors punishable by more than one year of
imprisonment), the district court has jurisdiction to

conduct probable cause conferences, preliminary
examinations, and circuit court (post-bindover)
arraignments. MCL 600.8311(d)-(f).17 The district court’s
jurisdiction over these offenses continues “through the
preliminary examination and until the entry of an order to
bind the defendant over to the circuit court.” MCR
6.008(A).
Specifically, MCL 600.8311 provides:
“The district court has jurisdiction of all of the

following:
(a) misdemeanors punishable by a fine or

imprisonment not exceeding 1 year, or both.
(b) Ordinance and charter violations punishable by

a fine or imprisonment, or both.
(c) Arraignments, the fixing of bail and the

accepting of bonds.
(d) Probable cause conferences in all felony cases

and misdemeanor cases not cognizable by the
district court and all matters allowed at the
probable cause conference under . . . MCL 766.4.
(e) Preliminary examinations in all felony cases

preliminary examination under . . . MCL 766.1[ et
seq]. There shall not be a preliminary examination
for any misdemeanor to be tried in a district court.
(f) Circuit court arraignments in all felony cases

district court under . . . MCL 766.13. . . .[18]”
Additionally, “[a] district judge has the authority to accept a felony

plea[ and s]hall take a plea to a misdemeanor or felony as provided
17 See the Michigan Judicial Institute’s table including information on the jurisdiction of district court
judges and magistrates over preliminary matters in all criminal proceedings.
18 See Chapter 7 for discussion of probable cause conferences, preliminary examinations, and post-
bindover arraignments.

by court rule if a plea agreement is reached between the parties.”19

MCL 766.4(3).20
A district court has the same power to hear and determine matters
within its jurisdiction as does a circuit court over matters within the
circuit court’s jurisdiction. MCL 600.8317.
2.8 Applicable Court Rules

Chapter 6 of the Michigan Court Rules governs criminal procedure. “The
rules in subchapters 6.000—6.500 govern matters of procedure in
criminal cases cognizable in the circuit courts and in courts of equivalent
criminal jurisdiction.” MCR 6.001(A). Some of these rules, as well as all of
the rules in subchapter 6.600, are specified in MCR 6.001(B) as rules that
“govern matters of procedure in criminal cases cognizable in the district
courts.”
MCR 6.001(E) addresses and resolves any conflict that may exist or arise
between the criminal procedure outlined in Chapter 6 of the Michigan
Court Rules and any statutory provisions concerning the same
procedure:
“The rules in [Chapter 6] supersede all prior court rules in

[Chapter 6] and any statutory procedure pertaining to and
inconsistent with a procedure provided by a rule in [Chapter
6].”
Additionally, the rules of civil procedure (except to the extent that they
clearly apply only to civil actions) apply to criminal cases, unless a
statute or court rule provides a similar or different procedure applicable
to the circumstances. MCR 6.001(D).
A. Misdemeanors (Criminal Cases Cognizable in District

Court)
MCR 6.001(B) provides that the following court rules “govern
matters of procedure in criminal cases cognizable in the district
courts[:]”
• MCR 6.001—MCR 6.004 (scope, purpose and construction,

definitions, and speedy trial);
19
However, following bindover, “[t]he circuit court retains jurisdiction over any case in which a plea is
entered or a verdict rendered to a charge that would normally be cognizable in the district court.” MCR
6.008(C). See Chapter 6 for discussion of pleas.
20 However, “[s]entencing for felony cases and misdemeanor cases not cognizable by the district court shall
be conducted by a circuit judge.” MCL 600.8311(f); see also MCL 766.4(3).

• MCR 6.005(B)-(C) (indigent defendants);
• MCR 6.006 (video and audio proceedings);
• MCR 6.101 (the complaint);
• MCR 6.102(D) and MCR 6.102(F) (arrest on a warrant and

interim bail);
• MCR 6.103 (issuance of summons instead of arrest

warrant);
• MCR 6.104(A) (arraignment without unnecessary delay

before a court or by use of two-way interactive video
technology);
• MCR 6.106 (pretrial release);
• MCR 6.125 (competency hearing);
• MCR 6.202 (disclosure of forensic laboratory report or

certificate);
• MCR 6.425(E)(3) (incarceration for nonpayment of court-

ordered financial obligations);
• MCR 6.427 (judgment);
• MCR 6.435 (correcting mistakes);
• MCR 6.440 (disability of judge);
• MCR 6.445(A)-(G) (probation revocation);
• MCR 6.610 (district court criminal procedure);
• MCR 6.615 (misdemeanor traffic cases);
• MCR 6.620 (jury impaneling); and
• MCR 6.625 (appeal and appointment of appellate counsel).
Other rules not specifically mentioned in MCR 6.001(B) may also be

instructive in situations in which no court rule specific to district
court procedure is supplied elsewhere. See, e.g., MCR 6.104(B)
(governing the place of arraignment).
The circuit court generally retains jurisdiction over all proceedings

in a case following bindover from the district court, including
proceedings involving misdemeanors that would otherwise be
cognizable in the district court. See MCR 6.008(B)-(E).21

B. Felonies and Circuit Court Misdemeanors (Criminal

Cases Cognizable in Circuit Court)
“The rules in subchapters 6.000—6.500 govern matters of procedure
in criminal cases cognizable in the circuit courts and in courts of
equivalent criminal jurisdiction.” MCR 6.001(A).
The following court rules govern preliminary proceedings that may

be conducted by district courts in cases involving felonies and
misdemeanors that are not cognizable by the district court:
• MCR 6.008(A) (providing that “[t]he district court has

jurisdiction over all misdemeanors and all felonies through
the preliminary examination and until the entry of an order
to bind the defendant over to the circuit court”);
• MCR 6.108 (probable cause conference);
• MCR 6.110 (preliminary examination); and
• MCR 6.111 (circuit court (post-bindover) arraignment in

district court).22
2.9 Overview of District Court Magistrates’ Authority

A district court magistrate may exercise the powers, jurisdiction, and
duties of a district court judge if expressly authorized by the Revised
Judicature Act, MCL 600.101 et seq., or by another statute. MCL 761.1(l).
However, “[n]otwithstanding statutory provisions to the contrary,
magistrates exercise only those duties expressly authorized by the chief
judge of the district or division.” MCR 4.401(B). Moreover, “[a]n action
taken by a magistrate may be superseded, without formal appeal, by
order of a district judge in the district in which the magistrate serves.”
MCR 4.401(C).
Subject to the chief district judge’s approval, district court magistrates

generally have the authority to issue arrest warrants and search warrants;
fix bail and accept bond; conduct arraignments and accept pleas for
specified offenses; conduct probable cause conferences23; and impose
sentences for specified offenses. MCL 600.8511(a)-(h).
21 See Section 2.5 for discussion of circuit court jurisdiction.
22
See Chapter 7 for discussion of probable cause conferences, preliminary examinations, and post-
bindover arraignments.
23
A district court magistrate may “conduct probable cause conferences and all matters allowed at the
probable cause conference, except for the taking of pleas and sentencings, under . . . MCL 766.4, when
authorized to do so by the chief district court judge.” MCL 600.8511(h). See Chapter 7 for discussion of
probable cause conferences.

“Proceedings involving magistrates must be in accordance with relevant

statutes and rules.” MCR 4.401(A).
Note—Magistrate and District Court Magistrate

Definitions: The terms magistrate and district court magistrate
are not always synonymous. According to the Code of
Criminal Procedure, a magistrate is a judge of the district court
or municipal court, and this term does not include a district
court magistrate. MCL 761.1(l). The term district court
magistrate is specifically used in the Code of Criminal
Procedure when the subject matter involves a district court
magistrate. See also MCR 6.003(4) (defining court or judicial
officer as “a judge, a magistrate, or a district court magistrate
authorized in accordance with the law to perform the
functions of a magistrate[]”).
A. Appointment of Counsel
Provided the district’s chief judge has so authorized, a district court
magistrate may “[a]pprove and grant petitions for the appointment
of an attorney to represent an indigent defendant accused of any
misdemeanor punishable by imprisonment for not more than 1 year
or ordinance violation punishable by imprisonment.” MCL
600.8513(2)(a). See SCAO Form MC 222, Request for Court-Appointed
Attorney and Order.
Note—Advice of Rights and Michigan Indigent

Defense Commission Act (MIDCA): The MIDCA,
MCL 780.981—MCL 780.1003, requires “[t]rial courts
[to] assure that each criminal defendant is advised of his
or her right to counsel[,]” MCL 780.991(1)(c), and to
make “[a] preliminary inquiry regarding, and . . .
determin[e,] . . . the indigency of any defendant,
including a determination regarding whether a
defendant is partially indigent, . . . not later than at the
defendant’s first appearance in court[,]” MCL
780.991(3)(a).24 See also MCL 775.16.25
24Note also that the Michigan Indigent Defense Commission must “promulgate objective standards for
indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,”
which must include “prompt judicial review, under the direction and review of the supreme court[.]” See
MCL 780.991(3)(e).
25 MCL 775.16 provides:
“When a person charged with having committed a crime appears before a [district court
or municipal court judge] without counsel, the person shall be advised of his or her right
to have counsel appointed. If the person states that he or she is unable to procure
counsel, the magistrate shall appoint counsel, if the person is eligible for appointed
counsel under the [MIDCA].” MCL 775.16; see also MCL 761.1(l).

The MIDCA applies to an indigent defendant who “is

being prosecuted or sentenced for a crime for which an
individual may be imprisoned upon conviction, beginning
with the defendant’s initial appearance in court to
answer to the criminal charge.” MCL 780.983(f)(i)
(defining “‘[i]ndigent criminal defense services’” for
purposes of the MIDCA) (emphasis supplied). See
Section 4.4 for discussion of the MIDCA.
B. Arrest Warrants and Search Warrants26

If authorized by the chief judge of the district or division, a district
court magistrate may issue arrest warrants for felonies,
misdemeanors, and ordinance violations pursuant only to the
written authorization of the prosecuting attorney or municipal
attorney. MCL 764.1(1)-(2); MCL 600.8511(e); MCR 4.401(B). A
district court magistrate needs no authorization to issue a warrant
for the arrest of an individual to whom a police officer issued a
traffic citation under MCL 257.728 if the individual failed to appear
in court when required. MCL 600.8511(e).
A district court magistrate has the jurisdiction and duty “[t]o issue
search warrants, if authorized to do so by a district court judge.”
MCL 600.8511(g). See also MCL 780.651(1); MCL 780.651(3).
C. Arraignments and First Appearances

In addition to limited jurisdiction under MCL 600.8511(a)-(c), as
authorized by the chief judge, to “arraign and sentence upon pleas
of guilty or nolo contendere” for certain listed violations that are
punishable by no more than 93 days’ imprisonment,27 a district
court magistrate has jurisdiction, as authorized by the chief judge,
to arraign defendants and set bond for certain other offenses,
including violations of MCL 257.625 (offenses involving the
operation of a motor vehicle while intoxicated or visibly impaired),
MCL 257.625m (operation of a commercial motor vehicle by a
person with an unlawful blood alcohol content), MCL 324.81134
(offenses involving the operation of an ORV while under the
influence of alcoholic liquor and/or a controlled substance, while
visibly impaired, with an unlawful blood alcohol content, or with
any amount of certain controlled substances in the body),28 and
26 See Chapter 3 for a more complete discussion of issuing arrest warrants and search warrants.
27 See Section 2.9(F) for more information.
28
Effective March 31, 2015, 2014 PA 405 repealed MCL 324.81135. 2014 PA 405, enacting section 1.
However, MCL 600.8511(c) still provides that “the chief judge may authorize the magistrate to arraign
defendants and set bond with regard to violations of . . . [MCL 324.81135.]”

MCL 324.82128 and MCL 324.82129 (offenses involving the

operation of a snowmobile while under the influence of alcoholic
liquor and/or a controlled substance, while visibly impaired, with
an unlawful blood alcohol content, or with any amount of certain
controlled substances in the body). MCL 600.8511(b)-(c).
Additionally, MCL 600.8511(d) provides that a district court

magistrate, if authorized by the chief judge, has jurisdiction over
arraignments for contempt violations and violations of probation
when the violation arises directly out of a case in which a judge or
district court magistrate conducted the same defendant’s
arraignment under MCL 600.8511(a), MCL 600.8511(b), or MCL
600.8511(c), or the same defendant’s first appearance under MCL
600.8513. MCL 600.8511(d) applies only to offenses punishable by
imprisonment for not more than one year, a fine, or both. District
court magistrates are not authorized to conduct violation hearings
or sentencing hearings, but may set bond and accept pleas. Id.
A district court magistrate may also preside over a defendant’s “first

appearance” in certain circumstances. MCL 600.8513(1) states:
“When authorized by the chief judge of the district and

whenever a district judge is not immediately available, a
district court magistrate may conduct the first
appearance of a defendant before the court in all
criminal and ordinance violation cases, including
acceptance of any written demand or waiver of
preliminary examination and acceptance of any written
demand or waiver of jury trial. However, this section
does not authorize a district court magistrate to accept a
plea of guilty or nolo contendere not expressly
authorized under [MCL 600.8511 or MCL 600.8512a]. A
defendant neither demanding nor waiving preliminary
examination in writing is deemed to have demanded
preliminary examination and a defendant neither
demanding nor waiving jury trial in writing is
considered to have demanded a jury trial.”
D. Fixing Bail and Accepting Bond

court magistrate has a duty “[t]o fix bail and accept bond in all
cases.” MCL 600.8511(f); MCR 4.401(B).

E. Proceedings Involving Civil Infractions, Misdemeanors,

and Ordinance Violations Not Punishable by
Imprisonment
To the extent expressly authorized by the chief judge, presiding
judge, or only judge of the district, MCL 600.8512a permits a district
court magistrate to:
“(a) Accept an admission of responsibility, decide a

motion to set aside a default or withdraw an admission,
and order civil sanctions for a civil infraction and order
an appropriate civil sanction permitted by the statute or
ordinance defining the act or omission.
(b) Accept a plea of guilty or nolo contendere and

impose sentence for a misdemeanor or ordinance
violation punishable by a fine and which is not
punishable by imprisonment by the terms of the statute
or ordinance creating the offense.”
F. Pleas to Enumerated Offenses Punishable by

Imprisonment
1. Offenses Punishable by Not More Than 90 Days’

Imprisonment
MCL 600.8511(a) provides that a district court magistrate has
the jurisdiction and duty “[t]o arraign and sentence upon pleas
of guilty or nolo contendere for violations of the following acts
or parts of acts, or a local ordinance substantially
corresponding to these acts or parts of acts, when authorized
by the chief judge of the district court, if the maximum
permissible punishment does not exceed 90 days in jail or a
fine, or both:”
• MCL 324.48701—MCL 324.48740 (sport fishing)
• MCL 324.40101—MCL 324.40120 (wildlife

conservation)
• MCL 324.80101—MCL 324.80199 (Marine Safety

Act)29
• MCL 475.1—MCL 479.43 (Motor Carrier Act)
29 See Section 5.15 for a detailed discussion of arrest and arraignment procedure for a violation of the
Marine Safety Act.

• MCL 480.11—MCL 480.25 (Motor Carrier Safety Act

of 1963)
• MCL 287.261—MCL 287.290 (Dog Law of 1919)
• MCL 436.1703 or MCL 436.1915 (Liquor Control

Code)
• MCL 324.501—MCL 324.513 (DNR Commission)
• MCL 324.8901—MCL 324.8907 (littering)
• MCL 324.43501—MCL 324.43561 (hunting/fishing

licensing)
• MCL 324.73101—MCL 324.73111 (recreational

trespass)
• MCL 750.546—MCL 750.552c (willful trespass)30
2. Michigan Vehicle Code Violations

If authorized by the chief district judge and if the maximum
permissible punishment does not exceed 93 days in jail, a fine,
or both, MCL 600.8511(b) permits a district court magistrate to
arraign and sentence defendants on pleas of guilty or no
contest for violations of the Michigan Vehicle Code (MVC) or
violations of local ordinances substantially corresponding to a
provision of the MVC.
The district court magistrate’s authority to arraign and

sentence does not extend to guilty or no contest pleas for
violations of MCL 257.625 (offenses involving the operation of
a motor vehicle while intoxicated or visibly impaired) and
MCL 257.625m (operation of a commercial motor vehicle by a
person with an unlawful blood alcohol content), and local
ordinances substantially corresponding to those provisions;
however, a district court magistrate may be authorized to
arraign defendants and set bond for violations of MCL 257.625
and MCL 257.625m or substantially corresponding local
ordinances. MCL 600.8511(b).
3. ORV and Snowmobile Violations

30
Effective March 14, 2016, 2015 PA 211 repealed MCL 750.546—MCL 750.551; however, MCL
600.8511(a) has not yet been amended to reflect these changes.

or both, MCL 600.8511(c) permits a district court magistrate to

contest for violations of MCL 324.81101—MCL 324.81150 (ORV
licensing) and MCL 324.82101—MCL 324.82160 (snowmobiles)
or violations of a local ordinance substantially corresponding
to one of these statutory provisions.

violations of MCL 324.81134 (offenses involving the operation
of an ORV while under the influence of alcoholic liquor and/or
a controlled substance, while visibly impaired, with an
unlawful blood alcohol content, or with any amount of certain
controlled substances in the body),31 MCL 324.82128 and MCL
324.82129 (offenses involving the operation of a snowmobile
while under the influence of alcoholic liquor and/or a
controlled substance, while visibly impaired, with an unlawful
blood alcohol content, or with any amount of certain
controlled substances in the body), or a local ordinance
substantially corresponding to one of these statutory
provisions; however, the chief judge may authorize a district
court magistrate to arraign defendants and set bond for
violations under these statutes. MCL 600.8511(c).
G. Probable Cause Conferences32

District court magistrates have jurisdiction “[t]o conduct probable
cause conferences and all matters allowed at the probable cause
conference, except for the taking of pleas and sentencings, under . . .
MCL 766.4, when authorized to do so by the chief district court
judge.” MCL 600.8511(h); see also MCR 6.108(B) (“[a] district court
magistrate may conduct probable cause conferences when
authorized to do so by the chief district judge and may conduct all
matters allowed at the probable cause conference, except taking
pleas and imposing sentences unless permitted by statute to take
pleas or impose sentences[]”).
See also MCL 766.1, which provides, in relevant part:
“A district court magistrate . . . shall not preside at a

preliminary examination or accept a plea of guilty or
nolo contendere to an offense or impose a sentence
31
32 See Chapter 7 for discussion of probable cause conferences.

except as otherwise authorized by . . . [MCL 600.8511(a)-

(c)].”
H. Appeal From District Court Magistrate’s Ruling

A party may appeal as of right any decision of the district court
magistrate to the district court in which the magistrate serves. MCR
4.401(D). The appeal must be in writing, must be made within seven
days of the entry of the decision being appealed, and should
substantially comply with the form outlined in MCR 7.104. MCR
4.401(D). Except as otherwise provided by statute or court rule, no
fee is required to file an appeal of a district court magistrate’s ruling.
Id. The district court hears the matter de novo. Id.
2.10 Record Requirements

Except as provided by law or supreme court rule, all proceedings in
district court must be recorded. MCL 600.8331.
MCR 6.610(C) provides that unless a writing is permitted, a verbatim

record must be made of the district court proceedings listed in MCR
6.610(D)-(F). MCR 6.610(D) governs arraignments in misdemeanor cases
and provides that a writing may be used to inform a defendant of the
offense, the maximum sentence, and the defendant’s rights. MCR
6.610(E) addresses pleas of guilty or nolo contendere and similarly allows
a defendant to be informed of his or her rights in writing. If a defendant
is informed of his or her rights in writing, “the court shall address the
defendant and obtain from the defendant orally on the record a
statement that the rights were read and understood and a waiver of those
rights. The waiver may be obtained without repeating the individual
rights.” MCR 6.610(E)(4). A writing may not be used to satisfy the record
requirements of a sentencing proceeding under MCR 6.610(F).
MCR 6.104(F) expressly mandates that “[a] verbatim record must be

made of the arraignment” for a felony or a misdemeanor cognizable in
the circuit court.
Part D: Venue
2.11 Venue: General Principles

“The general venue rule is that defendants should be tried in the county
where the crime was committed. ‘[E]xcept as the legislature for the

furtherance of justice has otherwise provided reasonably and within the

requirements of due process, the trial should be by a jury of the county or
city where the offense was committed.’” People v Houthoofd, 487 Mich 568,
579 (2010) (citations omitted).
Venue is prescribed by statute and is generally dependent upon the

location of the criminal conduct.33 See MCL 600.8312. Additionally,
certain statutes establish venue for offenses that may involve more than
one location. See, e.g., MCL 762.8 (felony consisting of two or more acts);
MCL 762.10 (embezzlement); MCL 762.10c (identity theft).
“[T]erritorial jurisdiction and venue are two different concepts.

‘[J]urisdiction refers to the judicial power to hear and determine a
criminal prosecution, whereas venue relates to and defines the place
where the prosecution is to be brought or tried.’” People v Gayheart, 285
Mich App 202, 215-216 (2009) (citations omitted).
“[V]enue is not an essential element of a criminal offense[.]” Gayheart, 285

Mich App at 216 (citations omitted). However, “the determination of
venue is a question of fact for the jury, and the existence of venue ‘must
be proved by the prosecutor beyond a reasonable doubt[.]’” Id. (citations
omitted). The existence of venue may be proven by circumstantial
evidence and reasonable inferences drawn from the evidence. Id.
(citations omitted).
2.12 Determination of Proper Venue
A. General Rules Based on Political District and Location of

Criminal Conduct
MCL 600.8312 sets out general venue rules based on the type of
district in which the criminal conduct took place.
First-Class Districts. For criminal actions in first-class districts, the

proper venue is the county where the violation took place. MCL
600.8312(1). A first-class district is “a district consisting of 1 or more
counties and in which each county comprising the district is
responsible for maintaining, financing and operating the district
court within its respective county[.]” MCL 600.8103(1).
Second-Class Districts. For criminal actions in second-class

districts, the proper venue is in the district where the violation took
place. MCL 600.8312(2). A second-class district is “a district consisting
of a group of political subdivisions within a county and in which the
33 See Section 2.12.

county where such political subdivisions are situated is responsible

for maintaining, financing and operating the district court[.]” MCL
600.8103(2).
Third-Class Districts. For criminal actions in third-class districts,

the proper venue is “in the political subdivision where the violation
took place, except that when the violation is alleged to have taken
place within a political subdivision where the court is not required
to sit, the action may be tried in any political subdivision within the
district where the court is required to sit.” MCL 600.8312(3). A third
class district is “a district consisting of 1 or more political
subdivisions within a county and in which each political
subdivision comprising the district is responsible for maintaining,
financing and operating the district court within its respective
political subdivision[.]” MCL 600.8103(3).
Several statutes provide exceptions to the general rule that venue is

appropriate in the county in which the crime was committed. See
People v McBurrows, 322 Mich App 404, 414 (2017). The following
subsections address some of these exceptions.
B. Criminal Conduct Near County Boundary Lines

When an offense is committed within one mile of the boundary line
between two counties, the prosecution may take place in either
county. MCL 762.3(1) provides:
“Any offense committed on the boundary line of 2

counties, or within 1 mile of the dividing line between
them, may be alleged in the indictment to have been
committed, and may be prosecuted and punished in
either county.”
Additionally, with respect to criminal offenses cognizable in the

district court, MCL 600.8312(4)(a) provides that if the “offense is
committed on the boundary of 2 or more counties, districts, or
political subdivisions or within 1 mile thereof, venue is proper in
any of the counties, districts, or political subdivisions concerned.”
See also MCL 762.3(3)(a).
C. Acts Occurring at More Than One Location
1. Felony Consisting of Two or More Acts

MCL 762.8 provides:
“Whenever a felony consists or is the culmination

of 2 or more acts done in the perpetration of that

felony, the felony may be prosecuted in any county

where any of those acts were committed or in any
county that the defendant intended the felony or
acts done in perpetration of the felony to have an
effect.”
For venue to be proper under the portion of MCL 762.8

providing for venue “in any county that the defendant
intended the felony or acts done in perpetration of the felony
to have an effect,” there must be evidence that the defendant
intended the effect of his or her criminal actions to occur in that
county. People v McBurrows, 322 Mich App 404, 415 (2017). In
People v Houthoofd, 487 Mich 568 (2010), the Michigan Supreme
Court, construing a former version of MCL 762.8 that provided
for venue only “in any county in which any 1 of said acts was
committed,” held that “when a felony consists of two or more
acts, venue for prosecution of the felony is proper in any
county in which any one of the acts was committed[; however,
t]he statute does not contemplate venue for prosecution in
places where the effects of the act are felt[.]” Houthoofd, 487
Mich at 583-584 (citing People v Webbs, 263 Mich App 531, 532,
534, (2004), and overruling People v Fisher (Charles), 220 Mich
App 133 (1996), and People v Flaherty, 165 Mich App 113 (1987),
to the extent they held otherwise). “Although MCL 762.8 was
amended [after Houthoofd, 487 Mich 568, was decided34] to
authorize venue in a county where a defendant intended an act
to have an effect, there still is no provision authorizing venue
in a county where a defendant’s act merely happens to have an
effect.” McBurrows, 322 Mich App at 416 (emphasis added).
In McBurrows, 322 Mich App at 404, the defendant was charged

in Monroe County with one count of delivery of a controlled
substance (heroin mixed with fentanyl) causing death, MCL
750.317a. Although the victim ultimately died in Monroe
County as a result of fentanyl toxicity, the drug transaction
took place in Wayne County. McBurrows, 322 Mich App at 409,
410. The Court of Appeals rejected the prosecution’s argument
that venue was proper in Monroe County under MCL 762.8,
holding instead that “[b]ecause the alleged criminal offense
was committed in Wayne County, venue [was] proper there.”
McBurrows, 322 Mich App at 414. “[The] defendant’s alleged
criminal act of delivering a controlled substance . . . took place
entirely within Wayne County[, and there was] no allegation
that [the] defendant committed any act in Monroe County[;
b]ecause the alleged crime-with the exception of the sentencing
enhancement for the death of [the victim,]-was complete at the
34 See 2013 PA 128, effective October 9, 2013.

point of the sale, there was no further act to be committed ‘in

the perpetration of that felony.’” McBurrows, 322 Mich App at
415-416 (quoting MCL 762.8 and noting that “[i]t was only the
effect of [the victim’s] death that made [the] defendant subject
to the potential of the additional punishment provided by
MCL 750.317a”) (additional citation omitted). “In a
prosecution under MCL 750.317a, it is not necessary for the
prosecution to prove that the defendant intended for a death to
occur, and there [was] no contention . . . that [the] defendant
harbored such an intent[; m]ost importantly, there [was] no
allegation or evidence that [the] defendant intended such an
effect to occur in Monroe County.” McBurrows, 322 Mich App
at 416 (additionally rejecting the prosecution’s argument that
venue was appropriate under MCL 762.5 (governing venue
where fatal force and death occur in different counties)
(citation omitted).
2. Criminal Conduct Involving Identity Theft and

Related Offenses
Under MCL 762.10c, conduct prohibited by MCL 762.10c(2)
may be prosecuted in any one of the following jurisdictions:
• where the offense occurred.
• where the information used to commit the violation

was illegally used.
• where the victim resides.
MCL 762.10c(2) states that the jurisdiction described in MCL

762.10c(1) “applies to conduct prohibited under 1 or more of
the following laws and to conduct that is done in furtherance
of or arising from the same transaction as conduct prohibited
under 1 or more of the following laws:”
• MCL 445.61—MCL 445.79c (Identity Theft Protection

Act).
• Former MCL 750.285 (identity theft).
• MCL 28.295 (prohibited conduct relating to official

state personal identification cards).
• MCL 257.310(7) (prohibited conduct relating to driver

licenses).
• MCL 257.903 (false certification under Michigan

Vehicle Code).

• MCL 750.157n—MCL 750.157r, MCL 750.157v, and

MCL 750.157w (criminal use of financial transaction
device).
• MCL 750.218 (false pretenses with intent to defraud).
• MCL 750.219a (obtaining telecommunications

services with intent to avoid being charged).
• MCL 750.219e (preparing/submitting unauthorized

loan application).
• MCL 750.248 (prohibited conduct relating to public

records).
• MCL 750.248a (uttering/publishing a false, forged,

altered, or counterfeit financial transaction device
with intent to injure or defraud another person).
• MCL 750.249 (knowingly uttering/publishing as true

a false, forged, altered, or counterfeit record or other
instrument).
• MCL 750.362 (larceny by conversion).
• MCL 750.363 (larceny by false personation).
• MCL 750.539k (unauthorized use of a financial

transaction device to secretly or surreptitiously
capture or transmit personal identifying information.
If an individual is charged with multiple counts of identity

theft under MCL 445.61—MCL 445.79c, or secretly or
surreptitiously capturing or transmitting personal identifying
information from a transaction that involves the use of a
financial transaction device by a person who is not a party to a
transaction under MCL 750.539k, and the violations could be
prosecuted in more than one jurisdiction, all violations may be
properly prosecuted in any of the applicable jurisdictions.
MCL 762.10c(3).
3. Accessory After the Fact

Because commission of the underlying crime is an element of
any accessory after the fact charge, the prosecution of such a
charge is proper in the county where the underlying crime was
committed, even when the actual assistance was rendered in a
county different from the county in which the underlying
crime occurred. People v King (Genevieve), 271 Mich App 235,
237, 242-243 (2006), citing MCL 762.8. Similarly, even when the
assistance was rendered in a state other than Michigan,
jurisdiction to try a defendant charged with accessory after the

fact lies in Michigan because “MCL 762.2(2)(a) provides that
Michigan has jurisdiction over any crime where any act
constituting an element of the crime is committed within
Michigan.” King (Genevieve), 271 Mich App at 243.35
D. Location of Offense Impossible to Determine

MCL 762.3(2) provides:
“If it appears to the attorney general that a felony has

been committed within the state and that it is
impossible to determine within which county it
occurred, the offense may be alleged in the indictment
to have been committed and may be prosecuted and
punished in such county as the attorney general
designates. The state shall bear all expenses of such
prosecution. The responsibility and the authority with
reference to all steps in the prosecution of such case
shall be the same, as between the prosecuting attorney
of the county so designated and the attorney general, as
though it were an established fact that the alleged
criminal acts, if committed at all, were committed
within that county.”
Additionally, with respect to criminal offenses cognizable in the

district court, MCL 600.8312(4)(b) provides that if the “offense is
committed in or upon any railroad train, automobile, aircraft,
vessel, or other conveyance in transit, and it cannot readily be
determined in which county, district, or political subdivision the
offense was committed, venue is proper in any county, district, or
political subdivision through or over which the conveyance passed
in the course of its journey.” See also MCL 762.3(3)(b).
Furthermore, with respect to proceedings in the district court, MCL

762.3(3)(c) provides:
“With regard to state offenses cognizable by the

examining magistrate and to examinations conducted
for offenses not cognizable by the examining magistrate,
the following special provisions apply:
***
(c) Except as otherwise provided in [MCL

762.3(3)(b)], if it appears to the attorney general
35 See Section 2.3 for additional discussion of MCL 762.2.

that the alleged state offense has been committed

within the state and that it is impossible to
determine within which county, district or political
subdivision it occurred, the violation may be
alleged to have been committed and may be
prosecuted and punished or the examination
conducted in such county, district or political
subdivision as the attorney general designates. The
responsibility and the authority with reference to
all steps in the prosecution of such case shall be the
same, as between the prosecuting attorney of the
county so designated and the attorney general, as
within that county, district or political
subdivision.”
E. Proceedings in District Court

Special venue rules apply with respect to criminal offenses
cognizable in the district court and to preliminary examinations
conducted in the district court. MCL 600.8312(4) provides:
“With regard to state criminal violations cognizable by

the district court, the following special provisions shall
apply:
(a) If an offense is committed on the boundary of 2

or more counties, districts, or political subdivisions
or within 1 mile thereof, venue is proper in any of
the counties, districts, or political subdivisions
concerned.
(b) If an offense is committed in or upon any

railroad train, automobile, aircraft, vessel, or other
conveyance in transit, and it cannot readily be
determined in which county, district, or political
subdivision the offense was committed, venue is
proper in any county, district, or political
subdivision through or over which the conveyance
passed in the course of its journey.”
“With regard to state offenses cognizable by the

examining magistrate and to examinations conducted
for offenses not cognizable by the examining magistrate,
the following special provisions apply:


or more counties, districts or political subdivisions
the counties, districts or political subdivisions
concerned.

railroad train, automobile, aircraft, vessel or other
determined in which county, district or political
proper in any county, district or political
passed in the course of its journey.

subdivision.”
A district court has no authority to grant a motion for change of

venue before a preliminary examination is held. In re Attorney
General, 129 Mich App 128, 132 (1983). MCL 762.7, the statute
granting courts of record authority to change venue in criminal
cases, is only applicable to circuit courts in felony cases. In re
Attorney General, 129 Mich App at 131.36
2.13 Sufficiency of Evidence to Prove Venue

“[V]enue is not an essential element of a criminal offense[.]” People v
Gayheart, 285 Mich App 202, 216 (2009) (citations omitted). However, “the
36 See Section 2.14.

determination of venue is a question of fact for the jury, and the existence
of venue ‘must be proved by the prosecutor beyond a reasonable
doubt[.]’” Id. (citations omitted). The existence of venue may be proven
by circumstantial evidence and reasonable inferences drawn from the
evidence. Id. (citations omitted).
“In general, a court may take judicial notice of the locations of political
subdivisions of the state.” People v Smith (Roy), 28 Mich App 656, 657
(1974). “Venue has been held to be established when the crime has been
shown to have been committed in a township located within a particular
county, even though no mention of the county was made.” Id. at 658. In
Smith (Roy), the trial court properly denied the defendant’s motion to
quash the information “on the ground that the prosecution failed to
prove venue in Wayne County at the preliminary examination” where
the evidence introduced at the preliminary examination “indicated that
the offense took place in the city of Taylor[,] . . . [and] the trial court took
judicial notice of the fact that Taylor is a city in Wayne County.” Id. at 657.
2.14 Motion to Change Venue
A. Generally
Venue in a criminal case may be changed “upon good cause shown
by either party.” MCL 762.7. Generally, defendants must be tried in
the county where the crime is committed. MCL 600.8312.37 “[U]nfair
and prejudicial news comment on pending trials has become
increasingly prevalent,” and “[d]ue process requires that the
accused receive a trial by an impartial jury free from outside
influence.” Sheppard (Samuel) v Maxwell, 384 US 333, 362 (1966).
The moving party has the burden of showing good cause for a
change of venue. MCL 762.7. “The burden of establishing that
prospective jurors have been influenced by pretrial publicity is on
the party seeking the change of venue, and merely showing that
jurors have been exposed to pretrial publicity is not in itself
sufficient.” People v Florinchi, 84 Mich App 128, 135 (1978).
“‘[P]retrial publicity—even pervasive, adverse publicity—does not
inevitably lead to an unfair trial.’” Skilling v United States, 561 US
358, 384 (2010), quoting Nebraska Press Ass’n v Stuart, 427 US 539, 554
(1976) (“news stories about Enron did not present the kind of vivid,
37
However, certain exceptions apply as provided by statute. See, e.g., MCL 762.8 (providing that
“[w]henever a felony consists or is the culmination of [two] or more acts done in the perpetration of that
felony, the felony may be prosecuted in any county where any of those acts were committed or in any
county that the defendant intended the felony or acts done in perpetration of the felony to have an
effect[;]” MCL 762.3(3)(a) (providing that “[i]f an offense is committed on the boundary of [two] or more
counties, districts or political subdivisions or within [one] mile thereof, venue is proper in any of the
counties, districts or political subdivisions concerned[]”). See Section 2.12.

unforgettable information [the United States Supreme Court] ha[s]

recognized as particularly likely to produce prejudice, and [the trial
city’s] size and diversity diluted the media’s impact”). 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). Convenience of the parties and
witnesses does not constitute good cause. Id. at 133, 135.
Where potential jurors swear that they will put aside preexisting
knowledge and opinions about the case and that they will be able to
decide the case impartially based on the evidence at trial, such
preexisting knowledge and opinions do not constitute good cause
justifying a change of venue. People v DeLisle, 202 Mich App 658,
662-663 (1993).
“Federal precedent has used two approaches to determine whether

the failure to grant a change in venue is an abuse of discretion.
Community prejudice amounting to actual bias has been found
where there was extensive highly inflammatory pretrial publicity
that saturated the community to such an extent that the entire jury
pool was tainted, and, much more infrequently, community bias has
been implied from a high percentage of the venire who admit to a
disqualifying prejudice.” People v Jendrzejewski, 455 Mich 495, 500-
501 (1997).
In People v Cline, 276 Mich App 634, 638-642 (2007), the Court of
Appeals reviewed the circumstances of the defendant’s case in light
of the standards set out in DeLisle, 202 Mich App 658, and
Jendrzejewski, 455 Mich 495, to determine whether the defendant’s
counsel was ineffective for failing to bring a motion for change of
venue. In Cline, 276 Mich App at 638-642, the totality of the
circumstances surrounding the jury selection—including the fact
that nine out of the selected jury panel of 14 heard about the case
before trial, and 11 local newspaper articles about the case were
published—did not overcome the jurors’ assurances that they could
decide the case impartially.
B. Timing
It is the preferred practice for the trial court to defer ruling on a
motion for change of venue until after jury selection has been
attempted in the original county. People v Harvey (Wayne), 167 Mich
App 734, 741 (1988).



Attorney General, 129 Mich App at 131.
2.15 Standard of Review for Venue Error

A trial court’s determination regarding the existence of venue in a
criminal prosecution is reviewed de novo. People v Webbs, 263 Mich App
531, 533 (2004), superseded in part on other grounds by 2013 PA 128,
effective October 9, 2013.
A trial court’s ruling on a motion for change of venue is reviewed for an

abuse of discretion. People v Jendrzejewski, 455 Mich 495, 500 (1997).
“No verdict shall be set aside or a new trial granted by reason of failure to
prove that the offense was committed in the county or within the
jurisdiction of the court unless the accused raises the issue before the case
is submitted to the jury.” MCL 767.45(1)(c).
“[B]ecause a venue error is not a constitutional structural error, [it] is

subject to a harmless error analysis under MCL 769.26. . . . Moreover,
MCL 600.1645 explicitly provides that no judgment shall be voided solely
on the basis of improper venue.” People v Houthoofd, 487 Mich 568, 593-
594 (2010).

Chapter 3: Initiating Criminal Proceedings
Part A: Electronic Filing

3.1 Electronic Filing .................................................................................... 3-3
Part B: Complaints & Arrest
3.2 Arrest.................................................................................................... 3-6
3.3 Complaints and Warrants .................................................................. 3-11
3.4 Filing a Complaint............................................................................... 3-13
3.5 Substantive Requirements of a Complaint......................................... 3-16
3.6 Finding Probable Cause to Issue Arrest Warrant ............................... 3-20
3.7 Issuing an Arrest Warrant .................................................................. 3-24
3.8 Substantive Requirements of Arrest Warrants .................................. 3-27
3.9 Arrest Warrants and Complaints for Juveniles Charged with Specified
Juvenile Violations.............................................................................. 3-28
3.10 Execution of Arrest Warrants............................................................. 3-28
3.11 Collection of Biometric Data .............................................................. 3-29
3.12 Information or Indictment ................................................................. 3-35
3.13 Circumstances Allowing Warrantless Arrests .................................... 3-41
3.14 Alternatives to a Formal Complaint and Arrest Warrant ................... 3-45
3.15 Interim Bail......................................................................................... 3-50
Part C: Issuing a Search Warrant
3.16 Initiating the Search Warrant Process............................................... 3-50
3.17 Description of the Place to be Searched ............................................ 3-55
3.18 Description of the Person to be Searched, Searched For, and/or
Seized ................................................................................................. 3-57
3.19 Description of Property to be Seized ................................................. 3-58
3.20 Property Subject to Seizure................................................................ 3-60
3.21 Probable Cause .................................................................................. 3-61
3.22 Anticipatory Search Warrant.............................................................. 3-64
3.23 Affidavit.............................................................................................. 3-64

Section Criminal Proceedings Benchbook, Vol. 1, Revised Ed.
3.24 Invalidity of Search Warrant and Suppression of Evidence ............... 3-69

3.25 Verifying and Executing the Affidavit................................................. 3-70
3.26 Submission of Affidavit and Issuance of Search Warrant by Electronic
Device................................................................................................. 3-72
3.27 Issuance of Search Warrant in Operating While Intoxicated/Operating
While Visibly Impaired Cases ............................................................. 3-73
3.28 Issuance of Search Warrants for Electronic Communications ........... 3-76
3.29 Executing the Search Warrant ........................................................... 3-77
3.30 Public Access to Search Warrant Affidavits........................................ 3-80
Part D: Grand Jury
3.31 Grand Jury .......................................................................................... 3-80

Part A: Electronic Filing
3.1 Electronic Filing1

“Electronic filing [(e-filing)] and electronic service of documents is
governed by [MCR 1.109(G)] and the policies and standards of the State
Court Administrative Office.” MCR 1.109(D)(7). Courts must implement
e-filing and electronic service capabilities in accordance with MCR 1.109,
and comply with standards established by the State Court
Administrative Office. MCR 1.109(G)(2). “Confidential and nonpublic
information must be electronically filed or electronically served in
compliance with these standards to ensure secure transmission or the
information.” Id.
Courts must:
• accept e-filings and allow electronic service of documents;
• comply with the e-filing guidelines and plans approved by the

State Court Administrative Office; and
• maintain electronic documents in accordance with the

standards established by the State Court Administrative Office.
MCR 1.109(G)(3)(a)(i)-(iii).
Courts must accommodate the filing and serving of materials that cannot
be done so electronically. MCR 1.109(G)(3)(c). Any document filed on
paper must be converted to electronic format by the clerk of the court.
MCR 1.109(G)(3)(d). The court may serve notices, orders, opinions, and
other documents through the e-filing system. MCR 1.109(G)(3)(e).
“There is only one official court record, regardless whether original or

suitable-duplicate and regardless of the medium.” MCR 8.119(D)(4).
“Documents electronically filed with the court or generated
electronically by the court are original records and are the official court
record. A paper printout of any electronically filed or generated
document is a copy and is a nonrecord for purposes of records retention
and disposal.” Id.
1 See the MiFile webpage for more information on Michigan’s e-filing system.

A. Electronic Filing Process
1. General Provisions
Authorized users must electronically provide specified case
information, including e-mail addresses for achieving e-
service.2 MCR 1.109(G)(5)(a)(i). The authorized user is
responsible for ensuring that a filing has been received by the
e-filing system, and must immediately notify the clerk of the
court if it is discovered that the version of the document
available for viewing through the e-filing system does not
depict the document as submitted (and to resubmit the
document if necessary). MCR 1.109(G)(5)(a)(ii). The authorized
user may file a motion with the court pursuant to MCR
1.109(G)(7) if a controversy arises between the clerk of the
court and the authorized user.3 MCR 1.109(G)(5)(a)(ii).
If the court rejects a submitted document pursuant to MCR

8.119(C), the clerk must notify the authorized user of the
rejection and the reason for the rejection. MCR
1.109(G)(5)(a)(iii). The rejection must be recorded in an e-filing
transaction (from the court to the authorized user), but the
rejected document does not become part of the official court
record. Id.
2. Timing
“A document submitted electronically is deemed filed with the
court when the transmission to the electronic-filing system is
completed and the required filing fees have been paid or
waived.” MCR 1.109(G)(5)(b). “If a document is submitted
with a request to waive the filing fees, the document is deemed
filed on the date the document was submitted to the court.” Id.
“A transmission is completed when the transaction is recorded
as prescribed in [MCR 1.109(G)(5)(c)].” MCR 1.109(G)(5)(b).
The filing date is the date the document was submitted,
regardless of the date the clerk of the court accepts the filing.
Id. A document submitted at or before 11:59 p.m. of a business
day is deemed filed on that business day. Id. “Any document
submitted on a weekend or court holiday is deemed filed on
the next business day.” Id.
2SeeSection 3.1(B) for additional information on electronic service process.
3See Section 3.1(C)for additional information on transmission failures.

Criminal Proceedings Benchbook, Vol. 1, Revised Ed. Section
B. Electronic-Service Process
Service of process of case initiating documents must be made in
accordance with the rules and laws applicable to the particular case
type. MCR 1.109(G)(6)(a)(i).
Service of process of all other documents e-filed must be performed

through the e-filing system unless an exception exists. MCR
1.109(G)(6)(a)(ii). Service must be made by any other method
required by Michigan Court Rules if a party has been exempted
from electronic filing, has not filed a response or answer, or has not
registered with the electronic-filing system and that party’s email
address is unknown. Id. “Delivery of documents through the
electronic-filing system in conformity with [the Michigan Court
Rules] is valid and effective personal service and is proof of service.
MCR 1.109(G)(6)(a)(iii). “Except for service of process of initiating
documents and as otherwise directed by the court or court rule,
service may be performed simultaneously with filing.” MCR
1.109(G)(6)(a)(iv). “When a court rule permits service by mail,
service may be accomplished electronically under [MCR
1.109(G)(6)].” MCR 1.109(G)(6)(a)(v).
“A document served electronically through the electronic-filing

system in conformity with all applicable requirements of this rule is
considered served when the transmission to the recipient’s email
address is completed. A transmission is completed when the
transaction is recorded as prescribed in [MCR 1.109(G)(6)(c)].” MCR
1.109(G)(6)(b).
C. Transmission Failures
“In the event the electronic-filing system fails to transmit a
document submitted for filing, the authorized user may file a
motion requesting that the court enter an order permitting the
document to be deemed filed on the date it was first attempted to be
sent electronically.” MCR 1.109(G)(7)(a). “The authorized user must
prove to the court’s satisfaction that:
(i) the filing was attempted at the time asserted by the

authorized user;
(ii) the electronic-filing system failed to transmit the

electronic document; and
(iii) the transmission failure was not caused, in whole or

in part, by any action or inaction of the authorized user.
A transmission failure caused by a problem with the
filer’s telephone line, ISP, hardware, or software shall be
attributed to the filer.” MCR 1.109(G)(7)(a)(i)-(iii).
Part B: Complaints & Arrest4
3.2 Arrest
A. Probable Cause
“‘A police officer may arrest an individual without a warrant if a
felony has been committed and the officer has probable cause to
believe that individual committed the felony.’” People v Tierney, 266
Mich App 687, 705 (2005), quoting People v Kelly (Albert), 231 Mich
App 627, 631 (1998). “The existence of probable cause is determined
by the totality of the circumstances.” People v Nguyen, 305 Mich App
740, 752 (2014) (citations omitted). In reviewing a challenge to
probable cause, the court “must determine whether the facts
available to the arresting officer at the moment of arrest would
justify a fair-minded person of average intelligence in believing that
the suspected individual had committed the felony.” Kelly (Albert),
231 Mich App at 631. “‘The prosecution has the burden of
establishing that an arrest without a warrant is supported by
probable cause.’” Tierney, 266 Mich App at 705, quoting People v
Davenport, 99 Mich App 687, 691 (1980).
“Because distinctly different probable-cause standards

distinguish . . . arrest and bind-over decisions,” a district
court’s conclusion that it lacked probable cause to bind a defendant
over for trial on the charge for which he was arrested did not
necessarily render the arrest itself invalid. People v Cohen, 294 Mich
App 70, 72, 76-77 (2011) (circuit court erroneously concluded that in
the absence of probable cause to bind the defendant over for trial on
charge of possession of cocaine, police lacked probable cause to
arrest for that offense, and that evidence of additional crime
obtained following arrest therefore must be suppressed; police had
probable cause to arrest based on the defendant’s joint constructive
possession of cocaine paraphernalia, which was observed in plain
view and within the defendant’s reach in car occupied by only
driver and the defendant, and evidence discovered after the
constitutionally valid arrest was admissible in prosecution for
additional offense).
B. Delay Between Crime and Arrest

The Speedy Trial Clause of the Sixth Amendment does not protect
the defendant against lengthy prearrest delay, only from pretrial
4 For information on motions to suppress evidence based on an illegal seizure, see Chapter 11.

delay following an arrest. United States v Lovasco, 431 US 783, 788

(1977).5 Generally, a defendant is protected against unreasonable
prearrest delay by the applicable statute of limitations. People v
Bisard, 114 Mich App 784, 788-789 (1982). A delay between an
offense and the arrest of the defendant may violate the defendant’s
federal and state due process rights. People v Cain (Janice), 238 Mich
App 95, 109 (1999). The due process inquiry must consider the
reasons for the delay as well as the prejudice to the defendant.
Lovasco, 431 US at 790. A delay in bringing charges against a
defendant may deny the due process right to a fair trial if the
prosecutor delays to gain a tactical advantage or to deprive the
defendant of an opportunity to defend against the charges. Id. at 797
n 19.
“A prearrest delay that causes substantial prejudice to a defendant’s

right to a fair trial and that was used to gain tactical advantages
violates the constitutional right to due process” People v Woolfolk,
304 Mich App 450, 454 (2014), aff’d on other grounds 497 Mich 23
(2014). “Michigan applies a balancing test to determine if a prearrest
delay requires reversing a defendant’s conviction because the state
may have an interest in delaying a prosecution that conflicts with a
defendant’s interest in prompt adjudication of the case.” Cain
(Janice), 238 Mich App at 108. Under this balancing test, the
defendant bears the burden of “initially demonstrat[ing] ‘actual and
substantial’ prejudice to his right to a fair trial.” People v Adams
(Stephan), 232 Mich App 128, 134 (1998).
An “oppressive” delay between the alleged crime and the

defendant’s arrest may implicate a defendant’s due process rights
and lead to a motion to dismiss. People v Tanner (Hattie Mae), 255
Mich App 369, 414 (2003), rev’d on other grounds 469 Mich 437
(2003),6 overruled on other grounds People v Kennedy (Johnny Ray),
502 Mich 206 (2018). In deciding the motion, the court must balance
the actual prejudice to the defendant with the prosecutor’s reasons
for the delay. Cain (Janice), 238 Mich App at 108-109; Bisard, 114 Mich
App at 790-791.
The defendant must produce evidence that he or she sustained

“actual and substantial” prejudice because of the delay. Cain (Janice),
5
Additionally, the Sixth Amendment’s Speedy Trial Clause “does not apply once a defendant has been
found guilty at trial or has pleaded guilty to criminal charges[,]” and therefore does not “apply to the
sentencing phase of a criminal prosecution.” Betterman v Montana, 578 US ___, ___ (2016) (holding “that
the Clause does not apply to delayed sentencing”).

238 Mich App at 108; Bisard, 114 Mich App at 791. “Actual and
substantial” prejudice means that the defendant’s ability to defend
against the charges was “meaningfully impaired” by the delay. Cain
(Janice), 238 Mich App at 110; Bisard, 114 Mich App at 788. “[P]roof
of ‘actual and substantial’ prejudice requires more than generalized
allegations[.]” Adams (Stephan), 232 Mich App at 135. “Defendant
must present evidence of actual and substantial prejudice, not mere
speculation.” Woolfolk, 304 Mich App at 454. “A defendant cannot
merely speculate generally that delay resulted in lost memories,
witnesses, and evidence[.]” Id.
The following cases discuss actual and substantial prejudice:
• People v Adams (Stephan), 232 Mich App 128 (1998)
The death of a witness or the loss of physical evidence

alone are insufficient to establish actual prejudice. Id. at
136-138. “[A] defendant does not show actual prejudice
based on the death of a potential witness if he has not
given an indication of what the witness’s testimony
would have been and whether the substance of the
testimony was otherwise available.” Id. at 136
(quotation marks and citation omitted).
Additionally, a 12-year delay did not violate the

defendants’ due process rights where physical evidence
was lost, but its potentially exculpatory value was
unsubstantiated. Id. at 132-139.
• People v Cain (Janice), 238 Mich App 95 (1999)
Defendant was unable to establish unfair prejudice

during 16-month delay where witnesses had slight
memory failure and evidence that was unrelated to the
case was thrown away. Id. at 107-111.
• People v Patton, 285 Mich App 229 (2009)
Defendant was unable to establish actual and

substantial prejudice because he did not identify any
specific prejudice; rather, he made general allegations
that the prearrest delay prevented him from contacting
witnesses but gave no details on the substance of a
defense to the charge, or details regarding how the
witnesses would have supported a defense. Id. at 236-
237.
• People v Scott (Nelson), 324 Mich App 459 (2018)

“[S]peculations regarding a possible alibi and the

potential for adverse sentencing consequences do not
constitute actual and substantial prejudice to
defendant’s right to a fair trial[.]” Id. at 463. An assertion
by a defendant that delay in bringing charges resulted
in prejudice regarding sentencing due to an earlier plea
agreement regarding separate charges was insufficient
to establish prejudice. Id. at 463, 464. “When considering
whether a defendant was prejudiced by a delay in
pursuing charges, ‘[w]hat must be kept in mind is that
the prejudice to the defendant must impair his right to a
fair trial, not merely that it has an adverse impact upon
the sentence imposed upon the defendant.’” Id. at 465,
citing People v Ervin (Timothy), 163 Mich App 518, 520
(1987) (alteration in original).
Once the defendant has made a showing of prejudice, the

prosecution has the burden of persuading the court that the reasons
for the delay justified any prejudice that resulted. Cain (Janice), 238
Mich App at 109; Bisard, 114 Mich App at 791. In evaluating the
reason for the delay, the court may consider the explanation for the
delay, whether the delay was deliberate, and whether undue
prejudice attached to the defendant. Bisard, 114 Mich App at 786-
787, 791.
“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.” Bisard, 114 Mich
App at 790.
“It is appropriate for a prosecuting attorney to wait for the collection

of sufficient evidence before charging a suspect, even when that
wait is extended by the disappearance of a key witness.” People v
Woolfolk, 304 Mich App at 452-456 (a nearly five-year delay in
arresting the defendant for a murder “was reasonable and justified
under the circumstances” where the principal witness originally
told the police that he did not know who shot the victim, then
disappeared for several years and was convicted of an unrelated
crime out-of-state before making a statement implicating the
defendant; the officer in charge of the murder case, who “had [no]
reason to believe that [the witness] was not being truthful” in his
original interview, “was not aware that [the witness] was about to
disappear,” and “the prosecution lacked access to and jurisdiction
over” the witness during the time he was being prosecuted out-of-
state).

C. Delay Between Warrantless Arrest and Arraignment

Persons arrested without a warrant must be promptly brought
before a neutral magistrate for a probable cause determination.
People v Cipriano, 431 Mich 315, 319 (1988); MCL 764.13; MCL 764.26;
MCR 6.104(A).
“[A] jurisdiction that provides judicial determinations of probable

cause within 48 hours of [a warrantless] arrest will, as a general
matter, [be found to] comply with the promptness requirement” of
the federal constitution’s Fourth Amendment. Riverside Co v
McLaughlin, 500 US 44, 56 (1991). However, a probable cause
determination is not automatically proper simply because it is made
within 48 hours. Id. at 56. A delay of less than 48 hours may still be
unconstitutional if it is an unreasonable delay. Id.
Police authorities may only hold an arrestee for more than 48 hours
before arraignment if they can “‘demonstrate the existence of a bona
fide emergency or other extraordinary circumstance’” that would
justify the delay. People v Whitehead, 238 Mich App 1, 2 (1999),
quoting Riverside Co v McLaughlin, 500 US 44, 57 (1991).
See also People v Cain (Darryl) (Cain I), 299 Mich App 27, 49-50
(2012), vacated in part on other grounds by People v Cain (Darryl)
(Cain II), 495 Mich 874 (2013)7 (the defendant was not deprived of
due process despite not being arraigned until three days after his
arrest where “no evidence was obtained as a direct result of the
‘undue delay,’ which would have begun . . . 48 hours after [the]
defendant’s arrest;” because the evidence against the defendant,
including his statement to police and his identification from a photo
lineup, was obtained within 48 hours after his arrest, “there was no
evidence to suppress”).
D. Standard of Review
A trial court’s decision on a motion to dismiss on the basis of
prearrest delay is reviewed for an abuse of discretion. People v
Herndon, 246 Mich App 371, 389 (2001). To the extent that a claim of
prearrest delay implicates constitutional due process rights, it is
reviewed de novo. People v Cain (Janice), 238 Mich App 95, 108
(1999). The trial court’s related factual findings are reviewed for
clear error. People v Tanner (Hattie Mae), 255 Mich App at 412, rev’d

on other grounds 469 Mich 437 (2003),8 overruled on other grounds

People v Kennedy (Johnny Ray), 502 Mich 206 (2018).
3.3 Complaints and Warrants

A defendant has a constitutional right to be informed of the nature of the
charges pending against him or her. Const 1963, art 1, § 20; People v
Higuera, 244 Mich App 429, 442-443 (2001). A criminal complaint must be
sufficiently specific to apprise the accused of the nature of the charges.
People v Quider, 172 Mich 280, 285-286 (1912). “A complaint is a written
accusation that a named or described person has committed a specified
criminal offense,” and it “must include the substance of the accusation
against the accused and the name and statutory citation of the offense.”
MCR 6.101(A). At the time of filing, specified case information must be
provided in the form and manner established by SCAO and other
applicable rules. MCR 1.109(D)(2); MCR 6.101(A). At a minimum,
specified case information must “include the name, an address for
service, an e-mail address, and a telephone number of every party.” MCR
1.109(D)(2).
A criminal complaint must also “adequately inform of the substance of

the accusations[,]” and its “factual allegations [must] provide the basis
from which commission of the legal elements of the charge can be
inferred.” Higuera, 244 Mich App at 447. However, “‘[t]he primary
function of a complaint is to move the magistrate to determine whether a
warrant shall issue.’” Id. at 443, quoting Wayne Co Prosecutor v Recorder’s
Court Judge, 119 Mich App 159, 162 (1982).
“Criminal prosecutions may be initiated in the court having jurisdiction

over the charge upon the filing of an information.” People v Glass (Willie),
464 Mich 266, 277 (2001); MCL 767.1 et seq. The basis of an information is
a signed warrant and complaint. Glass (Willie), 464 Mich at 277. The
complaint must state the substance of the alleged crime and reasonable
cause to believe that the person named in the complaint is the person
who committed the crime. Id., citing MCL 764.1d.
“The complaint must be signed and sworn to before a judicial officer or

court clerk.” MCR 6.101(B). “A complaint may not be filed without a
prosecutor’s written approval endorsed on the complaint or attached to
it, or unless security for costs is filed with the court.” MCR 6.101(C).

“A court must issue an arrest warrant, or a summons[9] . . . if presented

with a proper complaint and if the court finds probable cause to believe
that the accused committed the alleged offense.” MCR 6.102(A). The
probable cause determination “may be based on hearsay evidence and
rely on factual allegations in the complaint, affidavits from the
complainant or others, the testimony of a sworn witness adequately
preserved to permit review, or any combination of these sources.” MCR
6.102(B).
The procedures for arraignment on the warrant or complaint are

governed by MCR 6.104.10 A person in custody “must be taken without
unnecessary delay before a court . . . or must be arraigned without
unnecessary delay by use of two-way interactive video technology[.]”
MCR 6.104(A). At a defendant’s arraignment, the court must address
issues of pretrial release, possible appointment of counsel, and
scheduling the defendant’s preliminary examination.
Before an information is filed, the person accused has a right to a

preliminary examination to determine whether a crime has been
committed and whether there is probable cause to believe that the person
accused committed it. MCL 767.42; Glass (Willie), 464 Mich at 277-278.
If the case is bound over to circuit court after arraignment in district

court, an information must be filed on or before the date set for
arraignment in circuit court. See MCL 767.1 and MCL 767.40. See also
MCR 6.112(B) and MCR 6.112(C).
“Absent a timely objection and a showing of prejudice, a court may not

dismiss an information or reverse a conviction because of an untimely
filing or because of an incorrectly cited statute or a variance between the
information and proof regarding time, place, the manner in which the
offense was committed, or other factual detail relating to the alleged
offense.” MCR 6.112(G). “MCR 6.112(G) places the burden on [the]
defendant to demonstrate prejudice and . . . establish that the error was
not harmless.” People v Waclawski, 286 Mich App 634, 707 (2009). In
Waclawski, 286 Mich App at 705, an original felony information was not
filed by the prosecutor. However, the defendant was unable to establish
prejudice where the record revealed that the defendant was aware of the
charges against him and participated in his own defense. Id. at 707.
9The
court may issue a summons instead of an arrest warrant if requested by the prosecutor. MCR
6.103(A).
10 For more information on arraignments, see Chapter 5.

3.4 Filing a Complaint

“A complaint is a written accusation that a named or described person
has committed a specified criminal offense.” MCR 6.101(A). “A party
filing a case initiating document . . . shall provide specified case
information in the form and manner established by the State Court
Administrative Office and as specified in other applicable rules.” MCR
1.109(D)(2). See also MCR 6.101(A). “At a minimum, specified case
information shall include the name, an address for service, an e-mail
address, and a telephone number of every party[.]” MCR 1.109(D)(2). A
complaint must include the substance of the accusation against the
accused, and the name and statutory citation of the offense. MCL 764.1d;
MCR 6.101(A). A complaint may also contain “factual allegations
establishing reasonable cause.” MCL 764.1d.
A complaint serves a dual purpose: “[i]t both initiates the judicial phase
of the prosecution and provides a basis for the issuance of an arrest
warrant.” People v Burrill, 391 Mich 124, 128 (1974).
A. Persons Who May File a Complaint
1. Prosecuting Attorney
“A complaint may not be filed without a prosecutor’s written
approval endorsed on the complaint or attached to it, or unless
security for costs is filed with the court.” MCR 6.101(C). See
also MCL 764.1(1).
2. Other Authorized Official

An agent of the state transportation department, a county road
commission, or the public service commission may make a
complaint for a minor offense that constitutes a violation of the
motor carrier act or the motor carrier safety act if that person
has been delegated to enforce the act. See MCL 764.1(2)(a).
Similarly, a complaint alleging a minor offense that constitutes

a violation of a law that provides for the protection of wild
game or fish may be made by “[t]he director of the department
of natural resources, or a special assistant or conservation
officer appointed by the director . . . and declared by statute to
be a peace officer[.]” See MCL 764.1(2)(b).
3. Private Citizen
Both statute, MCL 764.1(1)-(2), and court rule, MCR 6.101(C),
allow a private citizen to file a complaint when security for

costs is filed with the court. See also People v Herrick, 216 Mich
App 594, 597 n 1 (1996). However, the statute and the court
rule are silent regarding the procedure a court should use
when a citizen seeks to file security for costs.
B. Drafting and Typing a Complaint

Preferably, a complaint should be typed on the following State
Court Administrative Office forms:
SCAO Form MC 200, Felony Set, Complaint11
SCAO Form DC 225, Complaint, Misdemeanor
However, MCL 764.1(3) provides:
“A complaint for an arrest warrant may be made and an

arrest warrant may be issued by any electronic or
electromagnetic means of communication from any
location in this state, if all of the following occur:
(a) The prosecuting attorney authorizes the

issuance of the warrant. Authorization may consist
of an electronically or electromagnetically
transmitted facsimile of the signed authorization.
(b) The judge or district court magistrate orally

administers the oath or affirmation, in person or by
any electronic or electromagnetic means of
communication, to an applicant for an arrest
warrant who submits a complaint under this
subsection.
(c) The applicant signs the complaint. Proof that

the applicant has signed the complaint may consist
of an electronically or electromagnetically
transmitted facsimile of the signed complaint.”
C. Required Signatures on a Complaint

“Every document filed shall be signed by the person filing it or by at
least one attorney of record.” MCR 1.109(E)(2). “If a document is not
signed, it shall be stricken unless it is signed promptly after the
omission is called to the attention of the party.” MCR 1.109(E)(3).
Electronic signatures are acceptable if they are made in accordance
with MCR 1.109(E). See MCR 1.109(E)(4).
11 This Felony Set contains several forms in addition to the Complaint.

1. Signature and Written Authorization of Prosecuting

Attorney
When written authorization by the prosecutor is required for
issuance of a warrant, it must be signed by the prosecuting
attorney. MCL 764.1(1). See also MCR 6.101(C), which requires
a complaint, in felony cases, to contain a prosecutor’s signature
unless security for costs is filed with the court.
2. Signature and Oath of Complaining Witness

MCL 764.1a(1) requires a complaint to be “sworn to before a
magistrate or clerk.” See also MCR 1.109(E)(2) (requiring all
filed documents to be signed by the filer); MCR
6.101(B)(requiring complaint to be “signed and sworn before a
judicial officer or court clerk”). When a warrant is sought by
electronic means, a facsimile of the applicant’s signature may
be transmitted electronically to the court. MCL 764.1(3)(c).
The complaining witness swearing to the complaint need not

necessarily be the victim. See, e.g., People v Graham, 173 Mich
App 473, 475 (1988) (complainant was the victim’s mother). See
also MCL 764.1a(3), which provides:
“The magistrate may require sworn testimony of

the complainant or other individuals.
Supplemental affidavits may be sworn to before an
individual authorized by law to administer oaths.
The factual allegations contained in the complaint,
testimony, or affidavits may be based upon
personal knowledge, information and belief, or
both.”
Under MCL 764.1a(4), a magistrate cannot refuse to accept a

complaint on grounds that the complaint is signed upon
information and belief by an individual other than the victim
if:
• the complainant alleges a violation of MCL 750.81

(assault and battery, including domestic assault and
battery) or MCL 750.81a (aggravated assault and
battery, including domestic aggravated assault and
battery);12 and
• the person against whom the complaint is filed is a

spouse or former spouse of the victim, has a child in
12 This requirement also applies to local ordinances substantially complying with MCL 750.81. MCL
764.1a(4).

common with the victim, has or has had a dating

relationship with the victim, or resides or has resided
in the same house as the victim.
Under MCL 764.1a(5), a magistrate cannot “refuse to accept a

complaint alleging that a crime was committed in which the
victim is a vulnerable adult on the grounds that the complaint
is signed upon information and belief by an individual other
than the victim.”
3.5 Substantive Requirements of a Complaint

“A party filing a case initiating document . . . shall provide specified case
information in the form and manner established by the State Court
Administrative Office and as specified in other applicable rules.” MCR
1.109(D)(2). See also MCR 6.101(A). “At a minimum, specified case
information shall include the name, an address for service, an e-mail
address, and a telephone number of every party[.]” MCR 1.109(D)(2).
A. Nature of the Offense

A complaint must recite the substance of the accusation against the
accused and may contain factual allegations establishing reasonable
cause to arrest. MCL 764.1d. See also MCR 6.101(A) (requiring a
complaint to “include the substance of the accusation against the
accused and the name and statutory citation of the offense”).
Committee Tip:
Although not required under MCL 764.1a, it is
recommended that the name and statutory
citation of the offense be included in the
complaint even on misdemeanor offenses to
avoid arguments about the sufficiency of a
complaint and to assist the court in identifying
the charge.
“In charging the offense, a detailed recital of the evidence by which

it will be established is not required. Such facts must be averred
that, if admitted, would constitute the offense and establish the guilt
of the accused. The elements of the offense must be so stated that
[the accused] can know what he [or she] is to meet and can prepare
for his [or her] defense.” People v Quider, 172 Mich 280, 285-286
(1912). See also People v Higuera, 244 Mich App 429, 447-448 (2001)
(where “the factual allegations provide the basis from which

commission of the legal elements of the charge can be inferred[, a]ny

deficiencies in the allegations of the actual charge . . . can be cured
by amendment”).
1. Statutory Violations
A complaint based on a violation of a statutory provision must
include “the name and statutory citation of the offense.” MCR
6.101(A). If the facts in a complaint sufficiently set out an
offense under a particular section of a statute, it is immaterial
that the complaint erroneously states the wrong section. People
v Wolfe, 338 Mich 525, 536-537 (1953). Further, the facts
contained in the complaint, not the conclusion of the person
drafting it, control the particular section of law on which the
charge should be predicated. Id. at 537.
2. Local Ordinance Violations

A complaint based on a violation of a local ordinance must
substantially conform to the complaint requirements “as
provided by law in misdemeanor cases in the district court.”
MCL 90.5(1); MCL 66.7. The complaint does not need to set out
the ordinance or its provisions; rather, “[i]t is a sufficient
statement of the cause of action in the [complaint] to set forth
substantially, and with reasonable certainty as to time and
place, the act or offense complained of and to allege it to be in
violation of an ordinance of the city, referring to the ordinance
by its title and the date of its passage or approval.” MCL
90.10(1).13 See also MCL 66.9(2), which contains substantially
similar language.
B. Date and Place of Offense

Generally, a complaint is not invalidated merely because the
complainant is unable to ascertain the exact date of the alleged
violation. Hamilton v People, 46 Mich 186, 188-189 (1881). However,
the complaint should establish that the offense was committed
within the period of limitations. People v Gregory, 30 Mich 371, 372-
373 (1874). Also, when time is an element of the offense charged, it
should be set out in the complaint as part of the substance of the
offense. See Quider, 172 Mich at 285-286.
The complaint should state the place where the offense is alleged to
have been committed. A court may take judicial notice of a
municipality within its jurisdiction; thus, it is sufficient if the
13 MCL 90.10(1) “does not apply to an ordinance violation that constitutes a civil infraction.” MCL 90.10(1).

complaint names the municipality where the crime occurred

without naming the county. People v Telford, 56 Mich 541, 543 (1885).
However, in Gregory, 30 Mich at 372-373, the complaint was fatally
defective where it “named no county . . . except the county of
‘Michigan.’” The Supreme Court reversed the defendant’s
conviction because the erroneous statement naming the county of
Michigan “was no better than a blank,” and thus the court lacked
jurisdictional authority to proceed with the prosecution. Id.
For a violation of a local ordinance, the time and place should be

stated on the complaint or warrant with “reasonable certainty.”
MCL 66.9(2); MCL 90.10(1).
C. Requirements Under the Crime Victim’s Rights Act

Under the juvenile and serious misdemeanor articles of the Crime
Victim’s Rights Act (CVRA), if a complaint, petition, appearance
ticket, traffic citation, or other charging instrument cites any one of
several enumerated offenses, or a violation of a local ordinance
substantially corresponding to any one of the enumerated offenses,
the prosecuting attorney or law enforcement officer must include a
statement on the charging instrument “that the offense resulted in
damage to another individual’s property or physical injury or death
to another individual.” MCL 780.783a (juvenile article); MCL
780.811a (serious misdemeanor article).
Along with the charging instrument, the investigating law

enforcement agency must file a separate list of the name, address,
and telephone number of each victim for any offenses falling under
the juvenile or serious misdemeanor articles of the CVRA. MCL
780.784 (juvenile article) and MCL 780.812 (serious misdemeanor
article).14
1. Juvenile Article Enumerated Offenses

MCL 780.783a states that an enumerated offense under the
juvenile article of the CVRA is one of the “juvenile offense[s]
described in [MCL 780.781(1)(g)(iii)-(v)15], or a local ordinance
substantially corresponding to [one of those] juvenile
offense[s].” MCL 780.781(1)(g)(iii)-(v) include the following
offenses:
14For
a discussion of charging instrument requirements under the CVRA, or a discussion of the CVRA
generally, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook.
15
MCL 780.783a states that the enumerated offenses appear in MCL 780.781(1)(d)(iii)-(v). However, MCL
780.781 has been revised numerous times, and the offenses now appear in MCL 780.781(1)(g)(iii)-(v). MCL
780.783a has not been amended to reflect this change.

• “[a] violation of [MCL 257.601b(2)16] (injuring a

worker in a work zone)[;]”
• leaving the scene of a personal-injury accident, MCL

257.617a;
• “[a] violation of . . . [MCL 257.62517] (operating a

vehicle while under the influence of or impaired by
intoxicating liquor or a controlled substance, or with
unlawful blood alcohol content) . . . if the violation
involves an accident resulting in damage to another
individual’s property or physical injury or death to
another individual[;]”
• selling or furnishing alcoholic liquor to an individual

less than 21 years of age, MCL 436.1701, if the
violation results in physical injury or death to any
individual; and
• “[a] violation of . . . [MCL 324.80176(1) or MCL

324.80176(3)18] (operating a motorboat while under
the influence of or impaired by intoxicating liquor or
a controlled substance, or with an unlawful blood
alcohol content) . . . if the violation involves an
accident resulting in damage to another individual’s
property or physical injury or death to any
individual.”
2. Serious Misdemeanor Enumerated Offenses

MCL 780.811a states that an enumerated offense under the
serious misdemeanor article of the CVRA is one of the “serious
misdemeanor[s] described in [MCL 780.811(1)(a)(xv)-(xvii)], or
a local ordinance substantially corresponding to [one of those]
serious misdemeanor[s].” MCL 780.811(1)(a)(xv)-(xvii) include
the following offenses:
16 Note that MCL 257.601b has been subsequently amended to make it a misdemeanor to commit a
moving violation that causes injury to another person in a work zone or school bus zone. See 2008 PA 296;
2011 PA 60. In deciding how MCL 780.781(1)(g)(iii) applies, the court should apply the rules of statutory
interpretation.
17 Note that MCL 257.625 has been amended numerous times and now contemplates additional offenses
such as offenses involving other intoxicating substances. In deciding how MCL 780.781(1)(g)(iii) applies, the
court should apply the rules of statutory interpretation.
18
Effective March 31, 2015, 2014 PA 402 amended MCL 324.80176(1) and MCL 324.80176(3) to, among
other things, replace the term vessel with motorboat; replace the term intoxicating liquor with alcoholic
liquor; and add MCL 324.80176(1)(c) to prohibit a person from operating a motorboat with the presence of
any amount of certain controlled substances in the body. In deciding how MCL 780.781(1)(g)(v) applies, the

• selling or furnishing alcoholic liquor to an individual

less than 21 years of age, MCL 436.1701, if the
violation results in physical injury or death to any
individual;
• “[a] violation of . . . [MCL 324.80176(1) or MCL

324.80176(3)19] (operating a motorboat while under
the influence of or impaired by intoxicating liquor or
a controlled substance, or with an unlawful blood
alcohol content) . . . if the violation involves an
property or physical injury or death to any
individual[;]” and
• a violation of a local ordinance substantially

corresponding to a violation enumerated in MCL
780.811(1)(a)(i)-(xvi).20
3.6 Finding Probable Cause to Issue Arrest Warrant21

In addition to the presentation of a proper complaint, issuance of an
arrest warrant requires the court to make a finding of probable cause22 to
believe that the individual accused in the complaint committed that
offense. MCL 764.1a(1); MCR 6.102(A). The court must make an
independent determination of the existence of probable cause and may
“not serve merely as a rubber stamp for the police.” United States v Leon,
468 US 897, 914 (1984) (internal citation and quotation marks omitted).
See also People v Crawl, 401 Mich 1, 26 n 15 (1977).23 If a complaint is later
19 Effective March 31, 2015, 2014 PA 402 amended MCL 324.80176(1) and MCL 324.80176(3) to, among
other things, replace the term vessel with motorboat; replace the term intoxicating liquor with alcoholic
liquor; and add MCL 324.80176(1)(c) to prohibit a person from operating a motorboat with the presence of
any amount of certain controlled substances in the body. In deciding how MCL 780.781(1)(g)(v) applies, the
20The
offenses referenced by MCL 780.811a were amended and renumbered by 2006 PA 461, which
deleted one of the offenses enumerated at MCL 780.811(1)(a) and renumbered the remaining offenses;
however, MCL 780.811a has not been amended to reflect the change in numbering. Before 2006 PA 461,
the offenses referenced by MCL 780.811a were:
(xv) operating a vehicle while under the influence of or impaired by intoxicating liquor or a controlled
substance, or with an unlawful blood alcohol content, MCL 257.625, if the violation involves an
accident resulting in damage to another individual’s property or physical injury or death to any
individual;
(xvi) selling of furnishing alcoholic liquor to an individual less than 21 years of age, MCL 436.1701, if
the violation results in physical injury or death to any individual; and
(xvii) operating a vessel while under the influence of or impaired by intoxicating liquor or a controlled
substance, or with an unlawful blood alcohol content, MCL 324.80176(1) or MCL 324.80176(3), if the
violation involves an accident resulting in damage to another individual’s property or physical injury or
death to any individual.
Thus, before 2006, the enumerated serious misdemeanor offenses were identical to the last three juvenile
offenses referenced by MCL 780.783a and did not include the reference to local ordinances corresponding
to any of the offenses listed in MCL 780.811(1)(a), as subparagraph (xvii) currently provides.

found to have been issued without a finding of probable cause, an arrest

warrant based on it is invalid. People v Burrill, 391 Mich 124, 132 (1974).
However, such a complaint may nonetheless serve as a basis for starting
judicial proceedings, and thus the court is not divested of jurisdiction
when the complaint has insufficient factual support. Id. See also Frisbie v
Collins, 342 US 519, 522 (1952) (“due process of law is satisfied when one
present in court is convicted of [a] crime after having been fairly
appri[s]ed of the charges against him [or her]”); People v Muhammad
(Elamin), ___ Mich App, ___, ___ (2018) (“irrespective of whether there
were errors associated with the warrant, defendant is not entitled to
relief”). Moreover, even without a valid warrant, an arrest may be legal if
circumstances allowing arrest without a warrant exist. For a summary of
the arrest warrant process, including the probable cause requirement, see
the Michigan Judicial Institute’s checklist describing the process for
issuing an arrest warrant and the checklist describing the process for
electronically issuing an arrest warrant.
A. Probable Cause Defined

“‘[A]rticulating precisely what . . . “probable cause” means is not
possible. [It is a] commonsense, nontechnical conception[] that deals
with “the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act” [and]
as such the standards are “not readily, or even usefully, reduced to a
neat set of legal rules.” . . . We have cautioned that [this] legal
principle[] [is] not [a] “finely-tuned standard []” comparable to the
standards of proof beyond a reasonable doubt or of proof by a
preponderance of the evidence. [It is] instead [a] fluid concept[] that
takes [its] substantive content from the particular contexts in which
the standards are being assessed.’” Matthews v BCBSM, 456 Mich
365, 387 n 33 (1998), quoting and editing Ornelas v United States, 517
US 690 (1996).
A finding of probable cause on a complaint is proper where the

complaint and testimony are sufficient to enable the judge or district
court magistrate24 “‘to make the judgment that the charges are not
capricious and are sufficiently supported to justify bringing into
21 See the Michigan Judicial Institute’s Arrest & Search Warrants Quick Reference Materials web page for
resources concerning the issuance of arrest warrants.
22
MCL 764.1a states that the warrant may be issued upon a finding of reasonable cause, which is a term
interchangeable with probable cause. See 1989 Staff Comment to MCR 6.102: “[MCR 6.102](A) states the
requirements for issuance of a warrant set forth in MCL 764.1a except that it substitutes ‘probable cause’
for ‘reasonable cause.’ These terms are viewed as equivalent, with ‘probable cause’ being preferable
because it is a familiar and recognized standard.” This section will use the term “probable cause” as
opposed to “reasonable cause.”
23Both
Crawl and Leon involve search warrants; however, the “independent determination” requirement
for issuing a search warrant also governs the issuance of arrest warrants. See People v Burrill, 391 Mich
124, 132 (1974); Giordenello v United States, 357 US 480, 485-486 (1958).

play further steps of the criminal process.’” People v Hill, 44 Mich

App 308, 312 (1973), overruled on other grounds People v Mayberry,
52 Mich App 450 (1974), quoting Jaben v United States, 381 US 214,
224-225 (1965).25
B. Evidentiary Support for a Finding of Probable Cause

“The finding of [probable] cause by the magistrate may be based
upon 1 or more of the following:
(a) Factual allegations of the complainant contained in

the complaint.
(b) The complainant’s sworn testimony.
(c) The complainant’s affidavit.
(d) Any supplemental sworn testimony or affidavits of

other individuals presented by the complainant or
required by the magistrate.” MCL 764.1a(2).
See also MCR 6.102(B) (applicable only to offenses not cognizable by

the district court, MCR 6.001(A)-(B)), which states:
“A finding of probable cause may be based on hearsay

evidence and rely on factual allegations in the
complaint, affidavits from the complainant or others,
the testimony of a sworn witness adequately preserved
to permit review, or any combination of these sources.”
“The factual allegations contained in the complaint, testimony, or

affidavits may be based upon personal knowledge, information and
belief, or both.” MCL 764.1a(3). Thus, the factual basis is supplied
by the operative facts relied on by the complaining witness and not
merely by his or her conclusions. Burrill, 391 Mich at 132. It must
appear that an affiant spoke with personal knowledge, or else the
sources for the witness’s belief must be disclosed. Hill, 44 Mich App
at 311.26 When the belief is based on information from other
persons, other than an eyewitness, some basis of informant
credibility must be shown. Id. at 311-312. This does not necessarily
24For
more information on the authority of district court magistrates to issue arrest warrants, see MCL
600.8511(e) and the Michigan Judicial Institute’s District Court Magistrate Manual.
25The
probable cause standard for arrests is different and distinct from the probable cause standard
required to bind over a defendant after a preliminary examination. People v Cohen, 294 Mich App 70, 74
(2011). “‘[T]he arrest standard looks only to the probability that the person committed the crime as
established at the time of the arrest, while the preliminary [examination] looks both to that probability at
the time of the preliminary [examination] and to the probability that the government will be able to
establish guilt at trial.’” Id. at 76, quoting LaFave & Israel, Criminal Procedure (2d ed, 1992), § 14.3, pp 668-
669.

require the affiant to reveal the identity of the informant. McCray v

Illinois, 386 US 300, 307-308 (1967). The information required to
support informant credibility depends on its context, including the
nature of the alleged crime and the source of the information. Jaben,
381 US at 224. See also Adams v Williams, 407 US 143, 147 (1972)
(“Informants’ tips, like all other clues and evidence . . . may vary
greatly in their value and reliability.”).
C. Record of Testimony and Affidavits

“The magistrate may require sworn testimony of the complainant or
other individuals. Supplemental affidavits may be sworn to before
an individual authorized by law to administer oaths.” MCL
764.1a(3).
Any sworn testimony relied on in making the probable cause

determination in a felony case must be “adequately preserved to
permit review[.]” MCR 6.102(B).27
Although affidavits are not required to support a probable cause

determination under MCL 764.1a(2) and MCR 6.102(B), if affidavits
are used, they “must be verified by oath or affirmation.” MCR
1.109(D)(1)(f). An affidavit must be verified by “oath or affirmation
of the party or of someone having knowledge of the facts
stated[.]”28 MCR 1.109(D)(3)(a).
26Because the due process protections for both search warrants and arrest warrants derive from the same
source, the Fourth Amendment, “probable cause” in either context requires the same precautions.
Giordenello v United States, 357 US 480, 485-486 (1958). Unlike MCL 764.1a(3), however, the statute
controlling the probable cause supporting a search warrant, MCL 780.653, expressly specifies that an
affidavit must contain allegations that a named informant spoke with personal knowledge or that an
unnamed informant spoke with personal knowledge and either that the unnamed person is credible or
that the information is reliable.
27
The 1989 Staff Comment to MCR 6.102 states that “[a]n objective of [MCR 6.102(B)] is to ensure that
there is a reviewable record in the event that the probable cause determination is subsequently
challenged. Accordingly, if any oral testimony is relied on, it must be preserved adequately in some fashion
to permit a review of its sufficiency to support the probable cause determination. An electronically
recorded or verbatim written record obviously satisfies this requirement. A written or recorded oral
summary of the testimony sufficiently contemporaneous to be reliable, and certified as accurate by the
judicial officer, may also satisfy this requirement.”
28Even
though MCR 1.109 is a rule governing civil procedure, the rule may also be applied to matters of
criminal procedure. See MCR 6.001(D), which states, in pertinent part: “The provisions of the rules of civil
procedure apply to cases governed by this chapter [(Criminal Procedure)], except
(1) as otherwise provided by rule or statute,
(2) when it clearly appears that they apply to civil actions only,
(3) when a statute or court rule provides a like or different procedure, or
(4) with regard to limited appearances and notices of limited appearance.”

Committee Tip:
The arraignment or plea or sentence may be
conducted days, weeks, months, or years after
the warrant was issued or may be conducted by
someone other than the individual who signed
the warrant. If an affidavit is used to establish
probable cause and is in the court file, the court
can easily refer to the affidavit when setting
bond or taking a plea or sentencing to remind
the court of the allegations.
3.7 Issuing an Arrest Warrant

An arrest warrant is an order by a court to arrest a person and bring him
or her before the court to answer to the charge alleged in the complaint
and to be further dealt with according to law. MCL 764.1b.
“If an accused is arrested without a warrant, a complaint complying with

MCR 6.101 must be filed at or before the time of arraignment.” MCR
6.104(D). “On receiving the complaint and on finding probable cause, the
court must either issue a warrant or endorse the complaint as provided in
MCL 764.1c.” MCR 6.104(D). “Arraignment of the accused may then
proceed in accordance with [MCR 6.104(E)].” MCR 6.104(D). Stated
another way, the court must either sign/issue the warrant or endorse the
complaint before proceeding to arraignment. MCR 6.104(D).
A complaint may also serve as a warrant if the officer makes a

warrantless arrest of a person, he or she is in custody, and the court
endorses the complaint with a finding of probable cause. MCL 764.1c(2);
MCR 6.104(D).
The proper sanction to be imposed for arresting an individual based on

an invalid arrest warrant is the suppression of evidence obtained from
the person following his or her illegal arrest, not divestiture of the court’s
jurisdiction. Burrill, 391 Mich at 133. Thus, even if the complaint or
warrant is later determined to be invalid, the court retains jurisdiction. Id.
See also Whiteley v Warden, Wyoming State Penitentiary, 401 US 560, 565
(1971) (where no probable cause supported either the warrant or a
warrantless arrest, evidence secured as a result of the illegal arrest should
have been suppressed); People v Muhammad (Elamin), ___ Mich App, ___,
___ (2018) (“irrespective of whether there were errors associated with the
warrant, defendant is not entitled to relief”).

A. Persons Who May Issue Arrest Warrants

A judge or district court magistrate may issue arrest warrants for
the apprehension of persons charged with felony, misdemeanor, or
ordinance violations. MCL 764.1. See also MCL 600.8511(e), which
grants a district court magistrate jurisdiction “[t]o issue warrants for
the arrest of a person upon the written authorization of the
prosecuting or municipal attorney[.]”29 No provision of MCL 761.1
allows a probate judge to issue an arrest warrant.
Although district court “magistrates perform limited judicial

functions,” they are not judges for purposes of Const 1963, art 6, §
19 (requiring “judges of courts” to be licensed attorneys); however,
a nonattorney magistrate may issue an arrest warrant. People v
Ferrigan, 103 Mich App 214, 219 (1981). Additionally, it does not
violate the Fourth Amendment for a nonattorney magistrate to issue
a warrant. US Const, Am IV.; Shadwick v City of Tampa, 407 US 345,
350-353 (1972). In Shadwick, the United States Supreme Court
established two necessary prerequisites that a magistrate must
possess: (1) he or she must be neutral and detached,30 and (2) he or
she must be capable of determining whether probable cause exists
for the requested arrest. The Court concluded that there is no reason
that a nonattorney could not meet these prerequisites. Id. at 352-353.
A district court magistrate, like a judge, is also authorized to issue

an arrest warrant “by any electronic or electromagnetic means of
communication from any location in this state,” if certain conditions
are met. MCL 764.1(3); see also MCL 764.1(4)-(5).
B. Determining a Person’s Parolee Status

Before an arrest warrant is issued, the law enforcement agency
seeking the warrant must use the Law Enforcement Information
Network (LEIN) to determine whether the individual for whom the
warrant is sought is a parolee under the jurisdiction of the
Department of Corrections (DOC). MCL 764.1g(1). If the person is
determined to be a parolee under the DOC’s jurisdiction, and an
arrest warrant is issued, MCL 764.1g(1) requires that the DOC be
notified and provided with the following information:31
“(a) The identity of the person named in the warrant.
29 MCL 600.8511(e) provides an exception to the requirement of written authorization when the
defendant committed a traffic violation in the magistrate’s jurisdiction, was issued a citation under MCL
257.728, and subsequently failed to appear.
30 A neutral and detached magistrate is one that is “independent of the police and prosecution.” People v
Payne, 424 Mich 475, 481 (1985) (magistrate who was also a deputy sheriff was not neutral and detached,
and therefore the search warrant he issued was invalid).

(b) The fact that information in databases managed by

the [DOC] and accessible by the [LEIN] provides reason
to believe the person named in the warrant is a parolee
under the jurisdiction of the [DOC].
(c) The charge or charges stated in the warrant.”
The DOC must be notified if there is a delay in the process:
“If the court has assumed the responsibility for entering

arrest warrants into the [LEIN] and delays issuance or
entry of a warrant pending a court appearance by the
person named in the warrant, the law enforcement
agency submitting the sworn complaint to the court
shall promptly give to the [DOC], by telephonic or
electronic means, notice of the following:
(a) The identity of the person named in the sworn

complaint.
(b) The fact that a prosecuting attorney has

authorized issuance of a warrant.
(c) The fact that information in databases managed

by the [DOC] and accessible by the [LEIN]
provides reason to believe the person named in the
sworn complaint is a parolee under the jurisdiction
of the [DOC].
(d) The charge or charges stated in the sworn

complaint.
(e) Whether, pending a court appearance by the

person named in the sworn complaint, the court
has either issued the arrest warrant but delayed
entry of the warrant into the [LEIN] or has delayed
issuance of the warrant.” MCL 764.1g(2).
Transmitting notice to any of the following satisfies the notice

requirements of MCL 764.1g:
“(a) To the [DOC] by a central toll-free telephone

number that is designated by the [DOC] for that
purpose and that is in operation 24 hours a day and is
posted in the [DOC’s] database of information
concerning the status of parolees.
31 MCL 764.1g(1) requires the information to be provided by either the investigating law enforcement
agency, or the court if the court is entering arrest warrants and learns of the person’s parolee status from
the law enforcement agency.

(b) To a parole agent serving the county where the

warrant is issued or is being sought.
(c) To the supervisor of the parole office serving the

county where the warrant is issued or is being sought.”
MCL 764.1g(3).
3.8 Substantive Requirements of Arrest Warrants

“A[n arrest warrant] shall recite the substance of the accusation contained
in the complaint. Except as permitted in [MCL 764.1c], the warrant shall
be directed to a peace officer; shall command the peace officer
immediately to arrest the person accused and to take that person,
without unnecessary delay, before a magistrate of the judicial district in
which the offense is charged to have been committed, to be dealt with
according to law; and shall direct that the warrant, with a proper return
noted on the warrant, be delivered to the magistrate before whom the
arrested person is to be taken. The warrant may also require the peace
officer to summon the witnesses named in the warrant.” MCL 764.1b.
See also MCR 6.102(C), which requires a felony arrest warrant to:
“(1) contain the accused’s name, if known, or an identifying

name or description;
(2) describe the offense charged in the complaint;
(3) command a peace officer or other person authorized by

law to arrest and bring the accused before a judicial officer of
the judicial district in which the offense allegedly was
committed or some other designated court; and
(4) be signed by the court.”
In addition, MCR 6.102(D) allows the court, when permitted by law, to

specify on the warrant an amount of interim bail the accused may post to
obtain release before arraignment on the warrant.32
32Interim bond may be set for a person arrested for a misdemeanor or ordinance violation, with or without
a warrant. See MCL 780.581; MCL 780.582; MCR 6.102(D). There is no statutory provision that provides for
interim bond on felony violations as there is for misdemeanor and ordinance violations. However, MCR
6.102(D) is applicable to both felony and misdemeanor cases. See MCR 6.001(A)-(B). In addition, that
provision “sets forth a . . . procedure . . . [that] authorizes in felony cases the specification on the warrant of
interim bail similar to the procedure . . . authorized by statute in misdemeanor cases. See MCL 780.582 and
MCL 780.585.” 1989 Staff Comment to MCR 6.102 (note, however, that staff comments are not
authoritative constructions by the Michigan Supreme Court).

3.9 Arrest Warrants and Complaints for Juveniles

Charged with Specified Juvenile Violations
If a prosecuting attorney has reason to believe that a juvenile at least 14
years old and less than 17 years old has committed a specified juvenile
violation, the prosecutor may authorize the filing of a complaint and
warrant on the charge in the district court instead of filing a petition in
the family division of circuit court. MCL 764.1f. This is called an
automatic waiver, and further discussion is beyond the scope of this
benchbook. See the Michigan Judicial Institute’s Juvenile Justice Benchbook
for more information.
3.10 Execution of Arrest Warrants
A. Executing an Arrest Warrant

Unless the accused is already in custody after a warrantless arrest,
MCL 764.1b directs that an arrest warrant “command the peace
officer immediately to arrest the person accused and to take that
person, without unnecessary delay[33], before a magistrate of the
judicial district in which the offense is charged to have been
committed . . . .” MCR 6.102(E) clarifies that “[o]nly a peace officer
or other person authorized by law may execute an arrest warrant.”
It is not necessary for the arresting officer to personally possess the
arrest warrant. MCL 764.18. Rather, it is sufficient for the officer to
inform the arrestee of an outstanding warrant for his or her arrest.
Id. However, the officer must show the arrest warrant to the arrestee
as soon as practicable after the arrest. Id.
B. Return on an Arrest Warrant

The return on an arrest warrant is a certification by the executing
officer that states the manner in which the warrant was executed.
The warrant itself should direct the executing officer to note “a
proper return” and to deliver the warrant “to the magistrate before
whom the arrested person is to be taken.” MCL 764.1b. MCR
6.102(E) (applicable only to offenses not cognizable by the district
court, MCR 6.001(A)-(B)) similarly provides that “[o]n execution or
33“A delay of more than 48 hours after arrest is presumptively unreasonable unless there are extraordinary
circumstances.” People v Cain (Darryl) (Cain I), 299 Mich App 27, 49 (2012), vacated in part on other
grounds by People v Cain (Darryl) (Cain II), 495 Mich 874 (2013). “[A] prior Court of Appeals decision that
has been reversed on other grounds has no precedential value. . . . [W]here the Supreme Court reverses a
Court of Appeals decision on one issue and does not specifically address a second issue in the case, no rule
of law remains from the Court of Appeals decision.” Dunn v Detroit Auto Inter-Ins Exch, 254 Mich App 256,
262 (2002). See also MCR 7.215(J)(1). However, its analysis may still be persuasive. See generally Dunn, 254
Mich App at 263-266.

attempted execution of the warrant, the officer must make a return

on the warrant and deliver it to the court before which the arrested
person is to be taken.”
When an officer makes a warrantless arrest, “[t]he return of the

officer making the arrest, endorsed upon the warrant upon which
the accused shall be subsequently held, affirming compliance with
the provisions herein, shall be prima facie evidence of the fact in the
trial of any criminal cause.” MCL 764.19.
C. Execution of Warrant by Electronic Device

“The person or department receiving an electronically or
electromagnetically issued arrest warrant shall receive proof that
the issuing judge or district court magistrate has signed the warrant
before the warrant is executed. Proof that the issuing judge or
district court magistrate has signed the warrant may consist of an
electronically or electromagnetically transmitted facsimile of the
signed warrant.” MCL 764.1(4).
3.11 Collection of Biometric Data
A. Biometric Data Collection Requirements

MCL 28.243 requires law enforcement agencies to collect an
individual’s biometric data34 upon arrest for a felony or other
qualifying offense and to forward the biometric data to the
Department of State Police.
MCL 28.243(1)-(2) provides, in part:
“(1) Except as provided in [MCL 28.243(3)], upon the

arrest of a person for a felony or for a misdemeanor
violation of state law for which the maximum possible
penalty exceeds 92 days’ imprisonment or a fine of
$1,000.00, or both, or a misdemeanor authorized for
DNA collection under . . . [MCL 28.176(1)(b)],[35] or for
criminal contempt under . . . MCL 600.2950 [or MCL]
34
Effective December 14, 2012, 2012 PA 374 amended MCL 28.243(8) and several related provisions
governing the collection of fingerprints and other criminal history and juvenile history record information
by law enforcement agencies to refer to biometric data rather than fingerprints. Biometric data includes
fingerprint and palm print images, “[d]igital images recorded during the arrest or booking process,” and
“descriptive data associated with identifying marks, scars, amputations, and tattoos.” MCL 28.241a(b).
35
MCL 28.176(1) requires the Department of State Police to permanently retain a DNA identification
profile obtained from a sample in the manner prescribed under the DNA Identification Profiling System
Act, MCL 28.171 et seq., from offenders convicted or found responsible of the certain enumerated
offenses.

600.2950a, or criminal contempt for a violation of a

foreign protection order that satisfies the conditions for
validity provided in . . . MCL 600.2950i, or for a juvenile
offense,[36] other than a juvenile offense for which the
maximum possible penalty does not exceed 92 days’
imprisonment or a fine of $1,000.00, or both, or for a
juvenile offense that is a misdemeanor authorized for
DNA collection under . . . [MCL 28.176(1)(b)], the
arresting law enforcement agency in this state shall
collect the person’s biometric data and forward the
biometric data to the [Department of State Police
(“department”)] within 72 hours after the arrest. The
biometric data must be sent to the department on forms
furnished by or in a manner prescribed by the
department, and the department shall forward the
biometric data to the director of the Federal Bureau of
Investigation on forms furnished by or in a manner
prescribed by the director.
(2) A law enforcement agency shall collect a person’s

biometric data under [MCL 28.243(2)] if the person is
arrested for a misdemeanor violation of state law for
which the maximum penalty is 93 days or for criminal
contempt under . . . MCL 600.2950 [or MCL] 600.2950a,
or criminal contempt for a violation of a foreign
protection order that satisfies the conditions for validity
provided in . . . MCL 600.2950i, if the biometric data
have not previously been collected and forwarded to the
department under [MCL 28.243(1)]. A law enforcement
agency shall collect a person’s biometric data under
[MCL 28.243(2)] if the person is arrested for a violation
of a local ordinance for which the maximum possible
penalty is 93 days’ imprisonment and that substantially
corresponds to a violation of state law that is a
misdemeanor for which the maximum possible term of
imprisonment is 93 days. If the person is convicted of
any violation, the law enforcement agency shall collect
the person’s biometric data before sentencing if not
previously collected. The court shall forward to the law
enforcement agency a copy of the disposition of
conviction, and the law enforcement agency shall
forward the person’s biometric data and the copy of the
disposition of conviction to the department within 72
hours after receiving the disposition of conviction in the
same manner as provided in [MCL 28.243(1)]. If the
36
For discussion of biometric data collection requirements with respect to juvenile offenders, see the
Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 21.

person is convicted of violating a local ordinance, the

law enforcement agency shall indicate on the form sent
to the department the statutory citation for the state law
to which the local ordinance substantially corresponds.”
A person’s biometric data need not be collected solely because he or

she has been arrested for violating MCL 257.904(3)(a) (individual’s
first conviction of driving or allowing someone else to drive the
individual’s motor vehicle with a suspended or revoked license or
without a license) or a corresponding local ordinance. MCL 28.243(3).
B. District Court’s Obligation to Ensure Fingerprinting

When a defendant is arraigned on a felony charge or a misdemeanor
charge punishable by more than one year of imprisonment, the
district court must examine the court file to determine whether the
defendant’s fingerprints have been taken as required by MCL
28.243.37 MCL 764.29(1). If the defendant has not had the required
fingerprints taken before arraignment, the magistrate must order him
or her to submit to the arresting agency or order him or her
committed to the custody of the sheriff so that fingerprints may be
taken. MCL 764.29(2)(a)-(b).
C. Forwarding Biometric Data to the Department of State

Police
If a court orders the collection of a person’s biometric data, the law
enforcement agency that collects the biometric data must forward the
biometric data and arrest card to the Department of State Police. MCL
28.243(6).
D. Destruction of Biometric Data and Arrest Card
1. Release Without Charge or Finding of Not Guilty

If a person whose biometric data were collected is released
without being charged, or if criminal contempt proceedings
are not brought, the official taking or holding the person’s
biometric data and arrest card must immediately destroy the
biometric data and arrest card. MCL 28.243(7). If the arrest card
was forwarded to the Department of State Police
(“department”), the law enforcement agency must notify the
department in a manner prescribed by the department that a
37 Note that MCL 28.243 requires the collection of biometric data, which includes fingerprints. However,
MCL 764.29 has not been updated and still refers solely to the collection of fingerpints. See Section 5.17.

charge was not made or that a criminal contempt proceeding

was not brought against the person. Id.
With the exception of certain offenses listed in MCL

28.243(14),38 if the accused is found not guilty of an offense for
which biometric data were collected, the biometric data and
arrest card must be destroyed by the official holding those
items. MCL 28.243(10). Additionally, “the clerk of the court
entering the disposition shall notify the department of any
finding of not guilty or nolle prosequi, if it appears that the
biometric data of the accused were initially collected under
[MCL 28.243.]” MCL 28.243(10).
“[The] defendant was [not] required to file an action for

mandamus [against the Michigan State Police] rather than a
motion in the district court seeking the destruction of his
fingerprints and arrest card[]” because “courts of this state
routinely recognize a defendant’s ability to file a motion in a
criminal case for the return or destruction of his or her
biometric data and arrest card pursuant to MCL 28.243.” People
v Guthrie, 317 Mich App 381, 387, 387-388 n 6, 390 (2016)
(additionally noting that “[t]his conclusion is consistent with
the fact that the State Court Administrative Office (SCAO) has
approved court forms[39] that specifically pertain to these
motions[]”).
2. Individual’s Charge(s) Is Dismissed Before Trial

MCL 764.26a states:
“(1) If an individual is arrested for any crime and

the charge or charges are dismissed before trial,
both of the following apply:
(a) The arrest record shall be removed from

the internet criminal history access tool
(ICHAT).
(b) If the prosecutor of the case agrees at any

time after the case is dismissed, or if the
prosecutor of the case or the judge of the
court in which the case was filed does not
object within 60 days from the date an order
of dismissal was entered for cases in which
38 See Section 3.11(D) for discussion of offenses listed in MCL 28.243(14).
39
See SCAO Form MC 235, Motion for Destruction of Fingerprints and Arrest Card; SCAO Form MC 392,
Order Regarding Destruction of Fingerprints and Arrest Card; SCAO Form MC 263, Motion/Order of Nolle
Prosequi.

the order of dismissal is entered after [June

12, 2018], all of the following apply:
(i) The arrest record, all biometric data,

and fingerprints shall be expunged or
destroyed, or both, as appropriate.
(ii) Any entry concerning the charge
shall be removed from LEIN.
(iii) Unless a DNA sample or profile, or
both, is allowed or required to be
retained by the department of state
police under . . . MCL 28.176, the DNA
sample or profile, or both, obtained from
the individual shall be expunged or
destroyed.
(2) The department of state police shall comply

with the requirements listed in subsection (1) upon
receipt of an appropriate order of the district court
or the circuit court.” See also MCL 28.243(8)-(9).
3. Charges For Which Destruction of Biometric Data

and Arrest Card Is Not Permitted
“Except as provided in [MCL 28.243(8)], the

provisions of [MCL 28.243(10)] that require the
destruction of the biometric data and the arrest
card do not apply to a person who was arraigned
for any of the following:
(a) The commission or attempted commission

of a crime with or against a child under 16
years of age.
(b) Rape.
(c) Criminal sexual conduct in any degree.
(d) Sodomy.
(e) Gross indecency.
(f) Indecent liberties.
(g) Child abusive commercial activities.
(h) A person who has a prior conviction, other

than a misdemeanor traffic offense, unless a
judge of a court of record, except the probate

court, by express order on the record, orders
the destruction or return of the biometric data
and arrest card.
(i) A person arrested who is a juvenile

charged with an offense that would constitute
the commission or attempted commission of
any of the crimes in [MCL 28.243(12] if
committed by an adult.”
“[A]n arraignment in either district court or circuit court is

sufficient for [MCL 28.243(14)40] to apply[;]” therefore, under
[MCL 28.243(14)(c)], a defendant who was arraigned in district
court for second-degree criminal sexual conduct was not
entitled to destruction of his biometric data and arrest card
under [MCL 28.243(10)41] following entry of an order of nolle
prosequi. People v Guthrie, 317 Mich App 381, 393-394 (2016)
(concluding that the Legislature’s “deletion of the phrase ‘in
circuit court or the family division of circuit court’ [by a 2012
amendment to [former] MCL 28.243(12)] reflects the
Legislature’s intent to change the statute’s scope[]”).
Additionally, “given the clear and unambiguous language of
the statute,” a trial court lacks “discretion to order the
destruction or return of [a] defendant’s biometric data and
arrest card in the interest of justice.” Guthrie, 317 Mich App at
394.
In People v Cooper (After Remand), 220 Mich App 368, 369-370

(1996), the Court of Appeals rejected the defendant’s Equal
Protection challenge with respect to former MCL 28.243(9)(a),
which, similarly to current MCL 28.243(14),42 provided that
individuals who were charged with certain offenses, including
criminal sexual conduct, were not entitled to the return of their
fingerprints and arrest cards following acquittal.43 The Cooper
Court, noting the particular difficulty in detecting,
40
At the time Guthrie was decided, the provision discussed was MCL 28.243(12). It was renumbered by
2018 PA 67, effective 6/12/18.
41
At the time Guthrie was decided, the provision discussed was MCL 28.243(8). It was renumbered by
2018 PA 67, effective 6/12/18.
42 At the time Cooper was decided, the provision discussed was MCL 28.243(12). It was renumbered by
2018 PA 67, effective 6/12/18.

43 Under the version of MCL 28.243 in effect at the time that Cooper, 220 Mich App 368, was decided, MCL
28.243(5) provided that an acquitted defendant was entitled to the “return” of his or her fingerprints and
arrest card; however, MCL 28.243(9)(a) provided that return of the fingerprints and arrest card was not
required if “[t]he person arrested was charged with the commission or attempted commission . . . of a
crime with or against a child under 16 years of age or the crime of criminal sexual conduct in any degree,
rape, sodomy, gross indecency, indecent liberties, or child abusive commercial activities.”

investigating, and prosecuting criminal sexual conduct

offenses, held that a rational basis existed for prohibiting the
return of fingerprints and arrest cards to persons acquitted of
such charges while permitting return of those documents to
persons acquitted of other serious crimes. Cooper, 220 Mich
App at 371-375. See also People v Pigula, 202 Mich App 87, 91
(1993) (former MCL 28.243(9) did not violate the defendant’s
right of privacy because “there is no right of privacy with
regard to arrest records where the arrest was made
properly[]”) (internal citations omitted).
3.12 Information or Indictment
A. Content
The required content of an information is mandated by statute.
MCL 767.45(1) requires that an information contain: (1) the nature of
the offense, stated in language that will fairly apprise the accused
and the court of the offense charged; (2) the time of the offense as
near as possible; and (3) the location of the offense. MCR 6.112(D).
Except where time is of the essence of the offense, an error in the

time stated is not fatal to the information. MCL 767.45(1)(b).
Additionally, “‘an imprecise time allegation [in a felony information
may] be acceptable for sexual offenses involving children, given
their difficulty in recalling precise dates.’” People v Bailey (Ryan), 310
Mich App 703, 717 (2015), quoting People v Naugle, 152 Mich App
227, 234 n 1 (1986) (internal citation omitted). A felony information
“alleg[ing] sexual misconduct [against children] over a period of
eight years” gave adequate notice where two of the victims “were 13
years old or younger at the time of the alleged offenses, and each
testified that [the] defendant abused them numerous times over
multiple years, such that specific dates would not stick out in their
minds.” Bailey (Ryan), 310 Mich App at 717 (quoting Naugle, 152
Mich App at 235, and noting that “because [the] defendant was
living with his victims over an extended period of time and the
victims alleged that [the] defendant abused them at times when no
one else was around, ‘it appears that creating a valid alibi defense
was not a realistic option[]’”).
MCL 767.55 permits allegations in the alternative when an offense

“is constituted of 1 or more of several acts, or which may be
committed by 1 or more of several means, or with 1 or more of
several intents, or which may produce 1 or more of several
results . . . .”

B. Amendments
Unless a proposed amendment would unfairly surprise or prejudice
the defendant, an amendment to the information is permitted either
before, during, or after trial. MCR 6.112(H). “A defendant may
establish unfair surprise by articulating how additional time to
prepare would have benefited the defense.” People v Perry (Rodney),
317 Mich App 589, 594 (2016), citing People v McGee (Keangela), 258
Mich App 683, 693 (2003).
Where the prosecution seeks to amend the information to add a

criminal charge based on facts or evidence disclosed at the
defendant’s preliminary examination, a defendant is not unfairly
surprised or prejudiced. People v Fortson, 202 Mich App 13, 16
(1993).
When a defendant is bound over on any charge cognizable in circuit

court following a preliminary examination, the circuit court obtains
jurisdiction over the defendant and may permit amendment of the
information “to correct a variance between the information and the
proofs” as long as the amendment does not unduly prejudice the
defendant because of unfair surprise, inadequate notice, or
insufficient opportunity to defend. People v Unger, 278 Mich App
210, 221-222 (2008) (amendment of the information to reinstate a
previous charge did not unfairly surprise the defendant or deprive
him of sufficient notice or opportunity to defend against the charge
at trial). See also People v Russell (Darwin), 266 Mich App 307, 316-
317 (2005) (the defendant was not unfairly surprised or deprived of
adequate time to prepare a defense against a charge when the
charge added to the amended information was a charge presented
at the defendant’s preliminary examination that had been struck
from the information in an earlier amendment).
Defendant failed to show that the trial court’s decision to grant the
prosecutor’s request to amend the information to remove a
codefendant amounted to unfair surprise or prejudice because the
“removal of the codefendant did not alter the defense that
defendant advanced at trial.” People v Muhammad (Elamin), ___ Mich
App ___, ___ (2018). Additionally, when “the initial information put
defendant on notice that the prosecution intended to seek a fourth-
offense habitual offender enhancement,” later amendments to the
information notifying defendant that the “enhancement would
result in a mandatory minimum 25-year sentence,” and “add[ing] a
fourth previous conviction . . . did not amount to unfair surprise in
that the trial court could have inferred that defendant was aware of
his own criminal record.” Id. at ___.
Where “[the] defendant knew of the prosecution’s intent to amend

the charges [to add an additional charge] . . . before trial started, he
[did] not demonstrate[] that the amendment during the trial itself
denied him the opportunity to cross-examine the witnesses on the
new charge.” Perry (Rodney), 317 Mich App at 595. Additionally, the
timing of the prosecutor’s decision to request the addition of the
new charge was “not evidence of presumptive vindictiveness[]”
where the record was devoid of any indication that “the prosecution
deliberately penalized [the] defendant for exercising his right to a
trial.” Id. at 596, citing People v Jones (Stacey), 252 Mich App 1, 8
(2002).
The trial court’s decision to grant or deny a motion to amend an

information is reviewed for an abuse of discretion. Perry (Rodney),
317 Mich App at 594; McGee (Keangela), 258 Mich App at 686-687.
Any error in amending an information is waived by a party’s failure
to object to the amendment. People v Bettistea, 173 Mich App 106, 120
(1988).
C. Joinder of Counts
1. Single Defendant
MCR 6.120 governs joinder and severance for a single
defendant. The prosecuting attorney may file an information
or indictment that charges a single defendant with any two or
more offenses. MCR 6.120(A). Additionally, two or more
informations or indictments against a single defendant may be
consolidated for a single trial. Id.
When appropriate to promote fairness to the parties and a fair

determination of the defendant’s guilt or innocence of each
offense, the court may—on its own initiative, the motion of a
party, or the stipulation of all parties—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. MCR 6.120(B).
Joinder is appropriate if the offenses are related, i.e., they are

based on the same conduct or transaction; a series of connected
acts; or a series of acts constituting parts of a single scheme or
plan. MCR 6.120(B)(1). See People v Williams (Carletus), 483
Mich 226, 233 n 5 (2009).44 In Williams (Carletus), 483 Mich 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
44Williams
(Carletus), 483 Mich at 238, overruled People v Tobey, 401 Mich 141 (1977), because Tobey
construed MCR 6.120 too narrowly.

constituting parts of his overall scheme or plan to package

cocaine for distribution,” and therefore joinder was
appropriate. Id. at 235. See also People v Campbell (Michael), 316
Mich App 279, 294 (2016), overruled on other grounds by
People v Arnold (Lonnie James), 502 Mich 438 (2018)45 (holding
that the trial court did not abuse its discretion or deny the
defendant his due process right to a fair trial when it refused to
bifurcate the proceedings or hold separate trials as to whether
he both committed indecent exposure and was a sexually
delinquent person; “[g]iven the substantial overlap in the
evidence and that the trial court could adequately protect [the
defendant’s] rights with a limiting instruction concerning the
evidence that was admissible only to prove that [he] was a
sexually delinquent person, . . . the trial court’s decision to hold
a single trial was within the range of reasonable and principled
outcomes”); People v Gaines, 306 Mich App 289, 305 (2014)
(cases involving three different victims were “related” for
purposes of MCR 6.120(B)(1) and were properly joined for trial
where “[the] defendant engaged in ongoing acts related to his
scheme of preying upon young, teenage girls from his high
school[;] . . . used text messages to communicate with [them]
and encouraged them to keep their communications secret[;] . .
. requested naked photographs from [at least two of them] and,
if they refused, threatened to cut off ties with them[; and] . . .
used his parents’ basement to isolate two of the young girls
and sexually penetrate them”).
Other relevant factors to consider 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. MCR 6.120(B)(2).
On a defendant’s motion, unrelated charges against that

defendant must be severed for separate trials. MCR 6.120(C).
2. Multiple Defendants
MCR 6.121 governs joinder and severance with regard to
multiple defendants. An information or indictment may
charge two or more defendants with the same offense. MCR

6.121(A). An information or indictment may charge two or

more defendants with two or more offenses when each
defendant is charged with accountability for each offense or
when the offenses are related as set out in MCR 6.120(B). MCR
6.121(A). When more than one offense is alleged, each offense
must be stated in a separate count. Id. 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. Id.
On the defendant’s motion, the court must sever offenses that

are not related as set out in MCR 6.120(B). MCR 6.121(B).
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 the substantial rights of a
defendant. MCR 6.121(C). “The failure to make this showing in
the trial court, absent any significant indication on appeal that
the requisite prejudice in fact occurred at trial, will preclude
reversal of a joinder decision.” People v Hana, 447 Mich 325,
346-347 (1994).
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. MCR
6.121(D). 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 defendants
or the complexity or nature of the evidence; the convenience of
the witnesses; and the parties’ readiness for trial. Id.
“Inconsistency of defenses is not enough to mandate
severance; rather, the defenses must be ‘mutually exclusive’ or
‘irreconcilable.’” Hana, 447 Mich at 349. “‘[I]ncidental spillover
prejudice, which is almost inevitable in a multi-defendant trial,
does not suffice.’” Id. at 349, quoting United States v Yefsky, 994
F2d 885, 896 (CA 1, 1993). “The ‘tension between defenses must
be so great that a jury would have to believe one defendant at
the expense of the other.’” Hana, 447 Mich at 349, quoting
Yefsky, 994 F2d at 897.
3. Standard of Review
“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 (Carletus), 483 Mich at 231. Therefore, a

trial court’s decision regarding joinder “is subject to both a

clear error and a de novo standard of review.” Id.
“A trial court’s decision to grant or deny a motion to amend an
information is reviewed for an abuse of discretion.” McGee
(Keangela), 258 Mich App at 686-687.
E. Notice of Intent to Seek Enhanced Sentence46

MCR 6.112(F) provides:
“Notice of Intent to Seek Enhanced Sentence. A notice of

intent to seek an enhanced sentence pursuant to MCL
769.13 must list the prior convictions that may be relied
upon for purposes of sentence enhancement. The notice
must be filed within 21 days after the defendant’s
arraignment on the information charging the
underlying offense or, if arraignment is waived or
eliminated as allowed under MCR 6.113(E),[47] within
21 days after the filing of the information charging the
underlying offense.”
Before, during, or after trial, the court may permit the prosecutor to
amend the notice of intent to seek an enhanced sentence “unless the
proposed amendment would unfairly surprise or prejudice the
defendant.” MCR 6.112(H).
Where “the prosecutor failed to file a proof of service of the notice of

intent to enhance defendant’s sentence” under MCL 769.13 and
MCR 6.112(F), “the error [was] harmless because defendant had
actual notice of the prosecutor’s intent to seek an enhanced sentence
and defendant was not prejudiced in his ability to respond to the
habitual offender notification”; specifically, “defendant had access
to the charging documents, he had notice of the charges against
him, including the habitual offender enhancement, and he also was
informed of the habitual offender enhancement at the preliminary
examination.” People v Head, 323 Mich App 526, 544-545 (2018)
(holding that the prosecutor’s error did not require resentencing).
46 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 5, for additional
discussion of sentence enhancement based on habitual offender status.

47
“A circuit court may submit to the State Court Administrator pursuant to MCR 8.112(B) a local
administrative order that eliminates arraignment for a defendant represented by an attorney, provided
other arrangements are made to give the defendant a copy of the information and any notice of intent to
seek an enhanced sentence[ pursuant to MCL 769.13], as provided in MCR 6.112(F).” MCR 6.113(E). See
SCAO Model Local Administrative Order 26—Elimination of Circuit Court Arraignments.

3.13 Circumstances Allowing Warrantless Arrests

A peace officer may make a warrantless arrest if a felony, misdemeanor,
or ordinance violation is committed in the officer’s presence. MCL
764.15(1)(a). Under MCL 764.15, a peace officer may also make a
warrantless arrest for certain offenses not committed in his or her
presence when:
• A person has committed a felony outside the presence of the

officer, MCL 764.15(1)(b).
• A felony in fact has been committed and the officer has

reasonable cause48 to believe the person committed it, MCL
764.15(1)(c).
• The officer has reasonable cause to believe that a misdemeanor

punishable by more than 92 days’ imprisonment or a felony
has been committed, and reasonable cause to believe the
person committed it, MCL 764.15(1)(d).
• The officer receives positive information from a written,

telegraphic, teletypic, telephonic, radio, electronic, or other
authoritative source that another officer or a court holds a
warrant for the person’s arrest, MCL 764.15(1)(e).
• The officer receives positive information broadcast from a

recognized police or other governmental radio station or
teletype, that affords the officer reasonable cause to believe that
a misdemeanor punishable by more than 92 days’
imprisonment or a felony has been committed and that the
person committed it, MCL 764.15(1)(f).
• The officer has reasonable cause to believe that the person is an

escaped convict, has violated a condition of parole from a
prison, has violated a condition of a pardon, or has violated
one or more conditions of a conditional release order or
probation order by any court of any state, Indian tribe, or
United States territory, MCL 764.15(1)(g).
• The officer has reasonable cause to believe the person was

involved in an accident in Michigan while operating a vehicle
and (1) while under the influence of alcoholic liquor, a
controlled substance, or other intoxicating substance, or any
combination thereof, (2) with an unlawful bodily alcohol
content, (3) while visibly impaired, (4) with any bodily alcohol
48 The 1989 Staff Comment to MCR 6.102 states that reasonable cause and probable cause are equivalent. However,
according to the Staff Comment, the preferred term is probable cause.

content if the person is under 21, or (5) while violating certain

provisions in MCL 257.625 and having occupants under age 16
in the vehicle. MCL 764.15(1)(h). Warrantless arrest authority
also extends to violations of substantially corresponding local
ordinances. Id.

involved in an accident in Michigan while operating a
commercial vehicle and with an unlawful bodily alcohol
content under MCL 257.625m, or violating a substantially
corresponding local ordinance. MCL 764.15(1)(h).
• The person is found in the driver’s seat of a stopped or parked

vehicle on a highway or street that in any way intrudes into a
roadway, and the officer reasonably believes the person was
operating the vehicle (1) while under the influence of alcoholic
liquor, a controlled substance, or other intoxicating substance,
or any combination thereof, (2) with an unlawful bodily alcohol
content, (3) while visibly impaired, (4) with any bodily alcohol
content if the person is under 21, or (5) while violating certain
provisions in MCL 257.625 and having occupants under age 16
in the vehicle. MCL 764.15(1)(i). Warrantless arrest authority
also extends to violations of substantially corresponding local
ordinances. Id.
• The person is found in the driver’s seat of a stopped or parked

commercial vehicle on a highway or street that in any way
intrudes into a roadway, and the officer reasonably believes the
person was operating the vehicle and with an unlawful bodily
alcohol content under MCL 257.625m, or violating a
substantially corresponding local ordinance. MCL 764.15(1)(i).

involved in an accident in Michigan while operating a
snowmobile, off-road vehicle (ORV), or vessel (1) while under
the influence of intoxicating liquor or a controlled substance, or
both (2) with an unlawful bodily alcohol content, or (3) while
visibly impaired. MCL 764.15(1)(j)-(l). Warrantless arrest
authority also extends to violations of substantially
corresponding local ordinances. Id.
• The officer has reasonable cause to believe retail fraud has

occurred, and the person committed the retail fraud, whether
or not committed in the officer’s presence, MCL 764.15(1)(m).
• The officer has reasonable cause to believe that a misdemeanor

has occurred or is occurring on school property, and the person
committed or is committing the misdemeanor, whether or not
committed in the officer’s presence, MCL 764.15(1)(n).
Other statutes also allow a peace officer to make a warrantless arrest

when a criminal offense or violation of a court order allegedly occurred:
• MCL 764.15a authorizes a peace officer to make a warrantless

arrest in a case involving domestic assault and aggravated
domestic assault.49 The officer may arrest a person regardless
of whether the violation takes place in his or her presence, as
long as the arresting officer has or receives positive information
that another officer has reasonable cause to believe both of the
following:
(1) the violation occurred or is occurring; and
(2) the individual arrested has had a child in common

with the victim, resides or has resided in the same
household as the victim, is or has had a dating
relationship with the victim, or is a spouse or former
spouse of the victim.
• MCL 764.15b authorizes a peace officer to make a warrantless

arrest for the violation of a personal protection order (PPO) or a
valid foreign protection order (FPO) if the officer has or
receives positive information that another officer has
reasonable cause to believe all of the following:
• a PPO has been issued under either the domestic or

nondomestic PPO statute, or is a valid FPO;
• the individual named in the PPO is violating or has

violated the order (the act must be specifically prohibited
in the order); and
• the PPO states on its face that a violation of its terms

subjects the individual to immediate arrest and either of
the following:
• if the individual is 17 years of age or older, to criminal

contempt sanctions of imprisonment for not more
than 93 days and to a fine of not more than $500; or
• if the individual is less than 17 years of age, to the

dispositional alternatives in MCL 712A.18 of the
Juvenile Code.
• MCL 764.15e allows a peace officer to make a warrantless arrest

of a person if the officer has or receives positive information
that another officer has reasonable cause to believe that the
49 For a complete discussion of this topic, see the Michigan Judicial Institute’s Domestic Violence
Benchbook.

person is violating or has violated a condition of release

imposed under MCL 765.6b or MCL 780.582a (governing
pretrial conditional release). See also MCL 764.15(1)(g)
(allowing warrantless arrest of person violating postconviction
conditional release).
• MCL 764.15f allows a peace officer to make a warrantless arrest

of a person if the officer has reasonable cause to believe all of
the following:
• the Family Division issued an order under MCL

712A.13a(4) (requiring certain adults to leave the home
pending the outcome of child protective proceedings), and
the order specifically stated the time period for which the
order was valid;
• a true copy of the order and proof of service have been

filed with the law enforcement agency having jurisdiction
of the area where the person who has custody of the child
resides;
• the person named in the order received notice of the order;
• the person named in the order violated the order;
• the order specifically states that a violation will subject the

person to criminal contempt sanctions, including up to 90
days’ imprisonment and a $500 fine.
A private person may make a warrantless arrest of another individual

under the following circumstances:
• For a felony regardless of whether the felony is committed in

his or her presence. MCL 764.16(a)-MCL 764.16(b).
• If summoned by a peace officer to assist the officer in making

an arrest. MCL 764.16(c).
• If the private person is a merchant, agent of a merchant,

employee of a merchant, or an independent contractor
providing security for a merchant of a store and has reasonable
cause to believe the other individual has committed retail
fraud, regardless of whether the retail fraud occurred in his or
her presence. MCL 764.16(d).

3.14 Alternatives to a Formal Complaint and Arrest

Warrant
A. Appearance Tickets for Non-Misdemeanor Traffic

Violations
1. Statutory Authority
In lieu of filing a complaint as required by MCL 764.13, a police
officer may issue an appearance ticket to a person who is
arrested without a warrant “for a misdemeanor or ordinance
violation for which the maximum permissible penalty does not
exceed 93 days in jail or a fine, or both[.]” MCL 764.9c(1).
2. Appearance Ticket Requirements

The original appearance ticket serves as the complaint or
notice to appear and must be filed with the court. MCL
764.9f(1)(a). The first copy is the abstract of court record; the
second copy must be retained by the local enforcement agency;
the third copy must be delivered to the alleged violator. MCL
764.9f(1)(b)–MCL 764.9f(1)(d).
3. Restrictions on the Issuance of Appearance Tickets

MCL 764.9c(3) prohibits the issuance of appearance tickets to:
• A person arrested for assault and battery, MCL

750.81, or aggravated assault and battery, MCL
750.81a, if the victim of the assault is:
• the offender’s spouse;
• the offender’s former spouse;
• someone who has had a child in common with

the offender;
• someone who has or has had a dating

relationship with the offender; or
• an individual who is residing or has resided in

the same household as the offender. MCL
764.9c(3)(a).
• “A person subject to detainment for violating a

personal protection order.” MCL 764.9c(3)(b).

• “A person subject to a mandatory period of

confinement, condition of bond, or other condition of
release until he or she has served that period of
confinement or meets that requirement of bond or
other condition of release.” MCL 764.9c(3)(c).
B. Citations to Appear50 for Traffic Misdemeanors or

Traffic Civil Infractions
1. Statutory Authority
Under the Michigan Vehicle Code (MVC), a police officer must
issue a citation to a person who is arrested without a warrant
for “a violation of [the MVC] punishable as a misdemeanor, or
an ordinance substantially corresponding to a provision of [the
MVC] and punishable as a misdemeanor, under conditions not
referred to in [MCL 257.617, MCL 257.619, or MCL 257.727.]”
MCL 257.728(1). However, where no arrest occurs, “[a] police
officer may issue a citation to a person who is an operator of a
motor vehicle involved in an accident if, based upon personal
investigation, the officer has reasonable cause to believe that
the person has committed a misdemeanor under [the MVC] in
connection with the accident.” MCL 257.728(8) (emphasis
added). See also MCL 257.742(3) (containing substantially
similar language with respect to civil infractions). Additionally,
an officer may issue a citation to a person he or she witnesses
committing a civil infraction or who he or she has reason to
believe is committing a civil infraction by violating certain
load, weight, height, length, or width requirements. MCL
257.742(1)-(2).
The citation must be filed in the district court in which the

appearance is to be made. MCL 257.727c(1)(a); MCR 4.101(A)
(civil infractions); MCR 6.615(A)(1)(a) (misdemeanors). There
is no prohibition against filing a single citation that lists both a
misdemeanor and a civil infraction. See MCL 257.727c(3).
A person arrested under the MVC without a warrant for a

misdemeanor or civil infraction may, in lieu of being issued a
citation to appear, demand to be brought to a judge or district
court magistrate or to the family division of the circuit court
for arraignment. MCL 257.728(1). If a nonresident demands an
immediate arraignment, and a judge or district court
50The
terms complaint, appearance ticket, and citation to appear are used interchangeably to discuss the
Uniform Law Citation (UC-01a and UC-01b) and refer to “a written notice to appear given to a
misdemeanor defendant (by an officer or other official) in lieu of a more immediate presentation of the
defendant to a magistrate.” McIntosh, 291 Mich App at 154 n 1.

magistrate is not available to conduct the arraignment or if an

immediate trial cannot be held, the nonresident may deposit
with the officer a guaranteed appearance certificate or a sum of
money not to exceed $100 and be issued a written citation.
MCL 257.728(5). However, a nonresident may not be issued a
written citation if he or she was arrested for a violation of any
offense listed in MCL 257.727(a)-(d). MCL 257.728(5).
2. Citation Requirements
The citation serves as a summons to command the initial
appearance of the accused and to command the accused’s
response regarding his or her guilt of or responsibility for the
violation alleged. MCR 4.101(A)(3)(a)-(b) (civil infractions);
MCR 6.615(A)(2)(a)-(b) (misdemeanors). The citation must
contain “the name and address of the person, the violation
charged, and the time and place when and where the person
shall appear in court.” MCL 257.728(1) (warrantless arrest for
alleged misdemeanor violation). See also MCL 257.743
(requiring substantially similar information and additional
information for alleged civil infraction); MCL 257.728(8)
(requiring substantially similar information for traffic
accidents allegedly involving a misdemeanor where no arrest
is made). The officer must complete an original and three
copies of the citation. MCL 257.728(1); MCL 257.728(8). The
original must be filed with the court in which the appearance is
to be made, the first copy is retained by the local traffic
enforcement agency, the second copy is delivered to the
violator if the violation is a misdemeanor, and the third copy is
delivered to the violator if the violation is a civil infraction.
MCL 257.727c(1).51 See also MCL 257.743, which requires
additional information pertaining to an accused’s right to
admit or deny responsibility for a civil infraction citation.
“If the citation is issued to a person who is operating a

commercial motor vehicle, the citation shall contain the vehicle
group designation and indorsement description of the vehicle
operated by the person at the time of the alleged violation.”
MCL 257.728(9) (misdemeanors). See also MCL 257.743(5)
(requiring substantially similar information be provided for
alleged traffic civil infraction involving commercial motor
vehicle).
51 With the approval of certain specified officials, the content or number of copies required by MCL
257.727c(1) may be modified “to accommodate law enforcement and local court and procedures and
practices.” MCL 257.727c(2).

3. Restrictions on the Issuance of Citations

MCL 257.728(1) prohibits the issuance of citations for the
following offenses52:
• Leaving the scene of an accident resulting in serious

impairment of a body function or death. MCL
257.617.
• Failing to give the proper information and aid after

an accident. MCL 257.619.
• Committing a moving violation causing death or

serious impairment of a body function to another
person under MCL 257.601d. MCL 257.727(a).
• Operating a vehicle while intoxicated, visibly

impaired, with any bodily alcohol content if under
age 21, or while having a controlled substance in his
or her body under MCL 257.625(1), MCL 257.625(3),
MCL 257.625(6), or MCL 257.625(8), or a substantially
corresponding ordinance. MCL 257.727(b).
• Causing death or serious impairment of a body

function by operating a vehicle while intoxicated or
visibly impaired, or while having a controlled
substance in his or her body, MCL 257.625(4)-
257.625(5). MCL 257.727(b).
• Operating a vehicle while intoxicated or visibly

impaired, with any bodily alcohol content if under
age 21, or while having a controlled substance in his
or her body, and having occupants under age 16 in
the vehicle, MCL 257.625(7). MCL 257.727(b).
• Reckless driving, MCL 257.626, or a substantially

corresponding ordinance, unless the officer deems
that issuing a citation and releasing the person will
not constitute a public menace. MCL 257.727(c).
• Not having in his or her immediate possession at the

time of arrest a valid operator’s or chauffeur’s license,
MCL 257.311, or a receipt for an already surrendered
license, MCL 257.311a. However, if the officer can
satisfactorily determine the identity of the person and
whether the person can be apprehended if he or she
fails to appear before the designated magistrate, the
officer may issue a citation. MCL 257.727(d).
52Some of the listed offenses are felonies, not punishable as misdemeanors, or may be punishable as
felonies if the person has prior convictions.

C. Summons to Appear
The prosecutor may request that the court issue a summons53
instead of an arrest warrant. MCR 6.103(A). MCL 764.9a governs the
issuance of a summons as an alternative to filing an order for a
warrant after an arrest for a minor offense. In such a case, the
prosecutor may issue a written order for a summons54 addressed to
the person accused. MCL 764.9a(1). The summons must direct the
person to appear at a designated time “before a magistrate of the
judicial district in which the offense is charged to have been
committed[.]” MCL 764.9a(1). “A summons shall designate the
name of the issuing court, the offense charged in the underlying
complaint, and the name of the defendant to whom it is addressed,
and shall be subscribed by the issuing magistrate.” MCL 764.9a(2).
“A summons may be served in the same manner as a warrant.” MCL
764.9a(3).
If the court is “presented with a proper complaint and if the court

finds probable cause to believe that the accused committed the
alleged offense[,]” the court may issue a summons as an alternative
to issuing an arrest warrant. MCR 6.102(A).55 “If an accused fails to
appear in response to a summons, the court, on request, must issue
an arrest warrant.” MCR 6.103(A).
The summons must contain the same information required of an

arrest warrant: the accused’s name, if known, or an identifying
name or description; a description of the offense charged in the
complaint; and the court’s signature. MCR 6.103(B); MCR 6.102(C).
However, unlike an arrest warrant, which must command that the
identified person be arrested and brought before a judicial officer, a
summons “should summon the accused to appear before a
designated court at a stated time and place.” MCR 6.103(B).
MCR 6.103(C) permits a summons to be served by:
“(1) delivering a copy to the named individual; or
(2) leaving a copy with a person of suitable age and

discretion at the individual’s home or usual place of
abode; or
(3) mailing a copy to the individual’s last known

address.”
53See SCAO Form MC 256, Criminal Summons (felony or misdemeanor). MCR 6.103 is specifically
applicable to misdemeanor cases. MCR 6.001(B).
54See SCAO Form MC 256, Criminal Summons (felony or misdemeanor).
55 MCR 6.102(A) is not included in the list of court rules specifically applicable to misdemeanor cases, MCR
6.001(B).

“Service should be made promptly to give the accused adequate

notice of the appearance date. The person serving the summons
must make a return to the court before which the person is
summoned to appear.” MCR 6.103(C).56
3.15 Interim Bail

In general, a person accused of a criminal offense is entitled to post
interim bail to obtain release before arraignment. MCL 765.4; MCL 765.6.
However, “[n]o person charged with treason or murder shall be admitted
to bail if the proof of his [or her] guilt is evident or the presumption
great.” MCL 765.5. See also Const 1963, art 1, § 15 (identifying additional
offenses precluding bail “when the proof is evident or the presumption
great”). The applicable procedures for bail depend on the nature of the
offense and whether a magistrate is available to set the amount of bail.57
Part C: Issuing a Search Warrant
3.16 Initiating the Search Warrant Process58

The United States and Michigan Constitutions protect against
unreasonable searches and seizures by providing that no warrant shall
issue without probable cause, supported by oath and affirmation. US
Const, Am IV; Const 1963, art 1, § 11. The Michigan provision is worded
similarly to the Fourth Amendment, and, absent compelling reasons,
provides the same protection as the Fourth Amendment. People v Levine
(Brian), 461 Mich 172, 178 (1999).
The Fourth Amendment provides:
“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,
56Although corporations are not subject to arrest, they can be charged and held liable for criminal acts of
their agents. People v Lanzo Constr Co, 272 Mich App 470, 472 (2006). Thus, the procedure set out in MCR
6.103 can be applied to a corporate defendant as well as an individual defendant.
57In large part, the procedures for interim bail are the same as those for post-arraignment, pretrial bail. For
a complete discussion of pretrial release and interim bail, see Chapter 8.

58
See the Michigan Judicial Institute’s Arrest & Search Warrants Quick Reference Materials web page for
resources concerning the issuance of search warrants. For information regarding a motion to suppress
evidence based on an illegal search or seizure, see Chapter 11.

and particularly describing the place to be searched, and the

persons or things to be seized.” US Const, Am IV.
The corresponding Michigan constitutional provision provides:
“The person, houses, papers and possessions of every person

shall be secure from unreasonable searches and seizures. No
warrant to search any place or to seize any person or things
shall issue without describing them, nor without probable
cause, supported by oath or affirmation . . . .” Const 1963, art
1, § 11.
The principal statutes concerning search warrants are MCL 780.651–MCL

780.658, and are discussed in more detail below.
A. Drafting and Typing the Documents

The affidavit and search warrant can be drafted by either: (1) the
prosecuting official, which may include assistant attorneys general,
assistant prosecuting attorneys, or attorneys for the city, village, or
township; or (2) the applicable law enforcement agency. Preferably,
the affidavit and warrant should be typed on SCAO Form MC 231,
Affidavit for Search Warrant, which contains instructions on its
reverse side.
B. Signature of Prosecuting Official

The signature of a prosecuting official is not legally necessary to
issue a search warrant based on an affidavit. MCL 600.8511(g);
People v Brooks (Robert), 75 Mich App 448, 450 (1977).59
Committee Tip:
The signature of the prosecutor is not required,
but if there are issues regarding the warrant or
affidavit, the judge or district court magistrate
should tell the police officer that it should be
reviewed by the prosecutor.
59This is in contrast to the issuance of an arrest warrant, which generally requires the signature of a
prosecuting official. See MCL 764.1(2) (“A judge or district court magistrate shall not issue a warrant for a
minor offense unless an authorization in writing allowing the issuance of the warrant is filed with the judge
or district court magistrate and signed by the prosecuting attorney[]”) and MCL 600.8511(e) (a magistrate
has the authority “[t]o issue warrants for the arrest of a person upon the written authorization of the
prosecuting or municipal attorney . . . .”).

Although a prosecuting official’s signature is not legally necessary

to issue a search warrant, the “Affidavit for Search Warrant” in
SCAO Form MC 231 contains a rectangular box in the lower left
corner for the signature of a reviewing prosecuting official to
accommodate local practice.
C. Neutral and Detached Magistrate

A magistrate who issues a search warrant must be “neutral and
detached,” a requirement rooted in both the United States and
Michigan Constitutions. Shadwick v City of Tampa, 407 US 345, 350
(1972); People v Payne, 424 Mich 475, 482-483 (1985); Const 1963, art
3, § 2.
Committee Tip:
It is important to maintain neutrality. For
example, if either the affidavit or search warrant
is defective, the magistrate/judge can tell the
police officer that there is a problem with it and
can state what the problem is (e.g., insufficient
factual basis to establish probable cause). Some
judges are of the opinion that they should not
tell the police officer how to fix the defect, while
other judges are of the opinion that they may
indicate what would be required in order for
them to sign it. One approach is to refer the
police officer to the prosecutor for review of the
affidavit/search warrant.
“The probable cause determination must be made by a person

whose loyalty is to the judiciary alone, unfettered by professional
commitment, and therefore loyalty, to the law enforcement arm of
the executive branch.” Payne, 424 Mich at 483 (magistrate who was
also a court officer and a sworn member of the sheriff’s department
could not issue search warrants). See also People v Lowenstein, 118
Mich App 475, 486 (1982) (magistrate who previously had
prosecuted and had been sued by the defendant was not neutral
and detached). But see People v Tejeda (On Remand), 192 Mich App
635, 638 (1992) (police officers waiting in magistrate’s chambers for a
phone call to provide them with additional information to complete
the affidavit does not necessarily mean magistrate has injected
himself or herself into the investigatory process).
A magistrate must disqualify himself or herself from authorizing

warrants in the following situations:

“‘[A magistrate] associated in any way with the

prosecution of alleged offenders, because of his [or her]
allegiance to law enforcement, cannot be allowed to be
placed in a position requiring the impartial judgment
necessary to shield the citizen from unwarranted
intrusions into his [or her] privacy.’ . . . In other words,
an otherwise duly appointed magistrate who just
happens to be connected with law enforcement may not
constitutionally issue warrants. . . . Next, the magistrate
(or judge) must disqualify himself [or herself] if he [or
she] had a pecuniary interest in the outcome. . . . A
judge must also disqualify himself [or herself] when one
of the parties happens to be his [or her] client. . . . He [or
she] must also disqualify himself [or herself] where a
party happens to be a relative. . . .” Lowenstein, 118 Mich
App at 483-484 (citations omitted).
D. Authority to Issue Search Warrants
1. District or Circuit Court Judges

There is general authority for district and circuit court judges
to issue search warrants. MCL 780.651(2)(a) and MCL
780.651(3) specify that “a judge or district court magistrate”
may issue a search warrant. MCL 780.651(1) provides:
“When an affidavit is made on oath to a judge or

district court magistrate authorized to issue
warrants in criminal cases, and the affidavit
establishes grounds for issuing a warrant under
this act, the judge or district court magistrate, if he
or she is satisfied that there is probable cause for
the search, shall issue a warrant to search the
house, building, or other location or place where
the person, property, or thing to be searched for
and seized is situated.”
MCL 780.651(3) authorizes “[a] judge or district court

magistrate [to] issue a written search warrant in person or by
any electronic or electromagnetic means of communication,
including by facsimile or over a computer network.”
Furthermore, “[a] judge or district court magistrate may sign
an electronically issued search warrant when he or she is at
any location in this state.” MCL 780.651(4).
In the event a district court judge knows that he or she may be

temporarily unavailable to issue a search warrant, the chief
judge of that district can request the chief judge of an adjoining

district to direct a district judge within that adjoining district to

serve temporarily as a district judge and to review the search
warrant. MCL 600.8212. See also People v Fiorillo, 195 Mich App
701, 704 (1992) (a district court may issue a warrant for a search
outside its jurisdictional boundaries).60
2. District Court Magistrates

A district court magistrate has the jurisdiction and duty “[t]o
issue search warrants, if authorized to do so by a district court
judge.” MCL 600.8511(g). See also MCL 780.651(1); MCL
780.651(3). “Notwithstanding statutory provisions to the
contrary, district court magistrates exercise only those duties
expressly authorized by the chief judge of the district or
division.” MCR 4.401(B).
A district court judge may grant “blanket authorization” to

magistrates to issue search warrants; the authorization need
not be on a case-by-case basis. People v Paul (Clyde), 444 Mich
949 (1994).
There is no requirement under MCL 600.8511 that the

authorization to issue search warrants be in writing. People v
White (Calvin), 167 Mich App 461, 464-466 (1988) (“had the
Legislature or Supreme Court intended to require written
authorization, they would have done so”).
MCL 780.651(3) authorizes “[a] judge or district court

magistrate [to] issue a written search warrant in person or by
any electronic or electromagnetic means of communication,
including by facsimile or over a computer network.”
Furthermore, “[a] judge or district court magistrate may sign
an electronically issued search warrant when he or she is at
any location in this state.” MCL 780.651(4).
District court magistrates may also issue search warrants in an

adjoining district or in other districts within a county if there is
a multiple district plan in place. MCL 600.8320.
E. Review of Decision to Issue Search Warrant

In reviewing the issuance of a search warrant, the reviewing court
must determine whether a reasonably cautious person could have
concluded that there was a substantial basis for finding probable
cause. People v Russo, 439 Mich 584, 603 (1992). The reviewing court
must afford deference to the magistrate’s decision and “insure that
60Whether a magistrate has statewide authority has not been decided.

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.’” Id. at 604, quoting Illinois v Gates, 462
US 213, 238 (1983). See also People v Kazmierczak, 461 Mich 411, 417-
418 (2000) (“[p]robable cause to issue a search warrant exists where
there is a ‘substantial basis’ for inferring a ‘fair probability’ that
contraband or evidence of a crime will be found in a particular
place”) and United States v Ventresca, 380 US 102, 108 (1965), where
the United States Supreme Court stated:
“[A]ffidavits for search warrants . . . must be tested and

interpreted by magistrates and courts in a
commonsense and realistic fashion. They are normally
drafted by nonlawyers in the midst and haste of a
criminal investigation. Technical requirements of
elaborate specificity once exacted under common law
pleadings have no proper place in this area. A grudging
or negative attitude by reviewing courts toward
warrants will tend to discourage police officers from
submitting their evidence to a judicial officer before
acting.”
3.17 Description of the Place to be Searched
A. Specific Description of Premises to be Searched

The United States and Michigan Constitutions require that a search
warrant particularly describe the place to be searched. See US
Const, Am IV (“no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched . . . .”) and Const 1963, art I, § 11 (“No warrant
to search any place . . . shall issue without describing [it] . . . .”). See
also MCL 780.654(1) (“[e]ach warrant shall designate and describe
the house or building or other location or place to be
searched . . . .”).
The place to be searched must be described with sufficient precision

so as to exclude any and all other places. “[W]here a multi-unit
dwelling is involved . . . the warrant must specify the particular sub-
unit to be searched, unless the multi-unit character of the dwelling
is not apparent and the police officers did not know and did not
have reason to know of its multi-unit character.” People v Toodle, 155
Mich App 539, 545 (1986).
Although specific addresses should be used when available, an

incorrect address will not always invalidate a search warrant. See
People v Westra, 445 Mich 284, 285-286 (1994) (warrant not invalid

even though the apartment street address and unit number were
incorrect, because the police made a reasonable inquiry into the
address before executing the search).
B. Scope of Premises Search and Seizure

“A warrant authorizing the search of a premises authorizes the
search of containers within the premises that might contain the
items named in the warrant.” People v Daughenbaugh, 193 Mich App
506, 516 (1992), mod on other grounds 441 Mich 867 (1992).61 See
People Coleman, 436 Mich 124, 130-134 (1990) (defendant’s purse in
bedroom of defendant’s home was properly searched as a container
that fell within the scope of the warrant, and was not an extension of
defendant’s person). This rule applies to locked and unlocked
containers. Daughenbaugh, 193 Mich App at 516. “[A] search warrant
for ‘premises’ authorizes the search of all automobiles found on the
premises.” People v Jones (Eddie), 249 Mich App 131, 136 (2002).
A search warrant authorizing a search of the grounds or

outbuildings within a residence’s curtilage does not violate the
Fourth Amendment or Const 1963, art 1, § 11, if the warrant
authorized a search of the residence. See People v McGhee (Larry A),
255 Mich App 623, 625 (2003) (upholding searches of detached
garage and fenced-in dog run adjacent to the garage, where
warrants were not restricted to a search of the residences only, but
also included all “spaces” or “storage areas” accessible from the
property addresses).
Committee Tip:
MCL 780.654 requires particularized probable
cause for the place and property to be searched.
When the police are seeking a warrant to search
for multiple objects, the magistrate/judge
should verify that there is particularized
probable cause for each place and property to be
searched.

3.18 Description of the Person to be Searched, Searched

For, and/or Seized
A. Persons to be Searched
Although search warrants give authority to search the described
premises and any specifically identified persons on the premises, it
is sometimes unclear whether the warrant authorizes a search of
persons who are present on the premises but who were not
specifically identified in the search warrant.
MCL 780.654 requires particularized probable cause for the place

and property to be searched, but it does not expressly provide legal
requirements for a person to be searched. However, the United States
Supreme Court has held that when a search warrant describes
persons to be searched, it “must be supported by probable cause
particularized with respect to that person.” Ybarra v Illinois, 444 US
85, 91 (1979) (warrant to search public bar and bartender did not
extend to a Terry62 pat-down search of bar patrons present on the
premises because the patrons were not described or named in the
warrant as persons known to purchase drugs at that location, and
because there was no reasonable belief that patrons were armed or
dangerous). But see People v Jackson (Dorsey), 188 Mich App 117, 121
(1990), where the Court of Appeals distinguished Ybarra and upheld
a Terry pat-down search of a defendant who arrived at an alleged
drug-house during the execution of a search warrant (“[Ybarra]
involved an unjustified cursory search of patrons in a public bar,
whereas this case deals with the search of an individual at a
residence targeted for drug sales, which was conducted in light of
various threats made against the searching officers”).
“The places and persons authorized to be searched by a warrant

must be described sufficiently to identify them with reasonable
certainty so that the object of the search is not left in the officer’s
discretion.” People v Kaslowski, 239 Mich App 320, 323 (2000).
“[U]nless a search of a particularly described person is expressly

authorized by a warrant, a full search of a person present on the
premises subject to a warrant may not be based upon the warrant.”
People v Stewart, 166 Mich App 263, 268 (1988). However, when a
search of private premises pursuant to a warrant reveals controlled
substances, police have probable cause to arrest and search incident
to arrest occupants of the premises who were not named in the
warrant. People v Arterberry, 431 Mich 381, 383-385 (1988). See also
Michigan v Summers, 452 US 692, 705 (1981)63 (a warrant to search a
62 Terry v Ohio, 392 US 1 (1968).

residence for contraband implicitly carries with it the limited

authority to detain, but not search, occupants of the premises while
a proper search of the home is conducted; once evidence to establish
probable cause to arrest an occupant is found, that person’s arrest
and search incident thereto is constitutionally permissible).
A person on the premises at the time of the execution of the warrant

may be searched without a warrant if probable cause exists
independently of the search warrant to search that particular
person. People v Cook (Dale), 153 Mich App 89, 91-92 (1986). A search
may also be made of a person, even though the search warrant does
not specifically authorize the search of a person, if the affidavit in
support of the search warrant establishes probable cause to support
the search. People v Jones (Henry), 162 Mich App 675, 677-678 (1987).
B. Persons to be Searched For and/or Seized

MCL 780.652(2) provides that “[a] warrant may be issued to search
for and seize a person who is the subject of either of the following:
(a) An arrest warrant for the apprehension of a person

charged with a crime.
(b) A bench warrant issued in a criminal case.”
In order to issue a search warrant for a person, the affidavit must

establish particularized probable cause to search the location
“where the person . . . to be searched for and seized is situated.”
MCL 780.651(1). Once issued, “[a] search warrant shall be directed
to the sheriff or any peace officer, commanding the sheriff or peace
officer to search the house, building, or other location or place,
where the person . . . for which the sheriff or peace officer is
required to search is believed to be concealed. Each warrant shall
designate and describe the house or building or other location or
place to be searched and the property or thing to be seized.” MCL
780.654(1).
3.19 Description of Property to be Seized

General searches are prohibited under the Fourth Amendment of the
United States Constitution, which requires warrants to “particularly
describ[e] the . . . things to be seized[,]” and Const 1963, art 1, § 11, which
provides that “[n]o warrant to . . . seize any . . . things shall issue without
describing them[.]” See also MCL 780.654 (“[e]ach warrant shall
63The rule in Summers is limited to a detention in the immediate vicinity of the premises to be searched; it
does not apply to a detention at any appreciable distance away from the premises to be searched. Bailey v
United States, 568 US 186, ___ (2013).

designate and describe the . . . property or thing to be seized”), and People

v Collins (WC), 438 Mich 8, 37-38 (1991) (“the warrant must set forth, with
particularity, the items to be seized”).
“Under both federal law and Michigan law, the purpose of the
particularization requirement in the description of items to be seized is to
provide reasonable guidance to the executing officers and to prevent
their exercise of undirected discretion in determining what is subject to
seizure.” People v Fetterley, 229 Mich App 511, 543 (1998).
“The degree of specificity required depends upon the circumstances and

types of items involved.” People v Zuccarini, 172 Mich App 11, 15 (1988).
A. Descriptions Sufficient
• Descriptions in a warrant of “all money and property acquired
through the trafficking of narcotics,” and “ledgers, records or
paperwork showing trafficking in narcotics,” were sufficiently
particular because the executing officers’ discretion in
determining what was subject to seizure was limited to items
relating to drug trafficking. Zuccarini, 172 Mich App at 15-16.
• Descriptions in warrants of “equipment or written

documentation used in the reproduction or storage of the
activities and day-to-day operations of the [search location]”
“further qualified by [a] reference to the drug trafficking and
prostitution activities that were thought to take place there”
described with sufficient particularity the items to be seized
because they provided reasonable guidance to the officers
performing the search. People v Martin (Bobby), 271 Mich App
280, 304-305 (2006).
• A search warrant authorizing the seizure of “any evidence of

homicide” met the particularity requirement because the
executing officers were limited to searching only for “items that
might reasonably be considered ‘evidence of homicide[,]’” and
because “[a] general description, such as ‘evidence of
homicide,’ is not overly broad if probable cause exists to allow
such breadth.” People v Unger, 278 Mich App 210, 245-246
(2008).
B. Descriptions Insufficient
• A warrant referring to stolen property of a certain type is
insufficient if that property is common, particularly if
additional details are available. Wheeler v City of Lansing, 660
F3d 931, 941-943 (CA 6, 2011). In Wheeler, police officers were
issued a warrant to search the plaintiff’s apartment for personal
property pursuant to an investigation of a series of home

invasions. Id. at 934-935. The property to be seized was
identified in the warrant as including “shotguns, long guns,
computer and stereo equipment, cameras, DVD players, video
game systems, big screen televisions, necklaces, rings, other
jewelry, coin collections, music equipment, and car stereo
equipment.” Id. at 935. The United States Court of Appeals for
the Sixth Circuit found that this description “provid[ed] no
basis to distinguish the stolen items from [the plaintiff’s] own
personal property.” Id. at 941. Although the police reports of
the break-ins identified “the brand and dimensions of the
televisions, the brand of the camera and Playstation and the
exact amount of cash reported as stolen,” two of the three
cameras seized were not of the same brand as those identified
as stolen. Id. The Court emphasized that the Fourth
Amendment does not require “every single fact known” to be
stated, but the affidavit supporting the warrant should provide
“additional details, if they are available, to help distinguish
between contraband and legally possessed property.” Id. at 942.
3.20 Property Subject to Seizure

In addition to the constitutional “particularity” requirement, Michigan
statutory law limits the types of items for which a search warrant may be
issued. Under MCL 780.652, a warrant may be issued to search for and
seize any property or thing that is one or more of the following:
“(a) Stolen or embezzled in violation of a law of this state.
(b) Designed and intended for use, or that is or has been

used, as the means of committing a crime.
(c) Possessed, controlled, or used wholly or partially in

violation of a law of this state.
(d) Evidence of crime or criminal conduct.
(e) Contraband.
(f) The body or person of a human being or of an animal that

may be the victim of a crime.
(g) The object of a search warrant under another law of this

state providing for the search warrant. If there is a conflict
between this act and another search warrant law, this act
controls.”
Additionally, other Michigan statutes authorize the issuance of search

warrants for any of the following property or things:

• alcoholic liquor and containers, MCL 436.1235.
• Body cavity searches, MCL 764.25b.
• Chop shop materials, MCL 750.535a.
• controlled substances, MCL 333.7502.
• Gaming implements, MCL 750.308.
• Hair, tissue, blood, or other bodily fluids obtained in criminal

sexual conduct crimes (related by blood or affinity), MCL
780.652a.
• Large carnivores, MCL 287.1117.
• Pistols, weapons, and devices unlawfully possessed or carried,

MCL 750.238 (penal code); MCL 28.433 (firearms code).
• Sources of ionizing radiation, MCL 333.13517.
• Tortured animals and instruments of torture, MCL 750.54.
• Wild birds, wild animals, and fish, MCL 324.1602.
• Wolf-dogs, MCL 287.1017.
3.21 Probable Cause

A magistrate may only issue a search warrant when there is probable
cause to support it. People v Keller, 479 Mich 467, 475 (2007); People v
Ulman, 244 Mich App 500, 509 (2001).
A. Probable Cause Defined

“Probable cause sufficient to support issuing a search warrant exists
when all the facts and circumstances would lead a reasonable
person to believe that the evidence of a crime or the contraband
sought is in the place requested to be searched.” People v Brannon,
194 Mich App 121, 132 (1992).
Regarding the degree of probability required for “probable cause,”

the Michigan Supreme Court has held that to issue a search warrant
a magistrate need not require that the items be “more likely than
not” in the place to be searched; rather, a magistrate need only
reasonably conclude that there is a “fair probability” that the
evidence be in the place indicated in the search warrant. People v
Russo, 439 Mich 584, 614-615 (1992).

B. Staleness
“A search warrant must be supported on probable cause existing at
the time the warrant is issued.” People v Osborn, 122 Mich App 63, 66
(1982). “Nevertheless, a lapse of time between the occurrence of the
underlying facts and the issuance of the warrant does not
automatically render the warrant stale.” Id. “[T]he measure of a
search warrant’s staleness rests not on whether there is recent
information to confirm that a crime is being committed, but whether
probable cause is sufficiently fresh to presume that the sought items
remain on the premises.” People v Gillam (Vincent), 93 Mich App 548,
553 (1980). “Such probable cause is more likely to be ‘sufficiently
fresh’ when a history of criminal activity is involved.” Osborn, 122
Mich App at 66, quoting Gillam (Vincent), 93 Mich App at 553.
Staleness “is not a separate doctrine in probable cause to search

analysis”; instead “[i]t is merely an aspect of the Fourth
Amendment inquiry.” Russo, 439 Mich at 605. “Time as a factor in
the determination of probable cause to search is to be weighed and
balanced in light of other variables in the equation, such as whether
the crime is a single instance or an ongoing pattern of protracted
violations, whether the inherent nature of a scheme suggests that it
is probably continuing, and the nature of the property sought, that
is, whether it is likely to be promptly disposed of or retained by the
person committing the offense.” Id. at 605-606.
Stale information cannot be used in making a probable cause

determination. United States v Frechette, 583 F3d 374, 377 (CA 6,
2009).64 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 place to be searched (is it a “mere criminal
forum of convenience or [a] secure operational base?”). Id. at 378. In
Frechette, 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. Id. at 378-379.
There is no bright-line rule regarding how much time may intervene

between obtaining the facts and presenting the affidavit; however,
64 Though persuasive, Michigan state courts “are not . . . bound by the decisions of the lower federal
courts[.]” People v Gillam (Willie), 479 Mich 253, 261 (2007).

the time should not be too remote. People v Mushlock, 226 Mich 600,
602 (1924). “[T]he test of remoteness is a flexible and reasonable one
depending on the facts and circumstances of the particular case in
question.” People v Smyers, 47 Mich App 61, 73 (1973).
1. Evidence Stale
• Affidavit alleging that defendant illegally sold liquor
four days earlier, absent evidence of continuing
illegal activity. People v Siemieniec, 368 Mich 405, 407
(1962).
• Affidavit alleging a single controlled drug buy made

three days before warrant issued, because there was
no evidence to suggest that defendant would still
possess the marijuana at the time the warrant was
executed. People v David, 119 Mich App 289, 296
(1982).
• Affidavit alleging liquor sales and gambling

conducted on premises six days earlier, absent
evidence of continuing illegal activity. People v Wright,
367 Mich 611, 614 (1962).
• Affidavit alleging drug sales to undercover police

officer made more than one month before warrant
issued. People v Broilo, 58 Mich App 547, 550-552
(1975).
2. Evidence Not Stale

• Six day delay between issuance of warrant and
affiant’s visit to defendant’s home and observation of
stolen dress. Smyers, 47 Mich App at 72-73.
• Affidavit alleging that a typewriter used to prepare

forged checks had been seen in defendant’s
apartment several months earlier, because
information indicated a continuing criminal
enterprise. People v Berry, 84 Mich App 604, 608-609
(1978).
Committee Tip:
In operating while intoxicated cases, although M
Crim JI 15.5(6) states that the jury “may infer
that the defendant’s bodily alcohol content at
the time of the test was the same as [his / her]
bodily alcohol content at the time [he / she]

operated the motor vehicle[,]” the affidavit

should indicate the time of the stop. It is
common for the police officer to fail to indicate
the time of the stop in the affidavit.
3.22 Anticipatory Search Warrant

“‘An anticipatory search warrant is a warrant based upon an affidavit
showing probable cause that at some future time (but not presently)
certain evidence of crime will be located at a specified place.’” People v
Kaslowski, 239 Mich App 320, 324 (2000), quoting People v Brake, 208 Mich
App 233, 244 (1994) (Wahls, J., concurring in part and dissenting in part).
In Kaslowski, 239 Mich App at 325-329, an anticipatory search warrant

permitting police officers to deliver a parcel containing drugs and an
electronic monitoring device that would activate when the parcel was
opened was deemed valid because the warrant and affidavit established
narrow circumstances under which the police were authorized to execute
the warrant, the search was subject to the successful delivery of drugs by
an undercover police officer, and the affidavit clearly indicated that the
execution of the warrant was contingent on the successful delivery of the
drugs.
Anticipatory search warrants do not violate the Fourth Amendment’s

warrant clause. United States v Grubbs, 547 US 90, 94-95 (2006). Further,
the condition or event that “triggers” execution of an anticipatory search
warrant need not be included in the search warrant itself. Id. at 99.
3.23 Affidavit
A. Requirements
“‘The affidavit must contain facts within the knowledge
of the affiant, as distinguished from mere conclusions or
belief. An affidavit made on information and belief is
not sufficient. The affidavit should clearly set forth the
facts and circumstances within the knowledge of the
person making it, which constitute the grounds of the
application. The facts should be stated by distinct
averments, and must be such as in law would make out
a cause of complaint. It is not for the affiant to draw his
[or her] own inferences. He [or she] must state matters
which justify the drawing of them.’” People v
Rosborough, 387 Mich 183, 199 (1972), quoting 2

Gillespie, Michigan Crim Law & Proc (2d ed), Search

and Seizure, § 868, p 1129.
B. Validity
“In Michigan, there is a presumption that an affidavit supporting a
search warrant is valid.” People v Mullen, 282 Mich App 14, 23 (2008).
“A defendant is entitled to a hearing to challenge the validity of a

search warrant if he [or she] ‘makes 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, and if the allegedly false statement is necessary to
the finding of probable cause . . . .’” People v Martin (Bobby), 271
Mich App 280, 311 (2006), quoting Franks v Delaware, 438 US 154,
155-156 (1978). “In order to warrant a hearing, the challenge ‘must
be more than conclusory and must be supported by more than a
mere desire to cross-examine.’” Martin, 271 Mich App at 311,
quoting Franks, 438 US at 171. “Franks controls the circumstances
under which ‘the Fourth Amendment requires that a hearing be held
at the defendant’s request,’ but Franks does not bar a trial court from
exercising its discretion to grant evidentiary hearings concerning
the veracity of search warrant affidavits under other
circumstances.” People v Franklin, 500 Mich 92, 95 (2017) (holding
that the Court of Appeals erred in “interpret[ing] Franks as barring a
trial court from granting a defendant an evidentiary hearing to
challenge the veracity of a search warrant affidavit following the
warrant’s execution ‘unless the defendant makes “[the] substantial
preliminary showing”’ as set forth in Franks[]”) (citations omitted;
second alteration in original). “Given the absence of any identified
prohibition, and given the latitude Michigan trial courts enjoy
regarding motion practice and evidentiary hearings generally, . . .
trial courts possess the authority to grant discretionary evidentiary
hearings on the veracity of search warrant affidavits and a trial
court’s decision to hold a veracity hearing is subject to review only
for an abuse of discretion.” Franklin, Mich at 110-111 (concluding
that the trial court did not abuse its discretion in granting an
evidentiary hearing on the defendant’s motion to quash the search
warrant on the ground “that the affiant had failed to supply
sufficient information to demonstrate that the [confidential
informant mentioned in the affidavit] was credible[]”).
“In order to prevail on a motion to suppress the evidence obtained

pursuant to a search warrant procured with alleged false
information, the defendant must show by a preponderance of the
evidence that the affiant had knowingly and intentionally, or with
reckless disregard for the truth, inserted false material into the
affidavit and that the false material was necessary to a finding of

probable cause.” People v Stumpf, 196 Mich App 218, 224 (1992). This
rule also applies to material omissions from affidavits. Id. See
Mullen, 282 Mich App at 22-27, where the Court of Appeals held
that probable cause existed to issue a search warrant 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. In Mullen, the defendant was stopped
and arrested for operating a motor vehicle while intoxicated. Id. at
20. 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. 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 20. 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. 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 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.” Mullen, 282 Mich App at 28.
“Where the defendant challenges the truth of facts alleged in the

affidavit, our courts have struck only the challenged portions of the
warrant or its affidavit. In those cases, if enough substance remains
to support a finding of probable cause the warrant is valid.” People v
Kolniak, 175 Mich App 16, 22 (1989).
C. Affidavits Based upon Hearsay Information

An affidavit may be based on hearsay information supplied to the
affiant by a named or unnamed person, subject to the following
requirements:
“(a) If the person is named, affirmative allegations from

which the judge or district court magistrate may

conclude that the person spoke with personal

knowledge of the information.
(b) If the person is unnamed, affirmative allegations

from which the judge or district court magistrate may
conclude that the person spoke with personal
knowledge of the information and either that the
unnamed person is credible or that the information is
reliable.” MCL 780.653.
1. Informant Must Speak with Personal Knowledge

“In general, the requirement that the informant have personal
knowledge seeks to eliminate the use of rumors or reputations
to form the basis for the circumstances requiring a search.”
Stumpf, 196 Mich App at 223. “The personal knowledge
element should be derived from the information provided or
material facts, not merely a recitation of the informant’s having
personal knowledge.” Id. “If personal knowledge can be
inferred from the stated facts, that is sufficient to find that the
informant spoke with personal knowledge.” Id. See also Martin
(Bobby), 271 Mich App at 302 (“[p]ersonal knowledge can be
inferred from the stated facts”).
2. Informant Must Be Credible or Information Must Be

Reliable
“MCL 780.653(b) derives from the defunct ‘two-pronged test’
enunciated by the United States Supreme Court in Aguilar v
Texas, 378 US 108[](1964), and Spinelli v United States, 393 US
410[](1969), for determining whether an anonymous
informant’s tip established probable cause for issuance of a
search warrant.” People v Hawkins, 468 Mich 488, 501 (2003).
“Under the Aguilar-Spinelli formulation as it was generally
understood, a search warrant affidavit based on information
supplied by an anonymous informant was required to contain
both (1) some of the underlying circumstances evidencing the
informant’s basis of knowledge and (2) facts establishing either
the veracity or the reliability of the information.” Hawkins, 468
Mich at 501-502.
In Illinois v Gates, 462 US 213 (1983), “the United States

Supreme Court abandoned the Aguilar-Spinelli two-pronged
test in favor of a ‘totality of the circumstances’ approach.”
Hawkins, 468 Mich at 502 n 11. “Accordingly, in determining
whether a search warrant affidavit that is based on hearsay
information passes Fourth Amendment muster, ‘[t]he task of
the issuing magistrate is simply to make a practical, common-

sense decision whether, given all the circumstances set forth in

the affidavit before him [or her], . . . there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.’” Id., quoting Gates, 462 US at 238.
A statement in the affidavit that the informant is a “credible

person” does not satisfy the statutory requirement set out in
MCL 780.653(b). People v Sherbine, 421 Mich 502, 511 n 16
(1984), overruled on other grounds by People v Hawkins, 468
Mich 488 (2003).
Examples of factual information that is probative of “informant

credibility” include:
• A course of past performance in which the informant

has supplied reliable information;
• Admissions against the informant’s penal interest;

and
• Corroboration of non-innocuous details of the

informant’s story by reliable, independent sources or
police investigation. Sherbine, 421 Mich at 510 n 13.
The statutory alternative of “informational reliability” must

also be established by factual averments in the affidavit. In
most cases, once “informant credibility” is established, it
logically follows that the information is reliable, and vice versa.
However, a subtle distinction may be drawn in situations
where the method of procuring the information is unknown. In
Spinelli, 393 US at 416, the United States Supreme Court
explained:
“In the absence of a statement detailing the manner

in which the information was gathered, it is
especially important that the tip describe the
accused’s criminal activity in sufficient detail that
the magistrate may know that he [or she] is relying
on something more substantial than a casual
rumor circulating in the underworld or an
accusation based merely on an individual’s general
reputation.”
Thus, by describing the criminal activity in detail, the

reliability of the information can be proven independent of
informant credibility.
When, in addition to information obtained from an

anonymous informant, an affidavit in support of a search
warrant is based on other information sufficient in itself to

justify the judge or district court magistrate’s finding of

probable cause, it is not necessary for purposes of MCL 780.653
to determine whether the informant was credible or whether
the information provided was reliable. People v Keller, 479 Mich
467, 477 (2007). In Keller, marijuana discovered in the
defendants’ trash was itself sufficient to support the conclusion
that there was a fair probability that evidence of illegal activity
would be found in the defendants’ home. Id. at 477. Even
though an anonymous tip prompted the initial investigation
into the defendants’ possible illegal activity, the marijuana
alone supported the probable cause necessary to issue a search
warrant and “the statutory requirement that an anonymous tip
bear indicia of reliability d[id] not come into play.” Id. at 483.
3.24 Invalidity of Search Warrant and Suppression of

Evidence
The invalidity of a portion of a search warrant does not require
suppression of all seized evidence. Instead, trial courts are to sever any
tainted portions of the warrant—e.g., those portions that lack probable
cause or do not sufficiently describe the place, property, or person—from
the valid portions. Severance has been explained as follows:
“Severance does not ratify the invalid portions of the

warrant, but recognizes that we need not completely
invalidate a warrant on the basis of issues that are not related
to the evidence validly seized. Where items are validly
seized, a defect in a severable portion of the warrant should
not be used to suppress the validly seized evidence.” People v
Kolniak, 175 Mich App 16, 22-23 (1989).
See also People v Melotik, 221 Mich App 190, 202-203 (1997), where the
case was remanded to the district court to “consider whether the facts
contained in the second affidavit, after redaction of the facts arising
solely from defendant’s inadmissible statement, established probable
cause to issue the second warrant.”
Even where a search warrant issued from an affidavit is later found

insufficient in light of the requirements of MCL 780.653, the evidence
obtained in execution of the faulty warrant may still be admissible
against a defendant. In People v Hawkins, 468 Mich 488, 501 (2003), the
defendant moved to suppress evidence obtained pursuant to a search
warrant based on an affidavit that failed to satisfy the requirements of
MCL 780.653(b) for an affiant’s reliance on unnamed sources. The Court
held that “[n]othing in the plain language of [MCL 780.653] 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 on a search warrant.” Hawkins, 468 Mich at 510. The Court
concluded that suppression of the evidence was not required as a remedy
for the violation of MCL 780.653(b). Hawkins, 468 Mich at 512.
3.25 Verifying and Executing the Affidavit

“An affidavit must be verified by oath or affirmation.” MCR
1.109(D)(1)(f). The affiant should have knowledge of the facts stated. See
MCR 1.109(D)(3)(a). “When an affidavit is made on oath to a judge or
district court magistrate authorized to issue warrants in criminal cases,
and the affidavit establishes grounds for issuing a warrant under this act,
the judge or district court magistrate, if he or she is satisfied that there is
probable cause for the search, shall issue a warrant to search the house,
building, or other location or place where the property or thing to be
searched for and seized is situated.” MCL 780.651(1).
Once the judge or district court magistrate is satisfied that the warrant is
in proper form and that the affidavit establishes probable cause to believe
the items to be seized may be found in the place to be searched, it must
swear the affiant and ask him or her to state that the averments in the
affidavit are true to the best of his or her information and belief. See MCL
780.651(2).
After the affiant has signed the affidavit, the judge or district court
magistrate should sign and date it. This indicates the affidavit was signed
and subscribed in the presence of the court on that date. Following this,
the court should sign and date the search warrant, thereby “issuing” the
warrant. See MCL 780.651(4)-(5).
Committee Tip:
The judge or district court magistrate may want
to indicate the time of signature, especially if
staleness may be an issue.
The court must retain the original affidavit and warrant for its own
records. See SCAO Form MC 231, Search Warrant.65
65 For additional information on records management, and for links to records retention and disposal
schedules, see the State Court Administrative Office’s Records Management website.

A. Affiant’s Signature Requirement

“The affidavit should be signed by the affiant. A warrant based
upon an unsigned affidavit is presumed to be invalid, but the
prosecutor may rebut the presumption by showing that the affidavit
was made on oath to a magistrate.” People v Waclawski, 286 Mich
App 634, 698 (2009). See also MCL 780.651(2)(a).
B. Judge’s or District Court Magistrate’s Signature

Requirement
“[T]he fact that a search warrant has not been signed by a magistrate
or judge presents a presumption that the warrant is invalid.
However, this presumption may be rebutted with evidence that, in
fact, the magistrate or judge did make a determination that the
search was warranted and did intend to issue the warrant before the
search.” People v Barkley, 225 Mich App 539, 545 (1997).
C. Information in Affidavit and Supplementation with Oral

Statements
There are “dangers inherent in allowing a magistrate to base his [or
her] determinations of probable cause on oral statements not
embodied in the affidavit.” People v Sloan, 450 Mich 160, 176 (1995),
rev’d on other grounds by People v Hawkins, 468 Mich 488 (2003).
“[A]ny additional facts relied on to find probable cause must be
incorporated into an affidavit.” Id. at 177. “What is critical is that the
additional information be presented under oath and simultaneously
made a permanent part of the record.[66]” Id. at 178.
Committee Tip:
It is important to refrain from discussing the
facts of the case with the police officer, so that
all the facts relied on are contained in the
affidavit. This avoids the issue of facts not
contained in the affidavit, which occurs when the
police officer verbally augments the facts set out
in the affidavit.
If the affiant wants to modify or supplement the

affidavit, the affiant may insert additional or
corrected information in the affidavit and initial
66“The recording may take various forms, including handwritten notes, video or audio tapes, or formal or
informal transcripts of testimony.” Sloan, 450 Mich at 177.

it. The judge or district court magistrate should

also initial the changes.
3.26 Submission of Affidavit and Issuance of Search

Warrant by Electronic Device
“Under MCL 780.651(2), an affidavit may be made to a judge or district
court magistrate via electronic or electromagnetic means of
communication if the judge or district court magistrate orally
administers the oath or affirmation and the affiant signs the affidavit.”
People v Paul (Clyde), 203 Mich App 55, 61 (1993), rev’d on other grounds
444 Mich 949 (1994).67 See also MCR 1.109(E)(4) (authorizing the use of
electronic signatures that are in accordance with MCR 1.119(E)).
Specifically, MCL 780.651(2) provides:
“An affidavit for a search warrant may be made by any

electronic or electromagnetic means of communication,
including by facsimile or over a computer network, if both of
the following occur:
(a) The judge or district court magistrate orally

administers the oath or affirmation to an applicant for a
search warrant who submits an affidavit under this
subsection.
(b) The affiant signs the affidavit. Proof that the affiant
has signed the affidavit may consist of an electronically
or electromagnetically transmitted facsimile of the
signed affidavit or an electronic signature on an
affidavit transmitted over a computer network.”
“A judge or district court magistrate may issue a written search warrant

in person or by any electronic or electromagnetic means of
communication, including by facsimile or over a computer network.”
MCL 780.651(3). Furthermore, “[a] judge or district court magistrate may
sign an electronically issued search warrant when he or she is at any
location in this state.” MCL 780.651(4).
“The peace officer or department receiving an electronically or

electromagnetically issued search warrant shall receive proof that the

issuing judge or district court magistrate has signed the warrant before
the warrant is executed.” MCL 780.651(5). “Proof that the issuing judge
or district court magistrate has signed the warrant may consist of an
electronically or electromagnetically transmitted facsimile of the signed
warrant or an electronic signature on a warrant transmitted over a
computer network.” Id.
“If an oath or affirmation is orally administered by electronic or

electromagnetic means of communication under [MCL 780.651], the oath
or affirmation is considered to be administered before the judge or
district court magistrate.” MCL 780.651(6).
“If an affidavit for a search warrant is submitted by electronic or

electromagnetic means of communication, or a search warrant is issued
by electronic or electromagnetic means of communication, the
transmitted copies of the affidavit or search warrant are duplicate
originals of the affidavit or search warrant and are not required to
contain an impression made by an impression seal.” MCL 780.651(7).
3.27 Issuance of Search Warrant in Operating While

Intoxicated/Operating While Visibly Impaired Cases
“[P]ersons who operate vehicles on public highways are ‘considered to
have given consent to chemical tests of his or her blood,’ rather than
requiring the state to first obtain actual consent or a search warrant.”
People v Campbell (Lawrence), 236 Mich App 490, 498 (1999). Specifically,
Michigan’s implied consent statute, MCL 257.625c, provides:
“A person who operates a vehicle upon a public highway or

other place open to the general public or generally accessible
to motor vehicles, including an area designated for the
parking of vehicles, within this state is considered to have
given consent to chemical tests of his or her blood, breath, or
urine for the purpose of determining the amount of alcohol
or presence of a controlled substance or other intoxicating
substance, or any combination of them, in his or her blood or
urine or the amount of alcohol in his or her breath [if the
person is arrested for certain specified offenses].” MCL
257.625c(1).
The offenses specified in MCL 257.625c(1) are:
• Operating while intoxicated, MCL 257.625(1), or a substantially

corresponding local ordinance;
• Operating while visibly impaired, MCL 257.625(3), or a

substantially corresponding local ordinance;

• Operating while intoxicated/while visibly impaired/with any

amount of controlled substance in body causing death, MCL
257.625(4);
• Operating while intoxicated/while visibly impaired/with any

amount of controlled substance in body causing serious
impairment of a body function, MCL 257.625(5);
• Operating with any bodily alcohol content, if the driver is less

than 21 years of age, MCL 257.625(6), or a substantially
corresponding local ordinance;
• Operating in violation of MCL 257.625(1), MCL 257.625(3)-(5),

or MCL 257.625(8), if committed with a passenger under 16
years of age, MCL 257.625(7);
• Operating with any amount of a controlled substance, MCL

257.625(8), or a substantially corresponding local ordinance;
• Operating a commercial vehicle and refusing to submit to a

preliminary chemical breath analysis,68 MCL 257.625a(5), or a
substantially corresponding local ordinance;
• Operating a commercial vehicle with a prohibited alcohol

content, MCL 257.625m, or a substantially corresponding local
ordinance;
• Committing a moving violation causing death, MCL 257.601d;
• Reckless driving causing serious impairment of a body

function, MCL 257.626(3);
• Reckless driving causing death, MCL 257.626(4);
• Manslaughter resulting from the operation of a motor vehicle,

MCL 257.625c(1)(b); or
• Murder resulting from the operation of a motor vehicle, MCL

257.625c(1)(b).
MCL 257.625a(6)(b)(iv) provides that a person arrested for any of the

offenses specified in MCL 257.625c(1) must be advised, among other
things, that “[i]f he or she refuses the request of a peace officer to take a
[chemical test of his or her blood, urine, or breath], a test shall not be
given without a court order, but the peace officer may seek to obtain a
court order.” “[A] blood test conducted under the direction of police falls
within the ambit of the Fourth Amendment.” People v Perlos, 436 Mich
68 See MCL 257.43a.

305, 313 (1990). “When a blood sample is taken pursuant to a search

warrant, the issue of consent is removed, and the implied consent statute
is not applicable.” Manko v Root, 190 Mich App 702, 704 (1991).
Validity of Search Warrant. A search warrant to perform chemical

testing should not be invalidated unless “material misstatements or
omissions necessary to the finding of probable cause have been made.” People
v Czuprynski, 325 Mich App 449, 471 (2018) (citation omitted). A search
warrant remains valid even if it contains some incorrect information, or
fails to include exculpatory information, if the incorrect or omitted
information does not negate a finding of probable cause. Id. at 470.
“Reliance on a warrant is reasonable even if the warrant is later

invalidated for lack of probable cause, except under three circumstances:
(1) if the issuing magistrate or judge is misled by information in the
affidavit that the affiant either knew was false or would have known was
false except for his or her reckless disregard of the truth; (2) if the issuing
judge or magistrate wholly abandons his or her judicial role; or (3) if an
officer relies on a warrant based on a ‘bare bones’ affidavit so lacking in
indicia of probable cause as to render official belief in its existence
entirely unreasonable.” Czuprynski, 325 Mich App at 472, citing United
States v Leon, 468 US 897, 923 (1984); People v Goldston, 470 Mich 523, 531
(2004).
Constitutionality of Warrantless Breath and Blood Testing. “[T]he

Fourth Amendment permits warrantless breath tests incident to arrests
for drunk driving[,]” and a state may criminally prosecute a driver for
refusing a warrantless breath test;69 “[t]he impact of breath tests on
privacy is slight, and the need for [blood alcohol concentration (BAC)]
testing is great.” Birchfield v North Dakota, 579 US ___, ___ (2016).
However, “[b]ecause breath tests are significantly less intrusive than
blood tests and in most cases amply serve law enforcement interests, . . . a
blood test[] may [not] be administered as a search incident to a lawful
arrest for drunk driving[,]” and “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal
offense.” Id. at ___ (concluding that one of the three petitioners in the case
“was threatened with an unlawful search” under a state law making it a
crime to refuse a warrantless blood draw, and that “the search he refused
[could not] be justified as a search incident to his arrest or on the basis of
implied consent[]”) (emphasis added).
“[T]he natural metabolization of alcohol in the bloodstream [does not]

present[] a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual blood testing in
69 Note that Michigan does not currently criminalize an individual’s refusal to submit to a preliminary
chemical breath analysis (PBT); refusal to submit is a civil infraction. See MCL 257.625a(2)(d).

all drunk-driving cases.” Missouri v McNeely, 569 US 141, 145 (2013).

“[C]onsistent with general Fourth Amendment principles . . . exigency in
this context must be determined case by case based on the totality of the
circumstances.” Id. See also Birchfield, 579 US at ___ (citing McNeely, 569
US at 145, and noting that “[n]othing prevents the police from seeking a
warrant for a blood test when there is sufficient time to do so in the
particular circumstances or from relying on the exigent circumstances
exception to the warrant requirement when there is not[]”). See MCL
257.625d(1).
“[B]lood [that] has been lawfully collected for analysis may be analyzed
without infringing additional privacy interests or raising separate Fourth
Amendment concerns.” People v Woodard, 321 Mich App 377, 390-391
(2017). “[O]nce police procured a sample of [the] defendant’s blood
pursuant to her consent, she had no reasonable expectation of privacy in
the blood alcohol content of that sample and it could be examined for
that purpose without her consent[;]” “the subsequent analysis of the
blood did not constitute a separate search, and [the] defendant simply
had no Fourth Amendment basis on which to object to the analysis of the
blood for the purpose for which it was drawn.” Id. at 396. “[W]ithdrawal
of consent after the search has been completed does not entitle a
defendant to the return of evidence seized during the course of a consent
search because those items are lawfully in the possession of the police;
and, by the same token, a defendant who consents to the search in which
evidence is seized cannot, by revoking consent, prevent the police from
examining the lawfully obtained evidence.” Id. at 394-395.
3.28 Issuance of Search Warrants for Electronic

Communications
The Electronic Communications Privacy Act, 18 USC § 2510 et seq.,
consists of three parts. 18 USC 2510–18 USC 2522 is entitled “Wire and
Electronic Communications Interception and Interception of Oral
Communications,” and prohibits the unauthorized interception of wire,
oral, or electronic communications. 18 USC 2701– 18 USC 2712 is entitled
“Stored Wire and Electronic Communications and Transactional Records
Access,” and is known as the “Stored Communications Act (SCA),” and
concerns stored electronic communications. Finally, 18 USC 3121–18 USC
3127 is entitled “Pen Registers and Trap and Trace Devices,” and sets out
the procedure for government installation and use of pen registers and
trap and trace devices.
“[T]he very fact that information is being passed through a

communications network is a paramount Fourth Amendment
consideration.” United States v Warshak, 631 F3d 266, 285 (CA 6, 2010).70
“[T]he Fourth Amendment must keep pace with the inexorable march of
technological progress, or its guarantees will wither and perish.” Id. To

that end, “email requires strong protection under the Fourth

Amendment.” Id. at 286. “[A]gents of the government cannot compel a
commercial ISP [(Internet Service Provider)] to turn over the contents of
an email without triggering the Fourth Amendment.” Id. “[I]f
government agents compel an ISP to surrender the contents of a
subscriber’s emails, those agents have thereby conducted a Fourth
Amendment search, which necessitates compliance with the warrant
requirement absent some exception.” Id. In Warshak, the United States
Court of Appeals for the Sixth Circuit stated that “[t]he government may
not compel a commercial ISP to turn over the contents of a subscriber’s
emails without first obtaining a warrant based on probable cause.” Id. at
288 (holding that the government violated the Fourth Amendment when
it obtained the contents of the defendant’s e-mails without a warrant).
Further, the Court held that “to the extent that the SCA purports to
permit the government to obtain such emails warrantlessly, the SCA is
unconstitutional.” Id.
Committee Tip:
Requests for electronic communications are
becoming increasingly prevalent. To stay in line
with impending changes in the law, the best
practice is to have law enforcement seek a
search warrant, instead of signing a subpoena.
3.29 Executing the Search Warrant
A. Knock-and-Announce
Michigan’s “knock-and-announce” statute is set out in MCL 780.656:
“The officer to whom a warrant is directed, or any

person assisting him [or her], may break any outer or
inner door or window of a house or building, or
anything therein, in order to execute the warrant, if,
after notice of his [or her] authority and purpose, he [or
she] is refused admittance, or when necessary to liberate
himself [or herself] or any person assisting him [or her]
in execution of the warrant.”
70
Though persuasive, Michigan state courts “are not . . . bound by the decisions of the lower federal
courts[.]” People v Gillam (Willie), 479 Mich 253, 261 (2007).

“The knock-and-announce statute requires that police executing a

search warrant give notice of their authority and purpose and be
refused entry before forcing their way in.” People v Fetterley, 229
Mich App 511, 521 (1998). Although it is known as the “knock-and-
announce” rule, “[n]either case law nor statute requires that the
police physically knock on the door; rather, they need only give
proper notice to the occupants of their authority and purpose.” Id. at
524. “Police must allow a reasonable time for the occupants to
answer the door following the announcement.” Id. at 521.
The exclusionary rule does not apply to violations of the knock-and-

announce statute because violation of MCL 780.656 is unrelated to
the seizure of a person’s property pursuant to a valid search
warrant. Hudson v Michigan, 547 US 586, 594, 599-600 (2006).
B. Required Actions Upon Seizure of Property

MCL 780.655(1) sets out the procedures to be followed after
property is seized during the execution of a search warrant:
“When an officer in the execution of a search warrant

finds any property or seizes any of the other things for
which a search warrant is allowed by this act, the officer,
in the presence of the person from whose possession or
premises the property or thing was taken, if present, or
in the presence of at least 1 other person, shall make a
complete and accurate tabulation of the property and
things that were seized. The officer taking property or
other things under the warrant shall give to the person
from whom or from whose premises the property was
taken a copy of the warrant and shall give to the person
a copy of the tabulation upon completion, or shall leave
a copy of the warrant and tabulation at the place from
which the property or thing was taken. The officer is not
required to give a copy of the affidavit to that person or
to leave a copy of the affidavit at the place from which
the property or thing was taken.”
“[A] copy of the affidavit becomes part of the ‘copy of the warrant’
that must be provided or left pursuant to MCL 780.655[.]” People v
Garvin (Demar), 235 Mich App 90, 99 (1999). “However, a failure by
law enforcement officers to comply with the statutory requirement
to attach a copy of the affidavit to the copy of the warrant provided
or left does not require suppression of evidence seized pursuant to
the warrant.” Id. See also MCL 780.654(3), which permits a
magistrate to order the suppression of an affidavit in circumstances
necessitating the protection of an investigation or the privacy or
safety of a victim or witness:

“Upon a showing that it is necessary to protect an

ongoing investigation or the privacy or safety of a
victim or witness, the magistrate may order that the
affidavit be suppressed and not be given to the person
whose property was seized or whose premises were
searched until that person is charged with a crime or
named as a claimant in a civil forfeiture proceeding
involving evidence seized as a result of the search.”
Additionally, the officer must promptly file the tabulation with the
judge or district court magistrate. MCL 780.655(2) provides:
“The officer shall file the tabulation promptly with the

judge or district court magistrate. The tabulation may be
suppressed by order of the judge or district court
magistrate until the final disposition of the case unless
otherwise ordered. The property and things that were
seized shall be safely kept by the officer so long as
necessary for the purpose of being produced or used as
evidence in any trial.”
After the execution of the warrant, seized property must be

returned and disposed of in accordance with MCL 780.655(3):
“As soon as practicable, stolen or embezzled property

shall be restored to the owner of the property. Other
things seized under the warrant shall be disposed of
under direction of the judge or district court magistrate,
except that money and other useful property shall be
turned over to the state, county or municipality, the
officers of which seized the property under the warrant.
Money turned over to the state, county, or municipality
shall be credited to the general fund of the state, county,
or municipality.”
A failure to strictly comply with the requirements of MCL 780.655

does not by itself require suppression of seized evidence. In People v
Sobczak-Obetts, 463 Mich 687, 712-713 (2001), the Supreme Court
held that the trial court and Court of Appeals erred by applying the
exclusionary rule to conduct that amounted to a technical violation
of MCL 780.655, i.e., an officer’s failure to provide a copy of the
affidavit in support of the warrant to the defendant at the time of
the search, because there was no discernible legislative intent that a
violation of MCL 780.655 requires suppression, and because there
was no police misconduct to necessitate application of the
exclusionary rule, which is predicated on deterring such conduct.

3.30 Public Access to Search Warrant Affidavits

MCL 780.651(8) provides that, “[e]xcept as provided in [MCL 780.651(9)],
an affidavit for a search warrant contained in any court file or court
record retention system is nonpublic information.” MCL 780.651(9)
provides:
“On the fifty-sixth day following the issuance of a search

warrant, the search warrant affidavit contained in any court
file or court record retention system is public information
unless, before the fifty-sixth day after the search warrant is
issued, a peace officer or prosecuting attorney obtains a
suppression order from a judge or district court magistrate
upon a showing under oath that suppression of the affidavit
is necessary to protect an ongoing investigation or the
privacy or safety of a victim or witness. The suppression
order may be obtained ex parte in the same manner that the
search warrant was issued. An initial suppression order
issued under [MCL 780.651(9)] expires on the fifty-sixth day
after the order is issued. A second or subsequent suppression
order may be obtained in the same manner as the initial
suppression order and shall expire on a date specified in the
order. [MCL 780.651(9)] and [MCL 780.651(8)] do not affect a
person’s right to obtain a copy of a search warrant affidavit
from the prosecuting attorney or law enforcement agency
under the [Freedom of Information Act, MCL 15.231–MCL
15.246].”
Part D: Grand Jury
3.31 Grand Jury

Criminal prosecutions may be initiated when the prosecuting attorney
files a complaint and an information, or by grand jury indictment. MCL
767.1 et seq.; People v Glass (Willie), 464 Mich 266, 276 (2001). There is no
state constitutional right to indictment by a grand jury. Glass (Willie), 464
Mich at 278. An information shall not be filed until the defendant has had
or has waived a preliminary examination. MCL 767.42(1). However,
indictees do not have the right to a preliminary examination. Glass
(Willie), 464 Mich at 283, overruling People v Duncan (Pat), 388 Mich 489
(1972) (which had granted indictees the right to a preliminary
examination). The grand jury indictment is a procedural alternative to
the preliminary examination. Glass (Willie), 464 Mich at 278. See also
People v Baugh, 249 Mich App 125, 129-130 (2002) (where the defendant

was indicted by grand jury, the information issued after the defendant’s
preliminary examination was null and void following the Court’s
decision in Glass).
Grand juries are creatures of statute. Generally, the statutes provide for a
one person grand jury, MCL 767.3 and MCL 767.4, a citizen grand jury
comprised of 13 to 17 grand jurors, MCL 767.11, and a multi-county
grand jury, MCL 767.7c, MCL 767.7d, MCL 767.7e, MCL 767.7f, and MCL
767.7g.
A. One-Person Grand Jury

“A ‘one person’ grand jury may . . . be convened to investigate
whether probable cause exists to suspect a crime has been
committed.” People v Farquharson, 274 Mich App 268, 274 (2007).
“The ‘one person’ grand jury is a creation of statute and draws its
extraordinary powers from [MCL 767.3 and MCL 767.4].”
Farquharson, 274 Mich App at 274. Whether the judge orders an
inquiry “into the matters relating to [the alleged crime]” is
discretionary. MCL 767.3.
The one person grand jury statute does not violate a defendant’s
right to due process. In re Colacasides, 379 Mich 69, 75 (1967).
Additionally, “because the one-person grand jury procedure is used
to determine whether criminal proceedings should be instituted
against an individual by way of an indictment, there is not yet a
formal charge, preliminary hearing, indictment, information, or
arraignment that indicates adversarial judicial proceedings have
begun;” accordingly, the one-person grand jury process violates
neither a defendant’s right to counsel nor his or her right of
confrontation. People v Green (Robert), 322 Mich App 676, 685 (2018)
(holding that “[the] defendant’s right to counsel was not impinged
by the one-person grand jury procedure because [his] right to
counsel had not yet attached at the time of the challenged
procedure,” and noting that the defendant “did not have a statutory
right [under MCL 767.19e] to the presence of counsel at the grand
jury because [he] was not called before the one-person grand jury”;
additionally, “because there was no indictment against [the]
defendant at the time of the one-person grand jury, [his] right to
confront witnesses was not implicated because he was not yet a
‘criminal defendant’ who had been formally charged”).
B. Citizen Grand Jury

Citizen grand juries are drawn and summoned as directed by the
court. MCL 767.7. A grand juror’s term of service is six months.
MCL 767.7a. Not more than 17 persons and not less than 13 shall be
sworn on any grand jury. MCL 767.11. A foreperson is appointed by
the court. MCL 767.11; MCL 767.12. Witnesses appearing before the
grand jury have the right to counsel. MCL 767.19e and MCR
6.005(I). An indictment requires the concurrence of at least nine of
the grand jurors. MCL 767.23. The foreperson shall present the
indictment to the court in the presence of the grand jury. MCL
767.25(1). The judge presiding over the grand jury proceedings shall
then return the indictment to the court having jurisdiction. MCL
767.25(3). An arrest warrant may be issued by the court. MCL
767.30. The statute contemplates that a defendant will be arraigned
in the court having jurisdiction over the matter because the statute
indicates that the court may properly receive the indictee’s plea of
guilty if offered. MCL 767.37.
A grand jury is not required to “reflect the precise racial

composition of a community.” Glass (Willie), 464 Mich at 284. The
Glass (Willie) Court indicated that the three-step analysis set out in
Castaneda v Partida, 430 US 482, 494 (1977), should be used to resolve
a defendant’s claim of racial discrimination in the selection of a
grand jury. Glass (Willie), 464 Mich at 285. “[I]n addition to showing
discriminatory purpose, [the] defendant must show that the grand
jury selection procedure resulted in a ‘substantial
underrepresentation of his [or her] race.’” Id., quoting Castaneda, 430
US at 494. In Glass (Willie), 464 Mich at 285, the Court applied the
three steps set out in Castaneda, 430 US at 494:
(1) The defendant must show that he or she belongs to a

recognizable and distinct class singled out for different
treatment by the law as written or as applied.
(2) The defendant must show that significant

underrepresentation of that distinct class existed over a
significant period of time.
(3) The defendant must show that the selection

procedure was susceptible to abuse or was not racially
neutral.
C. Multicounty Grand Jury

The Court of Appeals may convene a multicounty grand jury if the
petition establishes: (1) probable cause to believe that a crime, or a
portion of a crime, has been committed in two or more of the
counties named in the petition, and (2) reason to believe that a
grand jury with jurisdiction over two or more of the counties named
in the petition could more effectively address the criminal activity
referenced in the petition than could a grand jury with jurisdiction
over one of those counties. MCL 767.7d. The term of a multicounty
grand jury must not exceed six months. MCL 767.7f.

Committee Tip:
In considering a challenge to the creation or
scope of a multicounty grand jury, consider
reviewing a copy of the petition, order of the
Court of Appeals, presiding judge’s order, and
any order continuing the term of the grand jury.
In addition, seek information regarding the
number and source of the grand jurors along
with the number concurring in any indictment
being challenged.
D. Oath for the Grand Jury

The following oath should be used when a grand jury is sworn:
“‘You as grand jurors of this inquest do solemnly swear

that you will diligently inquire and true presentment
make of all such matters and things as shall be given
you in charge; your own counsel and the counsel of the
people, and of your fellows, you shall keep secret; you
shall present no person for envy, hatred or malice,
neither shall you leave any person unpresented for love,
fear, favor, affection or hope of reward; but you shall
present things truly, as they come to your knowledge,
according to the best of your understanding; so help
you God.’” MCL 767.9.
E. Right to Counsel
“A witness called before a grand jury or a grand juror is entitled to
have a lawyer present in the hearing room while the witness gives
testimony. A witness may not refuse to appear for reasons of
unavailability of the lawyer for that witness. Except as otherwise
provided by law, the lawyer may not participate in the proceedings
other than to advise the witness.” MCR 6.005(I)(1). See also MCL
767.19e, containing substantially similar language.71 If the witness is
financially unable to retain a lawyer, upon request, one will be
appointed for the witness at public expense. MCR 6.005(I)(2).
71
However, there is no constitutional right to counsel for an individual who is the subject of a one-person
grand jury; nor does MCL 767.19e confer a statutory right to the presence of counsel at a one-person grand
jury if the individual is not called before the grand jury. Green (Robert), 322 Mich App at 685-686.

F. Rules of Evidence
With the exception of those rules regarding privilege, the rules of
evidence do not apply to grand jury proceedings. MRE 1101(b)(2).
Testimony given before the grand jury may be admissible at trial,

subject to the rules of evidence. People v Chavies, 234 Mich App 274,
281-284 (1999), overruled on other grounds by People v Williams
(Cleveland), 475 Mich 245 (2006).72
G. Discovery
A defendant is entitled to a transcript of his or her grand jury
testimony and other parts of the grand jury record—including other
witnesses’ testimony—that touch on the issue of the defendant’s
guilt or innocence. People v Bellanca, 386 Mich 708, 715 (1972). This
entitlement applies whether the defendant is charged by
information or indictment. People v Fagan (On Remand), 213 Mich
App 67, 68-70 (1995) (definition of indictment includes information,
see, e.g., MCL 750.10, MCL 761.1(g); MCL 767.2.
H. Investigative Subpoenas
In general, MCL 767A.2 permits a prosecuting attorney to petition
the court to issue one or more investigative subpoenas to investigate
the commission of a felony. MCL 767A.3 authorizes the judge to
issue the investigative subpoena. “A court may ‘authorize the
prosecutor to issue an investigative subpoena if the judge
determines that there is reasonable cause to believe a felony has
been committed and that there is reasonable cause to believe that
the person who is the subject of the investigative subpoena may
have knowledge concerning the commission of a felony or the items
sought are relevant to investigate the commission of a felony.’”
Farquharson, 274 Mich App at 273, quoting In re Subpoenas to News
Media Petitioners, 240 Mich App 369, 375 (2000), citing MCL
767A.3(1).
“Investigative subpoenas must include a statement that a person

may have legal counsel present at all times during questioning,
MCL 767A.4(g), and a witness must be advised of his or her
constitutional rights against compulsory self-incrimination, MCL
767A.5(5); People v Stevens (James), 461 Mich 655, 659 n 1[] (2000). A

person served with an investigative subpoena must appear before

the prosecuting attorney and answer questions concerning the
felony being investigated. MCL 767A.5(1). The prosecuting attorney
is authorized to administer oaths, MCL 767A.5(2), and if a witness
testifies falsely under oath during an investigative proceeding
under oath, perjury penalties apply, MCL 767A.9.” Farquharson, 274
Mich App at 273.
“If a criminal charge is filed by the prosecuting attorney based upon

information obtained pursuant to this chapter, upon the defendant’s
motion made not later than 21 days after the defendant is arraigned
on the charge, the trial judge shall direct the prosecuting attorney to
furnish to the defendant the testimony the defendant gave
regarding the crime with which he or she is charged and may direct
the prosecuting attorney to furnish to the defendant the testimony
any witness who will testify at the trial gave the prosecuting
attorney pursuant to this chapter regarding that crime except those
portions that are irrelevant or immaterial, or that are excluded for
other good cause shown.” MCL 767A.5(6).
“If the defendant requests the testimony of a witness pursuant to

[MCL 767A.5] and the trial judge directs the prosecuting attorney to
furnish to the defendant a copy of that witness’s testimony, the
prosecuting attorney shall furnish a copy of the testimony not later
than 14 days before trial. If the prosecuting attorney fails or refuses
to furnish a copy of the testimony to the defendant pursuant to this
subsection, the prosecuting attorney may be barred from calling
that witness to testify at the defendant’s trial.” MCL 767A.5(6).
“If a person files an objection to, or fails or refuses to answer any

question or to produce any record, document, or physical evidence
set forth in an investigative subpoena, the prosecuting attorney may
file a motion with the judge who authorized the prosecuting
attorney to issue the subpoena for an order compelling the person to
comply with that subpoena.” MCL 767A.6(1). In People v Seals, 285
Mich App 1, 8-9 (2009), the defendant argued that the testimony he
gave pursuant to an investigative subpoena was involuntary;
however, the Court held that “[t]he fact that [the] defendant did not
take advantage of his opportunity [under MCL 767A.6(1)] to have
the trial court determine whether he was required to respond to the
investigative subpoena d[id] not make his testimony forced.”
Therefore, admission of his testimony at trial did not violate his
right against compulsory self-incrimination. Seals, 285 Mich App at
9-10.
Disclosure in a civil action of transcripts of testimony obtained

pursuant to the investigative subpoena process, during an
investigation of alleged criminal conduct, is not authorized by the

statutes governing the disclosure of such information, MCL 767A.1

et seq. Truel v City of Dearborn, 291 Mich App 125, 131-135 (2010).
According to the Truel Court, MCL 767A.8 “makes several
delineated items related to an investigation confidential, including
(1) petitions for immunity, (2) orders granting immunity, (3)
‘transcripts of testimony delivered to witnesses pursuant to grants
of immunity,’ and (4) ‘records, documents, and physical evidence
obtained by the prosecuting attorney pursuant to an investigation
under [the investigative subpoena statutes].’” Truel, 291 Mich App
at 133. However, “[items delineated] in [MCL 767A.8] were meant to
address those matters not already covered elsewhere in the
[investigative subpoena statutes].” Truel, 291 Mich App at 134.
Because MCL 767A.5(6) specifically “provides for the limited
disclosure of testimony to a defendant who has been charged based
upon information obtained pursuant to the investigative subpoena
statutes[,]” its disclosure under other circumstances is not expressly
or impliedly authorized under other provisions of the investigative
subpoena statutes. Truel, 291 Mich App at 134-135. The plain
language of MCL 767A.5(6) states that “transcripts of witness
testimony are only available to a criminal defendant when the
charges result from information obtained through investigative
subpoenas and (a) the testimony is that of the defendant or (b) the
testimony is that of witnesses who will testify at trial[.]” Truel, 291
Mich App at 135. In Truel, 291 Mich App at 131-135, the trial court
improperly ruled that transcripts of witness testimony obtained
under the investigative subpoena statutes, during an investigation
into alleged criminal activity, should be disclosed to the defendants
named in the plaintiff’s civil action.
The Michigan Supreme Court has held that the exclusionary rule
does not apply to statutory violations of MCL 767A.1 et seq. People v
Earls, 477 Mich 1119 (2007).

Chapter 4: Right to Counsel, Waiver of
Counsel, and Forfeiture of Counsel
4.1 Introduction ......................................................................................... 4-2

Part A: Right to Counsel
4.2 Constitutional Rights to Counsel .......................................................... 4-2
4.3 Multiple Representation of Defendants .............................................. 4-4
4.4 Right to Appointed Counsel Under the Michigan Indigent Defense
Commission Act.................................................................................... 4-5
4.5 Scope of Counsel’s Responsibilities ................................................... 4-15
4.6 Substitution or Withdrawal of Counsel.............................................. 4-16
4.7 Removal of Counsel............................................................................ 4-18
4.8 Withdrawal of Assigned Appellate Counsel ....................................... 4-19
Part B: Waiver of Counsel
4.9 Valid Waiver of Right to Counsel........................................................ 4-19
4.10 Advice at Subsequent Proceedings .................................................... 4-25
4.11 Standby Counsel................................................................................. 4-26
Part C: Forfeiture of Counsel
4.12 Doctrine of Forfeiture of Counsel ...................................................... 4-26
4.13 Forfeiture of Right to Counsel and Presumption of Prejudice ........... 4-28

4.1 Introduction
This chapter discusses the general concepts of a defendant’s right to
counsel, waiver of counsel, and forfeiture of counsel, and is intended to
be an overview of these rights. For information on these rights as they
pertain to specific criminal proceedings, see the appropriate chapter in
this book that discusses that particular type of proceeding.
See the Michigan Judicial Institute’s checklist for attorney waiver or

appointment of counsel.
Part A: Right to Counsel
4.2 Constitutional Rights to Counsel

A criminal defendant has a constitutional right to counsel. Coleman v
Alabama, 399 US 1, 7 (1970). In Michigan, a criminal defendant’s right to
counsel has two sources: (1) the Sixth Amendment to the United States
Constitution, US Const, Am VI, applicable to the states through the
Fourteenth Amendment, US Const, Am XIV, and its Michigan corollary
in Const 1963, art 1, § 20, and (2) a prophylactic right found in the
Supreme Court’s jurisprudence relating to the Fifth Amendment right
against compelled self-incrimination and to due process, US Const, Am
V, and its Michigan corollary in Const 1963, art 1, § 17. People v Williams
(Kevin), 244 Mich App 533, 538 (2001). “The Fifth Amendment right to
counsel is distinct and not necessarily coextensive with the right to
counsel afforded criminal defendants under the Sixth Amendment,”
because “the Fifth Amendment right to counsel during a custodial
interrogation serves an entirely different purpose than the Sixth
Amendment right to counsel at trial.” Id. at 538-539. This section focuses
on a defendant’s Sixth Amendment right to counsel. For more
information on suppressing a defendant’s statement for violation of his
or her Fifth Amendment right to counsel, see the Michigan Judicial
Institute’s Evidence Benchbook.
“The Sixth Amendment right, which is offense-specific and cannot be

invoked once for all future prosecutions, attaches only at or after
adversarial judicial proceedings have been initiated[,]” People v
Smielewski (Timothy), 214 Mich App 55, 60 (1995), 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, Texas, 554 US 191,
198 (2008). See also Montejo v Louisiana, 556 US 778, 797 (2009) (critical

stage includes interrogation after a defendant has asserted his or her

right to counsel at an arraignment or similar proceeding); People v Perkins
(Floyd), 314 Mich App 140, 151-152 (2016) (holding that where an
investigating officer “knew that [the defendant] was in jail on an
unrelated offense and was represented by counsel and nevertheless
questioned [him] without his attorney[,]” the defendant’s confession was
properly admitted into evidence; “[b]ecause the Sixth Amendment right
to counsel is offense specific and because adversarial judicial proceedings
had not been initiated for the offenses [to which the defendant
confessed], [his] right to counsel under the Sixth Amendment had not yet
attached”); People v Collins (Jesse), 298 Mich App 458, 470 (2012) (bond
revocation hearing that has no effect on determination of defendant’s
guilt or innocence is not a critical stage in the proceeding; therefore,
counsel’s presence is not constitutionally required); People v Green
(Robert), 322 Mich App 676, 685 (2018) (“because the one-person grand
jury procedure [under MCL 767.3 and MCL 767.4] is used to determine
whether criminal proceedings should be instituted against an individual
by way of an indictment, there is not yet a formal charge, preliminary
hearing, indictment, information, or arraignment that indicates
adversarial judicial proceedings have begun;” accordingly, the one-
person grand jury process does not violate a defendant’s right to
counsel). 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, 554 US at 194-195.
A. Actual Imprisonment
No person may receive an actual or suspended sentence for any
offense—petty, misdemeanor, or felony—unless he or she was
represented by counsel at trial or knowingly and intelligently waived
representation. Alabama v Shelton, 535 US 654, 657-659, 662 (2002) (an
indigent defendant who is not represented by counsel and who has
not waived the right to appointed counsel may not be given a
probated or suspended sentence of imprisonment). An indigent
defendant’s right to counsel applies to the states through the
Fourteenth Amendment. Gideon v Wainwright, 372 US 335, 340, 344-
345 (1963).
No real distinction exists between “actual imprisonment” and

probated or “threatened” imprisonment for purposes of an indigent
defendant’s right to counsel). Shelton, 535 US at 659.
B. Counsel of Choice
A criminal defendant has a constitutional right to retain an attorney
of his or her choice. People v Arquette, 202 Mich App 227, 231 (1993).
However, the constitutional right to counsel of choice is not absolute;
it only applies to criminal defendants who retain counsel, not to
indigent defendants for whom counsel is appointed. United States v

Gonzalez-Lopez, 548 US 140, 144, 151 (2006).
Where a defendant is wrongly denied his or her Sixth Amendment

right to counsel of choice, the constitutional violation is complete and
the defendant’s conviction must be reversed; the defendant need not
show that he or she was denied a fair trial or that his or her actual
counsel was ineffective. Gonzalez-Lopez, 548 US at 148; People v Aceval,
282 Mich App 379, 386 (2009). “However, this right to choice of
counsel is limited and may not extend to a defendant under certain
circumstances.” Aceval, 282 Mich App at 386. For example, a
defendant may not insist on retaining counsel who is not a member of
the bar, or counsel for whom representation of the defendant would
constitute a conflict of interest. Gonzalez-Lopez, 548 US at 152. Nor may
a defendant insist on retaining a specific attorney as a tactic to delay
or postpone trial. People v Akins, 259 Mich App 545, 557-558 (2003).
“‘[A] balancing of the accused’s right to counsel of his [or her] choice
and the public’s interest in the prompt and efficient administration of
justice is done in order to determine whether an accused’s right to
choose counsel has been violated.’” Aceval, 282 Mich App at 387,
quoting People v Krysztopaniec, 170 Mich App 588, 598 (1988).
Violation of a defendant’s Sixth Amendment right to counsel of choice
is a structural error and is not subject to harmless error analysis.
Gonzalez-Lopez, 548 US at 150. However, “deprivation of counsel at a
preliminary examination is subject to harmless-error review.” People v
Lewis (Gary), 501 Mich 1, 9 (2017).
Whether to permit the substitution of appointed counsel with

retained counsel is reviewed for an abuse of discretion. Akins, 259
Mich App at 556; Arquette, 202 Mich App at 231. “[A] defendant must
be afforded a reasonable time to select his [or her] own retained
counsel.” Id. at 231.
4.3 Multiple Representation of Defendants

MCR 6.005(F) distinguishes between appointed and retained counsel.
Joint representation is allowed when counsel is retained, after inquiry by
the court. Joint representation is not allowed when counsel is appointed.
“[T]he court must inquire into the potential for a conflict of interest that
might jeopardize the right of each defendant to the undivided loyalty of
the lawyer. The court may not permit the joint representation unless: (1)
the lawyer or lawyers state on the record the reasons for believing that
joint representation in all probability will not cause a conflict of interests;

(2) the defendants state on the record after the court’s inquiry and the
lawyer’s statement, that they desire to proceed with the same lawyer; and
(3) the court finds on the record that joint representation in all probability
will not cause a conflict of interest and states its reasons for the finding.”
MCR 6.005(F). The distinction between court-appointed counsel and
retained counsel in MCR 6.005(F) was upheld in People v Portillo, 241
Mich App 540, 542-543 (2000).
See also MRPC 1.7(b), which provides that “[a] lawyer shall not represent
a client if the representation of that client may be materially limited by
the lawyer’s responsibilities to another client or to a third person, or by
the lawyer’s own interests, unless: (1) the lawyer reasonably believes the
representation will not be adversely affected; and (2) the client consents
after consultation. When representation of multiple clients in a single
matter is undertaken, the consultation shall include explanation of the
implications of the common representation and the advantages and risks
involved.”
MCR 6.005(G) requires the attorney to inform the court if an

unanticipated conflict of interest arises at any time in a case of joint
representation. “If the court agrees that a conflict has arisen, it must
afford one or more of the defendants the opportunity to retain separate
lawyers.” Id. In addition, “[t]he court should on its own initiative inquire
into any potential conflict that becomes apparent, and take such action as
the interests of justice require.” Id.
4.4 Right to Appointed Counsel Under the Michigan

Indigent Defense Commission Act
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981
et seq., creating the Michigan Indigent Defense Commission (MIDC)
within the Department of Licensing and Regulatory Affairs (LARA),1
establishes a system for the appointment of defense counsel for indigent
defendants.2
Under the MIDCA, the MIDC is required to “develop[] and oversee[] the
implementation, enforcement, and modification of minimum standards,
rules, and procedures to ensure that indigent criminal defense services
providing effective assistance of counsel are consistently delivered to all
indigent adults[3] in this state consistent with the safeguards of the
United States constitution, the state constitution of 1963, and [the
MIDCA].” MCL 780.989(1)(a). Although the MIDC is within the
1 See MCL 780.985(1); MCL 780.983(c).
2More information on the Michigan Indigent Defense Commission is available at http://
www.michigan.gov/snyder/0,4668,7-277-57738_57679_57726-307570--,00.html.

executive branch (and not the judicial branch), the MIDCA does not
violate Const 1963, art 3 § 2, Const 1963 art 6 § 4, or Const 1963 art 6 § 5
because “any sharing or overlapping of functions required by the
[MIDCA] is sufficiently specific and limited that it does not encroach on
the constitutional authority of the judiciary.” Oakland Co v State of
Michigan, ___ Mich App ___, ___ (2018). The MIDCA “does not directly
regulate trial courts or attorneys.” Id. at ___. Instead, it “regulates
‘indigent criminal defense system[s],’ statutorily defined as funding
units, rather than trial courts themselves.” Id. at ___. In addition, it
“repeatedly recognizes the Michigan Supreme Court’s constitutional
authority to regulate practice and procedure and to exercise general
superintending control of Michigan courts.” Id. at ___. Further, “the
[MIDCA] contains no provision authorizing the MIDC to force the
judiciary to comply with the minimum standards, nor does the [MIDCA]
purport to control what happens in court.” Id. at ___. Accordingly, the
MIDCA is not facially unconstitutional. Id. at ___.
Similarly, a challenge to the MIDC’s minimum standard requirements4

that they “violate the separation of powers doctrine and are otherwise
not authorized by law . . . lack[ed] merit.” Oakland Co, ___ Mich App at
___. Also, rules and procedures established by the MIDC do not violate
the Administrative Procedures Act5 because they “are merely
explanatory and do not contain compulsory provisions.” Id. at ___.
“Approval of a minimum standard proposed by the MIDC is considered

a final department action subject to judicial review under [Const 1963, art
VI, § 28] to determine whether the approved minimum standard is
authorized by law. MCL 780.985(5). “Jurisdiction and venue for judicial
review are vested in the court of claims.” Id. “An indigent criminal
defense system may file a petition for review in the court of claims within
60 days after the date of mailing notice of [LARA’s] final decision on the
recommended minimum standard. The filing of a petition for review
does not stay enforcement of an approved minimum standard, but the
department may grant, or the court of claims may order, a stay upon
appropriate terms.” Id.
“No later than 180 days after a standard is approved by [LARA], each
indigent criminal defense system shall submit a plan to the MIDC for the
provision of indigent criminal defense services in a manner as
determined by the MIDC and shall submit an annual plan for the
following state fiscal year on or before October 1 of each year.” MCL
3
The MIDCA applies to “individual[s] 17 years of age or older” and to juveniles who are charged with
felony offenses in traditional waiver, designated, and automatic waiver proceedings. MCL 780.983(a)
(defining adult for purposes of the MIDCA). See the Michigan Judicial Institute’s Juvenile Justice
Benchbook, Ch 17, for discussion of the MIDCA as it applies to these juveniles.
4See http://michiganidc.gov/wp-content/uploads/2018/04/Standards-1-8-Spring-2018.pdf.
5MCL 24.201 et seq.

780.993(3). The plan “must include a cost analysis for meeting [the]
minimum standards.” Id. The MIDC must approve or disapprove all or
any portion of a system’s plan and/or cost analysis within 90 days. MCL
780.993(4).6
Within 180 days7 after receiving grant funding from the MIDC,8 “an
indigent criminal defense system shall comply with the terms of the
grant in bringing its system into compliance with the minimum
standards established by the MIDC for effective assistance of counsel.”
MCL 780.993(11); see also MCL 780.997.
The standards, rules, and procedures established by the MIDC must

address the MIDCA requirements discussed in the following subsections.
A. Advice of the Right to Counsel

The trial court must “assure that each criminal defendant is advised
of his or her right to counsel.” MCL 780.991(1)(c). See also MCR
6.005(A), which provides:
“At the arraignment on the warrant or complaint, the

court must advise the defendant
(1) of entitlement to a lawyer’s assistance at all

subsequent court proceedings, and
(2) that the court will appoint a lawyer at public

expense if the defendant wants one and is
financially unable to retain one.”9
“Court rules providing for advising a defendant concerning his right

to counsel at subsequent court proceedings . . . do not conflict with
the language of [MIDC] Standard 4[10] providing for representation at
the arraignment.” Oakland Co v State of Michigan, ___ Mich App ___,
___ (2018) (additionally holding that although the US Constitution
6
See MCL 780.993 for additional requirements for the submission and approval of plans for the provision
of indigent criminal defense services. See MCL 780.993(7)-(17) for requirements concerning the funding of
indigent criminal defense systems. See MCL 780.995 for requirements concerning the resolution of a
dispute between the MIDC and an indigent criminal defense system, including the requirement that the
parties engage in mediation.
7 The 180-day time period may be extended. See MCL 780.993(11).
8 “An indigent criminal defense system must not be required to provide funds in excess of its local share[ as
defined by MCL 780.983(i)].” MCL 780.993(8). “The MIDC shall provide grants to indigent criminal defense
systems to assist in bringing the systems into compliance with minimum standards established by the
MIDC.” Id. See MCL 780.993(7)-(17) for additional requirements concerning the funding of indigent
criminal defense systems.
9 MCR 6.005(A) has not yet been amended following the enactment of the MIDCA.

does not require the appointment of counsel at arraignment,

appointment at this juncture is not constitutionally prohibited, and
through the MIDCA, the Michigan Legislature has enacted a
protection greater than that secured by the United States
Constitution).
B. Screening for Eligibility for Appointed Counsel

“All adults,[11] except those appearing with retained counsel or those
who have made an informed waiver of counsel, must be screened for
eligibility under [the MIDCA], and counsel must be assigned as soon
as an indigent adult is determined to be eligible for indigent criminal
defense services.” MCL 780.991(1)(c). See also MIDC Standard 4.12
1. Preliminary Inquiry
“A preliminary inquiry regarding, and the determination of, the
indigency of any defendant, including a determination whether
a defendant is partially indigent, for purposes of [the MIDCA]
must be made as determined by the indigent criminal defense
system not later than at the defendant’s first appearance in
court.13 The determination may be reviewed by the indigent
criminal defense system at any other stage of the proceedings.”
MCL 780.991(3)(a). See also MIDC Standard 4 (“The indigency
determination shall be made and counsel appointed to provide
assistance to the defendant as soon as the defendant’s liberty is
subject to restriction by a magistrate or judge.”).14
See also MCR 6.005(A), requiring the court, at arraignment, to

“question the defendant to determine whether [he or she] wants
a lawyer and, if so, whether [he or she] is financially unable to
retain one.”15 “Court rules providing for advising a defendant
concerning his right to counsel at subsequent court proceedings
and providing for the prompt appointment of a lawyer . . . do
not conflict with the language of [MIDC] Standard 4[16]
11
The MIDCA applies to “individual[s] 17 years of age or older” and to juveniles who are charged with
felony offenses in traditional waiver, designated, and automatic waiver proceedings. MCL 780.983(a)
(defining adult for purposes of the MIDCA). See the Michigan Judicial Institute’s Juvenile Justice
Benchbook, Ch 17, for discussion of the MIDCA as it applies to these juveniles.
13Note also that the MIDC must “promulgate objective standards for indigent criminal defense systems to
determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial
review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e). See also Section
4.4(B)(3) for more information on determining partial indigency.
15 MCR 6.005(A) has not yet been amended following the enactment of the MIDCA.

providing for representation at the arraignment.” Oakland Co v

State of Michigan, ___ Mich App ___, ___ (2018) (additionally
holding that although the US Constitution does not require the
appointment of counsel at arraignment, appointment at this
juncture is not constitutionally prohibited, and through the
MIDCA, the Michigan Legislature has enacted a protection
greater than that secured by the United States Constitution).
2. Relevant Factors in Determining Eligibility for

Appointment of Counsel
“In determining whether a defendant is entitled to the
appointment of counsel, the indigent criminal defense system
shall consider whether the defendant is indigent and the extent
of his or her ability to pay.” MCL 780.991(3)(a). See also MIDC
Standard 4.17 A defendant may be either fully or partially
indigent.18 See MCL 780.991(3)(a); MCL 780.991(3)(d)-(e). See
Section 4.4(B)(3) for more information on finding a defendant
partially indigent.
Trial courts may play a role in determining whether a defendant

is entitled to the appointment of counsel. Id.19 Nothing in the
MIDCA prevents a court from making a determination of
indigency for any purpose consistent with Const 1963, art VI, § 4.
MCL 780.991(3)(a).
“A defendant is considered to be indigent if he or she is unable,

without substantial financial hardship to himself or herself or to
his or her dependents, to obtain competent, qualified legal
representation on his or her own.” MCL 780.991(3)(b). See also
MCL 780.983(e). Substantial financial hardship is rebuttably
presumed under certain circumstances. MCL 780.991(3)(b). See
Section 4.4(B)(3).
In determining eligibility for appointed counsel under the

MIDCA, MCL 780.991(3)(a) sets out factors the court may
consider, which “include, but are not limited to”:
18 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine
whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under
the direction and review of the supreme court[.]” See MCL 780.991(3)(e).
19
This statute recognizes “the authority of the judicial branch with respect to indigency determinations,”
and “it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its
constitutional authority in this area.” Oakland Co, ___ Mich App at ___. See Chapter 17 for more
information on the constitutionality of the MIDCA.

• income or funds from employment or any other

source (including personal public assistance) to
which the defendant is entitled
• property owned by the defendant or in which he or

she has an economic interest
• outstanding obligations
• the number and ages of the defendant’s dependents
• employment and job training history
• the defendant’s level of education.20
See also MCR 6.005(B), providing that a defendant’s “ability to

post bond for pretrial release does not make the defendant
ineligible for appointment of a lawyer.”
3. Determination of Partial Indigence21

“A determination that a defendant is partially indigent may only
be made if the indigent criminal defense system determines that
a defendant is not fully indigent.” MCL 780.991(3)(d). The more
rigorous screening process set forth in MCL 780.991(3)(c) must
be utilized if the indigent criminal defense system determines
that a defendant may be partially indigent. MCL 780.991(3)(d).
The screening process applies to defendants who do not fall
below the presumptive thresholds described in MCL
780.991(3)(b).22
“If an indigent criminal defense system determines that a

defendant is partially indigent, the indigent criminal defense
system shall determine the amount of money the defendant
must contribute to his or her defense. An indigent criminal
20 See also MCR 6.005(B)(1)-(5), setting out similar factors relevant to determining indigency. Because
“[a]ctual indigency determinations may still be made at the arraignment in conformance with the court
rule,” “[t]he language of MCR 6.005(B) . . . does not expressly conflict with the language of Standard 4,
requiring the assignment of counsel as soon as the defendant is deemed eligible for [indigent criminal
defense] services, that the indigency determination be made and counsel appointed as soon as the
defendant’s libery is subject to restriction, and that representation includes but is not limited to
arraignment.” Oakland Co v State of Michigan, ___ Mich App ___, ___ (2018). It is possible that an on-duty
arraignment attorney represent a defendant at arraignment but different counsel be appointed for future
proceedings. Id. at ___.
21 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine the
amount a partially indigent defendant must contribute to his or her defense. The standards must include
availability of prompt judicial review, under the direction and supervision of the Supreme Court[.]” MCL
780.991(f).
22See Section 4.4(B)(3) for more information regarding a rebuttable presumption of substantial financial
hardship and the screening process required in certain circumstances.

defense system’s determination regarding the amount of money

a partially indigent defendant must contribute to his or her
defense is subject to judicial review.” MCL 780.991(3)(a). See
Section 4.4(G) for more information on collecting contributions
and reimbursements from individuals determined to be partially
indigent.
4. Rebuttable Presumption of Substantial Financial

Hardship
MCL 780.991(3)(b) provides that substantial financial hardship is
rebuttably presumed if any of the following apply to the
defendant:
• receives personal public assistance (including under

the food assistance program, temporary assistance for
needy families, Medicaid, or disability insurance)
• resides in public housing
• earns an income less than 140% of the federal poverty

guideline23
• is currently serving a sentence in a correctional

institution
• is receiving residential treatment in a mental health or

substance abuse facility.
“A defendant not falling below the presumptive thresholds

described in [MCL 780.991(3)(b)] must be subjected to a more
rigorous screening process to determine if his or her particular
circumstances, including the seriousness of the charges being
faced, his or her monthly expenses, and local private counsel
rates would result in a substantial hardship if he or she were
required to retain private counsel.” MCL 780.991(3)(c).
5. Burden of Proof
“A defendant is responsible for applying for indigent defense
counsel[24] and for establishing his or her indigency and
eligibility for appointed counsel under [the MIDCA]. Any oral
or written statements made by the defendant in or for use in the
criminal proceeding and material to the issue of his or her
23 See http://aspe.hhs.gov/poverty-guidelines for the federal poverty guidelines.
24
Note, however, that MCL 780.991(1)(c) requires the screening of “[a]ll adults, except those appearing
with retained counsel or those who have made an informed waiver of counsel, . . . for eligibility under [the
MIDCA]” (emphasis supplied).

indigency must be made under oath or an equivalent

affirmation.” MCL 780.991(3)(g).
C. Appointment of Counsel
“[C]ounsel must be assigned as soon as an indigent adult is
determined to be eligible for indigent criminal defense services.”
MCL 780.991(1)(c). See also MCR 6.005(D) (requiring the court to
“promptly appoint a lawyer and promptly notify the lawyer of the
appointment” following a determination of indigency).25
“The indigency determination shall be made and counsel appointed

to provide assistance to the defendant as soon as the defendant’s
liberty is subject to restriction by a magistrate or judge.” MIDC
Standard 4.26 “Representation includes but is not limited to the
arraignment on the complaint and warrant.” Id.27 “All persons
determined to be eligible for indigent criminal defense services shall
also have appointed counsel at pre-trial proceedings, during plea
negotiations and at other critical stages, whether in court or out of
court.” Id. However, the defendant is not prohibited “from making an
informed waiver of counsel.” Id.
The MIDC’s minimum standards, rules, and procedures must

generally ensure that “[t]he same defense counsel continuously
represents and personally appears at every court appearance
throughout the pendency of the case.” MCL 780.991(2)(d).
25Although MCR 6.005(D) has not yet been amended following the enactment of the MIDCA, the Michigan
Court of Appeals held that “[c]ourt rules providing . . . for the prompt appointment of a lawyer . . . do not
conflict with the language of [MIDC] Standard 4 providing for representation at the arraignment.” Oakland
Co v State of Michigan, ___ Mich App ___, ___ (2018) (additionally holding that although the US
Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is
not constitutionally prohibited, and through the MIDCA, the Michigan Legislature has enacted a protection
greater than that secured by the United States Constitution).
26See
http://michiganidc.gov/wp-content/uploads/2018/04/Standards-1-8-Spring-2018.pdf. The
requirement that counsel be appointed for arraignment under MIDC Standard 4 does not conflict with the
US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co v State of Michigan,
___ Mich App ___, ___ (2018). “Absent a state constitutional prohibition, states are free to enact legislative
‘protections greater than those secured under the United States Constitution[.]’” Id. at ___, quoting People
v Harris, 499 Mich 332, 338 (2016).
27See
US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, ___ Mich App at ___.
“Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than
those secured under the United States Constitution[.]’” Id. at ___, quoting People v Harris, 499 Mich 332,
338 (2016).

D. Bond and Right to Counsel

“Where there are case-specific interim bonds set, counsel at
arraignment shall be prepared to make a de novo argument regarding
an appropriate bond regardless of and, indeed, in the face of, an
interim bond set prior to arraignment which has no precedential
effect on bond-setting at arraignment.” MIDC Standard 4.28
E. Review of Determination of Eligibility

The indigent criminal defense system’s preliminary determination of
indigency, including partial indigency, “may be reviewed by the
indigent criminal defense system at any other stage of the
proceedings.” MCL 780.991(3)(a).
F. Effective Assistance of Counsel

“The MIDC shall implement minimum standards, rules, and
procedures to guarantee the right of indigent defendants to the
[effective] assistance of counsel as provided under” the state and
federal constitutions. MCL 780.991(2). In establishing these standards,
rules, and procedures, the MIDC must adhere to the following
principles:
“(a) Defense counsel is provided sufficient time and a

space where attorney-client confidentiality is
safeguarded for meetings with defense counsel’s client.
(b) Defense counsel’s workload is controlled to permit

effective representation. Economic disincentives or
incentives that impair defense counsel’s ability to
provide effective representation must be avoided. The
MIDC may develop workload controls to enhance
defense counsel’s ability to provide effective
representation.
(c) Defense counsel’s ability, training, and experience

match the nature and complexity of the case to which he
or she is appointed.
(d) The same defense counsel continuously represents

and personally appears at every court appearance
28See
US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, ___ Mich App ___,
___ (2018). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections
greater than those secured under the United States Constitution[.]’” Id. at ___, quoting People v Harris,
499 Mich 332, 338 (2016).

throughout the pendency of the case. However, indigent

criminal defense systems may exempt ministerial,
nonsubstantive tasks, and hearings from this
prescription.
(e) indigent criminal defense systems employ only

defense counsel who have attended continuing legal
education relevant to counsels’ indigent defense clients.
(f) indigent criminal defense systems systematically

review defense counsel at the local level for efficiency
and for effective representation according to MIDC
standards.” MCL 780.991(2).
1. No Expansion of Federal or State Constitutional Law

“Nothing in [the MIDCA] shall be construed to overrule,
expand, or extend, either directly or by analogy, any decisions
reached by the United States [S]upreme [C]ourt or the [Michigan
Supreme Court] regarding the effective assistance of counsel.”
MCL 780.1003(1).
2. Prohibition of Civil Remedy

“Except as otherwise provided in [the MIDCA], the failure of an
indigent criminal defense system to comply with statutory
duties imposed under [the MIDCA] does not create a cause of
action against the government or a system.” MCL 780.1003(3).
“Statutory duties imposed that create a higher standard than

that imposed by the United States constitution or the state
constitution of 1963 do not create a cause of action against a local
unit of government, an indigent criminal defense system, or this
state.” MCL 780.1003(4).
3. Prohibition of Remedy in Criminal Cases

“Violations of MIDC rules that do not constitute ineffective
assistance of counsel under the United States constitution or the
state constitution of 1963 do not constitute grounds for a
conviction to be reversed or a judgment to be modified for
ineffective assistance of counsel.” MCL 780.1003(5).
G. Collection of Contribution or Reimbursement from

Partially Indigent Individuals
“The court shall collect contribution or reimbursement from
individuals determined to be partially indigent[.]” MCL 780.993(17).

Reimbursement under MCL 780.993(17) is subject to MCL 775.22,

which governs the allocation of funds received by an individual in a
criminal case. MCL 780.993(17). One hundred percent of the funds
collected by the court must be remitted to the indigent criminal
defense system in which the court is sitting. Id.
H. Standard of Review
A trial court’s determination of a defendant’s indigence is reviewed
for an abuse of discretion. People v Gillespie, 42 Mich App 679, 681-682
(1972).
4.5 Scope of Counsel’s Responsibilities
A. Responsibilities at Trial
“The responsibilities of the trial lawyer who represents the defendant
include
(1) representing the defendant in all trial court

proceedings through initial sentencing,
(2) filing of interlocutory appeals the lawyer deems

appropriate,
(3) responding to any preconviction appeals by the

prosecutor. The defendant’s lawyer must either:
(i) file a substantive brief in response to the

prosecutor’s interlocutory application for leave to
appeal, or
(ii) notify the Court of Appeals that the lawyer will

not be filing a brief in response to the application.”
MCR 6.005(H).
B. Responsibilities on Appeal
“Unless an appellate lawyer has been appointed or retained, or if
retained trial counsel withdraws, the trial lawyer who represents the
defendant is responsible for filing postconviction motions the lawyer
deems appropriate, including motions for new trial, for a directed
verdict of acquittal, to withdraw plea, or for resentencing.” MCR
6.005(H)(4).
“[W]hen an appellate lawyer has been appointed or retained, [he or

she must] promptly mak[e] the defendant’s file, including all
discovery material obtained, available for copying upon request of
that lawyer. The trial lawyer must retain the materials in the
defendant’s file for at least five years after the case is disposed in the
trial court. MCR 6.005(H)(5).
C. Responsibilities at Grand Jury Proceedings

“A witness called before a grand jury or a grand juror is entitled to
have a lawyer present in the hearing room while the witness gives
testimony. A witness may not refuse to appear for reasons of
unavailability of the lawyer for that witness. Except as otherwise
provided by law, the lawyer may not participate in the proceedings
other than to advise the witness.” MCR 6.005(I)(1).
“The prosecutor assisting the grand jury is responsible for ensuring

that a witness is informed of the right to a lawyer’s assistance during
examination by written notice accompanying the subpoena to the
witness and by personal advice immediately before the examination.
The notice must include language informing the witness that if the
witness is financially unable to retain a lawyer, the chief judge in the
circuit court in which the grand jury is convened will on request
appoint one for the witness at public expense.” MCR 6.005(I)(2).
4.6 Substitution or Withdrawal of Counsel

An attorney who has entered an appearance in a criminal case “may
withdraw from the action or be substituted for only on order of the
court.” MCR 2.117(C)(2).29 MRPC 1.16 outlines situations when an
attorney must or may move to withdraw as counsel. However, “[w]hen
ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.” MRPC
1.16(c).
“‘A defendant is only entitled to a substitution of appointed counsel

when discharge of the first attorney is for “good cause” and does not
disrupt the judicial process.’ People v O’Brien, 89 Mich App 704, 708 (1979)
(quotation marks and citation omitted). The circumstances that would
justify good cause rest on the individual facts in each case.” People v Buie
(On Remand) (Buie IV), 298 Mich App 50, 67 (2012).
While an indigent defendant is entitled to have counsel appointed at

public expense, he or she is not entitled to choose the lawyer. People v
Ginther, 390 Mich 436, 441 (1973). “When a defendant asserts that his
assigned lawyer is not adequate or diligent or asserts[] . . . that [the]
29
MCR 2.117(C)(3) allows an attorney who has filed a notice of limited appearance in a civil action, as
permitted under MCR 2.117(B)(2)(c) and MRPC 1.2(b), to withdraw without a court order under certain
circumstances.

lawyer is disinterested, the judge should hear [the defendant’s] claim

and, if there is a factual dispute, take testimony and state [its] findings
and conclusion.” Id.
A defendant does not have an absolute right to be represented at

sentencing by the same attorney who represented him or her at trial.
People v Evans, 156 Mich App 68, 70 (1986). But see MCL 780.991(2)(d),
requiring representation by “[t]he same [appointed] defense counsel . . .
at every court appearance throughout the pendency of the case,” with the
permissible exception of “ministerial, nonsubstantive tasks, and
hearings.”30
A. Good Cause
What constitutes good cause for substitution of counsel depends on
the facts and circumstances of each case. Buie IV, 298 Mich App at 67.
Case finding good cause:
• People v Jones (Edward), 168 Mich App 191, 194 (1988),

superseded by statute on other grounds (a valid and
reasonable disagreement between counsel and the
defendant regarding a fundamental trial tactic (such as
whether to call alibi witnesses) satisfies the good cause
requirement), citing People v Williams (Charles), 386 Mich
565, 578 (1972).
Cases finding no good cause:
• Buie IV, 298 Mich App at 66-70 (although the defendant

and defense counsel did not have a “completely
amicable relationship,” the trial court did not abuse its
discretion “when it did not either appoint substitute
counsel or hold an evidentiary hearing when [the]
defendant sought substitute counsel” because “the
record [did] not show that [defense counsel] was in fact
inattentive to [the defendant’s] responsibilities,
inadequate, or disinterested” (internal quotations and
citations omitted)).
• People v Strickland, 293 Mich App 393, 397-399 (2011)

(“[a] mere allegation that a defendant lacks confidence
in his or her attorney, unsupported by a substantial
reason,” or “a defendant’s general unhappiness with
counsel’s representation is insufficient” to establish good
cause, and the defendant did not establish good cause
where counsel’s testimony refuted the defendant’s “lack-
30 See Section 4.4 for additional discussion of MCL 780.991 and other provisions of the Michigan Indigent
Defense Commission Act (MIDCA), MCL 780.981 et seq.

of-contact claim” and where the defendant’s “remaining

complaints lacked specificity and did not involve a
difference of opinion with regard to a fundamental trial
tactic[]”).
• People v Traylor, 245 Mich App 460, 463 (2001) (good

cause was not established where the defendant claimed
(1) no contact by the attorney but refused to take
advantage of alternative arrangements to make contact
easier, (2) the attorney did not file certain pretrial
motions that were ultimately deemed frivolous, and (3)
that filing a grievance automatically created good cause
for substitution of counsel without providing legal
authority to support the claim).
B. Procedure
A trial court is obligated to take testimony and make findings of fact
when a factual dispute exists with regard to a defendant’s assertion
that his or her assigned attorney “is not adequate or diligent or . . . is
disinterested[.]” Ginther, 390 Mich at 441-442. However, “[a] judge’s
failure to explore a defendant’s claim that his [or her] assigned lawyer
should be replaced does not necessarily require that a conviction
following such error be set aside.” Id. at 442 (holding that such failure
did not require the setting aside of the defendant’s conviction where
“the record [did] not show that the lawyer assigned to represent [the
defendant] was in fact inattentive to his responsibilities[]”). Although
“the trial court must elicit testimony from the attorney and the
defendant in order to assess any issues of fact[,]” a full adversarial
proceeding is not required. People v Ceteways, 156 Mich App 108, 119
(1986).
The trial court’s decision on a request for substitution of counsel is
reviewed for an abuse of discretion. Traylor, 245 Mich App at 462.
The trial court’s decision on a motion for a continuance to retain new

counsel is reviewed for an abuse of discretion. Akins, 259 Mich App at
556.
4.7 Removal of Counsel

“A court may remove a defendant’s attorney on the basis of gross
incompetence, physical incapacity, or contumacious conduct.” People v
Durfee, 215 Mich App 677, 681 (1996) (court had no authority to remove
the defendant’s court-appointed counsel for “conduct allegedly
committed in other cases or outside the courtroom[]”).

4.8 Withdrawal of Assigned Appellate Counsel

“A court-appointed appellate attorney for an indigent appellant may file
a motion to withdraw [in the Court of Appeals] if the attorney
determines, after a conscientious and thorough review of the trial court
record, that the appeal is wholly frivolous.” MCR 7.211(C)(5). See also
Anders v California, 386 US 738, 744-745 (1967). Motions to withdraw on
this basis are permitted in both appeals as of right and appeals by leave.
See MCR 7.211(C)(5)(b).
Part B: Waiver of Counsel
4.9 Valid Waiver of Right to Counsel
A. Right of Self-Representation
A defendant has a constitutional and a statutory right of self-
representation. US Const, Am VI; Const 1963, art 1, § 13; MCL 763.1;
Faretta v California, 422 US 806, 807 (1975). However, the right to
proceed to trial without counsel is not absolute. Dennany, 445 Mich at
427. “[I]n exercising the right of self-representation, a defendant
necessarily waives [the] correlative Sixth Amendment right to
counsel. Consequently, a knowing and intelligent waiver of the right
to counsel [is] . . . an essential prerequisite to the right to proceed per
se[.]” People v Dennany, 445 Mich 412, 427 (1994). See Section 4.9(C) for
more information on a valid waiver of counsel.
There is no federal constitutional right to self-representation on direct

appeal from a criminal conviction. Martinez v California, 528 US 152,
163 (2000). The United States Supreme Court clearly stated, however,
that nothing in its Martinez holding prevented any state from
recognizing a right to self-representation in appellate proceedings
under the state’s constitution. Id. at 163.
A juvenile defendant may waive the right to assistance of counsel

according to the requirements of MCR 6.905(C). These requirements
mandate that the court appoint standby counsel to assist the juvenile
at trial and sentencing. MCR 6.905(C)(5).31
A defendant is not required to personally assert his or her

constitutional right to self-representation for the request to be valid;
31See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 16, for more information.

the request may be made through counsel. People v Hill (Thomas), 485
Mich 912 (2009).
B. Scope of Right
“While a defendant’s right to self-representation encompasses certain
specific core rights, including the right to be heard, to control the
organization and content of his [or her] own defense, to make
motions, to argue points of law, to participate in voir dire, to question
witnesses, and to address the court and the jury at times, the right to
self-representation is not unfettered.” People v Arthur (Charles), 495
Mich 861, 862 (2013). “The trial court did not unconstitutionally
‘nullify’ the defendant’s right to self-representation by declining to
remove the defendant’s leg shackles. That the defendant elected to
relinquish his right of self-representation rather than exercise that
right while seated behind the defense table does not amount to a
denial of the defendant’s right of self-representation.” Id. “[T]he trial
court did not violate the defendant’s due process rights by ordering
the defendant to wear leg shackles in the first place because the court
was justified in imposing those limited restraints to avoid the risk of
flight and to ensure the safety of those present” in light of the
defendant’s reported escape attempt and history of physical violence.
Id.
Under MRE 611(a), “‘a trial court, in certain circumstances, may

prohibit a defendant who is exercising his right to self-representation
from personally questioning the victim.’” People v Daniels (Daniel), 311
Mich App 257, 268 (2015) (citation omitted). “MRE 611(a) allows the
trial court to prohibit a defendant from personally cross-examining
vulnerable witnesses—particularly children who have accused the
defendant of committing sexual assault[; t]he court must balance the
criminal defendant’s right to self-representation with ‘the State’s
important interest in protecting child sexual abuse victims from
further trauma.’” Daniels (Daniel), 311 Mich App at 269 (citation
omitted). “[T]he trial court wisely and properly prevented [the]
defendant from personally cross-examining [his children regarding
their testimony that he sexually abused them], to stop the children
from suffering ‘harassment or undue embarrassment,’” following “a
motion hearing at which [the court] heard considerable evidence that
[the] defendant’s personal cross-examination would cause [the
children] significant trauma and emotional stress.” Id. at 270-271,
quoting MRE 611(a) (additional citations omitted). The defendant’s
right to self-representation was not violated under these
circumstances where the defendant was instructed “to formulate
questions for his [children], which his advisory attorney then used to
cross examine them.” Daniels (Daniel), 311 Mich App at 270.

C. Requirements for Valid Waiver

“Waiver of counsel issues arise most often, and are most difficult for
judges, in cases in which a defendant is unhappy with his [or her]
counsel close to the onset, or during the course of, a trial.” People v
Adkins (Kenneth Ray), 452 Mich 702, 724 (1996), overruled in part on
other grounds by People v Williams (Rodney), 470 Mich 634, 641 n 7
(2004). Recognizing that judges are faced with a “Catch 22” in that
“[o]n the one hand, defendants have a right to counsel” and “[o]n the
other hand, defendants have a right to self-representation” and that
“savvy defendants [may] use these competing rights as a means of
securing an appellate parachute,” the Adkins Court “set forth . . . the
judicial inquiry required before a defendant’s waiver of counsel is
justified.” Id. at 724-725.
“[O]nce a defendant has affirmatively declared his [or her] desire to

proceed pro se, the trial court must, on the record, advise the
defendant of the dangers and disadvantages of self-representation.”
Dennany, 445 Mich at 434. The court must take the following steps to
satisfy this requirement:
“First, [under MCR 6.005(D)(1),] the court may not

permit the defendant to waive the right to be
represented by a lawyer without advising the defendant
of (a) the charge, (b) the maximum possible prison
sentence for the offense, (c) any mandatory minimum
sentence required by law, and (d) the risk involved in
self-representation.
Second, [under MCR 6.005(D)(2),] a defendant who

wishes to proceed pro se must be offered the
opportunity to consult with a retained lawyer or, if the
defendant is indigent, the opportunity to consult with
an appointed lawyer.
Third, [under MCR 6.005(E),] even though a defendant

has waived the assistance of a lawyer, the waiver must
be reaffirmed at each subsequent proceeding.
In addition, pursuant to [People v Anderson (Donny), 398

Mich 361 (1976)], the court must, upon a defendant’s
initial request to proceed pro se, determine three things:
(1) that the request is unequivocal; (2) that the right has
been asserted knowingly, intelligently, and voluntarily
through a colloquy advising the defendant of the
disadvantages of self-representation; and (3) that self-
representation will not disrupt, unduly inconvenience,
or burden the court.” Dennany, 445 Mich at 438-439. See
also MCR 6.005(D).

“[T]rial courts must substantially comply with the aforementioned

substantive requirements set forth in both Anderson and MCR
6.005(D). Substantial compliance requires that the court discuss the
substance of both Anderson and MCR 6.005(D) in a short colloquy
with the defendant, and make an express finding that the defendant
fully understands, recognizes, and agrees to abide by the waiver of
counsel procedures.” Adkins, 452 Mich at 726-727. There is no specific
list of questions that must be used; rather, the inquiry should be
tailored to the particular case and stage of the proceedings. Iowa v
Tovar, 541 US 77, 88-92 (2004). “If a judge is uncertain regarding
whether any of the waiver procedures are met, he [or she] should
deny the defendant’s request to proceed in propria persona, noting
the reasons for the denial on the record.” People v Ratliff, 424 Mich 874
(1986). See also People v Russell (Lord), 471 Mich 182, 188 (2004) (“[I]t is
a long-held principle that courts are to make every reasonable
presumption against the waiver of a fundamental constitutional right,
including the waiver of the right to the assistance of counsel.”). “The
defendant should then continue to be represented by retained or
appointed counsel, unless the judge determines substitute counsel is
appropriate.” Adkins, 452 Mich at 727.
The trial court substantially complied with the requirements of MCR

6.005(D) and Anderson (Donny), 398 Mich 361, where “[b]oth the
prosecutor and the trial court asked [defendant] a series of questions
to ascertain whether he fully understood the dangers of self-
representation;” “the trial court could properly consider the
prosecutor’s questions and [defendant’s] responses as part of its ‘short
colloquy’ to determine whether [defendant] fully understood the
import of his waiver.” People v Campbell (Michael), 316 Mich App 279,
286, 288 (2016), overruled on other grounds by People v Arnold (Lonnie
James), 502 Mich 438 (2018).32 Furthermore, although the trial court
failed to specifically list the charges against the defendant and “never
explicitly found that his waiver request was unequivocal, knowing,
and voluntary,” these errors were harmless; “there [was] record
support that [defendant] was fully aware of the charges against him”
and that the trial court “endeavored to make the requisite
determinations and . . . actually found that [the] waiver was
unequivocal, knowing, and voluntary.” Campbell (Michael), 316 Mich
App at 287-288.
“‘[A] defendant may forfeit his self-representation right if he does not

assert it “in a timely manner.”’” People v Richards (Kyle), 315 Mich App

564, 576 (2016), rev’d in part on other grounds 501 Mich 921 (2017)33
(citations omitted). Although “‘Faretta[, 422 US 806,] did not establish
a bright-line rule for timeliness,’” the timeliness of a motion for self-
representation “is established, at least in part, by the date of trial
relative to the date of the request.” Richards (Kyle), 315 Mich App at
579 (citations omitted). Accordingly, “the trial court’s decision
denying defendant’s request for self-representation [as untimely] was
well within the range of reasonable and principled outcomes and was
not an abuse of discretion” where “[i]t was not until after the jury had
been sworn that defendant, through counsel, made the request to
proceed in proper personia [sic].” Id. at 580, 581 (noting that
“defendant never made a [pretrial] request for self-representation”
and that he filed multiple motions for new counsel) (citations
omitted). Additionally, case law does not require “that a trial court
must conduct a Faretta inquiry prior to denying a request as
untimely;” nor must the court “engage[] in an inquiry pursuant to
MCR 6.005(D)” regarding waiver of counsel. Richards (Kyle), 315 Mich
App at 578 (citations omitted). “[B]ecause the underlying rationale for
a trial court to conduct an inquiry pursuant to MCR 6.005(D) ‘is to
inform the defendant of the hazards of self-representation, not to
determine whether a request is timely,’” it is “unnecessary for the trial
court to engage in an inquiry pursuant to MCR 6.005(D)” when the
dispositive issue is “whether defendant asserted his right to self-
representation in a timely manner.” Richards, 315 Mich App at 578
Cases discussing waiver of counsel:
• People v Russell (Lord), 471 Mich 182, 184 (2004).
A defendant’s refusal to cooperate with his or her

appointed counsel and his or her unequivocal request to
be provided with a different defense attorney at trial
does not constitute a waiver of counsel or operate as an
implicit request to proceed in propria persona (in pro per
or pro se) where the record shows that “[the] defendant
clearly and unequivocally declined self-representation.”
In Russell (Lord), 471 Mich at 184, the defendant

informed the trial court at the beginning of trial that he
wanted the trial court to appoint a substitute for the
defendant’s second court-appointed attorney. The court
refused to appoint different counsel unless the

defendant offered “some valid reason” other than

“personality difficulties” to justify the appointment of a
third defense attorney. Id. at 184. The defendant failed to
provide any such explanation, and the court explained
to the defendant his options: (1) the defendant could
retain the counsel of his choice; (2) the defendant could
continue with the present attorney’s representation; (3)
the defendant could represent himself without any legal
assistance; or (4) the defendant could represent himself
with the assistance of his present attorney. Id. at 184-185.
The defendant continued to express his dissatisfaction
with his present attorney’s defense at the same time that
he clearly indicated that he did not wish to conduct his
own defense, and that he “need[ed]” to be provided
with “competent counsel.” Id. at 185-186. However, at
trial he “expressly rejected self-representation[.]” Id. at
192. Accordingly, the Court of Appeals erred in
determining “that [the] defendant implicitly ‘made his
unequivocal choice’ to proceed in propria persona ‘by
his own conduct’ when he continued to reject appointed
counsel’s representation.” Id. at 186-187.
• People v Kammeraad, 307 Mich App 98, 129-130 (2014).
While “the circuit court attempted to obtain a formal

waiver of counsel by [the] defendant, along with the
attendant invocation of the right to self-representation,
carefully imparting the information encompassed by
MCR 6.005(D) and then directly querying [the]
defendant with respect to whether he wished to
represent himself[,] [he] . . . vigorously voiced a refusal
to represent himself, and he refused to expressly
acknowledge, let alone accept, the right-to-counsel and
waiver-related information conveyed to him by the
court.” Because “[t]he circuit court was unable to make
an express finding that [the] defendant fully
understood, recognized, and agreed to abide by the
waiver of counsel procedures[,] . . . the required waiver
procedures were not met, ostensibly dictating that
appointed counsel continue to represent [the]
defendant.” However, the Court concluded that the
defendant had forfeited his right to counsel.
• People v Williams (Rodney), 470 Mich 634, 647 (2004).
Even where the defendant “appeared to condition his

initial waiver of counsel on the trial court’s agreement to
allow him to recall and cross-examine two excused
witnesses,” the defendant “subsequently made an
intelligent, knowing, and voluntary waiver of this right

to counsel after the trial court rejected [the] defendant’s
request to recall and cross-examine the witnesses.”
A trial court’s factual determination whether a waiver was knowing
and intelligent is reviewed for clear error, while the meaning of
“knowing and intelligent” is a question of law reviewed de novo on
appeal. Williams (Rodney), 470 Mich at 640.
4.10 Advice at Subsequent Proceedings

Once a defendant has waived the assistance of a lawyer, a record must be
made at each subsequent proceeding showing that the court advised the
defendant of the continuing right to a lawyer (at public expense if the
defendant is indigent) and that the defendant has waived the right. MCR
6.005(E). At the beginning of any proceeding following the defendant’s
initial waiver of counsel, the record should reflect whether the
defendant’s wishes to proceed with or without the assistance of counsel.
Id. If the defendant requests an attorney and can afford to retain one,
arrangements must be made to permit the defendant to do so. MCR
6.005(E)(3). If the defendant requests an attorney and is indigent, the
court must appoint an attorney to represent the defendant. MCR
6.005(E)(2). If the prosecution would be significantly prejudiced by an
adjournment and a defendant has not been reasonably diligent in seeking
counsel, the court may refuse to grant an adjournment to appoint counsel
or to permit the defendant to retain counsel. MCR 6.005(E).
“Unlike the rules relating to an initial waiver of counsel, the procedure

outlined in MCR 6.005(E) does not stem from any constitutional
requirement,” and “a trial court’s failure to strictly comply with these
requirements can be harmless error.” People v Campbell (Michael), 316
Mich App 279, 289 (2016), overruled on other grounds by People v Arnold
(Lonnie James), 502 Mich 438 (2018)34 (citing People v Lane (Raymond), 453
Mich 132, 139-142 (1996), and concluding that “[a]lthough the trial court
did not explicitly remind” the defendant, at several hearings following
his initial waiver and at trial, “that he had the continued right to the
assistance of counsel, it [was] evident [from the record] that the court
operated on that assumption and that [the defendant] was aware of that
right and continued to assert his right to represent himself”).

4.11 Standby Counsel

A plurality35 of the Michigan Supreme Court has held that “a request to
proceed pro se with standby counsel—be it to help with either
procedural or trial issues—can never be deemed to be an unequivocal
assertion of the defendant’s rights.” Dennany, 445 Mich at 446.
In contrast, the Court of Appeals has held that a defendant’s request for
standby counsel does not make that same defendant’s request for self-
representation invalid as a matter of law, and that a defendant’s request
for self-representation can be accompanied by a request for standby
counsel without affecting the unequivocal nature of the defendant’s
request to proceed in propria persona. People v Hicks (Rodney), 259 Mich
App 518, 526-528 (2003). According to the Hicks (Rodney) Court, the trial
court should evaluate the defendant’s credibility to determine the
vacillation or unequivocal nature of a defendant’s request. Id. at 528-529.
Part C: Forfeiture of Counsel
4.12 Doctrine of Forfeiture of Counsel

“While the right to counsel is constitutionally protected, this
constitutional right can be relinquished by waiver or forfeiture.” People v
Kammeraad, 307 Mich App 98, 130 (2014) (formally “recogniz[ing],
adopt[ing], and employ[ing] the principle or doctrine of forfeiture of
counsel[]”).
In Kammeraad, 307 Mich App at 126, the defendant “indisputably and

defiantly refused to participate in the trial and other judicial proceedings,
indisputably and defiantly refused to accept the services of appointed
counsel or to communicate with counsel, regardless of counsel’s identity,
indisputably and defiantly refused to engage in self-representation,
indisputably and defiantly refused to promise not to be disruptive
during trial, and indisputably and defiantly refused to remain in the
courtroom for his jury trial.” The trial court “attempted to obtain a formal
waiver of counsel by [the] defendant, along with the attendant invocation
of the right to self-representation, carefully imparting the information
encompassed by MCR 6.005(D) and then directly querying [the]
defendant with respect to whether he wished to represent himself[; the
d]efendant, however, vigorously voiced a refusal to represent himself,
35 “Plurality decisions in which no majority of the justices participating agree as to the reasoning are not an
authoritative interpretation binding on this Court under the doctrine of stare decisis.” Negri v Slotkin, 397
Mich 105, 109 (1976).

and he refused to expressly acknowledge, let alone accept, the right-to-

counsel and waiver-related information conveyed to him by the court.”
Kammeraad, 307 Mich App at 129. Accordingly, because the trial court
“was unable to make an express finding that [the] defendant fully
understood, recognized, and agreed to abide by the waiver of counsel
procedures[,]” there was no effective waiver of counsel. Id. at 129-130.
The Kammeraad Court held that, “[d]espite[] . . . the ineffective waiver of

counsel,” the defendant, “being competent, [had] forfeited his
constitutional rights to counsel, self-representation, and to be present in
the courtroom during his trial, given the severity of his misconduct and
his absolute refusal to participate in any manner in the proceedings[,]”
and “there was no constitutional obligation to impose a court-appointed
attorney upon the unwilling defendant.” Kammeraad, 307 Mich App at
100, 127, 130. The Court explained:
“[The] defendant lost his right to counsel on the basis of his

conduct and statements.
Honoring a defendant’s wishes within reason with respect to

declining counsel is a principle that was accepted in Faretta v
California, 422 US 806, 817 (1975), wherein the Supreme Court
acknowledged the ‘nearly universal conviction, on the part of
our people as well as our courts, that forcing a lawyer upon
an unwilling defendant is contrary to his basic right to
defend himself if he truly wants to do so.’ . . .
***
[The d]efendant had the free choice to refuse the services of

appointed counsel, but, as opposed to the circumstances in
Faretta, he also refused self-representation. Nevertheless, we
conclude that [the] defendant had the free choice to refuse
both appointed counsel and self-representation, forfeiting
these constitutional rights.” Kammeraad, 307 Mich App at 134-
135.
The Court emphasized, however, that “a finding of forfeiture of [counsel]

. . . should only be made in the rarest of circumstances and as necessary
to address exceptionally egregious conduct.” Kammeraad, 307 Mich App
at 136-137 (additionally noting that “[the] defendant was competent for
purposes of finding forfeiture[]” and that Indiana v Edwards, 554 US 164,
177-178 (2008), “might suggest that if [the] defendant were not competent
because of severe mental illness, forfeiture of the constitutional rights at
issue cannot be recognized and imposing or forcing counsel upon [the]
defendant . . . [might have been] constitutionally permissible or even
necessary[]”).

4.13 Forfeiture of Right to Counsel and Presumption of

Prejudice
“[In United States v Cronic, 466 US 648, 659 (1984), the United States
Supreme Court] identified certain ‘rare situations in which the attorney’s
performance is so deficient that prejudice is presumed.’” People v
Kammeraad, 307 Mich App 98, 125 (2014), quoting People v Frazier (Corey),
478 Mich 231, 243 (2007). One such example is when “‘counsel entirely
fails to subject the prosecution’s case to meaningful adversarial
testing[.]’” Kammeraad, 307 Mich App at 125, quoting Cronic, 466 US at
659.
However, even “assum[ing] that defense counsel failed entirely to subject

the prosecution’s case to any meaningful adversarial testing[,]” this
assumption is “irrelevant[,]” and “Cronic[, 466 US at 659], “is not
implicated[,]” where the defendant has forfeited his or her right to
counsel. Kammeraad, 307 Mich App at 125-127, 136 (noting that “[b]y
appointed counsel’s assumed complete failure to subject the
prosecution’s case to meaningful adversarial testing, [the] defendant
received exactly what he desired, and . . . [the] defendant [could not be
rewarded] with a new trial on the basis of an alleged constitutional
deficiency that was of [his] own making[]”).

Chapter 5: District Court Arraignments
5.1 Introduction ......................................................................................... 5-2

Part A: Overview of District Court Proceedings
5.3 Applicable Court Rules ......................................................................... 5-5
5.4 Overview of District Court Magistrates’ Authority .............................. 5-8
Part B: Generally-Applicable Arraignment Principles and Procedures
5.6 Right to a Prompt Arraignment.......................................................... 5-16
5.7 Location of Arraignment .................................................................... 5-20
5.8 Fingerprinting..................................................................................... 5-29
5.9 Waiver of Rights ................................................................................. 5-29
Part C: Procedures Specific to Misdemeanor Arraignments
5.10 Required Advice of Rights and Procedures at Misdemeanor
Arraignment ....................................................................................... 5-31
5.11 Right To Counsel................................................................................. 5-32
5.12 Entering a Plea at Arraignment .......................................................... 5-33
5.14 Misdemeanor Traffic Violations and Appearance Tickets.................. 5-34
5.15 Violations of the Marine Safety Act ................................................... 5-37
5.16 A Crime Victim’s Rights Following Misdemeanor Arraignment ......... 5-39
Part D: Procedures Specific to Felony Arraignments
5.17 Procedure Required for Felony Arraignments in District Court ......... 5-42
5.19 Advice of Right to Counsel at Felony Arraignments........................... 5-45
Examination ....................................................................................... 5-47
5.21 Juvenile Proceedings in District Court................................................ 5-49
5.22 A Crime Victim’s Rights Following Felony Arraignment ..................... 5-52

5.1 Introduction
The district court conducts initial arraignments for all misdemeanors and
felonies. See MCL 600.8311(c); MCR 6.610(D); MCR 6.610(H). This
chapter discusses the procedures for conducting initial arraignments in
all criminal cases. Additionally, the district court may conduct circuit
court (post-bindover) arraignments in felony cases and misdemeanor
cases not cognizable in the district court. MCL 600.8311(f); MCR 6.111(A).
See Chapter 7 for discussion of post-bindover arraignments.
The procedures for conducting initial arraignments vary depending on

whether the crime charged is cognizable in district court or in circuit
court. Procedures also vary depending on whether the defendant is
arrested with or without a warrant and on whether the arrest takes place
in or outside the county in which the offense allegedly occurred. These
procedures are discussed in detail in this chapter.
Part A of this chapter contains a general overview of district court

jurisdiction. Part B contains discussion of procedures and law applicable
to arraignment proceedings for offenses cognizable in both district court
and circuit court. Part C discusses additional procedures specifically
applicable to misdemeanor offenses cognizable in the district court. Part
D discusses additional procedures specifically applicable to felony,
misdemeanor, and juvenile offenses cognizable in the circuit court.
See the following Michigan Judicial Institute Pretrial/Trial Quick

Reference Materials: a table including information on the jurisdiction of
district court judges and magistrates over preliminary matters in criminal
proceedings; a flowchart for conducting misdemeanor arraignments; and
separate checklists specifically applicable to misdemeanor, felony, and
juvenile arraignments in district court.

Part A: Overview of District Court Proceedings
5.2 District Court Jurisdiction1

• One-Year Misdemeanors, Ordinance Violations, and
Charter Violations. The district court has jurisdiction over
all proceedings involving misdemeanors punishable by a
fine or imprisonment not exceeding 1 year, or both, and
ordinance and charter violations punishable by a fine or
imprisonment, or both. MCL 600.8311(a)-(b); see also MCR
6.008(A).
• Preliminary Proceedings Involving Felonies and “Circuit

Court Misdemeanors.” In cases involving felonies and
misdemeanors cognizable by the circuit court
(misdemeanors punishable by more than one year of
imprisonment), the district court has jurisdiction to set bail
and accept bonds and to conduct arraignments, probable
cause conferences, preliminary examinations, and circuit
court (post-bindover) arraignments. MCL 600.8311(c)-(f).2
The district court’s jurisdiction over these offenses
continues “through the preliminary examination and until
the entry of an order to bind the defendant over to the
circuit court.” MCR 6.008(A).
Specifically, MCL 600.8311 provides:
“The district court has jurisdiction of all of the following:
(a) Misdemeanors punishable by a fine or imprisonment

not exceeding 1 year, or both.
(b) Ordinance and charter violations punishable by a

fine or imprisonment, or both.
(c) Arraignments, the fixing of bail and the accepting of

bonds.
1 See Chapter 2 for additional discussion of jurisdiction and venue in criminal proceedings.
and magistrates over preliminary matters in all criminal proceedings.

(d) Probable cause conferences in all felony cases and

misdemeanor cases not cognizable by the district court
and all matters allowed at the probable cause
conference under . . . MCL 766.4.
(e) Preliminary examinations in all felony cases and

and all matters allowed at the preliminary examination
under . . . MCL 766.1[ et seq]. There shall not be a
preliminary examination for any misdemeanor to be
tried in a district court.
(f) Circuit court arraignments in all felony cases and

under . . . MCL 766.13[.]”3
Additionally, “[a] district judge has the authority to accept a felony plea[
and s]hall take a plea to a misdemeanor or felony as provided by court
rule if a plea agreement is reached between the parties.”4 MCL 766.4(3).5
A district court has the same power to hear and determine matters within
its jurisdiction as does a circuit court over matters within the circuit
court’s jurisdiction. MCL 600.8317.
Note—Felony and Misdemeanor Definitions. By statute, an offense

designated as a misdemeanor is nevertheless considered a felony for
purposes of determining trial-court jurisdiction if it is punishable by
more than one year of imprisonment.
• Felony. The Michigan Code of Criminal Procedure, MCL

760.1 et seq., defines felony as a violation of Michigan’s penal
law “for which the offender, upon conviction, may be
offense expressly designated by law to be a felony.” MCL
761.1(f); see also MCL 750.7, defining felony, for purposes of
the Michigan Penal Code, as “an offense for which the
offender, on conviction may be punished by death, or by
3 See Chapter 7 for discussion of probable cause conferences, preliminary examinations, and post-bindover
arraignments.
4 However, following bindover, “[t]he circuit court retains jurisdiction over any case in which a plea is
entered or a verdict rendered to a charge that would normally be cognizable in the district court,” MCR
6.008(C), and the circuit court must “sentence all defendants bound over to circuit court on a felony that
either plead guilty to, or are found guilty of, a misdemeanor,” MCR 6.008(D). See Section 2.5 for discussion
of circuit court jurisdiction. See Chapter 6 for discussion of pleas.
5 However, “[s]entencing for felony cases and misdemeanor cases not cognizable by the district court shall
be conducted by a circuit judge.” MCL 600.8311(f); see also MCL 766.4(3).

• Misdemeanor. The Code of Criminal Procedure defines

misdemeanor as a violation of Michigan’s penal law “that is
not a felony or a violation of an order, rule, or regulation of
a state agency that is punishable by imprisonment or a fine
that is not a civil fine.” MCL 761.1(n). Some misdemeanors
are classified under the Code of Criminal Procedure as
minor offenses, violations for which the maximum
permissible imprisonment does not exceed 92 days and the
maximum fine does not exceed $1,000.00. MCL 761.1(m).
See also MCL 750.8, defining misdemeanor, for purposes of
the Michigan Penal Code, as “any act or omission, not a
felony, [that] is punishable according to law, by a fine,
penalty or forfeiture, or imprisonment, in the discretion of
the court[.]”
A district court’s jurisdiction is limited by MCL 600.8311(a) to

misdemeanors that are punishable by not more than one year of
imprisonment. However, “circuit court misdemeanors” (sometimes
also colloquially referred to as “serious” or “high court”
misdemeanors6) are punishable by more than one year of
jurisdiction.
5.3 Applicable Court Rules

Chapter 6 of the Michigan Court Rules governs criminal procedure. “The
rules in subchapters 6.000—6.500 govern matters of procedure in
criminal cases cognizable in the circuit courts and in courts of equivalent
criminal jurisdiction.” MCR 6.001(A). Some of these rules, as well as all of
the rules in subchapter 6.600, are specified in MCR 6.001(B) as rules that
“govern matters of procedure in criminal cases cognizable in the district
courts.”
MCR 6.001(E) addresses and resolves any conflict that may exist or arise
between the criminal procedure outlined in Chapter 6 of the Michigan
Court Rules and any statutory provisions concerning the same
procedure:
“The rules in [Chapter 6] supersede all prior court rules in

[Chapter 6] and any statutory procedure pertaining to and
inconsistent with a procedure provided by a rule in [Chapter
6].”
6
See also MCL 780.811(1)(a), defining serious misdemeanor for purposes of the Crime Victim’s Rights Act
(CVRA).

Additionally, the rules of civil procedure (except to the extent that they
clearly apply only to civil actions) apply to criminal cases, unless a
statute or court rule provides a similar or different procedure applicable
to the circumstances. See MCR 6.001(D).
A. Misdemeanors (Criminal Cases Cognizable in District

Court)
MCR 6.001(B) provides that the following court rules “govern
matters of procedure in criminal cases cognizable in the district
courts[:]”
• MCR 6.001—MCR 6.004 (scope, purpose and construction,

definitions, and speedy trial);
• MCR 6.005(B)-(C) (indigent defendants);
• MCR 6.006 (video and audio proceedings);
• MCR 6.101 (the complaint);
• MCR 6.102(D) and MCR 6.102(F) (arrest on a warrant and

interim bail);
• MCR 6.103 (issuance of summons instead of arrest

warrant);
• MCR 6.104(A) (arraignment without unnecessary delay

before a court or by use of two-way interactive video
technology);
• MCR 6.106 (pretrial release);
• MCR 6.125 (competency hearing);
• MCR 6.202 (disclosure of forensic laboratory report or

certificate);
• MCR 6.425(E)(3) (incarceration for nonpayment of court-

ordered financial obligations);
• MCR 6.427 (judgment);
• MCR 6.435 (correcting mistakes);
• MCR 6.440 (disability of judge);
• MCR 6.445(A)-(G) (probation revocation);
• MCR 6.610 (district court criminal procedure);
• MCR 6.615 (misdemeanor traffic cases);

• MCR 6.620 (jury impaneling); and
• MCR 6.625 (appeal and appointment of appellate counsel).
Other rules not specifically mentioned in MCR 6.001(B) may also be

instructive in situations in which no court rule specific to district
court procedure is supplied elsewhere. See, e.g., MCR 6.104(B)
(governing the place of arraignment).
MCR 6.610(D) governs arraignment for an offense over which the

district court has jurisdiction. MCR 6.104(A) requires that
arraignment in all criminal cases be conducted, without
unnecessary delay, in accordance with the procedures set out in
MCR 6.104 or by use of two-way interactive video technology.
The circuit court generally retains jurisdiction over all proceedings

in a case following bindover from the district court, including
proceedings involving misdemeanors that would otherwise be
cognizable in the district court. See MCR 6.008(B)-(E).7
B. Felonies and Circuit Court Misdemeanors (Criminal

Cases Cognizable in Circuit Court)
“The rules in subchapters 6.000—6.500 govern matters of procedure
in criminal cases cognizable in the circuit courts and in courts of
equivalent criminal jurisdiction.” MCR 6.001(A).
MCR 6.104 governs arraignment on the warrant or complaint, and

MCR 6.610(H) governs arraignments in cases “in which a defendant
is charged with a felony or a misdemeanor not cognizable by the
district court[.]”
The following court rules govern preliminary proceedings that may

be conducted by district courts in cases involving felonies and
misdemeanors that are not cognizable by the district court:
• MCR 6.008(A) (providing that “[t]he district court has

jurisdiction over all misdemeanors and all felonies through
the preliminary examination and until the entry of an order
to bind the defendant over to the circuit court”);
• MCR 6.108 (probable cause conference);
• MCR 6.110 (preliminary examination); and
• MCR 6.111 (circuit court (post-bindover) arraignment in

district court).8
7 See Section 2.5 for discussion of circuit court jurisdiction.

5.4 Overview of District Court Magistrates’ Authority
A. District Court Magistrates May Exercise Only Expressly-

Granted Authority
A district court magistrate may exercise the powers, jurisdiction,
and duties of a district court judge if expressly authorized by the
Revised Judicature Act, MCL 600.101 et seq., or by another statute.
MCL 761.1(l). However, “[n]otwithstanding statutory provisions to
the contrary, district court magistrates exercise only those duties
expressly authorized by the chief judge of the district or division.”
MCR 4.401(B). Moreover, “[a]n action taken by a district court
magistrate may be superseded, without formal appeal, by order of a
district judge in the district in which the magistrate serves.” MCR
4.401(C).
Subject to the chief district judge’s approval, district court

magistrates generally have the authority to issue arrest warrants
and search warrants; fix bail and accept bond; conduct arraignments
and accept pleas for specified offenses; conduct probable cause
conferences9; and impose sentences for specified offenses. MCL
600.8511(a)-(h).
“Proceedings involving district court magistrates must be in

accordance with relevant statutes and rules.” MCR 4.401(A).
Note—Magistrate and District Court Magistrate

Definitions: The terms magistrate and district court
magistrate are not always synonymous. According to the
Code of Criminal Procedure, a magistrate is a judge of the
district court or municipal court, and this term does not
include a district court magistrate. MCL 761.1(l). The
term district court magistrate is specifically used in the
Code of Criminal Procedure when the subject matter
involves a district court magistrate. See also MCR
6.003(4) (defining court or judicial officer as “a judge, a
magistrate, or a district court magistrate authorized in
accordance with the law to perform the functions of a
magistrate[]”).
8 See Chapter 7 for discussion of probable cause conferences, preliminary examinations, and post-bindover
arraignments.
9
A district court magistrate may “conduct probable cause conferences and all matters allowed at the
probable cause conference, except for the taking of pleas and sentencings, under . . . MCL 766.4, when
authorized to do so by the chief district court judge.” MCL 600.8511(h). See Chapter 7 for discussion of
probable cause conferences.

B. Videoconferencing Technology
“A district court magistrate may use videoconferencing technology
in accordance with MCR 2.407 and MCR 6.006.” MCR 4.401(E).
C. Appointment of Counsel
Provided the district’s chief judge has so authorized, a district court
magistrate may “[a]pprove and grant petitions for the appointment
of an attorney to represent an indigent defendant accused of any
misdemeanor punishable by imprisonment for not more than 1 year
or ordinance violation punishable by imprisonment.” MCL
600.8513(2)(a). See SCAO Form MC 222, Request for Court-Appointed
Attorney and Order.
Note—Advice of Rights and Michigan Indigent

Defense Commission Act (MIDCA): The MIDCA,
MCL 780.981—MCL 780.1003, requires “[t]rial courts
[to] assure that each criminal defendant is advised of his
or her right to counsel[,]” MCL 780.991(1)(c), and to
make “[a] preliminary inquiry regarding, and . . .
determin[e,] . . . the indigency of any defendant,
including a determination regarding whether a
defendant is partially indigent, . . . not later than at the
defendant’s first appearance in court[,]” MCL
780.991(3)(a).10 See also MCL 775.16.11
The MIDCA applies to an indigent defendant who “is

being prosecuted or sentenced for a crime for which an
individual may be imprisoned upon conviction, beginning
with the defendant’s initial appearance in court to
answer to the criminal charge.” MCL 780.983(f)(i)
(defining indigent criminal defense services for purposes of
the MIDCA) (emphasis supplied). See Chapter 4 for
discussion of the MIDCA.
10Note also that the Michigan Indigent Defense Commission must “promulgate objective standards for
MCL 780.991(3)(e).
11 MCL 775.16 provides:
“When a person charged with having committed a crime appears before a [district court
or municipal court judge] without counsel, the person shall be advised of his or her right
to have counsel appointed. If the person states that he or she is unable to procure
counsel, the magistrate shall appoint counsel, if the person is eligible for appointed
counsel under the [MIDCA].” MCL 775.16; see also MCL 761.1(l).

Committee Tip:
A district court magistrate is not authorized to
grant a petition for the appointment of an
attorney in a felony case. Such a request must be
approved by the district court judge.
D. Arrest Warrants and Search Warrants12

A district court magistrate may issue arrest warrants for felonies,
misdemeanors, and ordinance violations pursuant only to the
written authorization of the prosecuting attorney or municipal
attorney. MCL 764.1(1)-(2); MCL 600.8511(e). A district court
magistrate needs no authorization to issue a warrant for the arrest of
an individual to whom a police officer issued a traffic citation under
MCL 257.728 if the individual failed to appear in court when
required. MCL 600.8511(e).
A district court magistrate has the jurisdiction and duty “[t]o issue
search warrants, if authorized to do so by a district court judge.”
MCL 600.8511(g). See also MCL 780.651(1); MCL 780.651(3).
E. Arraignments and First Appearances

In addition to limited jurisdiction under MCL 600.8511(a)-(c), as
authorized by the chief judge, to “arraign and sentence upon pleas
of guilty or nolo contendere” for certain listed violations that are
punishable by no more than 90 or 93 days’ imprisonment
respectively,13 a district court magistrate has jurisdiction, as
authorized by the chief judge, to arraign defendants and set bond
for certain other offenses, including violations of MCL 257.625
(offenses involving the operation of a motor vehicle while
intoxicated or visibly impaired), MCL 257.625m (operation of a
commercial motor vehicle by a person with an unlawful blood
alcohol content), MCL 324.81134 (offenses involving the operation
of an ORV while under the influence of alcoholic liquor and/or a
blood alcohol content, or with any amount of certain controlled
substances in the body),14 and MCL 324.82128 and MCL 324.82129
(offenses involving the operation of a snowmobile while under the
12 See Chapter 3 for a more complete discussion of issuing arrest warrants and search warrants.
13 See Section 5.4(H) for more information.

influence of alcoholic liquor and/or a controlled substance, while

visibly impaired, with an unlawful blood alcohol content, or with
any amount of certain controlled substances in the body).
Additionally, MCL 600.8511(d) provides that a district court

magistrate, if authorized by the chief judge, has jurisdiction over
arraignments for contempt violations and violations of probation
when the violation arises directly out of a case in which a judge or
district court magistrate conducted the same defendant’s
arraignment under MCL 600.8511(a), MCL 600.8511(b), or MCL
600.8511(c), or the same defendant’s first appearance under MCL
600.8513. MCL 600.8511(d) applies only to offenses punishable by
imprisonment for not more than one year, a fine, or both. District
court magistrates are not authorized to conduct probation violation
hearings, contempt hearings, or sentencing hearings, but may set
bond and accept pleas. Id.
A district court magistrate may also preside over a defendant’s “first

appearance” in certain circumstances. MCL 600.8513(1) states:
“When authorized by the chief judge of the district and

whenever a district judge is not immediately available, a
district court magistrate may conduct the first
appearance of a defendant before the court in all
criminal and ordinance violation cases, including
acceptance of any written demand or waiver of
preliminary examination and acceptance of any written
demand or waiver of jury trial. However, this section
does not authorize a district court magistrate to accept a
plea of guilty or nolo contendere not expressly
authorized under [MCL 600.8511 or MCL 600.8512a]. A
defendant neither demanding nor waiving preliminary
examination in writing is deemed to have demanded
preliminary examination and a defendant neither
demanding nor waiving jury trial in writing is
considered to have demanded a jury trial.”
F. Fixing Bail and Accepting Bond

court magistrate has a duty “[t]o fix bail and accept bond in all
cases.” MCL 600.8511(f); see also MCR 4.401(B). See SCAO Form
MC 240, Pretrial Release Order.
14

G. Proceedings Involving Civil Infractions, Misdemeanors,

and Ordinance Violations Not Punishable by
Imprisonment
To the extent expressly authorized by the chief judge, presiding
judge, or only judge of the district, MCL 600.8512a permits a district
court magistrate to:
“(a) Accept an admission of responsibility, decide a

motion to set aside a default or withdraw an admission,
and order civil sanctions for a civil infraction and order
an appropriate civil sanction permitted by the statute or
ordinance defining the act or omission.
(b) Accept a plea of guilty or nolo contendere and

impose sentence for a misdemeanor or ordinance
violation punishable by a fine and which is not
punishable by imprisonment by the terms of the statute
or ordinance creating the offense.”
H. Pleas to Enumerated Offenses Punishable by

Imprisonment
1. Offenses Punishable by Not More Than 90 Days’

Imprisonment
MCL 600.8511(a) provides that a district court magistrate has
the jurisdiction and duty “[t]o arraign and sentence upon pleas
of guilty or nolo contendere for violations of the following acts
or parts of acts, or a local ordinance substantially
corresponding to these acts or parts of acts, when authorized
by the chief judge of the district court, if the maximum
permissible punishment does not exceed 90 days in jail or a
fine, or both.”
• MCL 324.48701—MCL 324.48740 (sport fishing)
• MCL 324.40101—MCL 324.40120 (wildlife

conservation)
• MCL 324.80101—MCL 324.80199 (Marine Safety

Act)15
• MCL 475.1—MCL 479.43 (Motor Carrier Act)
15 See Section 5.15 for a detailed discussion of arrest and arraignment procedure for a violation of the
Marine Safety Act.

• MCL 480.11—MCL 480.25 (Motor Carrier Safety Act

of 1963)
• MCL 287.261—MCL 287.290 (Dog Law of 1919)
• MCL 436.1703 or MCL 436.1915 (Liquor Control

Code)
• MCL 324.501—MCL 324.513 (DNR Commission)
• MCL 324.8901—MCL 324.8907 (littering)
• MCL 324.43501—MCL 324.43561 (hunting/fishing

licensing)
• MCL 324.73101—MCL 324.73111 (recreational

trespass)
• MCL 750.546—MCL 750.552c (certain trespass and

dumping offenses)16
2. Michigan Vehicle Code Violations

Except for violations of MCL 257.625 (offenses involving the
operation of a motor vehicle while intoxicated or visibly
impaired) and MCL 257.625m (operation of a commercial
motor vehicle by a person with an unlawful blood alcohol
content), and local ordinances substantially corresponding to
those provisions, MCL 600.8511(b) permits a district court
magistrate (if authorized by the chief district judge) to arraign
and sentence defendants on pleas of guilty or no contest for
violations of the Michigan Vehicle Code (MVC) (or violations
of local ordinances substantially corresponding to a provision
of the MVC), as long as the maximum permissible punishment
does not exceed 93 days in jail, a fine, or both.
However, a district court magistrate may be authorized to

arraign defendants and set bond for violations of MCL 257.625
and MCL 257.625m or substantially corresponding local
ordinances. MCL 600.8511(b).
3. ORV and Snowmobile Violations

or both, MCL 600.8511(c) permits a district court magistrate to
16
Effective March 14, 2016, 2015 PA 211 repealed MCL 750.546—MCL 750.551; however, MCL
600.8511(a)(xii) has not been amended accordingly.


contest for violations of MCL 324.81101—MCL 324.81150 (ORV
licensing) and MCL 324.82101—MCL 324.82160 (snowmobiles)
or violations of a local ordinance substantially corresponding
to one of these statutory provisions.

violations of MCL 324.81134 (offenses involving the operation
of an ORV while under the influence of alcoholic liquor and/or
a controlled substance, while visibly impaired, with an
unlawful blood alcohol content, or with any amount of certain
controlled substances in the body),17 MCL 324.82128 and MCL
324.82129 (offenses involving the operation of a snowmobile
while under the influence of alcoholic liquor and/or a
blood alcohol content, or with any amount of certain
controlled substances in the body), or a local ordinance
substantially corresponding to one of these statutory
provisions; however, the chief judge may authorize a district
court magistrate to arraign defendants and set bond for
violations under these statutes. MCL 600.8511(c).
I. Probable Cause Conferences18

District court magistrates have jurisdiction “[t]o conduct probable
cause conferences and all matters allowed at the probable cause
conference, except for the taking of pleas and sentencings, under . . .
MCL 766.4, when authorized to do so by the chief district court
judge.” MCL 600.8511(h); see also MCR 6.108(B) (“[a] district court
magistrate may conduct probable cause conferences when
authorized to do so by the chief district judge and may conduct all
matters allowed at the probable cause conference, except taking
pleas and imposing sentences unless permitted by statute to take
pleas or impose sentences[]”).

(c)].”
17
18 See Chapter 7 for discussion of probable cause conferences.

J. Appeal From District Court Magistrate’s Ruling

A party may appeal as of right any decision of the district court
magistrate to the district court in which the district court magistrate
serves. MCR 4.401(D). The appeal must be in writing, must be made
within seven days of the entry of the decision being appealed, and
should substantially comply with the form outlined in MCR 7.104.
MCR 4.401(D). Except as otherwise provided by statute or court
rule, no fee is required to file an appeal of a district court
magistrate’s ruling. Id. The district court hears the matter de novo.
Id.
5.5 Record Requirements

Except as provided by law or supreme court rule, all proceedings in
district court must be recorded. MCL 600.8331.
MCR 6.610(C) provides that unless a writing is permitted, a verbatim

record must be made of the district court proceedings listed in MCR
6.610(D)-(F). MCR 6.610(D) governs arraignments in misdemeanor cases
and provides that a writing may be used to inform a defendant of the
offense, the maximum sentence, and the defendant’s rights. MCR
6.610(E) addresses pleas of guilty or nolo contendere and similarly allows
a defendant to be informed of his or her rights in writing. If a defendant
is informed of his or her rights in writing, “the court shall address the
statement that the rights were read and understood and a waiver of those
rights. The waiver may be obtained without repeating the individual
rights.” MCR 6.610(E)(4). A writing may not be used to satisfy the record
requirements of a sentencing proceeding under MCR 6.610(F).
MCR 6.104(F) expressly mandates that “[a] verbatim record must be

made of the arraignment” for a felony or a misdemeanor cognizable in
the circuit court.
Part B: Generally-Applicable Arraignment Principles and

Procedures

5.6 Right to a Prompt Arraignment
A. Arraignment “Without Unnecessary Delay”

Michigan law mandates that an arrestee be arraigned “without
unnecessary delay.” See MCL 764.1b; MCL 764.13; MCL 764.26;
People v Cipriano, 431 Mich 315, 319 (1988); see also MCR 6.104(A).
“[T]he state constitutional guarantee of due process of law requires
an arrestee’s prompt arraignment.” People v Mallory, 421 Mich 229,
239 (1984), citing Const 1963, art 1, § 17.
“[I]n all but the most extraordinary situations[,]” an individual

arrested without a warrant may not be detained for more than 48
hours without a judicial determination of probable cause. People v
Whitehead, 238 Mich App 1, 4 (1999). A delay of more than 48 hours
between a defendant’s warrantless arrest and the probable cause
hearing is presumptively unreasonable and shifts the burden to the
government to show the delay was caused by extraordinary
circumstances. Riverside Co v McLaughlin, 500 US 44, 56-57 (1991).
Moreover, a delay of less than 48 hours may be unreasonable under
certain circumstances. Id. at 56.
“Examples of unreasonable delay are delays for the

purpose of gathering additional evidence to justify the
arrest, a delay motivated by ill will against the arrested
individual, or delay for delay’s sake. In evaluating
whether the delay in a particular case is unreasonable,
however, courts must allow a substantial degree of
flexibility. Courts cannot ignore the often unavoidable
delays in transporting arrested persons from one facility
to another, handling late-night bookings where no
magistrate is readily available, obtaining the presence of
an arresting officer who may be busy processing other
suspects or securing the premises of an arrest, and other
practical realities.” Id. at 56-57.
“Both the constitutional and statutory [arraignment] requirements

are designed to advise the arrestee of his [or her] constitutional
rights and the nature of the charges against him [or her] by an
impartial judicial magistrate, to insure that the arrestee’s rights are
not violated, and to afford the arrestee an opportunity to make a
statement or explain his [or her] conduct in open court if he [or she]
so desires.” Mallory, 421 Mich at 239 (citations omitted). “Finally,
prompt arraignment affords the arrestee an opportunity to have his
[or her] right to liberty on bail determined.” Id.
Express statutory authority for felony arraignments is contained in

MCL 764.26:

“Every person charged with a felony shall, without

unnecessary delay after his [or her] arrest, be taken
before a magistrate or other judicial officer and, after
being informed as to his [or her] rights, shall be given an
opportunity publicly to make any statement and answer
any questions regarding the charge that he [or she] may
desire to answer.”
General statutory authority for arraignments following a warrantless

arrest for an offense of unspecified severity is contained in MCL
764.13:
“A peace officer who has arrested a person for an

offense without a warrant shall without unnecessary
delay take the person arrested before a magistrate of the
judicial district in which the offense is charged to have
been committed, and shall present to the magistrate a
complaint stating the charge against the person
arrested.”
MCR 6.104(A), which applies to both felonies and misdemeanors,19

provides:
“Arraignment Without Unnecessary Delay. Unless

released beforehand, an arrested person must be taken
without unnecessary delay before a court for
arraignment in accordance with the provisions of [MCR
6.104], or must be arraigned without unnecessary delay
by use of two-way interactive video technology[20] in
accordance with MCR 6.006(A).”
Note: Circuit Court Plan for Judicial Availability. In

each county, the court with trial jurisdiction over felony
cases must submit a plan for making a judicial officer
available to conduct felony arraignments on each day of
the year, or a plan to make a judicial officer available
every day of the year to set bail for felony offenses. MCR
6.104(G)(1)-(2).21 If a court adopts the latter plan of
availability and makes an officer available to set bail
each day of the year, the court’s plan must provide for
the prompt transport of any defendant who is unable to
post bond to the judicial district where the offense
occurred. MCR 6.104(G)(2). “Prompt transportation”
requires that the defendant be arraigned “not later than
the next regular business day.” Id.
19 See MCR 6.001(A); MCR 6.001(B).
20 See Section 5.7(A) for discussion of interactive video technology.

B. Consequences of a Lengthy Delay

“‘[A]n improper delay in arraignment . . . does not entitle a
defendant to dismissal of the prosecution.’” People v Cain (Darryl)
(Cain I), 299 Mich App 27, 49 (2012), vacated in part on other
grounds by People v Cain (Darryl) (Cain II), 495 Mich 874 (2013),22
quoting People v Harrison (Charles), 163 Mich App 409, 421 (1987).
However, failure to conduct a district court arraignment without
unnecessary delay may jeopardize the admissibility of a confession
or physical evidence in subsequent court proceedings against the
defendant. Cain I, 299 Mich App at 49 (citations omitted).
“The Fourth Amendment prohibits unreasonable

searches and seizures of persons and property. Thus, it
is this amendment that prohibits unreasonable delays
between an arrest and a finding of probable cause. The
Fifth Amendment prohibits involuntary self-
incrimination. It is therefore this amendment that
prevents a prosecutor from introducing a confession
that was not made voluntarily. When a confession is
made during an unreasonable seizure, these two
protections intersect.” People v Manning, 243 Mich App
Evidence must be excluded when it was obtained during an

unlawful detention designed to allow law enforcement personnel
additional time to gather evidence. People v Mallory, 421 Mich 229,
240-241 (1984). The exclusionary rule similarly bars the admission of
any evidence that would not have been obtained but for the
procurement of evidence first obtained by unlawful detention. Id. at
21
Effective January 1, 2013, Administrative Order No. 2012-7 provides that, in certain specific situations,
“[t]he State Court Administrative Office is authorized, until further order of [the Michigan Supreme] Court,
to approve the use of two-way interactive video technology in the trial courts to allow judicial officers to
preside remotely in any proceeding that may be conducted by two-way interactive technology or
communication equipment without the consent of the parties under the Michigan Court Rules and
statutes.” Remote participation as set out in Administrative Order No. 2012-7 is permitted only in the
following situations: “1) judicial assignments; 2) circuits and districts that are comprised of more than one
county and would require a judicial officer to travel to a different courthouse within the circuit or district;
3) district court districts that have multiple court locations in which a judicial officer would have to travel to
a different courthouse within the district; [and] 4) a multiple district plan in which a district court
magistrate would have to travel to a different district.” Id. “The judicial officer who presides remotely must
be physically present in a courthouse located within his or her judicial circuit, district, or multiple district
area.” Id. Additionally, “[f]or circuits or districts that are comprised of more than one county, each court
that seeks permission to allow its judicial officers to preside by video communication equipment must
submit a proposed local administrative order for approval by the State Court Administrator pursuant to
MCR 8.112(B).” Administrative Order No. 2012-7.

241. However, “[t]he exclusionary rule will not bar the admission at
trial of evidence which has been acquired absent exploitation of a
statutorily unlawful detention.” Id.
Where there is no bona fide emergency to justify a lengthy detention

and circumstances indicate that a detention was prolonged beyond
48 hours in an effort to obtain more evidence to support the
accused’s guilt, a person’s constitutional right to be free of
unreasonable seizure may be implicated. People v Whitehead, 238
Mich App 1, 13-14 (1999). Therefore, statements made by an accused
during a period of unnecessary delay “may well be found
inadmissible” against the accused at trial. Id. at 4. However,
unnecessary prearraignment delay is only one factor to be
considered when determining whether a defendant’s confession
was voluntary. People v Cipriano, 431 Mich 315, 319 (1988).
A delay of more than 48 hours between a defendant’s warrantless

arrest and the probable cause hearing is presumptively
unreasonable and shifts the burden to the government to show the
delay was caused by extraordinary circumstances. Riverside Co v
McLaughlin, 500 US 44, 56-57 (1991). Based on Riverside, the
Michigan Court of Appeals held that a delay in excess of 80 hours
was a presumptive violation of the Fourth Amendment protection
against unreasonable seizure. Manning, 243 Mich App at 631-632.
However, in the absence of police misconduct, such a lengthy delay
did not automatically make involuntary any statements the
defendant made during the extended detention. Id. at 644-645.
Notwithstanding the presumptive unreasonableness of the seizure,
the Manning Court concluded that the ultimate admissibility of a
defendant’s statement required a traditional inquiry into the
statement’s voluntariness. Id. at 645, citing Cipriano, 431 Mich 315.
The Court noted, however, “that in some situations the length of the
delay alone may be a sufficient ground to suppress a defendant’s
statement, particularly where the delay is so inexplicably long that
it raises an inference of police misconduct.” Manning, 243 Mich App
at 645.
See also Cain I, 299 Mich App at 48-50 (the defendant was not
deprived of due process despite not being arraigned until three
days after his arrest where “no evidence was obtained as a direct
result of the ‘undue delay,’ which would have begun . . . 48 hours
after [the] defendant’s arrest;” because the evidence against the
defendant, including his statement to police and his identification
from a photo lineup, was obtained within 48 hours after his arrest,
“there was no evidence to suppress”).

5.7 Location of Arraignment

Arraignment and bail procedures vary depending on whether an arrest is
made by warrant or without a warrant, and whether an arrest is made in
the county in which the offense occurred or in a different county.
A. Video and Audio Technology

Judges and district court magistrates are authorized by statute to
conduct arraignments and set bail using interactive video
technology. MCL 767.37a provides, in part:
“(1) A judge or district court magistrate may conduct

initial criminal arraignments and set bail by 2-way
interactive video technology communication between a
court facility and a prison, jail, or other place where a
person is imprisoned or detained. A judge or district
court magistrate may conduct initial criminal
arraignments and set bail on weekends, holidays, or at
any time as determined by the court.
***
(5) This act does not prohibit the use of 2-way

interactive video technology for arraignments on the
information, criminal pretrial hearings, criminal pleas,
sentencing hearings for misdemeanor violations
cognizable in the district court, show cause hearings, or
other criminal proceedings, to the extent the Michigan
supreme court has authorized that use.”23
MCR 6.006 permits the use of two-way interactive video technology

by district and circuit courts in specified situations. MCR 6.006(A)
states:
23 Effective January 1, 2013, Administrative Order No. 2012-7 provides that, in certain specific situations,

“Defendant in the Courtroom or at a Separate

Location. District and circuit courts may use two-way
interactive video technology to conduct the following
proceedings between a courtroom and a prison, jail, or
other location: initial arraignments on the warrant or
complaint, probable cause conferences, arraignments on
the information, pretrial conferences, pleas, sentencings
for misdemeanor offenses, show cause hearings,
waivers and adjournments of extradition, referrals for
forensic determination of competency, and waivers and
adjournments of preliminary examinations.”
See also MCR 4.401(E) (“[a] district court magistrate may use
videoconferencing technology in accordance with MCR 2.407 and
MCR 6.006[]”).
Use of video and audio technology under MCR 6.006 must comply
“with any requirements and guidelines established by the State
Court Administrative Office, and all proceedings at which such
technology is used must be recorded verbatim by the court.” MCR
6.006(D). For additional information, including a complete list of
authorized uses for videoconferencing, see the SCAO’s Michigan
Trial Court Standards for Courtroom Technology.
B. Arraignment on Arrest by Warrant
1. Arrest by Warrant in County in Which Alleged

Offense Occurred
A warrant for an individual’s arrest must direct the arresting
officer to take the arrestee, without unnecessary delay, before a
judge or district court magistrate of the judicial district in
which the charged offense occurred. MCL 764.1b.
See also MCR 6.104(A), which provides that an arrested

person, if not released beforehand or arraigned by interactive
video technology, must be taken without unnecessary delay
before a court for arraignment in accordance with the
provisions of MCR 6.104. MCR 6.104(B)24 provides, in relevant
part:
“Place of Arraignment. An accused arrested

pursuant to a warrant must be taken to a court
24
Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to
misdemeanors under MCR 6.001(B), MCR 6.104(B) is presumably applicable to misdemeanors under MCR
6.104(A), which is expressly applicable to misdemeanors and provides that arraignment is to take place “in
accordance with the provisions of [MCR 6.104.]”

specified in the warrant. . . . In the alternative, the

provisions of this subrule may be satisfied by use
of two-way interactive video technology in
See also MCR 4.401(E) (“[a] district court magistrate may use
videoconferencing technology in accordance with MCR 2.407
and MCR 6.006[]”).
2. Arrest By Warrant Outside County in Which Charged

Offense Occurred
MCR 6.104(B)25 provides, in relevant part:
“Place of Arraignment. An accused arrested

pursuant to a warrant must be taken to a court
specified in the warrant. . . . If the arrest occurs
outside the county in which [this court is] located,
the arresting agency must make arrangements
with the authorities in the demanding county to
have the accused promptly transported to the
latter county for arraignment in accordance with
the provisions of [MCR 6.104]. If prompt
transportation cannot be arranged, the accused
must be taken without unnecessary delay before
the nearest available court for preliminary
appearance in accordance with [MCR 6.104(C)]. In
the alternative, the provisions of this subrule may
be satisfied by use of two-way interactive video
technology in accordance with MCR 6.006(A).”26
If an accused first appears before the court in a county other

than the one in which the offense occurred or, if arrested by
warrant, in a county not listed in the arrest warrant, and the
accused is not represented by counsel, the court must advise
the accused of certain rights and decide whether to release the
accused before trial. MCR 6.104(C).27 Specifically, when an
accused appears before a court outside the county in which the
25 Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to
26
See also MCR 4.401(E) (“[a] district court magistrate may use videoconferencing technology in
accordance with MCR 2.407 and MCR 6.006[]”).
27
Although MCR 6.104(C) is not included in the list of court rules that are expressly applicable to
misdemeanors under MCR 6.001(B), MCR 6.104(C) may be instructive when conducting an arraignment of
a person arrested for a misdemeanor.

alleged offense occurred, the court is responsible for advising

the accused that
“(a) the accused has a right to remain silent,
(b) anything the accused says orally or in writing

can be used against the accused in court,
(c) the accused has a right to have a lawyer present

during any questioning consented to, and
(d) if the accused does not have the money to hire a

lawyer, the court will appoint a lawyer for the
accused[.]” MCR 6.104(E)(2); see MCR 6.104(C).
An accused’s preliminary appearance may be “by way of two-

way interactive video technology[.]” MCR 6.104(C).
MCL 764.4 governs arrests by warrant when the arrest and the
charged offense do not occur in the same county and the
offense is one for which bail may not be denied. In such a case,
the arrestee has the right to request to be taken before a
magistrate of the judicial district in which he or she was
arrested. MCL 764.4. In those circumstances:
• The court may take from the person a recognizance

with sufficient sureties for the accused’s appearance
within 10 days before a court in the district in which
the charged offense occurred. MCL 764.5.
• The court must certify on the recognizance that the

accused was permitted to post bail and must deliver
the recognizance to the arresting officer. Without
unnecessary delay, the arresting officer must see that
the recognizance is delivered to the court in which the
accused will be appearing. MCL 764.6.
• If the court refuses to permit the arrestee to post bail

or if insufficient bail is offered, the official having
charge of the arrestee must take him or her before a
magistrate in the judicial district in which the charged
offense was committed. MCL 764.7.
• The interim bond provisions in MCL 780.581 apply to

misdemeanor arrests by warrant, unless the alleged
offense is a violation of MCL 764.15a (warrantless
arrest only) or a substantially corresponding local
ordinance; a violation of MCL 750.81, if the arrestee is
in a specified relationship with the victim, or a
substantially corresponding local ordinance; or a
violation of MCL 750.81a, if the arrestee is in a

specified relationship with the victim. MCL 780.582;

MCL 780.582a(1).28
3. Interim Bail When Arrest is Made by Warrant

MCR 6.102(F),29 governing interim bail when arrest is made by
warrant, states:
“Release on Interim Bail. If an accused has been

arrested pursuant to a warrant that includes an
interim bail provision, the accused must either be
arraigned promptly or released pursuant to the
interim bail provision. The accused may obtain
release by posting the bail on the warrant and by
submitting a recognizance to appear before a
specified court at a specified date and time,
provided that
(1) the accused is arrested prior to the

expiration date, if any, of the bail provision;
(2) the accused is arrested in the county in

which the warrant was issued, or in which the
accused resides or is employed, and the
accused is not wanted on another charge;
(3) the accused is not under the influence of

liquor or controlled substance; and
(4) the condition of the accused or the

circumstances at the time of arrest do not
otherwise suggest a need for judicial review
of the original specification of bail.”
Provisions similar to those in MCR 6.102(F) are also found in
MCL 780.581 (interim bail and warrantless arrests), which,
subject to the conditions of MCL 780.582a, is made applicable
to arrests on warrants by MCL 780.582.30
28 See Chapter 8 for discussion of bail.
29 MCR 6.102(F) is expressly applicable to misdemeanors. MCR 6.001(B).
30 See Chapter 8 for additional discussion of bail.

C. Arraignment on Arrest Without a Warrant
1. Warrantless Arrest in County in Which Charged

Offense Occurred
MCL 764.15 sets out circumstances under which an officer may
arrest a person without a warrant. For example, a police officer
may arrest a person without a warrant for a felony,
misdemeanor, or ordinance violation that is committed in the
officer’s presence, MCL 764.15(1)(a), or for a felony committed
outside the officer’s presence, MCL 764.15(1)(b); additionally, a
police officer who has reasonable cause to believe a person
committed a felony or a misdemeanor offense punishable by
more than 92 days of imprisonment may arrest that person
without a warrant and without having witnessed the criminal
conduct, MCL 764.15(1)(c)-(d). Additional exceptions to the
warrant requirement for misdemeanor arrests include arrests
for offenses involving the operation of a vehicle, snowmobile,
ORV, or vessel while intoxicated or visibly impaired, MCL
764.15(1)(h)-(l), and arrests for domestic assault, MCL 764.15a.
An accused arrested without a warrant must be taken to a

court in the judicial district in which the offense allegedly
occurred. MCR 6.104(B).31 MCL 764.13 provides that a peace
officer who arrests an individual without a warrant must,
without unnecessary delay, take the arrestee before a
magistrate in the district in which the offense occurred and
present the magistrate with a complaint stating the offense for
which the individual was arrested. See also MCL 780.581(1),
which provides:
“If a person is arrested without a warrant for a

misdemeanor or a violation of a city, village, or
township ordinance, and the misdemeanor or
violation is punishable by imprisonment for not
more than 1 year, or by a fine, or both, the officer
making the arrest shall take, without unnecessary
delay, the person arrested before the most
convenient magistrate of the county in which the
offense was committed to answer to the
complaint.”
31 Effective May 22, 2017, the Department of Licensing and Regulatory Affairs approved proposed
standards submitted pursuant to the Michigan Indigent Defense Commission Act (MIDCA) by the Michigan
Indigent Defense Commission, including that “[w]here there are case-specific interim bonds set, counsel at
arraignment shall be prepared to make a de novo argument regarding an appropriate bond regardless of
and, indeed, in the face of, an interim bond set prior to arraignment which has no precedential effect on
bond-setting at arraignment.” MIDC Standard 4(A). See Section 4.4 for discussion of the MIDCA.

MCR 6.104(D)32 provides:
“Arrest Without Warrant. If an accused is arrested

without a warrant, a complaint complying with
MCR 6.101 must be filed at or before the time of
arraignment. On receiving the complaint and on
finding probable cause, the court must either issue
a warrant or endorse the complaint as provided in
MCL 764.1c. Arraignment of the accused may then
proceed in accordance with [MCR 6.104(E)].”
MCR 6.101 contains the requirements of a criminal complaint.
“A complaint is a written accusation that a named

or described person has committed a specified
criminal offense. The complaint must include the
substance of the accusation against the accused
and the name and statutory citation of the offense.
At the time of filing, specified case initiation
information33 shall be provided in the form and
manner approved by the State Court
Administrative Office.” MCR 6.101(A).
When an individual has been arrested without a warrant, the

law requires also that a prompt determination of probable
cause be made. See People v Mallory, 421 Mich 229, 239 n 4
(1984). Under MCL 764.1c(1), if an individual is in custody
after a warrantless arrest, a magistrate must determine if there
exists reasonable cause to believe the individual in custody
committed the offense; if the court finds reasonable cause, it
must either:
• issue a warrant for the accused’s arrest according to

MCL 764.1b, or
• endorse the complaint according to MCL 764.1c.
If the court endorses the complaint on a finding of reasonable

cause, the complaint constitutes a warrant as well as a
complaint. MCL 764.1c(2). A magistrate “endorses” the
complaint by noting the finding of reasonable cause that a
crime was committed and that the individual named in the
complaint committed it, and directing that the individual
32
Although MCR 6.104(D) is not included in the list of court rules that are expressly applicable to
misdemeanors under MCR 6.001(B), MCR 6.104(D) may be instructive when conducting an arraignment of
a person arrested without a warrant for a misdemeanor.
33 “At a minimum, specified case information shall include the name, an address for service, an e-mail
address, and a telephone number of every party[.]” MCR 1.109(D)(2).

accused of the crime be taken before the court in the district in

which the crime allegedly occurred. MCL 764.1c(1)(b).
In addition, MCL 764.9c addresses warrantless arrests for

misdemeanors or ordinance violations punishable by not more
than 93 days in jail and provides, subject to certain exceptions,
an alternative to formal arraignment. MCL 764.9c(1) provides,
in relevant part:
“[I]f a police officer has arrested a person without a

warrant for a misdemeanor or ordinance violation
for which the maximum permissible penalty does
not exceed 93 days in jail or a fine, or both, instead
of taking the person before a magistrate and
promptly filing a complaint[,] . . . the officer may
issue to and serve upon the person an appearance
ticket as defined in [MCL 764.9f] and release the
person from custody.”34
2. Warrantless Arrest Outside County in Which

Charged Offense Occurred
Because most warrantless arrests result from the accused’s
conduct as witnessed by a law enforcement officer or citizen,
warrantless arrests most often are made in the county in which
the offense occurred. Exceptions may arise, however, such as
when an individual cannot be apprehended immediately but is
later located and arrested in another county.
MCR 6.104(B)35 provides, in relevant part:
“Place of Arraignment. . . . An accused arrested

without a warrant must be taken to a court in the
judicial district in which the offense allegedly
occurred. If the arrest occurs outside the county in
which [this court is] located, the arresting agency
must make arrangements with the authorities in
the demanding county to have the accused
promptly transported to the latter county for
arraignment in accordance with the provisions of
[MCR 6.104]. If prompt transportation cannot be
arranged, the accused must be taken without
34 See Section 5.14(D) for additional discussion of MCL 764.9c and appearance tickets.
35
Although MCR 6.104(B) is not included in the list of court rules that are expressly applicable to

unnecessary delay before the nearest available

court for preliminary appearance in accordance
with [MCR 6.104(C)]. In the alternative, the
provisions of this subrule may be satisfied by use
of two-way interactive video technology in
If an accused first appears before the court in a county other

than the one in which the offense occurred and the accused is
not represented by counsel, the court must advise the accused
of certain rights and decide whether to release the accused
before trial. MCR 6.104(C).36 Specifically, when an accused
appears before a court outside the county in which the alleged
offense occurred, the court is responsible for advising the
accused that
“(a) the accused has a right to remain silent,
(b) anything the accused says orally or in writing

can be used against the accused in court,
(c) the accused has a right to have a lawyer present

during any questioning consented to, and
(d) if the accused does not have the money to hire a

lawyer, the court will appoint a lawyer for the
accused[.]” MCR 6.104(E)(2); see MCR 6.104(C).
An accused’s preliminary appearance may be “by way of two-

way interactive video technology[.]” MCR 6.104(C).
3. Interim Bail
Subject to the conditions of MCL 780.582a, “if a magistrate is
not available or immediate trial cannot be had,” an individual
arrested without a warrant for a misdemeanor offense or
ordinance violation punishable by imprisonment for not more
than one year may be entitled to post an interim bond with the
arresting officer or other authorized officer. MCL 780.581(2).
The bond amount may not exceed the maximum possible fine
for the offense, but may not be less than 20 percent of the
minimum possible fine for the offense. Id.37
36
Although MCR 6.104(C) is not included in the list of court rules that are expressly applicable to

5.8 Fingerprinting
At a defendant’s arraignment for a felony or misdemeanor punishable by
more than 92 days’ imprisonment, the district court must ensure that the
accused’s fingerprints have been taken as required by law. MCL 764.29;
see also MCR 6.104(E)(6).38 MCL 764.29 provides:
“(1) At the time of arraignment of a person on a complaint for

a felony or a misdemeanor punishable by imprisonment for
more than 92 days, the magistrate shall examine the court file
to determine if the person has had fingerprints taken as
required by [MCL 28.243].
(2) If the person has not had his or her fingerprints taken
prior to the time of arraignment for the felony or the
misdemeanor punishable by imprisonment for more than 92
days, upon completion of the arraignment, the magistrate
shall do either of the following:
(a) Order the person to submit himself or herself to the

police agency that arrested or obtained the warrant for
the arrest of the person so that the person’s fingerprints
can be taken.
(b) Order the person committed to the custody of the

sheriff for the taking of the person’s fingerprints.”39
5.9 Waiver of Rights
A. Right to Arraignment
A defendant may waive the right to an arraignment. People v Phillips
(Louis), 383 Mich 464, 469-470 (1970). With the court’s permission, a
defendant may stand mute or plead not guilty without a “formal”
or “in-court” arraignment by filing a written statement signed by
the defendant and any defense attorney of record. MCR 6.610(D)(4)
provides:
37
Effective May 22, 2017, the Department of Licensing and Regulatory Affairs approved proposed
standards submitted pursuant to the Michigan Indigent Defense Commission Act (MIDCA) by the Michigan
Indigent Defense Commission, including that “[w]here there are case-specific interim bonds set, counsel at
bond-setting at arraignment.”MIDC Standard 4(A).
See Section 4.4 for discussion of the MIDCA. See Chapter 8 for additional discussion of bail.
38
MCR 6.104(E)(6) is not included in the list of court rules that are expressly applicable to misdemeanors
under MCR 6.001(B).
39 See Section 3.11 for more information on fingerprinting and collection of biometric data.

“The court may allow a defendant to enter a plea of not

guilty or to stand mute without formal arraignment by
filing a written statement signed by the defendant and
any defense attorney of record, reciting the general
nature of the charge, the maximum possible sentence,
the rights of the defendant at arraignment, and the plea
to be entered. The court may require that an appropriate
bond be executed and filed and appropriate and
reasonable sureties posted or continued as a condition
precedent to allowing the defendant to be arraigned
without personally appearing before the court.”
Determining whether a defendant waived his or her right to an

arraignment requires an examination of all the circumstances. People
v Thomason (Timothy), 173 Mich App 812, 815 (1988), citing Phillips
(Louis), 383 Mich at 470. For a defendant’s waiver to be valid, the
record must establish that the defendant was entitled to an
arraignment, that the defendant knew he or she was entitled to an
arraignment, and that the defendant voluntarily elected not to
exercise that entitlement. Thomason (Timothy), 173 Mich App at 815-
816, citing Phillips (Louis), 383 Mich at 470. A defendant does not
have the burden of coming forward to request an arraignment, even
when the defendant is aware that he or she was entitled to an
arraignment and the arraignment did not occur. Thomason (Timothy),
173 Mich App at 816 (citation omitted).
B. Right to Counsel
A court cannot accept a defendant’s waiver of the right to be
represented by an attorney unless the court first
• advises the defendant of the charge against him or her, the

maximum possible prison sentence the defendant could
face if convicted of the offense, any mandatory minimum
sentence required by law, and the risk involved in self-
representation, and
• offers the defendant the opportunity to consult with a

retained lawyer or, if the defendant is indigent, the
opportunity to consult with an appointed attorney. MCR
6.005(D)(1)-(2).40
40 MCR 6.005(D) is not specifically applicable to misdemeanor offenses under MCR 6.001(B). See Chapter 4
for more information on waiving the right to counsel.

Part C: Procedures Specific to Misdemeanor Arraign-

ments41
5.10 Required Advice of Rights and Procedures at

Misdemeanor Arraignment
When a defendant is arraigned in district court for a misdemeanor
offense over which the district court has jurisdiction, the defendant must
be given certain specific information. MCR 6.610(D)(1) states:
“Whenever a defendant is arraigned on an offense over

which the district court has jurisdiction,[42] the defendant
must be informed of
(a) the name of the offense;
(b) the maximum sentence permitted by law; and
(c) the defendant’s right
(i) to the assistance of an attorney and to a trial;
(ii) (if [MCR 6.610(D)(2)] applies)[43] to an

appointed attorney; and
(iii) to a trial by jury, when required by law.”
This information may be given to the defendant in a writing made part of

the file or by the court on the record. MCR 6.610(D)(1). See SCAO Form
DC 213, Advice of Rights and Plea Information.
At a defendant’s arraignment for a misdemeanor punishable by more

than 92 days’ imprisonment, the district court must ensure that the
accused’s fingerprints have been taken as required by law.44 MCL 764.29;
see also MCR 6.104(E)(6).45
41
This Part discusses the procedures that are specifically applicable to arraignments for misdemeanor
offenses over which the district court has trial jurisdiction. See Section 5.2 for discussion of district court
jurisdiction. See Part D for discussion of procedures specifically applicable to arraignments for felony
offenses and circuit court misdemeanors.
42 See Section 5.2 for discussion of district court jurisdiction.
43
MCR 6.610(D)(2) governs an indigent defendant’s right to appointed counsel when a conviction could
result in imprisonment.
44 See Section 5.8. See also Section 3.11 for more information on fingerprinting and collection of
biometric
data.
45
MCR 6.104(E)(6) is not included in the list of court rules that are expressly applicable to misdemeanors
under MCR 6.001(B).

If an accused first appears before the court in a county other than the one
in which the offense occurred or, if arrested by warrant, in a county not
listed in the arrest warrant, and the accused is not represented by
counsel, the court must advise the accused of certain rights and decide
whether to release the accused before trial.46 MCR 6.104(C).47
5.11 Right To Counsel

A criminal defendant’s right to the assistance of counsel is recognized in
the federal and state constitutions and by statute. US Const, Am VI;
Const 1963, art 1, § 20; MCL 763.1. However, there is no federal or state
constitutional right to appointed counsel when a defendant is charged
with a misdemeanor and no sentence of imprisonment is imposed. People
v Richert (After Remand), 216 Mich App 186, 192-194 (1996).
“When a person charged with having committed a crime appears before

a magistrate without counsel, the person shall be advised of his or her
right to have counsel appointed.” MCL 775.16. “If the person states that
he or she is unable to procure counsel, the magistrate shall appoint
counsel, if the person is eligible for appointed counsel under the
[Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981—
MCL 780.100348].” MCL 775.16. “The indigency determination shall be
made and counsel appointed to provide assistance to the defendant as
soon as the defendant’s liberty is subject to restriction by a magistrate or
judge[; r]epresentation includes but is not limited to the arraignment on
the complaint and warrant.” MIDC Standard 4.49 See also MCR
6.610(D)(1)(c), which requires the district court at arraignment to advise a
46 See Section 5.7(B)(2) and Section 5.7(C)(2) for discussion of applicable procedures when an arrest is
made outside the county in which the offense allegedly occurred.

47 Although MCR 6.104(C) is not included in the list of court rules that are expressly applicable to
48
The MIDCA applies to an indigent defendant who “is being prosecuted or sentenced for a crime for
which an individual may be imprisoned upon conviction, beginning with the defendant’s initial appearance
in court to answer to the criminal charge.” MCL 780.983(f)(i) (defining indigent criminal defense services for
purposes of the MIDCA). The MIDCA requires the trial court to “assure that each criminal defendant is
advised of his or her right to counsel.” MCL 780.991(1)(c). It requires the indigent criminal defense system
to make “[a] preliminary inquiry regarding, and . . . determin[e,] . . . the indigency of any defendant,
including a determination regarding whether a defendant is partially indigent, . . . not later than at the
defendant’s first appearance in court.” MCL 780.991(3)(a). See Chapter 4 for discussion of the MIDCA.
49See
US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co v State of Michigan,
___ Mich App ___, ___ (2018) (although the US Constitution does not require the appointment of counsel
at arraignment, appointment at this juncture is not constitutionally prohibited, and through the MIDCA,
the Michigan Legislature has enacted a protection greater than that secured by the United States
Constitution). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections
greater than those secured under the United States Constitution[.]’” Id. at ___, quoting People v Harris,
499 Mich 332, 338 (2016).

defendant of his or her right to the assistance of counsel and to appointed

counsel under certain circumstances. See Chapter 4 for more information
on a defendant’s right to counsel, including waiver of that right,
determining indigency for purposes of appointing counsel, and
situations involving multiple defendants.
See also MCR 6.610(D)(1)(c), which requires the district court at a

misdemeanor arraignment to advise a defendant of his or her right to the
assistance of counsel and to appointed counsel under certain
circumstances, and MCR 6.005(B),50 which requires the court, under
certain circumstances, to determine whether a defendant is indigent.
5.12 Entering a Plea at Arraignment51

At arraignment, a plea to the charge must be entered after the court has
informed the defendant of the charge as it is stated in the warrant or
complaint:
“At the arraignment of an accused charged with a

misdemeanor or an ordinance violation, the magistrate shall
read to the accused the charge as stated in the warrant or
complaint. The accused shall plead to the charge, and the
plea shall be entered in the court’s minutes. If the accused
refuses to plead, the magistrate shall order that a plea of not
guilty be entered on behalf of the accused.” MCL 774.1a.
With the court’s permission, a defendant may stand mute or plead not
guilty without a “formal” or “in-court” arraignment by filing a written
statement signed by the defendant and any defense attorney of record.
MCR 6.610(D)(4) provides:

guilty or to stand mute without formal arraignment by filing
a written statement signed by the defendant and any defense
attorney of record, reciting the general nature of the charge,
the maximum possible sentence, the rights of the defendant
at arraignment, and the plea to be entered. The court may
require that an appropriate bond be executed and filed and
appropriate and reasonable sureties posted or continued as a
condition precedent to allowing the defendant to be
arraigned without personally appearing before the court.”
50 MCR 6.005(B) is specifically applicable to misdemeanor offenses under MCR 6.001(B).
51 See Chapter 6 for discussion of pleas.

5.13 Pretrial Release

Unless an order has already entered, the court must determine the
conditions of a defendant’s release at the defendant’s arraignment on the
complaint and/or warrant. MCR 6.106(A). A court may not deny pretrial
release to a person charged with a misdemeanor. Const 1963, art 1, § 15;
MCR 6.106(B). For persons charged with misdemeanors, the court must
order the release of the defendant on personal recognizance or an
unsecured appearance bond, or subject to a conditional release, with or
without money bail (10 percent, cash, or surety). MCR 6.106(A)(2)-(3). See
SCAO Form MC 240, Pretrial Release Order. See Chapter 8 for more
information on pretrial release.
5.14 Misdemeanor Traffic Violations and Appearance

Tickets52
A. Beginning a Misdemeanor Traffic Case

A misdemeanor traffic case begins in one of three ways:
• when a law enforcement officer serves an individual with a

written citation for a traffic violation and the citation is
filed in district court, MCR 6.615(A)(1)(a);53
• when a sworn complaint is filed in district court and an

arrest warrant is issued, MCR 6.615(A)(1)(b); or
• when other special procedures authorized by statute are

taken,54 MCR 6.615(A)(1)(c).
A written citation is a summons that commands the offender’s

initial appearance in court to respond to the violation alleged by the
citation. MCR 6.615(A)(2)(a)-(b). A single citation may serve as a
sworn complaint and as the basis for a misdemeanor warrant. MCR
6.615(A)(1)(b). See also MCR 8.125(B).
“A contested case may not be heard until a citation is filed with the
court. If the citation is filed electronically, the court may decline to
hear the matter until the citation is signed by the officer or official
who issued it, and is filed on paper. A citation that is not signed and
filed on paper, when required by the court, may be dismissed with
prejudice.” MCR 6.615(D)(1). See also MCR 8.125(C), which states
52 See the Michigan Judicial Institute’s Traffic Benchbook for more information.
53 “A citation may be filed with the court either on paper or electronically.” MCR 8.125(B).
54 Procedures for citing out-of-state motorists, for example. See the Michigan Judicial Institute’s Traffic
Benchbook for more information.

that “[i]f an electronic citation is contested, the court may decline to

hear the matter until the citation is signed and filed on paper. A
citation that is not signed and filed on paper, when required by the
court, will be dismissed with prejudice.”
B. Arraignment on a Misdemeanor Traffic Citation

A person arrested for a misdemeanor violation of MCL 257.625(1)
(operating while intoxicated), MCL 257.625(3) (operating while
visibly impaired), MCL 257.625(6) (zero tolerance/minor operation),
MCL 257.625(7) (operating while intoxicated or visibly impaired
with a minor in the vehicle), MCL 257.625(8) (operating with any
amount of certain controlled substances in the body), or MCL
257.625m (operating a commercial motor vehicle with an unlawful
blood alcohol content), or for a violation of a local ordinance
substantially corresponding to MCL 257.625(1), MCL 257.625(3),
MCL 257.625(6), MCL 257.625(8), or MCL 257.625m,55 must be
arraigned on the citation, complaint, or warrant within 14 days of
the arrest or service of the warrant. MCL 257.625b(1).
A district court magistrate may conduct arraignments on

misdemeanor traffic violations if the magistrate is so authorized by
statute and by the judges of the district. MCR 6.615(C).56
The consequences for a defendant who fails to appear as required or

to otherwise respond appropriately to any matter pending as a
result of the misdemeanor traffic citation are expressly detailed in
MCR 6.615(B). If the individual who failed to appear is a Michigan
resident, the court:
“(a) must initiate the procedures required by MCL

257.321a[57] for the failure to answer a citation; and
(b) may issue a warrant for the defendant’s arrest.” MCR
6.615(B)(1)(a)-(b). (Emphasis added.)
Note: An arrest warrant may issue without regard to

whether a sworn complaint is filed with the court. See
MCR 6.615(B)(1)(b).
If the individual who failed to appear is not a Michigan resident, the

court may take one or more of the following actions:
55 See the Michigan Judicial Institute’s Traffic Benchbook for detailed information on these offenses.
56 See Section 5.4 for discussion of a district court magistrate’s authority.
57 MCL 257.321a provides for the suspension of an operator’s license.

“(a) the court may mail a notice to appear to the

defendant at the address in the citation;
(b) the court may issue a warrant for the defendant’s

arrest; and
(c) if the court has received the driver’s license of a

nonresident, pursuant to statute, it may retain the
license as allowed by statute. The court need not retain
the license past its expiration date.” MCR 6.615(B)(2)(a)-
(c).
Note: An arrest warrant may issue without regard to

whether a sworn complaint is filed with the court. See
MCR 6.615(B)(2)(b).
Failure to appear as required to answer for a statutory or

substantially corresponding local ordinance violation reportable to
the Secretary of State under MCL 257.732 is a misdemeanor offense
punishable by not more than 93 days’ imprisonment, a $100.00 fine,
or both. MCL 257.321a(1).
C. Conducting Hearings on Contested Cases

A court may not hear a contested case until a citation has been filed
with the court. MCR 6.615(D)(1). Even when a citation is filed
electronically, the court has discretion whether to hear the case or to
decline hearing it until the citation is signed by the issuing officer
and filed on paper. Id. If a court requires a signed paper version of
the citation to be filed and that action is not taken, the case “may be
dismissed with prejudice.” Id.
“A misdemeanor traffic case must be conducted in compliance with

the constitutional and statutory procedures and safeguards
applicable to misdemeanors cognizable by the district court.” MCR
6.615(D)(2).
D. Appearance Tickets
When a police officer makes a warrantless arrest for a misdemeanor
or ordinance violation punishable by a maximum of 93 days in jail, a
fine, or both, the officer may, instead of bringing the accused before
a magistrate and promptly filing a complaint, issue and serve on the
offender an appearance ticket, and release the person from custody.
MCL 764.9c(1).
No sworn complaint is necessary for the magistrate’s acceptance of

an accused’s plea on an appearance ticket issued under MCL 764.9c.
MCL 764.9g(1). If, however, the accused pleads not guilty to the

offense charged in the appearance ticket, a sworn complaint must be

filed with the magistrate to proceed with prosecuting the offender,
id., and no arrest warrant may issue for an offense listed on an
appearance ticket until a sworn complaint is filed, City of Plymouth v
McIntosh, 291 Mich App 152, 162 (2010). “[N]ot all appearance
tickets or citations are considered sworn complaints under the
Michigan Vehicle Code or the Code of Criminal Procedure, and not
every appearance before the magistrate necessarily is preceded by
the issuance of a complaint.” City of Plymouth, 291 Mich App at 162.
“This procedure[] . . . is designed to ensure that, following a plea of
not guilty, until the magistrate has in front of him or her either a
sworn complaint or a citation that takes the place of a sworn
complaint, further proceedings do not occur.” Id. Where an
appearance ticket is issued for a misdemeanor violation and is in the
form of a “Uniform Law Citation” containing the language, “‘I
declare under the penalties of perjury that the statements above are
true to the best of my information, knowledge, and belief[,]’” it
constitutes a sworn complaint under MCL 257.727c, MCL 764.1e,
and MCR 6.615. City of Plymouth, 291 Mich App at 153-154, 154 n 1,
163. A prosecutor is not required to file a second sworn complaint in
order to proceed on a not guilty plea. Id. at 163.
Similarly, a peace officer may issue a written citation to a person

arrested without a warrant for most misdemeanor traffic offenses.
See MCL 257.728(1); MCR 6.615(A)(1)(a). If the officer issues a
citation for a misdemeanor punishable by imprisonment for not
more than 90 days, a magistrate may accept the accused’s plea of
guilty without the filing of a sworn complaint. MCL 257.728e.
However, if the accused pleads not guilty, a sworn complaint must
be filed with the magistrate. Id.
A district court magistrate may accept an accused’s guilty plea

without requiring that a sworn complaint be filed when the offense
charged falls within the district court magistrate’s authority under
MCL 600.8511. MCL 764.9g(2).58
5.15 Violations of the Marine Safety Act59

Unless otherwise indicated, a violation of the Marine Safety Act (MSA),
MCL 324.80101 et seq., is a misdemeanor. MCL 324.80171. A peace officer
who observes a marine law violation or the commission of a crime may
immediately arrest the violator without a warrant, or the officer may
issue the person a written or verbal warning. MCL 324.80166(4). If an
officer has reasonable cause to believe that an individual, at the time of
58 See Section 5.4 for discussion of a district court magistrate’s authority.
59 See the Michigan Judicial Institute’s Recreational Vehicles Benchbook for more information.

his or her involvement in an accident, was operating a vessel in violation

of MCL 324.80176(1), MCL 324.80176(3), MCL 324.80176(4), MCL
324.80176(5), MCL 324.80176(6), or MCL 324.80176(7) (offenses involving
operation of a motorboat while under the influence of alcoholic liquor
and/or a controlled substance, with an unlawful blood alcohol content,
with any amount of certain controlled substances in the body, or while
visibly impaired, or operation by a person less than 21 years of age with
any bodily alcohol content), or a local ordinance corresponding to MCL
324.80176(1), MCL 324.80176(3), or MCL 324.80176(6), the officer may
arrest that individual without a warrant. MCL 324.80180(1).
A. Arraignment After a Warrantless Arrest

If an officer arrests an individual without a warrant for certain MSA
violations (listed below), the individual must be arraigned without
unreasonable delay by a magistrate or judge who
• is within the county where the offense allegedly occurred,
• has jurisdiction of the offense, and
• is nearest or most accessible with reference to the place

where the arrest was made. MCL 324.80167.
MCL 324.80167 provides that MSA offenses requiring immediate

arraignment when the offender is arrested without a warrant are:
• negligent homicide;
• violations of MCL 324.80176(1), MCL 324.80176(3), MCL

324.80176(4), or MCL 324.80176(5) (offenses involving
operation of a motorboat while under the influence of
alcoholic liquor and/or a controlled substance, with an
unlawful blood alcohol content, with any amount of
certain controlled substances in the body, or while visibly
impaired), or violations of local ordinances substantially
corresponding to MCL 324.80176(1) or MCL 324.80176(3);
or
• violations of MCL 324.80147 (reckless operation of a vessel)

or violations of a local ordinance substantially
corresponding to MCL 324.80147. The arresting officer may
issue a written notice to appear in court for a violation of
MCL 324.80147 if it does not appear that releasing the
offender pending the issuance of a warrant would
constitute a public menace. MCL 324.80167(c).

B. Written Notice To Appear After a Warrantless Arrest

If an individual is arrested without a warrant under conditions not
referred to in MCL 324.80167, immediate arraignment is not
required, and the arresting officer must prepare in duplicate a
written notice directing the offender to appear in court. MCL
324.80168(1). The notice must contain the name and address of the
offender, the name of the offense charged, and the time and place
the person must appear in court. Id. If the arrested person demands
arraignment before a magistrate or district court judge, the arresting
officer must take the actions outlined in MCL 324.8016760 in lieu of
issuing the offender a written notice to appear in court. MCL
324.80168(1).
Timing of appearance required by written notice. Unless the

arrestee demands an earlier hearing, the time listed in a written
notice to appear must be within a reasonable time after the arrest.
MCL 324.80168(2).
Place of appearance. The place specified in the notice to appear

must be before a magistrate or district court judge with jurisdiction
of the offense and within the township or county in which the
charged offense allegedly occurred. MCL 324.80168(3).
Methods of appearance. The person to whom a written notice to

appear is issued may make appearance in person, by representation,
or by mail. When an individual appears by representation or by
mail, the magistrate or district judge may accept a plea of guilty or
not guilty for purposes of arraignment just as if the offender had
personally appeared before the court. The magistrate or district
judge may require a person’s appearance before the court by giving
the person five days’ notice of the time and place of his or her
required appearance. MCL 324.80168(4).
5.16 A Crime Victim’s Rights Following Misdemeanor

Arraignment
Article 3 of the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq.,
assigns certain rights and responsibilities to victims of serious
misdemeanors.61 Although many provisions of Article 3 of the CVRA
deal with a law enforcement agency’s or prosecuting attorney’s
60 See Section 5.15(A).
61 Some of the enumerated serious misdemeanors in MCL 780.811(1)(a) are punishable by more than one
year in prison and are therefore cognizable in the circuit court. See the Michigan Judicial Institute’s Crime
Victim Rights Benchbook for a detailed and comprehensive discussion of the Crime Victim’s Rights Act.

obligations, the court may find it helpful to be cognizant of the following

CVRA requirements and procedures as early as the arraignment:
• Identifying information about a crime victim must be

contained in a separate statement. An officer investigating a
serious misdemeanor involving a victim must file with the
complaint, appearance ticket, or traffic citation a separate
written statement containing the name, address, and telephone
number of each victim. MCL 780.812. Victim information is not
a matter of public record, and statutory law exempts it from
disclosure under the Freedom of Information Act (FOIA), MCL
15.231 et seq. MCL 780.812; MCL 780.830.
• Notice required when the defendant pleads guilty or no

contest to a serious misdemeanor. Within 48 hours of
accepting a defendant’s guilty or no contest plea to a serious
misdemeanor, the court must notify the prosecuting attorney of
the plea and the date scheduled for sentencing. MCL
780.816(1). The notice must include the name, address, and
telephone number of the victim. Id.
• Notice required when no plea to a serious misdemeanor is

accepted. Even when no plea is accepted at the arraignment
and further proceedings are expected, the court must notify the
prosecuting attorney of that fact within 48 hours of the
arraignment. MCL 780.816(1).
• Notice requirements in cases involving deferred judgments

or delayed sentences. In all cases, the Department of
Corrections (DOC), the Department of Health and Human
Services (DHHS), a county sheriff, or a prosecuting attorney
must provide notice to a victim if the case against the
defendant is resolved by assignment of the defendant to trainee
status, by a delayed sentence or deferred judgment of guilt, or
in another way that is not an acquittal or unconditional
dismissal. In performing this duty, the court, DOC, DHHS,
county sheriff, or prosecuting attorney may furnish
information or records to the victim that would otherwise be
closed to public inspection, including information or records
related to a defendant’s youthful trainee status. Additional
notice requirements may apply if the offender is admitted to a
specialized treatment court. MCL 780.752a; MCL 780.781a;
MCL 780.811b.62
62
See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 10, for discussion
of deferment and delayed sentencing, including specialized treatment courts.

• Prosecutor’s obligation to notify the crime victim. Within 48

hours after receiving notice from the court that at arraignment,
a defendant pleaded guilty or no contest to a serious
misdemeanor, or that no plea was accepted, the prosecutor
must give the crime victim written notice of the statutory rights
specified in MCL 780.816(1)(a)-(f).
• Victim impact statements (written). The court may order the

preparation of a presentence investigation report (PSIR) in any
criminal misdemeanor case. MCL 771.14(1). If a crime victim
requests, a written impact statement must be included in the
PSIR if one is prepared. MCL 771.14(2)(b). In juvenile
delinquency, designated, and serious misdemeanor cases, the
victim also has the right to submit an oral or written impact
statement if a disposition report or PSIR is prepared. MCL
780.792(1); MCL 780.792(3); MCL 780.824. If no PSIR is
prepared in a “serious misdemeanor” or designated case
involving a misdemeanor, the court must “notify the
prosecuting attorney of the date and time of sentencing at least
10 days prior to the [disposition or] sentencing[,]” and the
victim may submit a written impact statement to the
prosecutor or court. MCL 780.792(2)-(3); MCL 780.825(1).
• Victim impact statements (oral). A crime victim has the right

to appear and make an oral impact statement at the sentencing
of the defendant irrespective of whether a presentence report is
prepared. MCL 780.825(1). A crime victim also has the right to
appear and make an oral impact statement at a juvenile’s
disposition or sentencing. MCL 780.793(1). The defendant or
juvenile must be physically present in the courtroom at the
time a victim makes an oral impact statement, unless the court
has determined, in its discretion, that the defendant or juvenile
is behaving in a disruptive manner or presents a threat to the
safety of any individuals in the courtroom. MCL 780.793(3);
MCL 780.825(2). The court may consider any relevant
statement provided by the victim regarding the defendant
being physically present during the victim’s oral impact
statement when making its determination. MCL 780.793(3);
MCL 780.825(2).
• Restitution is required of any defendant convicted of a

misdemeanor punishable by not more than one year. Full
restitution is not limited to serious misdemeanor convictions.
At sentencing for a misdemeanor punishable by imprisonment
for one year or less, the court must order the defendant to
“make full restitution to any victim of the defendant’s course of
conduct that gives rise to the conviction[.]” MCL 780.826(2).

Part D: Procedures Specific to Felony Arraignments63
5.17 Procedure Required for Felony Arraignments in

District Court
MCR 6.610(H) specifies the procedure to be employed by a district court
when a defendant first appears in district court for arraignment on an
offense over which the circuit court has trial jurisdiction. MCR 6.104(E)
also applies to matters of arraignment procedure involving offenses over
which the circuit court has trial jurisdiction.
When a defendant is arraigned on a felony charge or a misdemeanor

charge punishable by more than one year of imprisonment,64 the court
must:
• “inform the accused of the nature of the offense charged, and

its maximum possible prison sentence and any mandatory
minimum sentence required by law[,]” MCR 6.104(E)(1); see
also MCR 6.610(H)(1);
• if the defendant is not represented by counsel, inform the

defendant of the right to be represented by an attorney, MCR
6.610(H)(2)(b);65
• if the accused is not represented by counsel, advise the accused

that he or she has a right to remain silent, that anything said
orally or in writing can be used against him or her in court, that
he or she is entitled to have an attorney present during any
questioning consented to, and that the court will appoint an
attorney to represent the accused if he or she cannot afford to
hire one, MCL 775.16; MCL 780.991(1)(c)66; MCR 6.104(E)(2)(a)-
(d); MCR 6.610(H)(2)(c);
63 This Part discusses the procedures that are specifically applicable to arraignments for felony offenses
and misdemeanor offenses over which the circuit court has trial jurisdiction. See Section 5.2 for discussion
of district court jurisdiction. See Part C for discussion of procedures specifically applicable to misdemeanor
arraignments. See Chapter 7 for discussion of post-bindover (circuit court) arraignments.
64
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., applies to an indigent
defendant who “is being prosecuted or sentenced for a crime for which an individual may be imprisoned
upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal
charge.” MCL 780.983(f)(i) (defining indigent criminal defense services for purposes of the MIDCA)
(emphasis supplied). Therefore, the requirements of the MIDCA concerning advice of the right to counsel
and appointment of counsel apply whenever imprisonment of any length of time is a potential penalty. See
Chapter 4 for discussion of the MIDCA.
65 See Section 5.19 for more information on advising a defendant of the right to counsel at a felony
arraignment.

• advise the accused of his or her right to be represented by an

attorney at all subsequent proceedings, and, if appropriate,
appoint a lawyer, MCR 6.104(E)(3);
• inform the defendant of the right to a preliminary examination,

MCR 6.610(H)(2)(a);
• set a date for a probable cause conference to be held not less

than 7 days or more than 14 days after the date of the
arraignment, MCL 766.4(1); MCR 6.104(E)(4)67;
• schedule a preliminary examination for a date not less than 5

days or more than 7 days68 after the date of the probable cause
conference, MCL 766.4(1); MCR 6.104(E)(4);
• if an unrepresented defendant waives the preliminary

examination at arraignment, before accepting the waiver the
court must determine that the waiver is given freely,
understandingly, and voluntarily, MCR 6.610(H)69;
• inform the defendant of the right to consideration of pretrial

release, MCR 6.610(H)(2)(d);
• determine whether pretrial release is appropriate and, if so,

what form of pretrial release is proper, MCR 6.104(E)(5); and
• “ensure that the accused has been fingerprinted as required by

law[,]” MCR 6.104(E)(6); see also MCL 764.29.70
66
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., applies to an indigent
defendant who “is being prosecuted or sentenced for a crime for which an individual may be imprisoned
upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal
charge.” MCL 780.983(f)(i) (defining indigent criminal defense services for purposes of the MIDCA)
(emphasis supplied). Therefore, the requirements of the MIDCA concerning advice of the right to counsel
and appointment of counsel apply whenever imprisonment of any length of time is a potential penalty. See
Chapter 4 for discussion of the MIDCA.
67 The
prosecuting attorney and defense counsel may agree to waive the probable cause conference. MCL
766.4(2); see also MCR 6.110(A). See Chapter 7 for discussion of scheduling the probable cause conference
and preliminary examination.
68 “The parties, with
the approval of the court, may agree to schedule the preliminary examination earlier
than 5 days after the [probable cause] conference.” MCL 766.4(4). Additionally, under certain
circumstances, the prosecuting attorney may request that the preliminary examination “commence
immediately for the sole purpose of taking and preserving the testimony of a victim if the victim is
present.” Id.; see also MCR 6.110(B)(2) (adding that “the defendant [must either be] present in the
courtroom or [have] waived the right to be present[]”). See Chapter 7 for discussion of scheduling the
probable cause conference and preliminary examination.
69
“The defendant may waive the preliminary examination with the consent of the prosecuting attorney.”
MCL 766.7 (emphasis supplied); MCR 6.110(A); see also MCL 766.4(4).
70 See Section 3.11 for more information on fingerprinting and collection of biometric data.

If an accused first appears before the court in a county other than the one
in which the offense occurred or, if arrested by warrant, in a county not
listed in the arrest warrant, and the accused is not represented by
counsel, the court must advise the accused of certain rights and decide
whether to release the accused before trial.71 MCR 6.104(C).
The court conducting an accused’s arraignment on a circuit court offense

is prohibited from “question[ing] the accused about the alleged offense
or request[ing] that the accused enter a plea.” MCR 6.104(E).
5.18 Pretrial Release

Except as otherwise provided by law, an individual charged with a
criminal offense is entitled to bail. MCL 765.6(1); Const 1963, art 1, § 15;
MCR 6.106(A). A defendant arraigned in district court for a felony or
misdemeanor not cognizable by the district court must be informed of his
or her right to consideration of pretrial release. MCR 6.610(H)(2)(d). In
addition, when a defendant is arraigned before a court in the same
county in which the offense allegedly occurred, or before the court
specified in the complaint or warrant if the defendant was arrested by
warrant, the district court must determine whether pretrial release is
appropriate and, if so, the court must tailor any conditions of the
defendant’s pretrial release to the circumstances of the offense and the
offender. MCR 6.104(C); MCR 6.104(E)(5).
In general, where the defendant is preliminarily arraigned, “either in

person or by way of two-way interactive video technology,” before a
court in a county other than the county in which the offense occurred, the
court must obtain a recognizance from the accused indicating that he or
she will appear within the next 14 days before a court specified in the
warrant or, in the case of a warrantless arrest, before a court in the
judicial district where the offense occurred, or before another designated
court. MCR 6.104(C). After receiving the accused’s recognizance, the
court must certify the recognizance and deliver it to the appropriate court
“without delay[.]” Id. If the accused is not released, he or she must be
promptly transported to the judicial district of the offense. Id. “In all
cases, the arraignment is then to continue under [MCR 6.104](D), if
applicable, and [MCR 6.104](E) either in the judicial district of the alleged
offense or in such court as otherwise is designated.” MCR 6.104(C).
See Chapter 8 for more information on pretrial release.
71 See Section 5.7(B)(2) and Section 5.7(C)(2) for discussion of applicable procedures when an arrest is
made outside the county in which the offense allegedly occurred.

5.19 Advice of Right to Counsel at Felony Arraignments72

“[T]he right to counsel attaches at the initial appearance before a judicial
officer[.]” Rothgery v Gillespie Co, 554 US 191, 199 (2008) (citations
omitted). Whether the prosecutor was involved in or aware of the initial
proceeding is irrelevant in determining when a defendant’s right to
counsel has attached. Id. at 198-199. In Rothgery, despite several requests,
the defendant was denied the appointment of counsel for six months
after his initial appearance. Id. at 195-197. The lower courts concluded
that this delay did not interfere with the defendant’s right to counsel
because the prosecutor was neither aware of the arrest nor present at the
initial hearing. Id. at 197-198. The United States Supreme Court disagreed
and stated:
“[A] criminal defendant’s initial appearance before a judicial

officer, where he [or she] learns the charge against him [or
her] and his [or her] liberty is subject to restriction, marks the
start of adversary judicial proceedings that trigger
attachment of the Sixth Amendment right to counsel.” Id. at
213.
The Court declined to decide whether the six-month delay prejudiced the
defendant’s Sixth Amendment rights. The Court simply reaffirmed its
longstanding position that attachment of the right to counsel begins at
the first formal proceeding. Rothgery, 554 US at 213.
When an unrepresented defendant is arraigned in district court for an

offense over which the district court does not have trial jurisdiction, the
court must inform the defendant of his or her right to the assistance of
counsel and to appointed counsel if he or she is indigent. MCR
6.610(H)(2)(b)-(c).
“When a person charged with having committed a crime appears before

a magistrate without counsel, the person shall be advised of his or her
right to have counsel appointed.” MCL 775.16. “If the person states that
he or she is unable to procure counsel, the magistrate shall appoint
counsel, if the person is eligible for appointed counsel under the
[Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981—
MCL 780.100373].” MCL 775.16.
72 SeeChapter 4 for more information on a defendant’s right to counsel.
73

In addition, two different court rules address the court’s responsibility, at

a defendant’s arraignment on the warrant or complaint, to advise a
defendant of his or her right to counsel. MCR 6.005(A); MCR 6.104(E).74
MCR 6.005(A)(1) requires the court, at a defendant’s arraignment on the

warrant or complaint, to advise the defendant of his or her right to the
assistance of counsel at all subsequent court proceedings. In addition, at
a defendant’s arraignment on the warrant or complaint, the court must
inform the defendant of the right to appointed counsel at public expense
if he or she wants an attorney and cannot afford to retain one. MCR
6.005(A)(2). Whether a defendant wishes an attorney’s assistance and
whether he or she is financially unable to retain an attorney are matters
the court must determine by questioning the defendant.75 MCR
6.005(A).76
“Court rules providing for advising a defendant concerning his right to

counsel at subsequent court proceedings . . . do not conflict with the
language of [MIDC] Standard 4[77] providing for representation at the
arraignment.” Oakland Co v State of Michigan, ___ Mich App ___, ___
(2018) (additionally holding that although the US Constitution does not
require the appointment of counsel at arraignment, appointment at this
juncture is not constitutionally prohibited, and through the MIDCA, the
Michigan Legislature has enacted a protection greater than that secured
by the United States Constitution).
MCR 6.104(E)(2) requires a court to convey specific information to a

defendant at arraignment “if the accused is not represented by a lawyer at the
arraignment[.]” (Emphasis added.) If the defendant is not represented by
counsel at arraignment, the court must advise the defendant that he or
she is entitled to have an attorney present during any questioning to
which the defendant has consented and that the court will appoint an
attorney to represent the defendant if he or she is indigent.78 MCR
6.104(E)(2)(c)-(d). See also MCL 775.16 (“[w]hen a person charged with
having committed a crime appears before a magistrate without counsel,
the person shall be advised of his or her right to have counsel
appointed[,]” and the magistrate must appoint counsel if required under
the MIDCA).79
MCR 6.104(E)(3) further requires the court to advise a defendant at

arraignment (whether or not represented by an attorney at the time) that
74 See Section 5.17 for more information on the court’s responsibility at arraignment.
75 See Chapter 4 for more information on right to counsel, waiver of that right, and determining indigency.
76
MCR 6.005(A) has not yet been amended following the enactment of the Michigan Indigent Defense
Commission Act (MIDCA), MCL 780.981 et seq. See Chapter 4 for discussion of the MIDCA.
78 See Chapter 4 for information on appointed counsel.

he or she has the right to be represented by an attorney at all subsequent

proceedings; if appropriate, the court must appoint counsel for the
defendant. Additionally, because “the negotiation of a plea bargain . . . is
almost always the critical point for a defendant, . . . criminal defendants
require effective counsel during plea negotiations” even though they
occur out of court and the prosecutor may have little or no notice of a
deficiency in defense counsel’s conduct. Missouri v Frye, 566 US 134, 138,
144 (2012).80 In order to assist any later review of defense counsel’s
effectiveness, any party may choose to make any formal plea offers a
matter of record at any plea proceeding or before a trial on the merits.
Frye, 566 US at 142, 146.81
5.20 Scheduling the Probable Cause Conference and

Preliminary Examination82
Unless waived by agreement of the parties,83 the court at a felony
arraignment must schedule a probable cause conference.84 MCL 766.4(1);
MCL 766.4(2); MCR 6.104(E)(4); MCR 6.108(A). Additionally, adult
defendants charged with a felony offense or a misdemeanor offense
punishable by more than one year of imprisonment are statutorily
entitled to a prompt, fair, and impartial examination, MCL 766.1, which,
unless waived by the defendant with the consent of the prosecuting
attorney,85 must also be scheduled at arraignment, MCL 766.4(1); MCL
766.7; MCR 6.104(E)(4).
MCL 766.4(1) provides, in relevant part:
79
80 “[A]s held
by every . . . [federal circuit court of appeals] to consider the issue, . . . Frye[, 566 US 134, did
not] . . . create[] a ‘new rule of constitutional law’ made retroactive to cases on collateral review by the
[United States] Supreme Court.” In re Liddell, 722 F3d 737, 738-739 (CA 6, 2013), quoting 28 USC
2255(h)(2). Note that, although persuasive, Michigan state courts “are not . . . bound by the decisions of
lower federal courts[.]” People v Gillam (Willie), 479 Mich 253, 261 (2007).
82 See Chapter 7 for discussion of probable cause conferences and preliminary examinations.
83 MCL 766.4(2) provides:
“The probable cause conference may be waived by agreement between the prosecuting
attorney and the attorney for the defendant. The parties shall notify the court of the
waiver agreement and whether the parties will be conducting a preliminary examination,
waiving the examination, or entering a plea.”

“Except as provided in . . . MCL 712A.4,[86] the magistrate

before whom any person is arraigned on a charge of having
committed a felony shall set a date for a probable cause
conference to be held not less than 7 days or more than 14
days after the date of the arraignment, and a date for a
preliminary examination of not less than 5 days or more than
7 days after the date of the probable cause conference. The
dates for the probable cause conference and preliminary
examination shall be set at the time of arraignment.”
However, “[t]he parties, with the approval of the court, may agree to
schedule the preliminary examination earlier than 5 days after the
conference.” MCL 766.4(4). Additionally, “[u]pon the request of the
prosecuting attorney, . . . the preliminary examination shall commence
immediately for the sole purpose of taking and preserving the testimony
of a victim if the victim is present.” Id.; see also MCR 6.110(B)(2) (adding
that “the defendant [must either be] present in the courtroom or [have]
waived the right to be present[]”).87
MCR 1.108(1) governs the method of computing the relevant time

periods under MCL 766.4:
“The day of the act, event, or default after which the

designated period of time begins to run is not included. The
last day of the period is included, unless it is a Saturday,
Sunday, legal holiday, or day on which the court is closed
pursuant to court order; in that event the period runs until
the end of the next day that is not a Saturday, Sunday, legal
holiday, or day on which the court is closed pursuant to court
order.”
84
District court magistrates have jurisdiction “[t]o conduct probable cause conferences and all matters
allowed at the probable cause conference, except for the taking of pleas and sentencings, under . . . MCL
766.4, when authorized to do so by the chief district court judge.” MCL 600.8511(h).
85
“The defendant may waive the preliminary examination with the consent of the prosecuting attorney.”
MCL 766.7; MCR 6.110(A). See also MCL 767.42(1), which states in part:
“If any person waives his [or her] statutory right to a preliminary examination without
having had the benefit of counsel at the time and place of the waiver, upon proper and
timely application by the person or his [or her] counsel, before trial or plea of guilty, the
court having jurisdiction of the cause, in its discretion, may remand the case to a
magistrate for a preliminary examination.”
86
MCL 712A.4 governs traditional waiver of Family Division jurisdiction over a juvenile between the ages
of 14 and 17 who is accused of an act that if committed by an adult would be a felony. For discussion of
traditional waiver proceedings, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 14.
87
See Chapter 7 for discussion of the immediate commencement of the preliminary examination for
purposes of taking a victim’s testimony.

5.21 Juvenile Proceedings in District Court
A. Arraignments in “Automatic Waiver” Cases

Where a specified juvenile violation is alleged, the automatic waiver
procedure allows a prosecuting attorney to vest jurisdiction in the
Criminal Division of the circuit court by filing a complaint and
warrant in district court rather than filing a petition in the Family
Division of Circuit Court. See MCL 600.606(1), MCL 764.1f(1), and
MCL 712A.2(a)(1).88
Subchapter 6.900 of the Michigan Court Rules is dedicated to

automatic waiver cases. See MCR 6.001(C). MCR 6.901(B) defines
the scope of these rules:
“The rules apply to criminal proceedings in the district

court and the circuit court concerning a juvenile against
whom the prosecuting attorney has authorized the
filing of a criminal complaint charging a specified
juvenile violation instead of approving the filing of a
petition in the family division of the circuit court. The
rules do not apply to a person charged solely with an
offense in which the family division has waived
jurisdiction pursuant to MCL 712A.4 [‘traditional
waiver’ procedure].”
MCL 764.27 states that “[e]xcept as provided in [MCL 600.606],” a

person under 17 years of age arrested with or without a warrant
must be taken immediately before the Family Division of Circuit
Court. The automatic waiver provision of MCL 600.606 (§ 606)
operates as an exception to MCL 764.27’s mandate that a juvenile
first be taken before a Family Division court after his or her arrest.
People v Brooks (Miguel), 184 Mich App 793, 797-798 (1990). In Brooks
(Miguel), 184 Mich App at 794-795, the trial court suppressed a
juvenile defendant’s statement to police because the juvenile was
not “taken immediately before the family division of the circuit
court” as required by MCL 764.27. In reversing the trial court’s
decision, the Court of Appeals explained:
“[T]he Legislature intended that those juveniles charged

as adult offenders pursuant to § 606 fall outside of the
juvenile court’s jurisdiction. Because § 606 divests the
juvenile court of jurisdiction and gives the circuit court
original jurisdiction in the matter, the mandatory
provisions set forth in [MCL 764.27] do not apply to
88 See the Michigan Judicial Institute’s Juvenile Justice Benchbook for more information.

those juveniles charged as adult offenders.” Brooks

(Miguel), 184 Mich App at 798.
B. Procedure Required for Juvenile Arraignments in

District Court
MCR 6.907 specifies the procedure for conducting juvenile
arraignments in district court. Specific time limitations apply to
juvenile arraignments when the prosecutor has decided to proceed
against the juvenile by complaint and warrant for the juvenile’s
alleged commission of a specified juvenile violation. MCR 6.907(A)
provides:
“Time. When the prosecuting attorney authorizes the

filing of a complaint and warrant charging a juvenile
with a specified juvenile violation instead of approving
the filing of a petition in the family division of the
circuit court, the juvenile in custody must be taken to
the magistrate for arraignment on the charge. The
prosecuting attorney must make a good-faith effort to
notify the parent of the juvenile of the arraignment. The
juvenile must be released if arraignment has not
commenced:
(1) within 24 hours of the arrest of the juvenile; or
(2) within 24 hours after the prosecuting attorney

authorized the complaint and warrant during
special adjournment pursuant to MCR 3.935(A)(3),
provided the juvenile is being detained in a
juvenile facility.”
Note: MCR 3.935(A)(3), the special adjournment

provision referred to above, requires the Family
Division of Circuit Court, upon the prosecuting
attorney’s request, to adjourn a preliminary hearing in a
delinquency proceeding for up to five days to allow the
prosecutor to decide whether to proceed under the
automatic waiver statutes.89
At a juvenile’s arraignment on the complaint and warrant charging

him or her with a specified juvenile violation, the court must first
determine whether the juvenile is accompanied by a parent,
guardian, or adult relative. MCR 6.907(C)(1). The court may conduct
a juvenile’s arraignment in the absence of the juvenile’s parent,
guardian, or adult relative, as long as the court has appointed an
89 See
the Michigan Judicial Institute’s Juvenile Justice Benchbook for more information.

attorney to appear with the juvenile at arraignment or an attorney

retained by the juvenile appears with him or her at arraignment.
Id.90
Note: The Michigan Indigent Defense Commission Act

(MIDCA), MCL 780.981 et seq., requires the court to
advise the juvenile of the right to counsel and requires
that the juvenile be screened for eligibility for appointed
counsel, MCL 780.991(1)(c), and requires that a
determination of indigency be made by the indigent
criminal defense system “not later than at the
[juvenile’s] first appearance in court[,]” MCL
780.991(3)(a).91 See also MCL 775.16. See Chapter 17 of
the Michigan Judicial Institute’s Juvenile Justice
Benchbook for discussion of the MIDCA as it applies to
juveniles.
C. Juvenile Pretrial Release

MCR 6.909 governs the release or detention of juveniles pending
trial and other court proceedings.92
Bail. Except when bail may be denied, the court must advise a
juvenile defendant of the right to bail as it would for adults accused
of bailable criminal offenses. MCR 6.909(A)(1). The court may order
a juvenile released to a parent or guardian and impose any lawful
conditions on the juvenile’s release, including the condition that bail
be posted. Id.
Detention without bail. MCR 6.909(A)(2) specifies the

circumstances in which a juvenile may be denied bail:
90 MCL 766.4 previously provided that the preliminary examination was to be scheduled for a date “not
exceeding 14 days after the arraignment.” Effective May 20, 2014, and applicable to cases in which the
defendant is arraigned in district court on or after January 1, 2015, 2014 PA 123 amended MCL 766.4 to
require the court, at arraignment for a felony charge, to schedule “a probable cause conference to be held
not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary
examination to be held “not less than 5 days or more than 7 days after the date of the probable cause
conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
Under MCR 6.907(C)(2), a juvenile’s preliminary examination must be scheduled within 14 days of the
juvenile’s arraignment, and under the special adjournment provision of MCR 3.935(A)(3), this 14-day
period may be reduced by as many as three days for time given and used by the prosecutor. Furthermore,
MCR 6.911(A) provides that a juvenile may waive his or her right to a preliminary examination if the
juvenile is represented by an attorney and makes a written waiver of the right in open court. These court
rules have not been amended to reflect the statutory changes adopted by 2014 PA 123.
91
The MIDCA applies to “[a]n individual less than 17 years of age at the time of the commission of a
felony” if “[t]he prosecuting attorney authorizes the filing of a complaint and warrant for a specified
juvenile violation under . . . MCL 764.1f.” MCL 780.983(a)(ii)(D).
92 See the Michigan Judicial Institute’s
Juvenile Justice Benchbook for detailed information.

“If the proof is evident or if the presumption is great

that the juvenile committed the offense, the magistrate
or the court may deny bail:
(a) to a juvenile charged with first-degree murder,

second-degree murder, or
(b) to a juvenile charged with first-degree criminal

sexual conduct, or armed robbery,
(i) who is likely to flee, or
(ii) who clearly presents a danger to others.”
Juvenile’s place of confinement during detention without bail.

Generally, a juvenile charged with a crime and not released while
awaiting trial or sentencing must be placed in a juvenile facility.
MCR 6.909(B)(1). However, on motion of the prosecuting attorney
or the superintendent of the juvenile facility where a juvenile is
detained, the court may order that the juvenile be lodged in a
facility used to incarcerate adult prisoners if the juvenile’s conduct is
a menace to other juveniles or if “the juvenile may not otherwise be
safely detained in a juvenile facility.” MCR 6.909(B)(2)(a)-(b).
A juvenile must not be placed in an institution operated by the

family division of the circuit court unless the family division
consents to the placement or the circuit court orders the placement.
MCR 6.909(B)(3). A juvenile in custody or otherwise detained must
be maintained separately from adult prisoners or defendants
pursuant to MCL 764.27a. MCR 6.909(B)(4).
5.22 A Crime Victim’s Rights Following Felony

Arraignment93
Article 1 of the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq.,
assigns certain rights and responsibilities to victims of felonies. Although
most provisions of the CVRA deal with a law enforcement agency’s
obligations, the court may find it helpful to be cognizant of the following
CVRA requirements and procedures as early as the arraignment.
• Identifying information about and visual representations of a

crime victim are protected. MCL 780.758(2) provides that a
victim’s home and work addresses and telephone numbers
93
See Section 5.16 for discussion of application of the Crime Victim’s Rights Act (CVRA) to serious
misdemeanors, some of which are punishable by more than one year in prison and are therefore
cognizable in the circuit court. See the Michigan Judicial Institute’s Crime Victim Rights Benchbook for a
detailed and comprehensive discussion of the Crime Victim’s Rights Act.

must not be in the court file or “ordinary” court documents

unless they are contained in a trial transcript or are used to
identify the place of a crime. In addition, any visual
representations of the victim, as well as the following
information are exempt from disclosure under the Freedom of
Information Act (FOIA), MCL 15.231 et seq.:
“(a) The home address, home telephone number, work

address, and work telephone number of the victim unless the
address is used to identify the place of the crime.
(b) A picture, photograph, drawing, or other visual

representation, including any film, videotape, or digitally
stored image of the victim.
(c) The following information concerning a victim of child

abuse, criminal sexual conduct, assault with intent to commit
criminal sexual conduct, or a similar crime who was less than
18 years of age when the crime was committed:
(i) The victim’s name and address.
(ii) The name and address of an immediate family

member or relative of the victim, who has the same
surname as the victim, other than the name and address
of the accused.
(iii) Any other information that would tend to reveal the

identity of the victim, including a reference to the
victim’s familial or other relationship to the accused.”
MCL 780.758(3).
• Notice required when the defendant is available for pretrial

release. Within 24 hours of a felony defendant’s arraignment,
the investigating law enforcement agency must notify the
victim “of the availability of pretrial release for the
defendant[.]” MCL 780.755(1). The notice must include the
sheriff’s or juvenile facility’s telephone number and must
inform the crime victim that he or she may contact the sheriff or
juvenile facility to find out whether the defendant was released
from police custody. Id. If a victim has requested notification of
a defendant’s arrest or release under MCL 780.753, the
investigating law enforcement agency must promptly notify
the victim of these events. MCL 780.755(1).
• Notice requirements in cases involving deferred judgments

or delayed sentences. In all cases, the department of
corrections (DOC), the department of health and human
services (DHHS), a county sheriff, or a prosecuting attorney
must provide notice to a victim if the case against the
defendant is resolved by assignment of the defendant to trainee

status, by a delayed sentence or deferred judgment of guilt, or
in another way that is not an acquittal or unconditional
dismissal. In performing this duty, the court, DOC, DHHS,
county sheriff, or prosecuting attorney may furnish
information or records to the victim that would otherwise be
closed to public inspection, including information or records
related to a defendant’s youthful trainee status. MCL 780.752a;
MCL 780.781a; MCL 780.811b.
• Notice requirements prior to the defendant’s admission to

drug treatment court.94 Circuit and district courts are
authorized to institute or adopt a drug treatment court.95 MCL
600.1062(1). Family divisions are also authorized to institute or
adopt a drug treatment court for juveniles. MCL 600.1062(2). If
an offender is admitted to a drug treatment court, adjudication
of his or her crime may be deferred. MCL 600.1070(1)(a)-(c). A
crime victim and others must be permitted to submit a written
statement to the court prior to an offender’s admission to drug
treatment court. MCL 600.1068(4) provides:
“In addition to rights accorded a victim under the

[CVRA], . . . MCL 780.751 to [MCL] 780.834, the drug
treatment court must permit any victim of the offense or
offenses of which the individual is charged, any victim of a
prior offense of which that individual was convicted, and
members of the community in which either the offenses were
committed or in which the defendant resides to submit a
written statement to the court regarding the advisability of
admitting the individual into the drug treatment court.”
Note: Subject to the agreement of the defendant, the

defendant’s attorney, the prosecutor, the judge of the
transferring court, the judge of the receiving court, and
the prosecutor of the receiving drug treatment court’s
funding unit, a drug treatment court may accept
participants from any other jurisdiction based on the
participant’s residence or the unavailability of a drug
94
of drug treatment courts.
95 A drug treatment court, or a circuit or district court seeking to adopt or institute a drug treatment court,
must be certified by the State Court Administrative Office. MCL 600.1062(5). A case may be completely
transferred from a court of original jurisdiction to a drug treatment court, prior to or after adjudication, if
those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting
attorney from each court, and the defendant—have executed a memorandum of understanding as
provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of understanding
provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant until final
disposition of the case, but not longer than the probation period established under MCL 771.2. MCL
600.1070(2).

treatment court in the jurisdiction where the participant

is charged. MCL 600.1062(4).

veterans treatment court.96 Circuit and district courts are
authorized to adopt or institute a veterans treatment court.97
MCL 600.1201(2). If an offender is admitted to a veterans
treatment court, adjudication of his or her crime may be
deferred. MCL 600.1206(1)(c). Crime victims and community
members must be permitted to submit written statements to
the veterans treatment court prior to an offender’s admission to
that court. MCL 600.1205(4) provides:

[CVRA], . . . MCL 780.751 to [MCL] 780.834, the
veterans treatment court shall permit any victim of the
offense or offenses of which the individual is charged,
any victim of a prior offense of which that individual
was convicted, and members of the community in
which the offenses were committed or in which the
defendant resides to submit a written statement to the
court regarding the advisability of admitting the
individual into the veterans treatment court.”
A participant in veterans treatment court must “[p]ay all

crime victims’ rights assessments under . . . MCL 780.905.”
MCL 600.1208(1)(d).
Note: Subject to the agreement of the defendant, the

defendant’s attorney, the prosecutor, the judge of the
transferring court, the judge of the receiving veterans
treatment court, and the prosecutor of the receiving
veterans treatment court’s funding unit, a veterans
treatment court may accept participants from any other
jurisdiction in the state based on either the participant’s
residence in the receiving jurisdiction or the
unavailability of a veterans treatment court in the
96
of veterans treatment courts.
97
A veterans treatment court, or a circuit or district court seeking to adopt or institute a veterans
treatment court, must be certified by the State Court Administrative Office. MCL 600.1201(5). A case may
be completely transferred from a court of original jurisdiction to a veterans treatment court, prior to or
after adjudication, if those courts—with the approval of the chief judge and assigned judge of each court,
a prosecuting attorney from each court, and the defendant—have executed a memorandum of
understanding as provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of
understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over the
participant until final disposition of the case, but not longer than the probation period established under
MCL 771.2. MCL 600.1206(2).

jurisdiction in which the participant is charged. MCL

600.1201(4).

mental health court.98 Circuit and district courts are
authorized to adopt or institute a mental health court. MCL
600.1091(1).99 If an offender is admitted to a mental health
court, he or she may be entitled to discharge and dismissal of
the proceedings. MCL 600.1098(2)-(5). Crime victims must be
permitted to submit written statements to the mental health
court prior to an offender’s admission to that court. MCL
600.1094(4) provides:

[CVRA], . . . MCL 780.751 to [MCL] 780.834, the mental
health court shall permit any victim of the offense or
offenses of which the individual is charged as well as
any victim of a prior offense of which that individual
was convicted to submit a written statement to the court
regarding the advisability of admitting the individual
into the mental health court.”
Note: The court may, but is not required to, “accept

participants from any other jurisdiction in [the]
state based upon the residence of the participant in
the receiving jurisdiction, the nonavailability of a
mental health court in the jurisdiction where the
participant is charged, and the availability of
financial resources for both operations of the
mental health court program and treatment
services.” MCL 600.1091(2).
• Notice requirements prior to the juvenile’s admission to

juvenile mental health court.100 The family division of a
circuit court is authorized to adopt or institute a juvenile
mental health court. MCL 600.1099c(1).101 If a juvenile is
98
of mental health courts.
99
A mental health court, or a circuit or district court seeking to adopt or institute a mental health court,
must be certified by the State Court Administrative Office. MCL 600.1091(4). A case may be completely
transferred from a court of original jurisdiction to a mental health court, prior to or after adjudication, if
those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting
attorney from each court, and the defendant—have executed a memorandum of understanding as
provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of understanding
provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant until final
disposition of the case, but not longer than the probation period established under MCL 771.2. MCL
600.1095(2).
100 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 10, for discussion
of mental health courts.

admitted to a juvenile mental health court, he or she may be

entitled to discharge and dismissal of the proceedings. MCL
600.1099k(2)-(3). Crime victims must be permitted to submit
written statements to the juvenile mental health court prior to a
juvenile’s admission to that court. MCL 600.1099g provides:

[CVRA], . . . MCL 780.751 to [MCL] 780.834, the juvenile
mental health court shall permit any victim of the
offense or offenses for which the juvenile has been
petitioned to submit a written statement to the court
regarding the advisability of admitting the juvenile into
the juvenile mental health court.”
Note: The court may, but is not required to, “accept

participants from any other jurisdiction in [the]
state based upon the residence of the participant in
the receiving jurisdiction. MCL 600.1099c(2).
• Victim impact statements (written). The court must order the

preparation of a presentence investigation report (PSIR) in any
criminal felony case. MCL 771.14(1). If a crime victim requests,
a written impact statement must be included in the PSIR if one
is prepared. MCL 771.14(2)(b); MCL 780.764. In juvenile
delinquency, designated, and serious misdemeanor cases, the
victim also has the right to submit a written impact statement if
a disposition report or PSIR is prepared. MCL 780.792(1); MCL
780.792(3). If no PSIR is prepared in a designated case
involving a misdemeanor, the court must “notify the
prosecuting attorney of the date and time of sentencing at least
10 days prior to the [disposition or] sentencing[,]” and the
victim may submit a written impact statement to the
prosecutor or court. MCL 780.792(2)-(3).
• Victim impact statements (oral). A crime victim has the right

to appear and make an oral impact statement at the sentencing
of the defendant or at the disposition or sentencing of the
101
A juvenile mental health court, or a family division of circuit court seeking to adopt or institute a
juvenile mental health court, must be certified by the State Court Administrative Office. MCL 600.1099c(4).
A case may be completely transferred from a court of original jurisdiction to a juvenile mental health
court, prior to or after adjudication, if those courts—with the approval of the chief judge and assigned
judge of each court, a prosecuting attorney from each court, and the juvenile—have executed a
memorandum of understanding as provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a
memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction
over the participant until final disposition of the case. MCL 600.1099h(b). The court may also “receive
jurisdiction over the juvenile’s parents or guardians under section 6 of chapter XIIA of the probate code of
1939, . . . MCL 712A.6, in order to assist in ensuring the juvenile’s continued participation and successful
completion of the juvenile mental health court and may issue and enforce any appropriate and necessary
order regarding the parent or guardian.” MCL 600.1099h(b).

juvenile. MCL 780.765(1); MCL 780.793(1). The defendant or

juvenile must be physically present in the courtroom at the
time a victim makes an oral impact statement, unless the court
has determined, in its discretion, that the defendant or juvenile
is behaving in a disruptive manner or presents a threat to the
safety of any individuals in the courtroom. MCL 780.765(2);
MCL 780.793(3). The court may consider any relevant
statement provided by the victim regarding the defendant
being physically present during the victim’s oral impact
statement when making its determination. MCL 780.765(2);
MCL 780.793(3).

Chapter 6: Pleas
Part A: Generally-Applicable Principles and Procedures

6.1 Introduction ......................................................................................... 6-4
6.2 Competency to Enter a Plea................................................................. 6-4
6.3 Sentence Bargaining............................................................................. 6-5
6.4 Guilty Pleas and Nolo Contendere Pleas............................................ 6-17
Requirements..................................................................................... 6-21
6.6 Specific Required Advice of Rights at Plea Proceedings..................... 6-24
6.7 Deferral .............................................................................................. 6-32
6.8 Admissibility of Pleas and Plea Discussions........................................ 6-39
6.9 Appealing a Plea-Based Conviction .................................................... 6-40
6.10 Collateral Attack on Uncounseled Plea or Conviction Used for Purpose of
Enhancing Charge or Sentence .......................................................... 6-44
Part B: Procedures Specific to Misdemeanor Pleas
6.11 Introduction ....................................................................................... 6-46
6.12 Authority of District Court Judges and Magistrates to Accept
Misdemeanor Pleas............................................................................ 6-46
6.13 Record Requirements for Plea Proceedings....................................... 6-48
6.14 Entering a Plea ................................................................................... 6-48
6.15 Guilty and Nolo Contendere Pleas ..................................................... 6-50
6.16 Required Advice of Rights at Plea Proceedings.................................. 6-51
6.17 Plea Must Be Understanding, Voluntary, and Accurate..................... 6-54
6.18 Misdemeanor Pleas Under Michigan Vehicle Code, § 625 ................ 6-56
6.19 Marine Safety Act Pleas ..................................................................... 6-56
6.20 Refusing To Accept a Plea or Plea Agreement ................................... 6-57
6.21 Withdrawing or Challenging a Plea .................................................... 6-57
Part C: Procedures Specific to Felony Pleas
6.22 Authority of District Court Judges to Accept Felony Pleas................. 6-59
6.23 Available Pleas.................................................................................... 6-60

6.24 Plea of Guilty or Nolo Contendere ..................................................... 6-61
6.25 Plea of Guilty but Mentally Ill............................................................. 6-66
6.26 Plea of Not Guilty by Reason of Insanity ............................................ 6-67
6.27 Refusing to Accept a Defendant’s Plea .............................................. 6-68
6.28 Withdrawal of a Plea.......................................................................... 6-68

Introductory Note
Part A of this chapter contains discussion of procedures and law

applicable to plea proceedings for offenses cognizable in both district
court and circuit court. Part B discusses additional procedures
specifically applicable to misdemeanor offenses cognizable in the district
court. Part C discusses additional procedures specifically applicable to
felony and misdemeanor offenses cognizable in the circuit court.
Effective May 20, 2014, and applicable to cases in which the defendant is
arraigned in district or municipal court on or after January 1, 2015,1 2014
PA 123 and 2014 PA 124 amended several provisions in the Code of
Criminal Procedure and the Revised Judicature Act related to
preliminary examinations, probable cause conferences, and the
jurisdiction and duties of district court judges and magistrates with
respect to pretrial proceedings in felony cases. For a chart outlining the
differences in procedures before and after January 1, 2015, as a result of
statutory reforms concerning probable cause conferences, preliminary
examinations, and felony pleas, see SCAO Memorandum, July 23, 2014.
For additional information, see the SCAO’s Best Practices for Probable
Cause Conferences and Preliminary Examinations.
See Chapter 2 for discussion of jurisdiction, including the jurisdiction of

district court judges and magistrates. See the Michigan Judicial Institute’s
Criminal Pretrial/Trial Quick Reference Materials web page for a table
including information on the jurisdiction of district court judges and
magistrates over preliminary matters in criminal proceedings, and
checklists and flowcharts for proceedings involving misdemeanor and
felony guilty and no contest pleas.
Part A: Generally-Applicable Principles and Procedures
1 See 2014 PA 123, enacting section 1; 2014 PA 124, enacting section 2.

6.1 Introduction
A person accused of an offense cannot be convicted of the offense unless
he or she is found guilty of the charge by a judge or jury, or unless he or
she confesses guilt in open court or admits to the truth of the charge.
MCL 763.2.
Subchapter 6.300 of the Michigan Court Rules contains detailed

information about the kinds of pleas available to defendants charged
with criminal offenses cognizable by circuit courts. See MCR 6.001(A).
Subchapter 6.600, the section devoted to criminal procedure in district
court, contains all the information expressly applicable to plea
proceedings in district court for offenses over which the district court has
trial jurisdiction. MCR 6.001(B) does not include subchapter 6.300 in its
list of court rules applicable to misdemeanor plea proceedings in district
court. However, provisions contained in subchapter 6.300 pertaining to
plea proceedings involving offenses cognizable in circuit court may be
instructive whenever MCR 6.610 does not supply a rule specific to plea
proceedings involving offenses cognizable in district court.
“A district judge has the authority to accept a felony plea[ and] . . . shall
take a plea to a misdemeanor or felony as provided by court rule if a plea
agreement is reached between the parties.” MCL 766.4(3).2 A district
court magistrate, however, may not accept a plea of guilty or nolo
contendere to an offense or impose a sentence except as otherwise
authorized by MCL 600.8511(a)-(c). MCL 766.1.3
6.2 Competency to Enter a Plea4

An incompetent defendant cannot tender a valid guilty plea. Godinez v
Moran, 509 US 389, 400-402 (1993); see also People v Kline (Donald), 113
Mich App 733, 738 (1982). When a defendant offers to enter a plea to the
crime charged and significant record evidence suggests that the
defendant is possibly incompetent, a trial court is obligated to make a
separate finding with regard to competency before addressing the
defendant’s plea. People v Whyte, 165 Mich App 409, 414 (1988); People v
Matheson, 70 Mich App 172, 179 (1976).
2 However, following bindover, “[t]he circuit court retains jurisdiction over any case in which a plea is
either plead guilty to, or are found guilty of, a misdemeanor,” MCR 6.008(D). Additionally, “[s]entencing for
felony cases and misdemeanor cases not cognizable by the district court shall be conducted by a circuit
judge.” MCL 600.8311(f); see also MCL 766.4(3). See Section 2.5 for discussion of circuit court jurisdiction.
3 See Chapter 2 for discussion of the jurisdiction of district court judges and magistrates.
4 See Chapter 10 for more information on determining a defendant’s competency.

6.3 Sentence Bargaining
A. Sentence Agreements and Recommendations

A defendant does not have a right to engage in plea negotiations
with the prosecution. People v Payne (Scott), 285 Mich App 181, 191
(2009). Neither the United States Supreme Court nor the Michigan
Supreme Court “‘has recognized that the parties have a right to
present a plea.’” Id. at 191, quoting People v Grove, 455 Mich 439, 469
n 36 (1997).5
1. Record Requirements
Where a defendant’s sentence will result from a plea-based
conviction, the trial court must determine whether the parties
have made a plea agreement, “which may include an
agreement to a sentence to a specific term or within a specific
range.” MCR 6.302(C)(1).6 See also MCR 6.610(E)(5), which
provides that a district court accepting a plea must “make the
plea agreement a part of the record[,] . . . determine that the
parties agree on all the terms of that agreement[,] . . . [and]
accept, reject or indicate on what basis it accepts the plea.” Any
agreement “must be stated on the record or reduced to writing
and signed by the parties.”7 MCR 6.302(C)(1). A written
agreement must be made part of the case file. Id.
Where all the terms of a plea agreement are not placed on the
record, the trial court and the parties have not fully complied
with the rule requirements, which are designed to safeguard
the rights of the defendant and the prosecution if enforcement
of the plea agreement becomes an issue. People v Hannold, 217
Mich App 382, 386-387 (1996), overruled in part on other
grounds by People v Smart, 497 Mich 950 (2015).8 In Hannold,
217 Mich App 385-386, details of the defendant’s agreement to
testify against another individual in exchange for a specific
5 Grove, 455 Mich 439, “has been superseded by MCR 6.310(B).” People v Franklin (Joseph), 491 Mich 916,
916 (2012).
6 Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable
to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does
not supply a rule specific to plea proceedings involving offenses cognizable in district court.
7 “The parties may memorialize their agreement on a form substantially approved by the SCAO.” MCR
6.302(C)(1). See SCAO Form CC 414, Plea Agreement.


sentencing consideration were not included on the record

made of the defendant’s plea proceeding; instead, details of the
agreement were contained in a sealed document on file with
the court. When the defendant failed to provide the promised
testimony, the court vacated his plea to a lesser charge, and he
was convicted of the original, and more serious, controlled
substance charge. Hannold, 217 Mich App at 383-386. Although
the Court of Appeals concluded that the parties’ failure to
comply with the rule requirements was harmless error, the
Court was unequivocal in its disapproval of such conduct:
“This was error. We take this opportunity to

emphasize that we do not condone such
agreements or procedure and in fact strongly
disapprove of plea agreements not fully and
openly set forth on the record.” Id. at 387.
2. Negotiating a Plea Agreement: Cobbs and Killebrew

A prosecutor and a defendant may reach a sentence agreement
whereby the defendant agrees to plead guilty in exchange for a
sentence to a specified term or within a specified range, or in
exchange for a nonbinding prosecutorial sentence
recommendation. See MCR 6.302(C).9 However, if the offense
to which the defendant is to enter a plea is subject to a
mandatory minimum sentence, “the trial court is without
authority to impose[]” a lesser sentence. People v Kreiner, 497
Mich 1024, 1024-1025 (2015) (where the terms of a plea offer
called for the defendant to plead guilty of first-degree criminal
sexual conduct in exchange for a ten-year minimum sentence,
the trial court was “without authority to impose[]” the
proposed sentence because “MCL 750.520b(2)(b) provides that
the statutorily authorized punishment for the offense to which
[the] defendant [was] to plead guilty under the proposed plea
agreement is ‘imprisonment for . . . not less than 25 years[]’”).
The extent to which a trial court may involve itself in sentence

negotiations has been set out by the Michigan Supreme Court
in People v Killebrew, 416 Mich 189 (1982), effectively
superseded in part by ADM File No. 2011-19,10 and People v
Cobbs, 443 Mich 276 (1993). In Killebrew, 416 Mich at 205, the
Supreme Court held that a trial court may not initiate or
participate in discussions regarding a plea agreement. In Cobbs,
9 Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable
to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does
not supply a rule specific to plea proceedings involving offenses cognizable in district court.
10 Effective January 1, 2014. See 495 Mich lxxix (2013).

443 Mich at 283, the Supreme Court modified Killebrew to allow

the trial court, at the request of a party, to state on the record
the length of the sentence that appeared to be appropriate,
based on the information available to the trial court at the time.
The Cobbs Court made clear that the trial court’s preliminary
evaluation did not bind the court’s ultimate sentencing
discretion, because additional facts may emerge during later
proceedings, in the presentence report, through the allocution
afforded to the prosecutor and the victim, or from other
sources. Cobbs, 443 Mich at 283.
Nonbinding sentence recommendation under Killebrew.

Under Killebrew, 416 Mich at 209, a trial court may accept a
defendant’s guilty plea without being bound by any agreement
between the defendant and the prosecution. Where a trial court
has decided not to adhere to the sentence recommendation
accompanying the defendant’s plea agreement, the court must
explain to the defendant that the recommendation was not
accepted and state the sentence that the court finds is the
appropriate disposition. Id. at 209-210. However, “[a] judge’s
decision not to follow the sentence recommendation does not
entitle the defendant to withdraw the defendant’s plea.” MCR
6.302(C)(3).11
Cobbs plea. Cobbs authorizes the trial court, at the request of a

party, to state on the record the sentence that appears
appropriate for the charged offense, on the basis of
information available to the court at the time. Cobbs, 443 Mich
at 283. Even when a defendant pleads guilty or nolo
contendere to the charged offense in reliance on the court’s
preliminary determination regarding the defendant’s likely
sentence, the court retains discretion over the actual sentence
imposed should additional information dictate the imposition
of a longer sentence. Id. at 283. If the court determines it will
exceed its previously stated sentence, the defendant has an
absolute right to withdraw the plea. Id.12
“The decision in [Cobbs, 443 Mich 276] does not exempt trial
courts from articulating the basis for guidelines departures[;]”
accordingly, where “the trial court failed to articulate any
reason for imposing a minimum sentence that was below the
applicable guidelines range,” the case was remanded for the
trial court to “‘consult the applicable guidelines range and take
it into account when imposing a sentence’” and to “‘justify the
11 See ADM File No. 2011-19, effective January 1, 2014, effectively superseding Killebrew, 416 Mich at 210,
to the extent that it held that a trial court must afford the defendant the opportunity to affirm or withdraw
a guilty plea if the court decides not to adhere to a prosecutorial sentence recommendation. See 495 Mich
lxxix (2013).

sentence imposed in order to facilitate appellate review’” as

required under People v Lockridge, 498 Mich 358, 392 (2015).
People v Williams (Eddie), ___ Mich ___, ___ (2018).13
The defendant was not entitled to withdraw his guilty plea on

the basis of his erroneous understanding of the trial court’s
statement at the preliminary sentence evaluation that his
maximum sentence would be 20 years, where the trial court’s
statement when read as a whole, clearly indicated that a 20-
year minimum sentence was appropriate and the defendant
was sentenced to a minimum of 20 years’ imprisonment
consistent with the preliminary evaluation. People v Pointer-Bey,
321 Mich App 609, 617 (2017) (holding, however, that the
defendant could withdraw his plea in its entirety on other
grounds).
“[T]he fact that new information [comes] to light after [a] Cobbs
plea [is] entered does not justify the circuit court in vacating [a]
defendant’s bargained-for plea.” People v Martinez (Gilbert), 307
Mich App 641, 650-651, 653-654 (2014) (holding that where the
defendant entered a guilty plea in exchange for the
prosecutor’s agreement not to bring any additional charges
regarding contact with the complainant “‘grow[ing] out of
[the] same investigation that occurred during [a certain period
of years,]’” the “fact that the complainant, after [the]
defendant’s plea pursuant to the agreement was accepted,
disclosed allegations of additional offenses that were unknown
to the prosecutor [did] not create a mutual mistake of fact[]”
permitting the court to vacate the defendant’s plea under either
MCR 6.310 or contract principles).
The Michigan Supreme Court has distinguished between a

trial court’s role in sentence negotiations occurring under
Killebrew and those occurring under Cobbs. People v Williams
(Avana), 464 Mich 174 (2001). According to the Williams (Avana)
12 Failure to “‘provide the defendant the opportunity to affirm or withdraw [a] plea[]’” as required by MCR
6.310(B)(2) constitutes plain error that may require reversal. People v Franklin (Joseph), 491 Mich 916, 916
(2012). In Franklin (Joseph), 491 Mich at 916, 916 n 1, the Michigan Supreme Court concluded that the trial
court’s failure to comply with MCR 6.310(B)(2)(b) could not be considered plain error, “given [the] holding
in People v Grove, 455 Mich 439 (1997), that the trial court could reject the entire plea agreement and
subject the defendant to a trial on the original charges over the defendant’s objection[;]” however, the
Franklin (Joseph) Court clarified that “Grove has been superseded by MCR 6.310(B)[,]” and cautioned that
“in the future, such an error will be ‘plain[.]’” The Court further noted that, even assuming that plain and
prejudicial error had occurred in Franklin (Joseph), 491 Mich 916, “[u]nder [the] circumstances, where the
defendant did not just fail to object at sentencing, but also failed to object during the subsequent trial and
waived his right to a jury trial,” the Court “[was] exercising its discretion in favor of not reversing the
defendant’s convictions.” Franklin (Joseph), 491 Mich at 916, citing People v Carines, 460 Mich 750, 763
(1999).
13 For discussion of the sentencing guidelines, see the Michigan Judicial Institute’s Criminal Proceedings
Benchbook, Vol. 2, Chapter 2.

Court, Cobbs modified Killebrew “to allow somewhat greater

participation by the judge.” Williams (Avana), 464 Mich at 177.
However, the Williams (Avana) Court ruled that the
requirement of Killebrew—that a court must indicate the
sentence it considers appropriate if the court decides against
accepting the prosecutorial recommendation—does not apply
to a Cobbs agreement later rejected by the court that made the
preliminary evaluation. Williams (Avana), 464 Mich at 178-179.
The Court explained the distinction between Cobbs and
Killebrew as preserving the trial court’s impartiality in sentence
negotiations by minimizing the potential coercive effect of a
court’s participation in the process:
“In cases involving sentence recommendations

under Killebrew, the neutrality of the judge is
maintained because the recommendation is
entirely the product of an agreement between the
prosecutor and the defendant. The judge’s
announcement that the recommendation will not
be followed, and of the specific sentence that will
be imposed if the defendant chooses to let the plea
stand,[14] is the first involvement of the court, and
does not constitute bargaining with the defendant,
since the judge makes that announcement and
determination of the sentence on the judge’s own
initiative after reviewing the presentence report.
By contrast, the degree of the judge’s participation
in a Cobbs plea is considerably greater, with the
judge having made the initial assessment at the
request of one of the parties, and with the
defendant having made the decision to offer the
plea in light of that assessment. In those
circumstances, when the judge makes the
determination that the sentence will not be in
accord with the earlier assessment, to have the
judge then specify a new sentence, which the
defendant may accept or not, goes too far in
involving the judge in the bargaining process.
Instead, when the judge determines that
sentencing cannot be in accord with the previous
assessment, that puts the previous understanding
14
However, see ADM File No. 2011-19, effective January 1, 2014, amending MCR 6.302(C)(3) and MCR
6.310(B)(2) to eliminate a defendant’s ability to withdraw a plea if the court rejects a plea agreement
involving a prosecutorial sentence recommendation (effectively superseding Killebrew, 416 Mich at 210, to
the extent that it held that a trial court must afford the defendant the opportunity to affirm or withdraw a
guilty plea if the court decides not to adhere to a prosecutorial sentence recommendation). See 495 Mich
lxxix (2013).

to an end, and the defendant must choose to allow

the plea to stand or not without benefit of any
agreement regarding the sentence.
Thus, we hold that in informing a defendant that

the sentence will not be in accordance with the
Cobbs agreement, the trial judge is not to specify
the actual sentence that would be imposed if the
plea is allowed to stand.” Williams (Avana), 464
Mich at 179-180.
MCR 6.31015 incorporates the outcome in Williams. MCR

6.310(B)(2)(b) states:
“[T]he defendant is entitled to withdraw the plea if
***
(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.”16
Committee Tip:
To expedite the process, require the attorneys to
provide the court with information regarding the
reasons why a Cobbs hearing is appropriate,
and, if a hearing is held, why a particular plea is
appropriate. If the defendant elects to withdraw
his or her plea, the trial court may consider a
new Cobbs agreement, or proceed to trial.
15
Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically
applicable to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR
6.610 does not supply a rule specific to plea proceedings involving offenses cognizable in district court.
16 Failure to provide the defendant with an opportunity to withdraw a plea as required by MCR 6.310(B)
constitutes plain error that may require reversal. People v Franklin (Joseph), 491 Mich 916, 916 (2012). In
Franklin, 491 Mich at 916, the Michigan Supreme Court concluded that failing to provide the defendant
with the opportunity to withdraw his plea was not plain error in Franklin because of its previous holding in
People v Grove, 455 Mich 439 (1997), which permitted “the trial court [to] reject the entire plea agreement
and subject the defendant to a trial on the original charges over the defendant’s objection[.]” However, the
Franklin Court clarified that MCR 6.310(B) superseded Grove, 455 Mich 439, and stated that because of this
“in the future, such an error will be ‘plain[.]’” Franklin, 491 Mich at 916. The Franklin Court also found that
even where plain error exists, an appellate court must still “‘exercise its discretion in deciding whether to
reverse.’” Franklin, 491 Mich at 916, quoting People v Carines, 460 Mich 750, 763 (1999).

3. Plea Agreements Involving Probation

A trial court may impose additional conditions on a
defendant’s sentence of probation, even when the sentence is
part of the defendant’s plea agreement and did not contain the
additional conditions. People v Johnson (Larry), 210 Mich App
630, 633-635 (1995).
4. Plea Agreements Involving Bar-to-Office Conditions

The trial court properly ruled that a term in a plea agreement,
which precluded defendant from running for public office
while on probation, was unenforceable as against public
policy.17 People v Smith (Virgil), 502 Mich 624, 628 (2018)
(further holding that the trial court erred by refusing to allow
the prosecutor to withdraw from the agreement once the term
was removed from the plea agreement).18 “[W]hen challenged
as void against public policy, bar-to-office provisions in plea
agreements should be analyzed under the balancing test in
[Town of Newton v Rumery, 480 US 386 (1987)].” Smith (Virgil),
502 Mich at 648. “[A] promise is unenforceable if the interest in
its enforcement is outweighed in the circumstances by a public
policy harmed by enforcement of the agreement.” Rumery, 480
US at 392. After weighing the interests at stake, it is important
to then inquire whether the government has a legitimate
reason for requiring the bar-to-office term. Smith (Virgil), 502
Mich at 643. The public policy considerations outweighed
enforcement of the bar-to-office provision in Smith (Virgil)
because it restricted the foundational right of voters to select
their representatives and reflected only the prosecutor’s own
conclusion that defendant should not serve in public office. Id.
at 642 Further, “no ‘close nexus’ existed between the charged
offenses and defendant’s conduct in office.” Id. at 644.
17The
trial court also struck a condition that defendant resign from his current public office. However, the
validity of a condition to resign a political office as part of a plea agreement was not addressed by the
Michigan Supreme Court because defendant voluntarily resigned from office after the trial court struck the
condition. People v Smith (Virgil), 502 Mich 624, 632 (2018).
18See Section 6.3(C)(3) for additional information regarding violations of a plea or sentencing agreement
by a court.

B. Court’s Refusal To Accept a Plea or Plea Agreement

MCR 6.301(A) permits a court to refuse a defendant’s felony plea as
long as the refusal is made pursuant to the court rules. MCR 6.301
applies to circuit court arraignments conducted in district court
pursuant to MCR 6.111. MCR 6.111(C).19 If the court refuses to
accept the defendant’s plea, the court must enter a plea of not guilty
on the record. MCR 6.301(A). “A plea of not guilty places in issue
every material allegation in the information and permits the
defendant to raise any defense not otherwise waived.” MCR
6.301(A).20
C. Violations of a Sentence Agreement or Recommendation
1. By Prosecutor
“As a general rule, ‘“fundamental fairness requires that
promises made during plea-bargaining”’” be respected where
the government agent was authorized to enter into the
agreement and the defendant relied on the promise to his or
her detriment. People v Ryan (Thomas), 451 Mich 30, 41 (1996).
Where a sentencing agreement negotiated between the

defendant and the prosecution is subsequently breached by the
prosecution, a reviewing court has discretion to choose
between vacating the plea or ordering specific performance,
with considerable weight given to the defendant’s choice of
remedy. People v Nixten, 183 Mich App 95, 97, 99 (1990) (where
the defendant did not assert his innocence and “merely
complain[ed] that the prosecution did not keep its part of the
bargain,” the Court of Appeals determined that specific
performance was the appropriate remedy) (citation omitted).
However, where a defendant is aggrieved by the breach of an

unauthorized non-plea agreement with the police (that the
defendant not be prosecuted), he or she is not entitled to
specific performance of that agreement. People v Gallego, 430
19 MCR 6.111(A), which allows a district judge to conduct the circuit court arraignment following bindover
on a felony charge, further provides that “[a] district court judge shall take a felony plea as provided by
court rule if a plea agreement is reached between the parties.” With respect to ordinance violations and
misdemeanors cognizable in the district court, MCR 6.610(E)(5) permits the district court to reject a plea
agreement; however, because the court rule offers no guidance on the procedure or requirements for
rejecting such a plea, MCR 6.301(A) is potentially instructive in cases involving offenses cognizable in
district court.
20
MCR 6.610(E)(5) permits a district court to reject a plea agreement. However, because the court rule
offers no guidance on the procedure or requirements for rejecting a plea made in district court, MCR
6.301(A) is potentially instructive in cases involving offenses cognizable in district court, permits a court to
refuse a defendant’s plea as long as the refusal is made pursuant to the court rules.

Mich 443, 445, 452 (1988). Instead, suppression or exclusion of

the written agreement is an appropriate remedy. Id. at 446, 456-
457.
2. By Defendant
“On the prosecutor’s motion, the court may vacate a plea if the
defendant has failed to comply with the terms of a plea
agreement.” MCR 6.310(E).21 However, where the
prosecution’s motion to vacate a plea is not based on the
defendant’s failure to comply with the terms of the plea
agreement, and the record shows that the defendant fully
complied with his or her part of the plea bargain, MCR
6.310(E) does not permit the trial court to vacate the plea on its
own motion or that of the prosecutor. People v Martinez
(Gilbert), 307 Mich App 641, 648-650 (2014).
“By submitting a sentence agreement to the trial court, the

prosecutor and the defendant enter[] into a contractual
bargain”; “[b]ecause the defendant and the prosecutor are
equally entitled to benefit from the agreement, when the
defendant’s breach prevents the prosecutor from reaping the
benefit of the contractual bargain, the prosecutor has a right to
rescind the agreement.”People v Anderson (Josephus), ___ Mich
App ___, ___ (2019) (the prosecution was entitled to rescind the
sentence agreement where the defendant admitted to perjuring
himself in violation of the agreement to provide truthful
testimony in exchange for a lighter sentence).22 See also People
v Abrams, 204 Mich App 667, 672-673 (1994) (holding that
where the defendant breached his plea agreement by engaging
in criminal activity, the prosecution was allowed to pursue its
case against the defendant); People v Acosta, 143 Mich App 95,
99 (1985) (holding that it was not error for the trial court to
grant the prosecution’s motion to void a plea agreement where
the defendant absconded, failed to appear to enter his guilty
plea, and was arrested eight months later).
Although “even unwise plea bargains are [generally] binding

on the prosecutor,” an agreement may not be binding if “‘the
prosecutor is misled by force of [the] defendant’s connivance
into a disadvantageous agreement or [if] facts not within the
fair contemplation of agreement have come to light.’” People v
21
22 The defendant was convicted following a jury trial and entered into the sentence agreement with the
prosecution while his appeal was pending. Anderson, ___ Mich App at ___.

Cummings (Warren), 84 Mich App 509, 511-513 (1978) (quoting

People v Reagan (E.J.), 395 Mich 306, 318 (1975), and holding that
the trial court properly granted the prosecutor’s motion to set
aside a guilty plea where defense counsel, during the
bargaining process, concealed material information regarding
the defendant’s extensive criminal record) (additional citation
omitted).
Additionally, “[e]xcept as allowed by the trial court for good

cause, a defendant is not entitled to withdraw a plea under
[MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b)] if the defendant
commits misconduct[23] after the plea is accepted but before
sentencing.” MCR 6.310(B)(3).
3. By the Court
Where the court accepts a plea bargain in which the prosecutor
and the defendant agreed to the sentence to be imposed, the
court may not then impose on the defendant a sentence lower
than the one to which the prosecutor agreed. To allow such a
departure offends the prosecutor’s charging authority, and if
the court deviates from the agreement between the defendant
and the prosecutor, the prosecutor must be permitted to
withdraw. People v Siebert, 450 Mich 500, 504 (1995).
“Plea bargains . . . are more than contracts between

two parties. As the judicial representative of the
public interest, the trial judge is an impartial party
whose duties and interests are separate from and
independent of the interests of the prosecutor and
[the] defendant. The court’s interest is in seeing
that justice is done. In the context of plea and
sentence agreements, the court’s interest in
imposing a just sentence is protected by its right to
reject any agreement, except that which invades
the prosecutor’s charging authority. A trial court
may reject pleas to reduced charges, and it may
protect its sentencing discretion by rejecting
sentence agreements. In this sense, neither the
prosecutor nor the defendant can dictate the
sentence.” Id. at 509-510.
“When [a trial court] rejects either the sentence or a plea

term like a bar-to-office provision,[24] while keeping the rest of
23
“For purposes of [MCR 6.310], misconduct is defined to include, but is not limited to: absconding or
failing to appear for sentencing, violating terms of conditions on bond or the terms of any sentencing or
plea agreement, or otherwise failing to comply with an order of the court pending sentencing.” MCR
6.310(B)(3).

the agreement, the trial court essentially imposes a different

plea bargain on the prosecutor than he or she agreed to.” People
v Smith (Virgil), 502 Mich 624, 647 (2018) Imposing a different
plea bargain on the prosecutor than he or she agreed to is an
impermissible infringement on the prosecutor’s charging
discretion. Id. at 647. “If the trial court wishes to reject a bar-to-
office provision, it must give the prosecutor the opportunity to
withdraw from the agreement.” Id. at 647 (the trial court erred
by refusing to permit the prosecutor to withdraw from a plea
agreement after the court struck a bar-to-office provision25 of
the agreement but otherwise sentenced defendant in
accordance with the plea agreement).26
A defendant is entitled to withdraw his or her plea, after

acceptance but before sentencing, when the court is unable to
comply with an agreement for a sentence for a specified term
or within a specified range, or when the court is unable to
sentence a defendant in accord with the court’s initial
statement regarding the sentence it would impose.27 MCR
6.310(B)(2)(a)-(b).28
“[I]f the court chooses not to follow an agreement to a sentence

for a specified term or within a specified range, [the court must
explain to the defendant that] the defendant will be allowed to
withdraw from the plea agreement.” MCR 6.302(C)(3).
However, “[a] judge’s decision not to follow [a prosecutorial]
sentence recommendation does not entitle the defendant to
withdraw the defendant’s plea.” Id.29
The trial court’s finding that a plea agreement was breached is
reviewed for clear error. See MCR 2.613(C); People v Abrams,
204 Mich App 667, 673 (1994).
24 The plea agreement contained a term where the defendant agreed that he would not seek public office
during his probationary term. People v Smith (Virgil), 502 Mich 624, 627 (2018).
25The trial court also struck a condition that defendant resign from his current public office. However, the
validity of a condition to resign a political office as part of a plea agreement was not addressed by the
Michigan Supreme Court because defendant voluntarily resigned from office after the trial court struck the
condition. People v Smith (Virgil), 502 Mich 624, 632 (2018).
26See Section 6.3(A)(4) for additional information on bar-to-office plea conditions.
27 However,
“[e]xcept as allowed by the trial court for good cause, a defendant is not entitled to withdraw
a plea under [MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b)] if the defendant commits misconduct after the
plea is accepted but before sentencing.” MCR 6.310(B)(3).

D. Ineffective Assistance of Counsel During Plea Bargain

Negotiation
“[T]he negotiation of a plea bargain is a critical phase of litigation
for purposes of the Sixth Amendment right to effective assistance of
counsel.” Padilla v Kentucky, 559 US 356, 373 (2010),30 citing Hill v
Lockhart, 474 US 52, 57 (1985). See also Missouri v Frye, 566 US 134,
143 (2012) (“plea bargains have become so central to the
administration of the criminal justice system that defense counsel
have responsibilities in the plea bargain process, responsibilities
that must be met to render the adequate assistance of counsel that
the Sixth Amendment requires in the criminal process at critical
stages[]”).31 “A defendant who has entered a plea does not waive his
[or her] opportunity to attack the voluntary and intelligent character
of the plea by arguing that his or her counsel provided assistance
during the plea bargaining process.” People v Horton, 500 Mich 1034
(2017), citing Hill, 474 US at 56-57, and overruling People v Vonins
(After Remand), 203 Mich App 173, 175-176 (1993), and People v
Bordash, 208 Mich App 1 (1994), “to the extent that they are
inconsistent with Hill[.]”
Absent unusual circumstances, where counsel has adequately

apprised a defendant of the nature of the charges and the
consequences of a plea, the defendant can make an informed and
voluntary choice whether to plead guilty or go to trial without a
specific recommendation from counsel. People v Corteway, 212 Mich
App 442, 446 (1995) (citations omitted); see also People v Armisted,
295 Mich App 32, 49 (2011) (the defendant’s affidavit, stating that
trial counsel misinformed him about the minimum sentence that
would likely be imposed if he were convicted of the charged
28 Failure to “‘provide the defendant the opportunity to affirm or withdraw [a] plea[]’” as required by MCR
6.310(B)(2) constitutes plain error that may require reversal. People v Franklin (Joseph), 491 Mich 916, 916
(2012). In Franklin (Joseph), 491 Mich at 916, 916 n 1, the Michigan Supreme Court concluded that the trial
court’s failure to comply with MCR 6.310(B)(2)(b) could not be considered plain error, “given [the] holding
in People v Grove, 455 Mich 439 (1997), that the trial court could reject the entire plea agreement and
subject the defendant to a trial on the original charges over the defendant’s objection[;]” however, the
Franklin (Joseph) Court clarified that “Grove has been superseded by MCR 6.310(B)[,]” and cautioned that
“in the future, such an error will be ‘plain[.]’” The Court further noted that, even assuming that plain and
prejudicial error had occurred in Franklin (Joseph), 491 Mich 916, “[u]nder [the] circumstances, where the
defendant did not just fail to object at sentencing, but also failed to object during the subsequent trial and
waived his right to a jury trial,” the Court “[was] exercising its discretion in favor of not reversing the
defendant’s convictions.” Franklin (Joseph), 491 Mich at 916, citing People v Carines, 460 Mich 750, 763
(1999).
29 See ADM File No. 2011-19, effective January 1, 2014, effectively superseding Killebrew, 416 Mich at 210,
to the extent that it held that a trial court must afford the defendant the opportunity to affirm or withdraw
a guilty plea if the court decides not to adhere to a prosecutorial sentence recommendation. See 495 Mich
lxxix (2013).
30 Padilla, 559 US 356, has prospective application only under both federal and state rules of retroactivity.
See Chaidez v United States, 568 US 342, 344 (2013); People v Gomez, 295 Mich App 411, 413 (2012).

offense, “was insufficient to contradict or overcome his previous

sworn statements at the plea proceeding . . . that he understood the
plea and sentencing agreement[]”); People v White (Rickey), 307 Mich
App 425, 429-430, 432 (2014) (“[the d]efendant’s contradictory
affidavit [was] insufficient to contradict his sworn testimony in
open court[]” that his plea was entered knowingly and voluntarily,
and “the trial court did not abuse its discretion when it denied [his]
request for an evidentiary hearing[]” regarding the voluntariness of
his plea and the effectiveness of trial counsel).
For a thorough discussion of ineffective assistance of counsel in the

context of pleas, see the Michigan Judicial Institute’s Criminal
Proceedings Benchbook, Vol. 3, Chapter 1.
6.4 Guilty Pleas and Nolo Contendere Pleas
A. Guilty Pleas
A guilty plea is a conclusive conviction equivalent to a jury’s guilty
verdict. People v Ginther, 390 Mich 436, 440 (1973) (citations omitted).
A defendant’s decision to plead guilty “is the most serious step a
defendant can take in a criminal prosecution.” People v Thew, 201
Mich App 78, 95 (1993). Precisely because a guilty plea is the most
serious aspect of a defendant’s criminal case, a guilty plea “‘not only
must be voluntary but must be [a] knowing, intelligent ac[t] done
with sufficient awareness of the relevant circumstances and likely
consequences.’” Id., quoting Brady v United States, 397 US 742, 747-
748 (1970).
MCR 6.302 describes a detailed process by which a circuit court is to

determine whether a plea is understanding, voluntary, and
accurate.32 See MCR 6.302(B)-(D).33
31 “[A]s held by every . . . [federal circuit court of appeals] to consider the issue, . . . Frye[, 566 US 134, did
32
33
However, due process “might not be entirely satisfied by compliance with subrules (B) through (D).”
People v Cole (David), 491 Mich 325, 330-332, 337-338 (2012) (holding that, “regardless of the explicit
wording of” former MCR 6.302(B)-(D), which did not specifically require a trial court to inform a defendant
about the possibility of lifetime electronic monitoring, “a court may be required by the Due Process Clause
of the Fourteenth Amendment to inform a defendant that mandatory lifetime electronic monitoring is a
consequence of his or her guilty or no-contest plea[;]” however, MCR 6.302(B)(2) was subsequently
amended to require this advice by the court).

B. Nolo Contendere (No Contest) Pleas

“A nolo contendere plea does not admit guilt, it merely
communicates to the court that the criminal defendant does not
wish to contest the state’s accusations and will acquiesce in the
imposition of punishment.” Lichon v American Universal Ins Co, 435
Mich 408, 417 (1990). A nolo contendere plea may be appropriate
“where the defendant would not be able to supply a sufficient
factual basis for a guilty plea because he or she was intoxicated on
the night of the incident, where there is the possibility of future civil
litigation resulting from the offense, or where a defendant cannot
remember the events which led to his or her being charged with a
crime.” 1A Gillespie Michigan Criminal Law & Procedure, § 16:15.
A no contest plea prevents the court from eliciting a defendant’s

admission of guilt, but the result of the defendant’s plea not to
contest the charges against him or her is the same as if the defendant
had admitted guilt. If a defendant pleads no contest to a charged
offense, with the exception of questioning the defendant about his
or her role in the charged offense, the court must proceed in the
same manner as if the defendant had pleaded guilty. MCL 767.37;
see also MCR 6.302(D)(2); MCR 6.610(E)(1)(b). A plea of no contest
to a felony offense requires the court’s consent. MCR 6.301(B).
MCR 6.302 describes a detailed process by which a circuit court is to

determine whether a guilty plea or nolo contendere plea is
understanding, voluntary, and accurate.34 See MCR 6.302(B)-(D).35
A court’s acceptance of a no contest plea and the limits such a plea

places on questioning a defendant about the crime may be justified
by circumstances surrounding the offense and the offender. A
nonexhaustive list of reasons that might justify a court’s acceptance
of a no contest plea is found in In re Guilty Plea Cases, 395 Mich 96,
134 (1975). No contest pleas may be appropriate when the
defendant is reluctant to describe the details of an especially sordid
crime; the defendant cannot clearly recall the circumstances of the
crime because he or she was intoxicated; the defendant has
committed numerous crimes similar to the one charged and is
34
35

unable to distinguish one from the others; or the defendant wishes

to escape civil liabilities made possible by a guilty plea or trial
conviction. Id. (citation omitted).
A defendant’s no contest plea to criminal charges does not estop

that defendant from denying responsibility in a later civil action
arising from the same conduct. Lichon, 435 Mich at 417.
If a defendant’s no contest plea is accepted, MCR 6.302 (not

expressly applicable to procedural matters involving offenses
cognizable in district court) requires that the court “state why a plea
of nolo contendere is appropriate.” MCR 6.302(D)(2)(a).
Note: The court rules governing criminal procedure in

cases involving offenses over which the district court
has trial jurisdiction contain no requirement similar to
MCR 6.302(D)(2). Though not required, a district court’s
articulation for the record of its reasons for finding a
defendant’s nolo contendere plea appropriate would
almost certainly assist any appellate review of the case.
Both MCR 6.302(D) and MCR 6.610(E) do require that
the court determine that the defendant’s plea is
supported by facts indicating the defendant’s
participation in the crime charged.
See the Michigan Judicial Institute’s Criminal Pretrial/Trial Quick

Reference Materials web page for reference guides concerning no
contest pleas.
C. Unconditional Pleas
Generally, guilty and nolo contendere pleas waive all
nonjurisdictional defects in the proceedings and waive the right to
challenge issues involving the defendant’s factual guilt. People v
New, 427 Mich 482, 488, 491 (1986); see also People v Eaton, 184 Mich
App 649, 653-654 (1990). However, an unconditional guilty or no
contest plea does not necessarily waive a defendant’s right to
challenge the state’s jurisdictional authority to bring the defendant to
trial. New, 427 Mich at 495-496; Eaton, 184 Mich App at 658.36 See
36
Jurisdictional defects have been found where a defendant raises issues such as “improper personal
jurisdiction, improper subject matter jurisdiction, double jeopardy, imprisonment when the trial court had
no authority to sentence [the] defendant to the institution in question, and the conviction of a defendant
for no crime whatsoever.” People v Carpentier, 446 Mich 19, 47-48 (1994) (Riley, J., concurring) (citations
omitted). Nonjurisdictional defects include violations of the Interstate Agreement on Detainers (IAD),
People v Wanty, 189 Mich App 291, 293 (1991); noncompliance with the 180-day rule, People v Eaton, 184
Mich App 649, 657-658 (1990); and claims of unlawful search and seizure, People v West (Halton), 159
Mich App 424, 426 (1987).

also People v Cook, 323 Mich App 435, 447 n 3 (2018) (noting that
“New’s construct is still controlling”).
Pretrial evidentiary issues. By pleading guilty or nolo contendere, a

defendant waives the right to raise issues on appeal regarding a
pretrial denial of his or her motion to suppress evidence or quash
the information, because those issues involve the defendant’s factual
guilt. New, 427 Mich at 485, 496.
Statutes of limitations. The statute of limitations in a criminal case

is an affirmative, waivable, nonjurisdictional defense. People v
Bulger, 462 Mich 495, 517 n 7 (2000), effectively overruled in part on
other grounds by Halbert v Michigan, 545 US 605, 619-624 (2005);
People v Burns (Gary), 250 Mich App 436, 440, 444-445 (2002). A
defendant’s unconditional plea of guilty or no contest waives the
defendant’s right to challenge his or her conviction on the ground
that the applicable limitations period had expired. People v Allen
(Lee), 192 Mich App 592, 600 (1992).
D. Conditional Pleas
MCR 6.301(C)(2)37 states:
“A defendant may enter a conditional plea of guilty,

nolo contendere, guilty but mentally ill, or not guilty by
reason of insanity. A conditional plea preserves for
appeal a specified pretrial ruling or rulings
notwithstanding the plea-based judgment and entitles
the defendant to withdraw the plea if a specified
pretrial ruling is overturned on appeal. The ruling or
rulings as to which the defendant reserves the right to
appeal must be specified orally on the record or in a
writing made a part of the record. The appeal is by
application for leave to appeal only.”
Conditional guilty pleas may be appropriate when a defendant has

“a legitimate legal defense notwithstanding his [or her] factual
guilt.” People v Reid (Gregory), 420 Mich 326, 334 (1984). A
conditional guilty plea anticipates that the prosecution may be
precluded from proving its case against a defendant because of
claims or defenses to which the defendant believes he or she is
entitled. Id. at 334-335.
37

“A conditional plea requires the agreement of the defendant, the

prosecutor, and the judge.” People v Andrews (Dwight), 192 Mich
App 706, 707 (1992) (citation omitted).
E. Plea to Lesser Offense

MCR 6.301(D) prohibits a court from accepting a defendant’s plea to
an offense lesser than the one charged unless the prosecutor
consents.38 See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich
115, 121-122 (1974) (holding that the prosecutor has discretion to
charge a greater, rather than a lesser-included, offense); Genesee
Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683-684 (1972)
(holding that the choice of the statute under which to prosecute the
accused is an executive function properly exercised by the
prosecutor, not the court).

Requirements
“A no-contest or a guilty plea constitutes a waiver of several
constitutional rights, including the privilege against compulsory self-
incrimination, the right to a trial by jury, and the right to confront one’s
accusers.” People v Cole (David), 491 Mich 325, 332 (2012). However, “[f]or
a plea to constitute an effective waiver of these rights, the Due Process
Clause of the Fourteenth Amendment requires that the plea be voluntary
and knowing.” Id. at 332-333. In Michigan, portions of MCR 6.302(A)39
are “premised on the requirements of constitutional due process[.]” Cole
(David), 491 Mich at 332.
It is the duty of the judge to be satisfied that a plea is made freely, with
full knowledge of the nature of the accusation, and without undue
influence. MCL 768.35. The court may not accept a guilty or nolo
contendere (no contest) plea unless it is convinced that the plea is
understanding, voluntary, and accurate. MCR 6.302(A); MCR 6.610(E)(1).
See also People v Brinkey, ___ Mich App ___, ___ (2019) (“although strict
compliance with MCR 6.302 is not essential, a defendant’s plea must
always be understanding, voluntary, and accurate”). In other words, a
defendant must be afforded due process. See Cole (David), 491 Mich at
332. If the court doubts the veracity of a guilty or no contest plea, the
38
39

judge is obligated to vacate the plea, direct entry of a not guilty plea, and
order the case to trial. MCL 768.35.
“A defendant who has entered a plea does not waive his [or her]
opportunity to attack the voluntary and intelligent character of the plea
by arguing that his or her counsel provided assistance during the plea
bargaining process.” People v Horton, 500 Mich 1034 (2017), citing Hill v
Lockhart, 474 US 52, 56-57 (1985), and overruling People v Vonins (After
Remand), 203 Mich App 173, 175-176 (1993), and People v Bordash, 208
Mich App 1 (1994), “to the extent that they are inconsistent with Hill[.]”
Before accepting a guilty or nolo contendere plea in a felony case, the

court must place the defendant under oath and personally carry out
MCR 6.302(B)–MCR 6.302(E). MCR 6.302(A). However, due process
“might not be entirely satisfied by compliance with subrules (B) through
(D).” Cole (David), 491 Mich at 330-332, 337-338 (holding that, “regardless
of the explicit wording of” former MCR 6.302(B)-(D), which did not
specifically require a trial court to inform a defendant about the
possibility of lifetime electronic monitoring, “a court may be required by
the Due Process Clause of the Fourteenth Amendment to inform a
defendant that mandatory lifetime electronic monitoring is a
consequence of his or her guilty or no-contest plea[;]” however, MCR
6.302(B)(2) was subsequently amended to require this advice by the
court).
A trial court’s acceptance of a defendant’s guilty or no contest plea is

implicit proof of the court’s determination that the plea was freely,
understandingly, and voluntarily made. In re Guilty Plea Cases, 395 Mich
96, 126 (1975).
“[T]he court, by questioning the defendant, must establish support for a

finding that the defendant is guilty of the offense charged or the offense
to which the defendant is pleading.” MCR 6.302(D)(1)40; see also MCR
6.610(E)(1)(a). A guilty plea should not be accepted by a trial court until
facts sufficient to establish the defendant’s guilt have been placed on the
record. People v Haack, 396 Mich 367, 375 (1976).
For an accurate nolo contendere plea, the court may not question the
defendant about participation in the crime, but must state why a plea of
nolo contendere is appropriate, and hold a hearing (unless there has
already been one) that establishes support for finding that the defendant
40 However, due process “might not be entirely satisfied by compliance with subrules (B) through (D).” Cole
(David), 491 Mich at 330-332, 337-338 (holding that, “regardless of the explicit wording of” former MCR
6.302(B)-(D), which did not specifically require a trial court to inform a defendant about the possibility of
lifetime electronic monitoring, “a court may be required by the Due Process Clause of the Fourteenth
Amendment to inform a defendant that mandatory lifetime electronic monitoring is a consequence of his
or her guilty or no-contest plea[;]” however, MCR 6.302(B)(2) was subsequently amended to require this
advice by the court).

is guilty of the offense charged or the offense to which the defendant is

pleading. MCR 6.302(D)(2); see also MCR 6.610(E)(1)(b). It is appropriate
for a trial court to rely on a preliminary examination transcript to furnish
the factual basis for a nolo contendere plea. People v Chilton, 394 Mich 34,
38-39 (1975).
“In assessing voluntariness, . . . a defendant entering a plea must be ‘fully

aware of the direct consequences’ of the plea.” Cole (David), 491 Mich at
333, quoting Brady v United States, 397 US 742, 755 (1970). To ensure that a
plea is voluntary, the court must determine whether the parties have
made a plea agreement, “which may include an agreement to a sentence
to a specific term or within a specific range[.]” MCR 6.302(C)(1). Any
agreement “must be stated on the record or reduced to writing and
signed by the parties,”41 and “[t]he written agreement shall be made part
of the case file.” Id.
“For a valid plea agreement, . . . there must be an actual agreement on the

essential features of the plea.” Brinkey, ___ Mich App at ___. “When there
are multiple proposed plea agreements and hearings, . . . reference to a
‘prior plea’ will likely be ambiguous and require some clarification on
the record[.]” Id. at ___ (the trial court abused its discretion in denying
defendant’s motion to withdraw his plea where the record showed “a
lack of clarity with respect to essential features of the plea agreement,
specifically the sentencing parameters”). Although strict compliance
with MCR 6.302 is not essential, “the trial court’s noncompliance [was]
serious in nature” because “the trial court made no [apparent] effort to
ensure that defendant actually knew and understood” the conditions he
was pleading guilty under. Brinkey, ___ Mich App at ___.
The adequacy of the factual basis for a guilty plea is reviewed by

examining “whether the factfinder could properly convict on the facts
elicited from the defendant at the plea proceeding.” People v Brownfield
(After Remand), 216 Mich App 429, 431 (1996), citing People v Booth, 414
Mich 343, 360 (1982).
When a plea is taken and all of the required elements are not satisfied, the
case should be remanded to allow the prosecution to establish the
missing elements. People v Mitchell (Donald), 431 Mich 744, 749-750 (1988).
If the prosecution is able to do so and there is no contrary evidence, the
defendant’s conviction should stand. Id. at 750. However, if the
prosecution is unable to establish that the defendant committed the
offense, the trial court must set aside the defendant’s conviction. Id. If
contrary evidence is produced, the matter should be treated as a motion
to withdraw the guilty plea, and the trial court must exercise its
41 “The parties may memorialize their agreement on a form substantially approved by the SCAO.” MCR

discretion to decide the matter. Id. If the motion is granted, the trial court
must set aside the conviction. Id.
6.6 Specific Required Advice of Rights at Plea

Proceedings
A. Advice About the Right To Counsel42

The right to counsel attaches at all critical stages of the proceedings,
and “[t]he entry of a plea is a critical stage of the proceedings
because it results in the defendant’s conviction.” People v Pubrat, 451
Mich 589, 593-594 (1996), citing Gideon v Wainwright, 372 US 335
(1963). When an indigent defendant may be sentenced to jail
pursuant to a plea obtained in the absence of counsel, the record
must show that the defendant was offered counsel and made an
intelligent and understanding waiver of counsel. See People v Bailey
(David), 7 Mich App 157, 159-160 (1967); MCR 6.610(E)(2).
A defendant’s Sixth Amendment right to counsel attaches at the

defendant’s initial proceeding, regardless of the prosecution’s
involvement in, or awareness of, the proceeding. Rothgery v Gillespie
Co, 554 US 191 (2008). “[T]he negotiation of a plea bargain . . . is
almost always the critical point for a defendant[,]” and thus
“criminal defendants require effective counsel during plea
negotiations[]” even though they occur out of court and the
prosecutor may have little or no notice of a deficiency in defense
counsel’s conduct. Missouri v Frye, 566 US 134, 144 (2012).43 “The
prosecution and the trial courts may adopt some measures to help
ensure against late, frivolous, or fabricated claims after a later, less
advantageous plea offer has been accepted or after a trial leading to
conviction with resulting harsh consequences.” Frye, 566 US at 146.
For example, a party may make any formal offers part of the record
at any plea proceeding or before a trial on the merits. Id.
If the defendant previously waived the assistance of counsel, MCR

6.005(E) (applicable to matters of procedure involving felony
offenses but not expressly applicable to procedural matters
involving offenses cognizable in district court) mandates that the
court advise the defendant of his or her continuing right to an
attorney’s assistance and obtain the defendant’s continued waiver of
42 See Chapter 3 for more information about a defendant’s right to counsel.
43 “[A]s held
by every . . . [federal circuit court of appeals] to consider the issue, . . . Frye[, 566 US 134, did

that right before beginning any court proceeding following the

defendant’s initial waiver. Substantial compliance with the
mandates contained in MCR 6.005(E)(1)-(3) is required. People v
Russell (Lord), 471 Mich 182, 191-192 (2004).
See Chapter 4 for additional discussion of the right to counsel

during criminal proceedings.
B. Advice About the Right to Trial

Before the court accepts a defendant’s guilty or nolo contendere
plea, the court must advise the defendant of the rights the
defendant will waive as a result of pleading guilty, including the
right to trial. MCR 6.302(B)(3)(a); MCR 6.610(E)(3)(b).
A defendant may waive his or her right to a jury trial. MCL 763.3(1)
provides, in part:
“(1) In all criminal cases arising in the courts of this state

the defendant may, with the consent of the prosecutor
and approval by the court, waive a determination of the
facts by a jury and elect to be tried before the court
without a jury.”
See also MCR 6.401.44 A defendant’s election to be tried by the

bench requires the prosecutor’s consent and the court’s approval. Id.
MCL 763.3(1) requires, except in cases of minor offenses, that a

defendant wishing to waive the right to a jury trial make and sign a
written statement of waiver similar in substance to the example
contained in the statute.45 In addition to the written waiver, in cases
involving crimes other than minor offenses, “the waiver of trial by
jury shall be made in open court after the defendant has been
arraigned and has had opportunity to consult with legal counsel.”
MCL 763.3(2).
With the exception of requiring the written waiver, MCR 6.402 (a

rule not specifically made applicable to criminal procedure
involving offenses cognizable in district court, but which may be
instructive where no other rule applies) mirrors the other legislative
requirements of a defendant’s waiver of the right to be tried by a
jury. MCR 6.402 states:
44
Although MCR 6.401 is not specifically applicable to district court proceedings, see MCR 6.001(B), this
rule may be instructive because no similar provision is found in the court rules specifically applicable to
proceedings involving offenses cognizable in district court.
45 See SCAO Form MC 260, Waiver of Trial by Jury and Election to be Tried Without Jury.

“(A) Time of Waiver. The court may not accept a waiver

of trial by jury until after the defendant has been
arraigned or has waived an arraignment on the
information, or, in a court where arraignment on the
information has been eliminated under MCR 6.113(E),
after the defendant has otherwise been provided with a
copy of the information, and has been offered an
opportunity to consult with a lawyer.
(B) Waiver and Record Requirements. Before accepting

a waiver, the court must advise the defendant in open
court of the constitutional right to trial by jury. The court
must also ascertain, by addressing the defendant
personally, that the defendant understands the right
and that the defendant voluntarily chooses to give up
that right and to be tried by the court. A verbatim record
must be made of the waiver proceeding.”
C. Jaworski Rights
A guilty plea cannot be “understandingly” made unless the
defendant has knowledge of the consequences of his or plea.
Automatic reversal is mandated where the record does not
affirmatively show that before pleading guilty, a defendant was
advised that his or her guilty plea waived a trio of constitutional
trial rights known as “Jaworski rights.” See People v Jaworski, 387
Mich 21, 27, 30 (1972) (citations omitted); see also Boykin v Alabama,
395 US 238, 242-244 (1969). The three constitutional rights waived by
a defendant’s guilty plea are:
• the privilege against self-incrimination,
• the right to a trial by jury, and
• the right to confront one’s accusers. Boykin, 395 US at 243

(citations omitted); Jaworski, 387 Mich at 30 (citation
omitted).
MCR 6.302(B)(3) (governing felony pleas) and MCR 6.610(E)(3)(b)

(governing pleas to offenses cognizable in district court) require the
court to advise the defendant of these and other trial rights that the
defendant waives by entering a plea of guilty or nolo contendere.
The Michigan Supreme Court has specifically approved of a trial

court’s “grouping” of a defendant’s rights in the court’s recital of
rights to a defendant. In re Guilty Plea Cases, 395 Mich 96, 114-115
(1975). Provided that the record at a plea proceeding reflects that
none of the three Jaworski rights was omitted, reversal is not
necessarily required where each right is not explained separately or

is imprecisely recited. In re Guilty Plea Cases, 395 Mich at 122.

However, a defendant “is automatically entitled to set aside his or
her plea when reference to those rights, either by their express
enumeration or by reference to [a] written document, is omitted
from the in-court plea proceedings.” People v Al-Shara, 311 Mich
App 560, 577 (2015), citing People v Saffold, 465 Mich 268, 273, 281
(2001); Jaworski, 387 Mich at 31.
D. Method of Recital
The advice of trial rights may be made orally on the record or in a
writing. See MCR 6.302(B)46; MCR 6.610(E)(4).47 If a writing is used
(other than in cases where a plea is made in writing without the
personal appearance of defendant pursuant to MCR 6.610(E)(7)48),
the court must address the defendant and obtain from the
defendant, orally and on the record, a statement that the defendant
has read and understands the rights, and that he or she is waiving
those rights; however, “[t]he waiver may be obtained without
repeating the individual rights.” MCR 6.302(B); MCR 6.610(E)(4).
The trial court must assume the principal burden of advising the
defendant of the required information before accepting a plea. The
purpose of requiring the trial court to personally address the
defendant is to enable the court to “observe [the defendant’s]
demeanor and responses” to the information as he or she receives it,
but the information conveyed to the defendant may come from
sources other than the court. In re Guilty Plea Cases, 395 Mich at 114.
According to the Michigan Supreme Court:
“A guilty plea conviction will not be reversed if the

judge engages in the required colloquy but fails to
mention an item which the record shows was
established through, for example, an opening statement
of or interjection by the prosecutor or defense counsel in
the hearing of the judge and [the] defendant.” Id. at 114-
115.
In People v Harris (Donald), 191 Mich App 422, 423-425 (1991), the
Court of Appeals affirmed a defendant’s conviction of operating
under the influence of intoxicating liquor, third offense (OUIL-3rd),
concluding that the defendant had failed to establish that his earlier
plea-based conviction (his second OUIL conviction, which served as
46 For a felony plea, the writing “may be . . . on a form approved by the State Court Administrative Office.”
MCR 6.302(B). See SCAO Form CC 291, Advice of Rights (Circuit Court Plea).
47
See SCAO Form DC 213, Advice of Rights and Plea Information, for pleas to offenses cognizable in the
district court.
48See Section 6.14(C) for more information on written pleas.

the basis for his OUIL-3rd) was invalid because the trial court had
not informed the defendant of his right to a trial by jury. The Court
noted that the defendant had been provided with written
information about the rights to which he was entitled, and that
MCR 6.610(4)(b)49 allows a defendant to be informed of his or her
trial rights in writing. Harris (Donald), 191 Mich App at 425.
However, “a written advice of rights alone—signed by a defendant

off the record and outside of the court’s presence, and unreferenced
by the court or anyone else during the plea hearing—cannot satisfy,
substantially or otherwise, a trial court’s obligation under MCR
6.610(E)(4) to ensure that the defendant’s plea is understandingly
and voluntarily made with knowledge of his or her Jaworski rights.”
Al-Shara, 311 Mich App at 576. In Al-Shara, 311 Mich App at 563, the
defendant “signed a written ‘Pre-Trial Conference Summary’ form
detailing the terms of [his nolo contendere] plea agreement” and
waiving his trial rights, including his Jaworski rights. However, “[a]t
the plea hearing, the district court . . . referenced [only the]
defendant’s right to a jury trial [and] wholly failed to inform [him]
of his right to remain silent and his right to confront his accusers” as
required under MCR 6.610(E)(3)(b); additionally, the district court
“failed to make any reference to [the] defendant’s execution of a
written advice-of-rights form or to verify that [he] actually read and
understood the rights communicated on the form he signed[ as
required under MCR 6.610(E)(4)].” Al-Shara, 311 Mich App at 573.
The Court of Appeals affirmed the circuit court’s order vacating the
defendant’s plea and remanding for a trial, rejecting the prosecutor’s
contention that the defendant’s signature on the written waiver
form constituted “substantial compliance” with MCR 6.610(E)(4):
“[E]ven when a written advice-of-rights form has been

signed by a defendant, there cannot be a total omission
of any reference during the in-court proceedings to
either the enumerated rights in question or to the form
itself signed by defendant off the record[, and] . . . when
the rights implicated by the plea-taking procedure
include a defendant’s Jaworski rights, the defendant is
automatically entitled to set aside his or her plea when
reference to those rights, either by their express
enumeration or by reference to a written document, is
omitted from the in-court plea proceedings.” Al-Shara,
311 Mich App at 576-577 (emphasis added; citations
omitted).
49 Substantially similar provisions pertaining to advice of rights for felony pleas are found in MCR 6.302(B).

Committee Tip:
The Editorial Advisory Committee emphasizes
the importance of obtaining an oral statement
and waiver from a defendant who was advised
of his or her trial rights in writing. Because some
defendants are functionally illiterate, it is
imperative that the court determine that a
defendant has indeed read and understood
rights provided to him or her in writing. In
addition to the English language, SCAO Form DC
213, Advice of Rights and Plea Information, and
SCAO Form CC 291, Advice of Rights (Circuit
Court Plea), are available in Spanish, Arabic,
Chinese, Hmong, Korean, and Russian versions.
E. Substantial Compliance with Rule Requirements

“When considering whether a trial court complied with the court
rules governing plea proceedings and whether any deviation
entitles a defendant to reversal of his or her plea, [the appellate
court] review[s] under the doctrine of substantial compliance
whether the trial court observed the court rules detailing the plea-
taking procedure.” Al-Shara, 311 Mich App at 571-572, citing Saffold,
465 Mich at 273. “Under [the substantial compliance] doctrine,
literal or ‘talismanic’ compliance with the court rules is not
required.” Al-Shara, 311 Mich App at 572, citing Saffold, 465 Mich at
280; In re Guilty Plea Cases, 395 Mich at 124.50
In Saffold, 465 Mich at 273-276, 281, the Michigan Supreme Court

concluded that automatic reversal is not required when a trial court
fails to advise a defendant of a trial right other than one of the three
Jaworski rights. At the defendant’s plea proceeding, the trial court
did not advise him that by tendering a guilty plea, he waived the
presumption of innocence; however, earlier on the same day, the
defendant was present when the judge instructed the jury (which
had convened before the defendant entered his plea) that the
defendant was innocent until proven guilty beyond a reasonable
50 The Al-Shara Court noted that the district court had “mistakenly relied on [People v Ward, 459 Mich 602,
611-614 (1999), opinion corrected on denial of reh 460 Mich 1204 (1999)], in which the Court did not apply
the doctrine of substantial compliance but instead emphasized that withdrawal of a guilty plea after
conviction and sentencing is disfavored and subject to a showing of a miscarriage of justice[;]” rather,
where a defendant raises “a timely motion to set aside a plea in accordance with the temporal restraints
set forth in MCR 6.610(E)(8), the . . . case is not a collateral attack subject to review under Ward[, 459 Mich
at 611-614, but] . . . is instead properly considered under the principles of [Saffold, 465 Mich 268].” Al-
Shara, 311 Mich App at 571-572 n 6 (additional citations omitted).

doubt. Saffold, 465 Mich at 270, 279. The Saffold Court concluded that
although the trial court had not strictly complied with the
requirements of MCR 6.302(B)(3),51 there existed substantial
compliance with the rule sufficient to have alerted the defendant to
the fact that a guilty plea waived the defendant’s right to trial and
the attendant constitutional rights. Saffold, 465 Mich at 271, 280.
“Under the court rule, a failure to state one of the rights at the plea
hearing does not require vacating the conviction where[] . . . the
[trial] court has directly addressed the defendant regarding the
enumerated rights generally and the defendant has otherwise been
informed adequately of the omitted right.” Id. at 280.
However, “it remains the rule in Michigan that failure to advise a

defendant of his or her Jaworski rights during plea proceedings
mandates automatic reversal and the setting aside of the defendant’s
plea.” Al-Shara, 311 Mich App at 572 (citing Saffold, 465 Mich at 273,
and holding that the defendant was automatically entitled to set
aside his plea where there was a “total omission of two of the three
Jaworski rights from the record of [the] defendant’s plea
proceedings[]” and where the district court “failed to make any
reference to [the] defendant’s execution of a written advice-of-rights
form or to verify that [the] defendant actually read and understood
the rights communicated on the form he signed[]”) (additional
citations omitted).
However, where the defendant “signed an advice of rights

form[] . . . recit[ing] the rights contained in MCR 6.302(B)(3)
verbatim[,]” and where he “affirmed that these rights were read to
him, that he understood them, and that he understood he was
relinquishing these rights by pleading guilty[,]” the trial court
properly complied with MCR 6.302(B), even if the defendant could
not personally read the form due to his limited literacy; “MCR
6.302(B) does not specify a reader—only that the rights on the form
were read and understood.” People v Winters, 320 Mich App 506, 512
(2017).
In Al-Shara, 311 Mich App at 573 n 7 (citations omitted), the Court of

Appeals specifically addressed the application of the “substantial
compliance” doctrine to pleas taken in district court:
“While MCR 6.610 is not identical to its circuit court

counterpart, MCR 6.302, the two rules nonetheless share
many common features and the same overarching aim
to inform a defendant of the rights waived by entering a
plea, as well as the consequences of a plea. Hence, . . .
51
Substantially similar provisions pertaining to advice of rights in district court are found in MCR
6.610(E)(3)(b).

like a circuit court under MCR 6.302, a district court

need not conduct the colloquy described in MCR 6.610
verbatim, but it must substantially comply with the
rule. And as in the circuit court, whether reversal is
required will depend on the nature of the
noncompliance, bearing in mind that omission of a
Jaworski right requires automatic reversal because such a
defect is intrinsically harmful and cannot be corrected
on remand. Where a Jaworski right is not implicated,
whether a deviation occurred is judged under the
substantial compliance doctrine, and under MCR
6.610(E)(8), a defendant is only entitled to relief if the
deviation affected his or her substantial rights.”
“Because trial rights and sentencing consequences are distinct,” the

substantial compliance doctrine does not apply to violations of
MCR 6.302(B)(2) (applicable to offenses cognizable in circuit court,
requiring a trial court to advise defendant of mandatory minimum
sentence and maximum possible prison sentence).52 People v Brown
(Shawn), 492 Mich 684, 698 (2012). However, where the trial court
incorrectly advised the defendant that the maximum term of
imprisonment for the offense “was 20 years when the correct
maximum was 10 years[,]” the defendant was not entitled to
withdraw his plea; “[b]ecause [the] defendant was not told that he
was facing a shorter sentence than he actually was, he [could not]
show that he was prejudiced[]” by the trial court’s error. Winters, 320
Mich App at 509-511 (interpreting the requirement in MCR
6.302(B)(2) to advise the defendant of the maximum possible
penalty for conviction).
On the other hand, the defendant was “entitled to withdraw his plea
in its entirety[]” where the prosecutor, when informing the trial
court of the plea agreement and reciting the maximum sentences for
the eight offenses to which the defendant pleaded guilty, failed to
state the maximum possible sentence for the offense of felon in
possession of a firearm; “[g]iven the requirements of MCR 6.302, . . .
[the] defendant’s guilty plea was not understandingly entered[,]”
and the prosecutor’s “omission rendered [the] plea proceeding
defective.” People v Pointer-Bey, 321 Mich App 609, 616, 617 (2017).
When a plea is taken and all of the required elements are not
satisfied, the case should be remanded to allow the prosecution to
establish the missing elements. People v Mitchell (Donald), 431 Mich
744, 749-750 (1988). If the prosecution is able to do so and there is no
contrary evidence, the defendant’s conviction should stand. Id. at
52
A substantially similar provision pertaining to advice of rights in district court is found in MCR
6.610(E)(3)(a).

750. However, if the prosecution is unable to establish that the

defendant committed the offense, the trial court must set aside the
defendant’s conviction. Id. If contrary evidence is produced, the
matter should be treated as a motion to withdraw the guilty plea,
and the trial court must exercise its discretion to decide the matter.
Id. If the motion is granted, the trial court must set aside the
conviction. Id.
6.7 Deferral
A. Taking Plea Under Advisement

A court may take a defendant’s felony plea or plea agreement
“under advisement.” MCR 6.302(C)(3)(d); MCR 6.302(F). “A
verbatim record must be made of the plea proceeding.” MCR
6.302(F). See also People v Eloby (After Remand), 215 Mich App 472,
474 (1996) (noting that, under MCR 6.302(C), “[w]hen a prosecutor
and a defendant agree to a specific disposition in exchange for a
guilty plea or a plea of nolo contendere, the trial court can either
accept or reject the plea, take the plea under advisement, or defer
action until the court has had an opportunity to consider the
presentence report[]”) (additional citation omitted). No similar
provision exists in the court rules concerning offenses over which
the district court has jurisdiction.53
MCL 257.732(21), as amended, explicitly prohibits courts from

taking under advisement any traffic offense that requires reporting
to the Secretary of State:
“Notwithstanding any other law of this state, a court

shall not take under advisement an offense committed
by a person while operating a motor vehicle for which
[the Michigan Vehicle Code] requires a conviction or
civil infraction determination to be reported to the
secretary of state. A conviction or civil infraction
determination that is the subject of this subsection shall
not be masked, delayed, diverted, suspended, or
suppressed by a court. Upon a conviction or civil
infraction determination, the conviction or civil
infraction determination shall immediately be reported
to the secretary of state in accordance with this section.”
53

B. Deferred Adjudication Provisions and Problem-Solving

Courts
There are several specific statutes authorizing a court to defer
sentencing a defendant for a plea-based conviction provided the
defendant complies with any terms or conditions on which the
period of deferment is based.
In addition to the provisions discussed below, discharge and

dismissal of proceedings may be available in a state-certified
treatment court54, which includes a drug treatment court, see MCL
600.1060 et seq.; a mental health court, see MCL 600.1090 et seq.; a
juvenile mental health court, see MCL 600.1099b et seq.; or a veterans
treatment court, see MCL 600.1200 et seq.55 A case may be
completely transferred from a court of original jurisdiction to a
state-certified treatment court, prior to or after adjudication, if those
courts—with the approval of the chief judge and assigned judge of
each court, a prosecuting attorney from each court, and the
defendant—have executed a memorandum of understanding as
provided in MCL 600.1088(1)(a)-(e). MCL 600.1088(1).
Unless a memorandum of understanding provides otherwise, the

original court of jurisdiction maintains jurisdiction over the
participant in a drug treatment court, mental health court, or a
veteran’s treatment court until final disposition of the case, but not
longer than the probation period established under MCL 771.2.
MCL 600.1070(2); MCL 600.1095(2); MCL 600.1206(2).
Unless a memorandum of understanding provides otherwise, the

original court of jurisdiction maintains jurisdiction over a
participant in a juvenile mental health court until final disposition
of the case. MCL 600.1099h(b). The court may also “receive
jurisdiction over the juvenile’s parents or guardians under . . . MCL
712A.6, in order to assist in ensuring the juvenile’s continued
participation and successful completion of the juvenile mental
health court and may issue and enforce any appropriate and
necessary order regarding the parent or guardian.” MCL
600.1099h(b).
For a thorough discussion of problem-solving courts and deferred

adjudication, see the Michigan Judicial Institute’s Criminal
Proceedings Benchbook, Vol. 2, Chapter 3. For more information on
problem-solving courts in general, see the One Court of Justice
website.
54 See MCL 600.1088(2).
55 A fifth type of state-certified treatment court, DWI/sobriety court, is governed by MCL 600.1084. See
the Michigan Judicial Institute’s Traffic Benchbook, Chapter 9, for more information.

Other statutes authorizing deferred adjudication include the

following:
• MCL 333.7411, Controlled Substances Act
• MCL 333.7411(1)56 permits a sentencing court to

defer further proceedings on a first-time offender’s
conviction, whether by guilty plea or guilty verdict,
for possession or use of specified controlled
substances for a period of up to one year. Included in
the statutory offenses listed in MCL 333.7411 for
which deferment is authorized are several
misdemeanor offenses punishable by as much as one
year and as little as 90 days. See e.g., MCL
333.7403(2)(c) and MCL 333.7404(2)(a)-(d).
• When a court opts to defer adjudication under MCL

333.7411(1), no judgment of guilt is entered on the
record, and the offender must consent to the
deferment. When the offender is placed on probation
in lieu of immediate sentencing, the terms and
conditions of his or her probation must include
payment of a probation supervision fee described in
MCL 771.3c. Participation in a drug treatment court is
a term or condition that may be imposed on a
defendant under § 7411 deferral.
• If the offender violates a term or condition of

probation, “the court may enter an adjudication of
guilt and proceed as otherwise provided.” MCL
333.7411(1).
• When an offender fulfills the terms and conditions of

his or her period of deferment, the court must
discharge the offender and dismiss the offender’s case
without an adjudication of guilt. Except as otherwise
provided by law, “[d]ischarge and dismissal under
[MCL 333.7411] . . . is not a conviction for purposes of
[MCL 333.7411] or for purposes of disqualifications or
disabilities imposed by law upon conviction of a
crime, including the additional penalties imposed for
second or subsequent convictions under [MCL
333.]7413.” MCL 333.7411(1). A person is entitled to
only one discharge and dismissal under MCL
333.7411. MCL 333.7411(1).
• All court proceedings under MCL 333.7411 are open

to the public. MCL 333.7411(2). “[I]f the record of
56
MCL 333.7411(1) is the statutory deferment provision in the Controlled Substances Act, MCL 333.7101
et seq.

proceedings . . . is deferred under [MCL 333.7411], the

record of proceedings during the period of deferral
shall be closed to public inspection.” MCL
333.7411(2). However, unless a judgment of guilt is
entered, the Department of State Police must retain a
nonpublic record of the arrest, court proceedings, and
disposition of the charge. MCL 333.7411(3). This
nonpublic record is open, for limited purposes as set
out in MCL 333.7411(3)(a)-(c), to courts, law
enforcement personnel, prosecuting attorneys, the
Department of Corrections, and the Department of
Health and Human Services. MCL 333.7411(3).
• MCL 750.350a(4), Parental Kidnapping Act
• Deferment is available to a parent convicted by plea

or verdict if the parent has no previous kidnapping-
related convictions.
• Without entering an adjudication of guilt and with

the parent’s consent, the court may defer further
proceedings and place the parent on probation
pursuant to lawful terms and conditions.
• Participation in a drug treatment court may be made

a term or condition of deferral.
• If the parent violates a term or condition of probation,

the court may enter an adjudication of guilt and
proceed as otherwise authorized.
• If the parent fulfills the terms and conditions of

probation, the court must discharge the parent from
probation and dismiss the proceedings against him or
her.
• Discharge and dismissal is without an adjudication of

guilt and is not a conviction for purposes of
disqualification or disabilities imposed by law for
conviction of a crime, including any additional
penalties imposed for second or subsequent
convictions.
• A parent is entitled to only one discharge and

dismissal under MCL 750.350a. MCL 750.350a(4).
• All court proceedings under MCL 750.350a are open

to the public. MCL 750.350a(5). “[I]f the record of
proceedings . . . is deferred under [MCL 750.350a], the
shall be closed to public inspection.” MCL
750.350a(5). However, unless a judgment of guilt is

entered, the Department of State Police must retain a

nonpublic record of the arrest, court proceedings, and
disposition of the charge. MCL 750.350a(6). This
out in MCL 750.350a(6)(a)-(c), to courts, law
Health and Human Services. MCL 750.350a(6).
• MCL 750.451c, Prostitution Offenses Committed By

Human Trafficking Violation Victims
• Deferment is available under MCL 750.451c for

certain enumerated prostitution-related offenses “if
the violation . . . was committed as a direct result of
the individual being a victim of a human trafficking
violation.” MCL 750.451c(1).
• The offender “bears the burden of proving to the

court by a preponderance of the evidence that the
violation was a direct result of his or her being a
victim of human trafficking.” MCL 750.451c(2)(a).
• Without entering a judgment of guilt and with the

consent of the offender and the prosecuting attorney,
the court may defer the proceedings, place the
offender on probation, and impose any conditions
permitted under MCL 771.3 or MCL 750.451c(4).
MCL 750.451c(2); MCL 750.451c(4).
• The court may enter an adjudication of guilt upon a

violation of a term or condition of probation. MCL
750.451c(3).
• The court must enter an adjudication of guilt if the

offender commits an enumerated offense or violates
an order that he or she receive counseling for violent
behavior or that he or she have no contact with a
named individual. MCL 750.451c(5).
• Upon fulfillment of the terms and conditions of

probation, the court must discharge the offender and
dismiss the proceedings without adjudication of
guilt. MCL 750.451c(6). Discharge and dismissal “is
not a conviction for purposes of [MCL 750.451c] or for
purposes of disqualifications or disabilities imposed
by law upon conviction of a crime.” MCL 750.451c(6).
• All court proceedings under MCL 750.451c “must be

open to the public.” MCL 750.451c(7). “[I]f the record
of proceedings . . . is deferred . . . , the record of
proceedings during the period of deferral must be

closed to public inspection.” MCL 750.451c(7).

However, unless a judgment of guilt is entered, the
Department of State Police must retain a nonpublic
record, which is open, for limited purposes as set out
in MCL 750.451c(8)(a)-(c), to courts, law enforcement
personnel, prosecuting attorneys, the Department of
Corrections, and the Department of Health and
Human Services. MCL 750.451c(8).
• MCL 762.11(1), Holmes Youthful Trainee Act (HYTA)
• Deferment as a youthful trainee is available to

offenders who plead guilty to a criminal offense,
other than a felony for which the maximum
punishment is life imprisonment, a major controlled
substance offense, a traffic offense, or an enumerated
criminal sexual conduct offense.
• The offense must have occurred on or after the

offender’s 17th birthday but before his or her 24th
birthday.57

a term or condition of deferral. MCL 762.13(1)(b).
• Without entering a judgment of conviction and with

the offender’s consent, the court may assign the
offender to the status of youthful trainee.
• MCL 762.11—MCL 762.14 contain provisions specific

to the terms and conditions of an individual’s
deferment as a youthful trainee.
• MCL 769.4a, Spouse Abuse Act
• Deferment is available to an accused convicted by

plea or verdict if the accused has no previous
convictions for domestic assault against a specified
victim. MCL 769.4a(1).
• Specified victims are the offender’s spouse or former

spouse, a person with whom the offender has had a
child, a person with whom the offender has or has
had a dating relationship, or a person who resides or
has resided in the same household with the offender.
MCL 769.4a(1).
• With the consent of the accused and of the

prosecuting attorney in consultation with the victim,
57 Additionally, an individual over 14 years of age whose jurisdiction has been waived may be eligible for
youthful trainee status. MCL 762.15.

the court may, without entering a judgment of guilt,

defer further proceedings and place the accused on
probation. MCL 769.4a(1).
• The order of probation may require the accused to

pay for and participate in a mandatory counseling
program. MCL 769.4a(3).

a term or condition of deferral. MCL 769.4a(3).
• If the accused violates a term or condition of

probation, the court may enter an adjudication of
guilt and proceed as otherwise authorized. MCL
769.4a(2).
• The court must enter an adjudication of guilt and

proceed as authorized if the accused commits an
assaultive crime during probation. MCL 769.4a(4)(a);
see also MCL 769.4a(8).

proceed as authorized if the accused violates the
court’s order to receive counseling regarding his or
her violent behavior. MCL 769.4a(4)(b).

proceed as authorized if the accused violates the
court’s order that he or she have no contact with a
named individual. MCL 769.4a(4)(c).
• If the accused fulfills the terms and conditions of

probation, the court must discharge the individual
from probation and dismiss the proceedings against
him or her. MCL 769.4a(5).
• A person is entitled to only one discharge and

dismissal under MCL 769.4a. MCL 769.4a(5).
• Discharge and dismissal is without an adjudication of

guilt and is not a conviction for purposes of MCL
769.4a or for purposes of disqualifications or
disabilities imposed by law for conviction of a crime.
However, a discharge and dismissal does constitute a
prior conviction for purposes of a prosecution under
MCL 750.81(3) or MCL 750.81(4)58 (certain repeat
58
Effective July 25, 2016, 2016 PA 87 amended MCL 750.81 (governing domestic assault) by adding new
MCL 750.81(3) to prescribe an additional misdemeanor penalty for the assault or assault and battery of a
pregnant individual, and to add this new offense to provisions prescribing enhanced penalties for
subsequent convictions. Although the amendments resulted in the renumbering of former MCL 750.81(3)
and MCL 750.81(4), MCL 769.4a(5) was not amended accordingly and still refers to the former subsections.

offenses involving domestic assault or assault of a

pregnant individual), or a prosecution under MCL
750.81a(3) for aggravated domestic assault with one
or more previous domestic assault convictions. MCL
769.4a(5).
• All court proceedings under MCL 769.4a are open to

the public. MCL 769.4a(6). “[I]f the record of
proceedings . . . is deferred under [MCL 769.4a], the
shall be closed to public inspection.” MCL 769.4a(6).
However, unless a judgment of guilt is entered, the
Department of State Police must retain a nonpublic
record of the arrest, court proceedings, and
disposition of the charge. MCL 769.4a(7). This
out in MCL 769.4a(7)(a)-(c), to courts, law
Health and Human Services. MCL 769.4a(7).
6.8 Admissibility of Pleas and Plea Discussions

MRE 410 governs the admissibility of pleas, plea discussions, and related
statements:
“Except as otherwise provided in this rule, evidence of the

following is not, in any civil or criminal proceeding,
admissible against the defendant who made the plea or was a
participant in the plea discussions:
(1) A plea of guilty which was later withdrawn;
(2) A plea of nolo contendere, except that, to the extent

that evidence of a guilty plea would be admissible,
evidence of a plea of nolo contendere to a criminal
charge may be admitted in a civil proceeding to support
a defense against a claim asserted by the person who
entered the plea;
(3) Any statement made in the course of any

proceedings under MCR 6.302 or comparable state or
federal procedure regarding either of the foregoing
pleas; or
(4) Any statement made in the course of plea

discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or
which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any

proceeding wherein another statement made in the course of
the same plea or plea discussions has been introduced and
the statement ought in fairness be considered
contemporaneously with it, or (ii) in a criminal proceeding
for perjury or false statement if the statement was made by
the defendant under oath, on the record and in the presence
of counsel.”
“MRE 410(4) does not require that a statement made during plea
discussions be made in the presence of an attorney for the prosecuting
authority[; i]t only requires that the defendant’s statement be made ‘in
the course of plea discussions’ with the prosecuting attorney.” People v
Smart, 497 Mich 950, 950 (2015) (overruling the “statement to the contrary
in People v Hannold, 217 Mich App 382, 391 (1996)[]”).
MRE 803(22) concerns the hearsay exception for a judgment of previous

conviction. Specifically, MRE 803(22) provides that the following is not
excluded by the hearsay rule, even though the declarant is available as a
witness:
“Evidence of a final judgment, entered after a trial or upon a

plea of guilty (or upon a plea of nolo contendere if evidence
of the plea is not excluded by MRE 410), adjudging a person
guilty of a crime punishable by death or imprisonment in
excess of one year, to prove any fact essential to sustain the
judgment, but not including, when offered by the state in a
criminal prosecution for purposes other than impeachment,
judgments against persons other than the accused. The
pendency of an appeal may be shown but does not affect
admissibility.”
6.9 Appealing a Plea-Based Conviction
A. Application for Leave to Appeal

Michigan law does not provide an appeal of right to defendants
convicted by plea. See Const 1963, art 1, § 20. Appeal from a plea-
based conviction is by application for leave to appeal. Id.; MCL
770.3(1)(d). See also MCR 6.302(B)(5); MCR 7.103(A)(1).59
MCR 7.105(A)(1)-(2) provides:
59 According to MCR 6.625, which makes no distinction between appeals based on convictions by plea or
verdict, subchapter 7.100 of the Michigan Court Rules governs appeals in misdemeanor cases.

“An application for leave to appeal must be filed with

the clerk of the circuit court within:
(1) 21 days or the time allowed by statute after

entry of the judgment, order, or decision appealed,
or
(2) 21 days after the entry of an order denying a

motion for new trial, a motion for rehearing or
reconsideration, or a motion for other relief from
the judgment, order, or decision if the motion was
filed within:
(a) the initial 21-day period, or
(b) such further time as the trial court or

agency may have allowed during that 21-day
period.”
Additionally, if a defendant who has pleaded guilty or nolo

contendere requests appointment of counsel within 21 days after
entry of the judgment or sentence, “an application must be filed
within 21 days after entry of an order:
(a) appointing or denying the appointment of an

attorney, or
(b) denying a timely filed motion described in [MCR

7.105(A)](2).” MCR 7.105(A)(3).
When an application for leave has not been timely filed, an

appellant may file a late application, following the procedures for
filing an application for leave, accompanied by a statement of facts
explaining the delay. MCR 7.105(G)(1). “The answer may challenge
the claimed reasons for the delay[, and t]he circuit court may
consider the length of and the reasons for the delay in deciding
whether to grant the application.” Id. A defendant must challenge
his or her guilty plea within the time allotted for applications for
delayed leave to appeal in circuit court under MCR 7.105(G)(2); that
is, a defendant must appeal a plea-based conviction no later than six
months after entry of the judgment or entry of an order denying a
motion to withdraw the plea. MCR 6.610(E)(8); MCR 7.105(G)(2)(a);
MCR 7.105(G)(2)(c); see also People v Clement, 254 Mich App 387,
390-391 (2002) (applying former MCR 7.103(B)(6)).
B. Appointment of Appellate Counsel

In Halbert v Michigan, 545 US 605 (2005), the United States Supreme
Court concluded that an indigent defendant who is seeking a

discretionary appeal of his or her conviction and was convicted by

plea may not be denied the appointment of appellate counsel.60
Specifically, the Halbert Court held “that the Due Process and Equal
Protection Clauses require the appointment of counsel for
defendants, convicted on their pleas, who seek access to first-tier
review in the Michigan Court of Appeals.” Halbert, 545 US at 610.
The Halbert Court examined Michigan’s appellate court system and
noted that an appeal to the Michigan Court of Appeals, whether by
right or by leave, is a defendant’s first-tier appeal and that, to some
degree, the Court of Appeals’ disposition of these appeals involves a
determination of the appeals’ merit. The Halbert Court noted that
“indigent defendants pursuing first-tier review in the Court of
Appeals are generally ill-equipped to represent themselves,” a
critical fact considering that the Court of Appeals’ decision on those
defendants’ applications for leave to appeal may entail an
adjudication of the merits of the appeal.
“Whether formally categorized as the decision of an

appeal or the disposal of a leave application, the Court
of Appeals’ ruling on a plea-convicted defendant’s
claims provides the first, and likely the only, direct
review the defendant’s conviction and sentence will
receive.” Id. at 619.
“Halbert should not be applied retroactively to cases in which a

defendant’s conviction has become final.” People v Maxson, 482 Mich
385, 387 (2008). However, “[f]or those indigent defendants whose
pleas were taken after Halbert was issued, but before the repeal of
MCL 770.3a,61 there can be no finding of waiver[ of the right to
counsel; b]ecause indigent defendants whose pleas were taken after
June 23, 2005, but before January 9, 2007, could not have clearly
understood that they had the right to appointed counsel, they could
not have executed a knowing and intelligent waiver of this right.”
People v Billings, 283 Mich App 538, 544-545 (2009).
See also People v James (William), 272 Mich App 182, 196-198 (2006)
(noting that, pursuant to Halbert, 545 US 605, the defendant had “not
waive[d] his right to the appointment [of appellate counsel] at the
time of entering his guilty plea on the basis of the circuit court’s
mere advisement that waiver would occur[,]” and holding that
because no right to appellate counsel existed at the time the
60
Halbert overruled the Michigan Supreme Court’s decisions in People v Harris (Melody), 470 Mich 882
(2004), and People v Bulger, 462 Mich 495 (2000), and nullified former MCL 770.3a(1) and MCL 770.3a(4),
which addressed the appointment of appellate counsel, or the waiver of appointed appellate counsel, to
indigent defendants convicted by plea.
61 Repealed, effective January 9, 2007. See 2006 PA 655.

defendant pleaded guilty, the defendant could not have

“intentionally relinquish[ed] a known right[]”).
C. Appeal Following the Execution of an Appeal Waiver

“[N]o appeal waiver serves as an absolute bar to all appellate
claims,” despite the suggestion that an appeal waiver entered at the
time of a guilty plea is “a monolithic end to all appellate rights.”
Garza v Idaho, ___ US ___, ___ (2019). “[W]hile signing an appeal
waiver means giving up some, many, or even most appellate claims,
some claims nevertheless remain.” Id. at ___ (noting that “even a
waived appellate claim can still go forward if the prosecution
forfeits or waives the waiver”). “[D]efendants retain the right to
challenge whether the waiver itself is valid and enforceable–for
example, on the grounds that it was unknowing or involuntary.” Id.
at ___ (finding that “when an attorney’s deficient performance costs
a defendant an appeal that the defendant otherwise would have
pursued, prejudice to the defendant should be presumed [regarding
a claim of ineffective assistance of counsel] . . . even when the
defendant has, in the course of pleading guilty, signed what is often
called an ‘appeal waiver’”62).
D. No Appeal on Grounds Related to Factual Guilt or

Nonjurisdictional Defects
Generally, guilty and nolo contendere pleas waive all
nonjurisdictional defects in the proceedings. People v New, 427 Mich
482, 488, 491 (1986); see also People v Eaton, 184 Mich App 649, 653-
654 (1990). However, an unconditional guilty or no contest plea does
not necessarily waive a defendant’s right to challenge the state’s
jurisdictional authority to bring the defendant to trial. New, 427 Mich
at 495-496; Eaton, 184 Mich App at 658.63
A defendant may not appeal a plea-based conviction on grounds

related to the prosecution’s capacity to prove the defendant’s factual
guilt—an appellate challenge to the state’s evidence against the
defendant is subsumed by a defendant’s guilty plea. New, 427 Mich
62See
the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Volume 3, Chapter 1, for more
information on postjudgment motions and ineffective assistance of counsel.
63
Jurisdictional defects have been found where a defendant raises issues such as “improper personal
jurisdiction, improper subject matter jurisdiction, double jeopardy, imprisonment when the trial court had
no authority to sentence [the] defendant to the institution in question, and the conviction of a defendant
for no crime whatsoever.” People v Carpentier, 446 Mich 19, 47-48 (1994) (Riley, J., concurring) (citations
omitted). Nonjurisdictional defects include violations of the Interstate Agreement on Detainers (IAD),
People v Wanty, 189 Mich App 291, 293 (1991); noncompliance with the 180-day rule, People v Eaton, 184
Mich App 649, 657-658 (1990); and claims of unlawful search and seizure, People v West (Halton), 159
Mich App 424, 426 (1987).

at 491. The same is true for a defendant’s appeal of a conviction

based on a plea of nolo contendere:
“Since a plea of nolo contendere indicates that a

defendant does not wish to contest his [or her] factual
guilt, any claims or defenses which relate to the issue of
factual guilt are waived by such a plea. Claims or
defenses that challenge a state’s capacity or ability to
prove [the] defendant’s factual guilt become irrelevant
upon, and are subsumed by, a plea of nolo
contendere. . . . Only those defenses which
challenge the very authority of the state to prosecute a
defendant may be raised on appeal after entry of a plea
of nolo contendere.” Id. at 493 (citations omitted).
E. Appeals Challenging the Constitutionality of the

Underlying Statute
“[A] guilty plea by itself” does not bar a defendant “from
challenging the constitutionality of the statute of conviction on
direct appeal.” Class v United States, 583 US ___, ___ (2018) (holding
the federal defendant could raise his constitutional claims that the
statute under which he was convicted violated the Second
Amendment and the Due Process Clause where these claims did
“not fall within any of the categories of claims that [his] plea
agreement forbid[],” such as claims that contradict the terms of an
indictment or written plea agreement or claims based on case-
related constitutional defects that occurred before entry of the plea,
but rather, challenged “the Government’s power to criminalize [his]
(admitted) conduct”).
6.10 Collateral Attack on Uncounseled Plea or Conviction

Used for Purpose of Enhancing Charge or Sentence
The Sixth Amendment right to counsel requires that all criminal
defendants must be afforded counsel. Gideon v Wainwright, 372 US 335,
342-345 (1963). A sentencing judge may not consider a conviction that is
invalid under Gideon, 372 US 335, when imposing sentence. People v
Moore (Reuben), 391 Mich 426, 440 (1974) (citation omitted). Prior
convictions, where the record indicates that there was no counsel or
formal waiver of counsel (when a right to counsel existed), may not be
used to enhance punishment in a subsequent proceeding. People v Garvie,
148 Mich App 444, 453 (1986); People v Schneider, 132 Mich App 214, 216
(1984) (citations omitted).
MCR 6.610(F)(3) incorporates this constitutional principle:

“Unless a defendant who is entitled to appointed counsel is

represented by an attorney or has waived the right to an
attorney, a subsequent charge or sentence may not be
enhanced because of this conviction and the defendant may
not be incarcerated for violating probation or any other
condition imposed in connection with this conviction.”
“[A]s a matter of federal law, a criminal defendant possesses the

constitutional right to collaterally challenge a prior conviction that is
used to enhance a sentence when that defendant alleges that the prior
conviction was procured in violation of the Sixth Amendment right to
counsel.” People v Carpentier, 446 Mich 19, 28-29 (1994), citing Custis v
United States, 511 US 485, 487 (1994) (additionally noting that the United
States Supreme Court “expressly limited the availability of collateral
challenges to these particular Sixth Amendment violations and refused to
extend the opportunity for relief to other alleged constitutional
infirmities[]”).
A violation of the right to counsel with respect to a prior plea-based

conviction is also subject to collateral attack under Michigan law. People v
Ingram, 439 Mich 288, 296-297 (1992) (citations omitted). While the state
has “a compelling interest in championing the finality of criminal
judgments[,] . . . Michigan has recognized the unique import of a
defendant’s constitutional right to counsel.” Carpentier, 446 Mich at 29,
citing Ingram, 439 Mich 288 (additional citation omitted). “[A]n alleged
Gideon[, 372 US 335,] violation constitutes a jurisdictional defect that may
be collaterally challenged by a convicted criminal defendant.” Carpentier,
446 Mich at 29-30, citing Custis, 511 US 485. “A collateral attack on a prior
conviction underlying a present charge may not be made after a defendant’s
plea of guilty to the present charge is accepted.” People v Roseberry, 465
Mich 713, 723 (2002) (emphasis added).
However, a prior plea-based misdemeanor conviction, obtained without

benefit of counsel but for which no incarceration was imposed, may be
used in a subsequent criminal prosecution for purposes of sentence
augmentation. People v Reichenbach, 459 Mich 109, 120 (1998) (holding that
“under both the federal and state constitutions, a defendant accused of a
misdemeanor is entitled to appointed trial counsel only if ‘actually
imprisoned[]’”). See also Nichols v United States, 511 US 738, 746-747
(1994) (holding that the use of an uncounseled misdemeanor conviction,
where no prison term was imposed, to enhance the prison term for a
subsequent offense was consistent with the Sixth and Fourteenth
Amendments, because reliance on those types of convictions is consistent
with the traditional understanding of the sentencing process, which is
less exacting than the process of establishing guilt).

Part B: Procedures Specific to Misdemeanor Pleas64
6.11 Introduction
A. Available Pleas
A defendant charged with a misdemeanor offense cognizable in
district court may stand mute or plead not guilty, guilty, or nolo
contendere. See MCL 774.1a—MCL 774.1c; MCR 6.610(E). These
plea alternatives and their applicability to offenses over which the
district court has jurisdiction are discussed in detail in the following
sections.
B. Applicable Court Rules

Subchapter 6.600 of the Michigan Court Rules, the section devoted
to criminal procedure in district court, contains all the information
expressly applicable to plea proceedings in district court for offenses
over which the district court has trial jurisdiction. Subchapter MCR
6.300 (Pleas) contains detailed information about the kinds of pleas
available to defendants charged with criminal offenses cognizable
by circuit courts. MCR 6.001(A). MCR 6.001(B) does not include
subchapter 6.300 in its list of court rules applicable to misdemeanor
plea proceedings in district court. However, provisions contained in
subchapter 6.300 pertaining to plea proceedings involving offenses
cognizable in circuit court may be instructive whenever MCR 6.610
does not supply a rule specific to plea proceedings involving
offenses cognizable in district court.
6.12 Authority of District Court Judges and Magistrates to

Accept Misdemeanor Pleas65
The district court has jurisdiction over all proceedings involving
misdemeanors punishable by a fine or imprisonment not exceeding 1
year, or both, and ordinance and charter violations punishable by a fine
or imprisonment, or both. MCL 600.8311(a)-(b); see also MCR 6.008(A). A
district court has the same power to hear and determine matters within
its jurisdiction as does a circuit court over matters within the circuit
64
This Part discusses the procedures that are specifically applicable to pleas involving misdemeanor
offenses over which the district court has trial jurisdiction. See Chapter 2 for discussion of district court
jurisdiction. See Part C for discussion of procedures specifically applicable to pleas involving felony offenses
and circuit court misdemeanors.
65 See Chapter 2 for a thorough discussion of the jurisdiction of district court judges and magistrates.

court’s jurisdiction. MCL 600.8317. A district judge must take a plea “as
provided by court rule if a plea agreement is reached between the
parties.” MCL 766.4(3).
MCR 6.008(C)-(E) provide guidance regarding circuit court jurisdiction

following bindover in the event that the defendant ultimately pleads
guilty to or is convicted of a misdemeanor offense that would normally
be cognizable in the district court.
• Misdemeanor pleas. “The circuit court retains jurisdiction over

any case in which a plea is entered or a verdict rendered to a
charge that would normally be cognizable in the district court.”
MCR 6.008(C).

bound over to circuit court on a felony that either plead guilty
to, or are found guilty of, a misdemeanor.” MCR 6.008(D).
• Concurrent jurisdiction and probation officers. “As part of a

concurrent jurisdiction plan, the circuit court and district court
may enter into an agreement for district court probation
officers to prepare the presentence investigation report and
supervise on probation defendants who either plead guilty to,
or are found guilty of, a misdemeanor in circuit court. The case
remains under the jurisdiction of the circuit court.” MCR
6.008(E).
To the extent expressly authorized by the chief judge, presiding judge, or

only judge of the district, MCL 600.8512a permits a district court
magistrate to:
“(a) Accept an admission of responsibility, decide a motion to

set aside a default or withdraw an admission, and order civil
sanctions for a civil infraction and order an appropriate civil
sanction permitted by the statute or ordinance defining the
act or omission.
(b) Accept a plea of guilty or nolo contendere and impose

sentence for a misdemeanor or ordinance violation
punishable by a fine and which is not punishable by
imprisonment by the terms of the statute or ordinance
creating the offense.”
Additionally, subject to the chief district judge’s approval, a district court

magistrate has the authority to accept pleas for specified offenses. See
MCL 600.8511(a)-(c).

6.13 Record Requirements for Plea Proceedings

Except when a writing is permitted by law or by court rule, a verbatim
record of plea proceedings in district court is required. MCL 600.8331;
MCR 6.610(C). MCR 6.610(E)(5) specifically requires district courts to
place plea agreements on the record:
“The court shall make the plea agreement a part of the record
and determine that the parties agree on all the terms of that
agreement. The court shall accept, reject or indicate on what
basis it accepts the plea.”66
See also MCL 774.1a (providing that, at arraignment, the defendant’s plea
must be entered in the district court’s minutes).
6.14 Entering a Plea

At arraignment, a defendant charged with a misdemeanor or ordinance
violation must enter a plea after the court has informed the defendant of
the charge as it is stated in the warrant or complaint. MCL 774.1a.
A. Standing Mute or Pleading Not Guilty

If the defendant refuses to enter a plea at arraignment, the court
must order that a plea of not guilty be entered. MCL 774.1a.
With the court’s permission, a defendant may stand mute or plead

not guilty without a formal arraignment by filing a written
statement signed by the defendant and any defense attorney of
record. MCR 6.610(D)(4) states:

guilty or to stand mute without formal arraignment by
filing a written statement signed by the defendant and
any defense attorney of record, reciting the general
nature of the charge, the maximum possible sentence,
the rights of the defendant at arraignment, and the plea
to be entered. The court may require that an appropriate
bond be executed and filed and appropriate and
reasonable sureties posted or continued as a condition
precedent to allowing the defendant to be arraigned
without personally appearing before the court.”
66 See Section 6.3 for discussion of plea agreements and sentencing bargains.

B. Pleading Guilty or Nolo Contendere

MCR 6.610(E) outlines the required procedure by which a district
court may accept a defendant’s plea of guilty or nolo contendere.
MCR 6.302 outlines the same procedure, albeit with more detail, for
accepting a defendant’s plea of guilty or no contest to a charged
offense cognizable in circuit court.67 Before accepting the plea, the
district court must “determine that the plea is understanding,
voluntary, and accurate.” MCR 6.610(E)(1).
C. Written Plea of Guilty or Nolo Contendere

Under very specific circumstances, a case may be completely
disposed of in writing and without the defendant ever having to
appear personally before the court. Provided some additional
requirements are met, MCR 6.610(E)(7) permits a defendant to enter
a written plea of guilty or no contest. “Pleas by mail” are regularly
used to accommodate traffic offenders from out of state. See SCAO
Form DC 223, Plea by Mail. MCR 6.610(E)(7) states:
“A plea of guilty or nolo contendere in writing is

permissible without a personal appearance of the
defendant and without support for a finding that
defendant is guilty of the offense charged or the offense
to which the defendant is pleading if
(a) the court decides that the combination of the

circumstances and the range of possible sentences
makes the situation proper for a plea of guilty or
nolo contendere;
(b) the defendant acknowledges guilt or nolo

contendere, in a writing to be placed in the district
court file, and waives in writing the rights
enumerated in [MCR 6.610(E)(3)(b)]; and
(c) the court is satisfied that the waiver is

voluntary.
A ‘writing’ includes digital communications,

transmitted through electronic means, which are
capable of being stored and printed.”
67
Although MCR 6.302 is not specifically applicable to offenses cognizable in district court, see MCR
6.001(B), it may be instructive.

6.15 Guilty and Nolo Contendere Pleas68

The court rules expressly applicable to procedural matters involving
criminal offenses cognizable in district court and those offenses
cognizable in circuit court each contain provisions concerning guilty
pleas and nolo contendere (no contest)69 pleas. MCR 6.610(E) outlines the
required procedure by which a district court may accept a defendant’s
plea of guilty or nolo contendere. MCR 6.302 outlines the same
procedure, albeit with more detail, for accepting a defendant’s plea of
guilty or no contest to a charged offense cognizable in circuit court.70 See
the Michigan Judicial Institute’s Criminal Pretrial/Trial Quick Reference
Materials web page for several resources that may prove useful in
conducting plea proceedings involving guilty and no contest pleas.
“Before accepting a plea of guilty or nolo contendere, the [district] court

shall in all cases comply with [MCR 6.610].” MCR 6.610(E). MCR
6.610(E)(1) provides:
“The court shall determine that the plea is understanding,

voluntary, and accurate. In determining the accuracy of the
plea,
(a) if the defendant pleads guilty, the court, by

questioning the defendant, shall establish support for a
finding that [the] defendant is guilty of the offense
charged or the offense to which the defendant is
pleading, or
(b) if the defendant pleads nolo contendere, the court

shall not question the defendant about the defendant’s
participation in the crime, but shall make the
determination on the basis of other available
information.”
MCR 6.302 describes a detailed process by which the circuit court is to

determine whether a plea is understanding, voluntary, and accurate.71
See MCR 6.302(B)-(D).
68 See Section 6.3 for discussion of sentence bargains.
69 A no contest plea is generally recognized as an alternative to a guilty plea. See MCR 6.610(E)(1)(b).
70
71

6.16 Required Advice of Rights at Plea Proceedings

MCR 6.610(E)(1)-(9) governs plea proceedings when the charged offense
is cognizable in district court. This section discusses in detail a district
court’s obligations when a defendant pleads guilty or no contest to an
offense over which the district court has jurisdiction.
See Section 6.6(C) for a detailed discussion of advice of trial rights,

including “Jaworski rights,”72 and the permissible grouping of these
rights.
See the Michigan Judicial Institute’s Criminal Pretrial/Trial Quick

Reference Materials web page for a checklist and flowchart for
proceedings involving misdemeanor guilty and no contest pleas, and a
flowchart for proceedings involving misdemeanor not guilty pleas.
A. Advice About the Right To Counsel73

MCR 6.610(E)(2) provides:
“The court shall inform the defendant of the right to the

assistance of an attorney. If the offense charged requires
on conviction a minimum term in jail, the court shall
inform the defendant that if the defendant is indigent
the defendant has the right to an appointed attorney.
The court shall also give such advice if it determines
that it might sentence to a term of incarceration, even if
suspended.”
B. Waiver of Constitutional Trial Rights

MCR 6.610(E)(3)(b) requires a court to advise a defendant of the trial
rights that are waived by a guilty or no contest plea. MCR
6.610(E)(3)(b) provides that the court must advise the defendant
“that if the plea is accepted the defendant will not have

a trial of any kind and that the defendant gives up the
following rights that the defendant would have at trial:
(i) the right to have witnesses called for the

defendant’s defense at trial,
(ii) the right to cross-examine all witnesses called

against the defendant,
72 See People v Jaworski, 387 Mich 21 (1972).
73
See Section 6.6(A) for discussion of the right to counsel at plea proceedings. See also Chapter 4 for a
thorough discussion of a criminal defendant’s right to counsel.

(iii) the right to testify or to remain silent without

an inference being drawn from said silence,
(iv) the presumption of innocence and the

requirement that the defendant’s guilt be proven
beyond a reasonable doubt.”
The Michigan Supreme Court has specifically approved of a trial

court’s “grouping” of a defendant’s rights in the court’s recital of
rights to a defendant. In re Guilty Plea Cases, 395 Mich 96, 114-115
(1975).74
MCR 6.302(B), a rule expressly applicable to matters of procedure

involving offenses over which the circuit court has jurisdiction,
contains a few details not found in MCR 6.610(E) that may be
helpful in assuring that a defendant’s plea in district court is
understanding and voluntary.75 MCR 6.302(B) specifically requires
that the court speak directly to the defendant(s) and “determine that
each defendant understands” the factors listed in MCR 6.302(B)—
many, but not all, of which are found in MCR 6.610(E). MCR
6.302(B) requires the court to advise the defendant of the following
information not found in MCR 6.610(E):
“(4) if the plea is accepted, the defendant will be giving

up any claim that the plea was the result of promises or
threats that were not disclosed to the court at the plea
proceeding, or that it was not the defendant’s own
choice to enter the plea[, and]
(5) if the plea is accepted, the defendant may be giving

up the right to appeal issues that would otherwise be
appealable if she or he were convicted at trial. Further,
any appeal from the conviction and sentence pursuant
to the plea will be by application for leave to appeal and
not by right[.]”76 MCR 6.302(B)(4)-(5).
MCR 6.610(E)(4) governs the method by which a district court may

inform a defendant (or defendant) of the trial rights listed in MCR
6.610(E)(3)(b). The recital of rights may be made:
74
See Section 6.6 for a detailed discussion of the constitutional rights that are waived by a guilty plea,
including “Jaworski rights,” and the permissible grouping of these rights.
75 However, due process “might not be entirely satisfied by compliance with subrules (B) through (D).”
76 See Section 6.9 for information on appealing plea-based convictions.

“(a) on the record,
(b) in a writing made part of the file, or
(c) in a writing referred to on the record.” MCR

6.610(E)(4).
Except as otherwise provided in MCR 6.610(E)(7) (addressing

written pleas), if the court uses a writing as permitted under MCR
6.610(E)(4)(b) or MCR 6.610(E)(4)(c), “the court shall address the
statement that the rights were read and understood and a waiver of
those rights.” MCR 6.610(E)(4). “The waiver may be obtained
without repeating the individual rights.” Id.
Right to a trial by jury. Const 1963, art 1, § 20, provides that “[i]n
every criminal prosecution, the accused shall have the right to a
speedy and public trial by an impartial jury[.]” (Emphasis added.)
Accordingly, a defendant has a constitutional right to be tried by a
jury in misdemeanor cases even when conviction would not result
in imprisonment. People v Antkoviak, 242 Mich App 424, 463 (2000).
In Antkoviak, 242 Mich App at 425-427, the defendant was charged
with violating MCL 436.1703(1)(a) (minor in possession of alcohol)
and was denied a jury trial by the district court on the ground that
conviction would not result in incarceration. The Court of Appeals
concluded that Const 1963, art 1, § 20, guarantees a trial by jury to
any defendant accused of a criminal offense. The Court explained that
although MCL 436.1703 proscribes conduct classified as a “petty
offense,” the conduct prohibited is clearly classified by statute as a
“crime” for which a defendant has the right to a trial by jury.
Antkoviak, 242 Mich App at 471, 481, citing MCL 750.5.
Electing a bench trial. A defendant is entitled to a jury trial “when

required by law.” MCR 6.610(D)(1)(c)(iii). However, a defendant
may waive his or her right to a jury trial. MCL 763.3(1) provides, in
relevant part:
“In all criminal cases arising in the courts of this state the
defendant may, with the consent of the prosecutor and
approval by the court, waive a determination of the
facts by a jury and elect to be tried before the court
without a jury.” (Emphasis added.)
MCL 763.3(1) requires, except in cases of minor offenses, that a

defendant wishing to waive the right to a jury trial make and sign a
written statement of waiver similar in substance to the example
contained in the statute.77 In addition to the written waiver, in cases
77 See SCAO Form MC 260, Waiver of Trial by Jury and Election to be Tried Without Jury.

involving crimes other than minor offenses, “the waiver of trial by

jury shall be made in open court after the defendant has been
arraigned and has had opportunity to consult with legal counsel.”
MCL 763.3(2).
See also MCR 6.401,78 providing that a defendant has the right to be
tried by a jury but may waive the right to a jury and choose to be
tried by the court. A defendant’s election to be tried by the bench
requires the prosecutor’s consent and the court’s approval. Id.
C. Advice About Possible Sentence

Before a court may accept a defendant’s guilty or no contest plea, the
court must inform the defendant of any mandatory minimum jail
sentence for a conviction of the offense, as well as the maximum
possible penalty permitted by statute. MCR 6.610(E)(3)(a).
The extent to which a trial court may involve itself in sentence

negotiations is defined by the Michigan Supreme Court’s decisions
in People v Killebrew, 416 Mich 189 (1982), effectively superseded in
part by ADM File No. 2011-19,79 and People v Cobbs, 443 Mich 276
(1993). See Section 6.3 for discussion of sentence negotiations and
plea bargains.
6.17 Plea Must Be Understanding, Voluntary, and Accurate

MCR 6.610(E)(1) provides that, before accepting a plea of guilty or nolo
contendere, the court must “determine that the plea is understanding,
voluntary, and accurate.”
A. Accurate Plea
In determining the accuracy of a guilty plea, “the court, by
questioning the defendant, shall establish support for a finding that
[the] defendant is guilty of the offense charged or the offense to
which the defendant is pleading[.]” MCR 6.610(E)(1)(a) (emphasis
added).
In determining the accuracy of a nolo contendere plea, “the court

shall not question the defendant about the defendant’s participation
in the crime, but shall make the determination on the basis of other
available information.” MCR 6.610(E)(1)(b).
78 Although MCR 6.401 applies to criminal offenses over which the circuit court has jurisdiction and is not
expressly applicable to offenses over which the district court has jurisdiction, the rule may be instructive.
79 Effective January 1, 2014. See 495 Mich lxxix (2013).

B. Understanding Plea
Before a district court may accept a defendant’s guilty or nolo
contendere plea, the court must comply with the requirements of
MCR 6.610(E), which requires that the court inform the defendant of
his or her right to the assistance of an attorney. MCR 6.610(E)(2).
An understanding plea also requires that a defendant be advised of

any mandatory minimum jail sentence that would be imposed for
conviction of the charged offense as well as the maximum possible
penalty for conviction. MCR 6.610(E)(3)(a).
Before accepting a defendant’s guilty or no contest plea, the court

must also advise the defendant of his or her right to trial and of the
rights attendant to the right to trial. MCR 6.610(E)(3)(b).
MCR 6.302(B), a rule expressly applicable to matters of procedure

involving offenses over which the circuit court has jurisdiction,
contains a few details not found in MCR 6.610(E) that may be
helpful in assuring that a defendant’s plea in district court is
understanding and voluntary.80 MCR 6.302(B) specifically requires
that the court speak directly to the defendant(s) and “determine that
each defendant understands” the factors listed in MCR 6.302(B)—
many, but not all, of which are found in MCR 6.610(E).
C. Voluntary Plea
In determining a plea’s voluntariness, MCR 6.610(E)(6) requires the
court to ask the defendant specific questions before accepting the
defendant’s guilty or nolo contendere plea:
“The court must ask the defendant:

(a) (if there is no plea agreement) whether anyone
has promised the defendant anything, or (if there
is a plea agreement) whether anyone has promised
anything beyond what is in the plea agreement;
(b) whether anyone has threatened the defendant;

and
80

(c) whether it is the defendant’s own choice to

plead guilty.”
6.18 Misdemeanor Pleas Under Michigan Vehicle Code, §

625
Before the court accepts a plea of guilty or nolo contendere for a
misdemeanor violation under MCL 257.625, or for a violation under a
local ordinance substantially corresponding to MCL 257.625(1)
(operating a motor vehicle while intoxicated), MCL 257.625(2) (allowing
another person to operate a motor vehicle while under the influence of
alcoholic liquor, a controlled substance, and/or other intoxicating
substance, or with an unlawful blood alcohol content, or while visibly
impaired), MCL 257.625(3) (operating a motor vehicle while visibly
impaired), MCL 257.625(6) (zero tolerance), or MCL 257.625(8) (operating
a motor vehicle with any amount of certain controlled substances in the
body), the court must advise the defendant of the following:
• the maximum possible term of imprisonment;
• the maximum possible fine; and
• that the maximum possible licensing sanctions will be

determined based on the defendant’s master driving record
(kept by the Secretary of State according to MCL 257.204a).
MCL 257.625b(4).
The court may accept a defendant’s plea to these violations at the

conclusion of the pretrial conference held in compliance with MCL
257.625b(2). See Chapter 5 for information on arraignments in cases
involving misdemeanor violations of specified sections of MCL 257.625.
6.19 Marine Safety Act Pleas

A person arrested for violating the Marine Safety Act who was given a
written notice to appear may tender a plea of guilty or not guilty in
person, by representation, or by mail. MCL 324.80168(4). The magistrate
or district court judge may accept the plea for purposes of arraignment
“with the same effect as though the person personally appeared before
him or her.” Id.
6.20 Refusing To Accept a Plea or Plea Agreement

MCR 6.610(E)(5) permits a district court to reject a plea agreement. The
court rule offers no guidance on the procedure or requirements for
rejecting a plea made in district court. However, MCR 6.301(A),
applicable to procedural matters involving felony offenses, but

potentially instructive in cases involving offenses cognizable in district
court, permits a court to refuse a defendant’s plea as long as the refusal is
made pursuant to the court rules. Where a court refuses to accept a
defendant’s plea, the court must enter a plea of not guilty on the record.
Id.
6.21 Withdrawing or Challenging a Plea81
A. Timing of Motion to Withdraw Plea

A defendant may not challenge a plea on appeal unless the
defendant first moves in the trial court to withdraw the plea for
noncompliance with applicable court rules. MCR 6.610(E)(8)(a). A
defendant may file a motion to withdraw his or her plea before or
after sentencing. Id. If the motion to withdraw is made after the
sentence has been imposed, it must be made within the time for
filing a late application for leave to appeal under MCR 7.105(G)(2)
(not more than six months after entry of the judgment). MCR
6.610(E)(8)(a); MCR 7.105(G)(2); see also People v Clement, 254 Mich
App 387, 390, 393 (2002) (applying former MCR 7.103(B)(6)).82
B. Standards for Withdrawal of Pleas

When a defendant moves to withdraw his or her plea, the trial court
must determine whether a deviation from the court rules occurred
during the plea process, and if so, whether the deviation affected
the defendant’s substantial rights. MCR 6.610(E)(8)(b). If the court
concludes that a deviation affecting the defendant’s substantial
rights occurred, the court must correct the deviation and offer the
defendant the option of withdrawing his or plea. Id. If the court
concludes either that no deviation occurred or that any deviation
that occurred did not affect the defendant’s substantial rights, a
defendant may withdraw his or her plea “only if it does not cause
substantial prejudice to the [prosecution] because of reliance on the
plea.” Id.
81 See Section 6.28 for discussion of withdrawing a felony plea. Court rules and caselaw governing the
withdrawal of a guilty plea, although not explicitly applicable to offenses cognizable by the district court,
may prove useful in applying the court rules governing withdrawal of a misdemeanor plea.
82 See Section 6.9 for discussion of appealing a plea-based conviction.

C. Appeal83
“An appeal from a misdemeanor case is governed by subchapter
7.100.” MCR 6.625(A).
1. Preservation of Right to Appeal

Similar to provisions relative to felony pleas in MCR 6.310(C),
MCR 6.610(E)(8) states:
“The following provisions apply where a

defendant seeks to challenge the plea.
(a) A defendant may not challenge a plea on

appeal unless the defendant moved in the
trial court to withdraw the plea for
noncompliance with these rules. Such a
motion may be made either before or after
sentence has been imposed. After imposition
of sentence, the defendant may file a motion
to withdraw the plea within the time for filing
an application for leave to appeal under MCR
7.105(G)(2).
(b) If the trial court determines that a

deviation affecting substantial rights
occurred, it shall correct the deviation and
give the defendant the option of permitting
the plea to stand or of withdrawing the plea.
If the trial court determines either a deviation
did not occur, or that the deviation did not
affect substantial rights, it may permit the
defendant to withdraw the plea only if it does
not cause substantial prejudice to the people
because of reliance on the plea.
(c) If a deviation is corrected, any appeal will

be on the whole record including the
subsequent advice and inquiries.”
2. Advice of Right to Counsel

A district court is required to advise a defendant of his or her
right to a court-appointed attorney if the court sentences the
defendant to a term of incarceration and the defendant wishes
to appeal the conviction. MCR 6.610(F)(4) states:
83 See Section 6.9 for a thorough discussion of appeals from plea-based convictions.

“Immediately after imposing a sentence of

incarceration, even if suspended, the court must
advise the defendant, on the record or in writing,
that:
(a) if the defendant wishes to file an appeal

and is financially unable to retain a lawyer,
the court will appoint a lawyer to represent
the defendant on appeal, and
(b) the request for a lawyer must be made

within 14 days after sentencing.”
MCR 6.625(B) governs the appointment of counsel when

requested by an indigent defendant sentenced to a term of
incarceration:
“If the court imposed a sentence of incarceration,

even if suspended, and the defendant is indigent,
the court must enter an order appointing a lawyer
if, within 14 days after sentencing, the defendant
files a request for a lawyer or makes a request on
the record. Unless there is a postjudgment motion
pending, the court must rule on a defendant’s
request for a lawyer within 14 days after receiving
it. If there is a postjudgment motion pending, the
court must rule on the request after the court’s
disposition of the pending motion and within 14
days after that disposition. If a lawyer is
appointed, the 21 days for taking an appeal
pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3)
shall commence on the day of the appointment.”
Part C: Procedures Specific to Felony Pleas84
6.22 Authority of District Court Judges to Accept Felony

Pleas
MCL 766.4, governing the scheduling of probable cause conferences and
preliminary examinations at the initial arraignment in district court,
84
This Part discusses the procedures that are specifically applicable to pleas involving felony offenses and
misdemeanor offenses over which the circuit court has trial jurisdiction. See Chapter 2 for discussion of
district court jurisdiction. See Part B for discussion of procedures specifically applicable to misdemeanor
arraignments. See Chapter 7 for discussion of post-bindover (circuit court) arraignments.

grants authority to district court judges to accept felony pleas before

bindover to circuit court. MCL 766.4(3) provides:
“A district judge has the authority to accept a felony plea. A

district judge shall take a plea to a misdemeanor or felony as
provided by court rule if a plea agreement is reached
between the parties. Sentencing for a felony shall be
conducted by a circuit judge, who shall be assigned and
whose name shall be available to the litigants, pursuant to
court rule, before the plea is taken.”
See also MCR 6.111, which permits the district court, following bindover,
to conduct circuit court arraignments under certain circumstances and to
take pleas at those proceedings.
6.23 Available Pleas

MCR 6.301, which governs the types of pleas that are available, provides:
“(A) Possible Pleas. Subject to the rules in [Subchapter

6.300], a defendant may plead not guilty, guilty, nolo
contendere, guilty but mentally ill, or not guilty by reason of
insanity. If the defendant refuses to plead or stands mute, or
the court, pursuant to the rules, refuses to accept the
defendant’s plea, the court must enter a not guilty plea on the
record. A plea of not guilty places in issue every material
allegation in the information and permits the defendant to
raise any defense not otherwise waived.
(B) Pleas That Require the Court’s Consent. A defendant

may enter a plea of nolo contendere only with the consent of
the court.
(C) Pleas That Require the Consent of the Court and the
Prosecutor. A defendant may enter the following pleas only
with the consent of the court and the prosecutor:
(1) A defendant who has asserted an insanity defense

may enter a plea of guilty but mentally ill or a plea of
not guilty by reason of insanity. Before such a plea may
be entered, the defendant must comply with the
examination required by law.
(2) A defendant may enter a conditional plea of guilty,

nolo contendere, guilty but mentally ill, or not guilty by
reason of insanity. A conditional plea preserves for
appeal a specified pretrial ruling or rulings
notwithstanding the plea-based judgment and entitles
the defendant to withdraw the plea if a specified
pretrial ruling is overturned on appeal. The ruling or

rulings as to which the defendant reserves the right to
appeal must be specified orally on the record or in a
writing made a part of the record. The appeal is by
application for leave to appeal only.
(D) Pleas to Lesser Charges. The court may not accept a plea
to an offense other than the one charged without the consent
of the prosecutor.”
6.24 Plea of Guilty or Nolo Contendere
A. Plea Procedure and Advice of Rights85

MCR 6.302, governing pleas of guilty and nolo contendere in felony
cases, provides, in part:
“(A) Plea Requirements. The court may not accept a

plea of guilty or nolo contendere unless it is convinced
that the plea is understanding, voluntary, and accurate.
Before accepting a plea of guilty or nolo contendere, the
court must place the defendant or defendants under
oath and personally carry out [MCR 6.302(B)-(E)].
(B) An Understanding Plea. Speaking directly to the

defendant or defendants, the court must advise the
defendant or defendants of the following and determine
that each defendant understands:
(1) the name of the offense to which the defendant

is pleading; the court is not obliged to explain the
elements of the offense, or possible defenses;
(2) the maximum possible prison sentence for the

offense and any mandatory minimum sentence
required by law, including a requirement for
mandatory lifetime electronic monitoring under
MCL 750.520b or [MCL] 750.520c;
(3) if the plea is accepted, the defendant will not

have a trial of any kind, and so gives up the rights
the defendant would have at a trial, including the
right:
85
See Section 6.6 for discussion of waiver of trial rights, including “Jaworski rights,” and the permissible
grouping of trial rights when providing the required advice. See the Michigan Judicial Institute’s Criminal
Pretrial/Trial Quick Reference Materials web page for a checklist and flowchart for felony guilty and no
contest pleas and a flowchart for felony not guilty pleas.

(a) to be tried by a jury;
(b) to be presumed innocent until proved

guilty;
(c) to have the prosecutor prove beyond a

reasonable doubt that the defendant is guilty;
(d) to have the witnesses against the

defendant appear at the trial;
(e) to question the witnesses against the

defendant;
(f) to have the court order any witnesses the

defendant has for the defense to appear at the
trial;
(g) to remain silent during the trial;
(h) to not have that silence used against the

defendant; and
(i) to testify at the trial if the defendant wants

to testify.
(4) if the plea is accepted, the defendant will be

giving up any claim that the plea was the result of
promises or threats that were not disclosed to the
court at the plea proceeding, or that it was not the
defendant’s own choice to enter the plea;
(5) any appeal from the conviction and sentence

pursuant to the plea will be by application for
leave to appeal and not by right.
The requirements of [MCR 6.302(B)(3) and MCR

6.302(B)(5)] may be satisfied by a writing on a form
approved by the State Court Administrative Office.[86] If
a court uses a writing, the court shall address the
defendant and obtain from the defendant orally on the
record a statement that the rights were read and
understood and a waiver of those rights. The waiver
may be obtained without repeating the individual
rights.”
A nolo contendere plea may only be entered with the consent of the
court. MCR 6.301(B).
86 See SCAO Form CC 291, Advice of Rights (Circuit Court Plea).

B. Understanding, Voluntary, and Accurate Plea

Requirements87
1. Understanding Plea
For an understanding plea, the court must advise the
defendant of the name of the offense; the maximum possible
prison sentence; any mandatory minimum sentence for the
offense, “including a requirement for mandatory lifetime
electronic monitoring under MCL 750.520b or [MCL]
750.520c;”88 and the rights that will be given up (both at trial
and on appeal) if the defendant’s plea is accepted. MCR
6.302(B).89
“The requirements of MCR 6.302(B)(3) and MCR 6.302(B)(5)

may be satisfied by a writing on a form approved by the State
Court Administrative Office.” MCR 6.302(B). “If a court uses a
writing, the court shall address the defendant and obtain from
the defendant orally on the record a statement that the rights
were read and understood and a waiver of those rights.” Id.
The form must be approved by the State Court Administrative
Office. See SCAO Form CC 291, Advice of Rights (Circuit Court
Plea).
“MCR 6.302(B)(2) requires the trial court to apprise a

defendant of his or her maximum possible prison sentence as
an habitual offender before accepting a guilty plea[,]” and
MCR 6.310(C) permits a defendant who is not so apprised to
elect either to allow his or her plea and sentence to stand or to
withdraw the plea. People v Brown (Shawn), 492 Mich 684, 687
(2012). In Brown (Shawn), 492 Mich at 687-688, the defendant
pleaded guilty, as a second-offense habitual offender under
MCL 769.10, to second-degree home invasion. The defendant
was advised at his plea hearing that the maximum sentence for
87See the Michigan Judicial Institute’s Criminal Pretrial/Trial Quick Reference Materials web page for a
checklist and flowchart for felony guilty and no contest pleas and a flowchart for felony not guilty pleas.
88 Advising the defendant of a requirement for mandatory lifetime electronic monitoring is required
because “mandatory lifetime electronic monitoring is part of the sentence itself.” Cole (David), 491 Mich at
327. “Accordingly, when the governing criminal statute mandates that a trial court sentence a defendant to
lifetime electronic monitoring, due process requires the trial court to inform the defendant entering the
plea that he or she will be subject to mandatory lifetime electronic monitoring.” Id. at 337.

second-degree home invasion was 15 years in prison; however,

the defendant was subsequently sentenced, as an habitual
offender, to a maximum prison term of more than 22 years.
Brown (Shawn), 492 Mich at 688. The Michigan Supreme Court
concluded that MCR 6.302(B)(2) requires that “before pleading
guilty, a defendant must be notified of the maximum possible
prison sentence with habitual-offender enhancement[,]
because the enhanced maximum becomes the ‘maximum
possible prison sentence’ for the principal offense.” Brown
(Shawn), 492 Mich at 693-694, overruling People v Boatman, 273
Mich App 405, 406-410 (2006). The Brown (Shawn) Court
additionally held that “MCR 6.310(C) . . . provides the proper
remedy for a plea that is defective under MCR 6.302(B)(2),
which is to allow the defendant the opportunity to withdraw
his or her plea.” Brown (Shawn), 492 Mich at 698.
Committee Tip:
It is good practice to ask the defendant whether
he or she acknowledges the existence of prior
convictions that may result in a sentence as an
habitual offender or any other type of enhanced
sentence.
For a nolo contendere plea, it is good practice to

ensure that the defendant understands that he
or she will be sentenced in the same manner as if
he or she had tendered a guilty plea. See MCL
767.37.
2. A Voluntary Plea
“In assessing voluntariness, . . . a defendant entering a plea
must be ‘fully aware of the direct consequences’ of the plea.”
Cole (David), 491 Mich at 333, quoting Brady v United States, 397
US 742, 755 (1970). To ensure that a plea is voluntary, the court
must determine whether the parties have made a plea
agreement, “which may include an agreement to a sentence to
a specific term or within a specific range[.]” MCR 6.302(C)(1).90
Any agreement “must be stated on the record or reduced to
90 See Section 6.3 for discussion of plea bargains.

writing and signed by the parties[,]”91 and “[t]he written

agreement shall be made part of the case file.” Id.
“If there is a plea agreement, the court must ask the prosecutor
or the defendant’s lawyer what the terms of the agreement are
and confirm the terms of the agreement with the other lawyer
and the defendant.” MCR 6.302(C)(2).92
3. An Accurate Plea
For an accurate guilty plea, “the court, by questioning the
defendant, must establish support for a finding that the
defendant is guilty of the offense charged or the offense to
which the defendant is pleading.” MCR 6.302(D)(1).93 A guilty
plea should not be accepted by a trial court until facts sufficient
to establish the defendant’s guilt have been placed on the
record. People v Haack, 396 Mich 367, 375 (1976).
The defendant’s plea was accurate with respect to his

conviction of felony-firearm because he admitted at the plea
hearing that he possessed a gun during a bank robbery, and
this provided a factual basis for the conviction; although the
defendant did not have a prior conviction under MCL
750.227b(1) and therefore should not have been sentenced as a
second-time offender, “[w]hether [the] defendant ‘was a first-,
second-, or third-time offender under the felony-firearm act
affect[ed] only the duration of the defendant’s sentence[,]’” and
any error relating to his lack of a prior conviction did not affect
the accuracy of his plea. People v Pointer-Bey, 321 Mich App 609,
618 (2017) (citation omitted).
For an accurate nolo contendere plea, the court may not

question the defendant about participation in the crime, but
91
“The parties may memorialize their agreement on a form substantially approved by the SCAO.” MCR

must state why a plea of nolo contendere is appropriate, and

hold a hearing (unless there has already been one) that
establishes support for finding that the defendant is guilty of
the offense charged or the offense to which the defendant is
pleading. MCR 6.302(D)(2). It is appropriate for a trial court to
rely on a preliminary examination transcript to furnish the
factual basis for a nolo contendere plea. People v Chilton, 394
Mich 34, 38-39 (1975).
4. Additional Inquiries
After questioning the defendant, the court is required to ask
the attorneys whether there are any promises, threats, or
inducements other than those already disclosed on the record
and whether the court has complied with MCR 6.302(B), MCR
6.302(C), and MCR 6.302(D). MCR 6.302(E).
Committee Tip:
After advising a defendant of his or her rights, it
is good practice to also advise the defendant
that there is no absolute right to withdraw a
plea, but that he or she may file a motion to
withdraw his or her plea before sentencing. MCR
6.310(B).
6.25 Plea of Guilty but Mentally Ill94

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 [MCR
6.302(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.” MCR 6.303. The reports must be made a part of the record. Id.
Additionally, the following statutory conditions must be met under MCL

768.36(2) before a guilty but mentally ill plea may be accepted:
(1) the defendant has asserted a defense of insanity95;
94 See Section 10.2 for discussion of criminal responsibility.
95 See MCL 768.20a.

(2) the defendant has waived his or her right to trial by jury
or judge;
(3) the prosecuting attorney has approved the plea of guilty

but mentally ill;
(4) with the defendant’s consent, the court has examined the
report or reports on criminal responsibility prepared as a
result of examinations required by the defendant’s assertion
of the defense;
(5) a hearing on the issue of defendant’s mental illness has

been conducted; and
(6) the court is satisfied that the defendant proved by a

preponderance of the evidence that he or she was mentally ill
at the time of the offense.
These requirements are also incorporated in MCR 6.301(C)(1).
A trial court has discretion whether to accept a defendant’s guilty but

mentally ill plea. People v Blue, 428 Mich 684, 694 (1987).
6.26 Plea of Not Guilty by Reason of Insanity96

Before accepting a plea of not guilty by reason of insanity,97 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(A).
“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(C).
Legal insanity means that, “as a result of mental illness . . . or as a result

of having an intellectual disability[,]” a “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.” MCL 768.21a(1). However, “[m]ental illness or having an
intellectual disability does not otherwise constitute a defense of legal
insanity.” Id.
96 See Section 10.2 for discussion of criminal responsibility.
97 See MCL 768.20a.

“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(B).
After accepting the defendant’s plea, the trial court must immediately
commit the defendant to the custody of the center for forensic psychiatry
for a period not to exceed 60 days. MCL 330.2050(1).
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. MCR 6.304(D); MCL 330.2050(1).
The defendant may secure an independent psychiatric evaluation by a

clinician of his or her choice on the issue of his or her insanity at the time
the alleged offense was committed. MCL 768.20a(3). If the defendant is
indigent and makes a showing of good cause, the trial court may order
the county to pay for an independent psychiatric evaluation. Id.
6.27 Refusing to Accept a Defendant’s Plea

MCR 6.301(A) permits a court to refuse a defendant’s plea as long as the
refusal is made pursuant to the court rules. MCR 6.301 applies to circuit
court arraignments conducted in district court pursuant to MCR 6.111.
MCR 6.111(C). If the court refuses to accept a defendant’s plea, the court
must enter a plea of not guilty on the record. MCR 6.301(A). “A plea of
not guilty places in issue every material allegation in the information and
permits the defendant to raise any defense not otherwise waived.” MCR
6.301(A).
6.28 Withdrawal of a Plea
A. Withdrawal of Plea Before Acceptance

A defendant has a right to withdraw any plea until the court accepts
the plea on the record. MCR 6.310(A).

B. Withdrawal of Plea After Acceptance But Before

Sentencing
MCR 6.310(B), which sets out the requirements for withdrawing a
plea after the court accepts it, but before the court imposes sentence,
provides:
“Except as provided in [MCR 6.310(B)(3)], after

acceptance but before sentence,
(1) a plea may be withdrawn on the defendant’s

motion or with the defendant’s consent only in the
interest of justice, and may not be withdrawn if
withdrawal of the plea would substantially
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 [MCR 6.310](C).
(2) the defendant is entitled to withdraw the plea if
(a) the plea involves an agreement for a

sentence for a specified term or within a
specified range, and the court states that it is
unable to follow the agreement; 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.
(3) Except as allowed by the trial court for good

cause, a defendant is not entitled to withdraw a
plea under [MCR 6.310(B)(2)(a) or MCR
6.310(B)(2)(b)] if the defendant commits
misconduct after the plea is accepted but before
sentencing. For purposes of this rule, misconduct
is defined to include, but is not limited to:
absconding or failing to appear for sentencing,
violating terms of conditions on bond or the terms

of any sentencing or plea agreement, or otherwise

failing to comply with an order of the court
pending sentencing.”
“MCR 6.310(B) permits [a] defendant to withdraw his [or her] plea
before sentencing if withdrawal is in the interest of justice, unless
withdrawal of the plea would substantially prejudice the prosecutor
because of reliance on the plea.” People v Allen (Demarcus), 498 Mich
954, 955 (2015) (citing MCR 6.310(B)(1) and People v Jackson
(Dwayne), 203 Mich App 607, 611-612 (1994), and noting that “[t]he
trial court applied an erroneous legal standard when it concluded
that there was no legal basis for the court to allow the defendant to
withdraw his plea unless there was a defect in the plea-taking
process”) (additional citations omitted).
Failure to “‘provide the defendant the opportunity to affirm or

withdraw [a] plea’” as required by MCR 6.310(B)(2) constitutes
plain error that may require reversal. People v Franklin (Joseph), 491
Mich 916, 916 (2012). In Franklin (Joseph), 491 Mich at 916, 916 n 1,
the Michigan Supreme Court concluded that the trial court’s failure
to comply with MCR 6.310(B)(2)(b) could not be considered plain
error, “given [the] holding in People v Grove, 455 Mich 439 (1997),
that the trial court could reject the entire plea agreement and subject
the defendant to a trial on the original charges over the defendant’s
objection[;]” however, the Franklin (Joseph) Court clarified that
“Grove has been superseded by MCR 6.310(B),” and cautioned that
“in the future, such an error will be ‘plain.’” The Court further noted
that, even assuming that plain and prejudicial error had occurred in
Franklin (Joseph), 491 Mich 916, “[u]nder [the] circumstances, where
the defendant did not just fail to object at sentencing, but also failed
to object during the subsequent trial and waived his right to a jury
trial,” the Court “[was] exercising its discretion in favor of not
reversing the defendant’s convictions.” Id. at 916, citing People v
Carines, 460 Mich 750, 763 (1999).
In the absence of a procedural error in receiving the plea, a

defendant must establish a fair and just reason for withdrawal of the
plea. People v Harris (Lamar), 224 Mich App 130, 131 (1997).
Examples of fair and just reasons for withdrawal include when the
plea resulted from fraud, duress, or coercion, People v Gomer, 206
Mich App 55, 58 (1994); when the plea involved erroneous legal
advice coupled with actual prejudice to legal rights, People v Jackson
(Andrew), 417 Mich 243, 246 (1983); or when the bargain on which
the plea was based was illusory, meaning that the defendant
received no benefit from the agreement, Harris (Lamar), 224 Mich
App at 132. If the facts of the case indicate that the plea was
voluntary, the plea will be upheld regardless whether the defendant
received consideration in return. Id. at 132-133. The defendant’s plea

bargain was not illusory where the prosecutor’s offer “to take the
25-year minimum [for certain fourth-time felony offenders under
MCL 769.12(1)(a)] ‘off the table’ in exchange for defendant’s plea [in
connection with a bank robbery] . . . was based [on] a
misunderstanding of the law. It provided defendant with no actual
benefit because he was not subject to MCL 769.12(1)(a);” despite that
misunderstanding, the defendant “received considerable benefit for
his plea” in that “the prosecutor agreed to reduce [his] habitual
offender status to third-offense habitual offender,” and “agreed not
to charge [him] in connection with a second bank robbery.” People v
Pointer-Bey, 321 Mich App 609, 623, 624 (2017).
If the defendant establishes a fair and just reason for withdrawal of

the plea, the burden then shifts to the prosecution to establish that
substantial prejudice would result from allowing the defendant to
withdraw the plea. Jackson (Dwayne), 203 Mich App at 611-612. To
constitute substantial prejudice, the prosecution must demonstrate
that its ability to prosecute is impeded by the delay. People v Spencer
(Charles), 192 Mich App 146, 151-152 (1991) (holding that substantial
prejudice was not established where trial was set to begin at the
time the pleas were entered, and some witnesses were from out of
state). In deciding whether a defendant may withdraw a plea, the
trial court should bear in mind what is in the interests of justice. Id.
at 151-152 (“the fact that [the] defendant’s pleas may have been
induced by inaccurate legal advice combined with his refusal or
inability to personally recount a sufficient basis to substantiate the[]
charges made it incumbent upon the trial court to allow [the]
defendant to withdraw his pleas[]”).
“MCR 6.310(B)(1) [does] not permit [a] circuit court to vacate [a]
defendant’s plea” where the “defendant [has] neither moved for
[withdrawal] nor consented to it.” People v Martinez (Gilbert), 307
Mich App 641, 647, 653-654 (2014) (holding that where the
defendant entered a guilty plea in exchange for the prosecutor’s
agreement not to bring any additional charges regarding contact
with the complainant “‘grow[ing] out of [the] same investigation
that occurred during [a certain period of years,]’” the “fact that the
complainant, after [the] defendant’s plea pursuant to the agreement
was accepted, disclosed allegations of additional offenses that were
unknown to the prosecutor [did] not create a mutual mistake of
fact[]” permitting the court to vacate the defendant’s plea under
either MCR 6.310 or contract principles).
A sentencing judge who decides not to abide by the terms of a

sentence agreement (Cobbs98 agreement) may not tell a criminal
defendant what sentence might be imposed before the defendant
98 People v Cobbs, 443 Mich 276 (1993).

decides whether to withdraw a guilty plea. MCR 6.310(B)(2)(b);

People v Williams (Avana), 464 Mich 174, 180 (2001).99
A trial court may not sua sponte vacate an accepted plea without the
defendant’s consent, even if the defendant indicates that he or she is
innocent. People v Strong, 213 Mich App 107, 112 (1995).
“When reviewing whether the factual basis for a plea [is] adequate,
th[e] [c]ourt considers whether the factfinder could find the
defendant guilty on the basis of the facts elicited from the defendant
at the plea proceeding.” People v Fonville, 291 Mich App 363, 377
(2011).
“‘A factual basis to support a plea exists if an

inculpatory inference can be drawn from what the
defendant has admitted. This holds true even if an
exculpatory inference could also be drawn and the
defendant asserts that the latter is the correct inference.
Even if the defendant denies an element of the crime,
the court may properly accept the plea if an inculpatory
inference can still be drawn from what the defendant
says.’” Id. at 377, quoting People v Thew, 201 Mich App
78, 85 (1993) (additional and internal citations omitted).
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, 150 (2004). When recanted testimony provides a
substantial part of the factual basis underlying a defendant’s nolo
contendere plea, the defendant must prove by a preponderance of
credible evidence that the original testimony was untruthful, in
order to constitute a fair and just reason for allowing the defendant
to withdraw his or her plea. Id. at 152. If the defendant meets the
burden, the trial court must then determine whether other evidence
is sufficient to support the factual basis of the defendant’s plea. Id. If
the defendant fails to meet the burden, or if other evidence is
sufficient to support the plea, then the defendant has failed to
present a fair and just reason to warrant withdrawal of his or her
plea. Id.
When a plea is taken and all of the required elements are not
satisfied, the case should be remanded to allow the prosecution to
establish the missing elements. See People v Mitchell (Donald), 431
Mich 744, 749-750 (1988). If the prosecution is able to do so and there
is no contrary evidence, the defendant’s conviction should stand. Id.
at 750. However, if the prosecution is unable to establish that the
99 See Section 6.3(A)(2) for discussion of Cobbs pleas.

defendant committed the offense, the trial court must set aside the
defendant’s conviction. Id. If contrary evidence is produced, the
matter should be treated as a motion to withdraw the guilty plea,
and the trial court must exercise its discretion to decide the matter.
Id. If the motion is granted, the trial court must set aside the
conviction. Id.
C. Withdrawal of Plea After Sentencing

“MCR 6.310(C) permits a defendant to withdraw a guilty plea after
sentencing only if the trial court determines that there was an error
in the plea proceeding that would entitle the defendant to have the
plea set aside.” People v Sanford (Davontae), 495 Mich 989, 989 (2014).
MCR 6.310(C) provides:
“(1) The defendant may file a motion to withdraw the

plea within 6 months after sentence or within the time
provided by subrule (C)(2).
(2) If 6 months have elapsed since sentencing, the

defendant may file a motion to withdraw the plea if:
(a) the defendant has filed a request for the

appointment of counsel pursuant to MCR
6.425(G)(1) within the 6-month period,
(b) the defendant or defendant’s lawyer, if one is

appointed, has ordered the appropriate transcripts
within 28 days of service of the order granting or
denying the request for counsel or substitute
counsel, unless the transcript has already been
filed or has been ordered by the court under MCR
6.425(G), and
(c) the motion to withdraw the plea is filed in

accordance with the provisions of this subrule
within 42 days after the filing of the transcript. If
the transcript was filed before the order appointing
counsel or substitute counsel, or the order denying
the appointment of counsel, the 42-day period runs
from the date of that order.
(3) Thereafter, the defendant may seek relief only in

accordance with the procedure set forth in subchapter
6.500.
(4) If the trial court determines that there was an error in

the plea proceeding that would entitle the defendant to
have the plea set aside, the court must give the advice or
make the inquiries necessary to rectify the error and
then give the defendant the opportunity to elect to allow

the plea and sentence to stand or to withdraw the plea.
If the defendant elects to allow the plea and sentence to
stand, the additional advice given and inquiries made
become part of the plea proceeding for the purposes of
further proceedings, including appeals.
(5) If a motion to withdraw plea is received by the court

after the expiration of the periods set forth above, and if
the appellant is an inmate in the custody of the
Michigan Department of Corrections and has submitted
the motion as a pro se party, the motion shall be deemed
presented for filing on the date of deposit of the motion
in the outgoing mail at the correctional institution in
which the inmate is housed. Timely filing may be
shown by a sworn statement filed with the motion,
which must set forth the date of deposit and state that
first-class postage has been prepaid. The exception
applies to cases in which a plea was accepted on or after
[September 1, 2018]. This exception also applies to an
inmate housed in a penal institution in another state or
in a federal penal institution who seeks to withdraw a
plea in a Michigan court.”
“‘A defendant seeking to withdraw his or her plea after sentencing

must demonstrate a defect in the plea-taking process.’” Sanford
(Davontae), 495 Mich at 989-990, quoting People v Brown (Shawn), 492
Mich 684, 693 (2012).
The trial court abused its discretion in denying the defendant’s

motion to withdraw his plea after sentencing where “there [were]
multiple proposed plea agreements and hearings,” because the
record showed “a lack of clarity with respect to essential features of
the plea agreement, specifically the sentencing parameters.” People v
Brinkey, ___ Mich App ___, ___ (2019) (although strict compliance
with MCR 6.302 is not essential, “the trial court’s noncompliance
[was] serious in nature” because “the trial court made no [apparent]
effort to ensure that defendant actually knew and understood” the
conditions he was pleading guilty under).
“[In general,] criminal defendants may not withdraw a guilty plea

on the ground that they were unaware of the future collateral or
incidental effects of the initial valid plea.” People v Haynes (Joseph),
256 Mich App 341, 349 (2003). However, defense counsel is
constitutionally required to inform his or her client that a plea “may
carry a risk of adverse immigration consequences,” e.g.,
deportation. Padilla v Kentucky, 559 US 356, 369 (2010).100

“MCR 6.302(B)(2) requires the trial court to apprise a defendant of

his or her maximum possible prison sentence as an habitual
offender before accepting a guilty plea,” and MCR 6.310(C) permits
a defendant who is not so apprised to elect either to allow his or her
plea and sentence to stand or to withdraw the plea. Brown (Shawn),
492 Mich at 687. In Brown (Shawn), 492 Mich at 687, the defendant
pleaded guilty, as a second-offense habitual offender under MCL
769.10, to second-degree home invasion. The defendant was advised
at his plea hearing that the maximum sentence for second-degree
home invasion was 15 years in prison; however, the defendant was
subsequently sentenced, as an habitual offender, to a maximum
prison term of more than 22 years. Brown (Shawn), 492 Mich at 687-
688. The Michigan Supreme Court concluded that MCR 6.302(B)(2)
requires that “before pleading guilty, a defendant must be notified
of the maximum possible prison sentence with habitual-offender
enhancement, because the enhanced maximum becomes the
‘maximum possible prison sentence’ for the principal offense.”
Brown (Shawn), 492 Mich at 693-694, overruling People v Boatman, 273
Mich App 405, 406-410 (2006). The Brown (Shawn) Court
additionally held that “MCR 6.310(C) . . . provides the proper
remedy for a plea that is defective under MCR 6.302(B)(2), which is
to allow the defendant the opportunity to withdraw his or her
plea.” Brown (Shawn), 492 Mich at 698.
D. Divisibility of Multiple Pleas Arising From Single Plea

Agreement
In People v Blanton, 317 Mich App 107, 121 (2016), the parties
disputed whether, when a defendant pleads guilty to multiple
charges under a single plea agreement, MCR 6.310(C) “allows [the]
defendant to withdraw his [or her] entire plea or only his [or her]
plea to” a charge affected by a defect in the plea-taking process.
Before accepting the defendant’s guilty plea to charges of felony-
firearm and two other offenses, the trial court in Blanton, 317 Mich
App at 120, failed to advise the defendant of the mandatory
minimum sentence (or consecutive nature of the sentence)
applicable to the felony-firearm charge. After sentencing, the
defendant moved to withdraw his guilty plea in its entirety under
100 “[S]tate courts are bound by the decisions of the United States Supreme Court construing federal
law[.]” Abela v Gen Motors Corp, 469 Mich 603, 606 (2004). However, because Padilla, 559 US 356,
“announced a ‘new rule[,]’” it does not apply retroactively on collateral review. Chaidez v United States,
568 US 342, 344 (2013). See also People v Gomez, 295 Mich App 411, 413-414, 418-419 (2012) (holding
that “the new rule of criminal procedure announced in Padilla[, 559 US 356,] has prospective application
only[]” under both federal and state rules of retroactivity, and that the defendant, who entered a no-
contest plea to a drug-possession charge and was subsequently notified that his conviction rendered him
subject to deportation, was not entitled to relief from judgment based on Padilla, 559 US 356, which was
decided several years after he completed his sentence). See Section 6.3(D) for discussion of ineffective
assistance of counsel during sentence negotiations.

MCR 6.310(C) based on the defect in the plea proceeding with

respect to the felony-firearm charge. Blanton, 317 Mich App at 113.
The trial court agreed, rejecting the prosecution’s assertion that the
defendant should be permitted to withdraw only the plea of guilty
of felony-firearm. Id. at 114. Noting that there was no binding
Michigan precedent on point, the trial court cited State v Turley, 149
Wash 2d 395 (2003), for the proposition that “‘plea agreements are
“package deals” and indivisible,’” and that the defendant was
therefore not limited to withdrawing only the “‘“defective” portion
of his plea.’” Blanton, 317 Mich App at 116-117 (citation omitted).
The Court of Appeals affirmed. “Given that there was no

precedential authority on [the] issue in Michigan, . . . the trial court
[did not] abuse[] its discretion in applying the contractual approach
set forth in Turley[, 149 Wash 2d 395,]” and in concluding that its
failure to advise the defendant of the full nature of the penalty for
felony-firearm, in violation of MCR 6.302(B)(2), permitted him to
withdraw his guilty pleas to all three charges. Blanton, 317 Mich
App at 125. “‘[C]ontractual analogies may be applied in the context
of a plea agreement’ if to do so would not ‘subvert the ends of
justice.’” Id., quoting People v Swirles (After Remand), 218 Mich App
133, 135 (1996). “Given the nature of the plea-bargaining process in
Michigan where both parties often tend to negotiate a ‘package
deal,’ . . . adherence to the [contractual] approach set forth in Turley
would not ‘subvert the ends of justice.’” Blanton, 317 Mich App at
122, 126 (noting that the “references in MCR 6.302 and MCR 6.310 to
the singular terms ‘plea’ and ‘plea proceeding’ [did] not necessarily
resolve the issue”) (citations omitted). The Court noted that “the
objective facts reveal[ed] an intent by the prosecution and [the]
defendant to treat the plea agreement as indivisible” where “[the]
defendant was charged with multiple offenses in a single
Information; he negotiated with the prosecution to allow him to
plead guilty to three charges contemporaneously in exchange for
the dismissal of the remaining charges and the habitual offender
enhancement; a single document contained the terms of the plea
agreement; and the trial court accepted [the] defendant’s pleas to all
three charges at one hearing.” Blanton, 317 Mich App at 126, citing
Turley, 149 Wash 2d at 400. Accordingly, “the trial court did not
abuse its discretion in allowing [the] defendant to withdraw his plea
in its entirety rather than only partially because the plea agreement
[was] indivisible.” Blanton, 317 Mich App at 126.
Because “there was a defect in the plea-taking process [when] no

one informed [defendant] that her conviction of unlawfully
imprisoning a minor would require her to register under [the Sex
Offenders Registration Act],” “the trial court abused its discretion
by denying [defendant’s] motion to withdraw her plea in its
entirety,” and by “sever[ing] [her] convictions and permitt[ing] her

to withdraw her guilty plea only as to the unlawful imprisonment

charge.” People v Coleman, ___ Mich App ___, ___ (2019) (defendant
“should have been afforded the right to withdraw her entire plea
based upon the defect in the plea-taking process” because the “plea
was clearly intended as a package deal”).
E. Effect of Withdrawal or Vacation of Plea

“If a plea is withdrawn by the defendant or vacated by the trial
court or an appellate court, the case may proceed to trial on any
charges that had been brought or that could have been brought
against the defendant if the plea had not been entered.” MCR 6.312.
See also People v Johnson (Ricardo), 197 Mich App 362, 364 (1992)
(citing MCR 6.312 and holding that “[w]hen [the] defendant
withdrew his guilty plea, he reopened [the] matter to any of the
charges which had been brought or could have been brought
against him at the time his plea of guilty was entered[]”).
F. Inadmissibility of Withdrawn Plea

Ordinarily, evidence of a withdrawn plea and statements made
during the plea proceedings are not admissible in any civil or
criminal proceedings. MRE 410.101 However, a criminal defendant
may waive MRE 410 protections, so long as he or she is
appropriately advised and so long as the statements admitted into
evidence are voluntarily, knowingly, and understandingly made.
People v Stevens (James), 461 Mich 655, 656-657, 661-663, 668-670
(2000) (holding that where the defendant acknowledged his guilt
during plea discussions arising out of proceedings pursuant to an
investigative subpoena, but the plea was ultimately not entered, the
statements were “not rendered inadmissible by MRE 410, and, if
otherwise admissible, [could] be introduced in the prosecutor’s case
in chief[]”).
G. Appealing a Guilty Plea102
1. Preservation of Issues for Appeal

“A defendant convicted on the basis of a plea may not raise on
appeal any claim of noncompliance with the requirements of
the rules in . . . subchapter [6.300], or any other claim that the
plea was not an understanding, voluntary, or accurate one,
unless the defendant has moved to withdraw the plea in the
101 See Section 6.8 for discussion of MRE 410.
102 See Section 6.9 for a thorough discussion of appeals from plea-based convictions.

trial, court, raising as a basis for withdrawal the claim sought

to be raised on appeal.” MCR 6.310(D). See also People v Gaines,
198 Mich App 130, 131 (1993) (holding that “[the] defendant’s
challenge concerning the validity of his . . . plea [was] not
properly before [the Court of Appeals] because he did not
move to withdraw the plea in the trial court[]”) (citations
omitted).
MCR 6.310(D) barred review of the defendant’s argument on

appeal where the defendant failed to file a motion to withdraw
his guilty plea but challenged the factual basis for his plea on
appeal. People v Baham, 321 Mich App 228, 234, 235 (2017)
(holding that a challenge to the factual basis of a plea
implicates the accuracy of the plea). However, “a claim of
ineffective assistance of counsel can serve as a basis for relief
relative to a plea despite a failure to comply with MCR 6.310.”
Baham, 321 Mich App at 235.
2. Advice of Right to Counsel

“[I]ndigent defendants who plead guilty or nolo contendere in
a Michigan court have a federal constitutional right to the
appointment of appellate counsel with regard to first-tier
review in th[e] Court [of Appeals].” People v James (William),
272 Mich App 182, 188-189 (2006), citing Halbert v Michigan, 545
US 605 (2005).
MCR 6.425(F)(2)-(3) provide:
“(2) In a case involving a conviction following a

plea of guilty or nolo contendere, immediately
after imposing sentence, the court must advise the
defendant, on the record, that
(a) the defendant is entitled to file an

application for leave to appeal,
(b) if the defendant is financially unable to

retain a lawyer, the court will appoint a
lawyer to represent the defendant on appeal,
and
(c) the request for a lawyer must be made

within 42 days after sentencing.
(3) The court also must give the defendant a

request for counsel form containing an instruction
informing the defendant that the form must be
completed and returned to the court within 42

days after sentencing if the defendant wants the

court to appoint a lawyer.”
A legally erroneous instruction (e.g., that by pleading no

contest, the defendant waived his right to court-appointed
counsel except under certain circumstances) under MCR
6.425(F)(2) and Halbert v Michigan, 545 US 605 (2005), may be
harmless if the advice-of-rights form the defendant receives at
sentencing informs him or her of the right to appointed
counsel under all circumstances, regardless of whether the
conviction is plea- or trial-based. People v Frazier (Alvin), 485
Mich 1044, 1044 (2010), citing MCR 6.425(F)(3). The Court
noted, however, that “trial judges should take care to advise
defendants in plea proceedings of their continuing right to
court-appointed counsel if they cannot afford counsel.” Frazier,
485 Mich at 1044.
See MCR 6.425(G) for more information on the appointment of

appellate counsel, preparation of transcripts, and the scope of
appellate counsel’s responsibilities.
H. Standard of Review
A trial court’s decision whether to grant a motion to withdraw a
plea is reviewed for an abuse of discretion. People v Brown (Shawn),
492 Mich 684, 688 (2012).
I. Defects in Previous Plea-Based Conviction May Not

Necessarily Invalidate Its Use to Enhance Future Offenses
The Michigan Supreme Court refused to permit a defendant to
withdraw his plea of guilty of operating a motor vehicle while
under the influence of liquor, second offense (OUIL 2d), 14 months
after the plea was entered and after he was charged with OUIL 3d,
where “retained counsel, in the absence of the prosecutor,
knowingly entered a woefully defective plea at arraignment
without bringing the defects to the court’s attention[]” in order to
“preserve[] the strategic possibility of setting aside the plea if [the]
defendant were ever charged with another OUIL offense.” People v
Ward, 459 Mich 602, 604-605 (1999) (holding that such tactics
constituted a “transparent manipulation of the system[]” and
refusing to “allow defense counsel to harbor plain error as a
parachute in the event of a subsequent OUIL charge[]”).


Chapter 7: Probable Cause Conferences,
Preliminary Examinations, and Bindover
7.1 Introduction ......................................................................................... 7-3

7.2 District Court Jurisdiction in Felony Pretrial Proceedings .................... 7-3
Examination......................................................................................... 7-7
7.4 Joint Probable Cause Conference and/or Preliminary Examination for
Codefendants ....................................................................................... 7-8
7.5 Probable Cause Conference ................................................................. 7-8
7.6 Pleas ................................................................................................... 7-10
7.7 Right to a Preliminary Examination.................................................... 7-10
7.8 Waiver of Preliminary Examination ................................................... 7-14
7.9 Jurisdiction and Venue ....................................................................... 7-17
7.10 Persons Who May Conduct Preliminary Examinations ...................... 7-19
7.11 Timing of Preliminary Examinations................................................... 7-20
7.12 Discovery Before or at Preliminary Examination ............................... 7-24
7.13 Subpoenas to Compel Attendance at Preliminary Examination ........ 7-24
7.14 Right to Counsel at Preliminary Examinations ................................... 7-26
7.15 Closure of Preliminary Examination to Members of the Public ......... 7-30
7.16 Sequestration of Witnesses ............................................................... 7-31
7.17 Probable Cause Inquiry and Applicable Evidentiary Standards at
Preliminary Examination .................................................................... 7-32
7.18 Victims’ Rights at Preliminary Examination ....................................... 7-40
7.19 Order for Competency Evaluation at Preliminary Examination ......... 7-42
7.20 Communicable Disease Testing and Examination.............................. 7-43
7.21 Record of Preliminary Examination.................................................... 7-45
7.22 Transcript of Testimony ..................................................................... 7-45
7.23 Bindover Following Preliminary Examination .................................... 7-46
7.24 Setting Case for Trial When There Is Probable Cause to Believe That
Defendant Committed a Misdemeanor ............................................. 7-52

7.25 Discharge of Defendant and Prosecutor’s Right to Bring New
Charges............................................................................................... 7-53
7.26 Bindover Certificate and Return......................................................... 7-54
7.27 Ordering Pretrial Release at the Conclusion of Preliminary
Examination ....................................................................................... 7-54
7.28 Circuit Court Review of Error at Preliminary Examination................. 7-55
7.29 Circuit Court Arraignment.................................................................. 7-56

7.1 Introduction
This chapter discusses probable cause conferences, preliminary
examinations, bindover, and circuit court (post-bindover) arraignments
in felony cases.
Effective May 20, 2014, and applicable to cases in which the defendant is
arraigned in district or municipal court on or after January 1, 2015,1 2014
PA 123 and 2014 PA 124 amended several provisions in the Code of
Criminal Procedure and the Revised Judicature Act related to
preliminary examinations, probable cause conferences, and the
jurisdiction and duties of district court judges and magistrates with
respect to pretrial proceedings in felony cases. For a chart outlining the
differences in procedures before and after January 1, 2015, as a result of
statutory reforms concerning probable cause conferences, preliminary
examinations, and felony pleas, see SCAO Memorandum, July 23, 2014.
For additional information, see the SCAO’s Best Practices for Probable
Cause Conferences and Preliminary Examinations.
See the following Michigan Judicial Institute Pretrial/Trial Quick

Reference Materials: a table including information on the jurisdiction of
district court judges and magistrates over preliminary matters in criminal
proceedings; a checklist for conducting a probable cause conference; a
checklist for a waiver of preliminary examination; and a checklist for
conducting a preliminary examination.
7.2 District Court Jurisdiction in Felony Pretrial

Proceedings2
A. Introduction
A district court has the same power to hear and determine matters
within its jurisdiction as does a circuit court over matters within the
circuit court’s jurisdiction. MCL 600.8317.
1 See 2014 PA 123, enacting section 1; 2014 PA 124, enacting section 2.

and magistrates over preliminary matters in all criminal proceedings. For a thorough discussion of district
court jurisdiction, see Chapter 2.

Although the district court does not have trial jurisdiction over
felony offenses, the district court has jurisdiction over certain
pretrial proceedings in felony cases, including initial (district court)
arraignments,3 probable cause conferences,4 and preliminary
examinations. MCL 600.8311(c)-(e); see also MCR 6.008(A) (“The
district court has jurisdiction over . . . all felonies through the
preliminary examination and until the entry of an order to bind the
defendant over to the circuit court.”). Following a finding of
probable cause at the preliminary examination, a district court
judge “may conduct the circuit court arraignment as provided by
court rule.” MCL 766.135; see also MCR 6.111; MCL 600.8311(f).
Additionally, “[a] district judge has the authority to accept a felony
plea[ and s]hall take a plea to a misdemeanor or felony as provided
by court rule if a plea agreement is reached between the parties.”
MCL 766.4(3); see also MCR 6.111(A) (“[a] district court judge shall
take a felony plea as provided by court rule if a plea agreement is
reached between the parties[]”).6
MCL 600.8311 provides, in relevant part:
“The district court has jurisdiction of all of the

following:
***
(c) Arraignments, the fixing of bail and the

accepting of bonds.
(d) Probable cause conferences in all felony cases

probable cause conference under . . . MCL 766.4.[7]
(e) Preliminary examinations in all felony cases

preliminary examination under . . . MCL 766.1[ et
seq]. There shall not be a preliminary examination
for any misdemeanor to be tried in a district court.
3 See Chapter 5 for discussion of district court felony arraignments.
4 See Section 7.5.
5 See Section 7.29 for discussion of circuit court arraignments.
6
7 See Section 7.5 for discussion of probable cause conferences.

(f) Circuit court arraignments in all felony cases

district court under . . . MCL 766.13. Sentencing for
felony cases and misdemeanor cases not
cognizable by the district court shall be conducted
by a circuit judge.”8
Note—Felony and Misdemeanor Definitions. By

statute, an offense designated as a misdemeanor is
nevertheless considered a felony for purposes of
determining trial-court jurisdiction if it is punishable by
more than one year of imprisonment.
• Felony. The Michigan Code of Criminal Procedure,

MCL 760.1 et seq., defines felony as a violation of
Michigan’s penal law “for which the offender, upon
conviction, may be punished by imprisonment for
more than 1 year or an offense expressly designated
by law to be a felony.” MCL 761.1(f); see also MCL
750.7, defining felony, for purposes of the Michigan
Penal Code, as “an offense for which the offender, on
conviction may be punished by death, or by
• Misdemeanor. The Code of Criminal Procedure

defines misdemeanor as a violation of Michigan’s penal
law “that is not a felony or a violation of an order,
rule, or regulation of a state agency that is punishable
by imprisonment or a fine that is not a civil fine.”
MCL 761.1(n). Some misdemeanors are classified
under the Code of Criminal Procedure as minor
offenses, violations for which the maximum
permissible imprisonment does not exceed 92 days
and the maximum fine does not exceed $1,000.00.
MCL 761.1(m). See also MCL 750.8, defining
misdemeanor, for purposes of the Michigan Penal
Code, as “any act or omission, not a felony, [that] is
punishable according to law, by a fine, penalty or
forfeiture, and imprisonment, or by such fine, penalty
or forfeiture, or imprisonment, in the discretion of the
court[.]”
A district court’s trial-court jurisdiction is limited by MCL

600.8311(a) to misdemeanors that are punishable by not more than
one year of imprisonment. However, “circuit court misdemeanors”
(sometimes also colloquially referred to as “serious” or “high court”
misdemeanors) are punishable by more than one year of
8
Additionally, the circuit court must “sentence all defendants bound over to circuit court on a felony that
either plead guilty to, or are found guilty of, a misdemeanor.” MCR 6.008(D).


jurisdiction.
B. Jurisdiction and Duties of District Court Magistrates in

Pre-Bindover Proceedings9
In the context of felony pretrial proceedings, a district court
magistrate generally has the authority, subject to the chief district
judge’s approval, to issue arrest warrants and search warrants,
conduct arraignments for a limited number of enumerated offenses,
fix bail and set bond, and conduct probable cause conferences. MCL
600.8511. “Notwithstanding statutory provisions to the contrary,
district court magistrates exercise only those duties expressly
authorized by the chief judge of the district or division.” MCR
4.401(B).
In addition to setting out certain offenses for which a district court

magistrate may be granted arraignment authority,10 MCL 600.8511
provides, in relevant part:
“A district court magistrate has the following

jurisdiction and duties:
***
(e) To issue warrants for the arrest of a person

upon the written authorization of the prosecuting
or municipal attorney[.] . . .
(f) To fix bail and accept bond in all cases.
(g) To issue search warrants, if authorized to do so

by a district court judge.
(h) To conduct probable cause conferences and all

matters allowed at the probable cause conference,
except for the taking of pleas and sentencings,
under . . . MCL 766.4, when authorized to do so by
the chief district court judge.”

9 For a thorough discussion of the authority of district court magistrates, see Chapter 5.
10 See MCL 600.8511(b)-(c). See Chapter 5 for discussion of district court felony arraignments.


(c)].”
Accordingly, a district court magistrate, if authorized by the chief

judge, may conduct probable cause conferences; however, a district
court judge must conduct all preliminary examinations. See MCL
766.1; MCL 600.8511.11
“A district court magistrate may use videoconferencing technology

in accordance with MCR 2.407 and MCR 6.006.” MCR 4.401(E).
7.3 Scheduling the Probable Cause Conference and

Preliminary Examination
Unless waived by agreement of the parties, at a felony arraignment, the
court must schedule a probable cause conference. MCL 766.4(1)-(2); see
also MCR 6.104(E)(4); MCR 6.108(A). Additionally, defendants charged
with a felony offense or a misdemeanor offense punishable by more than
one year of imprisonment are statutorily entitled to a prompt, fair, and
impartial preliminary examination, MCL 766.1, which, unless waived by
the defendant with the consent of the prosecuting attorney, must also be
scheduled at arraignment, MCL 766.4(1); MCL 766.7.
“Except as provided in . . . MCL 712A.4,[12] the [judge] before

whom any person is arraigned on a charge of having
committed a felony shall set a date for a probable cause
conference to be held not less than 7 days or more than 14
days after the date of the arraignment, and a date for a
preliminary examination of not less than 5 days or more than
7 days after the date of the probable cause conference. The
dates for the probable cause conference and preliminary
examination shall be set at the time of arraignment.”
However, “[t]he parties, with the approval of the court, may agree to
schedule the preliminary examination earlier than 5 days after the
conference.” MCL 766.4(4). Additionally, “[u]pon the request of the
11 However, “[w]hen authorized by the chief judge of the district and whenever a district judge is not
immediately available, a district court magistrate may conduct the first appearance of a defendant before
the court in all criminal and ordinance violation cases, including acceptance of any written demand or
waiver of preliminary examination and acceptance of any written demand or waiver of jury trial.” MCL
600.8513(1).
12
MCL 712A.4 governs traditional waiver of Family Division jurisdiction over a juvenile between the ages
of 14 and 17 who is accused of an act that if committed by an adult would be a felony. For discussion of
traditional waiver proceedings, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 14.

prosecuting attorney, . . . the preliminary examination shall commence

immediately for the sole purpose of taking and preserving the testimony
of a victim if the victim is present.” Id.; see also MCR 6.110(B)(2) (adding
that “the defendant [must either be] present in the courtroom or [have]
waived the right to be present[]”).13
MCR 1.108(1) governs the method of computing the relevant time

periods under MCL 766.4:
“The day of the act, event, or default after which the

designated period of time begins to run is not included. The
last day of the period is included, unless it is a Saturday,
Sunday, legal holiday, or day on which the court is closed
pursuant to court order; in that event the period runs until
the end of the next day that is not a Saturday, Sunday, legal
holiday, or day on which the court is closed pursuant to court
order.”
7.4 Joint Probable Cause Conference and/or Preliminary

Examination for Codefendants
“If 1 or more defendants have been charged on complaints

listing codefendants with a felony or felonies, the probable
cause conference and preliminary examination for those
defendants who have been arrested and arraigned at least 72
hours before that conference on those charges shall be
consolidated, and only 1 joint conference or 1 joint
preliminary examination shall be held unless the prosecuting
attorney consents to a severance, a defendant seeks severance
by motion and the magistrate finds severance to be required
by law, or 1 of the defendants is unavailable and does not
appear at the hearing.”
See also MCR 6.108(E); MCR 6.110(A).
7.5 Probable Cause Conference14

“The state and the defendant are entitled to a probable cause conference,
unless waived by both parties.” MCR 6.108(A).
13 See Section 7.11(A) for discussion of the immediate commencement of the preliminary examination for
purposes of taking a victim’s testimony.

14 See the Michigan Judicial Institute’s checklist for conducting a probable cause conference. For additional
information, see the SCAO’s Best Practices for Probable Cause Conferences and Preliminary Examinations.

“The probable cause conference shall include the following:
(a) Discussions as to a possible plea agreement among

the prosecuting attorney, the defendant, and the
attorney for the defendant.
(b) Discussions regarding bail and the opportunity for

the defendant to petition the magistrate for a bond
modification.
(c) Discussions regarding stipulations and procedural

aspects of the case.
(d) Discussions regarding any other matters relevant to

the case as agreed upon by both parties.”
See also MCR 6.108(C) (“[t]he probable cause conference shall include
discussions regarding a possible plea agreement and other pretrial
matters, including bail and bond modification[]”).
Two-way interactive video technology may be used to conduct the

probable cause conference. MCR 6.006(A); see also MCR 4.401(E) (“[a]
district court magistrate may use videoconferencing technology in
accordance with MCR 2.407 and MCR 6.006[]”).
District court magistrates have jurisdiction “[t]o conduct probable cause

conferences and all matters allowed at the probable cause conference,
except for the taking of pleas and sentencings, under . . . MCL 766.4,
when authorized to do so by the chief district court judge.” MCL
600.8511(h); see also MCR 6.108(B) (“[a] district court magistrate may
conduct probable cause conferences when authorized to do so by the
chief district judge and may conduct all matters allowed at the probable
cause conference, except taking pleas and imposing sentences unless
permitted by statute to take pleas or impose sentences[]”). However,
“[t]he district court judge must be available during the probable cause
conference to take pleas, consider requests for modification of bond, and
if requested by the prosecutor, take the testimony of a victim.” MCR
6.108(D).15
The parties may agree to waive the probable cause conference. MCL
766.4(2) provides:
“The probable cause conference may be waived by

agreement between the prosecuting attorney and the
15 See the SCAO’s Best Practices for Probable Cause Conferences and Preliminary Examinations, p 1, for
recommendations for conducting the probable cause conference (“PCC”).

attorney for the defendant. The parties shall notify the court
of the waiver agreement and whether the parties will be
conducting a preliminary examination, waiving the
examination, or entering a plea.”
See also MCR 6.108(A).
7.6 Pleas
“A district judge has the authority to accept a felony plea. A

district judge shall take a plea to a misdemeanor or felony as
between the parties. Sentencing for a felony shall be
conducted by a circuit judge, who shall be assigned and
whose name shall be available to the litigants, pursuant to
court rule, before the plea is taken.”16
7.7 Right to a Preliminary Examination17

The defendant and the prosecution are entitled to a prompt examination
and determination by an examining judge. MCL 766.1; MCR 6.110(A).
There is no federal constitutional right to a preliminary examination.
People v Hall (Lisa), 435 Mich 599, 603 (1990) (citation omitted). “‘In
Michigan, the preliminary examination is solely a creation of the
Legislature—it is a statutory right.’” Id. (citations omitted).
A. General Provisions
“The state and the defendant are entitled to a prompt

examination and determination by the examining
magistrate in all criminal causes and it is the duty of all
courts and public officers having duties to perform in
connection with an examination, to bring it to a final
determination without delay except as necessary to
secure to the defendant a fair and impartial
examination.”
16
17 See the Michigan Judicial Institute’s checklist for conducting a preliminary examination.

MCL 766.4(4) provides, in part, that “[i]f a plea agreement is not

reached and if the preliminary examination is not waived by the
defendant with the consent of the prosecuting attorney, a
preliminary examination shall be held as scheduled unless
adjourned or waived under [MCL 766.7].”18 See also MCR 6.110(A),
which provides, in part:
“Where a preliminary examination is permitted by law,

the people and the defendant are entitled to a prompt
preliminary examination. . . . Upon waiver of the
preliminary examination, the court must bind the
defendant over for trial on the charge set forth in the
complaint or any amended complaint.”
“An information shall not be filed against any person for a felony
until such person has had a preliminary examination therefor, as
provided by law, before an examining magistrate, unless that
person waives his [or her] statutory right to an examination.” MCL
767.42(1).
B. Right to Preliminary Examination on New Charges Added

By Amendment of Information
Amendment of an information without an additional preliminary
examination may be permissible where the proofs presented at the
initial preliminary examination would have supported a bindover
on the charge sought to be added, if the amendment does not
“cause[] unacceptable prejudice to the defendant because of unfair
surprise, inadequate notice, or insufficient opportunity to defend.”
People v Hunt (Arthur), 442 Mich 359, 363-365 (1993) (noting that the
examining magistrate “is not bound by the limitations of the written
complaint[]” and holding that the district court erred in denying the
prosecution’s motion to amend the information to charge a greater
offense at the conclusion of the preliminary examination) (citations
omitted). See also People v McGee (Keangela), 258 Mich App 683, 693,
696-697 (2003) (in the absence of unfair surprise or prejudice, the
defendant had no right to a preliminary examination on a new
charge added by amendment of the information after the defendant
waived preliminary examination on the original charge); People v
Fortson, 202 Mich App 13, 15-17 (1993) (“the trial court [did not err]
in allowing the prosecutor to amend the information to add [a]
count even though [the] defendant was never bound over on such a
charge[]” where the proofs adduced at the preliminary examination
supported the new charge and the trial court’s refusal to remand the
case for another preliminary examination did not result in unfair
18 See Section 7.11(B) for discussion of adjournment of the preliminary examination.

surprise, inadequate notice, or an insufficient opportunity to

defend).
C. No Right to Preliminary Examination Following Grand

Jury Indictment
A defendant does not have a substantive right to a preliminary
examination following a grand jury indictment. People v Glass
(Willie), 464 Mich 266, 271, 282-283 (2001); People v Green (Robert), 322
Mich App 676, 682, 683 (2018) (discussing one-person grand jury
procedure19 under MCL 767.3 and MCL 767.4). See also MCR
6.112(B) (“[a]n indictment is returned and filed without a
preliminary examination[]”).
D. No Right to Preliminary Examination for Fugitive From

Justice
“An information may be filed without a preliminary examination
against a fugitive from justice[.]” MCL 767.42(2). See also MCR
6.112(B), which states, in part, that “[u]nless the defendant is a
fugitive from justice, the prosecutor may not file an information
until the defendant has had or waives a preliminary examination.”
E. Juvenile’s Right to a Preliminary Examination20
1. Right to a Preliminary Examination in Automatic

Waiver Cases21
A prosecutor who “has reason to believe that a juvenile 14
years of age or older but less than 17 years of age has
committed a specified juvenile violation[]”22 may file a
complaint and warrant in district court, which divests the
family division of the circuit court of jurisdiction. MCL
764.1f(1); MCL 712A.2(a)(1). A juvenile has a right to a
preliminary examination in such a case (known as an
“automatic waiver” case), and the prosecutor must follow the
same preliminary examination procedures as are applicable for
19 See Section 3.31(A) for more information one-person grand juries.
20 The scope of this section is limited to discussing whether a juvenile has the right to a preliminary
examination. Preliminary examination rules specific to cases involving a juvenile are beyond the scope of
this benchbook. For a full discussion of preliminary examination requirements in proceedings involving a
juvenile, see the Michigan Judicial Institute’s Juvenile Justice Benchbook.
21 See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 16, for more information on
automatic waiver proceedings.

22 For enumerated specified juvenile violations, see MCL 600.606(2)(a)-(i); MCL 712A.2(a)(1)(A)-(I); MCL
764.1f(2)(a)-(i).

adult defendants charged with criminal offenses. See MCR

6.901(A) (the rules in subchapter 6.900 governing automatic
waiver cases “take precedence over, but are not exclusive of,
the rules of procedure applicable to criminal actions against
adult offenders[]”); see also MCR 6.911(A) (governing waiver
of preliminary examination by a juvenile represented by an
attorney); MCR 6.911(B) (governing transfer to the family
division of circuit court following preliminary examination if
the examining magistrate “finds that there is no probable cause
to believe that a specified juvenile violation occurred or . . . that
the juvenile committed the specified juvenile violation, but that
[probable cause exists to believe that the juvenile committed]
some other offense . . . that if committed by an adult would
constitute a crime[]”).
2. Right to a Preliminary Examination in Designated

Proceedings23
A designated proceeding is “a proceeding in which the
prosecuting attorney has designated, or has requested the
[Family Division] to designate, the case for trial in the [Family
Division] in the same manner as an adult.” MCR 3.903(A)(6).
Pursuant to MCL 712A.2d(4), a juvenile has the right to a

preliminary examination in some designated cases:
“If the petition in a case designated under [MCL

712A.2d] alleges an offense that if committed by an
adult would be a felony or punishable by
imprisonment for more than 1 year, the court shall
conduct a probable cause hearing not later than 14
days after the case is designated to determine
whether there is probable cause to believe the
offense was committed and whether there is
probable cause to believe the juvenile committed
the offense. . . . A probable cause hearing under
this section is the equivalent of the preliminary
examination in a court of general criminal
jurisdiction and satisfies the requirement for that
hearing. A probable cause hearing shall be
conducted by a judge other than the judge who
will try the case if the juvenile is tried in the same
manner as an adult.”
designated proceedings, including the procedures and rules regarding preliminary examinations.

The Michigan Court Rules refer to the probable cause hearing

required under MCL 712A.2d(4) as the “preliminary
examination.” See MCR 3.903(D)(5); MCR 3.953(A).24
3. Preliminary Examinations in Traditional Waiver

Cases25
“If a juvenile 14 years of age or older is accused of an act that if
committed by an adult would be a felony, the judge of the
[Family Division] in the county in which the offense is alleged
to have been committed may waive jurisdiction under [MCL
712A.4] upon motion of the prosecuting attorney. After waiver,
the juvenile may be tried in the court having general criminal
jurisdiction of the offense.” MCL 712A.4(1). The probable
cause determination made pursuant to MCL 712A.4(3)
“satisfies the requirements of, and is the equivalent of, the
preliminary examination[.]” MCL 712A.4(10).26
7.8 Waiver of Preliminary Examination27

“The defendant may waive the preliminary examination with the consent
of the prosecuting attorney.” MCL 766.7; MCR 6.110(A).
“An information shall not be filed against any person for a felony until
such person has had a preliminary examination . . . unless that person
waives his [or her] statutory right to an examination.”28 MCL 767.42(1);
see also MCR 6.112(B).
24
The probable cause hearing (preliminary examination) required under MCL 712A.2d(4) should not be
confused with the probable cause conference that is required, in addition to the preliminary examination,
in courts of general criminal jurisdiction under MCL 766.4(1) (as amended by 2014 PA 123, effective May
20, 2014). Because the proceedings in a designated case “are criminal proceedings and shall afford all
procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense
in a court of general criminal jurisdiction[,]” MCL 712A.2d(7), the probable cause conference requirement
under MCL 766.4(1) may apply to designated proceedings. However, MCL 712A.2d and the court rules
governing designated proceedings, including MCR 3.951, have not been amended to reflect the
amendment of MCL 766.4(1); therefore, it is unclear to what extent the probable cause conference
requirement applies to designated cases.
Additionally, the preliminary examination should be distinguished from the probable cause hearing
required under MCR 3.935(D), MCR 3.951(A)(2)(d), and MCR 3.951(B)(2)(d) for the pretrial detention of a
juvenile.
See the Michigan Judicial Institute’s Juvenile Justice Benchbook for more information on these hearings.
traditional waiver proceedings.

26 Effective May 20, 2014, and applicable to cases in which the defendant is arraigned in district court on or
after January 1, 2015, 2014 PA 123 amended MCL 766.4 to require the court, “[e]xcept as provided
in . . . MCL 712A.4,” to schedule, at arraignment for a felony charge, “a probable cause conference
to be held not less than 7 days or more than 14 days after the date of the arraignment[]” and a preliminary
examination to be held “not less than 5 days or more than 7 days after the date of the probable cause
conference.” MCL 766.4(1) (emphasis supplied); see also 2014 PA 123, enacting section 1; MCR 6.104(E)(4).

Two-way interactive video technology may be used to conduct a

proceeding in which the defendant waives his or her right to a
preliminary examination. MCR 6.006(A). “The use of telephonic, voice,
video conferencing, or two-way interactive video technology[] must be in
accordance with any requirements and guidelines established by the
State Court Administrative Office, and all proceedings at which such
technology is used must be recorded verbatim by the court.” MCR
6.006(D).29
“Upon waiver of the preliminary examination, the court must bind the
defendant over for trial on the charge set forth in the complaint or any
amended complaint.” MCR 6.110(A).
A district court magistrate, “[w]hen authorized by the chief judge of the

district and whenever a district judge is not immediately available, . . .
may conduct the first appearance of a defendant before the court in all
criminal and ordinance violation cases, including acceptance of any
written demand or waiver of preliminary examination[.]” MCL
600.8513(1). “A defendant neither demanding nor waiving preliminary
examination in writing is deemed to have demanded preliminary
examination[.]” Id.
A. Waiver of Examination Without Counsel and Remand for

Examination
“If any person waives his [or her] statutory right to a preliminary
examination without having had the benefit of counsel at the time
and place of the waiver, upon proper and timely application by the
person or his [or her] counsel, before trial or plea of guilty, the court
having jurisdiction of the cause, in its discretion, may remand the
case to a magistrate for a preliminary examination.” MCL 767.42(1).
Denial of a defendant’s motion to remand for a preliminary

examination under MCL 767.42(1) where defendant waived the
27 See the Michigan Judicial Institute’s checklist for waiver of preliminary examination.
28
However, an information may be filed against a fugitive from justice without conducting a preliminary
examination. MCL 767.42(2); MCR 6.112(B).
29
statutes.” Administrative Order No. 2012-7 further provides that “[t]he judicial officer who presides
remotely must be physically present in a courthouse located within his or her judicial circuit, district, or
multiple district area.” Additionally, “[f]or circuits or districts that are comprised of more than one county,
each court that seeks permission to allow its judicial officers to preside by video communication
equipment must submit a proposed local administrative order for approval by the State Court
Administrator pursuant to MCR 8.112(B).” Administrative Order No. 2012-7.

examination without benefit of counsel may constitute an abuse of

discretion. See People v Johnson (Van), 57 Mich App 117, 121-122
(1974) (holding that the trial court did not abuse its discretion in
denying the defendant’s motion to remand for preliminary
examination where the defendant “knew both of his right to
preliminary examination and of his right to counsel[]” at the time of
his uncounseled waiver and therefore did not demonstrate
prejudice resulting from the denial); People v Wiggins, 6 Mich App
340, 343 (1967) (holding that the trial court’s stated reason for
denying the defendant’s motion because of previous adjournments
was insufficient to deny the defendant a preliminary examination
where it appeared that the adjournments were due to the defendant
not being afforded counsel).
B. Waiving the Right to Preliminary Examination by

Entering a Plea
“[A] plea of guilty upon arraignment to an information in the circuit
court waives a preliminary examination.” People v Losinger, 331 Mich
C. Waiver of Examination in Problem-Solving Courts30

If an individual being considered for admission to a drug treatment
court, mental health court, or veterans treatment court is charged in
a criminal case,31 his or her admission is subject to, among other
things, written waiver of the right to a preliminary examination,
with the prosecutor’s agreement. MCL 600.1068(1)(c); MCL
600.1094(1)(b); MCL 600.1205(1)(c). An individual who has waived
his or her right to a preliminary examination and has pleaded guilty
as part of his or her application to a drug treatment court, mental
health court, or veterans treatment court and who is not admitted to
that court shall be permitted to withdraw his or her plea and is
entitled to a preliminary examination.32 MCL 600.1068(5); MCL
600.1094(3); MCL 600.1205(5).
30 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 10, for discussion
of problem-solving courts.
31
Or, in the case of a juvenile who is being considered for admission to a juvenile drug court or juvenile
mental health court, the juvenile “is alleged to have engaged in activity that would constitute a criminal act
if committed by an adult[.]” MCL 600.1068(1); MCL 600.1099f(1).
32
Or, in the case of a juvenile who “has admitted responsibility, as part of his or her application to a drug
treatment court” or “as part of his or her referral process to a juvenile mental health court,” the juvenile
may “withdraw his or her admission of responsibility.” MCL 600.1068(5); MCL 600.1099f(3).

7.9 Jurisdiction and Venue
A. Jurisdiction of Preliminary Examination and Attendant

Hearings
The district court has jurisdiction of “[p]reliminary examinations in
all felony cases and misdemeanor cases not cognizable by the
district court and all matters allowed at the preliminary
examination under . . . MCL 766.1[ et seq].” MCL 600.8311(e); see
also MCR 6.008(A). Felony is defined in the Code of Criminal
Procedure as “a violation of a penal law of this state for which the
offender, upon conviction, may be punished by imprisonment for
more than 1 year or an offense expressly designated by law to be a
felony.” MCL 761.1(f). Accordingly, a defendant charged with a
“circuit court misdemeanor” (a misdemeanor offense that is
punishable by more than one year of imprisonment) is entitled to a
preliminary examination under MCL 600.8311(e).33 See People v
Burrill, 391 Mich 124, 131, 131 n 12 (1974); see also People v Smith
(Timothy), 423 Mich 427, 443-446 (1985).
The district court does not exceed its jurisdiction by ordering

discovery relevant to the probable cause determination, or by
“conducting a due process hearing before or during the preliminary
examination, or before the defendant is bound over for trial.” People
v Laws, 218 Mich App 447, 450-454 (1996). “Certain due process
hearings, such as Miranda,[34] Tucker,[35] and Walker[36] hearings, are
at times necessary to a proper preliminary examination[,]” and “the
district court may rule on such allegations of due process violations
where the facts warrant.” Laws, 218 Mich App at 453-454
(concluding that “because the district court possesses the authority
to conduct necessary due process hearings and to assess the
credibility of witnesses when determining whether a crime has been
committed and whether the defendant committed the crime, the
district court’s actions in [ordering the in camera review of police
reports relevant to the defendant’s claims of due process violations]
did not exceed its jurisdiction[]” of the preliminary examination
under MCL 600.8311).
Under MCL 766.7, the preliminary examination may be adjourned,

continued, or delayed, and “[a]n action on the part of the [district
33 See Section 7.2(A) for additional discussion of the district court’s jurisdiction over preliminary
examinations. For a thorough discussion of district court jurisdiction, see Chapter 2.

34
Miranda v Arizona, 384 US 436 (1966). See the Michigan Judicial Institute’s Evidence Benchbook,
Chapter 3, for discussion of self-incrimination and Miranda.
35 United States v Tucker, 404 US 443 (1972).
36 People v Walker (On Rehearing), 374 Mich 331 (1965).

court] in adjourning or continuing any case does not cause the

[district court] to lose jurisdiction of the case.” See also People v
Dunson, 139 Mich App 511, 513 (1985) (“[t]he defect of not bringing
[a] defendant to a timely preliminary examination is not[] . . .
jurisdictional[]”).
B. Venue for Preliminary Examination

MCL 600.8312 sets out general venue rules based on the type of
district in which the criminal conduct took place. See Chapter 2 for
general discussion of venue.
Special venue rules apply with respect to preliminary examinations.

“With regard to . . . examinations conducted for offenses

not cognizable by the [district court], the following
special provisions apply:

or more counties, districts or political subdivisions
the counties, districts or political subdivisions
concerned.

railroad train, automobile, aircraft, vessel or other
determined in which county, district or political
proper in any county, district or political
passed in the course of its journey.


subdivision.”

Attorney General, 129 Mich App at 131.
7.10 Persons Who May Conduct Preliminary Examinations

A preliminary examination must be conducted before an examining
magistrate. MCL 766.1; MCL 767.42(1). A magistrate is defined in the Code
of Criminal Procedure as “a judge of the district court or a judge of a
municipal court.” MCL 761.1(l). The term does not include district court
magistrates, unless statutory authority explicitly provides them with
authority to act as a magistrate. Id. District court magistrates are not
authorized to conduct preliminary examinations. See MCL 600.8511.37
Although there is no general rule barring a judge who issued a

defendant’s arrest warrant from also presiding over the defendant’s
preliminary examination, “if a defendant requests a [judge] other than a
[judge] who has already heard witnesses ex parte, such a request should
be regarded as reasonable and reasonable efforts exerted toward
compliance.” People v Burrill, 391 Mich 124, 137-138 (1974). “[I]f witnesses
[have] been examined[, i]t is arguable that the [judge], having been
persuaded through such testimony at the time he [or she] issued the
arrest warrant that there was probable cause, might not be wholly
objective when asked to reconsider the question at the more formal
preliminary examination[.]” Id. at 137 (nevertheless holding that where
“the affidavit presented to the [judge] was in conclusory form and did
not state any of the underlying or operative facts and no witnesses were
examined,” there was “no prejudice to the accused in having the [judge]
who issued the arrest warrant preside at the preliminary examination[]”).
37 However, “[w]hen authorized by the chief judge of the district and whenever a district judge is not
immediately available, a district court magistrate may conduct the first appearance of a defendant before
the court in all criminal and ordinance violation cases, including acceptance of any written demand or
waiver of preliminary examination[.]” MCL 600.8513(1). See Section 7.2(B) for additional discussion of the
authority of district court magistrates to conduct pre-bindover proceedings in felony cases. For a thorough
discussion of the authority of district court magistrates, see Chapter 5.

Committee Tip:
A common situation calling for the
disqualification of a judge is when the judge has
issued a search warrant. It is recommended that
when the validity of a search warrant is (or will
be) challenged at the preliminary examination,
the judge who issued the search warrant should
disqualify himself or herself from hearing the
examination.
In cases in which an initial preliminary examination is held and probable

cause is not found, MCR 6.110(F) provides for a subsequent preliminary
examination and states that “[e]xcept as provided in MCR 8.111(C)[38],
the subsequent preliminary examination must be held before the same
judicial officer and the prosecutor must present additional evidence to
support the charge.” This rule “prevents ‘judge shopping’ by requiring
that a subsequent examination be before the same [judge], if available,
and that additional evidence be presented.” People v Robbins (Darrell), 223
Mich App 355, 362 (1997).
7.11 Timing of Preliminary Examinations

“The state and the defendant are entitled to a prompt examination and
determination by the examining magistrate in all criminal causes and it is
the duty of all courts and public officers having duties to perform in
connection with an examination, to bring it to a final determination
without delay except as necessary to secure to the defendant a fair and
impartial examination.” MCL 766.1. See also MCR 6.110(A), which states,
in part, that “[w]here a preliminary examination is permitted by law, the
people and the defendant are entitled to a prompt preliminary
examination.”
The preliminary examination, unless waived or adjourned, must be

scheduled for “not less than 5 days or more than 7 days after the date of
the probable cause conference.” MCL 766.4(1)39; see also MCR
6.104(E)(4). However, “[t]he parties, with the approval of the court, may
agree to schedule the preliminary examination earlier than 5 days after
the conference.” MCL 766.4(4).
38 MCR 8.111(C) provides, in part, that “[i]f a judge is disqualified or for other good cause cannot undertake
an assigned case, the chief judge may reassign it to another judge by a written order stating the reason.”
39 See Section 7.5 for discussion of probable cause conferences.

When computing the relevant time periods, the day of the arraignment is
not included. See MCR 1.108(1). “The last day of the period is included,
unless it is a Saturday, Sunday, legal holiday, or day on which the court is
closed pursuant to court order; in that event the period runs until the end
of the next day that is not a Saturday, Sunday, legal holiday, or day on
which the court is closed pursuant to court order.” Id.
“Unless adjourned by the court, the preliminary examination must be

held on the date specified by the court at the arraignment on the warrant
or complaint.” MCR 6.110(B)(1). A violation of MCR 6.110(B)(1) “is
deemed to be harmless error unless the defendant demonstrates actual
prejudice.” Id.
A. Immediate Commencement of Preliminary Examination

for Purpose of Taking Victim Testimony
“Upon the request of the prosecuting attorney, . . . the

preliminary examination shall commence immediately
for the sole purpose of taking and preserving the
testimony of a victim if the victim is present. For
purposes of this subdivision, ‘victim’ means an
individual who suffers direct or threatened physical,
financial, or emotional harm as a result of the
commission of a crime. If that testimony is insufficient
to establish probable cause to believe that the defendant
committed the charged crime or crimes, the magistrate
shall adjourn the preliminary examination to the date
set at arraignment. A victim who testifies under this
subdivision shall not be called again to testify at the
adjourned preliminary examination absent a showing of
good cause.”
See also MCR 6.110(B)(2) (adding that “the defendant [must either
be] present in the courtroom or [have] waived the right to be
present[]”).
B. Adjournment, Continuance, or Delay of Preliminary

Examination
1. Good Cause and/or Consent

The judge may adjourn, continue, or delay the preliminary
examination for a reasonable time with the consent of the
defendant and prosecuting attorney without a showing of
good cause. See MCR 6.110(B)(1); MCL 766.7. Additionally, the
preliminary examination may be adjourned, continued, or
delayed without the consent of the defendant or the

prosecuting attorney for good cause shown. MCR 6.110(B)(1);
MCL 766.7. “If a party objects, the court may not adjourn a
preliminary examination unless it makes a finding on the
record of good cause shown for the adjournment.” MCR
6.110(B)(1).
The following are examples of circumstances under which

Michigan’s appellate courts have determined there was good
cause to adjourn a preliminary examination:
• Because of docket congestion due to unusual

circumstances, People v Crawford (David), 429 Mich
151, 159 n 8 (1987); see also People v Twomey, 173 Mich
App 247, 249 (1988) (holding that “[s]imple docket
congestion without a showing of unusual
circumstances[] . . . does not constitute ‘good cause’
for adjournment of examinations”) (citations
omitted).
• To accommodate the absence of a material witness,

“where it appears probable that the witness will be
produced and will testify[,]” People v Den Uyl, 320
Mich 477, 488, 494 (1948) (citations omitted). See also
People v Horne, 147 Mich App 375, 377-378 (1985)
(material witnesses had a conflicting court
appearance and a scheduled vacation); People v
Buckner, 144 Mich App 691, 694 (1985) (victim was
hospitalized until the day before the preliminary
examination).
• Because defense counsel had previous appointments

that he was required to attend, and due to illnesses
affecting the prosecutor’s wife and the judge, People v
Lewis (James), 160 Mich App 20, 32 (1987).
• To appoint counsel and allow appointed counsel to

gain familiarity with the case before the preliminary
examination, People v Eddington, 77 Mich App 177,
186-190 (1977); People v Brown (James), 19 Mich App
66, 68 (1969).40
2. Procedure
MCL 766.7 provides, in part:
40
See, however, MCR 6.005(E) (“[t]he court may 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[]”).

“A magistrate may adjourn a preliminary

examination for a felony to a place in the county as
the magistrate determines is necessary. The
defendant may in the meantime be committed
either to the county jail or to the custody of the
officer by whom he or she was arrested or to any
other officer; or, unless the defendant is charged
with treason or murder, the defendant may be
admitted to bail.”
A judge who adjourns or continues a preliminary examination

does not lose jurisdiction of the case. MCL 766.7.
3. Use of Two-Way Interactive Video Technology

“District and circuit courts may use two-way interactive video
technology to conduct the following proceedings between a
courtroom and a prison, jail, or other location: . . .
adjournments of preliminary examinations.” MCR 6.006(A).
“The use of telephonic, voice, video conferencing, or two-way
interactive video technology, must be in accordance with any
requirements and guidelines established by the State Court
Administrative Office, and all proceedings at which such
technology is used must be recorded verbatim by the court.”
MCR 6.006(D).41
4. Harmless Error
A violation of MCR 6.110(B)42 “is deemed to be harmless error
unless the defendant demonstrates actual prejudice.” See also
Buckner, 144 Mich App at 694-695 (a preliminary examination
timely scheduled then adjourned with no explanation on the
record may amount to harmless error if good cause can be
established by the record).
41
42
MCR 6.110(B)(1) provides that “[i]f the parties consent, the court may adjourn the preliminary
examination for a reasonable time[; i]f a party objects, the court may not adjourn a preliminary
examination unless it makes a finding on the record of good cause shown for the adjournment.”

7.12 Discovery Before or at Preliminary Examination

Discovery in felony cases is governed by MCR 6.200 et seq. See MCR
6.001(A).
“The district court may order discovery in carrying out its duty to
conduct preliminary examinations.” People v Laws, 218 Mich App 447, 451
(1996). “Discovery may be ordered before the preliminary examination.”
Id. (citation omitted). An in camera review may be used to determine
whether the requested evidence is discoverable. See id. at 452 (citation
omitted). “Discovery should be granted where the information sought is
necessary to a fair trial and a proper preparation of a defense[,]” and
“[e]ven inadmissible evidence is discoverable if it will aid the defendant
in trial preparation.” Id. (citations omitted). “A defendant has a due
process right to obtain evidence in the possession of the prosecutor if it is
favorable to the accused and material to guilt or innocence.” Id. (citation
omitted). See also MCR 6.201(B)(1).
“[A] district court, before the preliminary examination of an individual

charged with a felony, possesses the authority to compel discovery of
[certain] witnesses’ statements given to the prosecution pursuant to an
investigative subpoena.” People v Pruitt, 229 Mich App 82, 83-84 (1998).
Specifically, “in felony cases, a district court has the authority to order the
production of statements made by a defendant, codefendant, or
accomplice in response to an investigative subpoena, along with any
exculpatory information obtained from any witness in response to an
investigative subpoena; [however,] it does not have the authority in
felony prosecutions to order the production of nonexculpatory
statements made by other subpoenaed individuals.” Id. at 84.
7.13 Subpoenas to Compel Attendance at Preliminary

Examination
“Witnesses may be compelled to appear before the magistrate by
subpoenas issued by the magistrate, or by an officer of the court
authorized to issue subpoenas,[43] in the same manner and with the same
effect and subject to the same penalties for disobedience, or for refusing
to be sworn or to testify, as in cases of trials in the circuit court.” MCL
766.11(1). See also MCR 6.110(C), governing the conducting of the
preliminary examination (providing that “[e]ach party may subpoena
witnesses[]”). The judge has “a clear legal duty to compel the appearance
of a witness whose testimony [i]s necessary to achieve the ends of
justice.” In re Wayne Co Prosecutor, 110 Mich App 739, 745 (1981) (holding
43
Courts of record have the power “[t]o issue process of subpoena, requiring the attendance of any
witness in accordance with court rules, to testify in any matter or cause pending or triable in such
courts[.]” MCL 600.1455(1).

that the judge’s refusal to compel the attendance of a witness necessary

for the prosecution to establish probable cause for a bindover constituted
an abuse of discretion) (citations omitted).
A judge may certify that a witness who is located outside of Michigan is

material to a pending criminal matter and recommend that the witness
be taken into custody and brought to testify in a prosecution within this
state. MCL 767.93(1) states:
“If a person in a state, which by law provides for

commanding persons within its borders to attend and testify
in criminal prosecutions, or grand jury investigations
commenced or about to commence, in this state, is a material
witness in a prosecution pending in a court of record in this
state, or in a grand jury investigation which has commenced
or is about to commence, a judge of the court may issue a
certificate under the seal of the court stating these facts and
specifying the number of days the witness will be required.
The certificate may include a recommendation that the
witness be taken into immediate custody and delivered to an
officer of this state to assure his attendance in this state. This
certificate shall be presented to a judge of a court of record in
the county in which the witness is found.”
A defendant requesting the presence of an out-of-state witness under

MCL 767.93(1) must “(1) designate the proposed witness’ location with a
reasonable degree of certainty; (2) file a timely petition; and (3) make out
a prima facie case that the witness’ testimony is material.” People v
McFall, 224 Mich App 403, 409 (1997) (citation omitted). “[T]he party
seeking the presence of an out-of-state witness . . . should present
evidence in the form of an affidavit of the witness or other competent
evidence.” Id. at 410 (citations omitted).
See also MCL 766.11b(2), providing that “[t]he magistrate shall allow the
prosecuting attorney or the defense to subpoena and call a witness from
whom hearsay testimony was introduced under [MCL 766.11b44] on a
satisfactory showing to the magistrate that live testimony will be relevant
to the magistrate’s decision whether there is probable cause to believe
that a felony has been committed and probable cause to believe that the
defendant committed the felony.”45
44 MCL 766.11b(1) provides that certain reports “are not excluded by the rule against hearsay and shall be
admissible at the preliminary examination without requiring the testimony of the author of the report,
keeper of the records, or any additional foundation or authentication[.]” See Section 7.17(A) for more
information.
45 See Section 7.17(A) for discussion of MCL 766.11b.

7.14 Right to Counsel at Preliminary Examinations
A. Authorities Establishing Right to Counsel

The preliminary examination is a critical stage of criminal
proceedings, which entitles an indigent defendant to an appointed
attorney. Coleman v Alabama, 399 US 1, 10 (1970); People v Carter
(Edward), 412 Mich 214, 215, 217-218 (1981). At arraignment, the
court must advise the defendant “of entitlement to a lawyer’s
assistance at all subsequent court proceedings[.]” MCR 6.005(A)(1).
See also MCL 780.991(1)(c), requiring trial courts to “assure that
each criminal defendant is advised of his or her right to counsel[,]”
and MCL 780.991(3)(a), requiring the indigent criminal defense
system to make “[a] preliminary inquiry regarding, and . . .
determin[e,] . . . the indigency of any defendant, including a
determination regarding whether a defendant is partially
indigent46, . . . not later than at the defendant’s first appearance in
court.”47
At the preliminary examination, the defendant “may be assisted by

counsel in [the] examination [of defense witnesses] and in the cross-
examination of the witnesses in support of the prosecution.” MCL
766.12.
B. Advice by Court at Preliminary Examination of

Defendant’s Right to Counsel
“When a person charged with having committed a crime appears
before a magistrate without counsel, the person shall be advised of
his or her right to have counsel appointed.” MCL 775.16. See also
MCL 780.991(1)(c) (requiring trial courts to “assure that each
criminal defendant is advised of his or her right to counsel”)48;
MCR 6.005(E) (if a defendant waived assistance of counsel during
arraignment, the record of the preliminary examination and other
subsequent proceedings “need show only that the court advised the
defendant of the continuing right to a lawyer’s assistance (at public
expense if the defendant is indigent) and that the defendant waived
that right”).49
46Note that the Michigan Indigent Defense Commission (MIDC) must “promulgate objective standards for
MCL 780.991(3)(e). See Chapter 4 for more information on the MIDCA.
47
See Section 4.4 for discussion of MCL 780.991 and other provisions of the Michigan Indigent Defense
Commission Act (MIDCA), MCL 780.981 et seq.
48
See Section 4.4 for discussion of MCL 780.991 and other provisions of the Michigan Indigent Defense
Commission Act (MIDCA), MCL 780.981 et seq.

C. Appointment of Counsel at Preliminary Examination

“If the [defendant] states that he or she is unable to procure counsel,
the magistrate shall appoint counsel, if the [defendant] is eligible for
appointed counsel under the [Michigan Indigent Defense
Commission Act (MIDCA), MCL 780.981—MCL 780.1003].”50 MCL
775.16.
The MIDCA requires the trial court to “assure that each criminal
defendant is advised of his or her right to counsel.” MCL
780.991(1)(c). It requires the indigent criminal defense system to
make “[a] preliminary inquiry regarding,
and . . . determin[e,] . . . the indigency of any defendant,
including a determination regarding whether a defendant is
partially indigent, . . . not later than at the defendant’s first
appearance in court.”51 MCL 780.991(3)(a).52 See also MCR 6.005(E)
(requiring the court, at the preliminary examination, to appoint an
attorney for a defendant who “requests a lawyer and is financially
unable to retain one”).53
See Chapter 4 for more information on the MIDCA.
D. Waiver of Right to Counsel54

“The right of self-representation under Michigan law is secured by
Const 1963, art 1, § 13 and by statute, MCL 763.1.” People v Williams
(Rodney), 470 Mich 634, 642 (2004).
MCR 6.005(D) provides, in relevant part:
“The court may not permit the defendant to make an

initial waiver of the right to be represented by a lawyer
without first
49The continuing relevancy of MCR 6.005(E) following the enactment of the Michigan Indigent Defense
Commission Act (MIDCA), MCL 780.981 et seq. (2013 PA 93, effective July 1, 2013), is uncertain.
50
in court to answer to the criminal charge.” MCL 780.983(f)(i) (defining “‘[i]ndigent criminal defense
services’” for purposes of the MIDCA).
51Note
that the MIDC must “promulgate objective standards for indigent criminal defense systems to
determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial
review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e).
52 See Section 4.4 for discussion of the appointment of counsel under the MIDCA.
53
The continuing relevancy of MCR 6.005(E) following the enactment of the Michigan Indigent Defense
Commission Act (MIDCA), MCL 780.981 et seq. (2013 PA 93, effective July 1, 2013), is uncertain.
54 For more information on the waiver of right to counsel, see Chapter 4.

(1) advising the defendant of the charge, the

maximum possible prison sentence for the offense,
any mandatory minimum sentence required by
law, and the risk involved in self-representation,
and
(2) offering the defendant the opportunity to

consult with a retained lawyer or, if the defendant
is indigent, the opportunity to consult with an
appointed lawyer.” (Emphasis added).
“[MCR 6.005(D)] embodies the notion that explicit elucidation of a

defendant’s comprehension of the risks he or she faces by
representing himself or herself and the defendant’s willingness to
undertake those risks reduces the likelihood that a court will
inaccurately presume an effective waiver of the right to counsel.”
People v Brooks (Anthony), 293 Mich App 525, 537 (2011), vacated in
part on other grounds 490 Mich 993 (2012).55
MCR 6.005(E) governs what a court must do in subsequent

proceedings, such as the preliminary examination:
“If a defendant has waived the assistance of a lawyer,

the record of each subsequent proceeding . . . need show
only that the court advised the defendant of the
continuing right to a lawyer’s assistance (at public
expense if the defendant is indigent) and that the
defendant waived that right. Before the court begins
such proceedings,
(1) the defendant must reaffirm that a lawyer’s

assistance is not wanted; or
(2) if the defendant requests a lawyer and is

financially unable to retain one, the court must
appoint one; or
(3) if the defendant wants to retain a lawyer and

has the financial ability to do so, the court must
allow the defendant a reasonable opportunity to
retain one.
The court may 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.”
“Compliance with MCR 6.005(D) and [MCR 6.005](E) goes part of

the way toward establishing that a defendant has knowingly and
voluntarily waived counsel.” Brooks (Anthony), 293 Mich App at 538.
Before a trial court may grant a defendant’s request to proceed in
propria persona, it must also determine:
• that the defendant’s waiver of counsel is unequivocal;
• that the defendant actually understands the significance

and consequences of self-representation; and
• that self-representation will not disrupt, unduly

inconvenience, or burden the court. Id. (citations omitted).
E. Deprivation of Counsel at Preliminary Examination

“[D]eprivation of counsel at a preliminary examination is subject to
harmless-error review.” People v Lewis (Gary), 500 Mich 1, 12 (2017).
The Court rejected the defendant’s argument that he was entitled to
automatic reversal of his convictions on the ground that United
States v Cronic, 466 US 648 (1984), which held that denial of counsel
at a critical stage of trial is a structural error requiring automatic
reversal, “silently abrogated” Coleman v Alabama, 399 US 1 (1970),
which remanded for harmless-error analysis where the defendant
was denied counsel at a critical stage. Lewis (Gary), 500 Mich at 6-7.
“Coleman does not permit [the presumption] that a defendant, who
was ultimately convicted at an otherwise fair trial, suffered no harm
from the absence of counsel at his preliminary examination[, a]nd
that is true even if no evidence from the preliminary examination
was used at trial, and even if [the] defendant waived no rights or
defenses because of the absence of counsel at the preliminary
examination[;]” however, “a court may not simply presume,
without more, that the deprivation of counsel at a preliminary
examination must have caused the defendant harm.” Lewis (Gary),
501 Mich at 10-12 (remanding to the Court of Appeals to consider
“the substantive criteria or the procedural framework that should
attend such review[]” in order “to give meaning to the [United
States] Supreme Court’s command [in Coleman, 399 US at 11,] to
determine whether [the] defendant was ‘otherwise prejudiced by
the absence of counsel at the preliminary hearing[]’”).
“[T]o determine whether the denial of counsel at a preliminary

examination amounts to harmless error, courts must consider the
factors discussed in [Coleman, 399 US at 9],” i.e., whether counsel’s
examination of witnesses could have enhanced the impeachment of

witnesses at trial, preserved the favorable testimony of a witness

who did not appear at trial, or resulted in the district court refusing
to bind the defendant over; whether counsel could have more
effectively discovered the prosecution’s case and prepared a better
defense; and whether counsel could have made effective arguments
on such matters as the necessity of a psychiatric examination or bail.
People v Lewis (Gary) (On Remand), 322 Mich App 22, 29 (2017). In
addition to the Coleman factors, the reviewing court must also
consider “any other factors relevant to the particular case, including
the lost opportunity to negotiate a plea deal and any prejudice
resulting from the failure to file pretrial motions.” Lewis (Gary) (On
Remand), 322 Mich App at 29.
In Lewis (Gary) (On Remand), 322 Mich App at 34, the Court held that
“any error resulting from the denial of counsel at [the] defendant’s
preliminary examination was harmless[;]” “[g]iven that [the]
defendant was convicted at trial on the basis of sufficient evidence,
the possibility that counsel could have detected preclusive flaws in
the prosecution’s probable-cause showing [was] moot[,]” and
“although [the] defendant was unrepresented at the preliminary
examination, he was appointed new counsel at the next hearing,
who . . . could have used the [preliminary examination] transcript
for impeachment at trial.” Id. at 30-31 (additionally noting that the
defendant failed to identify any prejudice vis-à-vis the remaining
Coleman factors or factors related to the specific circumstances of his
case, and that he “lost no opportunity to negotiate a plea deal
because he lacked counsel”).
7.15 Closure of Preliminary Examination to Members of

the Public
Upon the motion of any party and satisfaction of certain conditions, a
judge has the discretion to close to members of the general public the
preliminary examination of a person charged with any of the following
offenses:
• Criminal sexual conduct in any degree;
• Assault with intent to commit criminal sexual conduct;
• Sodomy;
• Gross indecency;
• Any other offense involving sexual misconduct. MCL 766.9(1).
To close a preliminary examination to the public, the following

conditions must be met:
“(a) The magistrate determines that the need for protection of

a victim, a witness, or the defendant outweighs the public’s
right of access to the examination.
(b) The denial of access to the examination is narrowly

tailored to accommodate the interest being protected.
(c) The magistrate states on the record the specific reasons for
his or her decision to close the examination to members of the
general public.” MCL 766.9(1).
See also MCR 8.116(D).
To determine whether closure of the preliminary examination is

necessary to protect a victim or witness, the judge 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 judge may close a preliminary examination to protect a party’s right

to a fair trial only if:
“(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).
In narrowly tailoring closure to accommodate the interests of a victim

testifying about sensitive matters, the judge should close only those
portions of the examination in which such matters are discussed. In re
Closure of Preliminary Examination, 200 Mich App 566, 569-571 (1993).
If the court enters a closure order, it “must forward a copy of the order to
the State Court Administrative Office.” MCR 8.116(D)(3).
7.16 Sequestration of Witnesses

While conducting the preliminary examination, the judge may exclude
any witnesses who have not been examined. MCL 766.10. If requested, or
if the judge finds cause, any witnesses may be kept separated so that they
cannot converse with each other until after they have testified. Id. The
judge may also exclude “any or all minors during the examination of
such witnesses.” Id. See also MCL 600.1420 (“[t]he sittings of every court

within this state shall be public except that a court may, for good cause
shown, exclude from the courtroom other witnesses in the case when
they are not testifying and may, in actions involving scandal or
immorality, exclude all minors from the courtroom unless the minor is a
party or witness[, except in] cases involving national security[]”); MRE
615 (“[a]t the request of a party the court may order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it may
make the order of its own motion[, but t]his rule does not authorize
exclusion of (1) a party who is a natural person, or (2) an officer or
employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown by
a party to be essential to the presentation of the partyʹs cause[]”).
Although sequestration of witnesses is discretionary, “[a] request to
sequester a witness, reasonably made, should not be denied.” People v
Hayden (Michael) (After Remand), 125 Mich App 650, 659 (1983) (citations
omitted).
Crime victims have a constitutional right to attend all proceedings the

accused has a right to attend. Const 1963, art 1, § 24. The Crime Victim’s
Rights Act (CVRA), MCL 780.751 et seq., provides that in felony cases and
serious misdemeanor cases, the crime victim has “the right to be present
throughout the entire trial of the defendant, unless the victim is going to
be called as a witness.” MCL 780.761; MCL 780.821. For good cause
shown, the victim being called as a witness may be sequestered up until
he or she first testifies. MCL 780.761; MCL 780.821. Because of the use of
the word trial, MCL 780.761 and MCL 780.821 presumably do not apply
to preliminary examinations. However, the court has general authority to
sequester witnesses, which likely includes the authority to sequester
victims before or after testifying at preliminary examinations. See MCL
600.1420; MCL 766.10; MRE 615.
7.17 Probable Cause Inquiry and Applicable Evidentiary

Standards at Preliminary Examination
“The purpose of a preliminary examination is to determine whether there
is probable cause to believe that a crime was committed and whether
there is probable cause to believe that the defendant committed it.” People
v Perkins (Mark), 468 Mich 448, 452 (2003), citing MCR 6.110; see also
MCL 766.13. “The prosecutor need not establish beyond a reasonable
doubt that a crime was committed”; rather, the prosecutor must “present
only enough evidence on each element of the charged offense to lead ‘“a
person of ordinary prudence and caution to conscientiously entertain a
reasonable belief of [the defendant’s] guilt.”’” Perkins (Mark), 468 Mich at
452 (citations omitted). “‘[E]vidence regarding each element of the crime
or evidence from which the elements may be inferred must exist.’” People
v Drake (Chips), 246 Mich App 637, 640 (2001) (citation omitted).

“Identity is an essential element of every crime.” People v Fairey, ___ Mich

App ___, ___ (2018) (citation omitted). “Evidence supporting that the
defendant perpetrated the crime may be circumstantial, but must
nevertheless demonstrate reasonable grounds to suspect the defendant’s
personal guilt.” Id. at ___ (citation omitted). Although “a district court
may also rely on inferences to establish probable cause for a bindover,”
the court abuses its discretion when it fails “to distinguish between a
suspicion of guilt and a reasonable belief that [the defendant] was the
person who committed the crime.” Id. at ___ (holding “a person of
ordinary prudence and caution could not infer that [the defendant]
carried out his veiled threats to tag absent any actual evidence linking
[the defendant] to the acts of tagging”). “Mere suspicion is not the same
as probable cause[.]” Id.
“‘[T]he probable cause required for a bindover is “greater” than that

required for an arrest and . . . imposes a different standard of proof[;] . . .
[t]he arrest standard looks only to the probability that the person
committed the crime as established at the time of arrest, while the
preliminary hearing looks both to that probability at the time of the
preliminary hearing and to the probability that the government will be
able to establish guilt at trial.’” People v Cohen, 294 Mich App 70, 76 (2011)
(citations omitted). “The district court’s [probable cause] inquiry is not
limited to whether the prosecution has presented sufficient evidence on
each element of . . . the offense, but extends to whether probable cause
exists after an examination of the entire matter based on legally
admissible evidence.” People v Crippen, 242 Mich App 278, 282 (2000)
(citations omitted).56 However, “‘[a] preliminary hearing is ordinarily a
much less searching exploration into the merits of a case than a trial,
simply because its function is the more limited one of determining
whether probable cause exists to hold the accused for trial.’” Drake
(Chips), 246 Mich App at 640, quoting Barber v Page, 390 US 719, 725
(1968).
In determining whether there is probable cause to believe a crime has

been committed by the accused, a judge has a duty “to pass judgment on
the credibility of the witnesses.” People v Yost, 468 Mich 122, 127-128
(2003) (citations omitted). “If the evidence introduced at the preliminary
examination conflicts or raises a reasonable doubt about the defendant’s
guilt, the [judge] must let the factfinder at trial resolve those questions of
fact[, and t]his requires binding the defendant over for trial.” People v
Hudson, 241 Mich App 268, 278 (2000) (citation omitted); see also Yost, 468
Mich at 128; People v Goecke, 457 Mich 442, 469-470 (1998). Although “the
magistrate must exercise some judgment in analyzing the evidence at the
preliminary examination when deciding whether there is probable cause
56However,
it is unnecessary, in indictments or informations related to murder or manslaughter, to “set
forth the manner in which nor the means by which the death of the deceased was caused[.]” MCL 767.71.
Instead, MCL 767.71 requires only a charge that the defendant murdered or killed the deceased.

to bind over a defendant,”57 People v Anderson (Tremel), 501 Mich 175, 184
(2018), “charges should not be dismissed merely because the prosecutor
has failed to convince the reviewing tribunal that it would convict[; t]hat
question should be reserved for the trier of fact,” Perkins (Mark), 468 Mich
at 452, citing Goecke, 457 Mich at 469-470.
A. Admission of Evidence in Preliminary Examination

MCL 766.11b(1) provides that, with the exception of certain hearsay
records and reports enumerated in MCL 766.11b(1)(a)-(d), “[t]he
rules of evidence apply at the preliminary examination.” See also
MCR 6.110(C) (“[t]he court must conduct the [preliminary]
examination in accordance with the Michigan Rules of Evidence”).
“[W]hile the rules of evidence apply during a preliminary
examination, the right of confrontation does not.”58 People v Olney,
___ Mich App ___, ___ (2019) (finding that in addition to
misunderstanding the law, which alone required reversal, “the
circuit court abused its discretion when it granted defendant’s
motion to quash on the basis that defendant’s right of confrontation
was violated” during his preliminary examination even though the
testimony at the examination would have likely violated the
Confrontation Clause and been inadmissible at trial).
“[A]n evidentiary deficiency [such as admission of hearsay

testimony] at the preliminary examination is not ground for
vacating a subsequent conviction where the defendant received a
fair trial and was not otherwise prejudiced by the error.” People v
Hall (Lisa), 435 Mich 599, 600-601 (1990). See also MCL 769.26 (“[n]o
judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the
ground of . . . improper admission or rejection of
evidence, . . . unless in the opinion of the court, after an examination
of the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice”).
1. Scope of Examination
“At the preliminary examination, a magistrate shall

examine the complainant and the witnesses in
support of the prosecution, on oath and, except as
provided in [MCL 766.11a (permitting telephonic,
57 See Section 7.23 for more information on the bindover process.
58 See the Michigan Judicial Institute’s Evidence Benchbook, Chapter 3, for more information on
Confrontation Clause issues.

voice, or video conferencing)] and [MCL 766.11b

(permitting the admission of certain hearsay
evidence)], in the presence of the defendant,
concerning the offense charged and in regard to
any other matters connected with the charge that
the magistrate considers pertinent.”
The examining judge “may examine not only the truth of the
charge in the complaint, but also other pertinent matters
related to the charge[;]” the judge “is not bound by the
limitations of the written complaint.” People v Hunt (Arthur),
442 Mich 359, 363 (1993) (citation omitted). The court’s inquiry
at the preliminary examination “is not limited to whether the
prosecution has presented sufficient evidence on each element
of the offense, but extends to whether probable cause exists
after an examination of the entire matter based on legally
admissible evidence.” People v Crippen, 242 Mich App 278, 282
(2000) (citations omitted). Stated another way, “a magistrate’s
duty at a preliminary examination is to consider all the
evidence presented, including the credibility of the witnesses’
testimony, and to determine on that basis whether there is
probable cause to believe that the defendant committed a
crime, i.e., whether the evidence presented is ‘sufficient to
cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the accused’s
guilt.’” People v Anderson (Tremel), 501 Mich 175, 178 (2018),
quoting People v Yost, 468 Mich 122, 126 (2003) (quotation
marks and citation omitted). This determination must be made
at the end of the preliminary examination; accordingly, “a
magistrate must consider the totality of the evidence presented
at that juncture, and . . . a magistrate must do so even if
evidence introduced at the outset of the preliminary
examination initially appears to have satisfied the elements of
a criminal offense.” Anderson (Tremel), 501 Mich at 184, citing
MCL 766.13.
2. Rules of Evidence and Admissible Hearsay

The preliminary examination must generally be conducted “in
accordance with the Michigan Rules of Evidence.” MCR
6.110(C). However, MCL 766.11b provides, in relevant part:
“(1) The rules of evidence apply at the preliminary

examination except that the following are not
excluded by the rule against hearsay and shall be
admissible at the preliminary examination without
requiring the testimony of the author of the report,

keeper of the records, or any additional foundation

or authentication:
(a) A report of the results of properly

performed drug analysis field testing to
establish that the substance tested is a
controlled substance.
(b) A certified copy of any written or

electronic order, judgment, decree, docket
entry, register of actions, or other record of
any court or governmental agency of this
state.
(c) A report other than a law enforcement

report that is made or kept in the ordinary
course of business.
(d) Except for the police investigative report,

a report prepared by a law enforcement
officer or other public agency. Reports
permitted under this subdivision include, but
are not limited to, a report of the findings of a
technician of the division of the department
of state police concerned with forensic
science, a laboratory report, a medical report,
a report of an arson investigator, and an
autopsy report.
(2) The magistrate shall allow the prosecuting

attorney or the defense to subpoena and call a
witness from whom hearsay testimony was
introduced under this section on a satisfactory
showing to the magistrate that live testimony will
be relevant to the magistrate’s decision whether
there is probable cause to believe that a felony has
been committed and probable cause to believe that
the defendant committed the felony.[59]
MCL 766.11b irreconcilably conflicts with MCR 6.110(C)

(providing that the Michigan Rules of Evidence apply at
preliminary examinations) because it permits the admission of
evidence that would be excluded under the Michigan Rules of
Evidence. People v Parker, 319 Mich App 664, 667 (2017). “MCL
766.11b is an enactment of a substantive rule of evidence, not a
procedural one[; a]ccordingly, the specific hearsay exception in
MCL 766.11b takes precedence over the general incorporation
59 See also MCR 6.110(D)(1).

of the Michigan Rules of Evidence found in MCR 6.110(C).”

Parker, 319 Mich App at 674 (holding that “[t]he district court
properly admitted the laboratory report [of the defendant’s
blood draw at his preliminary examination on a charge of
operating while intoxicated] pursuant to the statutory hearsay
exception in MCL 766.11b[,]” and “[t]he circuit court abused its
discretion by remanding [the] defendant’s case to the district
court for continuation of the preliminary examination[]”).
See also MRE 1101(b)(8), providing that “[a]t preliminary

examinations in criminal cases, hearsay is admissible to prove,
with regard to property, the ownership, authority to use, value,
possession and entry.”
MCR 6.110(D)(2) provides:
“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
(a) a prior evidentiary hearing, or
(b) a prior evidentiary hearing supplemented

with a hearing before the trial court, or
(c) if there was no prior evidentiary hearing, a

new evidentiary hearing.”
MCR 6.202 governs the admissibility of forensic laboratory

reports and certificates.60
60 However, MCR 6.202 has not been amended to reflect amendments to MCL 766.11b that were adopted
by 2014 PA 123, effective May 20, 2014. See the Michigan Judicial Institute’s Evidence Benchbook for more
information on forensic laboratory reports and certificates.

B. Examination of Witnesses
1. Generally
“Each party may . . . examine and cross-examine witnesses at
the preliminary examination.” MCR 6.110(C).
2. Procedure
“At the preliminary examination, a magistrate shall examine
the complainant and the witnesses in support of the
prosecution, on oath and, except as provided in [MCL 766.11a
and MCL 766.11b],[61] in the presence of the defendant,
concerning the offense charged and in regard to any other
matters connected with the charge that the magistrate
considers pertinent.” MCL 766.4(6).
3. Testimony by Telephonic, Voice, or Video

Conferencing
“On motion of either party, the magistrate shall permit the
testimony of any witness, except the complaining witness, an
alleged eyewitness, or a law enforcement officer to whom the
defendant is alleged to have made an incriminating statement,
to be conducted by means of telephonic, voice, or video
conferencing. The testimony taken by video conferencing shall
be admissible in any subsequent trial or hearing as otherwise
permitted by law.” MCL 766.11a.
“As long as the defendant is either present in the courtroom or

has waived the right to be present, on motion of either party,
district courts may use telephonic, voice, or video
conferencing, including two-way interactive video technology,
to take testimony from an expert witness or, upon a showing of
good cause, any person at another location in a preliminary
examination.” MCR 6.006(B). “The use of telephonic, voice,
video conferencing, or two-way interactive video technology[]
must be in accordance with any requirements and guidelines
established by the State Court Administrative Office, and all
proceedings at which such technology is used must be
recorded verbatim by the court.” MCR 6.006(D).62
61
MCL 766.11a governs the use of telephonic, voice, or video conferencing at the preliminary
examination. MCL 766.11b governs admission of certain hearsay reports and documents.

Committee Tip:
The trial court should allow the defendant to
effectively cross-examine the prosecution
witnesses, so that even if a prosecution witness
becomes unavailable to testify at trial, MRE
804(a)(5), the prior testimony would still be
admissible and not violate the defendant’s right
to confrontation.
C. Corpus Delicti Rule

“Under the corpus delicti rule, ‘a defendant’s confession may not be
admitted unless there is direct or circumstantial evidence
independent of the confession establishing (1) the occurrence of the
specific injury . . . and (2) some criminal agency as the source of the
injury.’” People v Schumacher, 276 Mich App 165, 180 (2007), quoting
People v Konrad, 449 Mich 263, 269-270 (1995). “In a criminal
prosecution, proof of the corpus delicti of a crime is required before
the prosecution may introduce a defendant’s inculpatory
statements.” Schumacher, 276 Mich App at 180. “It is . . . well-
accepted that [the corpus delicti] rule applies to a preliminary
examination.” People v Randall (Robert), 42 Mich App 187, 190 (1972)
(citations omitted); see also People v Cotton (James), 191 Mich App
377, 384, 394 (1991).
62

7.18 Victims’ Rights at Preliminary Examination63
A. Notice Requirements
Crime victims in Michigan have a constitutional right to notification
of court proceedings. Const 1963, art 1, § 24. If requested by the
victim, “the prosecuting attorney shall give the victim notice of any
scheduled court proceedings and any changes in that schedule.”
MCL 780.756(2). In addition, the Crime Victim’s Rights Act (CVRA),
MCL 780.751 et seq., provides that, in felony cases, the prosecuting
attorney must also provide each victim with notice of the
information specified in MCL 780.756(1)(a)-(f) “[n]ot later than 7
days after the defendant’s arraignment for a crime, but not less than
24 hours before a preliminary examination[.]” MCL 780.756(1).
B. Separate Waiting Areas

“The court shall provide a waiting area for the victim separate from
the defendant, defendant’s relatives, and defense witnesses if such
an area is available and the use of the area is practical. If a separate
waiting area is not available or practical, the court shall provide
other safeguards to minimize the victim’s contact with defendant,
defendant’s relatives, and defense witnesses during court
proceedings.” MCL 780.757.
C. Limitations on Testimony Identifying a Victim’s Address,

Place of Employment, or Other Information
MCR 6.201(A)(1) provides for mandatory disclosure to all other
parties, upon request, of the names and addresses of all witnesses
that a party may call as witnesses at trial, including victims. “[I]n
the alternative, a party may provide the name of the witness and
make the witness available to the other party for interview[.]” Id.
In certain circumstances, the prosecuting attorney may request that

a victim’s identifying information be protected from disclosure in
pretrial proceedings. MCL 780.758(1) provides:
“Based upon the victim’s reasonable apprehension of

acts or threats of physical violence or intimidation by
the defendant or at defendant’s direction against the
victim or the victim’s immediate family, the prosecuting
attorney may move that the victim or any other witness
not be compelled to testify at pretrial proceedings or at
63 For more information on crime victims’ rights, see the Michigan Judicial Institute’s Crime Victim Rights
Benchbook.

trial for purposes of identifying the victim as to the

victim’s address, place of employment, or other
personal identification without the victim’s consent. A
hearing on the motion shall be in camera.”
D. Immediate Commencement of Preliminary Examination

for Purpose of Taking Victim Testimony
“Upon the request of the prosecuting attorney, . . . the

for the sole purpose of taking and preserving the
testimony of a victim if the victim is present. For
purposes of this subdivision, ‘victim’ means an
individual who suffers direct or threatened physical,
commission of a crime. If that testimony is insufficient
to establish probable cause to believe that the defendant
committed the charged crime or crimes, the magistrate
shall adjourn the preliminary examination to the date
set at arraignment. A victim who testifies under this
subdivision shall not be called again to testify at the
adjourned preliminary examination absent a showing of
good cause.”
See also MCR 6.110(B)(2), which provides:
“Upon the request of the prosecuting attorney, the

at the date and time set for the probable cause
conference for the sole purpose of taking and preserving
the testimony of the victim, if the victim is present, as
long as the defendant is either present in the courtroom
or has waived the right to be present. If victim
testimony is taken as provided under this rule, the
preliminary examination will be continued at the date
originally set for that event.”
MCR 6.108(D) provides, in part, that “[t]he district judge must be

available during the probable cause conference to[,] . . . if
requested by the prosecutor, take the testimony of a victim.”64
64 See the SCAO’s Best Practices for Probable Cause Conferences and Preliminary Examinations, p 1, which
provides the following recommendation:

“The court should develop a procedure for how it should be notified regarding whether a
plea, request for bond modification, or [preliminary examination] is needed. For example,
the prosecutor or the district court magistrate could notify the court whether a
[preliminary examination] is necessary.”

7.19 Order for Competency Evaluation at Preliminary

Examination65
MCR 6.125(B) provides, in part:
“The issue of the defendant’s competence to stand trial or to

participate in other criminal proceedings may be raised at
any time during the proceedings against the defendant. The
issue may be raised by the court before which such
proceedings are pending or being held, or by motion of a
party. Unless the issue of defendant’s competence arises
during the course of proceedings, a motion raising the issue
of defendant’s competence must be in writing. If the
competency issue arises during the course of proceedings,
the court may adjourn the proceeding[.]”
“On a showing that the defendant may be incompetent to stand trial, the
court must order the defendant to undergo an examination by a certified
or licensed examiner of the center for forensic psychiatry or other facility
officially certified by the department of mental health to perform
examinations relating to the issue of competence to stand trial.” MCR
6.125(C)(1). See MCR 6.125(C)(2)-(5) for rules regarding the defendant’s
appearance at the examination and regarding the court’s authority to
detain or commit the defendant in certain circumstances.
“[W]here there is evidence of incompetency prior to the preliminary

examination and counsel for [the] defendant requests a determination of
competency to stand trial, the examining [judge] should halt preliminary
proceedings . . . and refer the defendant . . . 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 (Billie), 96 Mich App 210,
218 (1980). See also MCR 6.125(C)(1); MCR 6.125(E).
“A defendant who is determined incompetent to stand trial shall not be

proceeded against while he [or she] is incompetent.” MCL 330.2022(1).
65 For more information on issues involving competency, see Chapter 10.

7.20 Communicable Disease Testing and Examination66
A. Mandatory Testing or Examination

MCL 333.5129(3) provides that if the district court determines there
is reason to believe a violation involved sexual penetration or
exposure to the body fluid of the defendant, the district court must
“order[67] the defendant to be examined or tested for sexually
transmitted infection, hepatitis B infection, and hepatitis C infection
and for the presence of HIV or an antibody to HIV[]” if he or she is
bound over to circuit court for any of the enumerated offenses listed
below. Additionally, the circuit court must “order the examination
or testing if the defendant is brought before it by way of indictment
for any of the [enumerated offenses].” Id. This testing is required for
any of the following offenses:
• Accosting, enticing, or soliciting a child for an immoral

purpose, MCL 750.145a.
• Gross indecency between males, MCL 750.338.
• Gross indecency between females, MCL 750.338a.
• Gross indecency between males and females, MCL

750.338b.
• Aiding and abetting certain prostitution offenses, MCL

750.450.68
• Keeping a house of prostitution, MCL 750.452.
• Pandering, MCL 750.455.
• First-degree criminal sexual conduct, MCL 750.520b.
• Second-degree criminal sexual conduct, MCL 750.520c.
• Third-degree criminal sexual conduct, MCL 750.520d.
• Fourth-degree criminal sexual conduct, MCL 750.520e.
66
A thorough discussion of communicable disease testing requirements is beyond the scope of this
benchbook. For more information concerning these requirements, see the Michigan Judicial Institute’s
Sexual Assault Benchbook, Chapter 6.
67 See SCAO Form MC 234, Order for Counseling and Testing for Disease/Infection.
68
MCL 750.450 is a 93-day misdemeanor, for which no preliminary examination is required. For the
penalty provisions of this crime, which also include first-, second-, and third-offense provisions, see MCL
750.451.

• Assault with intent to commit criminal sexual conduct,

MCL 750.520g.
With some exceptions, “the examinations and tests must be

confidentially administered by a licensed physician, the
[Department of Health and Human Services69], or a local health
department.” MCL 333.5129(3). Additionally, the court must “order
the defendant to receive counseling regarding sexually transmitted
infection, hepatitis B infection, hepatitis C infection, HIV infection,
and acquired immunodeficiency syndrome, including, at a
minimum, information regarding treatment, transmission, and
protective measures.” Id.70
B. Expedited Examination or Testing for Criminal Sexual

Conduct Offenses
Expedited testing and follow-up testing are required under certain
circumstances if the defendant is charged with first-, second-, third-,
or fourth-degree criminal sexual conduct or with assault with intent
to commit criminal sexual conduct. MCL 333.5129(3) provides, in
relevant part:
“If a defendant is bound over to or brought before the

circuit court for violating . . . MCL 750.520b, [MCL]
750.520c, [MCL] 750.520d, [MCL] 750.520e, [or MCL]
750.520g, the court shall, upon the victim’s request,
order the examination or testing [required by MCL
333.5129(3)] to be done not later than 48 hours after the
date that the information or indictment is presented and
the defendant is in custody or has been served with the
information or indictment. The court shall include in its
order for expedited examination or testing at the
victim’s request under this subsection a provision that
requires follow-up examination or testing that is
considered medically appropriate based on the results
of the initial examination or testing.”
With some exceptions, “the examinations and tests must be

confidentially administered by a licensed physician, the
[Department of Health and Human Services71], or a local health
department.” MCL 333.5129(3). Additionally, the court must “order
the defendant to receive counseling regarding sexually transmitted
infection, hepatitis B infection, hepatitis C infection, HIV infection,
69 See MCL 333.1104(5).
71 See MCL 333.1104(5).

and acquired immunodeficiency syndrome, including, at a

minimum, information regarding treatment, transmission, and
protective measures.” Id.72
7.21 Record of Preliminary Examination

“A verbatim record must be made of the preliminary examination.” MCR
6.110(C). See also MCR 6.006(D). “All proceedings in the district court,
except as otherwise provided by law or supreme court rule, shall be
recorded.” MCL 600.8331.
7.22 Transcript of Testimony

“The court reporter shall transcribe and file the record of the preliminary
examination if such is demanded or ordered pursuant to MCL 766.15.”
MCR 6.113(D).
MCL 766.15 provides, in part:
“(2) A written transcript of the testimony of a preliminary

examination need not be prepared or filed except upon
written demand of the prosecuting attorney, defense
attorney, or defendant if the defendant is not represented by
an attorney, or as ordered sua sponte by the trial court. A
written demand to prepare and file a written transcript is
timely made if filed within 2 weeks following the
arraignment on the information or indictment. A copy of a
demand to prepare and file a written transcript shall be filed
with the trial court, all attorneys of record, and the court
which held the preliminary examination. Upon sua sponte
order of the trial court or timely written demand of an
attorney, a written transcript of the preliminary examination
or a portion thereof shall be prepared and filed with the trial
court.
(3) If a written demand is not timely made as provided in

subsection (2), a written transcript need not be prepared or
filed except upon motion of an attorney or a defendant who
is not represented by an attorney, upon cause shown, and
when granting of the motion would not delay the start of the
trial. When the start of the trial would otherwise be delayed,
upon good cause shown to the trial court, in lieu of
preparation of the transcript or a portion thereof, the trial
court may direct that the defense and prosecution shall have

an opportunity before trial to listen to any electronically

recorded testimony, a copy of the recording tape or disc, or a
stenographer’s notes being read back.”
7.23 Bindover Following Preliminary Examination

MCL 766.13 provides:
“If the magistrate determines at the conclusion of the

preliminary examination that a felony has not been
committed or that there is not probable cause for charging
the defendant with committing a felony,[73] the magistrate
shall either discharge the defendant or reduce the charge to
an offense that is not a felony. If the magistrate determines at
the conclusion of the preliminary examination that a felony
has been committed and that there is probable cause for
charging the defendant with committing a felony, the
magistrate shall forthwith bind the defendant to appear
within 14 days for arraignment before the circuit court of that
county, or the magistrate may conduct the circuit court
arraignment as provided by court rule.”
A. Bindover After Waiver

“Upon waiver of the preliminary examination, the court must bind
the defendant over for trial on the charge set forth in the complaint
or any amended complaint.” MCR 6.110(A).
Committee Tip:
A district court magistrate, “[w]hen authorized
by the chief judge of the district and whenever a
district judge is not immediately available, . . .
may conduct the first appearance of a defendant
before the court in all criminal and ordinance
violation cases, including acceptance of any
written demand or waiver of preliminary
examination[.]” MCL 600.8513(1). However,
there is no statutory authority under which a
district court magistrate may conduct a bindover
proceeding.
73 See Section 7.17 for information on the probable cause inquiry and applicable evidentiary standards at
the preliminary examination.

B. Bindover After Finding of Probable Cause74

“If the magistrate determines at the conclusion of the preliminary
examination that a felony has been committed and that there is
probable cause for charging the defendant with committing a
felony, the magistrate shall forthwith bind the defendant to appear
within 14 days for arraignment before the circuit court of that
county, or the magistrate may conduct the circuit court arraignment
as provided by court rule.” MCL 766.13; see also MCR 6.110(E).75
C. Bindover on a Greater Offense

A judge may grant a prosecutor’s motion to amend a complaint to
include a greater offense where the evidence at the preliminary
examination supports probable cause as to the elements of the
greater offense and the amendment does not cause unacceptable
prejudice to the defendant. People v Hunt (Arthur), 442 Mich 359,
364-365 (1993) (holding that the trial court should have allowed the
prosecutor, following the preliminary examination, to amend the
complaint to charge third-degree criminal sexual conduct instead of
gross indecency between males where the greater offense was
supported by the evidence and the amendment would not cause
“unacceptable prejudice to the defendant because of unfair surprise,
inadequate notice, or insufficient opportunity to defend[]”).
In addition, a judge may, sua sponte, bind a defendant over for trial
on a greater offense where the evidence presented at the
preliminary examination supports the higher charge and the
prosecution does not object. People v Gonzalez (Ervey), 214 Mich App
513, 516-517 (1995).
D. Bindover on a Lesser Offense

“If the magistrate determines at the conclusion of the preliminary
examination that a felony has not been committed or that there is
not probable cause for charging the defendant with committing a
felony, the magistrate shall either discharge the defendant or reduce
the charge to an offense that is not a felony.” MCL 766.13; see also
MCR 6.110(F).
74 See Section 7.17 for information on the probable cause inquiry and applicable evidentiary standards at
the preliminary examination.

75 See Section 7.29 for discussion of circuit court arraignment.

“[I]f upon examination of the whole matter the evidence is

insufficient to satisfy the magistrate that the offense charged has
been committed and that there is probable cause to believe that the
defendant committed it, then he [or she] should not bind the
defendant over on the offense charged but may bind him [or her]
over on a lesser offense as to which he [or she] is so satisfied.” People
v King (Russell), 412 Mich 145, 154-155 (1981) (holding that the
district court properly bound the defendant over on the offense of
manslaughter instead of first- or second-degree murder because
malice and premeditation were lacking).
“An examining magistrate has the obligation to consider binding a

defendant over on lesser included offenses where such offenses are
supported by the evidence offered at the preliminary examination.”
People v Harris (Walter), 159 Mich App 401, 405-407 (1987) (citations
omitted). “Pursuant to [MCL 766.13], even where the charged
offense has not been established, if a lesser included offense is
established, then [the] defendant should be bound over for trial on
that charge.” Harris (Walter), 159 Mich App at 405 (holding that,
although the district court properly refused to bind the defendant
over for trial on an open murder charge where the evidence
established that the shooting was accidental, the court erred in
dismissing the case where the evidence supported a charge of
involuntary manslaughter based on the defendant’s grossly
negligent conduct) (citation omitted).
E. Bindover When Defendant Is Charged With Open Murder

“[T]he elements of premeditation and deliberation are not required
elements for which evidence must be presented at a preliminary
examination in order to bind a defendant over for trial on open
murder charges.” People v Coddington, 188 Mich App 584, 593-594
(1991).
F. Jurisdiction of District Court Following Bindover

The district court’s jurisdiction over offenses cognizable in the
circuit court continues “through the preliminary examination and
until the entry of an order to bind the defendant over to the circuit
court.” MCR 6.008(A). “The circuit court has jurisdiction over all
felonies from the bindover from the district court unless otherwise
provided by law.” MCR 6.008(B). “The failure of the court to
properly document the bindover decision shall not deprive the
circuit court of jurisdiction.” Id.
The circuit court acquires jurisdiction over the case and the
defendant upon the filing of the magistrate’s return76 binding the
defendant over to circuit court following the preliminary
examination or the defendant’s waiver of preliminary examination.

People v Goecke, 457 Mich 442, 458 (1998) (citations omitted). “And
just as the filing of the magistrate’s return confers jurisdiction on the
circuit court, . . . it has the effect of divesting the district court of
jurisdiction[.]” People v Taylor (Robbie), 316 Mich App 52, 54 (2016),
citing People v McGee (Keangela), 258 Mich App 683, 695 (2003);
People v Sherrod, 32 Mich App 183, 186 (1971) (emphasis added).
“Having once vested in the circuit court, personal jurisdiction is not
lost even when a void or improper information is filed.” Goecke, 457
Mich at 458-459, citing In re Elliott, 315 Mich 662, 675 (1946).
“Once a criminal case has been bound over and jurisdiction has
been vested in the circuit court, there are only limited circumstances
in which the circuit court may properly remand the case for a new
or continued preliminary examination.” Taylor (Robbie), 316 Mich
App at 55 (citations omitted).
MCR 6.008(C)-(E) provide guidance regarding circuit court

jurisdiction following bindover in the event that the defendant
ultimately pleads guilty to or is convicted of a misdemeanor offense
that would normally be cognizable in the district court.77
• Misdemeanor pleas. “The circuit court retains jurisdiction

over any case in which a plea is entered or a verdict
rendered to a charge that would normally be cognizable in
the district court.” MCR 6.008(C).

bound over to circuit court on a felony that either plead
guilty to, or are found guilty of, a misdemeanor.” MCR
6.008(D).
• Concurrent jurisdiction and probation officers. “As part

of a concurrent jurisdiction plan, the circuit court and
district court may enter into an agreement for district court
76 See MCL 767.40.
77
MCR 6.008 was adopted by ADM File No. 2016-35, effective January 1, 2018. Although not binding
authority, the Staff Comment to ADM File No. 2016-35 provides:
“The addition of Rule 6.008 establishes procedures for a circuit court to follow if a defendant
bound over to circuit court on a felony either pleads guilty to, or is convicted of, a misdemeanor in
circuit court. Remand to district court would remain a possibility in certain limited circumstances,
including where the evidence is insufficient to support the bindover, People v Miklovich, [375
Mich 536, 539 (1965)]; People v Salazar, [124 Mich App 249, 251-252 (1983)], or where there was
a defect in the waiver of the right to a preliminary examination, People v Reedy, [151 Mich App
143, 147 (1986)]; People v Skowronek, [57 Mich App 110, 113 (1975)], or where the prosecutor
adds a new charge on which the defendant did not have a preliminary examination, People v
Bercheny, [387 Mich 431, 434 (1972)], adopting the opinion in People v Davis, [29 Mich App 443,
463 (1971)], aff’d People v Bercheny, 387 Mich 431 (1972). See also MCR 6.110(H).”
See Section 7.23(G) for discussion of motions to quash for improper bindover and other circumstances
permitting remand to district court following bindover.

probation officers to prepare the presentence investigation

report and supervise on probation defendants who either
plead guilty to, or are found guilty of, a misdemeanor in
circuit court. The case remains under the jurisdiction of the
circuit court.” MCR 6.008(E).
G. Remand to District Court Following Bindover

“A party challenging a bindover decision must do so before any plea
of guilty or no contest, or before trial.” MCR 6.008(B).
“If, on proper motion, the trial court finds a violation of [MCR

6.110(C) (conduct of examination)], [MCR 6.110(D) (exclusionary
rules)], [MCR 6.110(E) (probable cause finding)], or [MCR 6.110(F)
(discharge of defendant)], it must either dismiss the information or
remand the case to the district court for further proceedings.” MCR
6.110(H). MCR 6.110(H) “does not address, and leaves to case law,
what effect a violation of these rules or an error in ruling on a
motion filed in the trial court may have when raised following
conviction.” 1989 Staff Comment to MCR 6.110.
“Once a criminal case has been bound over and jurisdiction has
been vested in the circuit court, there are only limited circumstances
in which the circuit court may properly remand the case for a new
or continued preliminary examination.” People v Taylor (Robbie), 316
Mich App 52, 55 (2016), citing MCR 6.110(H) (additional citations
omitted).78
• “If a motion to quash is filed and the circuit court

determines that the evidence is insufficient to support
the bindover, the circuit court is permitted to remand
the case for a further examination at which the
prosecutor may seek to remedy the shortcoming in
the proofs needed to establish probable cause.” Taylor
(Robbie), 316 Mich App at 55 (citations omitted). See
also People v Miklovich, 375 Mich 536, 539 (1965).
• “[A] circuit court may remand the case if the

defendant waived the right to a preliminary
examination and a defect in the waiver existed, if for
example the waiver was made without the benefit of
counsel.” Taylor (Robbie), 316 Mich App at 55
(citations omitted). See also People v Reedy, 151 Mich
App 143, 147 (1986).
• “The circuit court may . . . remand the case if the

prosecutor adds a new charge on which the
78 See Section 7.23(F) for discussion of circuit court jurisdiction following bindover.

defendant did not have a preliminary examination.”

Taylor (Robbie), 316 Mich App at 55 (citations omitted).
See also People v Bercheny, 387 Mich 431, 434 (1972).
However, if the defendant “[does] not establish any of the

appropriate grounds for remanding the case[]” following bindover,
the circuit court may not remand the case to the district court. Taylor
(Robbie), 316 Mich App at 57. In Taylor (Robbie), 316 Mich App at 56,
following preliminary examination and bindover, the circuit court
denied the defendants’ motions to quash the information; however,
the circuit court subsequently granted the defendants’ motions to
remand the case to the district court on the ground that a “ballistics
report prepared after the preliminary examination” was potentially
exculpatory. The Court of Appeals reversed the remand order,
holding that “[t]he circuit court erred when it remanded the case for
a continued preliminary examination[]” where “[the d]efendants
did not establish any of the appropriate grounds for remanding the
case.” Id. at 57 (noting that “the circuit court denied [the]
defendants’ motions to quash and thereby upheld the district
court’s finding of probable cause[,]” “there [was no] waiver by [the]
defendants of the right to a preliminary examination that could be
deemed defective[,]” “[t]he prosecutor did not seek to add new
charges[,]” and “[t]he circuit court did not find a violation of any of
the relevant rules related to the conduct of the preliminary
examination or the probable cause determination[]”). Because “the
circuit court [had] already denied the motions to quash, it was then
unnecessary for either the circuit court or the district court to revisit
the probable cause determination.” Id. at 57 (citations omitted).
Furthermore, “[t]he emergence . . . of potentially favorable evidence
after the preliminary examination does not by itself entitle a
defendant to a second or continued preliminary examination[;
i]nstead, the trial is generally the appropriate forum in which to
present such evidence.” Id. at 58, 58 n 2 (noting that “the record
indisputably establishe[d] that [the] defendants’ attorneys were
well aware at the preliminary examination of the key underlying
fact referenced in the ballistics report that comprised the basis of
their subsequent request to remand the case for a continued
preliminary examination[]”) (citations omitted).
“‘A district court magistrate’s decision to bind over a defendant and

a trial court’s decision on a motion to quash an information are
reviewed for an abuse of discretion.’” People v Bass, 317 Mich App
241, 279 (2016), quoting People v Dowdy, 489 Mich 373, 379 (2011).
“However, ‘[t]o the extent that a lower court’s decision on a motion
to quash the information is based on an interpretation of the law,
appellate review of the interpretation is de novo.’” Bass, 317 Mich
App at 279, quoting People v Miller (Marvin), 288 Mich App 207, 209
(2010) (alteration in original). “[E]rror at the preliminary

examination stage should be examined under a harmless error

analysis.” People v Hall (Lisa), 435 Mich 593, 602 (1990) (a defendant
bound over for trial to face felony charges on the basis of hearsay
testimony erroneously admitted at the preliminary examination did
not constitute a ground for vacating her subsequent conviction
where she received a fair trial and was not otherwise prejudiced by
the error). However, “[i]f a defendant is fairly convicted at trial, no
appeal lies regarding whether the evidence at the preliminary
examination was sufficient to warrant a bindover.” People v Wilson
(Donald), 469 Mich 1018 (2004). See also People v Bennett, 290 Mich
App 465, 481 (2010) (“the presentation of sufficient evidence to
convict at trial renders any erroneous bindover decision harmless”).
H. Prosecutor’s Appeal to Circuit Court

“‘[I]f the prosecutor is of the opinion that the examining [judge]
erred in not binding the defendant over for trial, [he or she should]
appeal to the circuit court.’” People v Robbins (Darrell), 223 Mich App
355, 361-362 (1997), quoting People v Nevitt, 76 Mich App 402, 404
(1977).
A reviewing court may not reverse a judge’s bindover decision

absent an abuse of discretion. People v Yost, 468 Mich 122, 126 (2003).
In Yost, after a seven-day preliminary exam, the district court
refused to bind the defendant over for trial on charges of open
murder and felony murder, based on its determination that there
was lack of credible evidence of a homicide. Id. at 123-124. The
prosecutor appealed to the circuit court, which determined that the
record established a sufficient basis for finding that a homicide was
committed and probable cause to believe that the defendant
committed it. Id. at 124. The circuit court held that the district court
abused its discretion in refusing to bind the defendant over for trial.
Id. On leave granted, the Supreme Court upheld the circuit court’s
decision, agreeing with the circuit court that the evidence was
sufficient to warrant a bindover and that the district court abused its
discretion when concluding that probable cause to bind the
defendant over for trial did not exist. Id. at 133.
7.24 Setting Case for Trial When There Is Probable Cause

to Believe That Defendant Committed a Misdemeanor
“If the court determines at the conclusion of the preliminary examination
of a person charged with a felony that the offense charged is not a felony
or that an included offense that is not a felony has been committed, the
accused shall not be dismissed but the magistrate shall proceed in the
same manner as if the accused had initially been charged with an offense
that is not a felony.” MCL 766.14(1). See also MCR 6.110(E) (“[i]f the court
finds probable cause to believe that the defendant has committed an

offense cognizable by the district court, it must proceed thereafter as if
the defendant initially had been charged with that offense[]”).
7.25 Discharge of Defendant and Prosecutor’s Right to

Bring New Charges
MCR 6.110(F) provides:
“Discharge of Defendant. No Finding of Probable Cause. If,

after considering the evidence, the court determines that
probable cause does not exist to believe either that an offense
has been committed or that the defendant committed it, the
court must discharge the defendant without prejudice to the
prosecutor initiating a subsequent prosecution for the same
offense or reduce the charge to an offense that is not a felony.
Except as provided in MCR 8.111(C),[79] the subsequent
preliminary examination must be held before the same
judicial officer and the prosecutor must present additional
evidence to support the charge.”
“Dismissal of a defendant at a preliminary examination is without

prejudice to renewal of the charges” and “raises no bar under res judicata
or collateral estoppel to a subsequent prosecution.” People v Hayden
(William), 205 Mich App 412, 414 (1994), citing MCR 6.110(F) (additional
citations omitted).
Under MCR 6.110(F), “the prosecution may reinstate the charges against
a defendant where it seeks to present ‘additional evidence’ at the second
examination to the same [judge] who presided over the defendant’s
preliminary examination,” and there is no requirement that the
“additional evidence” be newly discovered. People v Robbins (Darrell), 223
Mich App 355, 361 (1997).
MCR 6.110(F) “prevents ‘judge shopping’ by requiring that a subsequent

examination be before the same [judge], if available, and that additional
evidence be presented.” Robbins (Darrell), 223 Mich App at 362.
“[S]ubjecting a defendant to repeated preliminary examinations violates
due process if the prosecutor attempts to harass the defendant or engage
in ‘judge-shopping.’” Id. at 363 (citations omitted). See also People v
Dunbar (Charles), 463 Mich 606, 613-614, 617-618 (2001), overruled in part
on other grounds by People v Jackson (Harvey), 483 Mich 271, 275 (2009)
(holding that where the prosecution moved for dismissal following an
adverse evidentiary ruling during the preliminary examination, and a
different judge bound the defendant over for trial following a second
79 MCR 8.111(C) provides for the reassignment of judges due to disqualification or based upon good cause.

preliminary examination, no due process violation occurred because

there was no evidence to support a finding that the prosecution had
engaged in judge-shopping).
7.26 Bindover Certificate and Return

“Except as provided in [MCL 766.15(2) or MCL 766.15(3) (governing the
preparing and filing of a written transcript of the preliminary
examination upon demand or by trial court order)], all examinations and
recognizances taken by a magistrate . . . shall be immediately certified
and returned by the magistrate to the clerk of the court before which the
party charged is bound to appear.” MCL 766.15(1). “If that magistrate
refuses or neglects to return the same, the magistrate may be compelled
immediately by order of the court, and in case of disobedience may be
proceeded against as for a contempt by an order to show cause or a bench
warrant.” Id.
“Immediately on concluding the [preliminary] examination, the court

must certify and transmit to the court before which the defendant is
bound to appear the prosecutor’s authorization for a warrant application,
the complaint, a copy of the register of actions, the examination return,
and any recognizances received.” MCR 6.110(G).
7.27 Ordering Pretrial Release at the Conclusion of

Preliminary Examination
MCL 766.5 provides:
“If it appears that a felony has been committed and that there
is probable cause to believe that the accused is guilty thereof,
and if the offense is bailable by the magistrate and the
accused offers sufficient bail, it shall be taken and the
prisoner discharged until trial.[80] If sufficient bail is not
offered or the offense is not bailable by the magistrate, the
accused shall be committed to jail for trial. This section shall
not prevent the magistrate from releasing the accused on his
[or her] own recognizance where authorized by law.”
See also MCR 6.106(A). For detailed information about ordering pretrial
release, see Chapter 8.
80
“Except as otherwise provided by law, a person accused of a criminal offense is entitled to bail.” MCL
765.6(1). See also Const 1963, art 1, §15.

7.28 Circuit Court Review of Error at Preliminary

Examination
A. Motion to Dismiss
“If, on proper motion, the trial court finds a violation of [MCR
6.110(C) (conduct of examination), MCR 6.110(D) (exclusionary
rules), MCR 6.110(E) (probable cause finding), or MCR 6.110(F)
(discharge of defendant)], it must either dismiss the information or
remand the case to the district court for further proceedings.” MCR
6.110(H). MCR 6.110(H) “does not address, and leaves to case law,
what effect a violation of these rules or an error in ruling on a
motion filed in the trial court may have when raised following
conviction.” 1989 Staff Comment to MCR 6.110.
“A party challenging a bindover decision must do so before any plea

of guilty or no contest, or before trial.” MCR 6.008(B).
B. Prosecutor’s Appeal to Circuit Court

“‘[I]f the prosecutor is of the opinion that the examining [judge]
erred in not binding the defendant over for trial, . . . [he or she
should] appeal to the circuit court.’” People v Robbins (Darrell), 223
Mich App 355, 361-362 (1997), quoting People v Nevitt, 76 Mich App
402, 404 (1977).
A reviewing court may not reverse a judge’s bindover decision
absent an abuse of discretion. People v Yost, 468 Mich 122, 126 (2003).
“The fact that the [district court judge] may have . . . reasonable
doubt that [the] defendant committed the crime [is] not a sufficient
basis for refusing to bind [the] defendant over for trial.” Id. at 133
(citation omitted).
“[E]rror at the preliminary examination stage should be examined

under a harmless error analysis.” People v Hall (Lisa), 435 Mich 599,
600-602, 615 (1990) (noting that “the availability of an interlocutory
appeal affords protection in those cases where an innocent accused
should have been screened out by the preliminary examination
process[]” and holding that a defendant bound over for trial on the
basis of hearsay testimony erroneously admitted at the preliminary
examination is not entitled to reversal of a subsequent conviction if
he or she received a fair trial and was not otherwise prejudiced by
the error); see also People v Houthoofd, 487 Mich 568, 593 (2010).

7.29 Circuit Court Arraignment
A. Introduction
The arraignment discussed in this section refers to the arraignment
on the information that occurs after a defendant’s preliminary
examination, rather than the initial district court arraignment
discussed in Chapter 5.81
A defendant has a constitutional right to adequate notice of the

charges against him or her. People v Darden, 230 Mich App 597, 600
(1998). A defendant has a right to be arraigned on the information,
at which time the information is read to the defendant or the court
informs him or her of the substance of the charges contained in the
information. MCR 6.113(A); MCR 6.113(B). “‘The purpose of an
arraignment is to provide formal notice of the charge against the
accused.’” People v Henry (After Remand), 305 Mich App 127, 158
(2014), quoting People v Waclawski, 286 Mich App 634, 704 (2009).
B. Waiver of Arraignment
A defendant who is represented by an attorney has the right to enter
a plea of not guilty or to stand mute without formal arraignment.
MCR 6.113(C) states:
“A defendant represented by a lawyer may, as a matter

of right, enter a plea of not guilty or stand mute without
arraignment by filing, at or before the time set for the
arraignment, a written statement signed by the
defendant and the defendant’s lawyer acknowledging
that the defendant has received a copy of the
information, has read or had it read or explained,
understands the substance of the charge, waives
arraignment in open court, and pleads not guilty to the
charge or stands mute.”
A trial court may properly accept waiver of arraignment by mail.

People v Payne (Scott), 285 Mich App 181, 191-192 (2009).
The written waiver statement must be signed by the defendant and

the defendant’s attorney and must acknowledge:
81 The arraignment discussed in Chapter 5 is the initial arraignment that is conducted in district court for all
misdemeanors and felonies. See MCL 600.8311(c); MCR 6.610(D); MCR 6.610(H). The circuit court
arraignment discussed in this section occurs either after evidence presented at the preliminary
examination establishes probable cause that the defendant committed a felony, or after the defendant
validly waives his or her right to a preliminary examination. See MCL 766.13; MCL 600.8311(f); MCR 6.110;
MCR 6.111.

• that the defendant received a copy of the information;
• that the defendant read the information or has had it read

or explained to him or her;
• that the defendant understands the substance of the charge

against him or her;
• that the defendant waives an arraignment in open court;

and
• that the defendant stands mute or pleads not guilty to the

offense charged in the information. MCR 6.113(C).
See SCAO Form CC 261, Waiver of Arraignment and Election to Stand

Mute or Enter Not Guilty Plea.
Note: MCR 6.113(C) may lack practical application to

arraignments conducted by the district court under
MCR 6.111. MCR 6.111(A), which provides that a
district court judge may conduct the circuit court
arraignment immediately following bindover,
additionally permits the district court judge to accept a
felony plea. Bindover after a defendant’s preliminary
examination or waiver presumes that the defendant is
present in court.
A waiver of the circuit court arraignment is not invalid “[m]erely

because the prosecutor had not filed the information . . . before [the
defendant] waived the arraignment[]” if “[the] defendant had an
opportunity to review the information before it was filed[] . . . and
understood the charges against him[ or her].” People v Henry (After
Remand), 305 Mich App 127, 158-159 (2014) (citing People v Nix
(Paul), 301 Mich App 195, 208 (2013), and noting that under these
circumstances, “[the] defendant [could not] show prejudice[]”
resulting from the court’s failure to conduct the circuit court
arraignment).
C. Elimination of Circuit Court Arraignment by Local

Administrative Order
“A circuit court may submit to the State Court Administrator
pursuant to MCR 8.112(B) a local administrative order that
eliminates arraignment for a defendant represented by an attorney,
provided other arrangements are made to give the defendant a copy
of the information and any notice of intent to seek an enhanced
sentence[ pursuant to MCL 769.13], as provided in MCR
6.112(F)[82].” MCR 6.113(E). See SCAO Model Local Administrative
Order 26—Elimination of Circuit Court Arraignments.

D. Scheduling the Circuit Court Arraignment

“Unless the trial court does the scheduling of the arraignment on
the information, the district court must do so in accordance with the
administrative orders of the trial court.” MCR 6.110(I). MCR 6.110(I)
contemplates the prompt scheduling of an arraignment on an
information but also recognizes that practices may vary throughout
the state depending on local circumstances. Nonetheless, the
subrule appears to require that trial courts establish a local practice
by administrative order, subject to Supreme Court review. See MCR
8.112(B)(3).
E. Circuit Court Arraignment in District Court

“If the magistrate determines at the conclusion of the

preliminary examination that a felony has been
committed and that there is probable cause for charing
the defendant with committing a felony, the magistrate
shall forthwith bind the defendant to appear within 14
days for arraignment before the circuit court of that
county, or the magistrate may conduct the circuit court
arraignment as provided by court rule.” (Emphasis added.)
MCL 600.8311(f) also specifically grants the district court

jurisdiction over “[c]ircuit court arraignments in all felony cases and
misdemeanor cases not cognizable by the district court under . . .
MCL 766.13[,]” and provides further that “[s]entencing for felony
cases and misdemeanor cases not cognizable by the district court
shall be conducted by a circuit judge.”
MCR 6.113(A) provides that, unless waived or delayed, “or as

otherwise permitted by [court rule], the court with trial jurisdiction
must arraign the defendant on the scheduled date.” (Emphasis
added.) However, MCR 6.111 provides an exception to this general
rule. MCR 6.111(A) provides that “[t]he circuit court arraignment
may be conducted by a district judge in criminal cases cognizable in
the circuit court immediately after the bindover of the defendant.”83
82 MCR 6.112(F) provides that “[a] notice of intent to seek an enhanced sentence pursuant to MCL 769.13 .
. . must be filed within 21 days after the defendant’s arraignment on the information charging the
underlying offense or, if arraignment is waived or eliminated as allowed under MCR 6.113(E), within 21
days after the filing of the information charging the underlying offense.”
83
Although MCL 766.4, MCL 766.13, and MCL 600.8311 were amended, effective May 20, 2014, to
specifically authorize district court judges to conduct circuit court arraignments, and although MCR 6.111
was amended, effective January 1, 2015, to reflect these changes, MCR 6.113 has not been amended to
reflect the statutory changes.

F. Circuit Court Arraignment Procedures

The court must arraign the defendant on the scheduled date, unless
the defendant waives arraignment or the court orders a delay for
good cause or as otherwise permitted by the court rules. MCR
6.113(A). However, failure to hold the arraignment on the scheduled
date constitutes harmless error, unless the defendant demonstrates
actual prejudice. Id.; see also People v Nix (Paul), 301 Mich App 195,
208 (2013) (“[a] showing of prejudice is required to merit relief for
the failure to hold a circuit court arraignment[]”). “The court may
hold the arraignment before the preliminary examination transcript
has been prepared and filed.” MCR 6.113(A).
MCR 6.113 addresses the procedures for conducting the post-

bindover arraignment.
• The prosecutor must provide the defendant with a copy of

the information84 before he or she is asked to plead. MCR
6.113(B).
• Unless waived by the defendant, the court must either tell

the defendant the substance of the offense charged in the
information or require that the information be read to the
defendant. Id.
• The court is required to advise the defendant of his or her

plea options if the defendant has waived legal
representation. Id.
• Pleas taken in district court under MCR 6.111 after

arraignment for an offense not cognizable in district court
must conform to the applicable provisions of MCR 6.301,
MCR 6.302, MCR 6.303, and MCR 6.304.85 MCR 6.111(C);
see also MCR 6.113(B). A district court judge must take a
felony plea as provided by court rule if a plea agreement is
reached between the parties. MCR 6.111(A).
• Once a plea is taken under MCR 6.111, it is governed by

MCR 6.310. MCR 6.111(C).
• A verbatim record of the arraignment must be made. MCR

6.113(B).
84 See MCR 6.112 for provisions governing the information.

Committee Tip:
Before taking a defendant’s plea or proceeding
to trial, it is imperative to confirm, on the record,
that the defendant has been given a copy of the
information.
G. Felony Plea in District Court86

“A district judge has the authority to accept a felony

plea. A district judge shall take a plea to a misdemeanor
or felony as provided by court rule if a plea agreement
is reached between the parties. Sentencing for a felony
shall be conducted by a circuit judge, who shall be
assigned and whose name shall be available to the
litigants, pursuant to court rule, before the plea is
taken.”
See also MCR 6.111(A), which provides, in relevant part:
“A district court judge shall take a felony plea as

between the parties. Following a plea, the case shall be
transferred to the circuit court where the circuit judge
shall preside over further proceedings, including
sentencing. The circuit court judge’s name shall be
available to the litigants before the plea is taken.”
MCR 6.301(D) prohibits a court from accepting a defendant’s plea to

an offense lesser than the one charged unless the prosecutor
consents.87 See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich
115, 121-122 (1974) (holding that the prosecutor has discretion to
charge a greater, rather than a lesser-included, offense); Genesee
Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683-684 (1972)
(holding that the choice of the statute under which to prosecute the
accused is an executive function properly exercised by the
prosecutor, not the court).
87

Chapter 8: Pretrial Release
8.1 Right to Pretrial Release....................................................................... 8-2

8.2 Types of Pretrial Release...................................................................... 8-3
8.3 Denial of Pretrial Release ................................................................... 8-15
8.4 Rationale for Decision ........................................................................ 8-17
8.5 Review of Release Decision................................................................ 8-18
8.6 Bond Forfeiture .................................................................................. 8-20
8.7 Termination of Release Order............................................................ 8-26
8.8 Revocation of Release on Conviction................................................. 8-26
8.9 Release Pending Appeal ..................................................................... 8-27
8.10 Standard of Review ............................................................................ 8-27

8.1 Right to Pretrial Release

Every person charged with a noncapital offense has the right to bail. Stack
v Boyle, 342 US 1, 4 (1951). However, “[n]o person charged with treason
or murder shall be admitted to bail if the proof of his [or her] guilt is
evident or the presumption great.” MCL 765.5; Const 1963, art 1, § 15. “In
our society[,] liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” United States v Salerno, 481 US
739, 755 (1987). “The right to release before trial is conditioned upon the
accused’s giving adequate assurance that he [or she] will stand trial and
submit to sentence if found guilty.” Stack, 342 US at 4. “[T]he modern
practice of requiring a bail bond or the deposit of a sum of money subject
to forfeiture serves as additional assurance of the presence of an
accused.” Id. at 5.
“At the defendant’s arraignment on the complaint and/or warrant, unless

an order in accordance with this rule was issued beforehand, the court
must order that, pending trial, the defendant be
(1) held in custody as provided in [MCR 6.106(B)];
(2) released on personal recognizance or an unsecured

appearance bond; or
(3) released conditionally, with or without money bail (ten

percent, cash or surety).” MCR 6.106(A).
Everyone is entitled to pretrial release, except in the following instances:
(1) if the defendant is charged with murder or treason;
(2) if the defendant is charged with committing a violent

felony and at the time the violent felony was committed, he or
she was on probation, parole, or released pending trial for
another violent felony;
(3) if the defendant is charged with committing a violent

felony and during the 15 years preceding the commission of
the violent felony, the defendant was convicted of two or
more violent felonies arising out of separate incidents;
(4) if the defendant is charged with first-degree criminal

sexual conduct, armed robbery, or kidnapping with the
intent to extort money or something valuable, if the court
finds that proof of the defendant’s guilt is evident or the
presumption great, unless the court finds by clear and
convincing evidence that the defendant is not likely to flee or
present a danger to any other person. MCR 6.106(B); Const
1963, art 1, § 15.

If the court determines that the defendant may not be released, the court
must order the defendant held in custody for a period not to exceed 90
days after the date of the order (excluding delays attributable to the
defense), within which trial must begin or the court must immediately
schedule a hearing and set the amount of bail. MCR 6.106(B)(3).
The court must state the reasons for an order of custody on the record
and on SCAO Form MC 240, Pretrial Release Order. MCR 6.106(B)(4). The
completed form must be placed in the court file. Id.
“The court may, in its custody order, place conditions on the defendant,
including but not limited to restricting or prohibiting defendant’s contact
with any other named person or persons, if the court determines the
conditions are reasonably necessary to maintain the integrity of the
judicial proceedings or are reasonably necessary for the protection of one
or more named persons.” MCR 6.106(B)(5). “If an order under [MCR
6.106(B)(5)] is in conflict with another court order, the most restrictive
provisions of the orders shall take precedence until the conflict is
resolved.” MCR 6.106(B)(5).
“Nothing in [MCR 6.106] limits the ability of a jail to impose restrictions

on detainee contact as an appropriate means of furthering penological
goals.” MCR 6.106(B)(6).
8.2 Types of Pretrial Release
A. Personal Recognizance
1. Generally
“If the defendant is not ordered held in custody pursuant to
[MCR 6.106(B)], the court must order the pretrial release of the
defendant on personal recognizance, or on an unsecured
appearance bond, subject to the conditions that the defendant
will appear as required, will not leave the state without
permission of the court, and will not commit any crime while
released, unless the court determines that such release will not
reasonably ensure the appearance of the defendant as
required, or that such release will present a danger to the
public.” MCR 6.106(C).
“Nothing in [MCR 6.106(C)] may be construed to sanction

pretrial detention nor to sanction the determination of pretrial
release on the basis of race, religion, gender, economic status,
or other impermissible criteria.” MCR 6.106(F)(3).

2. Speedy Trial–Misdemeanor and Felony Cases

A defendant must be released on personal recognizance if he
or she has been incarcerated for a period of 28 days or more
(misdemeanor cases) or 180 days or more (felony cases) “to
answer for the same crime or a crime based on the same
conduct or arising from the same criminal episode, . . . 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.” MCR 6.004(C). The 28-day and 180-day periods
do not include:
“(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,
(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.”
MCR 6.004(C).

B. Conditional Release
“If the court determines that [a release on personal recognizance]
will not reasonably ensure the appearance of the defendant as
required, or will not reasonably ensure the safety of the public, the
court may order the pretrial release of the defendant on the
condition or combination of conditions that the court determines are
appropriate including
(1) that the defendant will appear as required, will not

leave the state without permission of the court, and will
not commit any crime while released, and
(2) subject to any condition or conditions the court

determines are reasonably necessary to ensure the
appearance of the defendant as required and the safety
of the public, which may include requiring the
defendant to
(a) make reports to a court agency as are specified

by the court or the agency;
(b) not use alcohol or illicitly use any controlled

substance;
(c) participate in a substance abuse testing or

monitoring program;
(d) participate in a specified treatment program for

any physical or mental condition, including
substance abuse;
(e) comply with restrictions on personal

associations, place of residence, place of
employment, or travel;
(f) surrender driver’s license or passport;
(g) comply with a specified curfew;
(h) continue to seek employment;
(i) continue or begin an educational program;
(j) remain in the custody of a responsible member

of the community who agrees to monitor the
defendant and report any violation of any release
condition to the court;
(k) not possess a firearm or other dangerous

weapon;

(l) not enter specified premises or areas and not

assault, beat, molest or wound a named person or
persons;
(m) comply with any condition limiting or

prohibiting contact with any other named person
or persons. If an order under this paragraph
limiting or prohibiting contact with any other
named person or persons is in conflict with
another court order,[1] the most restrictive
provision of the orders shall take precedence until
the conflict is resolved. The court may make this
condition effective immediately on entry of a
pretrial release order and while defendant remains
in custody if the court determines it is reasonably
necessary to maintain the integrity of the judicial
proceedings or it is reasonably necessary for the
protection of one or more named persons[;]
(n) satisfy any injunctive order made a condition of

release; or
(o) comply with any other condition, including the

requirement of money bail as described in [MCR
6.106(E)], reasonably necessary to ensure the
defendant’s appearance as required and the safety
of the public.” MCR 6.106(D).
“Nothing in [MCR 6.106(D)] may be construed to sanction pretrial

detention nor to sanction the determination of pretrial release on the
basis of race, religion, gender, economic status, or other
impermissible criteria.” MCR 6.106(F)(3).
“If a defendant who is charged with a crime involving domestic

violence, or any other assaultive crime, is released under [MCL
765.6b(6) and MCL 765.6b(1)], the judge or district court magistrate
may order the defendant to wear an electronic monitoring device as
a condition of release.” MCL 765.6b(6). “In determining whether to
order a defendant to wear an electronic monitoring device, the court
shall consider the likelihood that the defendant’s participation in
electronic monitoring will deter the defendant from seeking to kill,
physically injure, stalk, or otherwise threaten the victim prior to
trial.” Id. “A defendant described in [MCL 765.6b(6)] shall only be
released if he or she agrees to pay the cost of the device and any
monitoring as a condition of release or to perform community
1
For example, personal protection orders (PPOs), MCR 3.706(A)(1) (“[a]n order granting a personal
protection order must include . . . [a] statement that the [PPO] has been entered, listing the type or types
of conduct enjoined[]”). See also MCR 3.207(A).

service work in lieu of paying that cost.” Id. “[I]f the court orders the
defendant to carry or wear an electronic monitoring device as a
condition of release as described in [MCL 765.6b(6)], the court shall
also impose a condition that the defendant not purchase or possess
a firearm.” MCL 765.6b(3).
Violation of a bond condition is punishable by criminal contempt

because “a court’s decision in setting bond is a court order.” People v
Mysliwiec, 315 Mich App 414, 417 (2016) (noting that “[s]pecifically,
a bail decision is an interlocutory order[,]” and rejecting the
defendant’s contention “that a defendant may not be held in
contempt of court for the violation of bond conditions because they
are not court orders[]”) (citation omitted). A “bond condition
prohibiting the defendant’s use of alcohol was a court order
punishable by contempt[]” under MCL 600.1701(g) where the trial
court orally ordered that a condition of the defendant’s bond was to
abstain from possession or consumption of any alcohol and “then
issued written mittimuses, which required [the] defendant have no
alcohol.” Mysliwiec, 315 Mich App at 418.2
C. Money Bail
“If the court determines for reasons it states on the record that the
defendant’s appearance or the protection of the public cannot be
otherwise assured, money bail, with or without conditions
described in [MCR 6.106(D)], may be required.” MCR 6.106(E). See
also MCL 765.6(1). When setting money bail, the court should
recognize the constitutional mandate that “excessive bail shall not
be required . . . .” Const 1963, art 1, § 16. See also MCL 765.6(1).
“Money bail is excessive if it is in an amount greater than
reasonably necessary to adequately assure that the accused will
appear when his [or her] presence is required.” People v Edmond, 81
Mich App 743, 747-748 (1978).
MCR 6.106(E)(1)(a)-(b) set out several options for different types of

bail, including surety bonds and secured money bail. However, in
certain instances, a defendant may not exercise the options set out in
MCR 6.106(E)(1)(a)-(b). For example, a person arrested pursuant to
a bench warrant issued under MCL 552.631 for failure to pay child
support, or pursuant to a felony warrant for failure to pay spousal
or child support under MCL 750.165, must deposit a cash bond of
less than $500 or 25 percent of the arrearage, whichever is greater; in
its discretion, the trial court may set the cash bond in an amount up
to 100 percent of the arrearage, plus costs. MCL 552.631(3); MCL
750.165(3); see also MCL 552.632. Additionally, MCL 765.6a requires
2 For discussion of contempt of court, see the Michigan Judicial Institute’s Contempt of Court Benchbook.

the posting of “a cash bond or a surety other than the [bail]

applicant if the applicant (1) [i]s charged with a crime alleged to
have occurred while on bail pursuant to a bond personally executed
by him [or her]; or (2) [h]as been twice convicted of a felony within
the preceding [five] years.”
MCR 6.106(E)(1)(a) provides that the court may require the

defendant to post, at the defendant’s option:
“(i) a surety bond that is executed by a surety approved

by the court in an amount equal to 1/4 of the full bail
amount, or
(ii) bail that is executed by the defendant, or by another

who is not a surety approved by the court, and secured
by
[A] a cash deposit, or its equivalent, for the full bail

amount, or
[B] a cash deposit of 10 percent of the full bail

amount, or, with the court’s consent,
[C] designated real property[.]”
MCR 6.106(E)(1)(b) provides that the court may require the

defendant to post, at the defendant’s option:
“(i) a surety bond that is executed by a surety approved

by the court in an amount equal to the full bail amount,
or
(ii) bail that is executed by the defendant, or by another

who is not a surety approved by the court, and secured
by
[A] a cash deposit, or its equivalent, for the full bail

amount, or, with the court’s consent,
[B] designated real property.”
If the court allows the defendant to post a bond secured by real

property, it “may require satisfactory proof of value and interest in
[the] property[.]” MCR 6.106(E)(2).
“Nothing in [MCR 6.106(E)] may be construed to sanction pretrial

basis of race, religion, gender, economic status, or other
impermissible criteria.” MCR 6.106(F)(3).

“The court in fixing the amount of the bail shall consider and make
findings on the record as to each of the following:
(a) The seriousness of the offense charged.
(b) The protection of the public.
(c) The previous criminal record and the dangerousness

of the person accused.
(d) The probability or improbability of the person

accused appearing at the trial of the cause.” MCL
765.6(1).
“If the court fixes a bail amount under [MCL 765.6(1)] and allows
for the posting of a 10% deposit bond, the person accused may post
bail by a surety bond in an amount equal to 1/4 of the full bail
amount fixed under [MCL 765.6(1)] and executed by a surety
approved by the court.” MCL 765.6(2).
For example, “if the full bail amount were set at $10,000 with a 10%
deposit or a $2,500 surety bond, a defendant could post bail either
by paying $1,000 to the court . . . or by paying only $250 to a bond
provider, who then would post a $2,500 bond with the court.” SB
151 (S-1) Bill Analysis, 5/21/04.
D. Interim Bond
A person arrested with or without a warrant for a misdemeanor (or
ordinance violation) punishable by imprisonment for not more than
one year may be entitled to release on interim bond before
arraignment. MCL 780.581; MCL 780.582; MCL 780.586. In some
instances, interim bond may be set by law enforcement, see MCL
780.581, while in other instances, the court must set interim bond,
see MCL 780.582a. These procedures and requirements are
discussed in detail in the following sub-subsections.3
1. Warrantless Arrest
Generally, a person arrested without a warrant for committing
a misdemeanor or city, village, or township ordinance
violation that is punishable by no more than one year
3 On May 22, 2017, the Department of Licensing and Regulatory Affairs approved proposed standards
submitted pursuant to the Michigan Indigent Defense Commission Act (MIDCA) by the Michigan Indigent
Defense Commission, including that “[w]here there are case-specific interim bonds set, counsel at
bond-setting at arraignment.” MIDC Standard 4(A). See Chapter 4 for discussion of the MIDCA.

imprisonment, or by a fine, or both must be taken “without

unnecessary delay” before the most convenient magistrate in
the county where the offense was committed to answer the
complaint made against him or her. MCL 780.581(1). If a
magistrate is not available or an immediate trial may not be
had, the arrestee may deposit an interim bond with the
arresting officer, his or her direct supervisor, the sheriff, or a
deputy in charge of the county jail (if the arrestee is lodged in
the county jail) to guarantee the arrestee’s appearance at
arraignment. MCL 780.581(2). See also People v Hardiman, 151
Mich App 115, 118 (1986). However, MCL 780.582a sets out
two circumstances in which an arrestee must not be released
on interim bond. Relevant to this particular discussion, MCL
780.582a(1) prohibits law enforcement from accepting an
interim bond where the defendant was arrested without a
warrant under MCL 764.15a (arrest for assault of an individual
having a child in common, household resident, dating
relationship, or spouse/former spouse) or a substantially
corresponding local ordinance. MCL 780.582a(1)(a).
2. Arrest With Warrant
a. Generally
“Where permitted by law, the court may specify on the
warrant the bail that an accused may post to obtain
release before arraignment on the warrant and, if the
court deems it appropriate, include as a bail condition
that the arrest of the accused occur on or before a
specified date or within a specified period of time after
issuance of the warrant.” MCR 6.102(D) (applicable to
both misdemeanor and felony cases, MCR 6.001(A)-(B)).
See also MCL 765.1; MCL 765.3.
MCR 6.102(D) “authorizes in felony cases the

specification on the warrant of interim bail similar to the
procedure currently authorized by statute in
misdemeanor cases. See MCL 780.582 and MCL 780.585.”
1989 Staff Comment to MCR 6.102. MCR 6.102(D)
“further authorizes the court, in its discretion, to include
an expiration date for the interim bail provision. This
option permits the court to set a cut-off date, beyond
which release may not be obtained, to prevent the release
of a person who may be avoiding arrest. However, setting
of an expiration date may also defeat the purpose of the
interim bail provision if it is too short or is used in a case
where the arrest of the defendant is sought solely in a

passive fashion such as awaiting the defendant’s stop for

a traffic offense.” 1989 Staff Comment to MCR 6.102.
“The amount of bail shall not be excessive.” MCL 765.6(1).

When fixing the amount of bail, the court “shall consider
and make findings on the record as to each of the
following:
(a) The seriousness of the offense charged.
(b) The protection of the public.
(c) The previous criminal record and the

dangerousness of the person accused.
(d) The probability or improbability of the

person accused appearing at the trial of the
cause.” MCL 765.6.
b. Misdemeanors and Local Ordinance Violations

“Except as otherwise provided in [MCL 780.582a], if a
person is arrested with a warrant for a misdemeanor or a
violation of a city, village, or township ordinance, and the
misdemeanor or violation is punishable by imprisonment
for not more than 1 year or by a fine, or both, the
provisions of [MCL 780.581][4] shall apply, except that the
interim bond shall be directed to the magistrate who has
signed the warrant, or to any judge authorized to act in
his or her stead.” MCL 780.582. Under MCL 780.582a and
relevant to this particular discussion, law enforcement is
prohibited from accepting an interim bond where the
defendant was arrested with a warrant for violating MCL
750.81 or MCL 750.81a (arrest for assault/battery or
assault causing serious/aggravated injury) or a
substantially corresponding local ordinance. MCL
780.582a(1)(b).
“In cases arising under [MCL 780.582], the magistrate

issuing the warrant may endorse on the back thereof a
greater or lesser amount for an interim bond.” MCL
780.585.
For misdemeanors and local ordinance violations, “[t]he

amount of bail shall be:
4MCL 780.581 concerns taking a person arrested without a warrant for a misdemeanor or violation of an
ordinance before a magistrate, interim bond, and holding certain arrested persons in a holding cell, holding
center, lockup, or county jail.

(a) Sufficient to assure compliance with the

conditions set forth in the bail bond.
(b) Not oppressive.
(c) Commensurate with the nature of the

offense charged.
(d) Considerate of the past criminal acts and

conduct of the defendant.
(e) Considerate of the financial ability of the

accused.
(f) Uniform whether the bail bond be

executed by the person for whom bail has
been set or by a surety.” MCL 780.64(1).
“If a person is charged with an offense punishable by a

fine only, the amount of the bail shall not exceed double
the amount of the maximum penalty.” MCL 780.64(2).
“If a person has been convicted of an offense and only a

fine has been imposed, the amount of the bail shall not
exceed double the amount of the fine.” MCL 780.64(3).
“If a person is arrested for an ordinance violation or a

misdemeanor punishable by imprisonment for not more
than 1 year or a fine, or both, and if the defendant’s
operator’s or chauffeur’s license is not expired,
suspended, revoked, or canceled, then the court may
require the defendant, in place of other security for the
defendant’s appearance in court for trial or sentencing or,
in addition, to release of the defendant on personal
recognizance, to surrender to the court his or her
operator’s or chauffeur’s license.” MCL 780.64(4).
c. Release on Interim Bail

“If an accused has been arrested pursuant to a warrant
that includes an interim bail provision, the accused must
either be arraigned promptly or released pursuant to the
interim bail provision.” MCR 6.102(F) (applicable to both
misdemeanor and felony cases, MCR 6.001(A)-(B)).
“The accused may obtain release by posting the bail on

the warrant and by submitting a recognizance to appear
before a specified court at a specified date and time,
provided that

(1) the accused is arrested prior to the

expiration date, if any, of the bail provision;
(2) the accused is arrested in the county in

which the warrant was issued, or in which the
accused resides or is employed, and the
accused is not wanted on another charge;[5]
(3) the accused is not under the influence of

liquor or controlled substance;[6] and
(4) the condition of the accused or the

circumstances at the time of arrest do not
otherwise suggest a need for judicial review
of the original specification of bail.[7] MCR
6.102(F).
“Implicit in [MCR 6.102(F)] is the condition that the

accused be satisfactorily identified as the person named
in the warrant. Additionally, the rule does not preclude
the police agency from requiring the accused to submit to
photographing and fingerprinting[8] before being
released.” 1989 Staff Comment to MCR 6.102.
3. Conditional Release
Certain individuals are not eligible to be released on interim
bond by law enforcement, and instead, must “be held until
[they] can be arraigned or have interim bond set by a judge or
district court magistrate if either of the following applies: “(a)
[t]he person is arrested without a warrant under . . . MCL
764.15a, or a local ordinance substantially corresponding to
that section[,]” or “(b) [t]he person is arrested with a warrant
for a violation of . . . MCL 750.81 [or MCL] 750.81a, or a local
ordinance substantially corresponding to [MCL 750.81] and the
person is a spouse or former spouse of the victim of the
violation, has or has had a dating relationship with the victim
of the violation, or is a person who resides or has resided in the
same household as the victim of the violation.” MCL
780.582a(1). See also MCL 780.581(1); MCL 780.582.
5“The purpose of this limitation is to preclude the availability of interim bail to a person who may be
avoiding arrest.” 1989 Staff Comment to MCR 6.102.

6MCR 6.102(F)(3) “does not preclude interim bail release of an accused who was under the influence of
liquor at the time of arrest but who is no longer in that condition.” 1989 Staff Comment to MCR 6.102.
7MCR 6.102(F)(4) “is a catch-all provision and should be applied in good faith.” 1989 Staff Comment to
MCR 6.102.
8 See MCL 28.243 and Section 3.11 for information on the collection of biometric data, which includes
fingerprints.

“If a judge or district court magistrate sets interim bond under

[MCL 780.582a], the judge or magistrate shall consider and
may impose the condition that the person released shall not
have or attempt to have contact of any kind with the victim.”
MCL 780.582a(2). “[MCL 780.582a] does not limit the authority
of judges or district court magistrates to impose protective or
other release conditions under other applicable statutes or
court rules.” MCL 780.582a(7).
“If a judge or district court magistrate releases under [MCL

780.582a] a person subject to protective conditions, the judge or
district court magistrate shall inform the person on the record,
either orally or by a writing that is personally delivered to the
person, of the specific conditions imposed and that if the
person violates a condition of release, he or she will be subject
to arrest without a warrant and may have his or her bond
forfeited or revoked and new conditions of release imposed, in
addition to any other penalties that may be imposed if he or
she is found in contempt of court.” MCL 780.582a(3).
“An order or amended order issued under [MCL 780.582a(3)]

shall contain all of the following:
(a) A statement of the person’s full name.
(b) A statement of the person’s height, weight, race,

sex, date of birth, hair color, eye color, and any
other identifying information the judge or district
court magistrate considers appropriate.
(c) A statement of the date the conditions become

effective.
(d) A statement of the date on which the order will

expire.
(e) A statement of the conditions imposed,

including, but not limited to, the condition
prescribed in [MCL 780.582a(3)].” MCL
780.582a(4).
“The judge or district court magistrate shall immediately direct

a law enforcement agency within the jurisdiction of the court,
in writing, to enter an order or amended order issued under
[MCL 780.582a(3)] into the law enforcement information
network [(LEIN)] as provided by . . . MCL 28.211 to [MCL
28.215].” MCL 780.582a(5). “If the order or amended order is
rescinded, the judge or district court magistrate shall
immediately order the law enforcement agency to remove the
order or amended order from the [LEIN].” Id.

If a person granted conditional release on bail under MCL

780.582a is subsequently arrested without a warrant for
violating the conditions imposed, the arresting police agency
or the officer in charge of the jail may release the person on
interim bond if, in the opinion of the agency or officer, it is safe
to do so. MCL 764.15e(3). The bond may not be more than $500
and must request the person to appear at the opening of court
the next business day. Id. If the person is held for more than 24
hours before being brought before the court, “the officer in
charge of the jail shall note in the jail records why it was not
safe to release the defendant on interim bond[.]” Id.
“[I]f an arrestee is released on bail, development of DNA

identification revealing the defendant’s unknown violent past
can and should lead to the revocation of his conditional
release. . . . It is reasonable in all respects for the State to use an
accepted [DNA] database to determine if an arrestee is the
object of suspicion in other serious crimes, suspicion that may
provide a strong incentive for the arrestee to escape and flee.”
Maryland v King, 569 US 435, 439, 455 (2013) (holding that the
collection and analysis of an arrestee’s DNA according to
Combined DNA Index System (CODIS)9 procedures “[a]s part
of a routine booking procedure for serious offenses” did not
violate the Fourth Amendment where the DNA sample was
used to identify the arrestee as the perpetrator of an earlier
unsolved rape).
8.3 Denial of Pretrial Release
A. Generally
Bail may be denied to a defendant when one of the following
circumstances applies and when proof of the defendant’s guilt is
evident or the presumption of guilt is great:
(1) the defendant is charged with committing a violent

felony, and during the 15 years preceding the
commission of the violent felony, the defendant had
been convicted of two or more violent felonies under
the laws of Michigan or substantially similar laws of the
United States or another state arising out of separate
incidents. Const 1963, art 1, § 15(a); MCR
6.106(B)(1)(a)(ii)(B).
9
For more information on CODIS, see https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-
and-ndis-fact-sheet.

(2) the defendant is charged with murder or treason.

Const 1963, art 1, § 15(b); MCL 765.5; MCR
6.106(B)(1)(a)(i).
(3) the defendant is charged with CSC-I, armed robbery,

or kidnapping with intent to extort money or another
valuable thing, “unless the court finds by clear and
convincing evidence that the defendant is not likely to
flee or present a danger to any other person.” Const
1963, art 1, § 15(c); MCR 6.106(B)(1)(b).
(4) the defendant is charged with committing a violent

felony, and at the time of the commission of the violent
felony, the defendant was on probation, parole, or
released pending trial for another violent felony. Const
1963, art 1, § 15(d); MCR 6.106(B)(1)(a)(ii)(A).
“DNA identification of a suspect in a violent crime provides critical

information to the police and judicial officials in making a
determination of the arrestee’s future dangerousness[,]” and will
thus “inform a court’s determination whether the individual should
be released on bail.” Maryland v King, 569 US 435, 439, 453 (2013)
(holding that the collection and analysis of an arrestee’s DNA
according to Combined DNA Index System (CODIS)10 procedures
“[a]s part of a routine booking procedure for serious offenses” did
not violate the Fourth Amendment where the DNA sample was
used to identify the arrestee as the perpetrator of an earlier
unsolved rape).
The rules of evidence do not apply to proceedings with respect to

release on bail or otherwise. MRE 1101(b)(3).
B. Custody Hearing
“If the court determines as provided in [MCR 6.106(B)(1)] that the
defendant may not be released, the court must order the defendant
held in custody for a period not to exceed 90 days after the date of
the order, excluding delays attributable to the defense, within which
trial must begin or the court must immediately schedule a hearing
and set the amount of bail.” MCR 6.106(B)(3).
“A court having jurisdiction of a defendant may conduct a custody

hearing if the defendant is being held in custody pursuant to [MCR
6.106(B)] and a custody hearing is requested by either the defendant
or the prosecutor.” MCR 6.106(G)(1). “The purpose of the hearing is
10

to permit the parties to litigate all of the issues relevant to

challenging or supporting a custody decision pursuant to [MCR
6.106(B)].” MCR 6.106(G)(1).
“At the custody hearing, the defendant is entitled to be present and

to be represented by a lawyer, and the defendant and the prosecutor
are entitled to present witnesses and evidence, to proffer
information, and to cross-examine each other’s witnesses.” MCR
6.106(G)(2)(a).
“The rules of evidence, except those pertaining to privilege, are not

applicable.” MCR 6.106(G)(2)(b). “Unless the court makes the
findings required to enter an order under [MCR 6.106(B)(1)], the
defendant must be ordered released under [MCR 6.106(C) or MCR
6.106(D)].” MCR 6.106(G)(2)(b). “A verbatim record of the hearing
must be made.” Id.
8.4 Rationale for Decision

“In deciding which release to use and what terms and conditions to
impose, the court is to consider relevant information, including
(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;
(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).
“DNA identification of a suspect in a violent crime provides critical

information to the police and judicial officials in making a determination
of the arrestee’s future dangerousness[,]” and will thus “inform a court’s
determination whether the individual should be released on bail.”
Maryland v King, 569 US 435, 439, 453 (2013) (holding that the collection
and analysis of an arrestee’s DNA according to Combined DNA Index
System (CODIS)11 procedures “[a]s part of a routine booking procedure
for serious offenses” did not violate the Fourth Amendment where the
DNA sample was used to identify the arrestee as the perpetrator of an
earlier unsolved rape).
“If the court orders the defendant held in custody pursuant to [MCR
6.106(B)] or released on conditions in [MCR 6.106(D)] that include money
bail, the court must state the reasons for its decision on the record.” MCR
6.106(F)(2). “The court need not make a finding on each of the
enumerated factors.” Id.
“Nothing in [MCR 6.106(F)] may be construed to sanction pretrial

basis of race, religion, gender, economic status, or other impermissible
criteria.” MCR 6.106(F)(3).
The rules of evidence do not apply to proceedings with respect to release

on bail or otherwise. MRE 1101(b)(3).
8.5 Review of Release Decision
A. Appeals
“A party seeking review of a release decision may file a motion in
the court having appellate jurisdiction over the court that made the
release decision.” MCR 6.106(H)(1). “There is no fee for filing the
motion.” Id.
“The reviewing court may not stay, vacate, modify, or reverse the
release decision except on finding an abuse of discretion.” MCR
6.106(H)(1).
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)).
See People v Weatherford, 132 Mich App 165, 170 (1984).
11

B. Modification of Release Decision
1. Before 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.” MCR 6.106(H)(2)(a).
2. At or Following Arraignment on the Information

“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.” MCR 6.106(H)(2)(b).
3. Burden of Going Forward

“The party seeking modification of a release decision has the
burden of going forward.” MCR 6.106(H)(2)(c).
The rules of evidence do not apply to proceedings with respect

to release on bail or otherwise. MRE 1101(b)(3).
“In reviewing a bail decision, more than perfunctory

compliance [with the applicable court rule] is required . . . .
Defendants also must 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.” People v Spicer, 402
Mich 406, 410-411 (1978).
C. Emergency Release
“If a defendant being held in pretrial custody under [MCR 6.106] is
ordered released from custody as a result of a court order or law
requiring the release of prisoners to relieve jail conditions, the court
ordering the defendant’s release may, if appropriate, impose
conditions of release in accordance with [MCR 6.106] to ensure the
appearance of the defendant as required and to protect the public.”
MCR 6.106(H)(3). “If such conditions of release are imposed, the
court must inform the defendant of the conditions on the record or
by furnishing to the defendant or the defendant’s lawyer a copy of
the release order setting forth the conditions.” Id.

8.6 Bond Forfeiture12
A. Default, Arrest of Accused, and Release of Surety

Upon a finding that a defendant has failed to comply with
conditions of release, the court may issue a warrant.13 See SCAO
Form MC 229, Motion, Affidavit, and Bench Warrant. Upon issuing the
bench warrant, the court should set a show cause date, prepare
SCAO Form MC 218, Order Revoking Release and Forfeiting Bond,
Notice of Intent to Enter Judgment, and sign and mail the form to the
defendant, the surety agent, anyone who posted bond, and the
prosecutor.
“If the defendant has failed to comply with the conditions of release,
the court may issue a warrant for the arrest of the defendant and
enter an order revoking the release order and declaring the bail
money deposited or the surety bond, if any, forfeited.
(a) The court must mail notice of any revocation order

immediately to the defendant at the defendant’s last
known address and, if forfeiture of bail or bond has
been ordered, to anyone who posted bail or bond.
(b) If the defendant does not appear and surrender to

the court within 28 days after the revocation date, the
court may continue the revocation order and enter
judgment for the state or local unit of government
against the defendant and anyone who posted bail or
bond for an amount not to exceed the full amount of the
bail, and costs of the court proceedings, or if a surety
bond was posted, an amount not to exceed the full
amount of the surety bond. If the amount of a forfeited
surety bond is less than the full amount of the bail, the
defendant shall continue to be liable to the court for the
difference, unless otherwise ordered by the court. If the
defendant does not within that period satisfy the court
that there was compliance with the conditions of release
other than appearance or that compliance was
impossible through no fault of the defendant, the court
may continue the revocation order and enter judgment
for the state or local unit of government against the
defendant alone for an amount not to exceed the full
amount of the bond, and costs of the court proceedings.
12
See SCAO Administrative Memorandum 2017-01, Surety Bond Process, January 5, 2017, for more
information regarding the process of issuing, releasing, or forfeiting surety bonds.
13 Additionally, violation of a bond condition is punishable by criminal contempt. People v Mysliwiec, 315
Mich App 414, 418 (2016). See Section 8.2(B).

(c) The 10 percent bail deposit made under [MCR

6.106(E)(1)(a)(ii)(B)] must be applied to the costs and, if
any remains, to the balance of the judgment. The
amount applied to the judgment must be transferred to
the county treasury for a circuit court case, to the
treasuries of the governments contributing to the
district control unit for a district court case, or to the
treasury of the appropriate municipal government for a
municipal court case. The balance of the judgment may
be enforced and collected as a judgment entered in a
civil case.” MCR 6.106(I)(2).
“[A] bond revocation hearing [is] not a ‘critical stage’ in [a criminal]

proceeding because it [does] not have any effect on the
determination of [the] defendant’s guilt or innocence[;]”
accordingly, where the hearing is “completely independent from
[the] defendant’s jury trial, the presence of counsel [is] not
constitutionally required.” People v Collins (Jesse), 298 Mich App 458,
470 (2012).
“In all criminal cases where a person has entered into any
recognizance for the personal appearance of another and such bail
and surety afterwards desires to be relieved from responsibility, he
or she may, with or without assistance, arrest or detain the accused
and deliver him or her to any jail or to the sheriff of any county.”
MCL 765.26(1). “In making the arrest or detainment, he or she is
entitled to the assistance of any peace officer.” Id.
“The sheriff or keeper of any jail is authorized to receive the

principal and detain him or her in jail until he or she is discharged.”
MCL 765.26(2). “Upon delivery of his or her principal at the jail by
the surety or his or her agent or any officer, the surety shall be
released from the conditions of his or her recognizance.” Id.
“Whenever the prosecuting attorney of a county is satisfied that a

person who has been recognized to appear for trial has absconded,
or is about to abscond, and that his or her sureties or either of them
have become worthless, or are about to dispose or have disposed of
their property for the purpose of evading the payment or the
obligation of such bond or recognizance or with intent to defraud
their creditors, and that prosecuting attorney makes a satisfactory
showing to this effect to the court having jurisdiction of that person,
the court or judge shall promptly grant a mittimus to the sheriff or
any peace officer of that county, commanding him or her forthwith
to arrest the person so recognized and bring him or her before the
officer issuing the mittimus and on the return of that mittimus may,
after a hearing on the merits, order him or her to be recommitted to
the county jail until such time as he or she gives additional and
satisfactory sureties, or is otherwise discharged.” MCL 765.26(3).
“MCL 765.26 . . . intend[s] to reward a surety who, through its own

diligence, apprehends and surrenders the principal to the
appropriate authorities.” In re Forfeiture of Surety Bond, 208 Mich
App 369, 372-373 (1995) (surety “was not released from liability
inasmuch as it failed to pursue its statutory remedies despite the
fact that it was plainly aware of [the] defendant’s whereabouts
during the period between his default and subsequent arrest[]”).
“If a defendant fails to appear, within 7 days after the date of the
failure to appear the court shall serve each surety notice of the
failure to appear.” MCL 765.28(1). “The notice must be served upon
each surety in person, left at the surety’s last known business
address, electronically mailed to an electronic mail address
provided to the court by the surety, or mailed by first-class mail to
the surety’s last known business address. However, if the notice is
served by first-class mail, it must be mailed separately from the
notice of intent to enter judgment.” Id. “Each surety must be given
an opportunity to appear before the court on a day certain and show
cause why judgment should not be entered against the surety for
the full amount of the bail or surety bond.” Id. “If good cause is not
shown for the defendant’s failure to appear, the court shall enter
judgment against the surety on the recognizance for an amount
determined appropriate by the court but not more than the full
amount of the bail, or if a surety bond has been posted the full
amount of the surety bond.” Id. “If the amount of a forfeited surety
bond is less than the full amount of the bail, the defendant shall
continue to be liable to the court for the difference, unless otherwise
ordered by the court.” Id. “Execution must be awarded and
executed upon the judgment in the manner provided for in personal
actions.” Id.
Where “the trial court did not even mail the notice [of the
defendant’s default] until the eighth day[]” following the
defendant’s failure to appear, “the notice was not timely[]” under
MCL 765.28(1). In re Forfeiture of Bail Bond (People v Stanford), 318
Mich App 330, 335-336 (2016), additionally citing MCR 6.106(I)(2).14
Furthermore, although “notice of the hearing on the motion to enter
judgment against the surety was timely pursuant to MCR
3.604(I)(2)[]” where it was mailed by the court 29 days before the
scheduled hearing, “that [did] not obviate the fact [that] the surety
did not receive proper notice of the default itself[;]” rather, because
“the court failed to give the surety immediate notice within seven
14
Stanford, 318 Mich App 330, addressed a former version of MCL 765.28(1), which was amended—in
response to Stanford, according to legislative analyses—by 2017 PA 174, effective February 19, 2018. The
amendment eliminated a requirement that the clerk of the court enter a default on the record and clarified
that the required surety notice may be served in person, left at the surety’s last known address, mailed
electronically, or mailed by first-class mail. MCL 765.28(1).

days[]” of the default, “the court [could not] require the surety to
pay the surety bond.” Stanford, 318 Mich App at 335-337 (noting that
“MCL 765.28(1) and MCR 3.604(I)(2) do not conflict” because they
govern “two separate and distinct events”; MCL 765.28(1) governs
“the procedure for providing a surety notice of a default,” while
MCR 3.604(I)(2) governs “the procedure to provide notice of a
hearing on a motion for judgment”).
Under MCL 765.28(1), “[o]nce a default occurs, the surety must be

given an opportunity to appear before the court and show cause
why the judgment should not be entered against it for the full
amount of the bond. If good cause is not shown, the court must
enter a judgment against the surety on the bond for any amount it
deems appropriate up to the full amount of the bond.” In re
Forfeiture of Surety Bond, 208 Mich App at 374.15 “The judgment is as
‘enforceable, reviewable and appealable’ as any other judgment
rendered in a personal action.” Id., quoting People v Evans, 434 Mich
314, 331 (1990) (additional citations omitted).
However, “a court’s failure to comply with the seven-day notice

provision of MCL 765.28(1) bars forfeiture of a bail bond posted by a
surety.” In re Bail Bond Forfeiture (People v Gaston), 496 Mich 320, 339
(2014), overruling In re Forfeiture of Bail Bond (On Remand) (People v
Moore), 276 Mich App 482 (2007).16 “When a statute provides that a
public officer ‘shall’ do something within a specified period of time
and that time period is provided to safeguard someone’s rights or
the public interest, as does the statute here, it is mandatory, and the
public officer who fails to act timely is prohibited from proceeding
as if he or she had acted within the statutory notice period.” Gaston,
496 Mich at 339-340 (“vacat[ing] the trial court’s orders to the extent
that the orders forfeited the bail bond posted by the surety and
ordered the surety to pay [the full amount of the bond]”).
B. Setting Aside Bond Forfeiture

The trial court must consider a motion to set aside a bond forfeiture
judgment under the standards set out in MCL 765.28(2) and MCL
600.4835. People v Bray, 481 Mich 888, 889 (2008).
“[T]he court shall set aside the forfeiture and discharge the bail or
surety bond within [117] year from the date of forfeiture judgment if
15
The Court in In re Forfeiture of Surety Bond, 208 Mich App 369, construed a former version of MCL
765.28(1), which was amended by 2017 PA 174, effective February 19, 2018.
16
The Court in Gaston, 496 Mich 320, construed a former version of MCL 765.28(1), which was amended
by 2017 PA 174, effective February 19, 2018.
17 It appears that the numeral “1” was inadvertently omitted from MCL 765.28(2) when MCL 765.28(1) was
amended by 2017 PA 174, effective February 19, 2018.

the defendant has been apprehended, the ends of justice have not
been thwarted, and the county has been repaid its costs for
apprehending the person.” MCL 765.28(2).18 “If the bond or bail is
discharged, the court shall enter an order to that effect with a
statement of the amount to be returned to the surety.” Id.
“The circuit court for the county in which such court was held, or in
which such recognizance was taken, may, upon good cause shown,
remit any penalty, or any part thereof, upon such terms as appear
just and equitable to the court.” MCL 600.4835. “But [MCL 600.4835]
does not authorize such court to remit any fine imposed by any
court upon a conviction for any criminal offense, nor any fine
imposed by any court for an actual contempt of such court, or for
disobedience of its orders or process.” Id.
“The court shall set aside the forfeiture and discharge the bail or
bond, within 1 year from the time of the forfeiture judgment, in
accordance with [MCL 765.15(2)] if the person who forfeited bond
or bail is apprehended, the ends of justice have not been thwarted,
and the county has been repaid its costs for apprehending the
person.” MCL 765.15(1).
MCL 765.28, as amended in 2002 “to allow for a [bond] forfeiture

judgment to be set aside,” is not “the sole remedy for commercial
sureties[;]” rather, “the remedy under MCL 600.4835 [(generally
permitting the court to remit any penalty)] remains viable[.]” Calvert
Bail Bond Agency, LLC v St Clair Co, 314 Mich App 548, 552, 554, 556
(2016) (holding that the trial court erred in dismissing the plaintiff
bail bond agency’s claim for remittance under MCL 600.4835 on the
ground that MCL 765.28 was the exclusive remedy for the return of
sums paid to the defendant county on bond forfeiture judgments).
“MCL 765.28 provides a ‘safe harbor,’ where, if certain conditions
are satisfied, a surety is entitled to a remittance of the forfeiture it
paid[, and the] court lacks any discretion[;] . . . MCL 600.4835, on the
other hand, gives the court discretion to remit forfeited
recognizances[]” as it deems just and equitable. Calvert Bail Bond
Agency, 314 Mich App at 554-555. Therefore, the two statutes “do not
conflict[,] . . . because each statute can be given its full effect without
affecting the other.” Id. at 555.
“[A] person is ‘apprehended’ within the meaning of [MCL

765.15(1)][19] when that person is held in custody in another state.”
18“[MCL
765.28(2)] does not apply if the defendant was apprehended more than 56 days after the bail or
bond was ordered forfeited and judgment entered and the surety did not fully pay the forfeiture judgment
within that 56-day period.” MCL 765.28(3).
19 Effective May 1, 1994, 1993 PA 343 amended MCL 765.15 and redesignated former MCL 765.15(a) as
MCL 765.15(1). The amendment did not substantively change this provision.

In re Forfeiture of Bail Bond, 209 Mich App 540, 543 (1995) (trial court
erred in denying a bond depositor’s motion to set aside a forfeiture
on the ground that the defendant, who had been taken into custody
in New Jersey on unrelated charges seven months after the
forfeiture was entered and remained in custody there at the time of
the depositor’s motion, “had not been returned to the county where
the bond was posted[]” and had therefore not been “apprehended”
within the meaning of former MCL 765.15(a)); see also In re
Forfeiture of Bail Bond, 229 Mich App 724, 728 (1998) (“the first
criterion [of former MCL 765.15(a) (that the defendant be
‘apprehended’)] was met by [the] defendant’s apprehension in New
Jersey within one year of the forfeiture judgment[]”).
“[T]he following considerations are among those relevant to

determining whether ‘the ends of justice have not been thwarted’:
(1) the depositor’s role, if any, in hiding the defendant, failing to
assist in the apprehension of the defendant, or affirmatively
assisting in the apprehension of the defendant; (2) the length of time
elapsing between the defendant’s failure to appear and his [or her]
ultimate apprehension; (3) the extent to which evidence has been
lost (e.g., death or unavailability of witnesses, fading of witnesses’
memories) or whether the prosecution’s case has otherwise been
affected by the delay; (4) the extent to which the defendant has
committed additional crimes before apprehension, and the
seriousness of such crimes; (5) the extent to which there has been a
psychological or emotional effect upon the initial victim as a result
of the defendant being at large; (6) the extent to which the
defendant’s apprehension was involuntary; and (7) the extent to
which extradition or other legal procedures have been required,
thereby causing additional delays in carrying out justice.” In re
Forfeiture of Bail Bond, 229 Mich App at 729-731 (noting that “[w]hile
a depositor obviously risks losing the funds deposited if the
defendant fails to appear, a depositor does not, by virtue alone of
providing funds for a bond, undertake an affirmative duty to
produce the defendant[; r]ather, . . . the depositor’s involvement, if
any, in either hiding or apprehending the defendant is simply a
relevant consideration in determining whether ‘the ends of justice
have not been thwarted[]’”).
“[T]he costs of ‘apprehending the person’ under [MCL 765.15(1)]

include a jurisdiction’s costs in locating the defendant, as well as any
extradition costs.” In re Forfeiture of Bail Bond, 229 Mich App at 731-
732 (noting that “[t]he county’s costs to locate the defendant (e.g.,
man-hours of investigative time, professional and support
personnel costs, telephone calls) are all part of the costs of
apprehension[]”).

8.7 Termination of Release Order

“If the conditions of the release order are met and the defendant is
discharged from all obligations in the case, the court must vacate the
release order, discharge anyone who has posted bail or bond, and return
the cash (or its equivalent) posted in the full amount of the bail, or, if
there has been a deposit of 10 percent of the full bail amount, return 90
percent of the deposited money and retain 10 percent.” MCR 6.106(I)(1).
“If money was deposited on a bail or bond executed by the defendant,

the money must be first applied to the amount of any fine, costs, or
statutory assessments imposed and any balance returned, subject to
[MCR 6.106(I)(1)].” MCR 6.106(I)(3).
“If the bond or bail is discharged, the court shall enter an order to that
effect with a statement of the amount to be returned to the surety.” MCL
765.28(2).
“If bond or bail is discharged, the court shall enter an order with a
statement of the amount to be returned to the depositor.” MCL 765.15(2).
“If the court ordered the defendant to pay a fine, costs, restitution,
assessment, or other payment, the court shall order the fine, costs,
restitution, assessment, or other payment collected out of cash bond or
bail personally deposited by the defendant under [MCL 765.1 et seq.], and
the cash bond or bail used for that purpose shall be allocated as provided
in [MCL 775.22].” MCL 765.15(2). “Upon presentation of a certified copy
of the order, the treasurer or clerk having the cash, check, or security
shall pay or deliver it as provided in the order to the person named in the
order or to that person’s order.” Id.
“If the cash, check, or security is in the hands of the sheriff or any officer
other than the treasurer or clerk, the officer holding it shall dispose of the
cash, check, or security as the court orders upon presentation of a
certified copy of the court’s order.” MCL 765.15(3).
8.8 Revocation of Release on Conviction

“A defendant convicted of an assaultive crime and awaiting sentence
shall be detained and shall not be admitted to bail unless the trial court
finds by clear and convincing evidence that the defendant is not likely to
pose a danger to other persons and that [MCL 770.9b] does not apply.”
MCL 770.9a(1).
“A defendant convicted of sexual assault of a minor and awaiting

sentence shall be detained and shall not be admitted to bail.” MCL
770.9b(1).

8.9 Release Pending Appeal

“During the time between the trial court judgment and the decision of
the court to which an appeal is taken, the trial judge may admit the
defendant to bail, if the offense charged is bailable[20] and if the offense is
not an assaultive crime as defined in [MCL 770.9a].” MCL 770.8.
“During the pendency of an appeal or application for leave to appeal, a

justice or judge of the court in which the appeal or application is filed
may admit the defendant to bail, if the offense charged is bailable and if
the offense is not an assaultive crime as defined in [MCL 770.9a] or sexual
assault of a minor as described in [MCL 770.9b].” MCL 770.9.
The right of a defendant to bail upon appeal by the prosecutor is

governed by MCL 770.9a and MCL 765.7. MCL 770.12(3). “If an appeal is
taken by or on behalf of the people of the state of Michigan from a court
of record, the defendant shall be permitted to post bail on his or her own
recognizance, pending the prosecution and determination of the appeal,
unless the trial court determines and certifies that the character of the
offense, the respondent, and the questions involved in the appeal, render
it advisable that bail be required.” MCL 765.7.
8.10 Standard of Review

A district court magistrate’s decision is reviewed de novo as an appeal of
right in district court. People v Wershe, 166 Mich App 602, 607 (1988); MCL
600.8515. A bail decision by a district court judge at the close of a
preliminary examination does not constitute a review of the initial bail
decision made by a magistrate at the arraignment; the bail decision
following preliminary examination is a new bail decision and, once
entered, it is the decision subject to review and deference as set out in the
court rules. Wershe, 166 Mich App at 606.
A trial court’s decision regarding forfeiture of a bail bond is reviewed for

an abuse of discretion. See In re Forfeiture of Surety Bond, 208 Mich App
369, 375 (1995); People v Munley, 175 Mich App 399, 403 (1989). Similarly,
decisions on a motion to set aside a bond forfeiture are reviewed for an
abuse of discretion. In re Forfeiture of Bail Bond, 229 Mich App 724, 727
(1998).
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). If the
reviewing court finds an abuse of discretion, it may only modify the
20 See Const 1963, art 1, § 15 and MCR 6.106(B)(1)–(4), for offenses for which a defendant is not entitled to
bail.

release decision after considering the factors set out in MCR

6.106(F)(1)(a)–(i). People v Weatherford, 132 Mich App 165, 170 (1984) (trial
court should not have increased the amount of the defendant’s bail
because there was no finding of an abuse of discretion, and because the
trial court did not consider any of the court rule factors in raising the
amount of bail).

Chapter 9: Pretrial Matters
9.1 Introduction ......................................................................................... 9-2

Part A: Pretrial Procedures
9.2 Pretrial Procedures—Generally ........................................................... 9-2
9.3 Discovery.............................................................................................. 9-6
9.4 Bill of Particulars ................................................................................ 9-15
9.5 Witnesses ........................................................................................... 9-15
Part B: Procedural Pretrial Motions
9.6 Adjournment or Continuance ............................................................ 9-21
9.7 Motions for Rehearing or Reconsideration........................................ 9-23
9.8 Joinder and Severance ....................................................................... 9-24
9.9 Motion to Dismiss .............................................................................. 9-28
9.10 Double Jeopardy Issues...................................................................... 9-29
9.11 Speedy Trial........................................................................................ 9-41
Part C: Pretrial Motions to Suppress Evidence
9.12 Motion to Suppress Evidence ............................................................ 9-48
9.13 Motion to Suppress Identification of Defendant ............................... 9-49

9.1 Introduction
This chapter concerns pretrial procedures, procedural pretrial motions,
and pretrial motions to suppress evidence. For detailed information on
specific motions, refer to the relevant sections in the benchbook.
Part A: Pretrial Procedures
9.2 Pretrial Procedures—Generally

In general, the Michigan Court Rules do not provide for motion practice
in criminal proceedings;1 accordingly, the rules for civil motion practice
apply. See MCR 6.001(D).
A. Form of Motions
“An application to the court for an order in a pending action must be
by motion.” MCR 2.119(A)(1). “Unless made during a hearing or trial,
a motion must (a) be in writing, (b) state with particularity the
grounds and authority on which it is based, (c) state the relief or order
sought, and (d) be signed by the party or attorney as provided in
MCR 1.109(D)(3) and [MCR 1.109](E).” MCR 2.119(A)(1).
“A motion or response to a motion that presents an issue of law must

be accompanied by a brief citing the authority on which it is based,
and must comply with the provisions of MCR 7.215(C)[2] regarding
citation of unpublished Court of Appeals opinions.” MCR
1 Note, however, that should a court rule or statute provide something contrary to what is provided in MCR
2.119 (the civil motion practice rule), that other court rule or statute applies. See MCR 6.001(D)(1); MCR
6.001(D)(3).
2 MCR 7.215(C)(1) provides:
“An unpublished opinion is not precedentially binding under the rule of stare decisis. Unpublished
opinions should not be cited for propositions of law for which there is published authority. If a
party cites an unpublished opinion, the party shall explain the reason for citing it and how it is
relevant to the issues presented. A party who cites an unpublished opinion must provide a copy
of the opinion to the court and to opposing parties with the brief or other paper in which the
citation appears.”

2.119(A)(2). “Except as permitted by the court, the combined length of

any motion and brief, or of a response and brief, may not exceed 20
double spaced pages, exclusive of attachments and exhibits.” MCR
2.119(A)(2)(a). See People v Leonard, 224 Mich App 569, 578-579 (1997)
(defendant brief in excess of the 20-page limit “was justified” where
the matter was “‘very complicated[]’”). “Except as permitted by the
court or as otherwise provided in [the Michigan Court Rules], no
reply briefs, additional briefs, or supplemental briefs may be filed.”
MCR 2.119(A)(2)(b). “Quotations and footnotes may be single-
spaced[, a]t least one-inch margins must be used, and printing shall
not be smaller than 12-point type.” MCR 2.119(A)(2)(c).
“A copy of a motion or response (including brief) filed under [MCR

2.119] must be provided by counsel to the office of the judge hearing
the motion.” MCR 2.119(A)(2)(d). “The judge’s copy must be clearly
marked JUDGE’S COPY on the cover sheet; that notation may be
handwritten.” Id.
The motion and a notice of hearing on the motion may be combined

into one document. MCR 2.119(A)(3).
B. Time for Service and Filing of Motions and Responses

“Unless a different period is set by [the court rules] or by the court for
good cause, a written motion (other than one that may be heard ex
parte), notice of the hearing on the motion, and any supporting brief
or affidavits must be served as follows: (a) at least 9 days before the
time set for the hearing, if served by mail, or (b) at least 7 days before
the time set for the hearing, if served by delivery under MCR
2.107(C)(1) or [MCR 2.107(C)](2).” MCR 2.119(C)(1).
“Unless a different period is set by [the court rules] or by the court for
good cause, any response to a motion (including a brief or affidavits)
required or permitted by [the court rules] must be served as follows:
(a) at least 5 days before the hearing, if served by mail, or (b) at least 3
days before the hearing, if served by delivery under MCR 2.107(C)(1)
or [MCR 2.107(C)](2).” MCR 2.119(C)(2).
“If the court sets a different time for serving a motion or response its
authorization must be endorsed in writing on the face of the notice of
hearing or made by separate order.” MCR 2.119(C)(3).
“Unless the court sets a different time, a motion must be filed at least
7 days before the hearing, and any response to a motion required or
permitted by [the court rules] must be filed at least 3 days before the
hearing.” MCR 2.119(C)(4).

C. Pretrial Conferences
1. District Court
“The court, on its own initiative or on motion of either party,
may direct the prosecutor and the defendant, and, if
represented, the defendant’s attorney to appear for a pretrial
conference.” MCR 6.610(B). “The court may require collateral
matters and pretrial motions to be filed and argued no later than
this conference.” Id.
2. Circuit Court
“At any time after the commencement of the action, on its own
initiative or the request of a party, the court may direct that the
attorneys for the parties, alone or with the parties, appear for a
conference.” MCR 2.401(A). “The court shall give reasonable
notice of the scheduling of a conference.” Id. “More than one
conference may be held in an action.” Id. At a pretrial
conference, or at any other time if the court concludes that it
would facilitate the progress of the case, the court must establish
times for events including filing motions and scheduling trial.
MCR 2.401(B)(2)(a).
3. Scheduling Orders
The scheduling of events in a scheduling order must take into
consideration the nature and complexity of the case, including
the issues involved; the number and location of parties and
potential witnesses, including experts; the extent of expected
and necessary discovery; and the availability of reasonably
certain trial dates. MCR 2.401(B)(2)(b).
The scheduling order may also include provisions concerning

discovery of electronically stored information, any agreements
the parties reach for asserting claims of privilege or of protection
as trial-preparation material after production, preserving
discoverable information, and the form in which electronically
stored information must be produced. MCR 2.401(B)(2)(c).
The scheduling of events in a scheduling order requires

meaningful consultation with all counsel of record, whenever
reasonably practical. MCR 2.401(B)(2)(d).
D. Evidentiary Hearing
A defendant is generally entitled to an evidentiary hearing where the
admissibility of evidence is challenged on constitutional grounds.
People v Reynolds (Anthony), 93 Mich App 516, 519 (1979). But “where
it is apparent to the court that the challenges are insufficient to raise a
constitutional infirmity, or where the defendant fails to substantiate
the allegations of infirmity with factual support, no hearing is
required.” People v Johnson (James), 202 Mich App 281, 285 (1993).
“Preliminary questions concerning the qualification of a person to be

a witness, the existence of a privilege, or the admissibility of evidence
shall be determined by the court, subject to the provisions of [MRE
104(b)3].” MRE 104(a). “In making its determination it is not bound by
the Rules of Evidence except those with respect to privileges.” Id.;
MRE 1101(b)(1). In determining whether the proffered evidence is
admissible under the technical requirements of the rules of evidence,
the trial court applies a preponderance of the evidence test. Bourjaily v
United States, 483 US 171, 175-176 (1987).
“Although it is always preferable for purposes of appellate review

that a trial court explain its reasoning and state its findings of fact
with respect to pretrial motions, the court is not required to do so by
court rule.” People v Shields (Kyle), 200 Mich App 554, 558 (1993). See
MCR 2.517(A)(4). “The court may state . . . findings and conclusions
on the record or include them in a written opinion.” MCR 2.517(A)(3).
A trial court’s decision whether to hold an evidentiary hearing is

reviewed for an abuse of discretion. People v Unger, 278 Mich App 210,
216-217 (2008). An abuse of discretion occurs when the court chooses
an outcome that falls outside the range of reasonable and principled
outcomes. Id. at 217. A trial court’s findings of fact are reviewed for
clear error. MCR 2.613(C).
E. Timing of Disposition
“Matters under submission to a judge or judicial officer should be
promptly determined. Short deadlines should be set for presentation
of briefs and affidavits and for production of transcripts. Decisions,
when possible, should be made from the bench or within a few days
of submission; otherwise a decision should be rendered no later than
35 days after submission. For the purpose of [MCR 8.107], the time of
submission is the time the last argument or presentation in the matter
was made, or the expiration of the time allowed for filing the last brief
or production of transcripts, as the case may be.” MCR 8.107(A).
Matters not decided within 56 days of submission must be identified
on the quarterly “Report as to Matters Undecided.” MCR 8.107(B).
3“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.” MRE 104(b).

9.3 Discovery
MCR 6.2014 governs the scope of criminal discovery in Michigan. People v
Phillips (Paul), 468 Mich 583, 588-589 (2003). See also AO 1994-10 (stating
that discovery in criminal cases is governed by MCR 6.201, not MCL
767.4a). Either the subject of discovery must be set out in MCR 6.201, or
the party seeking discovery must show good cause why the trial court
should order the requested discovery. People v Greenfield (On
Reconsideration), 271 Mich App 442, 448 (2006).
“Except as otherwise provided in MCR 2.302(B)(6)[5], electronic materials

are to be treated in the same manner as nonelectronic materials under
[MCR 6.201].” MCR 6.201(K). “Nothing in [MCR 6.201] shall be
construed to conflict with MCL 600.2163a.”6 MCR 6.201(K).
A. Mandatory Disclosure
MCR 6.201(A) governs mandatory disclosure and provides that “[i]n
addition to disclosures required by provisions of law other than MCL
767.94a,[7] a party upon request must provide all other parties:
(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;[8]
(2) any written or recorded statement, including

electronically recorded statements, 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
4
MCR 6.201 only applies to felony cases. See MCR 6.001; People v Greenfield (On Reconsideration), 271
Mich App 442, 450 n 6 (2006).
5MCR
2.302(B)(6) provides that “[a] party need not provide discovery of electronically stored information
from sources that the party identifies as not reasonably accessible because of undue burden or cost. On
motion to compel discovery or for a protective order, the party from whom discovery is sought must show
that the information is not reasonably accessible because of undue burden or cost. If that showing is made,
the court may nonetheless order discovery from such sources if the requesting party shows good cause,
considering the limitations of MCR 2.302(C). The court may specify conditions for the discovery.”
6MCL 600.2163a authorizes special arrangements for witnesses in certain situations.
7 Discovery in criminal cases is governed by MCR 6.201, not by MCL 767.94a. AO 1994-10.
8 See Section 9.5(A) for more information on witness discovery.

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, including the cost of providing copies
of electronically recorded statements. On good cause
shown, the court may order that a party be given the
opportunity to test without destruction any tangible
physical evidence.”
1. Written/Recorded Statements Under MCR 6.201(A)(2)

“Under [MCR 6.201(A)(2)], a party must provide to all other
parties upon request any written or recorded statement by a lay
witness whom the party intends to call as a witness at trial,
except that a defendant is not obliged to provide his [or her] own
statement.” People v Tracey, 221 Mich App 321, 324 (1997).
“An attorney’s interview notes with witnesses intended to be

called at trial are not ‘statements’ within the definition provided
by [Michigan] discovery rules. Accordingly, neither side is
obligated to provide these notes pursuant to a request under
MCR 6.201(A)(2).” People v Holtzman, 234 Mich App 166, 189
(1999).
2. Inspections of Physical Evidence Under MCR

6.201(A)(6)
“MCR 6.201(A)(6) [(in part, authorizing the court to order a
party be given the opportunity to retest tangible physical
evidence)] does not provide the trial court with the authority to
order the [Michigan State Police (MSP)] to retest its own
evidence.” People v Green, 310 Mich App 249, 256-257 (2015).
“Rather, it merely provides the court with the authority to
provide [the] defendant with the opportunity to test any tangible
physical evidence.” Id. at 257 (trial court abused its discretion in
ordering an MSP lab analyst to retest a vial of the defendant’s
blood that had already been tested by the analyst; trial court
could only order that the defendant be given the opportunity to
retest his blood sample).
B. Discovery of Information Known to the Prosecuting

Attorney
MCR 6.201(B) governs discovery of information known to the
prosecuting attorney, and provides that “[u]pon request, the
prosecuting attorney must provide each defendant:
(1) any exculpatory information or evidence known to

the prosecuting attorney;[9]
(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, including

electronically 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.”
“‘The focus of required disclosure [under MCR 6.201(B)(5) and Brady

v Maryland, 373 US 83 (1963),] is not on factors which may motivate a
prosecutor in dealing subsequently with a witness, but rather on facts
which may motivate the witness in giving certain testimony.’” People v
Bosca, 310 Mich App 1, 32-33 (2015) (holding that where the details of
a witness’s plea agreement were read into the trial court record and
defense counsel was given the opportunity to cross-examine the
witness, “the prosecution made the requisite disclosure sufficient to
permit the jury to evaluate [the witness’s] credibility[;]” although
“[the] defendant contend[ed] that the trial court ultimately was more
lenient (than the prosecution had recommended) in its sentencing of
[the witness], there [was] no demonstration that the more lenient
sentencing was the result of any undisclosed sentencing
agreement[]”) (citations omitted and alteration added).
9Although
there is no constitutional right to discovery in a criminal case, “due process . . . requires the
prosecution to disclose evidence in its possession that is exculpatory and material, regardless of whether
the defendant requests the evidence.” People v Jackson, 292 Mich App 583, 591 (2011), citing Brady v
Maryland, 373 US 83 (1963). See Section 9.3(J) on establishing a Brady violation.

C. Prohibited Discovery
MCR 6.201(C) governs prohibited discovery, and provides that
“[n]otwithstanding any other provision of this rule, there is no right
to discover information or evidence that is protected from disclosure
by constitution, statute, or privilege, including information or
evidence protected by a defendant’s right against self-incrimination,
except as provided in [MCR 6.201(C)(2)].”
“If a defendant demonstrates a good-faith belief, 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.
(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).
“[D]efendants generally have no right to discover privileged records

absent certain special procedures, such as an in camera review of the
privileged information conducted by the trial court.” People v Davis-
Christian, 316 Mich App 204, 207-208 (2016), citing MCR 6.201(C)(1)-
(2).
1. In Camera Reviews
“In a criminal sexual conduct prosecution, an in camera review
‘promotes the state’s interests in protecting the privacy rights of
the alleged rape victim while at the same time safeguards the
defendant’s right to a fair trial.’” Davis-Christian, 316 Mich App
at 208, quoting People v Hackett, 421 Mich 338, 350 (1984) (trial
court abused its discretion when it disregarded the court rule
and controlling caselaw and articulated its own standard for
allowing in camera reviews). See also People v Stanaway, 446
Mich 643 (1994), on which the current version of MCR 6.201 is
based. See MCR 6.201, staff comment to 1996 amendment.
2. Work-Product Privilege
“[T]he work-product privilege applies in the context of criminal
proceedings to the work product of the prosecutor.” Gilmore, 222
Mich App at 453. And “to the extent that the prosecutor may be
entitled to discovery of materials in defense counsel’s possession
. . . the work-product privilege would apply with equal force.”
Id. at 453 n 9.
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.” MCR 6.201(D).
“The party must inform the other party that nondiscoverable
information has been excised and withheld.” Id. “On motion, the
court must conduct a hearing in camera to determine whether the
reasons for the excision are justifiable.” Id. “If the court upholds the
excision, it must seal and preserve the record of the hearing for
review in the event of an appeal.” Id.
E. Protective Orders
“On motion and a showing of good cause, the court may enter an
appropriate protective order.” MCR 6.201(E). “In considering whether
good cause exists, the court shall consider[:]
• the parties’ interests in a fair trial;
• the risk to any person of harm, undue annoyance,

intimidation, embarrassment, or threats;
• the risk that evidence will be fabricated; and
• the need for secrecy regarding the identity of informants

or other law enforcement matters.” MCR 6.201(E)
(bullets added).
“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.”
MCR 6.201(E). “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.” Id.
F. Timing of Discovery
“Unless otherwise ordered by the court, the prosecuting attorney
must comply with the requirements of [MCR 6.201] within 21 days of
a request under [MCR 6.201] and a defendant must comply with the
requirements of [MCR 6.201] within 21 days of a request under [MCR
6.201].” MCR 6.201(F).
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.” MCR 6.201(G).
H. Continuing Duty to Disclose

“If at any time a party discovers additional information or material
subject to disclosure under [MCR 6.201], the party, without further
request, must promptly notify the other party.” MCR 6.201(H). See
also People v Aldrich, 246 Mich App 101, 133 n 7 (2001) (“[p]rosecutors
have a ‘continuing’ duty to disclose . . . material evidence”).
I. Modification
“On good cause shown, the court may order a modification of the
requirements and prohibitions of [MCR 6.201].” MCR 6.201(I).
J. Violation
“If a party fails to comply with [MCR 6.201], 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.” MCR 6.201(J). “Parties are encouraged to bring
questions of noncompliance before the court at the earliest
opportunity.” Id. An attorney who willfully violates a discovery rule
or a court order issued pursuant to a discovery rule may be subject to
court-ordered sanctions. Id. A court’s order under MCR 6.201(J) is
reviewable for abuse of discretion. MCR 6.201(J).
“[D]ue process does not generally require the prosecution to seek and
find exculpatory evidence, or search for evidence that will support a
defendant’s case[.]” People v Dimambro, 318 Mich App 204, 213 (2016),
citing People v Coy, 258 Mich App 1, 21 (2003). However, “‘the
individual prosecutor [does have] a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in the
case, including the police[.]” Dimambro, 318 Mich App at 213, quoting
Kyles v Whitley, 514 US 419, 437 (1995) (first alteration in original. In
Dimambro, the Michigan Court of Appeals held that, where autopsy
photographs that were under the control of the medical examiner
were not turned over to either the prosecution or the defense until
after the defendant’s trial, “the prosecution’s failure to disclose the . . .
photographs constituted a Brady violation[;]” “whether inadvertent or
not, . . . the prosecution suppressed the photographs for Brady
purposes, despite the fact that the medical examiner had sole
possession of them[.]” Dimambro, 318 Mich App at 211, 222. “[G]iven a
county’s medical examiner’s duty [under the county medical
examiners act, MCL 52.201 et seq.,] to act on the government’s behalf
in cases involving violent or unexpected deaths in Michigan, . . . (1)
the medical examiner may be understood as ‘acting on the
government’s behalf’ in a particular case, Kyles, 514 US at 437, and (2)
responsibility for evidence within the medical examiner’s control may
be imputed to the government, even if ‘unknown to the prosecution.’”
Dimambro, 318 Mich App at 215, quoting Kyles, 514 US at 437.
1. Brady Violations
“‘[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process [(i.e. a Brady
violation)] where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution[,]’” and irrespective of whether defense counsel
exercised “reasonable diligence” to discover the evidence. People
v Chenault, 495 Mich 142, 149, 152, 155 (2014), quoting Brady v
Maryland, 373 US 83, 87 (1963), and overruling People v Lester, 232
Mich App 262 (1998).10 In order to establish a Brady violation, a
defendant must establish that “(1) the prosecution has
suppressed evidence; (2) that is favorable to the accused; and (3)

viewed in its totality, is material.” Chenault, 495 Mich at 155,

citing Strickler v Greene, 527 US 263, 281-282 (1999).
a. Materiality
“To establish materiality[ of alleged Brady evidence], a
defendant must show that ‘there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome.’”
Chenault, 495 Mich at 150, quoting United States v Bagley,
473 US 667, 682 (1985). However, in evaluating the
materiality of suppressed evidence, “‘[t]he question is not
whether the defendant would more likely than not have
received a different verdict with the evidence, but
whether in its absence he [or she] received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence.’” Chenault, 495 Mich at 157, quoting Kyles, 514
US at 434. See Smith v Cain, 565 US 73, 75-76 (2012) (the
petitioner established a Brady violation where a police
investigator’s undisclosed notes contained statements
directly contradicting an eyewitness’s trial testimony;
because the eyewitness’s testimony constituted the sole
evidence linking the petitioner to the crime, the evidence
was “material” within the meaning of Brady, 373 US at 87);
Dimambro, 318 Mich App at 221 (expert testimony
regarding undisclosed medical examiner photographs
“demonstrate[d] that there [was] a reasonable probability
that the outcome of the trial might have been different
had the photographs been disclosed to the defense[]”
where the photographs may have revealed that the child-
victim’s injuries were not intentionally inflicted).
b. Favorable Evidence
“[T]he United States Supreme Court has not specifically
delineated the outlines of what constitutes ‘favorable
evidence[]’” under Brady, and “even the most generous
reading of the ‘favorable evidence’ standard would [not]
require the prosecution to disclose evidence whose utility
10
“In contrast to the three-factor Brady test articulated by the United States Supreme Court[ in Strickler v
Greene, 527 US 263, 281-282 (1999)],” the Michigan Court of Appeals “adopted a four-factor Brady test in
1998[]” that included the requirement that the defendant “‘could [not] . . . have obtained [the evidence]
himself [or herself] with any reasonable diligence[.]’” Chenault, 495 Mich at 151, quoting Lester, 232 Mich
App at 281 (internal citation omitted). The Chenault Court “reject[ed] the addition of a diligence
requirement to the Brady test and . . . overrule[d] Lester[, 232 Mich App 262].” Chenault, 495 Mich at 152.

lay only in helping a defendant contour a portion of his

[or her] cross-examination of a key state witness.” People v
Banks, 249 Mich App 247, 255 (2002); see also People v
Dickinson, 321 Mich App 1, 5-6 (2017).
c. Scope of Brady Duty

The Brady duty extends to impeachment evidence and
exculpatory evidence. Youngblood v West Virginia, 547 US
867, 869 (2006). A Brady violation even occurs when the
government fails to turn over evidence that is known only
to the police, and not to the prosecutor. Youngblood, 547
US at 869-870.
2. Determining a Remedy
“When determining an appropriate remedy for a discovery
violation, the trial court must balance the interests of the courts,
the public, and the parties in light of all the relevant
circumstances[.]” People v Jackson (Andre), 292 Mich App 583, 591
(2011) (internal quotation omitted). For example, where the
prosecution’s failure to disclose a transcript of a witness’s prior
statements, given pursuant to an investigative subpoena,
violated MCR 6.201(A)(2) but did not constitute a Brady
violation, precluding the prosecution from questioning the
witness regarding the statements and allowing defense counsel
to review the transcript before cross-examining the witness did
not constitute an abuse of discretion. Jackson (Andre), 292 Mich
App at 590-592.
If an inadvertent discovery violation is established, a trial court

may grant a continuance, if requested, to alleviate any harm by
allowing both parties to prepare for the new evidence without
requiring the exclusion of relevant evidence. People v Elston, 462
Mich 751, 764 (2000). See also Banks, 249 Mich App at 252, where
the trial court did not abuse its discretion in denying the
defendant’s motion for a mistrial based on the prosecution’s
inadvertent failure to disclose a police report because the
defendant’s credibility and case were not completely destroyed
by the discovery violation under the facts of the case.
9.4 Bill of Particulars

MCR 6.112(E) provides that “[t]he court, on motion, may order the
prosecutor to provide the defendant a bill of particulars describing the
essential facts of the alleged offense.” However, MCL 767.44 requires a bill
of particulars “if seasonably requested by the respondent[.]” MCL 767.44

provides “statutory short forms” that may be used in the bill of

particulars. People v Strutenski, 39 Mich App 72, 73 (1972). For example,
the statutory short form for murder is “A.B. murdered C.D.”; the
statutory short form for manslaughter is “A.B. killed C.D.” MCL 767.44.
Accordingly, “[w]hen a statutory short-form information is used, the

defendant has a statutory right to a bill of particulars, while when the
common law long-form of information is used, the trial court may in its
discretion order a bill of particulars.” People v Johnson (Henry), 427 Mich
98, 109-110 (1986). “Once a bill of particulars is supplied, a defendant has
a right ‘to have the trial confined to the particulars set up therein.’” Id. at
110, quoting People v Ept, 299 Mich 324, 326 (1941). Accordingly, “the
procedural implementation of MCL 767.44 assures that the defendant
will have notice in advance of trial of the factual basis underlying the
alleged offense.” Johnson (Henry), 427 Mich at 110.
9.5 Witnesses
A. Witness Disclosure
“[A] party upon request must provide all other parties[] . . . 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.” MCR 6.201(A)(1). Note: While
MCL 767.94a concerns disclosure of certain material or information
by the defendant to the prosecuting attorney, MCR 6.201 controls
discovery in criminal cases. People v Phillips (Paul), 468 Mich 583, 587-
589 (2003); Administrative Order No. 1994-10, 447 Mich cxiv (1994).
“The prosecuting attorney shall attach to the filed information a list of

all witnesses known to the prosecuting attorney who might be called
at trial and all res gestae witnesses known to the prosecuting attorney
or investigating law enforcement officers.” MCL 767.40a(1). “The
prosecuting attorney shall be under a continuing duty to disclose the
names of any further res gestae witnesses as they become known.”
MCL 767.40a(2). However, “the prosecution [does not have] an
affirmative duty to present the ‘entire res gestae,’ or call at trial all of
the witnesses who were present when a crime occurred.” People v
Steanhouse, 313 Mich App 1, 15 (2015), aff’d in part and rev’d in part
on other grounds 500 Mich 453 (2017)11 (citation omitted).
“Although the prosecutor did not include [a potential witness] as a

known res gestae witness on his witness list, the . . . omission did not
prejudice defendant[] . . . or violate his right to present a defense; . . .
[b]ecause defendant implicated [the potential witness] in the [crime],

it [was] apparent that defendant was aware that [the potential

witness] could be a res gestae witness.” Steanhouse, 313 Mich App at
15 (citations omitted). “Because [the potential witness] invoked his
Fifth Amendment privilege against self-incrimination and refused to
testify, neither the prosecution nor the defense could call [him] as a
witness;” therefore, the prosecution did not “commit[] a plain error
affecting defendant’s substantial rights by failing to include [the
potential witness] on the witness list as a res gestae witness, notifying
the trial court of the need to inform [the potential witness] of his Fifth
Amendment right against self-incrimination, and failing to call [him]
as a witness.” Id. at 16 (citation omitted).
“[W]hen providing a defendant with the list of witnesses the

prosecutor ‘intends to produce’ at trial, a witness may not be
‘endorsed in the alternative’ as an ‘and/or’ witness.” People v Everett,
318 Mich App 511, 522 (2017) (holding that the statute plainly
requires a prosecutor to either endorse a witness that he or she
intends to call under MCL 767.40a(3) or amend the witness list
pursuant to MCL 767.40a(4) to add or remove a witness; the statute
does not allow for an “in-between ‘alternative’ witness who may or
may not be produced on the whim of the prosecutor”).
“[T]he trial court’s decision to allow removal of [an endorsed witness]

from the prosecutor’s witness list without consideration of whether
there was good cause to do so [as required under MCL 767.40a(4)]
was an abuse of discretion[.]” Everett, 318 Mich App at 520. “[T]o
remove [the witness’s] name from the witness list, the prosecutor was
required to comply with MCL 767.40a(4)[,]” and the prosecutor could
not avoid the requirements of MCL 767.40a(4) by labeling the witness
an “alternative” witness. Everett, 318 Mich App at 524-525
(nevertheless concluding that the defendant failed to establish that he
was prejudiced by the error where there was “nothing in the lower
court record to suggest that the prosecutor lacked good cause for
removing [the witness] from the prosecution’s witness list[]” and
there was “no indication of the testimony she would have offered[]”
or whether the defendant “would have benefited from” it).
B. Amending Witness List

The prosecutor may amend the witness list “at any time upon leave of
the court and for good cause shown or by stipulation of the parties.”
MCL 767.40a(4). The court’s decision whether to permit amendment

of the witness list is reviewed for an abuse of discretion. People v

Callon, 256 Mich App 312, 325-326 (2003) (trial court did not abuse its
discretion in finding good cause to allow the prosecutor to amend its
witness list where the witness – a critical witness to the prosecution’s
case – was inadvertently omitted, and where there was no unfair
prejudice to the defense in allowing the amendment).
C. Defendant’s Right to Present Witnesses

A fundamental element of due process is a defendant’s right to
present witnesses in his or her favor. Washington v Texas, 388 US 14, 19
(1967); US Const, Am VI; Const 1963, art 1, § 20; MCL 763.1.
1. Prosecutor’s Duty to Provide Reasonable Assistance to

Defendant
A prosecutor is obligated to provide reasonable assistance to
locate witnesses on a defendant’s request. MCL 767.40a(5). The
defendant’s request must be made in writing at least 10 days
before trial or at such other time as the court directs. Id. The
prosecutor may object to the request if the request is
unreasonable, see id., by filing a pretrial motion requesting a
hearing on the reasonableness of the request, id.
MCL 767.40a(5) does not limit its application to any certain types
of witnesses. People v Koonce, 466 Mich 515, 522-523 (2002).
Accordingly, the prosecutor was required to “give ‘reasonable
assistance’ [to the defendant in locating an accomplice witness]
without regard to the witness’ accomplice status.” Id. at 523.
2. Material Witness
If there is a material witness without whose testimony an
indigent defendant cannot safely proceed to trial, the trial court
may, in its discretion, order that a subpoena be issued and
served on the defendant’s behalf. MCL 775.15. The material
witness must be paid for attending the trial in the same manner
as if he or she had been subpoenaed by the prosecution. Id.
a. Witness Outside State

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.” People v McFall,
224 Mich App 403, 407-408 (1997); MCL 767.91 et seq. To
properly invoke the procedures under the act, a
defendant must “(1) designate the proposed witness’

location with a reasonable degree of certainty; (2) file a
timely petition; and (3) make out a prima facie case that
the witness’ testimony is material.” McFall, 224 Mich App
at 409.
b. Requiring Bond
If there is a danger of losing the testimony of a material
witness, the trial court may require the witness to post
bond, following a hearing on the matter. MCL 767.35;
MCL 765.29. If the witness does not post bond as ordered,
the court must order the witness committed to jail until he
or she posts bond or is discharged by the court. MCL
767.35.
c. Appointment of Expert Witness for Indigent

Defendant
When considering whether to appoint an expert witness
for an indigent defendant, trial courts must apply the due
process analysis set forth in Ake v Oklahoma, 470 US 68
(1985). People v Kennedy (Johnny Ray), 502 Mich 206, 225
(2018). Ake is the controlling law in this area and analysis
under MCL 775.15 (as frequently occurred previously) is
improper because “MCL 775.15 by its express terms, does
not provide for the appointment of expert witnesses. It
merely provides a means for subpoenaing certain
witnesses and for paying their costs of attending trial.”
Kennedy (Johnny Ray), 502 Mich at 222. The Kennedy
opinion overrules People v Jacobsen (Sheri Lynn), 448 Mich
639 (1995) and People v Tanner (Hattie Mae), 469 Mich 437
(2003), to the extent those cases did not apply Ake and
hold (or suggest) that MCL 775.15 governs a request by an
indigent defendant for the appointment of an expert at
government expense. Kennedy (Johnny Ray), 502 Mich at
225.
A trial court must consider three relevant factors when

determining whether to appoint an expert witness for an
indigent defendant: (1) “the private interest that will be
affected by the action of the State”; (2) “the governmental
interest that will be affected if the safeguard is to be
provided”; and (3) “the probable value of the additional
or substitute procedural safeguards that are sought, and
the risk of an erroneous deprivation of the affected
interest if those safeguards are not provided.” Ake, 470 US
at 77; see also Kennedy (Johnny Ray), 502 Mich at 215. In

addition, the Kennedy (Johnny Ray) Court adopted the

reasonable probability standard set forth in Moore v Kemp,
809 F2d 702 (CA 11, 1987), “as the appropriate standard
for courts to apply in determining whether an indigent
criminal defendant is entitled to the appointment of an
expert at government expense under Ake’s due process
analysis.” Kennedy (Johnny Ray), 502 Mich at 227-228.
Moore provides:
“[A] defendant must demonstrate something

more than a mere possibility of assistance
from a requested expert; due process does not
require the government automatically to
provide indigent defendants with expert
assistance upon demand. Rather, . . . a
defendant must show the trial court that there
exists a reasonable probability both that an
expert would be of assistance to the defense
and that denial of expert assistance would
result in a fundamentally unfair trial. Thus, if
a defendant wants an expert to assist his
attorney in confronting the prosecution’s
proof – by preparing counsel to cross-
examine the prosecution’s experts or by
providing rebuttal testimony – he must
inform the court of the nature of the
prosecution’s case and how the requested
expert would be useful. At the very least, he
must inform the trial court about the nature of
the crime and the evidence linking him to the
crime. By the same token, if the defendant
desires the appointment of an expert so that
he can present an affirmative defense, such as
insanity, he must demonstrate a substantial
basis for the defense, as the defendant did in
Ake. In each instance, the defendant’s showing
must also include a specific description of the
expert or experts desired; without this basic
information, the court would be unable to
grant the defendant’s motion, because the
court would not know what type of expert
was needed. In addition, the defendant
should inform the court why the particular
expert is necessary. [While] defense counsel
may be unfamiliar with the specific scientific
theories implicated in a case and therefore
cannot be expected to provide the court with
a detailed analysis of the assistance an

appointed expert might provide, . . . defense

counsel is obligated to inform himself about
the specific scientific area in question and to
provide the court with as much information
as possible concerning the usefulness of the
requested expert to the defense’s case.”Moore,
809 F2d at 712.
Accordingly, “‘a defendant must show the trial court that

there exists a reasonable probability both that an expert
would be of assistance to the defense and that denial of
expert assistance would result in a fundamentally unfair
trial.’” Kennedy (Johnny), 502 Mich at 228.
The Michigan Indigent Defense Commission’s Standard 3

provides, in part, that “[c]ounsel shall request the
assistance of experts where it is reasonably necessary to
prepare the defense and rebut the prosecution’s case[, and
r]easonable requests must be funded as required by
law.”12 “This standard does not conflict with a trial
judge’s discretion to permit the appointment of an expert
witness. Rather, the standard notes that experts must be
funded ‘as required by law.’ In other words, the request
must be funded ‘as required by’ the very authority which
[the plaintiff] accuses MIDC of disregarding.” Oakland Co
v State of Michigan, ___ Mich App ___, ___ (2018)
(quotation marks and citations omitted). In addition,
standard 3 does not “in any way interfere with the trial
court’s gate-keeping functions under MRE 702.” Oakland
Co, ___ Mich at ___.
Part B: Procedural Pretrial Motions
9.6 Adjournment or Continuance
A. Generally
“The trial of criminal cases shall take precedence over all other
cases[.]” MCL 768.2. “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,
12 See http://michiganidc.gov/wp-content/uploads/2018/04/Standards-1-8-Spring-2018.pdf. See Section
4.4 for discussion of the Michigan Indigent Defense Counsel Act (MIDCA), MCL 780.981 et seq.

continuances and delays in the trial of civil causes in courts of record:

[p]rovided, [t]hat no 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.
“The court may 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.” MCR 6.005(E).
The moving party has the burden of establishing good cause for an
adjournment. MCL 768.2; MCR 2.503(B)(1).
Denial of a continuance may violate a defendant’s right to due process

in certain circumstances. Ungar v Sarafite, 376 US 575, 589 (1964).
“There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must
be found in the circumstances present in every case, particularly in
the reasons presented to the trial judge at the time the request is
denied.” Id. at 589.
B. Considerations
If the defendant requests a continuance, the following factors should
be considered:
• whether the defendant is asserting a constitutional

right (e.g., the right to counsel);
• whether the defendant has a legitimate reason for

asserting the right (e.g., a bona fide irreconcilable
dispute with counsel over whether to call alibi
witnesses);
• whether the defendant was negligent with regard to

any delay in his or her request;
• whether the defendant requested previous

adjournments; and
• whether the defendant can demonstrate that

prejudice would result from a denial of the request.
People v Williams (Charles), 386 Mich 565, 578 (1972);
People v Lawton, 196 Mich App 341, 348 (1992).
Adjournments were warranted in the following situations:

• When defense counsel sought to withdraw. Williams

(Charles), 386 Mich at 575-576.
• Preparation of defense expert witness endorsed on

day of trial. People v Wilson (Roy), 397 Mich 76, 81-82
(1976).
• New statements made by witnesses shortly before

trial. People v Suchy, 143 Mich App 136, 142-146 (1985)
• Defendant requested properly fitted clothes to

replace ill-fitting clothes brought for trial. People v
Turner (Clarence Duane), 144 Mich App 107, 110-111
(1985).
An adjournment was not warranted where the defendant “did not

attempt to locate and secure potential expert witnesses until soon
before the trial began[,]” failed to “move for an adjournment until the
day before trial[,]” “had already caused his trial to be delayed for
several months[,]” and “fail[ed] to show that the absence of [the
expert witness] prejudiced him in any significant way.” People v
Daniels (Daniel), 311 Mich App 257, 266-268 (2015) (citations omitted).
A trial court’s desire to expedite the court’s docket is not a sufficient

reason to deny an otherwise proper request for a continuance.
Williams (Charles), 386 Mich at 577 (emphasis added).
A trial court’s grant or denial of a party’s request for a continuance is
reviewed for an abuse of discretion. People v Jackson (Walter), 467 Mich
272, 276 (2002).
Even if the trial court abused its discretion in denying a defendant’s

request for a continuance, the defendant must still establish that he or
she was prejudiced by the court’s decision. Williams (Charles), 386
Mich 565, 574 (1972); Daniel (Daniels), 311 Mich App 257, 266 (2015)
(citation omitted).
9.7 Motions for Rehearing or Reconsideration

“Unless another rule provides a different procedure for reconsideration
of a decision . . . , a motion for rehearing or reconsideration of the
decision on a motion must be served and filed not later than 21 days after
entry of an order deciding the motion.” MCR 2.119(F)(1). “No response to
the motion may be filed, and there is no oral argument, unless the court
otherwise directs.” MCR 2.119(F)(2). “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 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.” MCR 2.119(F)(3).
“The purpose of MCR 2.119(F) is to allow a trial court to immediately

correct any obvious mistakes it may have made in ruling on a motion,
which would otherwise be subject to correction on appeal, but at a much
greater expense to the parties. The time requirement for filing a motion
for reconsideration or rehearing insures that the motion will be brought
expeditiously.” Bers v Bers, 161 Mich App 457, 462 (1987) (internal citation
omitted).
“[MCR 2.119(F)(3)] does not categorically prevent a trial court from

revisiting an issue even when [a] motion for reconsideration presents the
same issue already ruled on; in fact, it allows considerable discretion to
correct mistakes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich
App 750, 754 (2014). See also People v Walters (Jayne), 266 Mich App 341,
350 (2005) (“the palpable error provision in MCR 2.119(F)(3) is not
mandatory and only provides guidance to a court about when it may be
appropriate to consider a motion for rehearing or reconsideration[]”).
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. Walters (Jayne), 266 Mich App
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. at
352. Similarly, “‘rehearing [or reconsideration] will not be ordered on the
ground merely that a change of members of the bench has either taken
place, or is about to occur.’” People v White (Kadeem) (White (Kadeem) III),
493 Mich 962, 962 (2013), quoting Peoples v Evening News Ass’n, 51 Mich
11, 21 (1883).
A motion for reconsideration or rehearing may not be entertained by a

court after entry of an order changing venue to another court, unless the
order specifies an effective date. Frankfurth v Detroit Med Ctr, 297 Mich
App 654, 658-661 (2012) (holding that “once a transfer of venue is made,
the transferee court has full jurisdiction over the action and, therefore,
the transferor court has none[; a]ny motion for rehearing or
reconsideration would have to be heard by whichever court has
jurisdiction over the action at the time the motion is brought, which, after
entry of an order changing venue, would be the transferee court[]”).
“[A] circuit court, sitting as an appellate court, [may] reconsider a

judgment or order.” Walters (Jayne), 266 Mich App at 349.

9.8 Joinder and Severance
A. Single Defendant
1. Charging Joinder
“The prosecuting attorney may file an information or indictment
that charges a single defendant with any two or more offenses.”
MCR 6.120(A). “Each offense must be stated in a separate
count.” Id. “Two or more informations or indictments against a
single defendant may be consolidated for a single trial.” Id.
2. Postcharging Permissive Joinder or Severance

“On its own initiative, the motion of a party, or the stipulation of
all parties, except as provided in [MCR 6.120(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.” MCR 6.120(B).
“[A] defendant who agrees to have the charges against him

considered in two trials [cannot] later successfully argue that the
second trial offends the Fifth Amendment’s Double Jeopardy
Clause.” Currier v Virginia, ___ US ___, ___ (2018).13
“Joinder is appropriate if the offenses are related. For purposes

of [MCR 6.120], 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.” MCR 6.120(B)(1).
“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.” MCR 6.120(B)(2).
Joinder was appropriate in the following circumstances:
13See Section 9.10 for more information on double jeopardy.

• Offenses were related where the evidence

indicated that the defendant engaged in ongoing
acts constituting parts of his overall scheme or plan
to package drugs for distribution. People v Williams
(Carletus), 483 Mich 226, 233-235 (2009).
• Offenses were related where the evidence

demonstrated that the defendant engaged in
ongoing acts related to his scheme of preying on
young, teenage girls from his high school; used
text messages to communicate with the victims
and encouraged them to keep their
communications secret; requested naked
photographs from the victims and threatened to
cut off ties with them if they refused; and used his
parents’ basement to isolate some of the young
girls and sexually penetrate them. People v Gaines,
306 Mich App 289, 305 (2014).
• The trial court’s denial of the defendant’s motion

to sever was not an abuse of discretion where the
defendant’s “attempted escape from jail happened
12 days after the murder and appeared to be a
crime of opportunity rather than part of a previous
scheme or plan connected with the other crimes,”
but “[the] defendant’s attempts to cover up the
murder, evade arrest, and escape from jail [could]
be seen as a series of connected acts.” People v Oros,
320 Mich App 146, 166 (2017), overruled in part on
other grounds 502 Mich 229 (2018).14
• Evidence was not particularly complex (six

charges of indecent exposure because there were
six separate instances of indecent exposure), and
the drain on the parties’ resources, the potential for
harassment of the witnesses, and the convenience
of the witnesses all weighed in favor of not
bifurcating the trial. People v Campbell (Michael), 316
Mich App 279, 294 (2016), overruled on other
grounds by People v Arnold (Lonnie James), 502 Mich
438 (2018).15

“If the court acts on its own initiative, it must provide the parties
an opportunity to be heard.” MCR 6.120(B)(3).
3. Right of Severance for Unrelated Offenses

“On the defendant’s motion, the court must sever for separate
trials offenses that are not related as defined in [MCR
6.120(B)(1)].” MCR 6.120(C).
Denial of the defendant’s motion for severance was appropriate

in the following circumstances:
• Because evidence regarding the defendant’s

possession of child sexually abusive material
would have been admissible at a separate trial on
the CSC-I charges at issue, the defendant could not
establish that a different outcome was likely had
the charges been severed and separate trials held.
People v Girard, 269 Mich App 15, 18 (2005).
• Because evidence pertaining to the other tax

evasion charges would have been admissible in
each of the trials as evidence of intent. People v
Duranseau, 221 Mich App 204, 208 (1997).
B. Multiple Defendants
1. Permissive Joinder
“An information or indictment may charge two or more
defendants with the same offense.” MCR 6.121(A). “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).” MCR 6.121(A).
“When more than one offense is alleged, each offense must be

stated in a separate count.” MCR 6.121(A). “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 [MCR
6.121].” MCR 6.121(A).

2. Right of Severance for Unrelated Offenses

“On a defendant’s motion, the court must sever offenses that are
not related as defined in MCR 6.120(B).” MCR 6.121(B).
3. Right of Severance for 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.” MCR 6.121(C).
“Severance is mandated under MCR 6.121(C) only when a

defendant demonstrates prejudice that his [or her] substantial
rights will be prejudiced and that severance is the necessary
means of rectifying the potential prejudice.” People v Hana, 447
Mich 325, 331 (1994).
4. 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.” MCR
6.121(D). “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 defendants or the
complexity or nature of the evidence, the convenience of the
witnesses, and the parties’ readiness for trial.” Id. See also MCL
768.5 (“[w]hen 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[]”).
“[I]n line with MCL 768.5 and MCR 6.121(D), . . . the decision to
sever or join defendants lies within the discretion of the trial
court.” Hana, 447 Mich at 331. Michigan caselaw has established
a strong policy in favor of joint trials, and denial of a defendant’s
motion for separate trials will not be reversed on appeal absent
an abuse of discretion and an affirmative showing of prejudice
to the substantial rights of the accused. People v Carroll, 396 Mich
408, 414 (1976).
C. Use of Dual Juries as an Alternative to Severance

Dual juries may be used to avoid the problems arising from a joint
trial of defendants with antagonistic defenses. People v Hoffman, 205
Mich App 1, 19 (1994). The use of separate juries is merely a partial
form of severance and should be evaluated using the factors

applicable to a motion for separate trials. Hana, 447 Mich at 331. “The
dual-jury procedure should be scrutinized with the same concern in
mind that tempers a severance motion, i.e., whether it has prejudiced
the substantial rights of the defendant.” Id. at 351-352. “The precise
issue is whether there was prejudice to substantial rights after the
dual-jury system was employed.” Id. at 352.
A trial court’s ruling on a motion for joinder or severance is reviewed
for an abuse of discretion. Hana, 447 Mich at 331. Whether the charges
are related is a question of law that is reviewed de novo. Girard, 269
Mich Appat 17.
9.9 Motion to Dismiss16

No court rule or statute specifically addresses a motion to dismiss
criminal charges. MCR 2.504 is the civil court rule governing dismissal of
actions. Ordinarily a motion to dismiss is used to address issues such as
double jeopardy or entrapment, where the remedy is dismissal of the
case.
The trial court exceeds its authority when it dismisses the information
against a defendant at a pretrial stage of the proceedings, People v
Morrow, 214 Mich App 158, 165 (1995), because the prosecutor has
exclusive authority to decide whom to prosecute. People v Williams
(Anterio), 244 Mich App 249, 254 (2001). MCL 767.29 governs the
prosecution’s practice of nolle prosequi, i.e., discontinuing or abandoning
an indictment.
A trial court’s decision on a motion to dismiss is reviewed for an abuse of

discretion. People v Stone, 269 Mich App 240, 242 (2005).
9.10 Double Jeopardy Issues
A. Generally
The right to be free from twice being placed in jeopardy for the same
offense is guaranteed to criminal defendants by the federal and
Michigan Constitutions, as well as by statute. US Const, Am V; Const
1963, art 1, § 15; MCL 763.5; People v Nutt, 469 Mich 565, 574 (2004). US
Const, Am V provides: “No person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb[.]” The Double
16 See Section 7.23(G) for discussion of motions to quash the information (improper bindover).

Jeopardy Clause applies to the states through the Fourteenth

Amendment. North Carolina v Pearce, 396 US 711, 717 (1969). Const
1963, art 1, § 15 provides: “No person shall be subject for the same
offense to be twice put in jeopardy.” This provision is “essentially
identical to its federal counterpart[]” and was intended to be
“construed consistently with the corresponding federal provision.”
Nutt, 469 Mich at 575, 594.
“Both federal and Michigan double jeopardy provisions afford three

related protections: (1) against a second prosecution for the same
offense after acquittal, (2) against a second prosecution for the same
offense after conviction, and (3) against multiple punishments for the
same offense. [Nutt, 469 Mich] at 574; Pearce, [396 US 711].” People v
Ford, 262 Mich App 443, 447 (2004).
“The purposes of double jeopardy protections against successive

prosecutions for the same offense are to preserve the finality of
judgments in criminal prosecutions and to protect the defendant from
prosecutorial overreaching.” Ford, 262 Mich App at 447. “[T]he
purpose of the double jeopardy protection against multiple
punishments for the same offense is to protect the defendant from
having more punishment imposed than the Legislature intended.” Id.
at 447-448.
B. Multiple Prosecutions for the Same Offense
1. Blockburger/Same Elements Test

When multiple charges are brought against a defendant for
conduct related to a single criminal transaction, the same-elements
test is used to determine whether the prohibition against double
jeopardy is violated. Nutt, 469 Mich at 567-568. “Application of
the same-elements test, commonly known as the ‘Blockburger
test,’ is the well-established method of defining the Fifth
Amendment term ‘same offence.’” Nutt, 469 Mich 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, 469
Mich at 576, quoting Iannelli v United States, 420 US 770, 785 n 17
(1975).
“‘The applicable rule is that where 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.’” Nutt, 469 Mich at 577-578, quoting
Blockburger, 284 US at 304.
2. Ashe/Collateral Estoppel
Collateral estoppel means “when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue
cannot be litigated between the same parties in any future
lawsuit.” Ashe v Swenson, 397 US 436, 443 (1970). The rule of
collateral estoppel “is embodied in the Fifth Amendment
guarantee against double jeopardy.” Id. at 444-445. “Where a
previous judgment of acquittal was based upon a general
verdict, . . . a court [must] ‘examine the record of a prior
proceeding, taking into account the pleadings, evidence, charge,
and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration.’” Id.
(holding that the Double Jeopardy Clause prohibited the
defendant from being prosecuted for robbing a poker player
after an acquittal in a previous trial for robbing a different player
from the same game established that he was not one of the
robbers) (citation omitted). However, Ashe presents a narrow set
of circumstances: “a court’s ultimate focus remains on the
practical identity of offenses, and the only available remedy is
the traditional double jeopardy bar against the retrial of the
same offense – not a bar against the relitigation of issues or
evidence.” Currier Virginia, ___ US ___, ___ (2018). “If a second
trial is permissible, the admission of evidence at that trial is
governed by normal evidentiary rules – not by the terms of the
Double Jeopardy Clause.” Id. at ___ (further declining to “import
into criminal double jeopardy law the civil law’s more generous
‘same transaction’ or same criminal ‘episode’ test”). Id. at ___.
“Ashe forbids a second trial only if to secure a conviction the

prosecution must prevail on an issue the jury necessarily
resolved in the defendant’s favor in the first trial.” Currier, ___
US at __. “To say that the second trial is tantamount to a trial of
the same offense as the first and thus forbidden by the Double
Jeopardy Clause, we must be able to say that ‘it would have been
irrational for the jury’ in the first trial to acquit without finding in
the defendant’s favor on a fact essential to a conviction in the
second.” Id. at ___, quoting Yeager v United States, 557 US 110,
119-120 (2009).
“If a single trial on multiple charges would suffice to avoid a

double jeopardy complaint, ‘there is no violation of the Double
Jeopardy Clause when [the defendant] elects to have the . . .
offenses tried separately and persuades the trial court to honor

his election.’” Currier, ___ US at ___, quoting Jeffers v United

States, 432 US 137, 152 (1977) (alteration in original) (this is true
regardless whether the first trial yielded an acquittal or a
conviction; while Ashe only applies to trials following acquittal,
the Double Jeopardy Clause protects against multiple
prosecutions for the same offense after conviction or acquittal).
“[A] defendant who agrees to have [multiple] charges against
him considered in two trials [cannot] later successfully argue
that the second trial offends the Fifth Amendment’s Double
Jeopardy Clause[.]” Currier, ___ US at ___. Defendant’s assertion
that he was forced to seek two trials to avoid having the jury
consider evidence of his prior convictions (to establish a charge
of felon in possession of a firearm) was meritless. Id. at ___.
“[D]ifficult strategic choices like these are ‘not the same as no
choice,’ and the Constitution ‘does not . . . forbid requiring’ a
litigant to make them.” Id. at ___ (citations omitted; alteration in
original).
3. “Separate Sovereign” Rule

Under “the dual-sovereignty doctrine, a single act gives rise to
distinct offenses—and thus may subject a person to successive
prosecutions—if it violates the laws of separate sovereigns.”
Puerto Rico v Sanchez Valle, 579 US ___, ___ (2016). In determining
“whether two prosecuting authorities are different sovereigns
for double jeopardy purposes, . . . [the] narrow, historically
focused question[]” is “whether the prosecutorial powers of the
two jurisdictions have independent origins—or, said conversely,
whether those powers derive from the same ‘ultimate source.’”
Id. at ___ (citing United States v Wheeler, 435 US 313, 320 (1978),
and holding that “the ultimate source of Puerto Rico’s
prosecutorial power” is the United States Congress, which
“authorized and approved its Constitution, from which [its]
prosecutorial power now flows[;]” accordingly, Puerto Rico and
the United States “are not separate sovereigns[]” and therefore
cannot “successively prosecute a single defendant for the same
criminal conduct[]”).
The Double Jeopardy Clause does not bar successive state and
federal prosecutions of a defendant for offenses arising from the
same criminal episode. People v Davis (Gevon), 472 Mich 156, 162
(2005). Because federal and state prosecutorial authority are
derived from two distinct and independent sources, a defendant
whose conduct violates both federal and state law commits two
offenses subject to punishment by both sovereigns. Id. at 163-164;
see also Sanchez Valle, 579 US at ___ (noting that “the States are
separate sovereigns from the Federal Government” for purposes
of double jeopardy because “[t]he States’ ‘powers to undertake

criminal prosecutions[]’” do not derive from the United States

Congress; rather, “the States rely on ‘authority originally
belonging to them before admission to the Union and preserved
to them by the Tenth Amendment[]’”).
The dual sovereignty rule for successive federal and state

prosecutions also applies to cases involving prosecutions by
different states for the same criminal conduct; double jeopardy
does not prohibit successive state prosecutions where a
defendant’s conduct violates the law in more than one state and
more than one state seeks to prosecute the defendant for a crime
resulting from that conduct. Davis (Gevon), 472 Mich at 158, 166-
169 (noting that a state is a sovereign separate from another state
when it derives its prosecutorial authority from a source
independent of the other state’s source of authority); see also
Sanchez Valle, 579 US at ___ (noting that “the States are separate
sovereigns . . . from one another” for double jeopardy purposes).
In Davis (Gevon), the Double Jeopardy Clause did not bar the
State of Michigan from prosecuting a defendant who had
already been convicted and sentenced in Kentucky for offenses
under Kentucky law that arose from the same conduct on which
Michigan based its charges against the defendant. Id. at 158-159,
168-169.
4. Retrial In Various Instances

“The very application of the Double Jeopardy Clause necessarily
requires more than one trial.” People v Wilson, 496 Mich 91, 101
(2014), abrogated on other grounds by Bravo-Fernandez v United
States, 580 US ___, ___ (2016). See also People v McKewen, ___
Mich App ___, ___ (2018) (a single trial resulting in defendant’s
conviction for two inconsistent charges (assault with intent to do
great bodily harm less than murder and felonious assault) did
not violate his constitutional protection against double
jeopardy;17 however, it was improper for the trial court to allow
the inconsistent verdict to stand, and the Court affirmed the
assault with intent to do great bodily harm less than murder
conviction and vacated the felonious assault conviction).
a. Retrial Following Entry of a Directed Verdict of

Acquittal
When a trial court grants a defendant’s motion for a
directed verdict of acquittal, the prohibition against
double jeopardy generally prevents further action against
17See Section 9.10(B)(4)(c) and Section 12.15(B) for discussion of inconsistent verdicts.

the defendant based on the same charges. People v Nix

(Terressa), 453 Mich 619, 626-627 (1996). “However, the
trial court’s characterization of its ruling is not dispositive,
and what constitutes an ‘acquittal’ is not controlled by the
form of the action.” People v Mehall, 454 Mich 1, 5 (1997).
Rather, a reviewing court must “determine whether the
ruling of the judge, whatever its label, actually represents
a resolution, correct or not, of some or all of the factual
elements of the offense charged.” United States v Martin
Linen Supply Co, 430 US 564, 571 (1977); see also Mehall,
454 Mich at 5. “Retrial is not permitted if the trial court
evaluated the evidence and determined that it was legally
insufficient to sustain a conviction.” Id. at 6.
“[R]etrial is barred when a trial court grants an acquittal

because the prosecution . . . failed to prove an ‘element’ of
the offense that, in actuality, it did not have to prove.”
Evans v Michigan, 568 US 313, 317 (2013). In Evans, 568 US
at 315, “[w]hen the State of Michigan rested its case at [the
defendant’s] arson trial, the [trial] court entered a directed
verdict of acquittal, based upon its view that the State had
not provided sufficient evidence of a particular element of
the offense.” However, “the unproven ‘element’ was not
actually a required element at all.” Id. The United States
Supreme Court held that “a midtrial acquittal in these
circumstances is an acquittal for double jeopardy
purposes[.]” Id. at 316. Accordingly, the defendant’s “trial
ended in an acquittal when the trial court ruled the State
had failed to produce sufficient evidence of his guilt.” Id.
at 330. “The Double Jeopardy Clause thus bars retrial for
his offense and should have barred the State’s appeal.” Id.,
reversing People v Evans, 491 Mich 1 (2012).18
b. Retrial Following Mistrial19 Due to Deadlocked

Jury
Retrial after a mistrial due to a deadlocked jury does not
violate the Double Jeopardy Clause. Renico v Lett, 559 US
766, 773 (2010).
Where, “[b]efore the jury concluded deliberations . . . ,

[the jury foreperson] reported that [the jury] was
18
On April 5, 2013, the Michigan Supreme Court, “in conformity with the mandate of the Supreme Court
of the United States[]” in Evans, 568 US 313, entered an order vacating its judgment and opinion in Evans,
491 Mich 1, and affirming the judgment of the Wayne County Circuit Court. People v Evans, 453 Mich 959,
959-960 (2013).
19 See Chapter 12 for more information on mistrial.

unanimous against guilt on charges of capital murder and

first-degree murder, was deadlocked on manslaughter,
and had not voted on negligent homicide[,]” and where
the jury then continued deliberations before a mistrial
was declared because the jury remained hopelessly
deadlocked, the Double Jeopardy Clause did not bar the
defendant’s retrial on all of the charged offenses. Blueford
v Arkansas, 566 US 599, 601, 603-605, 610 (2012). Although
the jury was instructed to consider the offenses in order,
from greater to lesser, and to proceed to each lesser
offense only after agreeing that the defendant was not
guilty of the greater offenses, “the foreperson’s
announcement of the jury‘s unanimous votes on capital
and first-degree murder [did not] represent[] . . . a
resolution of some or all of the elements of those offenses
in [the defendant’s] favor.” Id. at 606. “The foreperson’s
report was not a final resolution of anything[,] . . . [and
t]he jurors in fact went back to the jury room to deliberate
further, even after the foreperson had delivered her
report[;]” because it was possible for the “jury to revisit
the offenses of capital and first-degree murder,
notwithstanding its earlier votes[,] . . . the foreperson’s
report prior to the end of deliberations lacked the finality
necessary to amount to an acquittal on those offenses[.]”
Id. at 606, 608.
c. Collateral Estoppel and Retrial in Situations

Involving Inconsistent Verdicts
“In criminal prosecutions, as in civil litigation, the issue-
preclusion [component of the Double Jeopardy Clause]
means that ‘when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any
future lawsuit.’” Bravo-Fernandez v United States, 580 US
___, ___ (2016), quoting Ashe v Swenson, 397 US 436, 443
(1970). “Collateral estoppel applies only where the basis
of the prior judgment can be ascertained clearly,
definitely, and unequivocally[,]” and “[i]n order for
collateral estoppel to operate as a bar to a subsequent
prosecution, the jury in the earlier [] proceeding must
necessarily have determined that [the] defendant was not
guilty of the [crime] charged in the prosecutor’s
complaint.” People v Gates (Gregory), 434 Mich 146, 158
(1990). “Particularly where it appears that a jury’s verdict
is the result of compromise, compassion, lenity, or
misunderstanding of the governing law, the
Government’s inability to gain [appellate] review

‘strongly militates against giving an acquittal [issue]

preclusive effect.’” Bravo-Fernandez, 580 US at ___ (citation
omitted; second alteration in original). “The inability of a
court to determine upon what basis an acquitting jury
reached its verdict, is, by itself, enough to preclude the
defense of collateral estoppel.” Gates (Gregory), 434 Mich
at 158. “The verdict in the first proceeding need not
explicitly have addressed the issue to be precluded,
however. The fact that a verdict is a general verdict may
make the determination of what issues have been decided
problematic, but it does not automatically bar the
application of collateral estoppel.” Id., citing Ashe, 397 US
at 444.
“[A]n appellate court’s vacatur of a conviction [does not]

alter[] issue-preclusion analysis under the Double
Jeopardy Clause[;]” accordingly, if “a jury returns
inconsistent verdicts, convicting on one count and
acquitting on another count, where both counts turn on
the very same issue of ultimate fact[,]” and an appellate
court vacates the conviction for legal error unrelated to
the verdicts’ inconsistency, retrial on the charge resulting
in conviction is not barred by the Double Jeopardy Clause
“when [the] verdict inconsistency renders unanswerable
‘what the jury necessarily decided.’” Bravo-Fernandez, 580
US at ___ (citation omitted). Accordingly, where the jury
returned inconsistent verdicts by convicting the
petitioners of bribery but acquitting them of two related
charges that were dependent on the standalone bribery
offense and turned on the same contested issue of fact, the
issue-preclusion component of the Double Jeopardy
Clause did not bar a subsequent prosecution for bribery
after the appellate court vacated the bribery convictions
for instructional error. Id. at ___. Under these
circumstances, the petitioners could not “establish the
factual predicate necessary to preclude the Government
from retrying them on the standalone [bribery] charges—
namely, that the jury in the first proceeding actually
decided that they did not violate the federal bribery
statute.” Id. at ___, ___ n 6, abrogating People v Wilson
(Dwayne), 496 Mich 91, 105-107 (2014) (which held that the
collateral-estoppel strand of Double Jeopardy Clause
jurisprudence barred retrial for felony murder where the
defendant was convicted of felony murder but
inconsistently acquitted of the only underlying felony
supporting the felony murder charge, and the felony
murder conviction was reversed on appeal for legal
error).

d. Cross-Over Collateral Estoppel and Criminal

Trial Following Civil Trial
Cross-over estoppel is “‘the application of collateral
estoppel in the civil-to-criminal context.’” People v Zitka,
325 Mich App 38, 45 (2018), quoting People v Trakhtenberg,
493 Mich 38, 48 (2012). “[I]n the body of case law applying
[the] principle [of collateral estoppel,] the vast majority of
cases involve the applicability of collateral estoppel where
there are two civil proceedings. Cases involving ‘cross-
over estoppel,’ where an issue adjudicated in a civil
proceeding is claimed to be precluded in a subsequent
criminal proceeding, or vice versa, are relatively recent
and rare.” Gates (Gregory), 434 Mich at 155. In Gates
(Gregory), 434 Mich at 150-151, 165, the Michigan Supreme
Court held that because the defendant’s guilt or innocence
was not necessarily determined by a jury verdict of “no
jurisdiction” in a child protective proceeding, the doctrine
of collateral estoppel did not preclude the subsequent
criminal prosecution of the defendant for criminal sexual
conduct.
In Trakhtenberg, 493 Mich at 42, 48-51, the Michigan

Supreme Court held that “[‘cross-over’] collateral
estoppel [could not] be applied to preclude review of a
criminal defendant’s claim of ineffective assistance of
counsel when a prior civil judgment held that defense
counsel’s performance did not amount to malpractice[,]”
because “[the] defendant did not have a full and fair
opportunity to litigate his [ineffective assistance of
counsel] claim in the [prior] malpractice proceeding.”
Noting that “[s]everal Court of Appeals opinions have
held that a criminal defense attorney may rely on the
doctrine of collateral estoppel in order to avoid
malpractice liability when a full and fair determination
was made in a previous criminal action that the same
client had received effective assistance of counsel[,]”20 the
Trakhtenberg Court stated that it nevertheless “must
hesitate to apply collateral estoppel . . . when the
government seeks to apply collateral estoppel to preclude
a criminal defendant’s claim of ineffective assistance of
counsel in light of a prior civil judgment that defense
counsel did not commit malpractice.” Id. at 48.
The trial court abused its discretion in granting the

defendants’ motion to quash on the basis of collateral
20 “See, e.g., Barrow v Pritchard, 235 Mich App 478, 484-485 (1999).” Trakhtenberg, 493 Mich at 48.

estoppel because the legality of the defendants’ actions

under state criminal law was not actually litigated in the
prior civil litigation involving compliance with local
ordinances. Zitka, 325 Mich App at 46, 47. Additionally,
the criminal action did not involve the same parties or
privity because the state lacked a protectable interest in a
civil action brought under local ordinance. Id. at 46, 47.
C. Multiple Punishments for the Same Offense

“The multiple punishments strand of double jeopardy ‘is designed to
ensure that courts confine their sentences to the limits established by
the Legislature’ and therefore acts as a ‘restraint on the prosecutor
and the Courts.’” People v Miller (Joseph), 498 Mich 13, 17-18 (2015)
(citation omitted).
“The multiple punishments strand is not violated ‘[w]here “a

legislature specifically authorizes cumulative punishment under two
statutes[.]”’” Miller (Joseph), 498 Mich at 18 (citations omitted).
“Conversely, where the Legislature expresses a clear intention in the
plain language of a statute to prohibit multiple punishments, it will
be a violation of the multiple punishments strand for a trial court to
cumulatively punish a defendant for both offenses in a single trial[;
‘t]hus, the question of what punishments are constitutionally
permissible is not different from the question of what punishments
the Legislative Branch intended to be imposed.’” Id. (citations
omitted).
“[W]hen considering whether two offenses are the ‘same offense’ in

the context of the multiple punishments strand of double
jeopardy, [a court] must first determine whether the statutory
language evinces a legislative intent with regard to the permissibility
of multiple punishments.” Miller (Joseph), 498 Mich at 19. “If the
legislative intent is clear, courts are required to abide by this intent.”
Id. “If, however, the legislative intent is not clear, courts must then
apply the abstract legal elements test articulated in [People v Ream, 481
Mich 223 (2008),] to discern legislative intent.” Miller (Joseph), 498
Mich at 19. The Ream test
“focuses on the statutory elements of the offense to

determine whether the Legislature intended for
multiple punishments. Under the abstract legal
elements test, it is not a violation of double jeopardy to
convict a defendant of multiple offenses if ‘each of the
offenses for which [the] defendant was convicted has an
element that the other does not . . . .’ This means that,
under the Ream test, two offenses will only be
considered the ‘same offense’ where it is impossible to

commit the greater offense without also committing the

lesser offense.” Miller (Joseph), 498 Mich at 19, citing
Ream, 481 Mich at 225-226, 238, 241.
“When the dispositive question is whether the Legislature intended

two convictions to result from a single statute, it presents a ‘unit of
prosecution’ issue[,]” and “[t]he question is whether the Legislature
intended a single criminal transaction to give rise to multiple
convictions.” People v Perry (Rodney), 317 Mich App 589, 602 (2016),
citing People v Wakeford, 418 Mich 95, 111-112 (1983). If “no conclusive
evidence of legislative intent can be discerned, the rule of lenity
requires the conclusion that separate punishments were not
intended.” Perry (Rodney), 317 Mich App at 604 (citations and
quotation marks omitted). However, if there is a “clear indication of
legislative intent and [an] absence of ambiguity, the rule of lenity does
not apply.” Id. at 605-606, citing Wakeford, 418 Mich at 113-114.
1. Caselaw Examples: No Double Jeopardy Violation

The following are examples of crimes requiring proof of an
element that the other does not, i.e., no double jeopardy
violations found:
• Armed robbery, MCL 750.529, and felonious

assault, MCL 750.82(1). People v Chambers (Billy),
277 Mich App 1, 8-9 (2007).
• Assault with intent to commit great bodily harm,

MCL 750.84, and felonious assault, MCL 750.82.
People v Strawther, 480 Mich 900 (2007).
• Second-degree murder, MCL 750.317, operating a

vehicle under the influence of intoxicating liquor
or a controlled substance (OUIL) causing death,
MCL 257.625(4), and operating a vehicle with a
suspended license causing death, MCL 257.904(4).
People v Bergman, 312 Mich App 471, 491, 492
(2015).
• First-degree felony murder, MCL 750.316(1)(b),

and the predicate felony of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1). Ream,
481 Mich at 240-241.
• Carjacking, MCL 750.529a, and assault with intent

to rob while armed, MCL 750.89. People v McGee
(Anthony), 280 Mich App 680, 684-685 (2008).
• Carjacking, MCL 750.529a, and unlawfully driving

away a motor vehicle (UDAA), MCL 750.413.

People v Cain (Darryl) (Cain II), 495 Mich 874, 874-

875 (2013).
• First-degree criminal sexual conduct (CSC-I), MCL

750.520b(1)(a), and second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(1)(a). People v
Duenaz, 306 Mich App 85, 115 (2014).
• First-degree criminal sexual conduct (CSC-I), MCL

750.520b(1)(c), and third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c). People v
Garland, 286 Mich App 1, 5-6 (2009).
• Prisoner in possession of a controlled substance,

MCL 801.263(2), and delivery of marijuana, MCL
333.7401(2)(d)(iii). People v Williams (Robert), 294
Mich App 461, 468-470 (2011).
• Refusing or resisting collection of biometric data,

MCL 28.243a(1), and resisting, obstructing, or
assaulting a police officer, MCL 750.81d(1). People v
Kammeraad, 307 Mich App 98, 144-145 (2014).
• Resisting, obstructing, or assaulting a police

officer, MCL 750.81d(1), and assault of a prison
employee, MCL 750.197c(1). Kammeraad, 307 Mich
App at 145.
• Unlawful imprisonment, MCL 750.349b, and

assault with a dangerous weapon (felonious
assault), MCL 750.82. People v Bosca, 310 Mich App
1, 41-42 (2015).
• Possession of a firearm during the commission of a

felony (felony-firearm), MCL 750.227b, when
receiving or concealing stolen firearms or
ammunition, MCL 750.535b, is the predicate
felony. People v Mitchell, 456 Mich 693, 694-695
(1998).
• Possession of a firearm during the commission of a

felony (felony-firearm), MCL 750.227b, and
carrying a concealed weapon (CCW), MCL
750.227. People v Sturgis, 427 Mich 392, 396, 409-410
(1986).
• First-degree home invasion, MCL 750.110a(2), and

felonious assault, MCL 750.82. People v Conley
(Aaron), 270 Mich App 301, 311-312 (2006).
• Possession and delivery of the same controlled

substance, People v Dickinson, 321 Mich App 1, 4-5

(2017), or possession and manufacture of the same

controlled substance, People v Baham, 321 Mich
App 228, 245-250 (2017).
• A single conviction for one count of first-degree

murder supported by two theories (e.g.,
premeditated murder and felony murder). People v
Bigelow, 229 Mich App 218 (1998). See also People v
Williams (Joezell), 475 Mich 101, 103-105 (2006).
2. Caselaw Examples: Double Jeopardy Violation

The following are examples of crimes requiring proof of the
same elements, i.e., double jeopardy violations found:
• Operating while intoxicated (OWI), MCL

257.625(1), and operating while intoxicated
causing serious impairment of the body function of
another person (OWI-injury), MCL 257.625(5).
Miller (Joseph), 498 Mich at 15, 25-26.
• Assault with intent to rob while armed, MCL

750.89, and armed robbery, MCL 750.529. People v
Gibbs (Phillip), 299 Mich App 473, 488-491 (2013).
• Two separate counts of first-degree home invasion,

MCL 750.110a(2), where there was only one home
invasion supported by two theories. People v Baker,
288 Mich App 378, 386 (2010).
• Operating/maintaining a methamphetamine
laboratory, MCL 333.7401c(2)(a), and operating/
maintaining a methamphetamine laboratory
within 500 feet of a residence, MCL
333.7401c(2)(d). People v Meshell, 265 Mich App 616,
630-633 (2005).
• Aggravated indecent exposure, MCL 750.335a(1)

and MCL 750.335a(2)(b), and indecent exposure,
MCL 750.335a(1) and MCL 750.335a(2)(a). People v
Franklin (John), 298 Mich App 539, 547 (2012).
A double jeopardy challenge presents a question of constitutional law
that is reviewed de novo. People v Conley (Aaron), 270 Mich App 301,
310 (2006).

9.11 Speedy Trial
A. Right to a Speedy Trial

The right to a speedy trial is guaranteed to criminal defendants by the
federal and Michigan Constitutions, as well as by statute. US Const,
Am VI; Const 1963, art 1, § 20; MCL 768.1. “The defendant and the
people are entitled to a speedy trial and to a speedy resolution of all
matters before the court.” MCR 6.004(A).21 “‘The time for judging
whether the right to a speedy trial has been violated runs from the
date of the defendant’s arrest.’” People v Patton, 285 Mich App 229, 236
(2009), quoting People v Williams (Cleveland), 475 Mich 245, 261 (2006).
“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). To preserve the issue of speedy trial for
appeal, a defendant must make a formal demand for a speedy trial on
the record. People v Cain (Janice), 238 Mich App 95, 111 (1999).
In deciding whether a defendant has been afforded a speedy trial, the

Michigan Supreme Court adopted the four-part balancing established
by the United States Supreme Court in Barker v Wingo, 407 US 514
(1972). People v Collins (Harold), 388 Mich 680 (1972). When a
defendant claims a violation of the right to a speedy trial, the trial
court must consider four factors: (1) the length of delay; (2) the
reasons for the delay; (3) the defendant’s assertion of the right; and (4)
any prejudice to the defendant. People v McLaughlin, 258 Mich App
635, 644 (2003).
B. Length of the Delay

“Although not determinative of a speedy trial claim, length of delay is
a factor that triggers an investigation of the speedy trial issue.” People
v Hammond, 84 Mich App 60, 67 (1978). 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 (Hank), 207 Mich App 47, 51 (1994). For a delay of 18 months or
more, prejudice to the defendant is presumed and the burden shifts to
the prosecution to rebut the presumption. People v Collins (Harold), 388
Mich 680, 695 (1972). Where the delay following a defendant’s arrest is
21
The Sixth Amendment’s Speedy Trial Clause “does not apply once a defendant has been found guilty at
trial or has pleaded guilty to criminal charges[,]” and therefore does not “apply to the sentencing phase of
a criminal prosecution[.]” Betterman v Montana, 578 US ___, ___ (2016) (holding “that the Clause does
not apply to delayed sentencing[]”). However, “although the Speedy Trial Clause does not govern[
inordinate delay in sentencing], a defendant may have other recourse, including, in appropriate
circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Id.
at ___.

less than 18 months, the defendant bears the burden of showing

prejudice by reason of the delay. See id.
C. Reasons for the Delay

Regarding the second prong—reasons for delay—the court balances
the conduct of both the prosecution and the defendant. Collins
(Harold), 388 Mich at 690. “The reasons for delay are examined by [the
court] and each period of delay is assigned to either the prosecutor or
the defendant.” People v Ross (Edward), 145 Mich App 483, 491 (1985).
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 81, 92, 94 (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 94.
“[I]f the defendant has not contributed to the delay, a period of

otherwise unexplained inaction in excess of 180 days in the
prosecution of a charge pending against an inmate is per se a
violation of the statute, unless the people make an affirmative
showing of exceptional and unavoidable circumstances which
hamper the normally efficient functioning of the trial courts.” People v
Forrest, 72 Mich App 266, 273 (1976).
“Where a delay is unexplained, it is charged to the prosecution.” Ross

(Edward), 145 Mich App at 491. “Although delays inherent in the court
system, e.g., docket congestion, ‘are technically attributable to the
prosecution, they are given a neutral tint and are assigned only
minimal weight in determining whether a defendant was denied a
speedy trial.’” People v Gilmore, 222 Mich App 442, 460 (1997), quoting
People v Wickham, 200 Mich App 106, 111 (1993).
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, 286 Mich App 634, 664 (2009), quoting People v Missouri,
100 Mich App 310, 321 (1980).
D. Assertion of the Right

A defendant’s assertion of his or her right to a speedy trial is the third
factor the court must consider in determining whether the right to a
speedy trial has been violated. Cain (Janice), 238 Mich App at 112.
While failure to assert the right to a speedy trial does not

automatically constitute a waiver of the right, it is strong evidentiary

support for the conclusion that the defendant’s right was not violated.
Collins (Harold), 388 Mich at 692-694. In People v Missouri, 100 Mich
App 310, 322 (1980), the Court of Appeals concluded that the
defendants’ assertion of the right to a speedy trial two weeks before
trial and nearly 30 months after indictment was strong evidence that
the delay had not caused a serious deprivation of their right to a
speedy trial.
E. Resulting Prejudice
The final inquiry into a claim of a speedy trial violation is whether the
defendant experienced any prejudice as a result of the delay. Collins
(Harold), 388 Mich at 694. There are two types of prejudice a
defendant may experience: (1) prejudice to his or her person; and (2)
prejudice to his or her defense. Id. at 694. “Prejudice to his [or her]
person would take the form of oppressive pretrial incarceration
leading to anxiety and concern.” Id. “Prejudice to his [or her] defense
might include key witnesses being unavailable.” Id. “Impairment of
defense is the most serious, ‘because the inability of a defendant to
adequately prepare his [or her] case skews the fairness of the entire
system.’” Id., quoting Barker, 407 US at 514.
General allegations of possible prejudice (e.g., witness’s memories

fade, financial burden) are insufficient. Gilmore, 222 Mich App at 462.
Rather, a defendant must “specifically argue[] how the delay caused
him [or her] prejudice.” People v Rivera, 301 Mich App 188, 194 (2013)
(the defendant’s “general statement that being in prison on unrelated
charges for 10 months caused prejudice[]” did not constitute a “basis .
. . to conclude that [he] was denied his right to a speedy trial[]”).
F. Recognizance Release
“MCR 6.004(C) . . . allows for the release on bond of defendants who
are jailed for more than 180 days as a result of pending charges.”
People v Lown, 488 Mich 242, 249 (2011). Specifically, MCR 6.004(C)
provides:
“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,
(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.” MCR 6.004(C).
G. Untried Charges Against State Prisoners—180-Day Rule

MCR 6.004(D)(1) provides that, except for crimes exempted by MCL
780.131(2)22:
22MCL
780.131(2) exempts crimes committed by a state correctional facility inmate while incarcerated in
the facility or after the inmate has escaped but before being returned to Department of Corrections
custody.

“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.” See also MCL 780.131.
MCR 6.004(D)(2) sets out the remedy for a violation of the 180-day
rule:
“In the event that action is not commenced on the

matter for which request for disposition was made as
required in [MCR 6.004(D)(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.” See MCL
780.133.
The 180-day rule does not require that trial be commenced within 180
days, but rather, that the prosecution make good-faith efforts on the
case during the 180-day period, and that the prosecution then
promptly proceed to prepare the case for trial. People v Hendershot, 357
Mich 300, 304 (1959). If the prosecution takes preliminary action
within the 180-day period but the initial action is followed by
inexcusable delay that shows an intent not to promptly bring the case
to trial, the court may find the absence of good-faith action and
dismiss the case. Id. at 303-304. For example, in People v Davis
(Michael), 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 (Michael), 283 Mich App at 743. See also Lown, 488
Mich at 246-247 (180-day rule was satisfied where the prosecutor
commenced action within 180 days after receiving notice from the
Department of Corrections, proceeded promptly to prepare the case
for trial, and was ready for trial within the 180-day period).
The statutory time period of 180 days begins to 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.” People v
Williams (Cleveland), 475 Mich 245, 259 (2006), overruling
People v Hill (James), 402 Mich 272 (1978), and People v
Castelli, 370 Mich 147 (1963), to the extent they were
inconsistent with MCL 780.131.
See also Rivera, 301 Mich App at 192 (noting that “[t]he clear language
of MCL 780.131(1) provides that the MDOC must send written notice,
by certified mail, to the prosecutor to trigger the 180-day
requirement[,]” and holding that because “the MDOC sent a notice to
the district court[] . . . [but] did not send, by certified mail, a notice to
the prosecuting attorney[,] . . . the 180-day rule was never triggered,
so it could not have been violated[]”).
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. Williams (Cleveland), 475 Mich at 254-255 (2006),
overruling People v Smith (Rosie), 438 Mich 715 (1991), to the extent of
its inconsistency with MCL 780.131.
H. Extradition and Detainers

The Michigan statutes concerning extradition are found in the
Michigan Code of Criminal Procedure. See MCL 776.9—MCL 776.13.
A thorough discussion of extradition law is beyond the scope of this
benchbook. For general information concerning extradition, see
Extradition To and From the United States: Overview of the Law and Recent
Treaties; see also Wikipedia, Extradition law in the United States.
“The purpose of the [Interstate Agreement on Detainers (IAD)] is to

facilitate the prompt disposition of outstanding charges against an
inmate incarcerated in another jurisdiction.” People v Patton, 285 Mich
App 229, 232 (2009). A detainer, under the IAD, MCL 780.601 et seq., is
generally defined as “a notification filed with the institution in which
an individual is serving a sentence, advising that the prisoner is

wanted to face pending charges in the notifying state.” People v Shue,
145 Mich App 64, 70 (1985). “‘Once a detainer is filed, it is then that
the IAD is triggered and compliance with the provisions of the
agreement is required.’” Patton, 285 Mich App at 232, quoting People v
Gallego (Luis), 199 Mich App 566, 574 (1993). The IAD applies only to
prisoners serving a prison sentence; it does not apply to a person in
custody awaiting extradition. People v Monasterski, 105 Mich App 645,
653 (1981).
Article III of the IAD involves prisoner-initiated extradition and

requires the prisoner to be brought to trial within 180 days after
delivering to the prosecutor and appropriate court notice of
imprisonment and a request for a final disposition, unless good cause
is showing to grant a necessary or reasonable continuance. MCL
780.601, Article III(a); People v Waclawski, 286 Mich App 634, 646
(2009). See People v Swafford, 483 Mich 1 (2009), and People v Duenaz,
306 Mich App 85 (2014), for more detailed information on Article III
of the IAD.
Article IV(c) of the IAD involves prosecutor-initiated extradition and

requires trial to commence within 120 days of the prisoner’s arrival in
the state, unless good cause is shown to grant a necessary or
reasonable continuance. MCL 780.601, Article IV(c); Waclawski, 286
Mich App at 646; People v Harris (Michael), 148 Mich App 506, 513
(1986). See Harris (Michael), 148 Mich App 506, and People v Stone, 269
Mich App 240 (2005), for more detailed information on Article IV of
the IAD.
I. Standard of Review
“Whether a defendant was denied his [or her] constitutional right to a
speedy trial is a mixed question of law and fact.” Gilmore, 222 Mich
App at 459. Factual findings are reviewed for clear error, and
constitutional questions of law are reviewed de novo. Id.
Part C: Pretrial Motions to Suppress Evidence23
23 See Chapter 11 for discussion of suppression of evidence on Fourth Amendment grounds.

9.12 Motion to Suppress Evidence
A. Timing
Generally, “[a] motion to suppress evidence must be made in advance
of trial[.]” People v Manning, 243 Mich App 615, 625 (2000). However, a
motion to suppress evidence may be made during trial, within the
trial court’s discretion. People v Ferguson, 376 Mich 90, 93-94 (1965);
People v Gentner, Inc, 262 Mich App 363, 368 (2004). The trial court
need not permit an untimely motion to suppress when the factual
circumstances giving rise to the issue were known to the defendant
before trial and could have been raised in advance. Ferguson, 376 Mich
at 94-95.
B. Evidentiary Hearing
“By filing [a] motion to suppress prior to trial, the defendant . . .
follow[s] the proper procedure[, and] the trial judge act[s] correctly by
holding a separate evidentiary hearing to consider the ruling.” People
v Kinnebrew, 75 Mich App 81, 83 (1977). However, “a motion to
suppress [may be] decided on the basis of the record of the
preliminary examination” transcript if the parties so stipulate. People
v Kaufman, 457 Mich 266, 276 (1998); MCR 6.110(D)(2). If the
defendant testifies at an evidentiary hearing, the defendant’s
testimony is not admissible at trial on the question of guilt or
innocence. People v Walker (Lee), 374 Mich 331, 338 (1965).
C. Interlocutory Appeal
MCR 7.205(F)(3) provides:
“Where the trial court makes a decision on the

admissibility of evidence and the prosecutor or the
defendant files an interlocutory application for leave to
appeal seeking to reverse that decision, the trial court
shall stay proceedings pending resolution of the
application in the Court of Appeals, unless the trial
court makes findings that the evidence is clearly
cumulative or that an appeal is frivolous because legal
precedent is clearly against the party’s position. The
appealing party must pursue the appeal as
expeditiously as practicable, and the Court of Appeals
shall consider the matter under the same priority as that
granted to an interlocutory criminal appeal under MCR
7.213(C)(1). If the application for leave to appeal is filed
by the prosecutor and the defendant is incarcerated, the

defendant may request that the trial court reconsider

whether pretrial release is appropriate.”
A trial court’s factual findings at a suppression hearing are reviewed
for clear error, and the ultimate ruling on a motion to suppress is
reviewed de novo. People v Jones (Jeffrey), 279 Mich App 86, 90 (2008).
9.13 Motion to Suppress Identification of Defendant
A. Generally
Identification testimony is admissible unless a pretrial identification
procedure was impermissibly suggestive; however, even if a pretrial
identification procedure was impermissibly suggestive, identification
testimony is admissible if it did not create a substantial risk of
misidentification considering the totality of the circumstances.
Manson v Brathwaite, 432 US 98, 110, 114 (1977); Neil v Biggers, 409 US
188, 199-200 (1972). “‘[D]ue process protects the accused against the
introduction of evidence of, or tainted by, unreliable pretrial
identifications obtained through unnecessarily suggestive
procedures.’” People v Hickman, 470 Mich 602, 607 (2004), quoting
Moore v Illinois, 434 US 220, 227 (1977).
In assessing the reliability of the identification testimony in light of

the suggestive identification procedure, the court must consider:
• The opportunity of the witness to observe the criminal at

the time of the crime;
• The degree of attention of the witness at the time of the

crime;
• The accuracy of the witness’s prior description of the

criminal;
• The level of certainty demonstrated by the witness at

pretrial confrontation; and
• The length of time between the crime and the pretrial

confrontation. Manson, 432 US at 114.
“[T]rial court[s] should be aware of the benefits of conducting a

Wade[24] hearing when identification is an issue.” People v Baker, 103
Mich App 255, 258 (1981). “Where the risk of a tainted in-court
24 United States v Wade, 388 US 218 (1967).

identification is alleged, this procedure is a useful tool to aid the trial

court’s determination of whether an independent basis for that
identification exists.” Id.
“Given the scope of human diversity,” a witness is not required to

“accurately guess the age of another person—at least, one who is
neither obviously a child nor obviously a senior—with any more
precision than a decade or so, especially on the basis of a single visual
interaction with little context from which an age could otherwise be
deduced.” People v Ratcliff, 299 Mich App 625, 629 (2013), vacated in
part on other grounds 495 Mich 876 (2013)25 (a robbery victim’s
statement that the perpetrator “appeared to be in his twenties,” where
the defendant was actually 17, did not render the identification
“inherently unreliable or implausible”).
“Any discrepancy between [a witness’s] initial description and [a]

defendant’s actual appearance is relevant to the weight of such
evidence, not to its admissibility.” People v Davis (Thomas), 241 Mich
App 697, 705 (2000).
If 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 (at a separate evidentiary hearing held outside
the presence of the jury) that the in-court identification is based on
observations of the suspect independent of the illegal pretrial
identification. People v Gray (Allen), 457 Mich 107, 115 (1998).
“An appellate court reviews a trial court’s determination following a

Wade hearing by examining the totality of the circumstances
surrounding the challenged pretrial identification and determining
whether those procedures were so impermissibly suggestive that they
gave rise to a substantial likelihood of misidentification.” People v
Hampton, 138 Mich App 235, 238 (1984).
B. Right to Counsel
Absent an intelligent waiver by the defendant, counsel is required to
be present at a lineup. People v Frazier (Corey), 478 Mich 231, 244 n 11
(2007), citing Wade (Billy), 388 US at 237. However, “the right to
counsel attaches only to corporeal identifications conducted at or
after the initiation of adversarial judicial criminal proceedings.”

Hickman, 470 Mich at 603. In Hickman, 470 Mich at 610, 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 its previous
decision in People v Anderson (Franklin), 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, 470 Mich at 605. However,
“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 unnecessarily
suggestive procedures. Id. at 607.
The defendant was not entitled to a corporeal lineup with counsel

rather than a photographic lineup where he was in custody for
another offense at the time of the lineup; under Hickman, 470 Mich at
607, “a defendant’s right to counsel ‘attaches only to . . . [an]
identification conducted at or after the initiation of adversarial
judicial proceedings[,]’” and adversarial proceedings for the subject
offense had not yet been initiated when the photographic lineup
occurred. People v Perry (Rodney), 317 Mich App 589, 596-597 (2016)
(extending the reasoning of Hickman, 470 Mich at 603-604, 607-609—
which addressed a corporeal identification—to a photographic lineup).
There is no right to counsel at precustodial investigatory

photographic lineups. People v Kurylczyk, 443 Mich 289, 302 (1993). In
Hickman, 470 Mich at 609 n 4, the Michigan Supreme Court declined
to address whether a defendant has the right to an attorney during a
photographic lineup after the initiation of adversarial judicial
proceedings, because Hickman involved a corporeal identification
conducted before the initiation of adversarial judicial proceedings.
There is no right to have counsel present at a post-lineup interview of

a witness. People v Sawyer, 222 Mich App 1, 3-4 (1997).
The prosecution has the burden of proving by clear and convincing

evidence that the defendant waived his or her right to counsel. People
v Daniels (Chris), 39 Mich App 94, 96-97 (1972). Additionally, “for
identifications made at a confrontation out of the presence of [the]
defendant’s attorney, the burden is on the prosecution to show
fairness.” People v Young (Donnie), 21 Mich App 684, 693-694 (1970).
“When counsel is present at the lineup, the burden is on the
defendant to prove [that] the lineup was impermissibly suggestive.”
People v Morton, 77 Mich App 240, 244 (1977).

C. Evaluating a Lineup’s Suggestiveness

A lineup may be so suggestive and conducive to irreparable
misidentification that an accused is denied due process of law. Stovall
v Denno, 388 US 293, 301-302 (1967). “[D]ue process concerns arise . . .
when law enforcement officers use an identification procedure that is
both suggestive and unnecessary.” Perry v New Hampshire, 565 US 228,
238-239 (2012). When the police use such a procedure, “due process
requires courts to assess, on a case-by-case basis, whether improper
police conduct created a ‘substantial likelihood of misidentification.’”
Id. at 239, quoting Neil v Biggers, 409 US 188, 201 (1972). “Where the
‘indicators of [a witness’s] ability to make an accurate identification’
are ‘outweighed by the corrupting effect’ of law enforcement
suggestion, the identification should be suppressed[;] [o]therwise, the
evidence (if admissible in all other respects) should be submitted to
the jury.” Perry, 565 US at 239, quoting Manson, 432 US at 114, 116.
A court must consider the totality of the circumstances to determine

whether an identification procedure is fair. People v Kurylczyk, 443
Mich 289, 311-312 (1993). “The fairness of an identification procedure
is evaluated in light of the totality of the circumstances.” People v
Davis (Melvin), 146 Mich App 537, 548 (1985). However, “the Due
Process Clause does not require a preliminary judicial inquiry into the
reliability of an eyewitness identification when the identification was
not procured under unnecessarily suggestive circumstances arranged
by law enforcement.” Perry, 565 US at 238. Rather, “[w]hen no
improper law enforcement activity is involved, . . . it suffices to test
reliability through the rights and opportunities generally designed for
that purpose, notably, the presence of counsel at postindictment
lineups, vigorous cross-examination, protective rules of evidence, and
jury instructions on both the fallibility of eyewitness identification
and the requirement that guilt be proved beyond a reasonable doubt.”
Id. at 233, 234, 240 (where an eyewitness, in response to a police
officer’s request for a more specific description of the perpetrator of a
theft, pointed out her window at the petitioner, who was standing
near another officer, the trial court did not err in denying the
petitioner’s motion to suppress the identification without first
conducting a preliminary assessment of its reliability; no such inquiry
was required because “law enforcement officials did not arrange the
suggestive circumstances surrounding [the] identification[]”).
• Physical Differences of Lineup Participants
“‘Physical differences among the lineup participants do not

necessarily render the procedure defective and are significant only to
the extent that they are apparent to the witness and substantially
distinguish the defendant from the other lineup participants.’” People
v Craft, ___ Mich App ___, ___ (2018), quoting People v Hornsby, 251

Mich App 462, 466 (2002). “Generally, physical differences affect the
weight of an identification, not its admissibility.” Craft, ___ Mich App
at ___ (holding that defendant had not met his burden to show
entitlement to a Wade26 hearing). Identification of the defendant was
not impermissibly suggestive merely because “there was some
variance between the heights and weights” of the participants when
defendant ranked “somewhere in the lower-middle of the sample[.]”
Craft, ___ Mich App at ___. The defendant also failed to establish that
there were “any marked differences in complexion” or “marked
variance in the physical build” among the participants that would
substantially distinguish defendant. Id. at ___.
• Attire of Lineup Participants
“[I]t is generally preferable to present lineup participants in attire

which is not indicative of their confinement (or alternatively to
present all lineup participants in jailhouse attire).” Craft, ___ Mich
App at ___. However, in Craft, the “defendant [failed to show] that the
lineup was so suggestive as to distinguish substantially [him] from
the other participants” where he was one of two participants wearing
an orange jumpsuit. Id. at ___ (holding any error in the admission of
identification of defendant would have been harmless in light of
“[s]everal other pieces of evidence presented at trial [that] tended to
establish defendant’s identity”).
D. Photo Lineup
A photographic lineup should generally not be used if a suspect is in
custody or if the suspect could be compelled to take part in a
corporeal lineup. People v Strand, 213 Mich App 100, 104 (1995)
(photographic lineup was permissible because defendant not in
custody at the time; because he was also not under arrest, he could
not be compelled to participate in a corporeal lineup). “However, this
rule is subject to certain exceptions, including situations in which a
corporeal lineup is not feasible because ‘there are insufficient
numbers of persons available with the defendant’s physical
characteristics.’” People v Cain (Darryl) (Cain I), 299 Mich App 27, 47-
48 (2012), vacated in part on other grounds by People v Cain (Darryl)
(Cain II), 495 Mich 874 (2013),27 quoting People v Currelley, 99 Mich
App 561, 564 (1980) (“there were not enough young black men with
similar physical characteristics to [the] defendant]” and “[u]nder the
26 United States v Wade, 388 US 218 (1967).

circumstances, a photographic lineup was clearly proper[ because

the] defendant would have suffered significant prejudice if he had
been placed in a corporeal lineup with men of difference races or
ages”).
“A photographic identification procedure violates a defendant’s right

to due process of law when it is so impermissibly suggestive that it
gives rise to a substantial likelihood of misidentification.” Gray
(Allen), 457 Mich at 111. The same standard of “unduly suggestive”
applies to photo lineups as well as corporeal lineups:
“[A] suggestive lineup is not necessarily a

constitutionally defective one. Rather, a suggestive
lineup is improper only if under the totality of the
circumstances there is a substantial likelihood of
misidentification. The relevant inquiry, therefore, is not
whether the lineup photograph was suggestive, but
whether it was unduly suggestive in light of all of the
circumstances surrounding the identification.” People v
Kurylczyk, 443 Mich 289, 306 (1993) (internal citation
omitted).
A trial court does not clearly err in allowing identification testimony

based on a photographic lineup where the defendant “does not
indicate any unique differences about his [or her] photograph that
served to make the lineup unduly suggestive and there are none
apparent on the record[.]” People v Henry (After Remand), 305 Mich
App 127, 161 (2014).
“[P]lacing [a] defendant’s photograph first in a lineup is [not]

inherently suggestive, and in a random assortment the first slot is no
less [sic] likely than any other.” People v Blevins, 314 Mich App 339,
350 (2016). However, showing a witness only a single photograph or a
group in which one person is singled out can be impermissibly
suggestive. Gray (Allen), 457 Mich at 111. For example, “the police
officer’s presentation of a single photograph to the victim
accompanied by the question ‘was this the guy who shot you?’ was
highly suggestive[,]” and “insufficient record evidence exist[ed] to
conclude that the trial court erred when, in determining whether the
suggestive procedure was necessary under the circumstances, it . . .
did not find that exigency required an expedited identification
procedure or that a less suggestive identification procedure would
have been too burdensome to conduct[.]” People v Thomas (Elisah), 501
Mich 913, 913 (2017). The trial court appropriately “determined that
the identification was unreliable under the totality of
circumstances[]” where “the victim viewed the assailant’s partially
obscured face for no more than seven seconds on a dark city street
with no streetlights while a gun was pointed at him[, t]he description
the victim gave to police officers was generic and could have
described many young men in the area[, and] . . . the victim’s

description of the assailant changed[;]” furthermore, “the trial court
did not err in determining that the victim’s in-court identification
lacked an independent basis sufficient to ‘purge the taint caused by
the illegal’ identification procedure[.]” Id. at 913-914 (citations
omitted).
Nevertheless, the use of a single photograph “only to help confirm the

identity of the person the witness had already identified[ as
defendant]—using a nickname—as the [perpetrator of a murder]” did
not violate due process where “[t]he witness testified that he knew,
and grew up with, the [defendant].” People v Woolfolk, 304 Mich App
450, 457-458 (2014), aff’d on other grounds 497 Mich 23 (2014) (citing
Kurylczyk, 443 Mich at 302-303, and Gray (Allen), 457 Mich at 111, 114-
115, and holding that “the prior relationship and the witness’s
identification of the [defendant] by name before seeing the
photograph established an untainted, independent basis for the in-
court identification”).
In Blevins, 314 Mich App at 350, the Court of Appeals rejected, as

“pure speculation,” the defendant’s argument that because
“[photographic] lineups [in which he was identified] were not
‘double blind,’ . . . the officers conducting the lineup[s] might have
subtly or unconsciously suggested a ‘correct’ choice to the witnesses.”
The defendant “had ample opportunity to argue why the specific
witnesses against him should have been deemed unreliable,” and
“[a]ny infirmities [in the witnesses’ testimony] either were or could
have been presented to the jury, . . . [which] was properly instructed
to consider these infirmities.” Id. at 350.
E. Defendant’s Request for a Lineup

A trial court has discretion to grant a defendant’s motion for a lineup.
People v McAllister, 241 Mich App 466, 471 (2000). “A right to a lineup
arises when eyewitness identification has been shown to be a material
issue and when there is a reasonable likelihood of mistaken
identification that a lineup would tend to resolve.” Id. at 471. “[T]here
is a due process right to a lineup in an appropriate case.” People v
Gwinn, 111 Mich App 223, 249 (1981) (internal quotation omitted).
Considerations include “the benefits to an accused, the burden to the
prosecution, police, courts, and witnesses, and the timeliness of the
motion involved.” Id. at 249.
“[A] trial court’s decision to admit identification evidence will not be
reversed unless it is clearly erroneous.” People v Harris (Isaiah), 261
Mich App 44, 51 (2004). “Clear error exists if the reviewing court is
left with a definite and firm conviction that a mistake has been
made.” Id.

Chapter 10: Mens Rea Requirements and
Selected Defenses
10.1 Mens Rea and Criminal Liability ......................................................... 10-2

10.2 Defenses Involving a Defendant’s Mental Status............................... 10-4
10.3 Entrapment ...................................................................................... 10-22
10.4 Alibi Defense .................................................................................... 10-25

10.1 Mens Rea and Criminal Liability

MCL 8.9, which applies to certain crimes committed on or after January
1, 2016,1 sets out general criminal liability and statutory construction
standards for determining the culpable mental state that is required for a
criminal offense.
A. Applicability
MCL 8.9 applies only to crimes committed on or after January 1, 2016.
See MCL 8.9(1).
MCL 8.9(7) provides that MCL 8.9 “does not apply to, and shall not be
construed to affect, crimes under[:]”
• the Michigan Vehicle Code, MCL 257.1 et seq.;
• the Public Health Code, MCL 333.1101 et seq.;
• the Identity Theft Protection Act, MCL 445.61 et seq.;
• the Michigan Penal Code, MCL 750.1 et seq.; or
• Chapter 752 of the Michigan Compiled Laws.
B. General Criminal Liability Standards

“Except as otherwise provided in [MCL 8.9], a person is

not guilty of a criminal offense committed on or after
January 1, 2016 unless both of the following apply:
(a) The person’s criminal liability is based on
conduct that includes either a voluntary act or an
omission to perform an act or duty that the person
is capable of performing.
(b) The person has the requisite degree of

culpability for each element of the offense as to
which a culpable mental state is specified by the
language defining the offense.”
MCL 8.9(8)-(9) provide:
“(8) If a statute defining an offense prescribes a culpable

mental state but does not specify the element to which it
1 MCL 8.9 was added by 2015 PA 250, effective December 22, 2015.

applies, the prescribed culpable mental state applies to

each material element of the offense that necessarily
requires a culpable mental state.
(9) The mere absence of a specified state of mind for an

element of a covered offense shall not be construed to
mean that the legislature affirmatively intended not to
require the prosecution to prove any state of mind.”
C. Strict Liability
“If the statutory language defining a criminal offense

does not specify any degree of culpability and plainly
imposes strict criminal liability for the conduct
described in the statute, then culpability is not required
for a person to be guilty of the offense. The fact that a
subsection of a statute plainly imposes strict liability for
an offense defined in that subsection does not by itself
plainly impose strict criminal liability for an offense
defined in another subsection of that statute that does
not specify a degree of culpability.”
D. Degree of Culpability Satisfying Intent, Knowledge, or

Recklessness Requirement
“If a statute defining a criminal offense provides

that negligence suffices to establish an element of
the offense, then intent, knowledge, or recklessness
is also sufficient culpability to satisfy that element.
If recklessness suffices to establish an element of an
offense, then knowledge or intent is also sufficient
culpability to satisfy that element. If knowledge
suffices to establish an element of an offense, then
intent is also sufficient culpability to satisfy that
element.”
E. Unspecified Mens Rea

“Except as provided in [MCL 8.9(4)], if statutory

language defining an element of a criminal offense that
is related to knowledge or intent or as to which mens
rea could reasonably be applied neither specifies

culpability nor plainly imposes strict liability, the

element of the offense is established only if a person acts
with intent, knowledge, or recklessness.”
MCL 8.9(4) provides, however, that MCL 8.9(3) “does not relieve the
prosecution of the burden of proving the culpable mental state
required by any definition incorporated into the offense.”
F. Voluntary Intoxication2
“It is not a defense to a crime that the defendant was, at

the time the crime occurred, under the influence of or
impaired by a voluntarily and knowingly consumed
alcoholic liquor, drug, including a controlled substance,
other substance or compound, or combination of
alcoholic liquor, drug, or other substance or compound.
However, it is an affirmative defense to a specific intent
crime, for which the defendant has the burden of proof
by a preponderance of the evidence, that he or she
voluntarily ingested a legally obtained and properly
used medication or other substance and did not know
and reasonably should not have known that he or she
would become intoxicated or impaired.”3
See Section 10.2(E) for additional discussion of intoxication as a

defense.
10.2 Defenses Involving a Defendant’s Mental Status4
A. Competence To Stand Trial

“‘[T]he failure to observe procedures adequate to protect a
defendant’s right not to be tried or convicted while incompetent to
stand trial deprives him [or her] of his [or her] due process right to a
fair trial.’” People v Kammeraad, 307 Mich App 98, 137 (2014), quoting
Drope v Missouri, 420 US 162, 172 (1975) (first alteration in original).
2 See Section 10.2(E) for additional discussion of intoxication as a defense.
3 See also MCL 768.37, which contains substantially similar language.
4
This section addresses the competency provisions of the Mental Health Code, MCL 330.2020 et seq., as
they apply in criminal proceedings. For discussion of competency determinations in juvenile delinquency
proceedings, governed by MCL 330.2060—MCL 330.2074 and MCL 712A.18n—MCL 712A.18s, see the
Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 7.

“The protection afforded by the Due Process Clause requires that a

court sua sponte hold a hearing regarding competency when any
evidence raises a bona fide doubt about the competency of the
defendant.” In re Carey, 241 Mich App 222, 227-228 (2000). See US
Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17; Cooper v
Oklahoma, 517 US 348, 355-356 (1996) (a state may not proceed with a
criminal trial after the defendant has demonstrated that he or she is
more likely than not incompetent); Pate v Robinson, 383 US 375, 385-
386 (1966) (where evidence introduced at trial on behalf of the
accused raised a bona fide doubt as to his competence, the trial court’s
failure to sua sponte conduct a competency hearing deprived the
accused of his constitutional right to a fair trial); People v Ray, 431 Mich
260, 270 n 5 (1988).
1. General Test
“[A] criminal defendant’s mental condition at the time of trial
must be such as to assure that he [or she] understands the
charges against him [or her] and can knowingly assist in his [or
her] defense.” People v McSwain, 259 Mich App 654, 692 (2003);
see also Dusky v United States, 362 US 402, 402-403 (1960)
(concluding that “the test must be whether he [or she] has
sufficient present ability to consult with his [or her] lawyer with
a reasonable degree of rational understanding—and whether he
[or she] has a rational as well as factual understanding of the
proceedings against him[ or her]”) (quotation marks omitted).
“To protect this right to due process, Michigan has enacted
statutes and a court rule regarding the competency of criminal
defendants.” Kammeraad, 307 Mich App at 137; see MCL 330.2020
et seq.; MCR 6.125.
MCL 330.2020(1) states that a criminal defendant is presumed

competent to stand trial unless “he [or she] is incapable because
of his [or her] mental condition of understanding the nature and
object of the proceedings against him [or her] or of assisting in
his [or her] defense in a rational manner.” In making this
determination, the court must assess “the capacity of a
defendant to assist in his [or her] defense by his [or her] ability to
perform the tasks reasonably necessary for him [or her] to
perform in the preparation of his [or her] defense and during his
[or her] trial.” Id.
The standard for competence to plead guilty is the same as that

for competency to stand trial. Godinez v Moran, 509 US 389, 396-
400 (1993), citing Dusky, 362 US 402.

2. Medication and Competence

A defendant’s competence may be based on the defendant’s
medicated state. See MCL 330.2020(2). A defendant is not
incompetent when medication makes the defendant competent,
even if the defendant would be incompetent without the
medication. MCL 330.2020(2); People v Mette, 243 Mich App 318,
331 (2000). “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 the treating physician that such medication will not
adversely affect the defendant’s understanding of the
proceedings or his [or her] ability to assist in his [or her]
defense.” MCL 330.2020(2). See also Sell v United States, 539 US
166, 180-183 (2003) (holding that the involuntary administration
of drugs solely for trial competence purposes is permitted in
certain rare instances).
3. Raising the Issue of Competence

The issue of competency may be raised at any time during the
proceedings against a defendant, MCR 6.125(B), “including
proceedings in the district court, or subsequent to trial, such as
sentencing[,]” 1989 Staff Comment to MCR 6.125.
The question of competency to stand trial may be raised by

either party or by the court. MCL 330.2024; MCR 6.125(B).
Indeed, “[b]ecause the conviction of a legally incompetent
defendant is a deprivation of due process, evidence that raises a
‘bona fide’ doubt as to competence obligates a sanity hearing sua
sponte.” Ray, 431 Mich at 270 n 5, quoting Pate, 383 US at 385; see
also Kammeraad, 307 Mich App at 138.
4. Determination Whether Competency Inquiry is

Required
The trial court’s decision regarding the necessity of further
inquiry as to the defendant’s competence is reviewed for an
abuse of discretion. Kammeraad, 307 Mich App at 138.
The test “‘is whether a reasonable judge, situated as was the trial
court judge whose failure to conduct an evidentiary hearing is
being reviewed, should have experienced doubt with respect to
competency to stand trial.’” Kammeraad, 307 Mich App at 138-139
(citation omitted). “[E]vidence of a defendant’s irrational
behavior, his [or her] demeanor at trial, and any prior medical
opinion on competence to stand trial are all relevant in
determining whether further inquiry is required, but . . . even

one of these factors standing alone may, in some circumstances,

be sufficient.” Drope, 420 US at 180. “There are, of course, no
fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is
often a difficult one in which a wide range of manifestations and
subtle nuances are implicated.” Id.
The trial court is not required to accept without question an

attorney’s representations concerning the competence of his or
her client, although counsel’s expression of doubt in that regard
is a factor that should be considered when determining whether
further inquiry is required. Drope, 420 US at 177 n 13.
The trial court did not abuse its discretion in failing to order a
competency examination where the court “was able to
personally observe [the] defendant’s behavior and conduct, hear
live [the] defendant’s remarks and the tone of and inflections in
his voice, and directly assess [the] defendant’s demeanor,
attitude, and comments[.]” Kammeraad, 307 Mich App at 140-141.
5. Order for Competency Examination

A trial court must order a competency examination upon a
showing that the defendant may be incompetent to stand trial.
MCL 330.2026(1); MCR 6.125(C)(1). The examination must be
conducted “by a certified or licensed examiner of the [Center for
Forensic Psychiatry] or other facility officially certified by the
department of mental health to perform examinations relating to
the issue of competence to stand trial.” MCR 6.125(C)(1); see also
MCL 330.2026(1).5 “The defendant must appear for the
examination as required by the court.” MCR 6.125(C)(2); see also
MCL 330.2026(1). The examining center or facility must submit a
written report to the court within 60 days of the date of the order
for examination. MCL 330.2028(1).
On a showing of good cause by either party, the court may order

an independent examination. MCR 6.125(D).6 However,
“[b]ecause of a presumption that the Center for Forensic
Psychiatry or other facility officially certified by the Department
of Mental Health will properly perform their functions, ‘good
cause’ justifying an independent competency examination
should arise only in exceptional cases.” 1989 Staff Comment to
MCR 6.125.
5 “The Center for Forensic Psychiatry, located outside Ann Arbor, hosts Michigan’s only certified forensic
facility and conducts all competency and criminal responsibility evaluations ordered in Michigan criminal
proceedings.” People v Kowalski (Jerome), 492 Mich 106, 114 n 8 (2012) (opinion by Kelly, J.).
6 See SCAO Form MC 204, Order for Competency Examination.

6. Hearing
A competency hearing must be held within five days of the
court’s receipt of the examiner’s written report, or on conclusion
of the proceedings then before the court, whichever is sooner,
unless an adjournment is granted upon a showing of good
cause. MCR 6.125(E); MCL 330.2030(1).
The court must determine the issue of competency based on

evidence admitted at the hearing. MCL 330.2030(2). Absent
objection, the examiner’s written report is admissible at the
hearing; however, it is not admissible for any other purpose.
MCL 330.2030(3); see also MCL 330.2028(3); MCL 330.1750(2)(f)
(a privileged communication “made during treatment that the
patient was ordered to undergo to render the patient competent
to stand trial on a criminal charge[]” may be disclosed, “but only
with respect to issues to be determined in proceedings
concerned with the competence of the patient to stand trial[]”).
The defense, prosecution, and court may present additional
relevant evidence at the hearing. MCL 330.2030(3).
See SCAO Form MC 205, Finding and Order on Competency, for the
possible findings and orders upon conclusion of a competency
hearing. If the defendant is found incompetent to stand trial, the
court must determine whether there is a substantial probability
that, if provided treatment, the defendant will attain competence
to stand trial within 15 months or within a period of one-third of
the maximum sentence the defendant could receive if convicted
of the offense, whichever is less. MCL 330.2031; MCL
330.2034(1).
“Absent a hearing at which the prosecutor [can] present

evidence regarding [a] defendant’s ability to attain competence,”
a court may not “render[] any decision regarding [the]
defendant’s continued incompetence.” People v Davis (Demond),
310 Mich App 276, 294 (2015) (citing MCL 330.2030(2) and
holding that the trial court erred in determining, based solely on
the examiner’s report, that the defendant would likely not
achieve competency within the statutory period).
7. Commitment for Treatment

The court may direct the prosecutor to file a petition asserting
that the defendant requires treatment if the court concludes
there is not a substantial probability that the defendant will
attain competence with treatment during the required time
period. MCL 330.2031; see MCL 330.2034(1). If the court
determines that there is a substantial probability that treatment
will enable the defendant to attain competency, the court may
order treatment and commit the defendant to the custody of the

Department of Mental Health for that purpose. MCL 330.2032(3).
The court must receive treatment reports as required by MCL
330.2038. The court is required to redetermine the issue of the
defendant’s competency to stand trial after the receipt of each
report, unless the defendant waives a hearing and
redetermination, or whenever deemed appropriate by the court.
MCL 330.2040(1).
The defendant may not be detained in excess of 15 months or a

term longer than one-third of the sentence possible for
conviction of the offense, whichever is less, or after charges
against the defendant have been dismissed. MCL 330.2034(1).
8. Motions and Evidence Preservation During

Defendant’s Incompetence
If the defendant’s presence is not essential to a fair hearing and
decision, pretrial motions must be heard and decided while a
defendant is incompetent. MCR 6.125(F); MCL 330.2022(2).
“When it appears that evidence essential to the

case the defense or prosecution plans to present
might not be available at the time of trial, the court
shall allow such evidence to be taken and
preserved. Evidence so taken shall be admissible at
the trial only if it is not otherwise available.
Procedures for the taking and preserving of
evidence under this subsection, and the conditions
under which such evidence shall be admissible at
trial, shall be provided by court rule.”
9. Dismissal and Reinstatement of Charges

If a defendant is determined to be incompetent to stand trial, the
charges must be dismissed when the prosecutor notifies the
court of his or her intention not to prosecute the case, or after 15
months have passed since the date on which the defendant was
originally determined incompetent to stand trial. MCL
330.2044(1). The 15-month period is calculated on a total time
basis rather than on a continuous basis; “a defendant may not be
committed, by reason of incompetence to stand trial on criminal
charges, for periods totaling fifteen months.” People v Miller
(Willie), 440 Mich 631, 633, 641-642 (1992) (emphasis added).
“MCL 330.2044 ‘is the procedural vehicle for enforcing a

defendant’s right not to be confined solely because of
incompetency[,]’” and “MCL 330.2044(1) provides only two

circumstances meriting a trial court’s dismissal of the criminal
action: (a) upon notification by the prosecution of its intent to
drop the charges and (b) if the defendant remains incompetent
to stand trial 15 months after the original incompetency ruling.”
Davis (Demond), 310 Mich App at 295, quoting Miller (Willie), 440
Mich at 636. Accordingly, a court lacks the statutory authority to
dismiss a case under MCL 330.2044(1) over the prosecutor’s
objections where “15 months [have] not elapsed since the
[court’s] original incompetency determination.” Davis (Demond),
310 Mich App at 278, 295. Additionally, a delay in beginning a
defendant’s treatment is an insufficient basis for a finding that
the defendant is unlikely to attain competence; rather, under
MCL 330.2032, the “court’s focus must be ‘whether, if provided a
course of treatment, a substantial probability exists that a
defendant found to be incompetent will attain competence
within the time limit established[.]’” Davis (Demond), 310 Mich
App at 304 (quoting Miller (Willie), 440 Mich at 638, and holding
that the trial court erred in dismissing the charges against the
defendant, without a hearing, based on a “four-month delay
between being adjudged incompetent to stand trial and
beginning treatment[]”).
If the charges were dismissed under MCL 330.2044(1)(b) (i.e., on

the basis that 15 months had elapsed after the date on which the
defendant was originally determined incompetent to stand trial),
charges may be reinstated against a defendant as follows:
• If the crime charged was punishable by a life

sentence, the prosecutor may at any time petition the
court for permission to refile the charges. MCL
330.2044(3).
• If the crime charged was not punishable by a life

sentence, the prosecutor may, within the period of
time after the charges were dismissed equal to one-
third of the maximum sentence that the defendant
could receive on the charges, petition the court for
permission to refile the charges. MCL 330.2044(3).
“The court shall grant permission to again file

charges if after a hearing it determines that the
defendant is competent to stand trial. Prior to the
hearing, the court may order the defendant to be
examined by personnel of the center for forensic
psychiatry or other qualified person as an
outpatient, but may not commit the defendant to

the center or any other facility for the

examination.”
A trial court’s failure to dismiss charges against a defendant

under MCL 330.2044(1)(b) because a period of 15 months has
elapsed is a procedural violation that “does not deprive the trial
court of jurisdiction[;] nor does a violation of [MCL
330.2044(1)(b)], standing alone, furnish a basis on which to
reverse an otherwise valid conviction.” Miller (Willie), 440 Mich
at 633, 636. Rather, under MCL 330.2044(3)-(4), “reversal of a
conviction would be warranted in respect to nonlife offenses
only where the time lapse from initial adjudication of
incompetence exceeds one[-]third of the maximum sentence or
causes prejudice to the defendant’s substantive rights.” Miller
(Willie), 440 Mich at 636-637, 642-643 (holding that although the
trial court erred in denying the defendant’s motions to dismiss
under MCL 330.2044(1)(b) where he had been adjudicated
incompetent for a total of 26 months, the defendant’s conviction
could not be reversed on that basis; because MCL 330.2044(3)-(4)
would have permitted the refiling of charges against the
defendant had the trial court dismissed them as required under
MCL 330.2044(1)(b), the defendant suffered no prejudice to his
substantive rights).
10.Use of Competency Evidence for Other Purposes

“The [examiner’s] opinion concerning competency

to stand trial derived from the [competency]
examination may not be admitted as evidence for
any purpose in the pending criminal proceedings,
except on the issues to be determined in the
hearings required or permitted by [MCL 330.2030
and MCL 330.2040]. The foregoing bar of
testimony shall not be construed to prohibit the
examining qualified clinician from presenting at
other stages in the criminal proceedings opinions
concerning criminal responsibility, disposition, or
other issues if they were originally requested by
the court and are available. Information gathered
in the course of a prior examination that is of
historical value to the examining qualified clinician
may be utilized in the formulation of an opinion in
any subsequent court ordered evaluation.”
See also MCL 330.2030(3) (providing that the written examiner’s

report is inadmissible for any purpose in the pending criminal
proceeding other than determining competence).
11.Standard of Review
The trial court’s initial decision regarding whether further
inquiry is necessary due to a bona fide doubt as to the
defendant’s competence is reviewed for an abuse of discretion.
Kammeraad, 307 Mich App at 138. Likewise, the ultimate
“‘determination of a defendant’s competence is within the trial
court’s discretion[.]’” Id. (citation omitted).
Committee Tip:
Courts sometimes confuse the concepts of
competency and criminal responsibility.
Competency, as discussed above, addresses the
defendant’s current understanding of the nature
of the proceedings against him or her and his or
her ability to assist in presenting a defense. The
concept of criminal responsibility, as discussed in
the following subsections, addresses whether
the defendant was legally insane, at the time of
the offense, as a result of mental illness or
intellectual disability.
B. Insanity and Criminal Responsibility

“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). A person “is legally
insane if, as a result of mental illness . . . or as a result of having an
intellectual disability,” he or she “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 law.”
MCL 768.21a(1).
Insanity is an affirmative defense for which the defendant has the

burden of proof by a preponderance of the evidence. MCL 768.21a(1);
MCL 768.21a(3). Although the prosecution must still prove each
element of the offense beyond a reasonable doubt, it “is not required
to rebut an affirmative defense.” People v Haynie, ___ Mich App ___,
___ (2019), citing People v Mette, 243 Mich App 318, 330 (2000).
Whether a defendant has shown that he or she is insane is a question
for the jury. Haynie, ___ Mich App at ___. On appeal, the
determination as to whether the defendant met the burden of proof
during a jury trial will be reviewed de novo – as a sufficiency of the
evidence issue. Id. at ___.

“[I]nsanity is a defense to all crimes, including general intent and

strict liability offenses.” People v Moore (Eric), 497 Mich 1043, 1043
(2015) (citing MCL 768.21a and noting that the Court of Appeals had
misinterpreted People v Carpenter (James), 464 Mich 223 (2001), “in
stating that insanity is not a defense to general intent crimes”).
1. Timely Notice Required

A defendant in a felony case must file and serve on the court and
the prosecuting attorney a notice of his or her intention to assert
the defense of insanity not less than 30 days before trial, or at
another time as directed by the court. MCL 768.20a(1). If the
defendant fails to file and serve the written notice prescribed in
MCL 768.20a, the court must exclude evidence offered by the
defendant for the purpose of establishing the defendant’s
insanity. MCL 768.21(1).
2. Examinations, Experts, and Reports

If the defendant serves a notice of intent to assert an insanity
defense, he or she must be referred for an examination by
personnel of the Center for Forensic Psychiatry, or by other
qualified personnel, “for a period not to exceed 60 days from the
date of the order.” MCL 768.20a(2). See SCAO Form MC 206,
Order for Evaluation Relative to Criminal Responsibility.
The defendant must fully cooperate with the examination. MCL

768.20a(4). The failure to cooperate, if established at a hearing
prior to trial, bars any testimony relating to the insanity defense.
Id. MCL 768.20a(4) does not unconstitutionally infringe on a
defendant’s constitutional right to present a defense, and it is not
unconstitutionally vague. People v Hayes (Larry), 421 Mich 271,
274-275, 283, 288 (1984).
Both the prosecution and defense may obtain examinations from

independent examiners of their own choosing. MCL 768.20a(3).
The defendant must notify the prosecuting attorney at least five
days before such an independent evaluation. Id. On a showing of
good cause, a court may order the county to pay for an indigent
defendant’s independent psychiatric evaluation. Id.
Any examiner, including an independent examiner, must

prepare and submit to both parties a written report. MCL
768.20a(6).
MCL 768.20a(5) provides:
“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.”
See also People v Toma, 462 Mich 281, 292-293 (2000) (the statutory
prohibition against using a defendant’s statement to a mental
health professional “is a clear expression by the Legislature that
these statements cannot be admitted at trial except on the issue
of insanity[]”).
“Where expert testimony is presented in support of an insanity

defense, the probative value of the expert’s opinion depends on
the facts on which it is based.” People v Lacalamita, 286 Mich App
467, 470 (2009). “Further, a trial court must generally defer to a
jury’s determination, unless it can be said that directly
contradictory testimony was so far impeached that it was
deprived of all probative value or that the jury could not believe
[the testimony], or [the testimony] contradicted indisputable
physical facts or defied physical realities[.]” Id. (quotation marks
and citations omitted; first and second alterations in original).
3. Insanity Standard
“Mental illness or having an intellectual disability does not
otherwise constitute a defense of legal insanity.” MCL 768.21a(1).
“‘Insanity by definition is an extreme of mental illness[;]’” “one
must be mentally ill before he [or she] can be found insane, but
the converse is not true.”People v Ramsey (Bruce), 422 Mich 500,
513 (1985) (opinion by Brickley, J.), quoting People v Fultz, 111
Mich App 587, 590 (1981).
Determining whether a defendant is legally insane is a two-step

process: First, it must be determined whether the defendant has
proven by a preponderance of the evidence that he or she was
mentally ill and/or intellectually disabled; second, if so, it must
be determined whether the defendant has proven by a
preponderance of the evidence that he or she lacked the
substantial capacity either to appreciate the nature and quality
or the wrongfulness of his or her conduct, or to conform that
conduct to the requirements of the law. See Ramsey (Bruce), 422
Mich at 513-514; People v Jackson (Damon), 245 Mich App 17, 23-
24 (2001); MCL 768.21a(1); M Crim JI 7.11(3)-(6).
“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.” MCL 768.21a(2); see also
People v Caulley, 197 Mich App 177, 187, 187 n 3 (1992) (noting
that “an individual who is voluntarily intoxicated does not have
grounds for an absolute defense based upon his [or her]
insanity[,]” with the exception that the defense may apply “if the
voluntary continued use of mind-altering substances results in a
settled condition of insanity before, during, and after the alleged
offense[]”); M Crim JI 7.10(1); M Crim JI 7.10(3).7
In contrast, a defendant claiming involuntary intoxication has

effectively raised an insanity defense, and he or she must
demonstrate that the involuntary intoxication created a state of
mind equivalent to insanity.” Caulley, 197 Mich App at 187; see
also M Crim JI 7.10(2).8 Because the involuntary intoxication
defense is evaluated in terms of the insanity defense, the same
procedural requirements apply. See People v Wilkins (David), 184
Mich App 443, 449-450 (1990).
“[T]here was sufficient evidence to support the jury’s

determination that defendant was not legally insane at the time
of the assault” because the victim “testified that defendant acted
normal prior to the assault” and “[t]he verdict show[ed] that the
jury . . . did not believe the experts’ opinions that defendant was
legally insane at the time of the assault.” People v Haynie, ___
Mich App ___, ___ (2019) (noting that “[i]t is the role of the jury,
not this Court, to weigh the evidence and the credibility of
witnesses”).
4. Psychiatrists and Privileged Communications

Unless the patient has waived the privilege, privileged
communications must not be disclosed in criminal cases or
proceedings, or in proceedings preliminary to such cases or
proceedings, except in the circumstances set out in MCL
330.1750. MCL 330.1750(1); see also MCR 2.314(B). “After
claiming the defense of insanity and authorizing the release of
medical information, [a] defendant can no longer claim an intent
to preserve the sanctity of the physician-patient privilege.”
People v Sullivan (John), 231 Mich App 510, 517 (1998).
“When a defendant presents evidence through a psychological

expert who has examined him, the government likewise is
permitted to use the only effective means of challenging that
evidence: testimony from an expert who has also examined [the
7 See Section 10.2(E) for discussion of voluntary intoxication.
8 See Section 10.2(E) for discussion of involuntary intoxication.

defendant].” Kansas v Cheever, 571 US 87, 94 (2013) (citation

omitted). The Court explained:
“A defendant ‘has no right to set forth to the jury

all the facts which tend in his favor without laying
himself open to a cross-examination upon those
facts.’ . . . [W]here a party provides testimony and
then refuses to answer potentially incriminating
questions, ‘[t]he interests of the other party and
regard for the function of courts of justice to
ascertain the truth become relevant, and prevail in
the balance of considerations determining the
scope and limits of the privilege against self-
incrimination.’” Id (citations omitted).
5. Preliminary and Final Jury Instructions and Possible

Verdicts
If a defendant asserts a defense of insanity in a criminal action
tried before a jury, the court must preliminarily instruct the jury
on the definitions of mental illness, intellectual disability, and
legal insanity9 immediately before the commencement of
testimony, especially expert testimony. MCL 768.29a(1); see M
Crim JI 7.9. However, failure to give a preliminary instruction
before an offer of testimony on insanity is a nonconstitutional
error that is subject to harmless-error review. People v Grant
(Andre), 445 Mich 535, 537, 543-554 (1994).
MCL 768.29a(2) provides:
“At the conclusion of the trial, where warranted by

the evidence, the charge to the jury shall contain
instructions that it shall consider separately the
issues of the presence or absence of mental illness
and the presence or absence of legal insanity and
shall also contain instructions as to the verdicts of
guilty, guilty but mentally ill, not guilty by reason
of insanity, and not guilty with regard to the
offense or offenses charged and, as required by
law, any lesser included offenses.”
See M Crim JI 7.11; M Crim JI 7.12. For verdict forms reflecting

the possible verdicts set out in MCL 768.29a(2), see M Crim JI
3.25; M Crim JI 3.27; M Crim JI 3.29; M Crim JI 3.31.10
9 See Section 10.2(B).
10 See Section 10.2(C) for discussion of a verdict of guilty but mentally ill.

6. Acquittal by Reason of Insanity

The court must immediately commit any person who is
acquitted of a criminal charge by reason of insanity to the
custody of the Center for Forensic Psychiatry for a period not to
exceed 60 days. MCL 330.2050(1). The court must forward to the
Center a full report, in the form of a settled record, of the facts
concerning the crime the person committed but of which he or
she was acquitted by reason of insanity. Id. See SCAO Form MC
207, Commitment Order, Not Guilty by Reason of Insanity.
Within the 60-day period, the Center for Forensic Psychiatry

must file a report with the court, prosecuting attorney, and
defense counsel. MCL 330.2050(2). The report must contain a
summary of the crime the person committed but of which he or
she was acquitted by reason of insanity, an opinion as to whether
the person meets the criteria of a person requiring treatment or
for judicial admission as defined by MCL 330.1401 or MCL
330.1515, and the facts upon which the opinion is based. MCL
330.2050(2).
After receipt of the report, the court may direct the prosecuting
attorney to file with the probate court of the person’s county of
residence, or of the county in which the criminal trial was held, a
petition pursuant to MCL 330.1434 or MCL 330.1516 for an order
of hospitalization or an order of admission to a facility. MCL
330.2050(3).
C. Guilty but Mentally Ill
1. By Trier of Fact
If a defendant asserts a defense of insanity in compliance with
MCL 768.20a, the defendant may be found “guilty but mentally
ill” if, after trial, the trier of fact finds all of the following: (1) the
defendant is guilty beyond a reasonable doubt of an offense; (2)
the defendant has proven by a preponderance of the evidence
that he or she was mentally ill at the time the offense was
committed; and (3) the defendant has not established by a
preponderance of the evidence that he or she lacked the
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. MCL 768.36(1). See
also MCL 768.29a(2) (requiring the trial court to instruct the jury,
if warranted by the evidence, that it may find the defendant
guilty but mentally ill); M Crim JI 3.25; M Crim JI 3.27; M Crim JI
3.29; M Crim JI 3.31. The legislative purpose behind the creation
of the guilty but mentally ill verdict was to limit the number of

defendants who were improperly being relieved of all criminal

responsibility by way of the insanity verdict. Ramsey (Bruce), 422
Mich at 512; People v Stephan, 241 Mich App 482, 491-492 (2000).
M Crim JI 7.12 provides, in part:
“(2) To find the defendant guilty but mentally ill,

you must find each of the following:
(3) First, the prosecutor has proven beyond a

reasonable doubt that the defendant is guilty of a
crime.
(4) Second, that the defendant has proven by a

preponderance of the evidence that [he / she] was
mentally ill, as I have defined that term for you, at
the time of the crime.
(5) Third, that the defendant has not proven by a

preponderance of the evidence that [he / she]
lacked the substantial capacity either to appreciate
the nature and quality or the wrongfulness of [his/
her] conduct or to conform [his / her] conduct to
the requirements of the law.” (Alterations in
original.)
2. By Plea
Before accepting a plea of guilty but mentally ill, the court must
comply with the requirements of MCR 6.302 (accepting guilty or
nolo contendere pleas). MCR 6.303. In addition, “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.” Id. “The reports must be made a part of the record.” Id.
D. Diminished Capacity
Diminished capacity is not a cognizable defense in Michigan. People v
Carpenter (James), 464 Mich 223, 237 (2001)11; see also People v Abraham
11
See also Metrish v Lancaster, 569 US 351 (2013), reversing Lancaster v Metrish, 683 F3d 740, 742, 744-
754 (CA 6, 2012), in which the Sixth Circuit Court of Appeals granted the petitioner habeas relief on the
ground that the retroactive application of Carpenter (James), 464 Mich 223, was objectively unreasonable
because the defense of diminished capacity was well-established and its abolition was unforeseeable when
the petitioner committed his crime. “[T]he Michigan Supreme Court [in Carpenter (James)] rejected a
diminished-capacity defense that the court reasonably found to have no home in a comprehensive, on-
point statute enacted by the Michigan Legislature[;]” accordingly, “[f]airminded jurists could conclude that
[Carpenter (James) was] not ‘unexpected and indefensible by reference to [existing] law.’” Lancaster, 569
US at 366, 368 (citation omitted).

(Nathaniel), 256 Mich App 265, 271 n 2 (2003). “[The] Legislature, by

enacting the comprehensive statutory framework [set out in MCL
768.20a, MCL 768.21a, and MCL 768.36], has . . . conclusively
determined when mental incapacity can serve as a basis for relieving
one from criminal responsibility[,]” and MCL 768.36(3)
“demonstrate[s] [the Legislature’s] policy choice that evidence of
mental incapacity short of insanity cannot be used to avoid or reduce
criminal responsibility by negating specific intent.” Carpenter (James),
464 Mich at 237.12
E. Intoxication as a Defense
“Intoxication has been defined as a ‘disturbance of mental or physical
capacities resulting from the introduction of any substance into the
body.’” People v Caulley, 197 Mich App 177, 187 (1992) (citation
omitted). Whether and to what extent an intoxication defense may be
viable depends on whether the intoxication was voluntary or
involuntary. “The characterization of intoxication as either voluntary
or involuntary depends upon the facts of each case.” Id.
1. Voluntary Intoxication
“Voluntary or self-induced intoxication is caused by substances
which the defendant knows or ought to know have the tendency
to cause intoxication and which he [or she] knowingly
introduced or allowed to be introduced into his [or her] body[.]”
Caulley, 197 Mich App at 187 (citation and quotation marks
omitted).
“‘[T]he enactment of MCL 768.37[] . . . [has] abolished the

defense of voluntary intoxication except in one narrow
circumstance[.]’” People v Nickens, 470 Mich 622, 631 n 7 (2004)
(citation omitted). MCL 768.37 provides, in part:
“(1) Except as provided in [MCL 768.37(2)], it is not

a defense to any crime that the defendant was, at
that time, under the influence of or impaired by a
voluntarily and knowingly consumed alcoholic
liquor, drug, including a controlled substance,
other substance or compound, or combination of
alcoholic liquor, drug, or other substance or
compound.
12 See also People v Moore (Eric), 497 Mich 1043, 1043 (2015) (noting that under MCL 768.21a “insanity is
a defense to all crimes, including general intent and strict liability offenses[,]” and that “the Court of
Appeals [in People v Moore (Eric), unpublished opinion per curiam of the Court of Appeals, issued June 24,
2014 (Docket No. 315193),] misinterpreted” Carpenter (James), 464 Mich 223, “in stating that insanity is
not a defense to general intent crimes[]”) (emphasis supplied).

(2) It is an affirmative defense to a specific intent

crime, for which the defendant has the burden of
proof by a preponderance of the evidence, that he
or she voluntarily consumed a legally obtained
and properly used medication or other substance
and did not know and reasonably should not have
known that he or she would become intoxicated or
impaired.
MCL 8.9(6) similarly provides:
“It is not a defense to a crime that the defendant

was, at the time the crime occurred, under the
influence of or impaired by a voluntarily and
knowingly consumed alcoholic liquor, drug,
including a controlled substance, other substance
or compound, or combination of alcoholic liquor,
drug, or other substance or compound. However,
it is an affirmative defense to a specific intent
crime, for which the defendant has the burden of
proof by a preponderance of the evidence, that he
or she voluntarily ingested a legally obtained and
properly used medication or other substance and
did not know and reasonably should not have
known that he or she would become intoxicated or
impaired.”
See also M Crim JI 6.2.
The Michigan Supreme Court has noted that the near-

abolishment of the voluntary intoxication defense “‘has
significantly diminished the need to categorize crimes as being
either “specific” or “general” intent crimes.’” Nickens, 470 Mich
at 631 n 7 (citation omitted).
The Fifth Amendment was not violated when the trial court
permitted the prosecution to “introduc[e] evidence from a court-
ordered mental evaluation of [the] criminal defendant to rebut
[the] defendant’s presentation of expert testimony in support of
a defense of voluntary intoxication.” Kansas v Cheever, 571 US 87,
89-90, 98 (2013) (holding that “where a defense expert who has
examined the defendant testifies that the defendant lacked the
requisite mental state to commit a crime, the prosecution may
offer evidence from a court-ordered psychological examination
for the limited purpose of rebutting the defendant’s evidence[]”).

2. Involuntary Intoxication
“Involuntary intoxication is intoxication that is not self-induced
and by definition occurs when the defendant does not
knowingly ingest an intoxicating substance, or ingests a
substance not known to be an intoxicant.” Caulley, 197 Mich App
at 187 (citation and quotation marks omitted).
When a defendant asserts that he or she was involuntarily

intoxicated at the time of an offense, the defendant has
effectively raised an insanity defense; “the defense of
involuntary intoxication is part of the defense of insanity when
the chemical effects of drugs or alcohol render the defendant
temporarily insane.” Caulley, 197 Mich App at 187, citing People v
Wilkins (David), 184 Mich App 443, 448-449 (1990).13 A defendant
claiming involuntary intoxication as a defense must
“demonstrate that the involuntary use of drugs created a state of
mind equivalent to insanity.” Caulley, 197 Mich App at 187.
Because the involuntary intoxication defense is evaluated in
terms of the insanity defense, the same procedural requirements
apply, and a defendant must provide pretrial notice to the court
and the prosecution of the intention to assert a defense of
involuntary intoxication as prescribed by MCL 768.20a(1).
Wilkins (David), 184 Mich App at 449-450.
Involuntary intoxication may be caused by the use of prescribed

medications, and “[s]uch intoxication can constitute a complete
defense if the defendant was unexpectedly intoxicated because
of the ingestion of a medically prescribed drug.” Caulley, 197
Mich App at 188. To prove involuntary intoxication in cases
involving prescription medication, three things must be
established:
• First, the defendant must prove that he or she “[did]

not know or have reason to know that the prescribed
drug [was] likely to have the intoxicating effect.”
Caulley, 197 Mich App at 188.
• Second, the defendant’s intoxication must have been

caused by the prescribed drug and not another
intoxicant. Id.
• Third, the defendant must show that he or she was

rendered temporarily insane as a result of his or her
intoxicated condition. Id.
13 See Section 10.2(B) for discussion of insanity.

Where a defendant has successfully established these three

things, the jury must be instructed on the issue of involuntary
intoxication and insanity. See id.; see also M Crim JI 7.10(2).
10.3 Entrapment
A. Generally
“The overall purpose of the entrapment defense is to deter the
corruptive use of governmental authority by invalidating convictions
that result from law enforcement efforts that have as their effect the
instigation or manufacture of a new crime by one who would not
otherwise have been so disposed.” People v Juillet, 439 Mich 34, 52
(1991) (opinion by Brickley, J.). “The challenge focuses exclusively
upon the nature of the police conduct which, if improper, will not be
mitigated, justified or excused in any fashion by the disposition of the
accused.” People v D’Angelo, 401 Mich 167, 182 (1977).
“[E]ntrapment is not a defense that negates an essential element of the

charged crime.” Juillet, 439 Mich at 52. “Instead, it presents facts that
are collateral to the crime that justify barring the defendant’s
prosecution.” Id. Unlike some other defenses, such as insanity, a
defendant’s claim of entrapment does not require an assessment of
the defendant’s guilt or innocence of the crime charged. People v White
(John), 411 Mich 366, 387 (1981).
B. Hearing
When the defendant raises the issue of entrapment, whether before or
during trial, the trial court must conduct an evidentiary hearing
outside the presence of the jury. D’Angelo, 401 Mich at 177-178. Both
the prosecution and the defendant may present evidence, and the
defendant has the burden of proving the claim of entrapment by a
preponderance of the evidence. Id. at 178, 183. The trial court must
make findings of fact. Juillet, 439 Mich at 61. If the trial court
concludes that the defendant was entrapped, the case must be
dismissed and the defendant must be discharged. D’Angelo, 401 Mich
at 184.
C. Test for Entrapment

A defendant is considered entrapped if either (1) the police engaged
in impermissible conduct that would induce an otherwise law-
abiding person to commit a crime in similar circumstances, or (2) the
police engaged in conduct so reprehensible that it cannot be tolerated.
People v Johnson (Jessie), 466 Mich 491, 498 (2002); People v Fyda, 288

Mich App 446, 456 (2010). A defendant may prove police entrapment
solely through reprehensible conduct; police instigation is not a
prerequisite to a claim of entrapment. People v Akhmedov, 297 Mich
App 745, 754 (2012); Fyda, 288 Mich App at 456.
The test for entrapment used in Michigan is an objective test that

“focuses primarily on the investigative and evidence-gathering
procedures used by the governmental agents[]” in order to
“determine whether the police conduct in question has as its
‘probable and likely outcome the instigation rather than the detection
of criminal activity.’” Juillet, 439 Mich at 53-54 (citation omitted).
“[A]lthough the objective test is mainly concerned with the existence
of reprehensible police conduct, consideration must be given to ‘the
willingness of the accused to commit the act weighed against how a
normally law-abiding person would react in similar circumstances.’” Id. at
54 (citation omitted). Thus, “not all generally offensive police conduct
will necessarily support a claim of entrapment.” Id.
“When examining whether governmental activity

would impermissibly induce criminal conduct, several
factors are considered: (1) whether there existed appeals
to the defendant’s sympathy as a friend, (2) whether the
defendant had been known to commit the crime with
which he [or she] was charged, (3) whether there were
any long time lapses between the investigation and the
arrest, (4) whether there existed any inducements that
would make commission of the crime unusually
attractive to a hypothetical law-abiding citizen, (5)
whether there were offers of excessive consideration or
other enticement, (6) whether there was a guarantee that
the acts alleged as crimes were not illegal, (7) whether,
and to what extent, any government pressure existed,
(8) whether there existed sexual favors, (9) whether
there were any threats of arrest, (10) whether there
existed any government procedures that tended to
escalate the criminal culpability of the defendant, (11)
whether there was police control over any informant,
and (12) whether the investigation was targeted.”
Johnson (Jessie), 466 Mich at 498-499; see also Fyda, 288
Mich App at 457.
That the police “‘present[ed] the defendant with the opportunity to

commit the crime of which he [or she] was convicted[]’ . . . is
insufficient to support a finding of entrapment.” Fyda, 288 Mich App
at 460 (citation omitted). For example, the fact that undercover
officers engaged in “‘friendly banter’ . . . that induced [the defendant]
to sell them” drugs “[did] not establish ‘impermissible conduct that
would induce an otherwise law-abiding person to commit a crime in

similar circumstances[.]’” People v Vansickle, 303 Mich App 111, 116

(2013), quoting Fyda, 288 Mich App at 456.
“‘An official may employ deceptive methods to obtain evidence of a

crime as long as the activity does not result in the manufacturing of
criminal behavior.’” Vansickle, 303 Mich App at 117 (citation omitted).
In Vansickle, 303 Mich App at 113-114, 117, the trial court properly
denied the defendant’s motion to dismiss based on entrapment where
the defendant, “a registered qualifying patient under the Michigan
Medical Marihuana Act (MMMA), MCL 333.26421 et seq.,” sold
marijuana to undercover police officers who were posing as
legitimate patients at a medical marijuana dispensary. “[The]
defendant was not a target of the undercover investigation of the
marijuana dispensary[,] . . . the officers were not familiar with [the]
defendant[,]” and “the officers did not appeal to [the] defendant’s
sympathy, offer him any unusually attractive inducements or
excessive consideration, or use any other means to pressure [him] to
sell them marijuana[;]” rather, they “merely provided [him] with an
opportunity to commit the crime, which is insufficient to establish
entrapment.” Vansickle, 303 Mich App at 116-117.
“Reprehensible conduct by an informant may be attributed to the

police if a sufficient agency relationship exists between the informant
and the police.” Akhmedov, 297 Mich App at 754. “However, police do
not commit entrapment when they do not become involved with the
informant until after the criminal transaction is complete.” Id. at 754-
756 (holding that no entrapment occurred during three separate drug
transactions because an agency relationship did not exist between the
police and an informant during the period when the informant
groomed the defendant in the weeks leading up to the series of drug
deals, the police only became involved with the informant on the day
of the first transaction, and the police and informant “had no further
contact after the first transaction[]”).
D. Entrapment by Estoppel
Entrapment by estoppel applies “[w]hen a citizen reasonably and in
good faith relies on a government agent’s representation that the
conduct in question is legal, under circumstances where there is
nothing to alert a reasonable citizen that the agent’s statement is
erroneous[.]” People v Woods (Robert), 241 Mich App 545, 548 (2000).
The due process principle underlying the doctrine of entrapment by
estoppel is fairness to a well-intentioned citizen who unwittingly
breaks the law while relying on government agents’ statements under
circumstances where reliance is reasonable. Id. at 548. “However,
when a citizen who should know better unreasonably relies on the
agent’s erroneous statement, or when the ‘statement’ is not truly

erroneous, but just vague or contradictory, the defense is not

applicable.” Id. at 548-549.
“‘[T]he entrapment by estoppel defense applies where the defendant

establishes by a preponderance of the evidence that (1) a government
official (2) told the defendant that certain criminal conduct was legal,
(3) the defendant actually relied on the government official’s
statements, (4) and the defendant’s 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 statement.’”
Woods (Robert), 241 Mich App at 558 (citation omitted; alteration in
original).
An assertion of entrapment by estoppel as a defense to a specific

intent offense must be “reasonable” or “justified.” People v Zitka, 325
Mich App 38, 52 (2018) (it was unreasonable to rely on a city
attorney’s statement in a stipulated agreement in a civil action
involving a local zoning ordinance for purposes of a criminal case
brought under criminal state law; in addition, the local civil case only
involved only one of the three businesses included in the present
criminal case). Further, a defendant’s belief that he or she is operating
in compliance with the law is immaterial to whether he or she
committed a general intent offense because a defendant need not
intend to violate the law to be culpable for a general intent offense. Id.
at ___.
E. Standard of Review
Whether the police entrapped a defendant is reviewed de novo as a
matter of law, “but the trial court’s specific findings of fact are
reviewed for clear error.” Vansickle, 303 Mich App at 114, citing Fyda,
288 Mich App at 456. See also Johnson (Jessie), 466 Mich at 497 (“[a]
trial court’s finding of entrapment is reviewed for clear error[]”).
“Findings of fact are clearly erroneous if [the reviewing court is] left
with a firm conviction that the trial court made a mistake.” Vansickle,
303 Mich App at 115, citing Fyda, 288 Mich App at 456.
10.4 Alibi Defense
A. Notice and Timing

MCL 768.20 requires the defendant to give written notice to the
prosecuting attorney of his or her intent to offer an alibi defense:
“If a defendant in a felony case proposes to offer in his

[or her] defense testimony to establish an alibi at the
time of the alleged offense, the defendant shall at the

time of arraignment on the information or within 15

days after that arraignment but not less than 10 days
before the trial of the case, or at such other time as the
court directs, file and serve upon the prosecuting
attorney a notice in writing of his [or her] intention to
claim that defense. The notice shall contain, as
particularly as is known to the defendant or the
defendant’s attorney, the names of witnesses to be called
in behalf of the defendant to establish that defense. The
defendant’s notice shall include specific information as
to the place at which the accused claims to have been at
the time of the alleged offense.” MCL 768.20(1).
Within ten days after receipt of the notice, but not later than five days
before trial, “or at such other time as the court may direct,” the
prosecuting attorney must file and serve on the defendant a notice of
rebuttal containing the names of the witnesses the prosecuting
attorney proposes to call to controvert the defendant’s alibi defense.
MCL 768.20(2). Each party has a continuing duty to promptly disclose
the names of additional witnesses that come to the respective party’s
attention who may be called to establish or rebut an alibi defense.
MCL 768.20(3). Additional witnesses not identified in the first notices
may be permitted to testify if the moving party gives notice to the
opposing party and shows that the additional witness’s name was not
known when the notice required under MCL 768.20(1) or MCL
768.20(2) was due, and could not have been discovered with due
diligence. MCL 768.20(3).
MCL 768.20 “leaves the trial court with considerable discretion to

allow or disallow the testimony of rebuttal witnesses when a timely
notice has not been filed[;]” however, “such a decision may be
overturned upon review if the court’s discretion is abused.” People v
Travis, 443 Mich 668, 679-680 (1993).
B. Failure to Provide Timely Notice

MCL 768.21(1) provides that if the defendant fails to give timely
notice of his or her intent to raise an alibi defense as required under
MCL 768.20, the court must exclude evidence offered for the purpose
of establishing the alibi. Similarly, MCL 768.21(2) provides that if the
prosecuting attorney has failed to give timely notice of rebuttal as
required under MCL 768.20, the court must exclude that rebuttal
evidence. Furthermore, MCL 768.21(1) and MCL 768.21(2) provide
that even if timely notice is given by both parties, the court must
exclude testimony from witnesses not particularly identified in the
required notices.

Despite the language in MCL 768.21 indicating that the court “shall
exclude” alibi or rebuttal evidence where the offering party has not
complied with the notice requirements of MCL 768.20, the Supreme
Court has held that the phrase “or at such other time as the court may
direct[]” in MCL 768.20(2)14 “preserves the trial court’s discretion to
fix the timeliness of notice in view of the circumstances.” Travis, 443
Mich at 678-679.
To determine whether an undisclosed alibi witness’s testimony

should be admitted, the court should consider:
• the amount of prejudice that resulted from the failure

to disclose;
• the reason for nondisclosure;
• the extent to which the harm caused by nondisclosure

was mitigated by subsequent events;
• the weight of the properly admitted evidence

supporting the defendant’s guilt; and
• other relevant factors arising out of the circumstances

of the case. Travis, 443 Mich at 682.
“This test takes into account not only the diligence of the prosecution,
but also the conduct of the defendant and the degree of harm done to
the defense. It tends to protect the prosecution in cases where the
defendant is at fault or where the defendant suffers little or no
prejudice. At the same time, it tends to protect the defendant when
the conduct of the prosecution unfairly limits the defendant’s choice
of trial strategy[.]” Travis, 443 Mich at 683.
Even if timely notice of an alibi defense is not given, a defendant may

nevertheless testify to an alibi without corroborative evidence, and is
still entitled to an alibi instruction. People v McGinnis, 402 Mich 343,
345-346, 346 n 4 (1978).
C. Impeachment with Alibi Notice

Filing a notice of alibi defense does not require the defendant to
proceed with that defense at trial, and no comment should be made
by the prosecuting attorney or the court upon the failure to do so;
“‘[s]uch comment is tantamount to shifting the burden of proof by
14 Although the Court

in Travis, 443 Mich at 678-679, was specifically addressing the prosecutor’s rebuttal
notice requirement under MCL 768.20(2), the similar phrase “or at such other time as the court directs[]”
appears in MCL 768.20(1) (governing the defendant’s requirement to provide notice of the intent to raise
an alibi defense).

allowing the jury to make adverse inferences from [the] defendant’s

or the alibi witness’s failure to testify.’” People v McCray (Lorenzo), 245
Mich App 631, 637 n 1 (2001) (citation omitted); see also People v Dean
(Raymond), 103 Mich App 1, 6-7 (1982).
However, if a defendant proffers an alibi defense, the prosecutor may

comment on the defendant’s failure to produce corroborating
witnesses, if doing so does not infringe upon his or her right not to
testify. People v Fields (Carl), 450 Mich 94, 111-113 (1995). A notice of
alibi constitutes an admission by a party opponent under MRE
801(d)(2)(c), and may be used to impeach a defendant’s credibility at
trial when his or her testimony is inconsistent with the contents of the
alibi notice. McCray (Lorenzo), 245 Mich App at 635-637. This situation,
however, is distinguishable from a situation in which “a prosecutor
[improperly] attempts to comment on a defendant’s failure to put
forth an alibi defense after he [or she] has filed a notice of alibi
defense, or comment on the defendant’s failure to produce a witness
listed on a notice of alibi, when the defendant has not presented an
alibi defense.” Id. at 637 n 1 (emphasis added).
D. Cross-Examination of Alibi Witness

No special foundation is required before cross-examining an alibi
witness about the witness’s failure to come forward with the alibi
information at an earlier time. People v Gray (Norman), 466 Mich 44, 49
(2002) (overruling the holding of People v Fuqua, 146 Mich App 250,
255-256 (1985), that the prosecution must first make a showing that it
would have been natural for the alibi witness to tell his or her story to
the police before trial).
E. Jury Instruction
M Crim JI 7.4 is the jury instruction for lack of presence (alibi):
“(1) You have heard evidence that the defendant could

not have committed the alleged crime because [he / she]
was somewhere else when the crime was committed.
(2) The prosecutor must prove beyond a reasonable

doubt that the defendant was actually there when the
alleged crime was committed. The defendant does not
have to prove [he / she] was somewhere else.
(3) If, after carefully considering all the evidence, you

have a reasonable doubt about whether the defendant
was actually present when the alleged crime was
committed, you must find [him / her] not guilty.”
(Alterations in original.)

Where the defendant raises an alibi defense and requests the

instruction, failure to give it is error requiring reversal. McGinnis, 402
Mich at 345-347. ”While a defendant’s general denial of the charges
against him [or her] does not constitute an alibi defense, if a
defendant gives specific testimony regarding his [or her]
whereabouts at the time in question, it is alibi testimony the same as if
another witness had given the testimony[.]” Id. at 346, citations
omitted.
The decision of a trial court to permit or preclude alibi witnesses is
reviewed for an abuse of discretion. See Travis, 443 Mich 679-680.


Chapter 11: Fourth Amendment Search and
Seizure Issues
11.1 Suppression of Evidence on Fourth Amendment Grounds–Generally 11-2

11.2 Collection of Data by a Federal Agency.............................................. 11-3
11.3 Existence of a Search or Seizure......................................................... 11-4
11.4 Standing Generally (Expectation of Privacy) ...................................... 11-9
11.5 Exceptions to the Warrant Requirement ......................................... 11-11
11.6 Location of the Search...................................................................... 11-25
11.7 Searching a Parolee or Probationer ................................................. 11-45
11.8 Exclusionary Rule ............................................................................. 11-46
11.9 Standard of Review .......................................................................... 11-55

11.1 Suppression of Evidence on Fourth Amendment

Grounds–Generally
The Fourth Amendment of the United States Constitution, US Const, Am
IV, and its state constitution counterpart, Const 1963, art 1, § 11, prohibit
“unreasonable searches and seizures absent a warrant based upon
probable cause[.]” People v Kazmierczak, 461 Mich 411, 417 (2000). US
Const, Am IV provides:
“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.”
Similarly, Const 1963, art 1, § 11 provides, in part:
“The person, houses, papers and possessions of every person

shall be secure from unreasonable searches and seizures. No
warrant to search any place or to seize any person or things
shall issue without describing them, nor without probable
cause, supported by oath or affirmation.”1
The reasonableness of a warrantless search or seizure is determined by

balancing the governmental interest that allegedly justifies the intrusion
against the particular intrusion upon the individual’s constitutional
protected rights. Terry v Ohio, 392 US 1, 20-22 (1968); People v Nelson, 443
Mich 626, 637 (1993).
“Generally, evidence obtained in violation of the Fourth Amendment is

inadmissible as substantive evidence in criminal proceedings.” In re
Forfeiture of $176,598, 443 Mich 261, 265 (1993); see Mapp v Ohio, 367 US
643 (1961). The exclusionary rule “is a cornerstone of American
jurisprudence that affords individuals the most basic protection against
arbitrary police conduct.” In re Forfeiture of $176,598, 443 Mich at 265.
However, there are exceptions to the exclusionary rule and situations in
which the exclusionary rule does not apply. People v Hellstrom, 264 Mich
App 187, 193-194 n 3 (2004).2
1 Const 1963, art 1, § 11 additionally contains the following “antiexclusionary clause”:
“The provisions of this section shall not be construed to bar from evidence in any criminal
proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon,
seized by a peace officer outside the curtilage of any dwelling house in this state.”
See People v Goldston, 470 Mich 523, 537-538 (2004) (concluding that this clause operates as a restriction
on application of the exclusionary rule to the enumerated items unless required under the federal
constitution). See Section 11.8 for discussion of the exclusionary rule.
2 See Section 11.8 for discussion of the exclusionary rule and its exceptions.

The protections against unreasonable searches and seizures provided in

the United States and Michigan constitutions apply to three general
categories of encounters between the police and citizens:
• Situations in which there is no restraint upon the

citizen’s liberty and the officer is seeking the citizen’s
voluntary cooperation through non-coercive
questioning, People v Shabaz, 424 Mich 42, 56-57 (1985);
• Investigatory stops (Terry3 stops), which are limited to

brief, non-intrusive detentions, and the police must have
specific and articulable facts sufficient to give rise to a
reasonable suspicion that a person has committed or is
committing a crime, Shabaz, 424 Mich at 57; and
• Arrests, for which the Fourth Amendment requires that

the police have probable cause to believe that a person
has committed or is committing a crime, Shabaz, 424
Mich at 59.
There is a strong preference that searches and seizures be made pursuant

to a search warrant. United States v Ventresca, 380 US 102, 106 (1965). This
Chapter generally discusses warrantless searches and seizures. For
discussion of the issuance of search warrants, see Chapter 3. For
discussion of exceptions to the warrant requirement, see Section 11.5.
11.2 Collection of Data by a Federal Agency

“This state or a political subdivision of this state shall not assist,
participate with, or provide material support or resources to a federal
agency to enable it to collect or to facilitate in the collection or use of a
person’s electronic data or metadata, unless 1 or more of the following
circumstances apply:
(a) The person has given informed consent.
(b) The action is pursuant to a warrant that is based upon

probable cause and particularly describes the person, place,
or thing to be searched or seized.
(c) The action is in accordance with a legally recognized

exception to warrant requirements.
(d) The action will not infringe on any reasonable expectation

of privacy the person may have.
3 Terry v Ohio, 392 US 1 (1968).

(e) This state or a political subdivision of this state collected

the electronic data or metadata legally.” MCL 37.263.
11.3 Existence of a Search or Seizure

The text of the Fourth Amendment “protects two types of expectations,
one involving ‘searches,’ the other ‘seizures.’” United States v Jacobsen, 466
US 109, 113 (1984).
Note that “the plain view doctrine addresses the validity of warrantless
seizures, not searches,” whereas “[t]he open view analysis must be
applied to determine whether [an officer’s observation] through the
corner window was an unreasonable search prohibited by the Fourth
Amendment.” People v Barbee, 325 Mich App 1, 6, 7 (2018) (quotation
marks and citation omitted; second emphasis added).
A. Searches and Reasonable Expectation of Privacy

Police conduct constitutes a search subject to Fourth Amendment
restrictions when it (1) “violate[s] a person’s ‘reasonable expectation
of privacy,’” United States v Jones, 565 US 400, 406 (2012), quoting Katz
v United States, 389 US 347, 360 (1967) (Harlan, J., concurring); (2)
involves a physical trespass or intrusion in an attempt to find
something or obtain information, Jones, 565 US at 406-407; or (3)
obtains by sense-enhancing technology any information about the
interior of the home that could not otherwise have been obtained
without a physical intrusion, at least where the technology in
question is not in general public use, Kyllo v United States, 533 US 27,
34-35, 40 (2001). See Jones, 565 US at 407-408 (noting that Justice
Harlan’s concept of “reasonable expectation of privacy” as discussed
in Katz, 389 US at 360-361, and its progeny “did not narrow the Fourth
Amendment’s scope[]” or otherwise “erode the principle ‘that, when
the Government . . . engage[s] in physical intrusion of a
constitutionally protected area in order to obtain information, that
intrusion may constitute a violation of the Fourth Amendment[,]’”
irrespective of any inquiry into a person’s reasonable expectation of
privacy) (citation omitted; emphasis added); Florida v Jardines, 569 US
1, 11 (2013) (noting that “[t]he Katz reasonable-expectations test ‘has
been added to, not substituted for,’ the traditional property-based
understanding of the Fourth Amendment, and so is unnecessary to
consider when the government gains evidence by physically
intruding on constitutionally protected areas[]”) (quoting Jones, 565
US at 409); Kyllo, 533 US at 29-30, 34-35, 40 (noting that even if no
significant invasion of privacy occurred through the use of a thermal-
imaging device to detect relative amounts of heat radiating from a
house, “‘[t]he Fourth Amendment is to be construed in the light of
what was deemed an unreasonable search and seizure when it was

adopted,’” and the conclusion that the use of thermal-imaging

technology constituted a search was necessary for the “preservation
of that degree of privacy against government that existed when the
Fourth Amendment was adopted[]”) (citation omitted).
Establishing that a governmental intrusion violated a person’s

reasonable expectation of privacy for Fourth Amendment purposes
requires both “that a person ha[s] exhibited an actual (subjective)
expectation of privacy,” and “that the expectation [is] one that society
is prepared to recognize as ‘reasonable.’” Katz, 389 US at 361 (Harlan,
J., concurring). When police conduct does not affect a defendant’s
legitimate interest in privacy, the conduct cannot be characterized as a
search, and the conduct therefore does not merit Fourth Amendment
analysis. Illinois v Caballes, 543 US 405, 408 (2005), citing Jacobsen, 466
US at 123.
“[T]he Fourth Amendment governs a claim for unlawful pretrial

detention even beyond the start of legal process[;]” “[t]he Fourth
Amendment prohibits government officials from detaining a person
in the absence of probable cause[, which] . . . can happen when the
police hold someone without any reason before the formal onset of a
criminal proceeding[, or] . . . when legal process itself goes wrong—
when, for example, a judge’s probable-cause determination is
predicated solely on a police officer’s false statements.” Manuel v City
of Joliet, Illinois, 580 US ___, ___ (2017) (holding that where the
petitioner was arrested without probable cause and was detained for
several weeks after a judicial finding of probable cause that was based
on fabrications in the criminal complaint, he “stated a Fourth
Amendment claim when he sought relief not merely for his (pre-
legal-process) arrest, but also for his (post-legal-process) pretrial
detention[]”). “If the complaint is that a form of legal process resulted
in pretrial detention unsupported by probable cause, then the right
allegedly infringed lies in the Fourth Amendment.” Id. at ___.
Under the open view doctrine, “no Fourth Amendment ‘search’

occurs where a law enforcement officer observes incriminating
evidence or unlawful activity from a non-intrusive vantage point.”
People v Barbee, 325 Mich App 1, 7 (2018) (quotation marks and
citation omitted).
Curtilage and open fields. “The curtilage area immediately

surrounding a private house has long been given protection as a place
where the occupants have a reasonable and legitimate expectation of
privacy that society is prepared to accept.” Dow Chemical Co v United
States, 476 US 227, 235 (1986). However, neither outdoor areas of
private property outside the curtilage of the home, Oliver v United
States, 466 US 170, 176-179 (1984), nor outdoor areas of business
property, Dow Chemical Co, 476 US at 238-239, are protected spaces

within the meaning of the Fourth Amendment. Thus, physically

trespassing on open fields outside the curtilage is not a search; nor is
using advanced photographic technology to view an outdoor
industrial complex from the air. Dow Chemical Co, 476 US at 239;
Oliver, 466 US at 179.
Vehicle parked on public street. There is no reasonable expectation

of privacy relative to movements in a vehicle parked on a public
street. Thus, there is no trespass by police when they observe an
occupant’s movement therein. Barbee, 325 Mich App at 10. See also
People v Anthony, ___ Mich App ___, ___ (2019) (“[b]ecause the officers
needed no justification whatsoever to drive down the street, their
individual motivation for going there can be of no constitutional
significance”).
Information generally available to or conveyed to third parties.

There is no reasonable expectation of privacy in information disclosed
or conveyed to third parties, including the interior of a greenhouse
open to the sky and the flying public, Florida v Riley, 488 US 445, 450-
451 (1989) (plurality opinion); garbage put out on the curb for
collection, California v Greenwood, 486 US 35, 39-41 (1988); phone
numbers conveyed to the phone company in the act of dialing, Smith v
Maryland, 442 US 735, 742-745 (1979); financial transactions conveyed
to a bank, United States v Miller, 425 US 435, 442-443 (1976); or
statements made to an undercover informant, United States v White,
401 US 745, 751-753 (1971) (plurality opinion).
Testing of bodily fluids. Urine, breath, and blood tests are searches
within the meaning of the Fourth Amendment. Birchfield v North
Dakota, 579 US ___, ___ (2016); People v Chowdhury, 285 Mich App 509,
523-525 (2009). Breath tests are so minimally intrusive, however, that
they may be done without a warrant incident to a valid drunk driving
arrest. Birchfield, 579 US at ___. Blood tests, on the other hand, require
a warrant absent exigent circumstances, and the natural dissipation of
alcohol from the blood does not automatically establish exigent
circumstances. Missouri v McNeely, 569 US 141, 147 (2013).4
Use of drug-sniffing dogs. There is no reasonable expectation of

privacy in the smell of contraband narcotics, and the use of a drug-
detection dog is therefore generally not a search subject to Fourth
Amendment restrictions. United States v Place, 462 US 696, 697-698,
706-707 (1983). However, the entry of the curtilage of the home to
allow the dog to sniff the home is a search subject to the Fourth
Amendment’s restrictions, Jardines, 569 US at 11-12, and prolonging a
traffic stop to enable a dog to be brought to the scene may be a seizure
subject to the Fourth Amendment if the stop is prolonged beyond the
4 See Section 11.5(A) for discussion of exigent circumstances.

time reasonably required to complete the stop, Rodriguez v United

States, 575 US ___, ___ (2015).
Use of flashlight. The use of a flashlight or other form of illumination

to see an area that is obscured by darkness does not in and of itself
constitute a constitutionally-protected search. United States v Dunn,
480 US 294, 305 (1987); Texas v Brown, 460 US 730, 739-740 (1983)
(plurality opinion); United States v Lee, 274 US 559, 563 (1927); People v
Barbee, 325 Mich App 1, 11 (2018).
Use of GPS tracking device. “[T]he attachment of a Global-

Positioning-System (GPS) tracking device to an individual’s vehicle,
and subsequent use of that device to monitor the vehicle’s movements
on public streets, constitutes a search . . . within the meaning of the
Fourth Amendment.” Jones, 565 US at 402, 404-406 (noting the Court’s
obligation to “‘assur[e] preservation of that degree of privacy against
government that existed when the Fourth Amendment was
adopted[,]’” and holding that when “[t]he Government physically
occupied private property for the purpose of obtaining
information[,]” it conducted a search in violation of the Fourth
Amendment’s warrant requirement) (citation omitted).
Use of historical cell phone records. There is a legitimate expectation

of privacy in the record of physical movements captured through cell
site location information (CSLI), and the fact that the information is
obtained from a third party does not overcome Fourth Amendment
protections. Carpenter (Timothy) v United States, ___ US ___, ___ (2018).
Therefore, the government’s acquisition of CSLI constitutes a search
within the meaning of the Fourth Amendment. Id. at ___ (obtaining a
court order for CSLI records pursuant to the Stored Communications
Act5 was insufficient to justify a search since the required showing
under the Act - reasonable grounds to believe the records are relevant
and material to an ongoing investigation6 - falls short of the probable
cause standard required to obtain a search warrant). While such
records are generated for commercial purposes and shared with a
third-party (the service provider), the Carpenter (Timothy) Court
declined to extend the third party doctrine set forth in Smith, 442 US
at 735 and Miller, 425 US at 435 (discussed above) to CSLI, holding
such information is more akin to GPS information as in Jones, 565 US
at 400 (discussed above).7
518 USC 2701 et seq.
618 USC 2703(d).
7The
Carpenter (Timothy) Court noted that while police must obtain a warrant when collecting CSLI to
assist in a criminal investigation, the rule does not limit their ability to respond to an ongoing emergency.
Id. at ___.

B. Seizures
“[A] seizure may be of a person, a thing, or even a place.” Bailey v
United States, 568 US 186, 189 (2013). “[I]n determining whether a
seizure occurred, a court must consider the totality of the
circumstances.” People v Anthony, ___ Mich App ___, ___ (2019).
A seizure of property within the context of the Fourth Amendment

“occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” Jacobsen, 466 US at
113; see also Place, 462 US at 707-708 (holding that the temporary
detention of luggage for purposes of a dog sniff is a seizure within the
meaning of the Fourth Amendment).
A person is seized for purposes of the Fourth Amendment when there

is an application of physical touching or force, or a nonphysical show
of authority to which the person submits. California v Hodari D, 499 US
621, 626 (1991). Police conduct is not a seizure of the person subject to
Fourth Amendment restrictions unless a reasonable person would not
feel free to leave or decline an officer’s request, or otherwise terminate
the encounter. See Brendlin v California, 551 US 249, 255 (2007); Florida
v Bostick, 501 US 429, 437-438 (1991). “However, there are
circumstances in which a person will not wish to leave, not because of
actions by police but for the individual’s own reasons; such a person
is not ‘seized.’” Anthony, ___ Mich App at ___. “Thus a more precise
definition of a seizure is whether the police conduct would have
communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.”
Id. at ___ (quotation marks and citation omitted).
“Law enforcement officers do not violate the Fourth Amendment’s

prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting
questions to them if they are willing to listen.” Drayton v United States,
536 US 194, 200 (2002). For this reason, the Fourth Amendment
permits police officers to randomly approach individuals in airports,
on buses, and in other public places “to ask questions and to request
their consent to searches, provided a reasonable person would
understand that he or she is free to refuse,” even if the officers do not
advise the individuals that they have the right not to cooperate.
Drayton, 536 US at 197-199, 203-204 (holding that where officers
boarded a bus, told passengers that they were looking for drugs and
weapons, and obtained the respondents’ consent to pat them down,
resulting in the discovery of cocaine and other evidence, the
respondents were not seized for Fourth Amendment purposes where
“[t]he officers gave the passengers no reason to believe that they were
required to answer the officers’ questions”); see also Bostick, 501 US at
431, 433-437; Florida v Rodriguez, 469 US 1, 4-6 (1984).

A passenger traveling in a vehicle that is stopped by the police is

seized under the Fourth Amendment. People v Mazzie, ___ Mich App
___, ___ (2018). See also People v Simmons (Michael), 316 Mich App 322,
326 (2016).8
11.4 Standing9 Generally (Expectation of Privacy)

“The concept of standing in Fourth Amendment cases can be a useful
shorthand for capturing the idea that a person must have a cognizable
Fourth Amendment interest in the place searched before seeking relief
for an unconstitutional search; but it should not be confused with Article
III standing, which is jurisdictional and must be assessed before reaching
the merits.” Byrd v United States, 584 US ___, ___ (2018) (stating that
Fourth Amendment standing “need not be addressed before addressing
other aspects of the merits of a Fourth Amendment claim; accordingly, a
court is not required to assess a defendant’s reasonable expectation of
privacy before addressing whether there was probable cause for the
search if the probable cause argument has been preserved).
A defendant may claim the benefits of the exclusionary rule only if his or
her own Fourth Amendment rights have in fact been violated; there is no
“‘automatic standing.’” United States v Salvucci, 448 US 83, 85 (1980). A
defendant must demonstrate that he or she personally had an
expectation of privacy in the object of the search or seizure, and that the
expectation is one that society recognizes as reasonable. People v Smith
(Lee), 420 Mich 1, 28 (1984). “[T]he central legal question [is] whether,
under Fourth Amendment jurisprudence, [the] defendant could assert a
privacy right under the circumstances.” People v Antwine, 293 Mich App
192, 195 n 1 (2011); see also Rakas v Illinois, 439 US 128, 138-139 (1978)
(noting that although examining the issue purely as one of standing
would produce the same results, “the better analysis forth-rightly focuses
on the extent of a particular defendant’s rights under the Fourth
Amendment, rather than on any theoretically separate, but invariably
intertwined concept of standing[]”). A defendant attacking the propriety
of a search or seizure has the burden of establishing that his or her
reasonable and personal expectation of privacy was infringed upon.
People v Nash, 418 Mich 196, 204-205 (1983) (opinion by Brickley, J.); People
v Lombardo, 216 Mich App 500, 505 (1996). In deciding the issue, the court
should consider the totality of the circumstances. People v Perlos, 436 Mich
305, 317-318 (1990).
Note: In recent years, the United States Supreme Court has

emphasized that the “reasonable expectation of privacy” test
8See Section 11.6(B)(3) for more information on seizure of automobile occupants.
9 See Section 11.6(A) for more information on standing as it relates to dwelling searches.

is not applicable in the context of physical intrusions onto

constitutionally protected property. See United States v Jones,
565 US 400, 407-408 (2012) (noting that Justice Harlan’s
concept of “reasonable expectation of privacy” as discussed
in Katz v United States, 389 US 347, 360-361 (1967) (Harlan, J.,
concurring), and its progeny “did not narrow the Fourth
Amendment’s scope[]” or otherwise “erode the principle
‘that, when the Government . . . engage[s] in physical
intrusion of a constitutionally protected area in order to
obtain information, that intrusion may constitute a violation
of the Fourth Amendment[,]’” irrespective of any inquiry
into a person’s reasonable expectation of privacy) (citation
omitted; emphasis added); Florida v Jardines, 569 US 1, 11
(2013) (noting that “[t]he Katz reasonable-expectations test
‘has been added to, not substituted for,’ the traditional
property-based understanding of the Fourth Amendment,
and so is unnecessary to consider when the government
gains evidence by physically intruding on constitutionally
protected areas[]”) (quoting Jones, 565 US at 409).
“‘Factors relevant to the determination of standing include ownership,

possession and/or control of the area searched or item seized; historical
use of the property or item; ability to regulate access; the totality of the
circumstances surrounding the search; the existence or nonexistence of a
subjective anticipation of privacy; and the objective reasonableness of the
expectation of privacy considering the specific facts of the case.’” People v
Brown (Craig), 279 Mich App 116, 130-131 (2008) (quoting People v Powell
(Paul), 235 Mich App 557, 563 (1999), and holding that 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) (additional quotation
marks omitted).
A person can abandon property and entirely deprive him- or herself of

the ability to contest a search and seizure of that property. People v Zahn,
234 Mich App 438, 448 (1999). The search or seizure of property that has
been abandoned “is presumptively reasonable because the owner no
longer has an expectation of privacy in the property that he [or she] has
abandoned.” People v Rasmussen, 191 Mich App 721, 725 (1991). “[W]hile
abandonment in the property law context looks to whether the person
relinquished his [or her] ownership interest in the property, abandonment
under the Fourth Amendment inquires whether ‘the person prejudiced
by the search had voluntarily discarded, left behind, or otherwise
relinquished his [or her] interest in the property in question so that he [or
she] could no longer retain a reasonable expectation of privacy [in it].’”
People v Henry (Darrin), 477 Mich 1123 (2007) (citation omitted; fifth
alteration in original). The defendant bears the burden of showing that

the property searched was not abandoned. Rasmussen, 191 Mich App at
725. Whether an owner abandoned his or her property is an ultimate fact
that turns on a combination of act and intent. People v Shabaz, 424 Mich
42, 65-66 (1985).
11.5 Exceptions to the Warrant Requirement

Warrantless searches are permitted under specific circumstances.
A. Exigent Circumstances: Hot Pursuit, Emergency Aid, and

Community Caretaking Exceptions
The exigent circumstances exception is a recognized exception to the
Fourth Amendment warrant requirement. People v Cartwright, 454
Mich 550, 558-559 (1997). The warrantless entry of a dwelling may be
justified by “hot pursuit of a fleeing felon, to prevent the imminent
destruction of evidence, to preclude a suspect’s escape, and where
there is a risk of danger to police or others inside or outside a
dwelling.” Cartwright, 454 Mich 558. Additionally, a police officer or
firefighter may enter a dwelling without a warrant where it is
reasonable to believe that a person inside the dwelling is in need of
immediate medical assistance. People v Slaughter, 489 Mich 302, 316-
317 (2011); People v Davis (Harriet), 442 Mich 1, 14 (1993); City of Troy v
Ohlinger, 438 Mich 477, 483-484 (1991); People v Hill (Eric), 299 Mich
App 402, 404-410 (2013).
A police officer’s conduct before the exigency must be reasonable to

justify a warrantless search under exigent circumstances. Kentucky v
King, 563 US 452, 462 (2011). In King, 563 US at 455-456, police officers
pursued a suspect into an apartment building and, fearing the
destruction of evidence because of sudden movement inside,
eventually entered into one of two apartments where they thought
the suspect was hiding. Inside, the officers found drugs and drug
paraphernalia, but not the suspect, who was in the other apartment.
Id. at 456-457. The United States Supreme Court concluded:
“[T]he exigent circumstances rule justifies a warrantless

search when the conduct of the police preceding the
exigency is reasonable[.] . . . Where[] . . . the police did
not create the exigency by engaging or threatening to
engage in conduct that violates the Fourth Amendment,
warrantless entry to prevent destruction of the evidence
is reasonable and thus allowed.” King, 563 US at 462.
The King Court rejected other requirements used by some courts

when examining whether exigent circumstances existed at the time of
the search. King, 563 US at 463-469. Courts need not evaluate (1) an

officer’s motive; (2) whether it was reasonably foreseeable that the

officer’s tactics would create the exigent circumstances; (3) the
officer’s failure to seek a warrant after establishing sufficient probable
cause to search the premises; (4) whether the course of an officer’s
investigation was contrary to standard or good law enforcement
practices or policies; or (5) whether officers engaged in conduct that
would cause a reasonable person to believe that entry was imminent
and inevitable. Id.
Pursuant to the exigent circumstances exception, a police officer “may

enter a dwelling without a warrant if the officer possesses probable
cause to believe that a crime was recently committed on the premises,
and probable cause to believe that the premises contain evidence or
perpetrators of the suspected crime.” In re Forfeiture of $176,598, 443
Mich 261, 271 (1993). “The police must further establish the existence
of an actual emergency[—the exigent circumstances—]on the basis of
specific and objective facts indicating that immediate action is
necessary to (1) prevent the imminent destruction of evidence, (2)
protect the police officers or others, or (3) prevent the escape of a
suspect.” Id.
To justify the warrantless entry of a residence on the basis of an

emergency, the officer must articulate specific and objective facts that
reveal an actual emergency amounting to more than a mere
possibility of an immediate risk of the destruction or removal of
evidence. People v Blasius, 435 Mich 573, 593-594, 598 (1990).
A law enforcement officer’s warrantless entry into a home is

permitted when the officer has “an objectively reasonable basis for
believing that an occupant is seriously injured or imminently
threatened with such injury.” Brigham City, Utah v Stuart, 547 US 398,
400, 405-407 (2006) (holding that if an officer’s action is justified under
an objective view of the circumstances, the action is reasonable for
Fourth Amendment purposes, regardless of the officer’s state of
mind, and concluding that where officers were confronted with
ongoing violence occurring within a home during their investigation
of a neighbor’s early morning complaint about a loud party, exigent
circumstances justified the officers’ warrantless entry). See also
Michigan v Fisher, 558 US 45, 48 (2009) (concluding that the emergency
aid exception applied where police responding to reports of a
disturbance encountered “a tumultuous situation in the house[]” and
“signs of a recent injury, perhaps from a car accident, outside[]”).
The emergency aid exception justified the warrantless entry of the

defendant’s parents’ home, where officers, looking through a window
in the front door to the house, saw a motionless person slumped over
the kitchen table in close proximity to a rifle and ammunition. People v
Tierney, 266 Mich App 687, 704-705 (2005). Based on these specific and

articulable facts, officers had a reasonable belief that the person

slumped over the table may have needed emergency medical
assistance. Id.
Where a police officer was dispatched to a domestic violence incident

possibly involving weapons, a warrantless entry and search of the
premises were permissible under both the exigent circumstances and
emergency aid exceptions. People v Beuschlein, 245 Mich App 744, 746,
757-758 (2001).
The emergency aid exception justified a warrantless entry where

police were notified that the defendant’s front door was open and
blowing in the wind, and where “[n]o one came to the open door[]”
when “[t]he officers knocked on the door, rang the doorbell, and
repeatedly announced their presence[;]” because the officers
suspected a home invasion rather than drug activity, they were
justified in entering the home to secure the premises and locate any
victims or suspects inside.10 People v Lemons (Cory), 299 Mich App 541,
546-548 (2013) (noting that “[t]he emergency-aid exception is not an
inquiry into hindsight[]” and that “there was a very real possibility
that someone could have been inside who needed police
assistance[]”).11
Because a police officer “might reasonably have believed that he was

confronted with an emergency[]” and that failure to take immediate
action might have resulted in the destruction of evidence, the
warrantless collection of blood from a defendant arrested for criminal
drunk driving was upheld. Schmerber v California, 384 US 757, 770-771
(1966) (noting that “where time had to be taken to bring the accused
to a hospital and to investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant[]”).
However, “the natural metabolization of alcohol in the bloodstream

[does not] present[] a per se exigency that justifies an exception to the
Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all drunk-driving cases.” Missouri v McNeely, 569 US 141,
145 (2013). Whether the exigency exception applies to the
nonconsensual collection of blood requires a case-by-case review of
10 “Alternatively, [the] police also could be exercising their community caretaking function when securing a
house whose door was wide open and blowing in the wind.” Lemons (Cory), 299 Mich App at 546 n 1, 549
n 2 (noting, however, that “‘when the police are investigating a situation in which they reasonably believe
someone is in need of immediate aid, their actions should be governed by the emergency aid doctrine,
regardless of whether these actions can also be classified as community caretaking activities[]’”) (quoting
Davis (Harriet), 442 Mich at 25).
11
The Lemons (Cory) Court additionally held that “even if the officers’ behavior fell short of satisfying the
criteria set forth in the emergency-aid exception,” the exclusionary rule did not apply to the drug evidence
that was discovered following the warrantless entry because “[t]he police officers were acting in good
faith” when they “entered the residence because they believed people could be inside and were in need of
immediate aid.” Lemons (Cory), 299 Mich App at 549-550.

the totality of the circumstances as to whether there has been a

“showing [of] exigent circumstances that make securing a warrant
impractical in a particular case.” Id. at 160. “[F]actors present in an
ordinary traffic stop, such as the procedures in place for obtaining a
warrant or the availability of a magistrate judge, may affect whether
the police can obtain a warrant in an expeditious way and therefore
may establish an exigency that permits a warrantless search[; t]he
relevant factors in determining whether a warrantless search is
reasonable, including the practical problems of obtaining a warrant
within a timeframe that still preserves the opportunity to obtain
reliable evidence, will no doubt vary depending upon the
circumstances in the case.” Id. at 164. “In those drunk-driving
investigations where police officers can reasonably obtain a warrant
before a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth Amendment
mandates that they do so.” Id. at 152, 163 (noting the absence of “any .
. . factors that would suggest [the arresting officer] faced an
emergency or unusual delay in securing a warrant[]”).
As part of his or her “community caretaking” function, a police officer

may enter a dwelling without a warrant where it is reasonably
believed that a person inside is in need of medical assistance; the
entry must be limited to the reason for its justification, and the officer
must be motivated primarily by a perceived need to render assistance
and may do no more than is reasonably necessary to determine
whether assistance is required and render it. Davis (Harriet), 442 Mich
at 20-26 (1993).12 See also Hill (Eric), 299 Mich App at 404-410
(applying the community caretaking exception to the warrantless
entry of the defendant’s home by police officers while performing a
welfare check after the defendant’s neighbor called police with
concerns about the defendant’s well-being, despite “a lack of direct
evidence definitively showing that [he] was present and in actual
need of aid or assistance[,]” where it was reasonable, under all of the
circumstances, for the officers “to conclude that [the] defendant was
not only present but in need of attention, aid, or some kind of
assistance[]”).13
12
However, “when the police are investigating a situation in which they reasonably believe someone is in
need of immediate aid, their actions should be governed by the emergency aid doctrine, regardless of
whether these actions can also be classified as community caretaking activities.” Davis (Harriet), 442 Mich
at 25.
13 The Hill (Eric) Court additionally held that, “even if a constitutional violation by the officers had occurred
on the basis of a lack of criteria sufficient to justify invocation of the community-caretaker exception,”
exclusion of marijuana discovered in the house was inappropriate where “the police, having at least some
indicia of need, enter[ed] a home in a good-faith effort to check on the welfare of a citizen[;]” suppression
of the evidence, rather than deterring police misconduct, “would only deprive citizens of helpful and
beneficial police action.” Hill (Eric), 299 Mich App at 411, 414-415.

“[T]he community caretaking exception to the warrant requirement

applies when a firefighter, responding to an emergency call involving
a threat to life or property, reasonably enters a private residence in
order to abate what is reasonably believed to be an imminent threat of
fire inside.” Slaughter, 489 Mich at 316-317. In Slaughter, 489 Mich at
306-308, a firefighter responded to a 911 call from a townhouse
resident reporting that water was flowing over her electrical box and
behind a wall that adjoined the defendant’s townhouse; when the
firefighter entered the defendant’s basement “to shut off [his] water
and to assess whether any additional measures needed to be taken to
prevent a fire,” the firefighter observed, in plain view, grow lights and
marijuana plants, which were later seized pursuant to a search
warrant. The Michigan Supreme Court held that warrantless entry is
permissible where “a firefighter’s entry into a private residence [is] an
exercise of community caretaking functions, and not an exercise of
investigative functions,” and where the firefighter, “acting in good
faith, . . . ‘possess[es] specific and articulable facts’ leading [him or
her] to the conclusion that [his or her] actions [are] necessary to abate
an imminent threat of fire inside the private residence.” Id. at 317, 320,
quoting Davis (Harriet), 442 Mich at 25. Thus, because “the responding
firefighter[] believed that there existed the imminent threat of an
electrical fire in [the] defendant’s residence[,] . . . reasonably believed
that the danger posed an imminent threat to property or life, and . . .
acted reasonably in abating that threat[,]” the lower courts erred in
suppressing the marijuana that was discovered in plain view during
the entry. Slaughter, 489 Mich at 328-329.
B. Search Incident to Arrest

Once there is a custodial arrest, a full search of the person requires no
additional justification. United States v Robinson, 414 US 218, 235
(1973). 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 164, 176 (2008). “[O]fficers may perform searches incident to
constitutionally permissible arrests in order to ensure their safety and
safeguard evidence.” Id. at 176. This rule covers any “lawful arrest[,]”
i.e., “an arrest based on probable cause[.]” Id. at 177. While some
states have construed lawfulness as “compliance with state law[,]”
the United States Supreme Court intends “‘lawful’” to mean in
“compliance with constitutional constraints.” Id., citing Robinson, 414
US 218.
“There was no probable cause to arrest [the] defendant for trespassing

. . . under [a] city ordinance” where the defendant walked through a
parking lot “that was open to the public, during business hours, for a
very brief period of time[, and d]uring that brief time, no indication
was given that [the] defendant was told to leave or that he annoyed or
disturbed anyone[;]” “[t]he fact that the officer knew the parking lot .
. . was often used for illegal drug transactions and other illicit
purposes [did] not change the analysis.” People v Maggit, 319 Mich
App 675, 684-686 (2017) (additionally holding that probable cause to
arrest did not exist based on a no-trespassing sign in the parking lot
or the police department’s receipt of a letter from one of the
establishments served by the parking lot indicating its intent to
prosecute trespassers). Moreover, no “reasonable mistake of law[]”
occurred within the meaning of Heien v North Carolina, 574 US ___
(2014), such that no Fourth Amendment violation occurred; “the
[officer’s] conclusion that [the] defendant violated the [trespassing]
ordinance was not objectively reasonable[]” because “[t]he ordinance
[unambiguously] prohibited remaining on property to the annoyance
or disturbance of the lawful owner[,]” which “required knowledge on
the part of [the] defendant that he was annoying or disturbing
someone on the property[.]” Maggit, 319 Mich App at 687, 691.
Where law enforcement officers have “probable cause to arrest [a]

defendant, the fact that [the] defendant was searched immediately
before his [or her] arrest does not make the search incident to the arrest
invalid.” People v Nguyen, 305 Mich App 740, 757 (2014) (citing People
v Labelle, 478 Mich 891, 891 (2007), and concluding that, “[b]ecause a
search incident to an arrest may occur whenever there is probable
cause to arrest, even if the arrest has not been made at the time the
search is conducted, the police [are] not required to arrest [the]
defendant before conducting the search incident to the arrest[]”)
(emphasis added).
A warrant is generally required in order to perform a search of

information on a cell phone, even when the cell phone is seized
incident to arrest. Riley v California, 573 US ___, ___ (2014). When a
search is of digital data there are “no comparable risks” to the
concerns that underlie the search incident to arrest exception to the
warrant requirement—harm to officers and the destruction of
evidence; moreover, cell phones “place vast quantities of personal
information literally in the hands of individuals[, and a] search of
[such information] bears little resemblance to the type of brief
physical search” that was previously sanctioned by the Court. Id. at
___ (noting, however, that other case-specific exceptions, such as the
exigent circumstances exception, “may still justify a warrantless
search of a particular phone[]”).
“[T]he Fourth Amendment permits warrantless breath tests incident

to arrests for drunk driving[,]” and a state may criminally prosecute a
driver for refusing a warrantless breath test;14 “[t]he impact of breath
14
Note that Michigan does not currently criminalize an individual’s refusal to submit to a preliminary
chemical breath analysis (PBT); refusal to submit is a civil infraction. See MCL 257.625a(2)(d).

tests on privacy is slight, and the need for [blood alcohol

concentration (BAC)] testing is great.” Birchfield v North Dakota, 579
US ___, ___ (2016). However, “[b]ecause breath tests are significantly
less intrusive than blood tests and in most cases amply serve law
enforcement interests, . . . a blood test[] may [not] be administered as
a search incident to a lawful arrest for drunk driving[,]” and
“motorists cannot be deemed to have consented to submit to a blood
test on pain of committing a criminal offense.” Id. at ___ (concluding
that one of the three petitioners in the case “was threatened with an
unlawful search” under a state law making it a crime to refuse a
warrantless blood draw, and that “the search he refused [could not]
be justified as a search incident to his arrest or on the basis of implied
consent[]”) (emphasis added).15
The defendant could not prevent analysis of a blood sample taken

with her consent by withdrawing consent after the collection of the
sample was completed. People v Woodard, 321 Mich App 377, 395, 396
(2017). “[B]lood [that] has been lawfully collected for analysis may be
analyzed without infringing on additional privacy interests or raising
separate Fourth Amendment concerns.” Id. at 390-391. “[O]nce police
procured a sample of [the] defendant’s blood pursuant to her consent,
she had no reasonable expectation of privacy in the blood alcohol
content of that sample and it could be examined for that purpose
without her consent[;]” “the subsequent analysis of the blood did not
constitute a separate search and [the] defendant simply had no Fourth
Amendment basis on which to object to the analysis of the blood for
the purpose for which it was drawn.” Id. at 396. “[W]ithdrawal of
consent after the search has been completed does not entitle a
defendant to the return of evidence seized during the course of a
consent search because those items are lawfully in the possession of
the police; and, by the same token, a defendant who consents to the
search in which evidence is seized cannot, by revoking consent,
prevent the police from examining the lawfully obtained evidence.”
Id. at 394, 395.
15 However, although “the natural metabolization of alcohol in the bloodstream [does not] present[] a per
se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual
blood testing in all drunk-driving cases[,]” Missouri v McNeely, 569 US 141, 145 (2013), “[n]othing prevents
the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular
circumstances or from relying on the exigent circumstances exception to the warrant requirement when
there is not[,]” Birchfield, 579 US at ___, citing McNeely, 569 US at ___. See MCL 257.625d(1). “[C]onsistent
with general Fourth Amendment principles . . . exigency in this context must be determined case by case
based on the totality of the circumstances.” McNeely, 569 US at 145. See Section 11.5(A) for discussion of
the exigent circumstances exception to the warrant requirement. See Section 3.27 for discussion of implied
consent laws.

C. Automobile Exception16
An automobile may be searched without a warrant. Carroll v United
States, 267 US 132 (1925). Two justifications support the automobile
exception: (1) the ready mobility of vehicles, and (2) the pervasive
regulation of vehicles capable of traveling on public highways. See
Collins v Virginia, ___ US ___, ___ (2018). However, “the automobile
exception does not permit an officer without a warrant to enter a
home or its curtilage[17] in order to search a vehicle therein.” Id. at ___
(“the scope of the automobile exception extends no further than the
automobile itself”).
D. Inventory Search
After a custodial arrest, the police may, according to established
procedure, search any property belonging to the suspect that is
impounded at the time of arrest; this is commonly referred to as an
inventory search. See Slaughter, 489 Mich at 311-312; Hill (Eric), 299
Mich App at 418.
In order for a vehicle inventory search to be valid, it must be shown

that it was conducted in accordance with reasonable procedures
established to safeguard impounded vehicles and their contents.
People v Long (David Kerk) (On Remand), 419 Mich 636, 650 (1984).
Where no such procedures are present or where a police officer acts in
a manner contrary to established procedures, the inventory search is
unlawful. Id. at 648.
The decision to impound a car must be based on an established set of

departmental procedures followed by all officers. People v Toohey, 438
Mich 265, 267, 291 (1991). An impoundment and subsequent
inventory search is undertaken as part of the caretaking functions
performed by the police. Id. at 284-285. Impoundment must not be
used as a pretext for conducting a criminal investigation. Id. at 285.
Police officers may open closed containers pursuant to an inventory

search only if established departmental policies authorize such an
action. See Florida v Wells, 495 US 1, 4-5 (1990) (holding that, absent a
policy with respect to the opening of closed containers encountered
during an inventory search, such a search is not sufficiently regulated
to satisfy the Fourth Amendment).
16
For more detailed information regarding the search of automobiles, including probable cause and
specific types of searches/seizures, see Section 11.6(B).
17 See Section 11.6(A) for more information on what constitutes curtilage.

E. Investigatory Stop—Terry18 Stop19

A police officer may make a brief investigatory stop (a Terry stop) of
an individual if the officer has reasonable suspicion that crime is
afoot. Terry v Ohio, 392 US 1, 27 (1968); People v Champion (Kenneth),
452 Mich 92, 98 (1996). A Terry stop need not be based upon probable
cause; rather, an officer may “stop and frisk” a defendant based upon
a reasonable suspicion supported by articulable facts that criminal
activity might be afoot. Terry, 392 US at 30. Reasonable suspicion is
more than a hunch, but less than the level of suspicion required for
probable cause, Champion (Kenneth), 452 Mich at 98, and must be
based on commonsense judgments and inferences about human
behavior, Illinois v Wardlow, 528 US 119, 125 (2000).
During an investigatory stop, “[a] police officer may perform a

limited patdown search for weapons if the officer has a reasonable
suspicion that the individual is armed, and thus poses a danger to the
officer or to other persons.” People v Custer, 465 Mich 319, 328 (2001)
(opinion by Markman, J.); see Terry, 392 US at 27. “Terry strictly limits
the permissible scope of a patdown search to that reasonably
designed to discover guns, knives, clubs, or other hidden instruments
that could be used to assault an officer.” Champion (Kenneth), 452 Mich
at 99. The officer may seize any contraband that is immediately
apparent if he or she has probable cause to believe the object is
contraband. Id. at 100-101. “It is the totality of the circumstances in a
given case that determine whether a patdown search is
constitutional.” Custer, 465 Mich at 328.
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. People v Jenkins (Shawn), 472 Mich
26, 32-33 (2005). “When an officer approaches a person and seeks
voluntary cooperation through noncoercive questioning, there is no
restraint on that person’s liberty, and the person is not seized.” Id. at
33. “A ‘seizure’ within the meaning of the Fourth Amendment occurs
only if, in view of all the circumstances, a reasonable person would
have believed that he [or she] was not free to leave.” Id. at 32. 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. Id. at 35. Evidence discovered as a result of these legal
detentions is properly seized at the time the individual citizen is
seized. Id. at 34-35.
18 Terry v Ohio, 392 US 1 (1968).
19 See Section 11.6(B) for related discussion of automobile stops.

“‘[A]n anonymous tip alone seldom demonstrates [an] informant’s

basis of knowledge or veracity.’” Navarette v California, 572 US 393, ___
(2014), quoting Alabama v White, 496 US 325, 329 (1990) (emphasis
added). However, where, under the totality of the circumstances, an
anonymous tip bears “adequate indicia of reliability” and “creates
reasonable suspicion that ‘criminal activity may be afoot,’” an
investigative stop may be justified. Navarette, 572 US at ___, ___,
quoting Terry, 392 US at 30. See also People v Horton (Lajamille), 283
Mich App 105, 113 (2009) (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).20
F. Consent
There is no need for a search warrant where the defendant consents to
the search. What amounts to consent varies in relation to the person
granting it.
• Consent by defendant:
When a defendant voluntarily consents to a warrantless search or

seizure, there is no Fourth Amendment violation. People v Chism, 390
Mich 104, 123 (1973). To justify a warrantless search or seizure on the
basis of consent, the prosecution must show by clear and positive
evidence that the defendant consented to the search and seizure.
People v Kaigler, 368 Mich 281, 294 (1962). Whether consent was in fact
voluntary in a particular case or was given in submission to an
express or implied assertion of authority is a question of fact to be
determined in light of all the circumstances. Schneckloth v Bustamonte,
412 US 218, 227 (1973).
There are “basic principles governing the scope of searches

authorized by consent.” People v Dagwan, 269 Mich App 338, 343
(2005). “First, the party granting consent to a search may limit its
scope or may revoke consent after granting it.” Id. “Thus, because
consent flows from its grantor, ‘[a] suspect may of course delimit as
he [or she] chooses the scope of the search to which he [or she]
consents.’” Id., quoting Florida v Jimeno, 500 US 248, 252 (1991) (first
alteration in original). “Second, the constitutional standard for
determining the scope of a consent to search ‘is that of “objective
20
In Horton (Lajamille), 283 Mich App at 107, police properly detained the defendant where the police
received in-person information from a citizen, who declined to identify himself, that a black male,
approximately 30 years of age and 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.” (Second alteration in original.)

reasonableness”—what would the typical reasonable person have

understood by the exchange between the officer and the suspect?’”
Dagwan, 269 Mich App at 343, quoting Jimeno, 500 US at 251. “The
Jimeno Court also observed, ‘[t]he scope of a search is generally
defined by its expressed object.’” Dagwan, 269 Mich App at 343,
quoting Jimeno, 500 US at 251.
The defendant could not prevent analysis of a blood sample taken

with her consent by withdrawing consent after the collection of the
sample was completed. People v Woodard, 321 Mich App 377, 395, 396
(2017). “[B]lood [that] has been lawfully collected for analysis may be
analyzed without infringing on additional privacy interests or raising
separate Fourth Amendment concerns.” Id. at 390-391. “[O]nce police
procured a sample of [the] defendant’s blood pursuant to her consent,
she had no reasonable expectation of privacy in the blood alcohol
content of that sample and it could be examined for that purpose
without her consent[;]” “the subsequent analysis of the blood did not
constitute a separate search and [the] defendant simply had no Fourth
Amendment basis on which to object to the analysis of the blood for
the purpose for which it was drawn.” Id. at 396. “[W]ithdrawal of
consent after the search has been completed does not entitle a
defendant to the return of evidence seized during the course of a
consent search because those items are lawfully in the possession of
the police; and, by the same token, a defendant who consents to the
search in which evidence is seized cannot, by revoking consent,
prevent the police from examining the lawfully obtained evidence.”
Id. at 394-395.
Consent given by a suspect who is not in custody may be valid even if

given after a request to speak to an attorney. People v Marsack, 231
Mich App 364, 376 (1998).
• Consent by third person:
“[P]olice officers may search jointly occupied premises if one of the

occupants[21] consents.” Fernandez v California, 571 US ___, ___ (2014),
citing United States v Matlock, 415 US 164 (1974). “[W]hen the
prosecution seeks to justify a warrantless search by proof of voluntary
consent, it is not limited to proof that consent was given by the
defendant, but may show that permission to search was obtained
from a third party who possessed common authority over or other
sufficient relationship to the premises or effects sought to be
inspected.” Matlock, 415 US at 171. See also Illinois v Rodriguez, 497 US
177, 181 (1990) (addressing “common authority” and holding that a
21
The United States Supreme Court “use[s] the terms ‘occupant,’ ‘resident,’ and ‘tenant’ interchangeably
to refer to persons having ‘common authority’ over premises within the meaning of [United States v
Matlock, 415 US 164, 171, 172 n 7 (1974)].” Fernandez v California, 571 US ___, ___ n 1 (2014).

person who has equal possession or control of the premises searched

may also consent to a search). “[P]olice officers’ belief in a third
party’s ability to consent to a search must be reasonable under the
circumstances; a good-faith belief is not the controlling criterion.”
People v Goforth, 222 Mich App 306, 312 (1997). Police need not “make
a further inquiry regarding a third party’s ability to validly consent to
a search unless the circumstances are such as to cause a reasonable
person to question the consenting party’s power or control over the
premises or property.” Id.
In Georgia v Randolph, 547 US 103 (2006), the United States Supreme

Court “recognized a narrow exception” to the rule of Matlock, 415 US
164, that “consent by one resident of jointly occupied premises is
generally sufficient to justify a warrantless search.” Fernandez, 571 US
at ___, ___. In Randolph, 547 US at 122-123, the Court held that a
warrantless search of a shared dwelling, conducted pursuant to the
consent of one co-occupant when a second co-occupant is present and
expressly refuses to consent to the search, is unreasonable and invalid
as to the co-occupant who refused consent. Stated another way, “[a]
co-occupant[] . . . can invalidate the consent given by another
occupant if he is present on the premises and expressly objects to the
search.” City of Westland v Kodlowski, 298 Mich App 647, 667 (2012),
vacated in part and reversed in part on other grounds 495 Mich 871
(2013).22
However, the holding of Randolph, 547 US 103, is “limited to

situations in which the objecting occupant is physically present,” and
it does not apply “if the objecting occupant is absent when another
occupant consents.” Fernandez, 571 US at ___, ___. Moreover, “an
occupant who is absent due to a lawful detention or arrest stands in
the same shoes as an occupant who is absent for any other reason,”
even if the absent occupant “objected to the search while he was still
present.” Id. at ___ (holding that “consent . . . provided by an abused
woman well after [the petitioner] had been removed [by police
officers] from the apartment they shared” was sufficient to justify a
warrantless search of the apartment, even though the petitioner had
“appeared at the door” and objected to the officers’ entry before he
was placed under arrest and taken to the police station).
The seizure of a wallet, keys, and a cell phone from the defendant’s
mother’s apartment “fell outside the scope of [the mother’s] consent”
where “[t]he testimony establishe[d] that a reasonable person would
have believed that the scope of the search pertained [only] to illegal

drugs hidden in the apartment.” People v Mahdi, 317 Mich App 446,
461, 474 (2016). “‘[T]he scope of a search is generally defined by its
expressed object,’” and the mother’s “consent to search her apartment
for the limited purpose of uncovering illegal drugs did not constitute
consent to seize any item.” Id. at 461-462, quoting Dagwan, 269 Mich
App at 343 (internal quotation marks omitted).
“While a co-occupant may invalidate another co-occupant’s consent

in cases where the police are entering to search for evidence, a co-
occupant’s withdrawal of his consent to the presence of the police
does not preclude officers from continuing to investigate cases of
potential domestic violence.” Kodlowski, 298 Mich App at 667-669
(holding that “defendant’s decision to revoke his consent [to search]
did not render the officers’ presence unlawful,” since “the officers
were present to respond to a domestic dispute” and therefore “had an
obligation to investigate potential domestic violence”).
When a defendant is arrested and a cotenant consents to an officer’s

entry into the home the cotenant shares with the defendant, the
defendant’s invocation of his right to counsel and his right to remain
silent did not constitute an objection to the officer’s entry for purposes
of suppressing incriminating evidence against the defendant
observed by the officer while in the home. People v Lapworth, 273 Mich
App 424, 425 (2006).
Where the defendant was permitted to use a third-party’s personal

computer, which was located in a residence separate from the
defendant’s, the third-party’s consent to search the computer was
valid, even though the defendant’s e-mail account was password
protected. People v Brown (Craig), 279 Mich App 116, 132-134 (2008).
Where the driver of a vehicle consented to its search following a valid

traffic stop, a police officer’s search of the passenger’s backpack was
found to be valid. People v Labelle, 478 Mich 891, 891-892 (2007).
Because the stop of the vehicle was legal, the passenger lacked
standing to challenge the search of the vehicle. Id. at 892. Additionally,
“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. See also People v Mead (On
Remand), 320 Mich App 613, 617-618 (2017) (holding that Labelle was
not distinguishable from the instant case and that under Labelle,
where the defendant was a passenger in a vehicle that was lawfully
stopped by a police officer, who obtained the driver’s consent to
search the vehicle, the defendant “lacked standing to challenge the
search, and [the officer] had authority to search [his unlocked]
backpack[]” in the vehicle’s passenger compartment; “[b]ecause [the
defendant] lack[ed] standing to challenge the search, any challenge to
the search must fail[]”).

• Consent obtained by reference to search warrant:
There is no consent if police say or suggest that they have a search

warrant if they do not, in fact, have one.
“In Bumper v North Carolina, [391 US 543 (1968)], the

United States Supreme Court made clear that where a
person ‘permits’ a search in the face of an assertion by
the police that they have a warrant, there is no consent
that can support the validity of the search.
***
“[T]he defendant testified that [the police officer]

displayed a search warrant form in his folder when he
confronted the defendant. The defendant also testified
that he believed the officers had a warrant and allowed
them to enter for that reason. The circuit judge
ultimately found that testimony believable, relying
particularly on the specificity of the defendant’s
testimony by contrast to that of the officers. Such factual
determinations by trial judges are to be sustained unless
clearly erroneous.” People v Farrow, 461 Mich 202, 207-
208 (1999).
G. Special Needs, Inspections, Border Searches, and

Regulatory Searches
Certain searches do not have to be accompanied by a warrant so long
as the need to search outweighs the invasion that the search entails. A
warrant is not required under the governmental “special needs” or
regulatory exception to the warrant requirement as long as the search
satisfies reasonable legislative or administrative standards. People v
Chowdhury, 285 Mich App 509, 517, 522 (2009) (ordinance permitting
police to conduct warrantless preliminary breath tests (PBTs) on
minors found unconstitutional; the special needs exception was
inapplicable because the police were merely attempting to detect
evidence of ordinary criminal wrongdoing). Likewise, inspections,
border searches, and regulatory searches must be based upon
reasonable standards. See United States v Brignoni-Ponce, 422 US 873,
884 (1975) (“[e]xcept at the border and its functional equivalents,
officers on roving patrol may stop vehicles only if they are aware of
specific articulable facts, together with rational inferences from those
facts, that reasonably warrant suspicion that the vehicles contain
aliens who may be illegally in the country[]”). See also Camara v
Municipal Court, 387 US 523, 528-539 (1967) (administrative searches
by municipal health and safety inspectors constitute significant
intrusions upon protected Fourth Amendment interests, and lack

traditional safeguards when conducted without warrant procedure;

“[i]f a valid public interest justifies the intrusion contemplated, then
there is probable cause to issue a suitably restricted search warrant”);
People v Beydoun, 283 Mich App 314, 316, 323-324 (2009) (exemption
from the warrant requirement applies to properly conducted
administrative inspections of pervasively regulated industries, e.g.,
tobacco products).
11.6 Location of the Search

The particular rules pertaining to search and seizure vary depending
upon the location of the search. Courts have justified the different levels
of protection by examining the expectation of privacy a person might
have in a particular location or object and balancing the level of
intrusiveness of the search and any overriding societal interests.
A. Dwelling Searches
1. Curtilage
An individual’s expectation of privacy in his or her residence
extends to the curtilage, i.e., the area immediately surrounding
the dwelling. United States v Dunn, 480 US 294, 300 (1987); see
also Florida v Jardines, 569 US 1, 6 (2013) (police officers may not
physically enter the curtilage of a home “to engage in conduct
not explicitly or implicitly permitted by the homeowner[]”). In
evaluating whether an area is included in the curtilage of a
dwelling, the court should examine four factors (the “Dunn
factors”):
(1) the proximity of the area claimed to be curtilage

to the home;
(2) whether the area is included within an

enclosure surrounding the home;
(3) the nature of the uses to which the area is put;
(4) and the steps taken by the resident to protect

the area from observation by people passing by.
Dunn, 480 US at 301.
“The front porch is the classic exemplar” of an area included

within the curtilage of a home. Jardines, 569 US at 7. Depending
on the circumstances, an individual may not have a reasonable
expectation of privacy in an enclosed porch through which a
person must pass in order to get to the dwelling’s front door.
People v Tierney, 266 Mich App 687, 691, 697, 701-704 (2005)

(holding that police officers did not violate the Fourth

Amendment when they opened the unlocked door to an
unheated porch, which was used as a storage area, and crossed
the porch to knock on the inner residence door, where the police
did not attempt to search the porch).
However, officers may not physically intrude on a homeowner’s

property, including a front porch, for the purpose of gathering
evidence. Jardines, 569 US at 3 (holding that “[the use of] a drug-
sniffing dog on a homeowner’s porch to investigate the contents
of the home is a ‘search’ within the meaning of the Fourth
Amendment[]”).
“Just like the front porch, side garden, or area ‘outside the front
window,’” a “partially enclosed portion of [a] driveway that
abuts the house” is “‘an area adjacent to the home and “to which
the activity of home life extends,”’ and so is properly considered
curtilage[.]” Collins v Virgina, ___ US ___, ___ (2018) (citations
omitted). Accordingly, an officer’s search of a motorcycle parked
in a portion of the driveway that was partially enclosed “not
only invaded [the defendant’s] Fourth Amendment interest
in . . . the motorcycle, but also . . . in the curtilage of [the
defendant’s] home.” Id. at ___ “[T]he automobile exception[23]
does not permit an officer without a warrant to enter a home or
its curtilage in order to search a vehicle therein.” Id. at ___ (“the
scope of the automobile exception extends no further than the
automobile itself”).
2. Standing
Where evidence demonstrates that a defendant resides in a
dwelling owned or rented by someone else, the defendant may
have standing to challenge a search of the residence. See People v
Mahdi, 317 Mich App 446 (2016). In Mahdi, “[the] defendant had
a legitimate expectation of privacy in his mother’s apartment
that society recognizes as reasonable[,]” and he therefore “had
standing to challenge the search of [the apartment] and the
seizure of” incriminating evidence from the apartment. Mahdi,
317 Mich App at 459-460. “[P]olice officers recovered . . . several
items indicating that [the] defendant resided [in the apartment]
with his mother, including tax paperwork listing [the]
defendant’s name and the address of [the apartment,] . . . a
collections notice for [the] defendant at [the apartment], . . .
Friend of the Court paperwork for [the] defendant[] . . . list[ing]
[the apartment] as his address[, and] . . . a land sale registration
form signed by [the] defendant listing [the apartment] as his
23See Section 11.6(B)(4) for more information on the automobile exception.

address[,]” and “the officers found [the] defendant’s personal

belongings in [the apartment] after arresting [him;]”
furthermore, he “answered the door when the police officers
arrived at [the apartment], indicating that he had control over
the apartment and the ability to regulate its access.” Id.
An individual may lack a reasonable expectation of privacy with

respect to a search of a dwelling that he or she owns but illegally
occupies. People v Antwine, 293 Mich App 192, 195-196, 198
(2011). “[A]n overall reasonable expectation of privacy—not the
existence (or the lack) of a property right—controls the
analysis[,] and[] . . . wrongful presence [on the property] weighs
against a reasonable expectation of privacy.” Id. at 200 (holding
that once police officers determined that the defendant was
residing in a condemned house illegally, “it was reasonable for
them to secure the home and look for other illegal residents[]”).
An individual who is an overnight guest in a dwelling may

establish that he or she has a reasonable expectation of privacy
recognized by the Fourth Amendment in the home of his or her
host. Minnesota v Olson, 495 US 91, 96-97 (1990). Conversely, a
person who is briefly present in a dwelling, with the owner’s
consent, may not claim the protections intended by the Fourth
Amendment. Minnesota v Carter, 525 US 83, 90 (1998).
3. Factors Involved in Dwelling Searches
a. Search Warrant and Knock-and-Announce

Statute
The knock-and-announce statute, MCL 780.656, requires
that police executing a search warrant give notice of their
authority and purpose and be refused entry before
forcing their way in. People v Fetterley, 229 Mich App 511,
521 (1998). MCL 780.656 provides:
“The officer to whom a warrant is directed, or

any person assisting him[ or her], may break
any outer or inner door or window of a house
or building, or anything therein, in order to
execute the warrant, if, after notice of his [or
her] authority and purpose, he [or she] is
refused admittance, or when necessary to
liberate himself [or herself] or any person
assisting him [or her] in execution of the
warrant.”
The interests protected by the knock-and-announce rule

include:
• protection of human life and limb (because

an unannounced entry may provoke
violence when a surprised resident acts in
self-defense);
• protection of property; and
• protection of those elements of privacy and

dignity that can be destroyed by a sudden
entrance. Hudson v Michigan, 547 US 586,
593-594 (2006).
Evidence seized pursuant to a violation of the knock-and-

announce rule need not always be suppressed. People v
Howard (Troy), 233 Mich App 52, 60-61 (1998).
Suppression is appropriate for violations of the knock-
and-announce statute only where the police conduct is
unreasonable by Fourth Amendment standards. Id.
Further, where an interest that is violated is not an
interest protected by the knock-and-announce rule, the
exclusionary rule is inapplicable. Hudson, 547 US at 594.
The knock-and-announce rule does not protect an
individual’s interest in preventing the police from seeing
or taking evidence described in a warrant. Id.
b. Search Warrant and “No Knock” Entry

“In order to justify a ‘no-knock’ entry, the police must
have a reasonable suspicion that knocking and
announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it
would inhibit the effective investigation of the crime
by[] . . . allowing the destruction of evidence. This
standard[] . . . strikes the appropriate balance between the
legitimate law enforcement concerns at issue in the
execution of search warrants and the individual privacy
interests affected by no-knock entries. . . . This showing is
not high, but the police should be required to make it
whenever the reasonableness of a no-knock entry is
challenged.” Richards v Wisconsin, 520 US 385, 394-395
(1997).
c. Knock-and-Talk
“[T]he knock and talk procedure is a law enforcement
tactic in which the police, who possess some information
that they believe warrants further investigation, but that
is insufficient to constitute probable cause for a search
warrant, approach the person suspected of engaging in

illegal activity at the person’s residence (even knock on

the front door), identify themselves as police officers, and
request consent to search for the suspected illegality or
illicit items.” People v Frohriep, 247 Mich App 692, 697
(2001). The knock-and-talk procedure is constitutional,
but it is subject to judicial review to ensure compliance
with general constitutional protections. Id. at 698.
“Whenever the knock and talk procedure is utilized, the
ordinary rules that govern police conduct must be
applied to the circumstances of the particular case.” People
v Galloway, 259 Mich App 634, 639 (2003).
Police officer’s purpose. Officers may not “physically

intrud[e] on [a homeowner’s] property[,]” including a
front porch, for the purpose of gathering evidence, and
“[the use of] a drug-sniffing dog on a homeowner’s porch
to investigate the contents of the home is a ‘search’ within
the meaning of the Fourth Amendment[]” because it
constitutes “an unlicensed physical intrusion[]” into an
area that is protected under the Fourth Amendment.
Jardines, 569 US at 3, 7, 11 (holding that “introducing a
trained police dog to explore the area around the home in
hopes of discovering incriminating evidence” went
beyond the “implicit license [that] typically permits [a]
visitor to approach [a] home by the front path, knock
promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave[]”).
A trespass alone does not violate the Fourth Amendment.

People v Frederick, 500 Mich 228, 236 (2017), rev’g 313 Mich
App 457 (2015). “A police officer walking through a
neighborhood who takes a shortcut across the corner of a
homeowner’s lawn has trespassed. Yet that officer has not
violated the Fourth Amendment because, without some
information-gathering, no search has occurred.” Id. at 240
(concluding that because the officers visited the
respective homes for the express purpose of obtaining
information about marijuana butter they suspected each
defendant possessed, they were gathering information
and their conduct violated the Fourth Amendment).
“[A]pproaching a home with the purpose of gathering
information is not, standing alone, a Fourth Amendment
search[;]” however, “when ‘conjoined’ with a trespass,
information-gathering—which need not qualify as a
search, standing alone—is all that is required to turn the
trespass into a Fourth Amendment search.” Id. at 241,
citing United States v Jones, 565 US 400, 408 n 5 (2012).

Time of day. “[T]he scope of the implied license to

approach a house and knock is time-sensitive. Frederick,
500 Mich at 238. “When the officers stray beyond what
any private citizen might do, they have strayed beyond
the bounds of a permissible knock and talk; in other
words, the officers are trespassing.” Id. at 239. “[T]here is
generally no implied license to knock on someone’s door
in the middle of the night.” Id. at 238, 239 n 6 (declining to
“decide precisely what time the implied license to
approach begins and ends[,]” and noting that the instant
case was clearly outside of the implied license because
“there were no circumstances that would lead a
reasonable member of the public to believe that the
occupants of the respective homes welcomed visitors at
4:00 a.m. or 5:30 a.m.”).
“[T]he police were trespassing when they approached the

defendants’ homes[]” during predawn hours; “as the
[United States] Supreme Court suggested [in dicta] in
[Jardines, 569 US at 9 n 3; Jardines, 569 US at 16-26 (ALITO,
J., dissenting)], . . . the scope of the implied license to
approach a house and knock is time-sensitive[,]” and
“there is generally no implied license to knock at
someone’s door in the middle of the night.” Frederick, 500
Mich at 238, remanding to the circuit court “to determine
whether the defendants’ consent to search was attenuated
from the officers’ illegal search.” “[B]ecause the officers
trespassed while seeking information, they performed
illegal searches[;]” “when ‘conjoined’ with a trespass,
information-gathering—which need not qualify as a
search, standing alone—is all that is required to turn the
trespass into a Fourth Amendment search.” Frederick, 500
Mich at 241, 244 (citation omitted).
d. Warrantless Entry
The warrantless entry of a dwelling may be justified by
“hot pursuit of a fleeing felon, to prevent the imminent
destruction of evidence, to preclude a suspect’s escape,
and where there is a risk of danger to police or others
inside or outside a dwelling.” People v Cartwright, 454
Mich 550, 558 (1997). Additionally, a police officer may
enter a dwelling without a warrant where it is reasonable
to believe that a person inside the dwelling is in need of
immediate medical assistance. People v Davis (Harriet), 442
Mich 1, 14 (1993); City of Troy v Ohlinger, 438 Mich 477,
483-484 (1991); People v Hill (Eric), 299 Mich App 402, 404-
410 (2013).24

With respect to abandoned or vacant structures, several

factors must be evaluated on a case-by-case basis to
determine whether police officers may enter a dwelling
without securing a warrant:
“(1) the outward appearance, (2) the overall

condition, (3) the state of the vegetation on
the premises, (4) barriers erected and securely
fastened in all openings, (5) indications that
the home is not being independently serviced
with gas or electricity, (6) the lack of
appliances, furniture, or other furnishings
typically found in a dwelling house, (7) the
length of time that it takes for temporary
barriers to be replaced with functional doors
and windows, (8) the history surrounding the
premises and prior use, and (9) complaints of
illicit activity occurring in the structure.”
People v Taylor (Paul), 253 Mich App 399, 407
(2002).
e. Detention Incident to Execution of Search

Warrant
Officers executing a valid search warrant may “detain the
occupants of the premises while a proper search is
conducted.” Michigan v Summers, 452 US 692, 704-705
(1981) (noting that “[i]f the evidence that a citizen’s
residence is harboring contraband is sufficient to
persuade a judicial officer that an invasion of the citizen’s
privacy is justified, it is constitutionally reasonable to
require that citizen to remain while officers of the law
execute a valid warrant to search his [or her] home[,]” and
concluding that “[b]ecause it was lawful to require [the]
respondent to re-enter and to remain in the house until
evidence establishing probable cause to arrest him was
found, his arrest and the search incident thereto were
constitutionally permissible[]”). However, “[t]he
categorical authority to detain [an occupant] incident to
the execution of a search warrant must be limited to the
immediate vicinity of the premises to be searched[,]” and
“the decision to detain must be acted upon at the scene of
the search and not at a later time in a more remote place.”
Bailey v United States, 568 US 186, ___, ___ (2013).
Summers, 452 US 692, does not justify “the detention of
24 See Section 11.5(A) for discussion of exigent circumstances.

occupants beyond the immediate vicinity of the premises

covered by a search warrant.” Bailey, 568 US at ___.
Detention of a person in the immediate vicinity of

premises on which a search warrant is being executed
“does not require law enforcement to have particular
suspicion that an individual is involved in criminal
activity or poses a specific danger to the officers[;] . . .
[rather, t]he rule announced in Summers[, 452 US 692,]
allows detention incident to the execution of a search
warrant ‘because the character of the additional intrusion
caused by detention is slight and because the
justifications for detention are substantial.’” Bailey, 568 US
at ___ (quoting Muehler v Mena, 544 US 93, 98 (2005), and
holding that where the defendant was observed leaving a
residence as a search unit prepared to execute a search
warrant there, Summers, 452 US 692, did not permit
officers to stop and detain the defendant approximately
one mile away “from the premises to be searched when
the only justification for the detention was to ensure the
safety and efficacy of the search[;]” in such a situation,
“[i]f officers elect to defer [a] detention until the suspect
or departing occupant leaves the immediate vicinity[ of
the premises to be searched], the lawfulness of detention
is controlled by other standards, including[] . . . a brief
stop for questioning based on reasonable suspicion under
Terry [v Ohio, 392 US 1 (1968),] or an arrest based on
probable cause”).
B. Automobile Searches/Seizures
1. Generally
“A traffic stop for a suspected violation of law is a ‘seizure’ of the
occupants of the vehicle and therefore must be conducted in
accordance with the Fourth Amendment.” Heien v North
Carolina, 574 US ___, ___ (2014) (citation omitted). “‘A traffic stop
necessarily curtails the travel a passenger has chosen just as
much as it halts the driver, diverting both from the stream of
traffic to the side of the road.’” People v Anthony, ___ Mich App
___, ___ (2019), quoting Brendlin v California, 551 US 249, 257
(2007).
“[A] vehicle is an ‘effect’ as that term is used in the [Fourth]

Amendment. United States v Jones, 565 US 400, 402, 404 (2012)
(citing United States v Chadwick, 433 US 1, 12 (1977), and holding
that “the Government’s installation of a [Global-Positioning-
System (GPS)] device on a target’s vehicle, and its use of that

device to monitor the vehicle’s movements, constitutes a

‘search’”).
2. Reasonableness of Traffic Stop

“A traffic stop for a suspected violation of law is a ‘seizure’ of the
occupants of the vehicle and therefore must be conducted in
accordance with the Fourth Amendment.” Heien, 574 US at ___
(citation omitted). Generally, an officer’s decision to stop an
automobile is reasonable when there is probable cause to believe
that the driver violated a traffic law. Whren v United States, 517
US 806, 810 (1996). The constitutional reasonableness of traffic
stops does not depend on the actual motivations of the police
officers involved. Id. at 813. A traffic stop is permissible when an
officer has “‘reasonable suspicion,’” meaning that the officer has
“‘a particularized and objective basis for suspecting the
particular person stopped’ of breaking the law.” Heien, 574 US at
___, quoting Navarette v California, 572 US 393, ___ (2014). “[T]he
ultimate touchstone of the Fourth Amendment is
‘reasonableness.’” Heien, ___ US at ___, quoting Riley v California,
573 US ___, ___ (2014) (quotation marks omitted).
“To be reasonable is not to be perfect,” and “searches and

seizures based on mistakes of fact can be reasonable” if the
mistake of fact itself is reasonable. Heien, 574 US at ___ (citations
omitted). Further, “reasonable suspicion can rest on a mistaken
understanding of the scope of a legal prohibition” so long as the
mistake of law is “objectively reasonable.” Id. at ___ (holding
that because it was “objectively reasonable for an officer . . . to
think that [the petitioner’s] faulty right brake light was a
violation of [state] law, . . . there was reasonable suspicion
justifying [a traffic] stop,” even though “a court later determined
that a single working brake light was all the law required”).
“[F]ewer foundational facts are necessary to justify an

investigative stop of a moving vehicle based on a citizen’s tip
about erratic driving.” People v Barbarich, 291 Mich App 468, 479
(2011). “[W]hile the quantity of the tip’s information must be
sufficient to identify the vehicle and to support an inference of a
traffic violation, less is required with regard to a tip’s reliability;
as to the latter, it will suffice if law enforcement corroborates the
tip’s innocent details.” Id. at 479-480.
“[A] reliable tip alleging [certain] dangerous [driving] behaviors

. . . generally [will] justify a traffic stop on suspicion of drunk
driving.” Navarette v California, 572 US 393, ___ (2014) (such
behaviors include weaving, crossing the center line and nearly
causing head-on collisions, and driving in the median) (citations

omitted). “Under the totality of the circumstances, . . . [a 911 call

bore] indicia of reliability . . . sufficient to provide [an] officer
with reasonable suspicion that the driver of [a] reported vehicle
had run another vehicle off the road[, making] it reasonable
under the circumstances for the officer to execute a traffic stop”
on the basis of suspected intoxication. Navarette, 572 US at ___,
___. In Navarette, 572 US at ___, “[a]fter a 911 caller reported that
a [truck] had run her off the road, a police officer located the
vehicle she identified during the call and executed a traffic stop.”
Turning first to “[t]he initial question . . . whether the 911 call
was sufficiently reliable,” the Court held that the caller’s
apparent “eyewitness knowledge of the alleged dangerous
driving” based on her specific description of the truck and
license plate number, together with the facts that she used the
911 system and that the tip was “contemporaneous with the
observation of criminal activity,” provided “adequate indicia of
reliability for the officer to credit the caller’s account” and to
“[proceed] from the premise that the truck had, in fact, caused
the caller’s car to be dangerously diverted from the highway.” Id.
at ___. Furthermore, the caller’s “report of being run off the
roadway created reasonable suspicion of an ongoing crime such
as drunk driving” because the reported conduct, unlike “a minor
traffic infraction . . . [or] a conclusory allegation of drunk or
reckless driving, . . . [bore] too great a resemblance to
paradigmatic manifestations of drunk driving to be dismissed as
an isolated example of recklessness.” Id. at ___ (quoting United
States v Sokolow, 490 US 1, 11 (1989), and further concluding that
“the absence of additional suspicious conduct, [during the five-
minute period] after the vehicle was first spotted by [the] officer,
[did not] dispel the reasonable suspicion of drunk driving;”
rather, “[o]nce reasonable suspicion of drunk driving arises,
‘[t]he reasonableness of the officer’s decision to stop a suspect
does not turn on the availability of less intrusive investigatory
techniques’”).
“[A] computer check is a routine and generally accepted practice

by the police during a traffic stop.” People v Simmons (Michael),
316 Mich App 322, 327-328 (2016), citing People v Davis (Marcus),
250 Mich App 357, 366 (2002). “[A] review of Michigan cases
demonstrates a recognition that the running of [Law
Enforcement Information Network (LEIN)] checks of vehicle
drivers is a routine and accepted practice by the police in this
state.” Davis (Marcus), 250 Mich App at 366-368 (holding that the
amount of time it took for an officer to run a LEIN check during
a traffic stop was “a minimal invasion in light of the substantial
governmental interest in arresting citizens wanted on
outstanding warrants” and did not unreasonably extend the

stop) (citations omitted); see also Simmons (Michael), 316 Mich

App at 328.
“[B]ecause driving without insurance is an ‘on-going’ infraction,

there is less of a concern for ‘staleness’ than there would be for a
crime that has already occurred,” and “[t]o justify a stop for
Fourth Amendment purposes, police must only have a
reasonable suspicion, not probable cause or some other
heightened burden, that a traffic violation has or is occurring.”
People v Mazzie, ___ Mich App ___, ___ (2018). Accordingly, “the
twice-a-month updating of the insurance information [provided
by the Secretary of State to the police] was . . . frequent enough to
provide officers with reasonable suspicion that a motor vehicle
code violation existed”; “the at most 16-day lapse in up-to-date
information made available through the LEIN was not so late or
unreliable that it could not provide the officers with reasonable
suspicion that the vehicle was uninsured,” and “[t]he officers’
unrefuted testimony was that the insurance information was
extraordinarily accurate, and even without that testimony,
nothing in the record suggests that the information was not
sufficiently reliable to provide reasonable suspicion that the
driver was operating the vehicle contrary to MCL 500.3101.”
Mazzie, ___ Mich App at ___ (reversing the trial court’s order
suppressing the evidence, and holding that “in light of the LEIN
information and [the police officer’s] knowledge, experience,
and training,” the police officer “had at least a reasonable
suspicion that the motorist was operating his vehicle without
insurance and, therefore, the stop and detention to check for
valid insurance was reasonable under the Fourth Amendment”).
3. Detention (Seizure) of Automobile Occupants and

Length of Stop
As long as the initial stop was lawful and police conduct did not
prolong the seizure beyond the time reasonably required to
process the traffic stop information, an individual’s
constitutional protection from unreasonable searches and
seizures is not implicated. Illinois v Caballes, 543 US 405, 407
(2005). However, “a police stop exceeding the time needed to
handle the matter for which the stop was made violates the
Constitution’s shield against unreasonable seizures.” Rodriguez v
United States, 575 US ___, ___ (2015). “[A]lthough police officers
‘may conduct certain unrelated checks during an otherwise
lawful traffic stop,’ they ‘may not do so in a way that prolongs
the stop, absent the reasonable suspicion ordinarily demanded
to justify detaining an individual.’” People v Kavanaugh, 320 Mich
App 293, 300-301 (2017), quoting Rodriguez, 575 US at ___.

“Detaining [the] defendant [following a traffic stop] to wait for a

drug sniffing dog and its handler to arrive and perform their
work was an unconstitutional seizure of his person” under
Rodriguez; “the traffic stop was completed when the officer
determined that the vehicle was owned by [the] defendant, gave
him a warning about the traffic violations, and told him there
would not be a ticket issued.” Kavanaugh, 320 Mich App at 299-
300, 308-309. “[T]he relevant testimony as well as the complete
video/audio recording of the encounter from [the officer’s] first
observation of [the] defendant’s car through the arrest”
demonstrated that the officer “did not have a reasonable
suspicion of any criminal activity sufficient to justify his
extension of the traffic stop to allow for a dog sniff.” Id. at 302,
302 n 8 (noting that “whenever practicable, such videotapes
should be provided to the court, the court should review them,
and they should be made part of the record on appeal”).
“A traffic stop is reasonable as long as the driver is detained only

for the purpose of allowing an officer to ask reasonable
questions concerning the violation of law and its context for a
reasonable period.” People v Williams (John Lavell), 472 Mich 308,
315 (2005); see also Simmons (Michael), 316 Mich App at 326. “The
determination whether a traffic stop is reasonable must
necessarily take into account the evolving circumstances with
which the officer is faced[,]” and “when a traffic stop reveals a
new set of circumstances, an officer is justified in extending the
detention long enough to resolve the suspicion raised.” Williams
(John Lavell), 472 Mich at 315.
Furthermore, where the initial traffic stop is justified and the

officer’s questions do not exceed the scope of the stop and do not
unreasonably extend the time of the detention, a defendant’s
consent to search a vehicle is valid. Williams (John Lavell), 472
Mich at 310. Under those circumstances, no Fourth Amendment
violation occurs and no inquiry is needed as to whether the
officer effecting the stop “had an independent, reasonable, and
articulable suspicion that defendant was involved with
narcotics.” Id. at 318.
“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 Johnson, 555 US 323, 333 (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 333-334

(holding that a police officer “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”).
See also People v Corr, 287 Mich App 499, 507 (2010), in which the
Court of Appeals concluded that “it was reasonable, for the
officer[s’] safety as well as for defendant[-passenger]’s safety, for
the officers to command defendant to remain in the vehicle
while they completed their noninvestigatory duties at the traffic
stop, particularly considering that [the] defendant was
intoxicated and aggressive toward the officers during the stop,
bystanders had arrived on the scene, and the weather conditions
were dangerous.” The Court noted that under the circumstances,
the officers needed to maintain control over the scene even
though the driver of the car—the defendant’s son—had been
arrested and secured in the police car. Id. at 507, citing Johnson,
555 US 323.
If there is probable cause to believe that contraband is present in

the vehicle, an occupant may be temporarily detained during the
search of the vehicle. Summers, 452 US at 702-703.
4. Police Conduct not Constituting a Seizure

A police officer’s “decision to drive down [a] street [does] not
implicate the Fourth Amendment.” People v Anthony, ___ Mich
App ___, ___ (2019) (doing so is “the consensual approach of
officers to an individual in a public place,” and “[a]n officer does
not need any level of justification to approach an individual on a
public street”). Similarly, pulling along side a parked vehicle,
without more, does not constitute a “traffic stop” because the
vehicle is not moving. Id. at ___ (finding that the characterization
of such action as a “traffic stop” precludes “the possibility that
the encounter was consensual as every traffic stop constitutes a
‘seizure’”). Notwithstanding, a seizure does occur if the police
vehicle is positioned in a manner that blocks the parked vehicle’s
egress. Id. at ___.
5. Warrantless Search (Automobile Exception) Generally

A warrantless search of a vehicle is permissible under certain
circumstances if the search is based on facts that would have
justified the issuance of a warrant; that is, if there is probable
cause to believe that the vehicle contains evidence of a crime.
United States v Ross, 456 US 798, 799 (1982); People v Levine

(Brian), 461 Mich 172, 178-179 (1999). Courts have justified the
automobile exception to the warrant requirement in two ways.
Some courts have found that a defendant has a lower
expectation of privacy with regard to an automobile than he or
she has in a dwelling. See Chambers v Maroney, 399 US 42, 48
(1970). Other courts have used the justification that the mobility
of an automobile requires that the police have the flexibility to
search the vehicle without a warrant. See Carroll v United States,
267 US 132, 153 (1925). However, “the automobile exception
does not permit an officer without a warrant to enter a home or
its curtilage[25] in order to search a vehicle therein.” Id. at ___
(“the scope of the automobile exception extends no further than
the automobile itself”).
6. Probable Cause to Search an Automobile Generally

The police may search a vehicle without a warrant if they have
probable cause to believe that the vehicle contains contraband.
Pennsylvania v Labron, 518 US 938, 940 (1996). When police have
probable cause to believe there is contraband inside an
automobile that has been stopped on the road, the officers may
conduct a warrantless search of the vehicle even after it has been
impounded and is in police custody. People v Carter (Deborah),
250 Mich App 510, 516 (2002).
Where police officers approached the defendant’s parked

vehicle, ordered him to exit, and conducted a warrantless search
of the vehicle, the trial court erred in suppressing items seized
during the search because the officers’ detection of a strong odor
of marijuana upon approaching defendant’s vehicle provided
“probable cause to search defendant’s vehicle before any seizure
under the Fourth Amendment occurred.” People v Anthony, ___
Mich App ___, ___ (2019) (the detected odor also provided
reasonable suspicion to detain defendant; defendant’s reliance
on the Michigan Medical Marijuana Act (MMMA) was
unpersuasive because the MMMA “does not extend to activity
occurring in ‘any public place’”).
To “determine if the ‘alert’ of a drug-detection dog during a

traffic stop provides probable cause to search a vehicle,” “[t]he
court should allow the parties to make their best case, consistent
with the usual rules of criminal procedure, . . . [a]nd . . . should
then evaluate the proffered evidence to decide what all the
circumstances demonstrate.” Florida v Harris, 568 US 237, 240,
247-248 (2013). “If the State has produced proof from controlled
settings that a dog performs reliably in detecting drugs, and the
25 See Section 11.6(A) for more information on what constitutes curtilage.

defendant has not contested that showing, then the court should
find probable cause.” Id. at 248.26 “If, in contrast, the defendant
has challenged the State’s case (by disputing the reliability of the
dog overall or of a particular alert), then the court should weigh
the competing evidence.” Id. “The question—similar to every
inquiry into probable cause—is whether all the facts
surrounding a dog’s alert, viewed through the lens of common
sense, would make a reasonably prudent person think that a
search would reveal contraband or evidence of a crime.” Id. “A
sniff is up to snuff when it meets that test.” Id.
7. Warrantless Search of Passengers

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, 251 (2007). However, “when the stop of a vehicle is legal,
a passenger with no property or possessory interest in the
vehicle does not have standing to contest the search of the
vehicle.” People v Earl (Ronald), 297 Mich App 104, 108 (2012),
aff’d on other grounds 495 Mich 33 (2014) (holding that because
the defendant did not assert a proprietary or possessory interest
in the vehicle in which he was a passenger, he lacked standing to
contest the search of the vehicle and the seizure of evidence
during the search; “[t]he mere fact that defendant was engaged
to the owner of the vehicle did not endow him with an
ownership interest in the vehicle or a reasonable expectation of
privacy in it”); see also People v Mead (On Remand), 320 Mich App
613, 617 (2017) (citing Labelle, 478 Mich at 891-892, and holding
that a passenger in a vehicle lacks standing to challenge the
search of a vehicle, including any unlocked containers in the
vehicle, if the stop of the vehicle is valid and the driver consents
to the search).
Police officers “may order out of a vehicle both the driver[] and
any passengers; perform a ‘patdown’ of a driver and any
passengers upon reasonable suspicion that they may be armed
and dangerous; conduct a ‘Terry27 patdown’ of the passenger
compartment of a vehicle upon reasonable suspicion that an
occupant is dangerous and may gain immediate control of a
weapon, including any containers therein, pursuant to a
custodial arrest.” Knowles v Iowa, 525 US 113, 117-118 (1998)
(citations omitted). The search for a weapon is limited to the area
26 “[E]vidence of a dog’s satisfactory performance in a certification or training program can itself provide
sufficient reason to . . . presume (subject to any conflicting evidence offered) that the dog’s alert provides
probable cause to search.” Harris, 568 US at 246-247 (2013).
27 Terry v Ohio, 392 US 1 (1968).

where the weapon may be placed or hidden. Michigan v Long,

463 US 1032, 1049 (1983). “To justify a patdown of the driver or a
passenger during a traffic stop, . . . the police must harbor
reasonable suspicion that the person subjected to the frisk is
armed and dangerous.” Johnson, 555 US at 327.
The police may properly search a passenger’s personal

belongings inside an automobile when they have probable cause
to believe the belongings contain contraband. Wyoming v
Houghton, 526 US 295, 302 (1999).
8. Warrantless Search of a Container Located in an

Automobile
“If probable cause justifies the search of a lawfully stopped
vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.” Ross, 456 US
at 825. That is, “[t]he police may search an automobile and the
containers within it where they have probable cause to believe
contraband or evidence is contained.” California v Acevedo, 500
US 565, 580 (1991). See also People v Kazmierczak, 461 Mich 411,
422 (2000) (noting that if probable cause exists to believe that a
vehicle contains contraband, the ability to conduct a warrantless
search extends to closed containers that might conceal the object
of the search); People v Mead (On Remand), 320 Mich App 613, 625
(2017) (stating that “[p]olice may also search a vehicle or a
container within a vehicle without a warrant if they have
probable cause that the vehicle or container contains articles that
the officers are entitled to seize”) (quotation marks and citations
omitted).
Further, the “police may open and search any container placed
or found in an automobile, as long as they have the requisite
probable cause with regard to such a container, even if such
probable cause focuses specifically on the container and arises
before the container is placed in the automobile.” People v
Bullock, 440 Mich 15, 24 (1992). Thus, all containers large enough
to hold the object of the search may be opened without a warrant
during an automobile search. United States v Johns, 469 US 478,
484 (1985). Additionally, if the container may be searched at the
scene, it may also be seized and searched without a warrant
shortly thereafter, at the police station. Id. at 485.
The search of a passenger’s backpack did not violate her

constitutional right to be free of unreasonable searches and
seizures where the driver consented to a search of the vehicle
following a lawful traffic stop; under those circumstances, the
police were authorized to search the entire passenger

compartment, including the passenger’s backpack. People v

Labelle, 478 Mich 891 (2007). See also People v Mead (On Remand),
320 Mich App 613, 617-618 (2017) (holding that Labelle was not
distinguishable from the instant case and that under Labelle,
where the defendant was a passenger in a vehicle that was
lawfully stopped by a police officer, who obtained the driver’s
consent to search the vehicle, the defendant “lacked standing to
challenge the search, and [the officer] had authority to search
[his unlocked] backpack[]” in the vehicle’s passenger
compartment; “[b]ecause [the defendant] lack[ed] standing to
challenge the search, any challenge to the search must fail”).
Further, in Michigan, the common authority framework set forth

in Illinois v Rodriguez, 497 US 177, 181, 183-189 (1990),28 “does not
apply to warrantless searches of containers in automobiles[;] . . .
[t]o the contrary, . . . the Michigan Supreme Court [held in
LaBelle, 478 Mich at 891-892,] that ‘[a]uthority to search the entire
passenger compartment of the vehicle includes any unlocked
containers located therein.’” Mead (On Remand), 320 Mich App at
617 (fourth alteration in original).
9. Warrantless Search of an Automobile Incident to

Arrest
“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 332, 351 (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. In
Gant, 556 US at 335-336, 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. The
United States Supreme Court held that the search was improper
because Belton, 453 US 454, “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, 556
US at 335. Further, “circumstances 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.” Id. “Because [the] police could not reasonably have
believed either that [the defendant] could have accessed his car
28For discussion of the common-authority framework set forth in Rodriguez, see Section 11.4(E).

at the time of the search or that evidence of the offense for which
he was arrested might have been found therein, the search [] was
unreasonable.” Id. at 344.
Subject to the limitations and qualifications set out in Gant, 556

US at 335, Belton, 453 US at 460, provides that when a police
officer has made a lawful custodial arrest of the occupant of an
automobile, the officer may, as a contemporaneous search
incident to that arrest, search the passenger compartment of that
automobile, and examine the contents of any container found
within the passenger compartment whether it is open or closed
because the lawful custodial arrest justifies the infringement of
any privacy interest). See also Thornton v United States, 541 US
615, 622-624 (2004) (holding that 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).
Where an officer received information that the defendant was

driving erratically, was confused, and was taking OxyContin for
pain following surgery, “it was reasonable to believe that [his]
vehicle might contain evidence of . . . ‘the offense of arrest[]’”
within the meaning of Gant, 556 US at 351, and the officer
therefore lawfully searched the defendant’s vehicle for evidence
of narcotics or other drugs after arresting him for drunk driving
and placing him in a police car. People v Tavernier, 295 Mich App
582, 586-587 (2012).
Where police searched an automobile in objectively reasonable

reliance on Belton, 453 US 454, and other binding appellate
precedent, the exclusionary rule did not apply to evidence
obtained in that search, even though the search was
subsequently rendered unconstitutional under Gant, 556 US at
351. Davis v United States, 564 US 229, 239-241 (2011).29 In Davis,
564 US at 235, officers conducted a routine traffic stop that
resulted in the arrests of the driver and a passenger. After
securing the occupants in police vehicles, the officers searched
the driver’s vehicle and discovered a revolver in the passenger’s
jacket pocket; the passenger was subsequently convicted of
possession of a firearm by a convicted felon. Id. While the
passenger’s appeal was pending, the United States Supreme
Court decided Gant, 556 US 332. Davis, 564 US at 236. The Davis
Court held that although the search incident to arrest was
unconstitutional under Gant, “the harsh sanction of exclusion
‘should not be applied to deter objectively reasonable law
enforcement activity[;]’” accordingly, the Court concluded that
29 See Section 11.8(B) for additional discussion of Davis, 564 US 229.

“searches conducted in objectively reasonable reliance on

binding appellate precedent are not subject to the exclusionary
rule.” Davis, 564 US at 231, 241 (citation omitted).
See also People v Mungo (On Second Remand), 295 Mich App 537,
544, 548, 556 (2012) (holding that, under Davis, 564 US 229, the
exclusionary rule did not apply to evidence discovered in the
defendant’s car during a search conducted after a passenger was
arrested based on outstanding traffic warrants and after the
passenger and the defendant were secured in police vehicles;
although the search was rendered impermissible under the
United States Supreme Court’s subsequent decision in Gant, 556
US at 351, the good-faith exception to the exclusionary rule
applied because the officer who conducted the search “had a
good-faith basis to rely on Belton[, 453 US at 460,] . . . [which]
authorized a search incident to an arrest of [any] recent occupant
of a vehicle[]”).
10.Rental Vehicles
“[A]s a general rule, someone in otherwise lawful possession
and control of a rental car has a reasonable expectation of
privacy in it even if the rental agreement does not list him or her
as an authorized driver.” Byrd v United States, 584 US ___, ___
(2018). Stated another way, “the mere fact that a driver in lawful
possession or control of a rental car is not listed on the rental
agreement will not defeat his or her otherwise reasonable
expectation of privacy.” Id. at ___ (reversing the lower courts’
denial of the petitioner’s motion to suppress evidence as the fruit
of an unlawful search, i.e., body armor and a large quantity of
drugs, found in the trunk of a vehicle rented by another
individual, and “leav[ing] for remand two of the Government’s
arguments: that one who intentionally uses a third party to
procure a rental car by a fraudulent scheme for the purpose of
committing a crime is no better situated than a car thief; and that
probable cause justified the search in any event”).
C. School Searches
Searches that take place in schools may be properly conducted based
on a level of suspicion less than probable cause. Courts have justified
searches of students based on reasonable suspicion. The child’s
interest in privacy is balanced against the substantial interest of
teachers and administrators in maintaining discipline in the
classroom and on school grounds. New Jersey v TLO, 469 US 325, 341-
343 (1985).

“[A] school search ‘will be permissible in its scope when the measures
adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the
nature of the infraction[.]’” Safford Unified School Dist #1 v Redding, 557
US 364, 370 (2009), quoting TLO, 469 US at 342. In Safford, 557 US at
368, “a 13-year-old student’s Fourth Amendment right was violated
when she was subjected to a search of her bra and underpants by
school officials acting on reasonable suspicion that she had brought
forbidden prescription and over-the-counter drugs to school . . .
[b]ecause there were no reasons to suspect the drugs presented a
danger or were concealed in her underwear[.]” That is, “the content of
the suspicion failed to match the degree of intrusion.” Id. at 375.
D. Prison or Jail Searches

In Hudson v Palmer, 468 US 517, 525-526 (1984), the United States
Supreme Court held that Fourth Amendment protections do not
apply to a prison cell. The correctional facility’s interest in security
outweighs a prisoner’s already lowered expectation of privacy. People
v Herndon, 246 Mich App 371, 397 (2001).
The Fourth Amendment is not violated when correctional officials

require a detainee, “regardless of the circumstances of the arrest, the
suspected offense, or the detainee’s behavior, demeanor, or criminal
history[,]” to undergo a visual strip search before being admitted to a
jail’s general population. Florence v Board of Chosen Freeholders of
County of Burlington, 566 US 318, 322, 324, 339 (2012).
The collection and analysis of an arrestee’s DNA according to

Combined DNA Index System (CODIS) procedures “[a]s part of a
routine booking procedure for serious offenses[]” did not violate the
Fourth Amendment where the DNA sample was used to identify the
arrestee as the perpetrator of an earlier unsolved rape. Maryland v
King, 569 US 435, 439, 465-466 (2013). “When officers make an arrest
supported by probable cause to hold for a serious offense and they
bring the suspect to the station to be detained in custody, taking and
analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment.” Id. at 461, 463, 465-466
(noting that “a detainee has a reduced expectation of privacy[]” and
that “[b]y comparison to [the] substantial government interest [in
identifying arrestees] and the unique effectiveness of DNA
identification, the intrusion of a cheek swab to obtain a DNA sample
is a minimal one[]”).

E. The Use of Roadblocks/Checkpoints

The United States Supreme Court has held that the use of roadblocks
to enforce regulations concerning the use of vehicles, including the
use of checkpoints to check driver’s licenses and vehicle registrations,
to make safety inspections of vehicles, to check sobriety, or to inspect
cargo trucks or similar containers is permissible. Michigan Dep’t of
State Police v Sitz, 496 US 444, 455 (1990). However, the Michigan
Supreme Court has held that the Michigan Constitution provides
greater protection against warrantless seizures than does the federal
constitution, and that the use of sobriety checkpoints violates Const
1963, art 1, § 11. Sitz v Dep’t of State Police, 443 Mich 744, 746-747
(1993).
11.7 Searching a Parolee or Probationer

The search of a parolee or probationer may be justified on a showing of
less than probable cause. The justification for this has often been that the
state’s interest in administering the criminal justice system requires that
the state have greater flexibility in monitoring the activities of those
persons on parole or probation. Griffin v Wisconsin, 483 US 868, 873-875
(1987) (authorizing probation officers to search probationers when they
are suspected of criminal activity). See also United States v Knights, 534 US
112, 122 (2001) (permitting a search based on a probation condition and
reasonable suspicion).
The United States Supreme Court has held that a suspicionless search or
seizure conducted solely on the basis of an individual’s status as a
probationer or parolee does not violate the Fourth Amendment’s
protection against unreasonable searches and seizures. Samson v
California, 547 US 843, 849-850, 857 (2006). The Samson case involved a
California statute authorizing law enforcement officers to search a
parolee—without a warrant and without suspicion of criminal conduct—
solely on the basis of the person’s status as a parolee. Id. The question to
be decided by the Samson Court was “[w]hether a condition of [a
parolee’s] release can so diminish or eliminate a released prisoner’s
reasonable expectation of privacy that a suspicionless search by a law
enforcement officer would not offend the Fourth Amendment.” Id. at 847.
The 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 852, 857.30
30
See also MCL 791.236(19), providing that a parole order must “require the parolee to provide written
consent to submit to a search of his or her person or property upon demand by a peace officer or parole
officer.”

The defendant’s probationer status at the time of a warrantless search of

his mother’s apartment and the seizure of incriminating evidence
therefrom did not permit officers to conduct the search based only on
reasonable suspicion that criminal activity was occurring; Knights, 534 US
112, was distinguishable “because the prosecution did not submit
evidence regarding the conditions of [the] defendant’s probation in the
trial court.” People v Mahdi, 317 Mich App 446, 465 (2016) (holding that
“[w]ithout the probation conditions, there [was] insufficient evidence in
the record to conclude that the officers had reasonable suspicion that a
probationer subject to a search condition was engaged in criminal
activity[]”).
11.8 Exclusionary Rule

“Generally, evidence obtained in violation of the Fourth Amendment is
inadmissible as substantive evidence in criminal proceedings.” In re
Forfeiture of $176,598, 443 Mich 261, 265 (1993); see Mapp v Ohio, 367 US
643 (1961). The exclusionary rule “is a cornerstone of American
jurisprudence that affords individuals the most basic protection against
arbitrary police conduct.” In re Forfeiture of $176,598, 443 Mich at 265.
However, there are exceptions to the exclusionary rule and situations in
which the exclusionary rule does not apply. People v Hellstrom, 264 Mich
App 187, 193-194 n 3 (2004).
A. Exceptions Involving the Causal Relationship Between the

Unconstitutional Act and the Discovery of the Evidence
“Three of [the] exceptions [to the exclusionary rule] involve the causal
relationship between the unconstitutional act and the discovery of
evidence.” Utah v Strieff, 579 US ___, ___ (2016). These exceptions are
the inevitable discovery doctrine, the independent source doctrine,
and the attenuation doctrine. Id. at ___ (citations omitted).
1. Inevitable Discovery Doctrine

“[T]he inevitable discovery doctrine allows for the admission of
evidence that would have been discovered even without the
unconstitutional source.” Strieff, 579 US at ___, citing Nix v
Williams (Robert), 467 US 431, 443-444 (1984). “The inevitable
discovery exception generally permits the admission of tainted
evidence when the prosecution can establish by a
preponderance of the evidence that the information ultimately
or inevitably would have been revealed in the absence of police
misconduct.” People v Stevens (Eugene) (After Remand), 460 Mich
626, 637 (1999). Whether the inevitable discovery doctrine
applies requires an analysis of three basic questions:

• Are the legal means of discovery truly independent of

the unlawful conduct that first led to the evidence’s
discovery?
• Are both the use of the legal means and the discovery
of the evidence at issue by that means truly
inevitable?
• Does application of the inevitable discovery

exception either provide an incentive for police
misconduct or significantly weaken Fourth
Amendment protection? Stevens (Eugene) (After
Remand), 460 Mich at 638 (citation omitted).
In Stevens (Eugene) (After Remand), 460 Mich at 642-643, 647, the

Supreme Court held that the inevitable discovery exception to
the exclusionary rule was applicable where “the police were
acting under a valid search warrant and within the scope of that
warrant[,]” “[e]ven though the method of entry into the dwelling
violated . . . knock-and-announce principles[.]” The Court also
noted that “[t]here are both state and federal sanctions for such
violations that serve as deterrents for police misconduct that are
less severe than the exclusion of the evidence[,]” and that
“exclusion of the evidence w[ould] put the prosecution in a
worse position than if the police misconduct had not occurred.”
Id. at 647.
See also People v Vasquez (After Remand), 461 Mich 235, 241-242
(1999) (holding that evidence was admissible pursuant to the
inevitable discovery doctrine because it would have been
discovered during the execution of a valid search warrant
without regard to whether police violated the knock and
announce statute).
The inevitable discovery doctrine cannot be used as an exception

to the warrant requirement merely because probable cause
existed to obtain a search warrant even though one was not
obtained before the search took place. People v Hyde, 285 Mich
App 428, 442, 445 (2009). In Hyde, 285 Mich App at 433, the
defendant gave a blood sample following a traffic stop, and the
blood test revealed that his blood alcohol content exceeded the
legal limit. The defendant moved to suppress his blood sample
and the blood test results on the basis that his consent was
coerced because the police incorrectly informed him that he was
required to provide his blood under the informed consent
statute, MCL 257.625c, even though he fell under an exception
and was considered not to have given consent to a blood test
because he had diabetes. Hyde, 285 Mich App at 435, 440-441.
The trial court denied the defendant’s motion to suppress,
holding that his bodily alcohol content would have been
inevitably discovered by the police had they obtained a warrant,

or by the defendant had he consented to a breath or urine test. Id.
at 435, 442. The Court of Appeals rejected the trial court’s
rationale that the evidence would have been inevitably
discovered through a search warrant:
“To allow a warrantless search merely because

probable cause exists would allow the inevitable
discovery doctrine to act as a warrant exception
that engulfs the warrant requirement. Even in the
context of a good-faith error, we reject the notion
that a post hoc probable cause analysis can
preclude the constitutional requirement that a
neutral and detached magistrate issue the warrant.
Such an approach diminishes the Fourth
Amendment and is an incentive for improper or
careless police practices.” Id. at 445-446.
See also People v Mahdi, 317 Mich App 446, 470 (2016) (“the
inevitable-discovery doctrine [did] not apply to the seizure of [a]
cell phone, wallet, and set of keys[]” from the defendant’s
mother’s apartment where, “[e]ven assuming that the officers
had probable cause to obtain a warrant for [these items], the
officers were not in the process of obtaining a warrant when they
seized the items[]”).
2. Independent Source Doctrine

“[T]he independent source doctrine allows trial courts to admit
evidence obtained in an unlawful search if officers
independently acquired it from a separate, independent source.”
Strieff, 579 US at ___, citing Murray v United States, 487 US 533,
537 (1988). See also Nix, 467 US at 443 (“[t]he independent source
doctrine allows admission of evidence that has been discovered
by means wholly independent of any constitutional
violation[]”).
“The independent source doctrine teaches us that the interest of

society in deterring unlawful police conduct and the public
interest in having juries receive all probative evidence of a crime
are properly balanced by putting the police in the same, not a
worse, position that they would have been in if no police error or
misconduct had occurred. When the challenged evidence has an
independent source, exclusion of such evidence would put the
police in a worse position than they would have been in absent
any error or violation.” Nix, 467 US at 443 (internal citations
omitted).

Evidence seized from a dwelling pursuant to a valid search

warrant issued after an officer’s unlawful entry into that
dwelling is admissible when probable cause for the warrant’s
issuance is based on information independent of the illegal
entry. People v Smith (Steven), 191 Mich App 644, 646 (1991).
3. Attenuation Doctrine
“In some cases, . . . the link between the unconstitutional [police]
conduct and the discovery of the evidence is too attenuated to
justify suppression.” Strieff, 579 US at ___. “Evidence is
admissible [under the attenuation doctrine] when the connection
between unconstitutional police conduct and the evidence is
remote or has been interrupted by some intervening
circumstance, so that ‘the interest protected by the constitutional
guarantee that has been violated would not be served by
suppression of the evidence obtained.’” Id. at ___, quoting
Hudson, 547 US at 593.
In determining whether there “was a sufficient intervening event

to break the causal chain between the” unconstitutional police
conduct and the discovery of the evidence, “[t]he three factors
articulated in Brown v Illinois, 422 US 590 (1975), guide [the]
analysis.” Strieff, 579 US at ___.
“First, [the court should] look to the ‘temporal

proximity’ between the unconstitutional conduct
and the discovery of evidence to determine how
closely the discovery of evidence followed the
unconstitutional search. . . . Second, [the court
should] consider ‘the presence of intervening
circumstances.’ . . . Third, and ‘particularly’
significant, [the court should] examine ‘the
purpose and flagrancy of the official misconduct.’”
Strieff, 579 US at ___, quoting Brown, 422 US at 603-
604; see also People v Reese (Richard), 281 Mich App
290, 299 (2008).
“The first factor, temporal proximity[,] . . . [does not] favor[]

attenuation unless ‘substantial time’ elapses between an
unlawful act and when the evidence is obtained.” Strieff, 579 US
at ___ (citation omitted). The third factor, on the other hand,
“favor[s] exclusion only when the police misconduct is most in
need of deterrence—that is, when it is purposeful or flagrant.”
Id. at ___.
“The attenuation doctrine evaluates the causal link between the

government’s unlawful act and the discovery of evidence, which
often has nothing to do with a defendant’s actions[, a]nd . . .
[application of the doctrine] is not limited to independent acts by

the defendant.” Strieff, 579 US at ___ (rejecting the Utah Supreme
Court’s conclusion that the doctrine applied “only ‘to
circumstances involving an independent act of a defendant’s
“free will” in confessing to a crime or consenting to a search[,]’”
and holding that the doctrine was applicable in a case in which
“the intervening circumstance that the State relie[d] on [was] the
discovery of a valid, pre-existing, and untainted arrest
warrant[]”).
In Strieff, 579 US at ___, the United States Supreme Court held

that the attenuation doctrine applied “when an officer [made] an
unconstitutional investigatory stop; learn[ed] during that stop
that the suspect [was] subject to a valid arrest warrant; and
proceed[ed] to arrest the suspect and seize incriminating
evidence during a search incident to that arrest.” Applying the
three factors set out in Brown, 422 US at 603-604, the Court
explained:
“[T]he evidence discovered on [the defendant’s]

person was admissible because the unlawful stop
was sufficiently attenuated by the pre-existing
arrest warrant. Although the illegal stop was close
in time to [the defendant’s] arrest, that
consideration is outweighed by two factors
supporting the State. The outstanding arrest
warrant for [the defendant’s] arrest is a critical
intervening circumstance that is wholly
independent of the illegal stop. The discovery of
that warrant broke the causal chain between the
unconstitutional stop and the discovery of
evidence by compelling [the officer] to arrest [the
defendant]. And, it is especially significant that
there is no evidence that [the officer’s] illegal stop
reflected flagrantly unlawful police misconduct.”
Strieff, 579 US at ___ (noting that the warrant “was
entirely unconnected with the stop[,]” that the
officer “was at most negligent[]” in stopping the
defendant, and that “there [was] no indication that
[the] unlawful stop was part of any systemic or
recurrent police misconduct[]”).
In a case that predated Strieff, 579 US ___, the Michigan Court of

Appeals similarly held that, barring any egregious conduct on
the part of the officers making the arrest, “discovery of an
outstanding arrest warrant can dissipate or attenuate the taint of
an initial illegal stop or arrest.” Reese (Richard), 281 Mich App at
303, 305. The Court noted that “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.’” Id. at 303-304 (citation
omitted).
“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 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
(Richard), 281 Mich App at 304 (citations omitted). “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 arrest warrant will constitute an intervening
circumstance that dissipates the taint of the initial illegal stop or
arrest.” Reese (Richard), 281 Mich App at 304. Accordingly,
“evidence that is discovered in a subsequent search incident to
the lawful arrest need not be suppressed.” Id.
“[T]he attenuation doctrine [did] not operate to bar the exclusion

of . . . evidence[]” where the fact pattern was “(1) an invalid
seizure, (2) the search and discovery of contraband, and (3) the
discovery of a valid arrest warrant[;]” “the discovery of the valid
warrant for [the] defendant’s arrest was not an intervening act
that ‘broke’ the causal chain between the initial, unlawful
detention and the discovery of the evidence[]” where “the
warrant had no effect on the actions taken by police . . . [or] on
the evidence that was recovered from [the] defendant.” People v
Maggit, 319 Mich App 675, 700 (2017) (citation omitted).
“[A]pplication of the exclusionary rule [was] appropriate”
where “the time between the illegal detention and the discovery
of the evidence was relatively short[]” and “the case for
suppression—and deterrence—[was] strong[][,]” because
“[a]lthough there [was] no suggestion from the record that the
police officer acted with ill intent, and every indication that the .
. . police [were] attempting to remedy a real problem, the case
nevertheless involve[d] an arrest—or attempted arrest—for
simply walking into and out of a busy parking lot that was open
to the public.” Id. at 700-703 (additionally noting that the “case
present[ed] a case for deterrence[]” because the police
department’s “pattern of behavior suggest[ed] that the seizure
[at issue] could have been part of the ‘systemic or recurrent

police misconduct’ about which the Court in [Strieff, 579 US ___]

was concerned[]”).
B. Good Faith Doctrine

“The primary benefit [and purpose] of the exclusionary rule is that it
deters official misconduct by removing incentives to engage in
unreasonable searches and seizures.” People v Goldston, 470 Mich 523,
529 (2004). “The principal cost of applying the rule is, of course,
letting guilty and possibly dangerous defendants go free—something
that ‘offends basic concepts of the criminal justice system.’” Herring v
United States, 555 US 135, 141 (2009), quoting United States v Leon, 468
US 897, 908 (1984). Accordingly, a “good faith exception” to the
exclusionary rule has evolved. Goldston, 470 Mich at 528-537.
“When police act under a warrant that is invalid for lack of probable
cause, the exclusionary rule does not apply if the police acted ‘in
objectively reasonable reliance’ [(i.e., ‘good faith’)] on the
subsequently invalidated search warrant.” Herring, 555 US at 142,
quoting Leon, 468 US at 922 n 23 (1984). The “‘good-faith inquiry is
confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the search was
illegal’ in light of ‘all of the circumstances.’” Herring, 555 US at 145,
quoting Leon, 468 US at 922 n 23.
In Herring, 555 US 135, the United States Supreme Court reviewed

several cases in which it held that the exclusionary rule did not apply
under the circumstances present in those cases:
• “[T]he exclusionary rule did not apply when a warrant

was invalid because a judge forgot to make ‘clerical
corrections’ to it.” Herring, 555 US at 142, quoting
Massachusetts v Sheppard (Osborne), 468 US 981, 991
(1984).
• The exclusionary rule did not apply “to warrantless

administrative searches performed in good-faith reliance
on a statute later declared unconstitutional.” Herring,
555 US at 142, citing Illinois v Krull, 480 US 340, 349-350
(1987).
• The exclusionary rule did not apply “to police who

reasonably relied on mistaken information in a court’s
database that an arrest warrant was outstanding.”
Herring, 555 US at 142, citing Arizona v Evans, 514 US 1
(1995).
“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, 555 US at 144. In Herring, 555 US at 135, 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. It was subsequently discovered that the warrant had been
recalled but that the recall information was never entered into the
database. Id. The defendant moved to suppress the evidence on the
basis that his initial arrest was illegal. Id. 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 144.
Michigan has adopted the good faith exception to the exclusionary

rule. Goldston, 470 Mich at 526 (2004). In Goldston, 470 Mich at 526, the
police observed the defendant dressed as a fireman collecting money
on a street corner, allegedly to donate to firefighters in New York
following the September 11, 2001, terrorist attacks. The police
confiscated the donations from the defendant and obtained a search
warrant for his house that authorized, among other things, the seizure
of any police and fire equipment. Id. at 526-527. The search yielded
additional firefighter paraphernalia, a firearm, and drugs. Id. at 527.
The trial court granted the defendant’s motion to suppress the
evidence on the basis that the affidavit did not establish probable
cause for the issuance of the warrant because the search warrant
affidavit did not connect the place to be searched with the defendant,
and did not state the date that the police observed the defendant
soliciting money. Id. The Supreme Court applied the good faith
exception to the exclusionary rule and concluded that although the
warrant was later determined to be deficient, excluding the evidence
obtained in good faith reliance on the warrant would not further the
purpose of the exclusionary rule. Id. at 542-543.
“[E]ven if a constitutional violation by [police] officers had occurred

on the basis of a lack of criteria sufficient to justify invocation of the
community-caretaker exception[ to the warrant requirement],” the
exclusion of marijuana evidence discovered after a warrantless entry
into the defendant’s home was inappropriate where “the police,
having at least some indicia of need, enter[ed] [the] home in a good-
faith effort to check on the welfare of a citizen[;]” suppression of the
evidence, rather than deterring police misconduct, “would only
deprive citizens of helpful and beneficial police action.” People v Hill
(Eric), 299 Mich App 402, 411, 414-415 (2013). See also People v Lemons
(Cory), 299 Mich App 541, 549-550 (2013) (“even if [police] officers’
behavior fell short of satisfying the criteria set forth in the emergency-
aid exception[ to the warrant requirement],” the exclusionary rule did
not apply to drug evidence that was discovered following their
warrantless entry into the defendant’s home; the officers, who were

responding to a report that the front door of the home was open and
blowing in the wind, “were acting in good faith” when they “entered
the residence because they believed people could be inside and were
in need of immediate aid[]”).
“[W]hen the police conduct a search in objectively reasonable reliance

on binding appellate precedent, the exclusionary rule does not
apply.” Davis v United States, 564 US 229, 249-250 (2011). In Davis, 564
US at 235-236, officers conducted a search that was legal under then-
current case law, and before appeal, the United States Supreme Court
distinguished that precedent, making the Davis search unlawful. The
Davis Court stated that the exclusionary rule is not meant to deter a
police officer from acting in good faith or from following existing law;
thus, “[e]vidence obtained during a search conducted in reasonable
reliance on binding precedent is not subject to the exclusionary rule.”
Id. at 241.31 See also People v Mungo (On Second Remand), 295 Mich
App 537, 552-553, 556 (2012) (applying Davis, 564 US 229, and holding
that because police acted in good-faith reliance on then-current
United States Supreme Court precedent in conducting a search of the
defendant’s car incident to a passenger’s arrest, the exclusionary rule
did not apply to evidence discovered in that search, even though the
search was rendered unconstitutional under a subsequently-issued
United States Supreme Court decision); People v Short, 289 Mich App
538, 540 (2010) (holding that the trial court correctly denied the
defendant’s motion to suppress evidence of weapons found in his car
following a search incident to arrest, where even though the search
was unconstitutional under the retroactive application of a new
United States Supreme Court decision,32 the police officers
conducting the search acted reasonably and in good faith based on a
long-standing line of case law under which the search was
constitutional33).
“[T]he good-faith exception to an improperly issued search

warrant . . . [may] apply . . . [even when] the police officer who
supplied the underlying affidavit for the search warrant also executed
the warrant.” People v Adams (Shawn), 485 Mich 1039, 1039 (2010). In
Adams (Shawn), 485 Mich at 1039, there was “no evidence that the
officer provided an affidavit so lacking in indicia of probable cause as
to render his subsequent official belief in its existence entirely
unreasonable.” The Supreme Court held that because “[t]he evidence
show[ed] that the officer executed the warrant with a good-faith belief
that it was properly issued[,]” the Court of Appeals erred in relying
31 See Section 11.5(B)(7) for additional discussion of

Davis, 564 US 229.
32 Arizona v Gant, 556 US 332 (2009). See Section 11.5(B)(7) for discussion of Gant.
33 See New York v Belton, 453 US 454 (1981), and its progeny. See Section 11.5(B)(7).

on Leon, 468 US 897, to rule that the good-faith exception was

inapplicable. Adams (Shawn), 485 Mich at 1039.
“The mere fact of an illegal arrest does not per se require the
suppression of evidence.” People v Corr, 287 Mich App 499, 508 (2010).
“‘It is only when an “unlawful detention has been employed as a tool
to procure any type of evidence from a detainee” that the evidence is
suppressed under the exclusionary rule.’” Id. at 508-509 (citations
omitted).
C. Statutory Violations
“[W]hen addressing the appropriate remedy for a statutory violation,
the exclusion of evidence is not the go-to, or default, remedy. Instead,
the drastic remedy of excluding evidence can only come into play if
the legislative intent, gleaned from the words of the statute, permits
its use.” People v Mazzie, ___ Mich App ___, ___ (2018). Accordingly,
where the Secretary of State provided insurance information to the
police, “even if . . . the Secretary of State violated [the confidentiality
requirements of] MCL 257.227(4) [concerning vehicle registration]
and MCL 500.3101a(3) [concerning certificates of insurance], those
statutes provide no remedy for a violation of the confidentiality
requirements, the Secretary of State is not a party to this action, and
application of the exclusionary rule was improper based on this
perceived statutory violation.” Mazzie, ___ Mich App at ___.
Specifically, because “[n]othing within MCL 257.227 and MCL
500.3101a indicates a legislative intent that the drastic remedy of the
exclusion of evidence should be applied for violations of these
statutes,” and “[n]either statute indicates that, should the confidential
information be shared in a manner other than specifically permitted,
the exclusionary rule is applicable”; “even if the provision of the
insurance information to the LEIN system was in violation of the
statutes, the trial court erred in invoking the exclusionary rule to
exclude evidence obtained from the vehicle.” Mazzie, ___ Mich App at
___.
The exclusionary rule does not apply to violations of Michigan’s

knock-and-announce statute, MCL 780.656. Hudson v Michigan, 547
US 586, 599-600 (2006).34
11.9 Standard of Review

The application of the exclusionary rule to a Fourth Amendment
violation is a question of law that is reviewed de novo. People v Custer,
465 Mich 319, 326 (2001). A trial court’s findings of fact regarding a
34 See Section 11.5(A)(3)(a) for discussion of the knock-and-announce statute.

motion to suppress are reviewed for clear error, and questions of law
relevant to the issue of suppression are reviewed de novo. People v
Sobczak-Obetts, 463 Mich 687, 694 (2001).
In warrantless search and seizure cases, appellate courts should apply a

de novo standard of judicial review concerning reasonable suspicion to
stop and probable cause to search. Ornelas v United States, 517 US 690, 699
(1996).

Chapter 12: Trial
12.1 Overview of Trial Rights ..................................................................... 12-2

12.2 Jury Trial or Jury Waiver..................................................................... 12-2
12.3 Bench Trial.......................................................................................... 12-5
12.4 Open or Closed Trial........................................................................... 12-8
12.5 Jury Selection ..................................................................................... 12-9
12.6 Oaths or Affirmations....................................................................... 12-24
12.7 Subpoenas........................................................................................ 12-29
12.8 Conducting the Trial ......................................................................... 12-30
12.9 Issues Affecting the Jury During Trial ............................................... 12-50
12.10 Defendant’s Conduct and Appearance at Trial ................................ 12-53
12.11 Directed Verdict ............................................................................... 12-59
12.12 Jury Instructions ............................................................................... 12-61
12.13 Jury Matters During Deliberations ................................................... 12-78
12.14 Hung Jury.......................................................................................... 12-82
12.15 Verdict.............................................................................................. 12-86
12.16 No-Impeachment Rule ..................................................................... 12-92
12.17 Mistrial and Double Jeopardy Implications of Mistrial Declaration. 12-93

12.1 Overview of Trial Rights

Const 1963, art 1, § 20 provides:
“In every criminal prosecution, the accused shall have the

right to a speedy and public trial by an impartial jury, which
may consist of less than 12 jurors in prosecutions for
misdemeanors punishable by imprisonment for not more
than 1 year; to be informed of the nature of the accusation; to
be confronted with the witnesses against him or her; to have
compulsory process for obtaining witnesses in his or her
favor; to have the assistance of counsel for his or her defense;
to have an appeal as a matter of right, except as provided by
law an appeal by an accused who pleads guilty or nolo
contendere shall be by leave of the court; and as provided by
law, when the trial court so orders, to have such reasonable
assistance as may be necessary to perfect and prosecute an
appeal.”
12.2 Jury Trial or Jury Waiver1
A. Right to a Jury Trial

In all criminal prosecutions, the accused has the right to a speedy and
public trial by an impartial jury. US Const, Am VI; Const 1963, art 1, §
14; Const 1963, art 1, § 20; see also MCL 763.2.2 “Issues of fact shall be
tried by a jury drawn, returned, examined on voir dire, and
empaneled in the manner provided by law for the trial of issues of
fact in civil cases.” MCL 768.8.
B. Waiver of a Jury Trial

With the consent of the prosecutor and the court’s approval, the
defendant may waive the right to a jury trial. MCL 763.3; MCL 768.8;
MCR 6.401; MCR 6.402. Before accepting a defendant’s waiver, the
defendant must have been arraigned on the information (or have
waived arraignment), have been properly advised of the right to a
jury trial, and have been offered the opportunity to consult with an
attorney. MCR 6.402(A); MCR 6.402(B). In a court where arraignments
have been eliminated under MCR 6.113(E),3 the court may not accept
a defendant’s waiver of trial by jury until the defendant has been
1 See the Michigan Judicial Institute’s checklist for waiver of jury trial and conducting a bench trial and
checklist for conducting a jury trial.

2 See Section 9.11 for discussion of the right to a speedy trial.

provided with a copy of the information and offered an opportunity

to consult with an attorney. MCR 6.402(A).
Committee Tip:
Before proceeding to trial (or before taking a
plea), it is imperative to confirm, on the record,
that the defendant has been given a copy of the
information.
Before accepting a waiver of the right to a jury trial, the court must:
• Advise the defendant in open court of the

constitutional right to a jury trial.
• Address the defendant personally to determine

whether the defendant understands the right to a jury
trial and is voluntarily choosing to give up that right
and to be tried by the court.
MCR 6.402(B). A verbatim record must be made of the waiver

proceeding. Id.
Although MCL 763.3(1) provides that, except in cases of minor

offenses, a defendant’s waiver of jury trial must be in writing, MCR
6.402 does not require the defendant to sign a written waiver form;
instead, the court rule “eliminates the written waiver requirement
and replaces it with an oral waiver procedure consistent with the
waiver procedure applicable at plea proceedings.” 1989 Staff
Comment to MCR 6.402. Because “[t]he statutory procedure is
superseded by the court rule procedure[,]”4 a defendant does not
have to sign a written waiver form to effect a valid waiver of a jury
trial. 1989 Staff Comment to MCR 6.402.
“In order for a jury trial waiver to be valid, . . . it must be both

knowingly and voluntarily made.” People v Cook (Robert), 285 Mich
App 420, 422 (2009). Compliance with the procedures set out in MCR
6.402(B) creates a presumption that the waiver was knowing,
voluntary, and intelligent. Cook (Robert), 285 Mich App at 422-423;
People v Mosly, 259 Mich App 90, 96 (2003). On the other hand, “the
3
A circuit court may eliminate arraignments for defendants represented by counsel, subject to the
requirements in MCR 6.113(E). See SCAO Model Local Administrative Order 26—Elimination of Circuit
Court Arraignments.
4 See MCR 6.001(E) (providing that the rules in Chapter 6 of the Michigan Court Rules supersede “any
statutory procedure pertaining to and inconsistent with a procedure provided by a rule in [Chapter 6]”).

trial court [is] without authority to proceed with a bench trial[]”

where there is no record evidence that “[the] defendant was fully
informed about his [or her] right to a jury trial and voluntarily waived
that right[.]” Cook (Robert), 285 Mich App at 422-424 (holding that
defense counsel’s “statement that [the] defendant agreed to waive his
jury trial and [a] written waiver signed only by counsel [did] not
constitute a valid waiver[]” in the absence of record evidence that the
trial court informed the defendant of the right to a jury trial or that the
defendant voluntarily waived that right).
“A defendant has no right to withdraw a waiver of jury trial once it is

validly made[.]” Cook (Robert), 285 Mich App at 423. See also People v
Wagner (Charles), 114 Mich App 541, 558-559 (1982) (noting that the
trial court has discretion to permit a defendant to withdraw a waiver
of jury trial for good cause, but holding that “the trial court did not
abuse its discretion in denying the defendant’s motion to withdraw[]”
where the request was made for the purpose of delay and judge-
shopping).
It is improper and unethical for a trial court to give a defendant a

“waiver break” by dismissing charges in exchange for the defendant’s
waiver of a jury trial; “it is not within the power of the judicial branch
to dismiss charges or acquit a defendant on charges that are
supported by the case presented by the prosecutor.” People v Ellis
(Tyrone), 468 Mich 25, 26-28 (2003).
The trial court’s determination that a defendant validly waived the
right to a jury trial is reviewed for clear error. People v Taylor (Willie),
245 Mich App 293, 305 n 2 (2001). A finding is clearly erroneous if the
reviewing court is left with a definite and firm conviction that a
mistake has been made. Michigan v McQueen, 493 Mich 135, 147
(2013).
A trial court’s failure to comply with the procedural mandates of

MCR 6.402(B) does not require automatic reversal “if the record
establishes that [the] defendant nonetheless understood that he [or
she] had a right to a trial by jury and voluntarily chose to waive that
right.” Mosly, 259 Mich App at 96. However, “a constitutionally
invalid jury waiver is a structural error that requires [automatic]
reversal.” Cook (Robert), 285 Mich App at 427.

12.3 Bench Trial5
A. Is Disqualification An Issue?
“Disqualification is appropriate when a judge cannot impartially hear
a case, including when the judge is personally biased or prejudiced
for or against a party or attorney.” People v Coones, 216 Mich App 721,
726 (1996) (opinion by Bandstra, J.); see MCR 2.003(C).
Committee Tip:
When a defendant opts for a bench trial, the trial
judge’s prior involvement with the case may call
for consideration of reassignment if the judge is
too familiar with the file. See MCR 2.003.
Consider obtaining express approval of the
parties to proceed if the court has had prior
involvement with the case.
A trial court may consider disqualification when it has heard the

factual basis for an aborted guilty plea. See People v Cocuzza, 413 Mich
78 (1982). However, where the defendant, “[w]ith full knowledge of
the trial judge’s prior involvement[,] . . . elected to proceed with a
bench trial” notwithstanding that the “judge had previously heard
the defendant proffer a factual basis for the charge of which he was
ultimately convicted[,]” the judge was not required to sua sponte
raise the issue of disqualification. Id. at 79, 83-84.
For discussion of judicial disqualification, see the Michigan Judicial

Institute’s Judicial Disqualification in Michigan.
B. Pretrial Motions in a Bench Trial

Unless required to do so by a particular court rule, the trial court is
not required to explain its reasoning and state its findings of fact on
pretrial motions, but doing so is preferable for purposes of appellate
review. MCR 2.517(A)(4); People v Shields (Kyle), 200 Mich App 554,
558 (1993).
5 See the Michigan Judicial Institute’s checklist for waiver of jury trial and conducting a bench trial.

C. Evidentiary Issues in a Bench Trial

“[A] judge in a bench trial must arrive at his or her decision based
upon the evidence in the case[ and] . . . may not go outside the record
in determining guilt.” People v Simon (Kenneth), 189 Mich App 565, 568
(1991). “When the factfinder relies on extraneous evidence, the
defendant is denied his [or her] constitutional right to confront all the
witnesses against him [or her] and to get all the evidence on the
record.” Id. Although a factfinder may rely on generalized
knowledge, common sense, and everyday experience, during a bench
trial the judge may not rely on his or her own specialized knowledge in
reaching a verdict. Id. at 567-568 (holding that the trial judge erred in
convicting the defendant “based in part on . . . what he had learned
about drug raids while a prosecutor[]”).
Except as provided by MCL 768.26, which authorizes the

prosecution’s use of a preliminary examination transcript when a
witness is unavailable at trial, it is error requiring reversal for the trial
judge during a bench trial to refer to the preliminary examination
transcript. People v Ramsey, 385 Mich 221, 225 (1971). Cf. People v
Pennington, 323 Mich App 452, 459 (2018), where, in a bench trial, “the
trial court was merely using the preliminary examination transcript to
follow along as the prosecution used that testimony to impeach the
witness” and “[b]ecause the trial court only reviewed the portion of
the transcript properly read into the record, it did not consider any
testimony that was not admitted at trial.” “[T]he record indicate[d]
that the judge understood that the portion of the preliminary
examination read to the witness was admissible only for
impeachment and that she was using the transcript only to assist her
with following the prosecutor’s recitation of the testimony when
impeaching the witness.” Id. at 459. “Unlike the situation in Ramsey,
the trial court did not consider testimony not admitted at trial and so
there [was] no Confrontation Clause violation.” Pennington, 323 Mich
App at 459.
D. Court View
“On application of either party or on its own initiative, the court
sitting as trier of fact without a jury may view property or a place
where a material event occurred.” MCR 2.507(D).6
6
“The provisions of the rules of civil procedure apply to [criminal] cases[,] . . . except (1) as otherwise
provided by rule or statute, (2) when it clearly appears that they apply to civil actions only, (3) when a
statute or court rule provides a like or different procedure, or (4) with regard to limited appearances and
notices of limited appearance.” MCR 6.001(D).

E. Motion for Acquittal

MCR 6.419(D) provides:
“In an action tried without a jury, after the prosecutor

has rested the prosecution’s case-in-chief, the defendant,
without waiving the right to offer evidence if the motion
is not granted, may move for acquittal on the ground
that a reasonable doubt exists. The court may then
determine the facts and render a verdict of acquittal, or
may decline to render judgment until the close of all the
evidence. If the court renders a verdict of acquittal, the
court shall make findings of fact.”
The motion “is in the nature of a jury trial motion for a directed
verdict and in both jury and nonjury trials is governed by the rule that
the prosecutor has the burden of producing in [the] case in chief some
evidence as to each element of the crime charged[.]” People v DeClerk,
400 Mich 10, 17 (1977).
F. Findings and Judgment

At the conclusion of the case, the trial court “must find the facts
specially, state separately its conclusions of law, and direct entry of
the appropriate judgment.” MCR 6.403. The trial court must also
“state its findings and conclusions on the record or in a written
opinion made a part of the record.” Id. A trial court’s articulation of
the law it applied to the facts of the case is designed to aid appellate
review. People v Johnson (Gary) (On Rehearing), 208 Mich App 137, 141
(1994). Findings are sufficient if it appears that the court was aware of
the relevant issues and correctly applied the law. People v Smith
(Kerry), 211 Mich App 233, 235 (1995).
Although a jury may return inconsistent verdicts, “a trial judge sitting

as the trier of fact may not enter an inconsistent verdict.” People v
Walker (Alonzo), 461 Mich 908, 908 (1999) (holding that where the trial
court convicted the defendant of malicious destruction of property
resulting from the discharge of a firearm, yet dismissed a charge of
felony-firearm, the verdict was “patently inconsistent[]” and
improper); see also People v Vaughn (Marcus), 409 Mich 463, 465-466
(1980).
Committee Tip:
When rendering a decision after a bench trial, it
is recommended that the trial court include the

following in its statement of findings and

conclusions and/or in its written opinion:
•applicable statutes, if any;
•applicable jury instructions (including
elements of the offense and any lesser
offenses);
•the burden of proof;
•any presumptions that may apply;
•findings of fact sufficient to show an
appellate court that the trial judge was
aware of the issues and correctly applied the
appropriate law;
•conclusions of law; and
•entry of the appropriate judgment.
See the Michigan Judicial Institute’s checklist on

bench trial decisions.
G. Standard of Review
A trial court’s findings of fact are reviewed for clear error by the
appellate court. MCR 2.613(C). “In the application of this principle,
regard shall be given to the special opportunity of the trial court to
judge the credibility of the witnesses who appeared before it.” Id.
Questions of law and of statutory interpretation are reviewed de
novo. People v Lanzo Constr Co, 272 Mich App 470, 473-474 (2006).
When reviewing a challenge to the sufficiency of the evidence in a

bench trial, the appellate court reviews the record de novo. Lanzo
Constr Co, 272 Mich App at 473-474. “The evidence is viewed in a light
most favorable to the prosecution to determine whether the trial court
could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” Id. at 474. The trier of fact may make
reasonable inferences from evidence in the record but may not make
inferences completely unsupported by any direct or circumstantial
evidence. People v Petrella, 424 Mich 221, 275 (1985).
12.4 Open or Closed Trial

Defendants are entitled to a public trial. US Const, Am VI; Const 1963, art
1, § 20; MCL 600.1420. A criminal trial must be open to the public, unless
the court finds that no alternative short of closure will adequately assure
a fair trial for the accused. Richmond Newspapers, Inc v Virginia, 448 US
555, 580-581 (1980).

12.5 Jury Selection

A defendant is entitled to a fair and impartial jury. US Const, Am VI;
Const 1963, art 1, § 20; Duncan v Louisiana, 391 US 145, 154 (1968). The
process by which potential jurors are selected and brought to court is
governed by MCL 600.1301 et seq. Generally, the process should be
random and result in potential juries that reflect a cross-section of the
community. See MCR 2.511(A).7
A. Representative Cross-Section
The defendant is entitled to a jury which contains a representative
cross-section of the community. Taylor v Louisiana, 419 US 522, 528
(1975).
“A fair-cross-section claim under the Sixth Amendment requires a

defendant to make a prima facie case as set forth by the United States
Supreme Court in Duren v Missouri[, 439 US 357 (1979)]. Namely, a
defendant must show:
“‘(1) that the group alleged to be excluded is a

‘distinctive’ group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.’”
People v Bryant (Ramon), 491 Mich 575, 581-582 (2012),
quoting Duren, 439 US at 364.
The first prong requires a showing of the exclusion of a

constitutionally cognizable group. People v Smith (Diapolis), 463 Mich
199, 215 (2000) (opinion by Cavanagh, J.). “Black Americans are a
constitutionally cognizable group because they are capable of being
singled out for discriminatory treatment, and have been held a
distinctive group for jury composition challenges.” Id. (citation
omitted). See also People v Jackson (Kevin) (On Reconsideration), 313
Mich App 409, 429-430 (2015) (holding that the defendant “failed to
establish a prima facie case for violation of the Sixth Amendment’s
fair-cross-section requirement with regard to education level or ties to
law enforcement[]” where he “provide[d] no evidence that persons
possessing a certain degree of education or ties to law enforcement, or
lacking the same, [were] members of a ‘distinctive’ group in the . . .
community[]”).
7 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510
and [MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A).

The second prong requires a showing that the number of members of

the cognizable group is not fair and reasonable in relation to the
number of group members in the relevant community. Smith
(Diapolis), 463 Mich at 215. The United States Supreme Court has not
specified a preferred method of measuring underrepresentation. Id. at
203 (opinion of the Court), aff’d sub nom Berghuis v Smith, 559 US 314
(2010). The lower federal courts have applied three different methods
known as (1) the absolute disparity test, (2) the comparative disparity
test, and (3) the standard deviation test. Smith (Diapolis), 463 Mich at
203. The Court in Smith (Diapolis) indicated that all three approaches
should be considered and that no individual method should be used
to the exclusion of the others. Id. at 204. See Bryant (Ramon), 491 Mich
at 603-615, for a detailed analysis of all three methods of determining
whether representation of a distinctive group in the jury venire is fair
and reasonable.
“[W]hen applying all the relevant tests for evaluating the

representation data, a court must examine the composition of jury
pools or venires over time using the most reliable data available to
determine whether representation of a distinct group is fair and
reasonable.” Bryant (Ramon), 491 Mich at 583. In Bryant (Ramon), 491
Mich at 587-588, an erroneous setting in the computer program used
by Kent County for summoning jurors resulted, over a 15-month
period, in jury questionnaires being sent disproportionately to zip
codes with smaller African-American populations. The defendant,
who was convicted by a jury during this period, raised a fair-cross-
section claim, arguing that the jury-selection method had resulted in
the underrepresentation of African-Americans appearing for jury
duty. Id. at 585. The Court of Appeals agreed and granted the
defendant a new trial. People v Bryant (Ramon), 289 Mich App 260, 275-
276 (2010). The Michigan Supreme Court reversed, holding that “[the]
defendant did not establish that the representation of African-
Americans was not fair and reasonable under the second prong of the
Duren[, 439 US at 364,] test[.]” Bryant (Ramon), 491 Mich at 619. Noting
that “Duren explicitly requires courts to consider the representation of
a distinct group in venires[,]” the Court held that “the Court of
Appeals wrongly relied on misleading representation data by
considering the representation of African–Americans only in [the]
defendant’s venire[,]” and that “[t]he use of [an] inadequate sample
from only [the] defendant’s venire caused the tests evaluating the
degree of any underrepresentation to produce skewed and
exaggerated results.” Id. at 582.
Additionally, the Bryant (Ramon) Court concluded that “the Court of

Appeals misapplied” the holding in Smith (Diapolis), 463 Mich 199,
“that an evaluation of the second [Duren] prong requires courts to
employ a case-by-case approach that considers all the relevant
statistical tests for evaluating the data regarding representation of a

distinct group without using any one individual method exclusive of

the others.” Bryant (Ramon), 491 Mich at 582. Instead, “the Court of
Appeals, using a skewed result from the comparative-disparity test,
elevated this test above the others in precisely the situation in which
its use is most criticized—distorting the degree of
underrepresentation when the population of the distinct group is
small.” Id. at 583. After “consider[ing] the results of these tests using
the most reliable data set, which included the composition of jury
pools or venires over a three-month period,” the Court concluded that
the defendant “failed to show that the representation of African-
Americans in the venires at issue was not fair and reasonable.” Id. at
583, 615.8
The third prong requires a showing that the underrepresentation of

the cognizable group is systematic, meaning that it results from some
circumstances inherent in the particular selection process. Duren, 439
US at 366; Bryant (Ramon), 491 Mich at 615-616. The defendant “has
the burden of demonstrating a problem inherent within the selection
process that results in systematic exclusion.” People v Williams (S.L.),
241 Mich App 519, 527 (2000). It is irrelevant whether the
circumstances resulting in underrepresentation were intentional or
whether the problem was corrected upon discovery. Bryant (Ramon),
491 Mich at 616. “[A] ‘bald assertion’ that systematic exclusion must
have occurred is insufficient to make out a claim of systematic
exclusion[;]” furthermore, a showing of one or two incidences of
disproportionate panels is not sufficient to show a systematic
exclusion of group members. Williams (SL), 241 Mich App at 526-527
(citation omitted).
B. Number of Jurors
The required number of jurors is set by Michigan’s Constitution
(Const 1963, art 1, § 20), by statute (MCL 600.8355 and MCL 768.18),
and by court rule (MCR 6.410(A) and MCR 6.620(A)).
A jury that decides a felony case generally must consist of 12 jurors.

See MCR 6.410(A); MCL 768.18. MCR 6.410(A) allows the parties to
stipulate, with the court’s consent, to have the case decided by fewer
than 12 jurors. MCR 6.410(A) provides:
“Except as provided in this rule, a jury that decides a

case must consist of 12 jurors. At any time before a
8 However, see Ambrose v Booker, 684 F3d 638, 641, 645-649 (CA 6, 2012) (holding that three federal
habeas petitioners, who were convicted by jury in Kent County during the period in which the computer
program for summoning jurors contained an error, had established cause to excuse their procedural
defaults, because “the factual basis for the claim—the computer glitch—was not reasonably available to
counsel, and [the] petitioners could not have known that minorities were underrepresented in the jury
pool by looking at the venire panel[]”).

verdict is returned, the parties may stipulate with the

court’s consent to have the case decided by a jury
consisting of a specified number of jurors less than 12.
On being informed of the parties’ willingness to
stipulate, the court must personally advise the
defendant of the right to have the case decided by a jury
consisting of 12 jurors. By addressing the defendant
personally, the court must ascertain that the defendant
understands the right and that the defendant
voluntarily chooses to give up that right as provided in
the stipulation. If the court finds that the requirements
for a valid waiver have been satisfied, the court may
accept the stipulation. Even if the requirements for a
valid waiver have been satisfied, the court may, in the
interest of justice, refuse to accept a stipulation, but it
must state its reasons for doing so on the record. The
stipulation and procedure described in this subrule
must take place in open court and a verbatim record
must be made.”
MCR 6.411 and MCL 768.18 authorize a trial judge in a felony case to
impanel a jury of more than 12 members. The number of jurors may
be reduced to no fewer than 12 if it becomes necessary to excuse any
juror during trial. MCL 768.18. In the event that more than 12 jurors
remain when deliberations are to begin, jurors must be randomly
excused “to reduce the number of jurors to the number required to
decide the case.” MCR 6.411; see also MCL 768.18. Any alternate
jurors may be retained during deliberations; the court must “instruct
the alternate jurors not to discuss the case with any other person until
the jury completes its deliberations and is discharged.” MCR 6.411. “If
an alternate juror replaces a juror after the jury retires to consider its
verdict, the court shall instruct the jury to begin its deliberations
anew.”
In misdemeanor cases, the jury must consist of six people. MCL

600.8355; MCR 6.620(A). However, the judge may impanel seven or
more potential jurors, excusing any additional jurors randomly in
order to reduce the jury to six members for deliberations. MCR
6.620(A). Any alternate jurors may be retained during deliberations;
the court must “instruct the alternate jurors not to discuss the case
with any other person until the jury completes its deliberations and is
discharged.” Id. “If an alternate juror replaces a juror after the jury
retires to consider its verdict, the court shall instruct the jury to begin
its deliberations anew.” Id.

C. Identity of Jurors
Jurors drawn for jury service are required to complete a juror
personal history questionnaire as adopted by the State Court
Administrator. MCR 2.510(A)-(B).9 Access to juror personal history
questionnaires is governed by MCR 2.510(C)(2). Juror qualifications
questionnaires are confidential except as ordered by the chief circuit
judge. MCL 600.1315. The attorneys must be given a reasonable
opportunity to examine the jurors’ questionnaires before being called
on to challenge for cause. MCR 2.510(C)(2).
It is permissible to use juror numbers instead of names at trial.

Williams (SL), 241 Mich App at 522, 525. However, the use of an
anonymous jury is potentially prejudicial, and should only be
employed when jurors’ safety or freedom from undue harassment is
an issue. Id. at 525. In the case of an anonymous jury, appropriate
safeguards should be followed to ensure a fair trial. Id. “[T]o
successfully challenge the use of an ‘anonymous jury,’ the record
must reflect that the parties have had information withheld from
them, thus preventing meaningful voir dire, or that the presumption
of innocence has been compromised.” Id. at 523.
“[T]he press has a qualified right of postverdict access to juror names

and addresses, subject to the trial court’s discretion to fashion an
order that takes into account the competing interest of juror safety
and any other interests that may be implicated by the court’s order.”
In re Disclosure of Juror Names and Addresses, 233 Mich App 604, 630
(1999). “For example, a trial court might act to protect juror privacy by
precluding jurors from revealing the statements other jurors made
during deliberation.” Id. at 630 n 9.
D. Voir Dire
Voir dire is the process by which litigants may question prospective
jurors so that challenges may be intelligently exercised. People v
Harrell, 398 Mich 384, 388 (1976). The court has broad discretion to
limit or preclude voir dire by the attorneys. Id. “The function of voir
dire is to elicit sufficient information from prospective jurors to enable
the trial court and counsel to determine who should be disqualified
from service on the basis of an inability to render decisions
impartially.” People v Sawyer (Thomas), 215 Mich App 183, 186 (1996).
MCR 6.412(C) states:
9 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510
and [MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A).

“(1) Scope and Purpose. The scope of voir dire

examination of prospective jurors is within the
discretion of the court. It should be conducted for the
purposes of discovering grounds for challenges for
cause and of gaining knowledge to facilitate an
intelligent exercise of peremptory challenges. The court
should confine the examination to these purposes and
prevent abuse of the examination process.
(2) Conduct of the Examination. The court may conduct

the examination of prospective jurors or permit the
lawyers to do so. If the court conducts the examination,
it may permit the lawyers to supplement the
examination by direct questioning or by submitting
questions for the court to ask. On its own initiative or on
the motion of a party, the court may provide for a
prospective juror or jurors to be questioned out of the
presence of the other jurors.”
Generally, closing the courtroom during the jury selection process is a

violation of the right to a public trial and constitutes a structural error.
Weaver v Massachusetts, 582 US ___, ___ (2017) (noting that there are
exceptions, and “[t]hough these cases should be rare, a judge may
deprive a defendant of his [or her] right to an open courtroom by
making proper factual findings in support of the decision to do so[]”).
“[T]here is no right to any specific procedure for engaging in voir

dire.” Sawyer (Thomas), 215 Mich App at 191. “There is no right to
have counsel conduct voir dire or to individual, sequestered voir
dire[,]” and the trial court may refuse to ask prospective jurors
specific questions submitted by counsel as long as the voir dire
conducted by the court is sufficient to seat an impartial jury. Id.
However, the trial court’s discretion over the voir dire process is not
unlimited. For example, a trial court may not restrict the scope of voir
dire to the degree that the parties are unable to develop a factual basis
for the intelligent exercise of their peremptory challenges. People v
Tyburski, 196 Mich App 576, 581 (1992), aff’d 445 Mich 606 (1994). In
Tyburski, 196 Mich App at 591, the defendant was denied a fair trial
because “the trial court’s voir dire of the prospective jurors was a
perfunctory exercise rather than a probing inquiry that would be
necessary in a highly publicized case to enable counsel to obtain
sufficient information necessary to make an informed decision to
exercise a challenge to a juror, either for cause or peremptorily.”
When information potentially affecting a juror’s ability to act

impartially is discovered after the jury has been sworn and the juror is
allowed to remain on the jury, the defendant may be entitled to relief
on appeal if the defendant can establish that the juror’s presence on
the jury resulted in actual prejudice. People v Miller (Michael), 482
Mich 540, 561 (2008). “[T]he proper inquiry is whether the defendant
was denied his [or her] right to an impartial jury. If he [or she] was
not, there is no need for a new trial.” Miller (Michael), 482 Mich at 561.
1. Challenges for Cause

A prospective juror is subject to challenge for cause on any
ground set out in MCR 2.511(D),10 or for any other reason
recognized by law. MCR 6.412(D). “The parties may challenge
jurors for cause, and the court shall rule on each challenge.”
MCR 2.511(D).
MCR 2.511(D) provides, in relevant part:
“It is grounds for a challenge for cause that the

person:
(1) is not qualified to be a juror;[11]
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the

person from rendering a just verdict, or has
formed a positive opinion on the facts of the
case or on what the outcome should be;
(4) has opinions or conscientious scruples that

would improperly influence the person’s
verdict;
(5) has been subpoenaed as a witness in the

action;
(6) has already sat on a trial of the same issue;
(7) has served as a grand or petit juror in a

criminal case based on the same transaction;
10
“Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR
2.510 and [MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A).
11 MCL 600.1307a(1) provides:
“To qualify as a juror, a person shall meet all of the following criteria:
(a) Be a citizen of the United States, 18 years of age or older, and a resident in the county for
which the person is selected, and in the case of a district court in districts of the second and third
class, be a resident of the district.
(b) Be able to communicate in the English language.
(c) Be physically and mentally able to carry out the functions of a juror. Temporary inability shall
not be considered a disqualification.
(d) Not have served as a petit or grand juror in a court of record during the preceding 12 months.
(e) Not have been convicted of a felony.”

(8) is related within the ninth degree (civil

law) of consanguinity or affinity to one of the
parties or attorneys;
(9) is the guardian, conservator, ward,

landlord, tenant, employer, employee,
partner, or client of a party or attorney;
(10) is or has been a party adverse to the

challenging party or attorney in a civil action,
or has complained of or has been accused by
that party in a criminal prosecution;
(11) has a financial interest other than that of a

taxpayer in the outcome of the action;
(12) is interested in a question like the issue to

be tried.
Exemption from jury service is the privilege of the

person exempt, not a ground for challenge.”
Jurors are presumed to be qualified, competent, and impartial,

and the burden of proving the existence of a disqualification is
on the party alleging it. See Miller (Michael), 482 Mich at 550;
People v Collins (Charles), 166 Mich 4, 9 (1911); see also People v Lee
(Albert), 212 Mich App 228, 250 (1995); People v Walker (Jefforey),
162 Mich App 60, 63 (1987). If, however, “after the examination
of any juror, the court finds that a ground for challenging a juror
for cause is present, the court on its own initiative should, or on
motion of either party must, excuse the juror from the panel.”
MCR 6.412(D)(2). See also MCR 2.511(C); MCL 600.1337; Walker
(Jefforey), 162 Mich App at 64.
A defendant is not entitled to relief where, even if the trial court

erred in denying the defendant’s challenge to a prospective juror
for cause, the defendant failed to exhaust his or her peremptory
challenges. People v Legrone, 205 Mich App 77, 81-82 (1994).
“A juror who expresses an opinion referring to some

circumstance of the case which is not positive in character, but
swears he [or she] can render an impartial verdict, may not be
challenged for cause.” People v Roupe, 150 Mich App 469, 474
(1986); see MCL 768.10. See also People v Jendrzejewski, 455 Mich
495, 515-519 (1997) (holding that the defendant was not deprived
of a fair trial where two jurors who were actually seated had
formed an earlier opinion, but “were adamant [during voir dire]
that any previous opinion that they might have had was
completely set aside and that they could definitely be fair and
impartial[]”).

“A four-part test is used to determine whether an error in

refusing a challenge for cause merits reversal[:]
“There must be a clear and independent showing

on the record that (1) the court improperly denied
a challenge for cause, (2) the aggrieved party
exhausted all peremptory challenges, (3) the party
demonstrated the desire to excuse another
subsequently summoned juror, and (4) the juror
whom the party wished later to excuse was
objectionable.” Lee (Albert), 212 Mich App at 248-
249.
2. Peremptory Challenges
A juror who is peremptorily challenged is excused without
cause. MCR 2.511(E)(1).12 In a criminal case in which the offense
is not punishable by life imprisonment, a defendant tried alone
is entitled to five peremptory challenges. MCR 6.412(E)(1); MCL
768.12(1). Similarly, if two or more defendants are being jointly
tried for an offense not punishable by life imprisonment, each
defendant is entitled to five peremptory challenges. MCR
6.412(E)(1); MCL 768.12(1). The prosecutor is entitled to five
peremptory challenges when a defendant is tried alone, and
when two or more defendants are tried together, the prosecutor
is entitled to the total number of challenges to which all the
defendants are entitled. MCR 6.412(E)(1); MCL 768.12(1). On
motion and a showing of good cause, the court may grant one or
more of the parties an increased number of peremptory
challenges; it is unnecessary for the additional challenges
granted by the court to be equal for each party. MCR 6.412(E)(2);
MCL 768.12(2).
If the offense charged is punishable by life imprisonment, a

defendant being tried alone is entitled to 12 peremptory
challenges. MCR 6.412(E)(1); MCL 768.13(1). In cases in which
two or more defendants are being tried jointly for offenses
punishable by life imprisonment, the number of peremptory
challenges varies with the number of defendants being tried. See
MCR 6.412(E)(1) and MCL 768.13(1)(a)-(d). A defendant may be
granted an increased number of peremptory challenges for good
cause, and where more than one defendant is being tried, the
number of additional challenges granted by the court may result
in an unequal number of challenges allowed each defendant.
MCR 6.412(E)(2); MCL 768.13(3). The prosecutor is permitted 12
12

peremptory challenges in cases involving a single defendant and

an offense punishable by life imprisonment; if multiple
defendants are being tried jointly for an offense punishable by
life imprisonment, the prosecutor is entitled to the total number
of challenges allowed all defendants being tried. MCR
6.412(E)(1); MCL 768.13(2).
Peremptory challenges must be exercised as follows:
“(a) First the plaintiff and then the defendant may

exercise one or more peremptory challenges until
each party successively waives further peremptory
challenges or all the challenges have been
exercised, at which point jury selection is complete.
(b) A ‘pass’ is not counted as a challenge but is a

waiver of further challenge to the panel as
constituted at that time.
(c) If a party has exhausted all peremptory

challenges and another party has remaining
challenges, that party may continue to exercise
their remaining peremptory challenges until such
challenges are exhausted.” MCR 2.511(E)(3).
In a case cognizable by the district court, “[e]ach defendant is

entitled to three peremptory challenges. The prosecutor is
entitled to the same number of peremptory challenges as a
defendant being tried alone, or, in the case of jointly tried
defendants, the total number of peremptory challenges to which
all the defendants are entitled.” MCR 6.620(B). A party may be
granted an increased number of peremptory challenges upon a
showing of good cause, and the additional challenges need not
be equal for each party. Id.
“The right to exercise peremptory challenges in state court is

determined by state law[,]” and “the mistaken denial of a state-
provided peremptory challenge does not, without more, violate
the Federal Constitution.” Rivera v Illinois, 556 US 148, 152, 158
(2009) (holding that the trial court’s erroneous denial of the
defendant’s peremptory challenge did not require automatic
reversal of the defendant’s first-degree murder conviction where
all of the jurors ultimately seated were qualified and unbiased).
“If a defendant is tried before a qualified jury composed of
individuals not challengeable for cause, the loss of a peremptory
challenge due to a state court’s good-faith error is not a matter of
federal constitutional concern.” Id. at 157.

3. Discrimination During Voir Dire: Batson Challenges

The Equal Protection Clause of the Fourteenth Amendment
prohibits discrimination during voir dire. Batson v Kentucky, 476
US 79 (1986). The Sixth Amendment also requires that a jury
venire be drawn from a fair cross-section of the community.
Smith, 559 US at 319. Additionally, MCR 2.511(F)13 provides:
“(1) No person shall be subjected to discrimination

during voir dire on the basis of race, color, religion,
national origin, or sex.
(2) Discrimination during voir dire on the basis of

race, color, religion, national origin, or sex for the
purpose of achieving what the court believes to be
a balanced, proportionate, or representative jury in
terms of these characteristics shall not constitute an
excuse or justification for a violation of this
subsection.”
In Batson, 476 US at 96-98, the United States Supreme Court set

out a three-step process for determining the constitutional
propriety of a peremptory challenge. The Michigan Supreme
Court explained the process in People v Knight, 473 Mich 324, 336
(2005), habeas corpus gtd Rice v White, 660 F3d 242 (CA 6,
2011)14:
“First, the opponent of the peremptory challenge

must make a prima facie showing of
discrimination.[15] To establish a prima facie case
of discrimination based on race, the opponent
must show that: (1) he [or she] is a member of a
cognizable racial group; (2) the proponent has
exercised a peremptory challenge to exclude a
member of a certain racial group from the jury
13 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR
2.510 and 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A).
14 In Knight, 473 Mich at 352, the Michigan Supreme Court held that Batson, 476 US 79, was not violated in
the jury selection at the joint trial of the two defendants, Jerome Knight and Gregory Rice. In Rice, 660 F3d
at 253, 257-260, the Sixth Circuit Court of Appeals affirmed the federal district court’s grant of a
conditional writ of habeas corpus to codefendant Rice and vacated his conviction under 28 USC 2254(d)(2),
holding that “the Michigan Supreme Court’s adjudication of [Rice’s] Batson claim was based on the court’s
unreasonable factual determination that the trial judge did not discredit the prosecutor’s proffered race-
neutral reasons for the exercise of her peremptory strikes.” However, the legal principles cited by Knight,
473 Mich at 335-348, were not implicated by the Sixth Circuit’s decision in Rice, 660 F3d 242, and they
remain good law. See Rice, 660 F3d at 253-254 (reiterating the Batson process detailed in Knight, 473 Mich
at 335-338).
15
In the first Batson step, the opponent of the challenge is not required to actually prove discrimination.
Knight, 473 Mich at 336. As long as the sum of the proffered facts gives rise to an inference of
discriminatory purpose, the first Batson step is satisfied. Knight, 473 Mich at 336-337.

pool; and (3) all the relevant considerations raise

an inference that the proponent of the challenge
excluded the prospective juror on the basis of
race. . . .
Second, if the trial court determines that a prima

facie showing has been made, the burden shifts to
the proponent of the peremptory challenge to
articulate a race-neutral explanation for the strike.
Batson’s second step ‘does not demand an
explanation that is persuasive, or even plausible.’
Rather, the issue is whether the proponent’s
explanation is facially valid as a matter of law. ‘A
neutral explanation in [this] context . . . means an
explanation based on something other than the
race of the juror. . . . Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.’
Finally, if the proponent provides a race-neutral

explanation as a matter of law, the trial court must
then determine whether the race-neutral
explanation is a pretext and whether the opponent
of the challenge has proved purposeful
discrimination. It must be noted, however, that if
the proponent of the challenge offers a race-neutral
explanation and the trial court rules on the
ultimate question of purposeful discrimination, the
first Batson step (whether the opponent of the
challenge made a prima facie showing) becomes
moot.” Knight, 473 Mich at 336-338 (internal
citations omitted).
“[T]rial courts must meticulously follow Batson’s three-step

test,” and the Michigan Supreme Court “strongly urge[s] [trial]
courts to clearly articulate their findings and conclusions on the
record.” Knight, 473 Mich at 339.
For the first Batson step (prima facie showing of discrimination),

the trial court “must first find the facts and then must decide
whether those facts constitute a prima facie case of
discrimination under Batson and its progeny.” Knight, 473 Mich
at 342. This step presents “a mixed question of fact and law that
is subject to both a clear error (factual) and a de novo (legal)
standard of review[]” on appeal. Id.
For the second Batson step (race-neutral explanation), the trial

court must only be “concerned with whether the proffered
reason violates the Equal Protection Clause as a matter of law.”

Knight, 473 Mich at 343-344. “Batson’s second step does not

demand articulation of a persuasive reason, or even a plausible
one; ‘so long as the reason is not inherently discriminatory, it
suffices.’” People v Tennille, 315 Mich App 51, 63 (2016) (citation
omitted). On appeal, the second Batson step is subject to de novo
review. Knight, 473 Mich at 343-344.
For the third Batson step (pretext/purposeful discrimination), the

trial court must determine whether the opponent of the
peremptory challenge has satisfied the ultimate burden of
proving purposeful discrimination, which largely turns on
factual findings involving credibility; this step is therefore
subject to appellate review for clear error. Knight, 473 Mich at
344-345. “In making a finding at step three, the trial court is
required to assess the plausibility of the race-neutral explanation
‘in light of all evidence with a bearing on it.’” Tennille, 315 Mich
App at 64 (citation omitted). “Step three of the Batson inquiry
involves an evaluation of the prosecutor’s credibility,” and “race-
neutral reasons for peremptory challenges often invoke a juror’s
demeanor (e.g., nervousness, inattention)[;] . . . [i]n this situation,
the trial court must evaluate not only whether the prosecutor’s
demeanor belies a discriminatory intent, but also whether the
juror’s demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor.” Snyder v
Louisiana, 552 US 472, 477 (2008). A pretextual explanation by the
prosecution gives rise to an inference of discriminatory intent. Id.
at 484-485.
In Snyder, the trial court allowed the prosecutor to strike a black

juror for the proffered race-neutral reasons that the juror looked
nervous and that, because of a student-teaching obligation, the
juror might return a lesser guilty verdict (which would obviate
the need for a penalty phase) in order to fulfill his jury duty
more quickly. Snyder, 552 US at 478. The United States Supreme
Court noted that the record did not support a conclusion that the
trial judge made any determination regarding the juror’s
demeanor, and that the prosecution’s second proffered reason
was implausible and, therefore, pretextual. Id. at 479-485. The
Court held that the trial court clearly erred in overruling the
defendant’s Batson objection to the prosecutor’s strike of the
juror:
“In other circumstances, . . . once it is shown that a

discriminatory intent was a substantial or
motivating factor in an action taken by a state
actor, the burden shifts to the party defending the
action to show that this factor was not
determinative. . . . We have not previously applied
this rule in a Batson case, and we need not decide
here whether that standard governs in this context.

For present purposes, it is enough to recognize that
a peremptory strike shown to have been motivated
in substantial part by discriminatory intent could
not be sustained based on any lesser showing by
the prosecution.” Snyder, 552 US at 485.
There is no requirement that a trial judge, in ruling on an

objection to a peremptory challenge under Batson, 476 US 79,
reject a demeanor-based explanation for the challenge unless the
judge personally observed and recalls the aspect of the
prospective juror’s demeanor on which the explanation is based.
Thaler v Haynes, 559 US 43, 44, 47-49 (2010). However, “[e]ven if
the trial court did not personally observe [the demeanor of a
stricken juror], the court ‘has a pivotal role’ in evaluating
whether the prosecutor’s demeanor, and any pertinent
surrounding circumstances, belie that a strike was race
neutral[;]” the trial court must make a factual determination
regarding a stricken juror’s demeanor, and, in the absence of
such findings, it cannot be presumed “‘that the trial judge
credited the prosecutor’s assertion’ that the juror[] reacted in a
certain fashion.” Tennille, 315 Mich App at 70-71 (quoting Snyder,
552 US at 477, 479, and distinguishing Haynes, 559 US 43).
“[T]he trial court committed two serious Batson errors[]” when it

“failed to afford defense counsel an opportunity to rebut the
prosecutor’s stated reason for dismissing [two African-
American] jurors” and failed to make any “findings of fact
regarding whether the prosecutor’s justification for the strikes[,
i.e., the jurors’ show of disgust in reaction to another juror’s
assertions that he would give a police officer’s testimony more
credence than that of another witness,] seem[ed] credible under
all of the relevant circumstances, including whether the jurors
actually exhibited the expressions claimed and whether the
averred reactions were the real reasons for the strikes.” Tennille,
315 Mich App at 62. “The court made no effort to entertain
argument from defense counsel regarding whether the
[peremptory strikes were] racially motivated despite the
prosecutor’s articulation of a race-neutral ground[,]” but instead
perfunctorily “stated that it ‘accepted’ the prosecutor’s
explanation as ‘a valid race neutral reason’ and denied the
challenge[; t]his premature conclusion of the Batson inquiry
reflects that the trial court misapprehended defense counsel’s
role in the Batson process and overlooked the inalterable need for
factual findings.” Tennille, 315 Mich App at 68. Because “[the]
record [did] not permit a conclusion that the prosecutor’s stated
reason for the strikes was nondiscriminatory,” it was necessary
to “remand to the trial court for an evidentiary hearing during

which the trial court [was required to] conduct the third-step
[Batson] analysis it omitted at [the] defendant’s trial.” Tennille,
315 Mich App at 71, 73.
A prosecutor’s use of a peremptory challenge to excuse the only

black juror in a jury pool does not automatically constitute a
prima facie showing of discrimination or discrimination as a
matter of law; rather, “[t]he defendant must offer facts that at
least give rise to an inference that the prosecutor had a
discriminatory purpose for excluding the prospective juror.”
People v Armstrong (Parys), 305 Mich App 230, 238-239 (2014)
(citing Johnson v California, 545 US 162, 168 (2005), and Knight,
473 Mich at 336-337, and holding that no constitutional violation
occurred where the excused juror had childcare issues which
were detailed on the record, and, although no other prospective
jurors were excused, none of them “expressed similar issues[]”).
In order to ensure the equal protection rights of individual

jurors, a trial court may sua sponte raise a Batson issue after
observing a prima facie case of purposeful discrimination
through the use of peremptory challenges. People v Bell (Marlon),
473 Mich 275, 285-287 (2005) (opinion by Corrigan, J.).
It is important to note the distinction between a Batson error and

a denial of a peremptory challenge: a Batson error occurs when a
juror is actually dismissed on the basis of race or gender,
whereas a denial of a peremptory challenge on other grounds
amounts to the denial of a statutory or court-rule-based right to
exclude a certain number of jurors. Bell (Marlon), 473 Mich at 293.
A Batson error is of constitutional dimension, and is subject to
automatic reversal, whereas an improper denial of a peremptory
challenge is not of constitutional dimension, and is reviewed for
a miscarriage of justice if it is preserved, or for plain error
affecting substantial rights if it is unpreserved. Bell (Marlon), 473
Mich at 293-295.
E. Removal or Substitution of a Juror at Trial

A trial court has discretion to replace a deliberating juror with an
alternate juror. MCR 6.411; People v Mahone, 294 Mich App 208, 215-
218 (2011) (holding that the trial court did not abuse its discretion in
removing a juror during deliberations, and the defendant was not
denied a fair trial by the juror’s replacement with an alternate juror
rather than the granting of a mistrial; the record showed that the
removed juror was unable to continue deliberations due to physical
and emotional stress, that the alternate juror complied with
instructions not to discuss the case or review any media about the
case, and that the jury was properly instructed to begin deliberations

anew as required by MCR 6.411); People v Tate (Monya), 244 Mich App
553, 559-560 (2001) (trial court properly excused a juror who
developed a medical condition after deliberations had begun and
replaced that juror with a dismissed alternate juror who had not
acquired any extraneous information about the case). See also MCL
768.18 (“[s]hould any condition arise during the trial of the cause
which in the opinion of the trial court justifies the excusal of any of
the jurors . . . from further service, [the court] may do so and the trial
shall proceed, unless the number of jurors be reduced to less than
12[]”).
“[W]hile a defendant has a fundamental interest in retaining the

composition of the jury as originally chosen, he [or she] has an
equally fundamental right to have a fair and impartial jury made up
of persons able and willing to cooperate, a right that is protected by
removing a juror unable or unwilling to cooperate.” Tate, 244 Mich
App at 562. “Removal of a juror under Michigan law is therefore at
the discretion of the trial court, weighing a defendant’s fundamental
right to a fair and impartial jury with [the] right to retain the jury
originally chosen to decide his [or her] fate.” Id. Once a juror is
replaced, the judge must instruct the reconstituted jury to begin
deliberations anew. Id. at 567; MCR 6.411.
F. Substitution of Judges After Voir Dire

“It is far preferable that a single judge preside over all aspects of a
trial.” People v McCline, 442 Mich 127, 134 (1993). However, if a judge
is substituted after voir dire, but before opening statements and the
introduction of proofs, automatic reversal is not required; rather,
prejudice must be shown to justify reversal. Id.
12.6 Oaths or Affirmations
A. Juror Oath Before Voir Dire

M Crim JI 1.4 (“Juror Oath before Voir Dire”) provides:
“(1) I will now ask you to stand and swear to answer

truthfully, fully, and honestly all the questions that you
will be asked about your qualifications to serve as a
juror in this case. If you have religious beliefs against
taking an oath, you may affirm that you will answer all
the questions truthfully, fully, and honestly.
(2) Here is your oath: ‘Do you solemnly swear (or

affirm) that you will truthfully and completely answer

all questions about your qualifications to serve as jurors

in this case?’”
B. Juror Oath Following Selection

“The following oath shall be administered to the jurors for the trial of
all criminal cases: ‘You shall well and truly try, and true deliverance
make, between the people of this state and the prisoner at bar, whom
you shall have in charge, according to the evidence and the laws of
this state; so help you God.’” MCL 768.14. However, “[a]ny juror shall
be allowed to make affirmation, substituting the words ‘This you do
under the pains and penalties of perjury’ instead of the words ‘so help
you God.’” MCL 768.15.
“The word ‘oath’ shall be construed to include the word ‘affirmation’

in all cases where by law an affirmation may be substituted for an
oath; and in like cases the word ‘sworn’ shall be construed to include
the word ‘affirmed.’” MCL 8.3k.
MCR 2.511(H)(1)16 states:
“The jury must be sworn by the clerk substantially as

follows:
‘Each of you do solemnly swear (or affirm) that, in

this action now before the court, you will justly
decide the questions submitted to you, that, unless
you are discharged by the court from further
deliberation, you will render a true verdict, and
that you will render your verdict only on the
evidence introduced and in accordance with the
instructions of the court, so help you God.’”
M Crim JI 2.1 (“Juror Oath Following Selection”) states:
“(1) Ladies and gentlemen of the jury, you have been

chosen to decide a criminal charge made by the State of
Michigan against one of your fellow citizens.
(2) I will now ask you to stand and swear to perform

your duty to try the case justly and to reach a true
verdict. If your religious beliefs do not permit you to
take an oath, you may instead affirm to try the case
justly and reach a true verdict.
16

(3) Here is your oath: ‘Each of you do solemnly swear

(or affirm) that, in this action now before the court, you
will justly decide the questions submitted to you, that,
unless you are discharged by the court from further
deliberation, you will render a true verdict, and that you
will render your verdict only on the evidence
introduced and in accordance with the instructions of
the court, so help you God.’”
“[T]he oath is more than a mere laundry list of juratorial duties.”

People v Cain (Brandon), 498 Mich 108, 121 (2015). “The jurorʹs oath
involves a conscious promise to adopt a particular mindset—to
approach matters fairly and impartially—and its great virtue is the
powerful symbolism and sense of duty it imbues the oath-taker with
and casts on the proceedings.” Id. at 123.
In Cain (Brandon), 498 Mich at 113, the court clerk “mistakenly read [to
the empaneled jury] the oath given to prospective jurors before voir
dire[]” rather than the oath required by MCR 2.511(H)(1) and MCL
768.14. The Michigan Supreme Court held that the defendant was not
entitled to relief on the basis of his unpreserved claim that the trial
court administered the wrong juror’s oath where, under the particular
circumstances of the case, “the trial court’s failure to properly swear
the jury [did not] seriously affect[] the fairness, integrity, or public
reputation of the judicial proceedings[.]” Cain (Brandon), 498 Mich at
112, citing People v Carines, 460 Mich 750, 763 (1999). Noting that “the
fourth Carines prong is meant to be applied on a case-specific and
fact-intensive basis[,]” the Michigan Supreme Court concluded that
“the record reveal[ed] that the jurors were conscious of the gravity of
the task before them and the manner in which that task was to be
carried out, the two primary purposes served by the juror’s oath.”
Cain (Brandon), 498 Mich at 112, 121 (citations omitted). The jurors
“stated under oath that they could be fair and impartial, and the trial
court thoroughly instructed them on the particulars of their duties[;]”
although the oath that was administered “was not a perfect substitute
for the oath required by MCR 2.511(H)(1),” the defendant was not
entitled to relief based on this unpreserved error because he “was
actually ensured a fair and impartial jury[.]” Cain (Brandon), 498 Mich
at 123, 126, 128-129 (cautioning courts “to take particular care that the
error that occurred in this case be avoided in the future[]”).17
C. Oath for Bailiff Before Deliberation

“When an order shall have been entered by the court in

which such action is being tried, directing said jurors to
be kept in charge of such officers, the following oath

shall be administered by the clerk of the court to said

officers: ‘You do solemnly swear that you will, to the
utmost of your ability, keep the persons sworn as jurors
on this trial from separating from each other; that you
will not suffer any communication to be made to them,
or any of them, orally or otherwise; that you will not
communicate with them, or any of them, orally or
otherwise, except by the order of this court, or to ask
them if they have agreed on their verdict, until they
shall be discharged; and that you will not, before they
render their verdict, communicate to any person the
state of their deliberations or the verdict they have
agreed upon, so help you God.’ And thereafter it shall
be the duty of the officer so sworn to keep the jury from
separating, or from receiving any communication of any
character, until they shall have rendered their verdict,
except under a special instruction in writing from the
trial judge.”
D. Oath for Witnesses

“Before testifying, every witness shall be required to declare that the
witness will testify truthfully, by oath or affirmation administered in a
form calculated to awaken the [witness’s] conscience and impress the
[witness’s] mind with the duty to do so.” MRE 603.
MCL 600.1432 governs the mode of administering oaths and makes

reference to “[t]he usual mode of administering oaths . . . by the
person who swears holding up the right hand[.]” If a witness is
opposed to swearing under oath, MCL 600.1434 permits an
affirmation of truthful testimony. Donkers v Kovach, 277 Mich App 366,
374 (2007). However, neither MCL 600.1434 nor MRE 603 requires a
witness to raise his or her right hand when swearing or affirming to
testify truthfully. Donkers, 277 Mich App at 373-374.
17 In People v Allan (David), 299 Mich App 205, 207, 210-211, 218-219 (2013), overruled in part by Cain
(Brandon), 498 Mich at 127-128, the Court of Appeals held that a trial court’s failure to comply with its
obligation to swear in the jury, as “clearly established” under MCL 768.14, MCR 2.511(H)(1), and MCR
6.412(F), constitutes a plain, structural error that “render[s a] defendant’s trial fundamentally unfair[.]”
The Cain (Brandon) Court, however, noted that the Court of Appeals in Allan (David) “should have engaged
in a fact-intensive and case-specific inquiry under the fourth Carines prong to assess whether, in light of
any ‘countervailing factors’ on the record, . . . leaving the error unremedied would constitute a miscarriage
of justice, i.e., whether the fairness, integrity, or public reputation of the proceedings was seriously
affected.” Cain (Brandon), 498 Mich at 117 n 4, 127 n 7, 128 (declining to decide whether a court’s failure
to properly swear the jury constitutes “a structural constitutional error,” and noting that under People v
Vaughn, 491 Mich 642, 654 (2012), “even with regards to a structural error ‘a defendant is not entitled to
relief unless he [or she] can establish . . . that the error . . . seriously affected the fairness, integrity, or
public reputation of judicial proceedings[]’”) (additional citations omitted).

“Because the administrations of oaths and affirmations is a purely

procedural matter, to the extent MRE 603 conflicts with MCL 600.1432
and MCL 600.1434, MRE 603 prevails over the statutory provisions,
meaning that no specific formalities are required of an oath or
affirmation[] . . . [and that] oaths need not be prefaced with any
particular formal words.” People v Putman, 309 Mich App 240, 244
(2015) (citing Donkers, 277 Mich App at 372-373, and holding that
where the trial court asked each witness, including the defendant’s
own witnesses, if they promised to testify truthfully or some similar
variation of that question, and each witness answered in the
affirmative, this oath was sufficient to satisfy MRE 603).
E. Oath for Interpreter

An interpreter must be administered an oath or affirmation “to make
a true translation.” MRE 604. MCL 393.506(1) requires a qualified
interpreter for a deaf or deaf-blind person to make an oath or
affirmation to make a true interpretation in an understandable
manner in the English language to the best of the interpreter’s ability.
MCR 1.111(G) provides that the court must “administer an oath or
affirmation to a foreign language interpreter substantially conforming
to the following:
‘Do you solemnly swear or affirm that you will truly,

accurately, and impartially interpret in the matter now
before the court and not divulge confidential
communications, so help you God?’” MCR 1.111(G).
Committee Tip:
The above language from MCR 1.111(G) may be
used for both foreign language and sign
language interpreters.
F. Child Witness
“For a witness who is a [young] child, a promise to tell the truth takes
the place of an oath to tell the truth.” M Crim JI 5.9 (brackets in
original).18
18
“Unless the court finds after questioning a person that the person does not have sufficient physical or
mental capacity or sense of obligation to testify truthfully and understandably, every person is competent
to be a witness except as otherwise provided in [the Michigan Court Rules].” MRE 601.

12.7 Subpoenas
A. In General
MCL 600.1455(1) authorizes courts of record to issue subpoenas
requiring the testimony of witnesses, and MCR 2.50619 regulates that
process. The trial court “may by order or subpoena command a party
or witness to appear for the purpose of testifying in open court on a
date and time certain and from time to time and day to day thereafter
until excused by the court, and to produce notes, records, documents,
photographs, or other portable tangible things as specified.” MCR
2.506(A)(1). Subpoenas may be signed by an attorney of record in the
action or by the clerk of the court. MCR 2.506(B)(1). The court may
enforce its subpoenas using its contempt power, MCR 2.506(E), and is
provided other enforcement options by MCR 2.506(F).20
One of the rights of an accused in a criminal prosecution is “to have

compulsory process for obtaining witnesses in his or her favor.”
Const 1963, art 1, § 20. See also MCL 767.32 and MCL 775.15. “The
right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense,” which “is a fundamental element of due process of law.”
Washington v Texas, 388 US 14, 19 (1967); see also People v McFall, 224
Mich App 403, 407 (1997). A criminal defendant’s right to compulsory
process, though fundamental, is not absolute. Id. at 408. It requires a
showing that the witness’s testimony would be both material and
favorable to the defense. Id. Matters of compulsory process, as well as
trial continuances to obtain a witness, are decided at the discretion of
the trial court. Id. at 411.
There are a number of specialized statutes providing for subpoenas in

particular situations. See, e.g., the Uniform Interstate Depositions and
Discovery Act, MCL 600.2201 et seq., permitting a party to “submit a
foreign subpoena to the clerk of the circuit court in the county in
which discovery is sought to be conducted” in order “[t]o request
issuance of a subpoena” in Michigan. MCL 600.2203(1).21
19 “The provisions of the rules of civil procedure apply to [criminal] cases[,] . . . except (1) as otherwise
20 See the Michigan Judicial Institute’s Contempt of Court Benchbook, Chapter 5, for more information.
21 See also MCR 2.305(F), providing that “[a] person may request issuance of a subpoena in this state for an
action pending in another state or territory under the Uniform Interstate Depositions and Discovery Act,
MCL 600.2201 et seq., to require a person to attend a deposition, to produce and permit inspection and
copying of materials, or to permit inspection of premises under the control of the person.”

B. Subpoena Duces Tecum (Subpoena for Production of

Evidence)
A party or witness may be required to bring specified notes, records,
documents, photographs, or other portable tangible things. MCR
2.506(A)(1). Subpoenas issued pursuant to MCR 2.506(A)(1) “have no
relation to subpoenas issued in conjunction with discovery
proceedings. The end of the discovery period does not preclude the
issuance of trial subpoenas, including subpoenas duces tecum, even if
the records to be produced were not the subject of discovery.”
Boccarossa v Dep’t of Transportation, 190 Mich App 313, 316 (1991).
Subpoenas for hospital medical records are controlled by MCR

2.506(I).
C. Motion to Quash Subpoena

MCR 2.506(H)(1) states that a person served with a subpoena or order
to attend may appear and challenge the subpoena. For good cause,
the witness may be excused, with or without a hearing. MCR
2.506(H)(3). Otherwise, a subpoenaed person must appear unless
excused by the court or the party who had the subpoena issued. MCR
2.506(H)(4).
12.8 Conducting the Trial22
A. Duty of Court to Control Proceedings

“The trial court must control the proceedings during trial, limit the
evidence and arguments to relevant and proper matters, and take
appropriate steps to ensure that the jurors will not be exposed to
information or influences that might affect their ability to render an
impartial verdict on the evidence presented in court.” MCR
2.513(B).23
B. Stipulations
The prosecution retains the burden of proving beyond a reasonable
doubt each element of the crime charged, even if the defendant offers
to stipulate to any elements of the crime charged. People v Mills
22
See Section 12.9 for information on jury matters during trial. See the Michigan Judicial Institute’s
Evidence Benchbook for discussion of limitations on evidence.
23

(Vester), 450 Mich 61, 69-70 (1995). For example, evidence may be
properly admitted on an undisputed point—one to which the
defendant has stipulated—if the evidence is necessary to establish
intent. Id. at 66, 70 n 5, 71, 79-80 (holding that even though the
defendants offered to stipulate to the contents of photographs
depicting the severity of the burns inflicted on the victim, the trial
court properly admitted the photographs because they were
necessary to show the defendants’ intent to kill and to corroborate the
testimony of the prosecution’s expert witness and the victim).
C. Opening Statement
“Unless the parties and the court agree otherwise, . . . the prosecutor,
before presenting evidence, must make a full and fair statement of the
case and the facts . . . the prosecutor intends to prove. Immediately
thereafter, or immediately before presenting evidence, the defendant
may make a similar statement.” MCR 2.513(C) (applicable only to jury
trials). See also MCR 2.507(A), which is applicable to both jury and
nonjury trials (unless waived with the consent of the court and
opposing counsel, a party introducing evidence “must make a full
and fair statement of that party’s case and the facts the party intends
to prove[]”). The court may impose reasonable time limits on opening
statements and closing arguments. MCR 2.507(F); MCR 2.513(C).
“While [the Michigan Supreme Court] has always conceded to a trial

court a liberal discretion in the control and direction of statements
and arguments of counsel to the jury, it has as strongly upheld the
right of counsel to state their theory of the law as applicable to the
facts which they expect to prove.” People v Lee (Lum), 258 Mich 618,
621 (1932). In the absence of bad faith or prejudice to the defendant, it
is not error when the prosecutor fails to prove the assertions made
during opening statements. People v Wolverton, 227 Mich App 72, 75-
78 (1997).24
It is improper for a prosecutor, during opening statement, to appeal to

the jury to sympathize with a victim. People v Watson (David), 245
Mich App 572, 591 (2001). However, reversal is not required where
the prosecutor’s conduct is isolated and where the appeal to jury
sympathy is not blatant or inflammatory. Id. at 591 (additionally
noting that “the trial court instructed the jury to not be influenced by
sympathy or prejudice[]”). The ultimate determination of whether the
prosecutor engaged in improper conduct depends on whether the
prosecutor’s conduct, taken in context, deprived the defendant of a
fair and impartial trial. People v McLaughlin, 258 Mich App 635, 644-
645 (2003).
24 See Section 12.8(H) for discussion of prosecutorial error and attorney misconduct.

D. Interim Commentary
“Each party may, in the court’s discretion, present interim
commentary at appropriate junctures of the trial.” MCR 2.513(D)
(applicable only in jury trials).
E. Witness Examination
1. Trial Court’s Duty to Exercise Control Over Witnesses

“The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue
embarrassment.” MRE 611(a). “The court shall exercise
reasonable control over the appearance of parties and witnesses
so as to (1) ensure that the demeanor of such persons may be
observed and assessed by the fact-finder and (2) ensure the
accurate identification of such persons.” MRE 611(b).
2. Taking Testimony by Use of Videoconferencing

Technology25
MCR 6.006(A) allows courts to use two-way interactive video
technology to conduct certain proceedings, including probable
cause conferences and other pretrial conferences, pleas, show
cause hearings, waivers and adjournments of extradition, and
referrals for forensic determination of competency, between a
courtroom and a prison, jail, or other location.26 See also MCR
4.401(E) (“[a] district court magistrate may use
videoconferencing technology in accordance with MCR 2.407
and MCR 6.006”).
MCR 6.006(C)(2) states that, on a showing of good cause, as long

as the defendant is either present in the courtroom or has waived
the right to be present, district and circuit courts may, with the
consent of the parties, use videoconferencing technology during
a trial to take testimony from a person at another location. “A
party who does not consent to the use of videoconferencing
technology to take testimony from a person at trial shall not be
required to articulate any reason for not consenting.” Id. “[I]f
either the defendant or [defense] counsel objects, the ‘party’
25 For additional discussion of the use of audio and video technology, including confrontation clause issues
associated with such technology, see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 6.
For thorough discussion of confrontation clause and hearsay issues, see the Michigan Judicial Institute’s
Evidence Benchbook.

cannot be said to have consented[;]” however, the objection must

be made on the record. People v Buie, 491 Mich 294, 319 (2012).
MCL 600.2164a(1) specifically permits the use of video

communication equipment for the purpose of presenting expert
testimony at trial. If the court determines “that expert testimony
will assist the trier of fact and that a witness is qualified to give
the expert testimony,” and if all the parties consent, the court
may allow a qualified expert witness “to be sworn and testify at
trial by video communication equipment that permits all the
individuals appearing or participating to hear and speak to each
other in the court, chambers, or other suitable place.” Id.27
Additionally, MCL 600.2163a permits the use of videorecorded

statements or closed-circuit television in presenting the
testimony of child victim-witnesses, victim-witnesses with
developmental disabilities, and vulnerable adult victim-
witnesses in prosecutions and proceedings involving certain
offenses.28 See MCL 600.2163a(1)(g); MCL 600.2163a(8); MCL
600.2163a(20).29
3. Special Protections for Certain Witnesses30

MCL 600.2163a affords child victim-witnesses, victim-witnesses
with developmental disabilities, and vulnerable adult victim-
witnesses special protections in prosecutions and proceedings
involving certain offenses. MCL 600.2163a(1)(g).31 The special
protections available under MCL 600.2163a include the use of
dolls or mannequins, the presence of a support person, the
presence of a courtroom support dog32 (and the dog’s handler),
26
27 The party wishing to present expert testimony by video communication equipment must file a motion at
least seven days before the date set for trial, unless good cause is shown to waive that requirement. MCL
600.2164a(2). The party “initiat[ing] the use of video communication equipment” must pay the cost for its
use, unless the court directs otherwise. MCL 600.2164a(3). “A verbatim record of the testimony shall be
taken in the same manner as for other testimony.” MCL 600.2164a(1).

the exclusion of all unnecessary persons from the courtroom, the

placement of the defendant as far from the witness stand as is
reasonable, the use of a podium, and the use of videorecorded
statements or closed-circuit television in presenting the victim-
witness’s testimony.
“[A] notice of intent to use a support person or courtroom

support dog is only required if the support person or courtroom
support dog is to be utilized during trial and is not required for
the use of a support person or courtroom support dog during
any other courtroom proceeding.” MCL 600.2163a(5). “A notice
of intent . . . must be filed with the court and must be served
upon all parties to the proceeding,” and “[t]he notice must name
the support person or courtroom support dog, identify the
relationship the support person has with the witness, if
applicable, and give notice to all parties that the witness may
request that the named support person or courtroom support
dog sit with the witness when the witness is called upon to
testify during trial.” Id.
“A court must rule on a motion objecting to the use of a named

support person or courtroom support dog before the date when
the witness desires to use the support person or courtroom
support dog.” MCL 600.2163a(5).
“[A] fully abled adult witness may not be accompanied by a

support animal or support person while testifying.” People v
Shorter (Dakota), 324 Mich App 529, 542 (2018).33
28
Section 17b of the Juvenile Code, MCL 712A.17b, affords similar protections, but does not apply to
vulnerable adults. See MCL 712A.17b(1)(e).
29 See also MCL 712A.17b(5); MCL 712A.17b(16).
30 For additional discussion of special protections for certain victims and witnesses, see the Michigan
Judicial Institute’s Sexual Assault Benchbook, Chapter 6.

31 Section 17b of the Juvenile Code, MCL 712A.17b, affords similar protections, but does not apply to
vulnerable adults. See MCL 712A.17b(1)(e).

32Courtroom support dog “means a dog that has been trained and evaluated as a support dog pursuant to
the Assistance Dogs International Standards for guide or service work and that is repurposed and
appropriate for providing emotional support to children and adults within the court or legal system or that
has performed the duties of a courtroom support dog prior to September 27, 2018.” MCL 600.2163a(1)(a).
33
Note that Shorter was decided before 2018 PA 282 was enacted. The Court analyzed former MCL
600.2163a(4) in the context of support persons, which has been amended to also authorize the use of
support dogs for certain witnesses. In addition, the Court relied on the definition of witness in coming to its
conclusion that fully abled adult witnesses are not afforded the special protections under MCL 600.2163a;
that definition has not been amended since the Shorter decision. Accordingly, although it is ultimately up
to the trial court to decide, it does not appear that the 2018 amendments to MCL 600.2163a impact the
outcome of the Shorter decision.

4. Direct Examination
Unless otherwise ordered by the court, the prosecution must
introduce its testimony first. MCR 2.507(B). As long as the
prosecutor acts in good faith, he or she should be allowed wide
latitude in presenting the case, so that the jurors can grasp the
theory and the defendant’s connection with the alleged offense.
People v Dye (Clifford), 356 Mich 271, 277 (1959).
Leading questions are only permissible on direct examination as

necessary to develop a witness’s testimony. MRE 611(d)(1). See,
e.g., Watson (David), 245 Mich App at 587 (holding that reversal
was not required where the prosecutor asked leading questions
of the thirteen-year-old victim only to the extent necessary to
develop her testimony).34
Only one attorney for a party is permitted to examine a witness,

unless otherwise ordered by the court. MCR 2.507(C).
“The court may interrogate witnesses, whether called by itself or

by a party.” MRE 614(b). “[I]t is appropriate for a judge to
question witnesses to produce fuller and more exact testimony
or elicit additional relevant information[;]” however, “[i]t is
inappropriate for a judge to exhibit disbelief of a witness,
intentionally or unintentionally[,]” and “[i]t is essential that the
judge ‘not permit his [or her] own views on disputed issues of
fact to become apparent to the jury.’” People v Stevens (Adam), 498
Mich 162, 173-174 (2015) (citation omitted).
5. Cross-Examination
A witness may be cross-examined on any matter relevant to any
issue in the case, including credibility. MRE 611(c). However, the
trial court may limit cross-examination regarding matters not
testified to on direct examination. Id. Additionally, under MRE
611(a), the trial court may limit cross-examination to protect a
witness from harassment or undue embarrassment. People v
Daniels (Daniel), 311 Mich App 257, 268 (2015).
Leading questions are permissible during cross-examination.

MRE 611(d)(2).
“[H]ostile cross-examination of a defendant in a criminal

prosecution is a function of the prosecuting attorney[,] and . . . a
judge before whom a jury case is being tried should avoid any

invasion of the prosecutor’s role.” People v Cole (John), 349 Mich

175, 196 (1957).
Under MRE 611(a), “‘a trial court, in certain circumstances, may

prohibit a defendant who is exercising his right to self-
representation from personally questioning the victim.’” Daniels
(Daniel), 311 Mich App at 268 (citation omitted). “MRE 611(a)
allows the trial court to prohibit a defendant from personally
cross-examining vulnerable witnesses—particularly children
who have accused the defendant of committing sexual assault[;
t]he court must balance the criminal defendant’s right to self-
representation with ‘the State’s important interest in protecting
child sexual abuse victims from further trauma.’” Daniels
(Daniel), 311 Mich App at 269 (citation omitted). “[T]he trial
court wisely and properly prevented defendant from personally
cross-examining [his children, regarding their testimony that he
sexually abused them,] to stop the children from suffering
‘harassment and undue embarrassment,’” following “a motion
hearing at which [the court] heard considerable evidence that
defendant’s personal cross-examination would cause [the
children] significant trauma and emotional stress.” Id. at 270-271,
quoting MRE 611(a). The defendant’s right to self-representation
was not violated under these circumstances where the defendant
was instructed “to formulate questions for his [children], which
his advisory attorney then used to cross-examine them.” Daniels
(Daniel), 311 Mich App at 270-271.
6. Redirect Examination
On redirect examination, a witness may explain answers he or
she made on cross-examination. People v Babcock (Jack), 301 Mich
518, 529 (1942).
7. Recross-Examination
On recross examination, the prosecution may inquire into new
matters not covered during cross-examination where the new
matters are in response to matters introduced during redirect
examination. People v Goddard (Kenneth), 135 Mich App 128, 138
(1984), rev’d on other grounds 429 Mich 505 (1988).35

F. Questions or Comments by Judge

A trial court is vested with broad discretion over the administration of
trial proceedings. People v Taylor (Kelvin), 252 Mich App 519, 522
(2002). See also MCL 768.29; MRE 611(a).
“A trial court has wide, but not unlimited, discretion and power in the
matter of trial conduct. . . . A trial court’s conduct pierces the veil of
judicial impartiality where its conduct or comments unduly influence
the jury and thereby deprive the defendant of a fair and impartial
trial.” People v Paquette, 214 Mich App 336, 340 (1995); see also Stevens
(Adam), 498 Mich at 164. Examples of objectionable conduct by the
trial court include volunteering information not in evidence,
“campaigning from the bench[,]” and interrupting or making
derogatory remarks toward counsel. People v Conyers, 194 Mich App
395, 405-406 (1992).
“A judge’s conduct pierces [the] veil [of judicial impartiality] and

violates the constitutional guarantee of a fair trial when, considering
the totality of the circumstances, it is reasonably likely that the judge’s
conduct improperly influenced the jury by creating the appearance of
advocacy or partiality against a party.” Stevens (Adam), 498 Mich at
164.36 “In evaluating the totality of the circumstances, [a] reviewing
court should inquire into a variety of factors including, but not
limited to, the nature of the trial judge’s conduct, the tone and
demeanor of the judge, the scope of the judicial conduct in the context
of the length and complexity of the trial and issues therein, the extent
to which the judge’s conduct was directed at one side more than the
other, and the presence of any curative instructions, either at the time
of an inappropriate occurrence or at the end of trial.” Id. at 172, 190-
191 (concluding that “it [was] reasonably likely that the judge’s
conduct with respect to [the] defendant’s expert witness improperly
influenced the jury by creating the appearance of advocacy or
partiality against [the] defendant[,]” and that the judge’s curative
instruction to the jury “was not enough to overcome the bias the
judge exhibited against the defense throughout the trial[]”).
“[I]t is appropriate for a judge to question witnesses to produce fuller

and more exact testimony or elicit additional relevant information[;]”
36
The Stevens (Adam) Court, noting that “there [was] no clear line of precedent establishing the
appropriate test . . . to determine whether a trial judge’s conduct pierced the veil of judicial impartiality[,]”
rejected earlier formulations of the standard that examined, for example, whether the judge’s conduct
“‘may well have unjustifiably aroused suspicion in the mind of the jury as to [the] defendant’s
credibility[,]’” “‘may well have created an atmosphere of prejudice[,]’” “‘unduly influence[d] the jury[,]’” or
“‘place[d] his [or her] great influence on one side or the other[.]’” Stevens (Adam), 498 Mich at 169-170
(citations omitted). “In order to provide clarity going forward,” the Stevens (Adam) Court “propose[d] a
new articulation of the appropriate test, grounded in a criminal defendant’s right to a fair and impartial
jury trial.” Stevens (Adam), 498 Mich at 170.

however, “[i]t is inappropriate for a judge to exhibit disbelief of a

witness, intentionally or unintentionally[,]” and “[i]t is essential that
the judge ‘not permit his [or her] own views on disputed issues of fact
to become apparent to the jury.’” Stevens (Adam), 498 Mich at 173-174
(citation omitted). Judicial questioning that creates a suspicion as to a
witness’s credibility is discouraged. People v Sterling, 154 Mich App
223, 228 (1986). “While a trial court may question witnesses to clarify
testimony or elicit additional relevant information, the trial court
must exercise caution and restraint to ensure that its questions are not
intimidating, argumentative, prejudicial, unfair, or partial.” People v
Cheeks, 216 Mich App 470, 480 (1996).
It is improper for a trial judge to belittle, scold, or demean a

defendant’s attorney to the extent that the jury might regard the
attorney with contempt. People v Ross (Kenneth), 181 Mich App 89, 91
(1989). However, where defense counsel engaged in “excessive and
improper questioning of” a witness, “the trial judge appropriately
exercised her duty to control the trial” by interrupting counsel’s
questioning, and her comments that defense counsel “‘drag[ged]
things out[]’” and that his questioning was “‘argumentative’” “were
not calculated to pierce the veil of judicial impartiality and were
unlikely to unduly influence the jury to [the] defendant’s
detriment[;]” “the trial judge’s ‘interruptions’ and remarks were
reasonably measured” and were necessitated by “defense counsel’s
behavior of talking back to the judge and ignoring [her] directives to
move on and rephrase questions[.]” People v Biddles, 316 Mich App
148, 152-154 (2016) (additionally holding that the defendant was not
deprived of a fair trial by “the trial judge’s remark that defense
counsel might ‘get a spanking[]’” when counsel, after the court
sustained the prosecutor’s objections, asked to approach the bench;
although the comment was made “in a jesting manner[]” and “would
have been better left unsaid,” considering the comment in context, it
could not be concluded “that the isolated and flippant statement
influenced the jury[]”).
“When the issue is preserved and a reviewing court determines that a

judge has pierced the veil of judicial impartiality, a structural error
has been established that requires reversing the judgment and
remanding the case for a new trial.” Stevens (Adam), 498 Mich at 178
(citations omitted). “[J]udicial partiality can never be held to be
harmless and, therefore, is never subject to harmless-error review.” Id.
at 179-180 (“overrul[ing] People v Weathersby, [204 Mich App 98
(1994)], and all other cases applying harmless-error analysis to
questions of judicial partiality[]”) (citations omitted).

G. Closing Argument
MCR 2.513(L) (applicable only to jury trials) provides, in relevant
part:
“After the close of all the evidence, the parties may

make closing arguments. . . . [T]he prosecutor is entitled
to make the first closing argument. If the defendant
makes an argument, . . . the prosecutor may offer a
rebuttal limited to the issues raised in the defendant’s
argument. The court may impose reasonable time limits
on the closing arguments.”
See also MCR 2.507(E)-(F) (applicable to jury and nonjury trials).
Committee Tip:
Many courts give jury instructions before closing
argument, because it assists the jury in better
understanding the closing arguments of the
parties. See MCR 2.513(N)(1) (the trial court, in
its discretion and on notice to the parties, may
instruct the jury before closing arguments).37
In a case in which the defendant asserted the affirmative defense of

insanity, the trial court’s decision to deny the defendant’s request to
make a surrebuttal argument did not constitute an abuse of discretion
because former MCR 6.414(G)38 “references only the prosecution’s
ability to make a rebuttal argument[,]” and “the prosecution’s burden
to prove the elements of the crime beyond a reasonable doubt was
still greater than [the] defendant’s burden to prove insanity by a
preponderance of the evidence.” People v Lacalamita, 286 Mich App
467, 472-473 (2009).
1. Permissible Content of Closing Argument

During closing argument, a prosecutor may argue the evidence
admitted at trial and reasonable inferences arising from that
evidence. People v Kelly (Albert), 231 Mich App 627, 641 (1998).
The prosecutor may not appeal to the sympathy of the jurors or
to their sense of civic duty. People v Abraham (Nathaniel), 256 Mich
App 265, 273 (2003).39
37 See Section 12.12 for discussion of jury instructions.
38 Effective September 1, 2011, ADM 2005-19 deleted MCR 6.414 and added MCR 2.513(L), which contains
language similar to former MCR 6.414(G).

“[P]rosecutorial comment that infringes on a defendant’s right

not to testify may constitute error.” People v Fields (Carl), 450
Mich 94, 115 (1995). Additionally, “[a] prosecutor may not imply
in closing argument that the defendant must prove something or
present a reasonable explanation for damaging evidence because
such an argument tends to shift the burden of proof.” People v
Fyda, 288 Mich App 446, 463-464 (2010). For the same reason, the
prosecutor may not comment on the defendant’s failure to
present evidence. Id. at 464. “However, a prosecutor’s argument
that inculpatory evidence is undisputed does not constitute
improper comment[; a] prosecutor may also argue that the
evidence was uncontradicted even if the defendant is the only
person who could have contradicted the evidence.” Id.
Furthermore, “where a defendant testifies at trial or advances,
either explicitly or implicitly, an alternate theory of the case that,
if true, would exonerate the defendant, comment on the validity
of the alternate theory cannot be said to shift the burden of
proving innocence to the defendant[; a]lthough a defendant has
no burden to produce any evidence, once the defendant
advances evidence or a theory, argument on the inferences
created does not shift the burden of proof.” Fields (Carl), 450
Mich at 115.
The prosecutor may not suggest that defense counsel is

intentionally attempting to mislead the jury, because that type of
argument effectively states that defense counsel does not believe
his or her own client, which undermines the defendant’s
presumption of innocence. People v Unger, 278 Mich App 210, 236
(2008). See also People v Schrauben, 314 Mich App 181, 192-193
(2016).
“If the defendant makes an argument, . . . the prosecutor may

offer a rebuttal limited to the issues raised in the defendant’s
argument.” MCR 2.513(L); see also MCR 2.507(E).
2. Defendant’s Right to Present a Defense

Where defense counsel, in closing argument, does “not . . .
attempt to add new evidence to the trial,” but rather makes “a
permissible attempt to argue a reasonable inference from the
evidence adduced at trial,” a “trial court abuse[s] its discretion
when it refuse[s] to allow defense counsel” to include this
argument. People v Stokes (Stokes I), 312 Mich App 181, 206-207
(2015), vacated in part on other grounds by People v Stokes (Stokes
II), 501 Mich 918 (2017)40 (concluding that “the trial court abused
its discretion when it refused to allow defense counsel to

specifically argue that [a particular other individual had] . . .

committed the crimes,” because the argument was reasonably
inferable from the evidence). However, “this error [does] not
deprive [a defendant] of [the constitutional] right to present a
defense” where “[t]he relevant evidence [is] presented to the
jury” and counsel’s other arguments “clearly impl[y]” the
reasonable inference, such that the defendant is “not deprived of
a meaningful opportunity to present a complete defense.” Stokes
I, 312 Mich App at 207-208 (citations omitted).
3. Remarks Involving Witness Testimony

The prosecutor is free to argue the evidence and all reasonable
inferences from it as it relates to the prosecutor’s theory of the
case, People v Schumacher, 276 Mich App 165, 178-179 (2007), and
may argue from the facts that a witness is credible or that the
defendant or another witness is not worthy of belief, People v
Howard (Connell), 226 Mich App 528, 548 (1997). However, “[a]
prosecutor may not vouch for the credibility of witnesses by
claiming some special knowledge with respect to their
truthfulness.” People v McGhee (Larry A), 268 Mich App 600, 630
(2005).41
“The prosecutor’s characterization of defendant’s account of the

criminal episode as a lie or a ‘story’ did not deprive defendant of
a fair and impartial trial, nor did it constitute plain error that
affected defendant’s substantial rights; . . . the prosecutor’s
classification of defendant’s account of the incident as a lie
properly advanced the prosecution’s position that defendant’s
testimony was not credible in light of the contradictory evidence
adduced at trial[, and] . . . [t]he prosecutor did not improperly
imply that he had special knowledge that defendant fabricated
his account of the incident.” People v Steanhouse, 313 Mich App 1,
33-34 (2015), aff’d in part and rev’d in part on other grounds 500
Mich 453 (2017)42 (citation omitted).

Where the complaining witness testified, without prompting,

that she was a religious person, and the prosecutor then couched
his closing argument in terms of a credibility contest between a
person with a “‘deep rooted belief in God’” and a person who
was a “‘liar,’” the defendant’s conviction required reversal; the
“case hinged on the crucial issue of credibility, which the
prosecutor [improperly] urged the jury to resolve on the basis of
the complainant’s religious beliefs.” People v Leshaj, 249 Mich
App 417, 422 (2002).
A prosecutor may “argue from the evidence presented that an

expert witness had a financial motive to testify at trial.” Unger,
278 Mich App at 236, 239 (holding that the prosecutor was free to
argue that defense counsel “had ‘bought’” a defense expert’s
testimony by paying the expert a substantial sum of money). But
where a case turns primarily on conflicting expert testimony, a
prosecutor should take special steps to avoid misconduct
designed to impugn the integrity of defense expert witnesses. Id.
at 240. In Unger, 278 Mich App at 240, the Court found that the
prosecutor unnecessarily and impermissibly impugned the
integrity of a defense expert witness by arguing that the expert
was hired “‘to come in with [his] credentials and fool this jury,’”
that the expert was hired to provide “‘[r]easonable doubt at
reasonable prices,’” and that the expert “‘did what he was paid
to do.’” (Alterations in original.)
“[A]ttacking the credibility of a theory advanced by a defendant

does not [improperly] shift the burden of proof.” McGhee (Larry
A), 268 Mich App at 635.
4. Remarks Involving Defendant’s Failure to Testify

The Fifth Amendment prohibits the prosecutor from
commenting on a defendant’s failure to take the stand. Griffin v
California, 380 US 609, 615 (1965). The prosecutor also may not,
during closing argument, direct questions to the defendant that
would require a defendant who did not testify to explain the
evidence against him or her. People v Green (Louis), 131 Mich App
232, 234-239 (1983). Such a practice would shift the burden of
proof to the defendant and violate the Fifth Amendment
protection against self-incrimination. Id. at 236-237. However,
when a defendant does take the stand, the prosecutor may
comment on the validity of the argument without shifting the
burden of proof to the defendant. Fields (Carl), 450 Mich at 109-
113, 116. Additionally, “a prosecutor’s argument that inculpatory
evidence is undisputed does not constitute improper comment[;
a] prosecutor may also argue that the evidence was
uncontradicted even if the defendant is the only person who

could have contradicted the evidence.” Fyda, 288 Mich App at

464.43
Questioning a defendant about his or her failure to confront his

accomplice does not violate the defendant’s right to silence.
People v Hackett (William), 460 Mich 202, 204-205 (1999).
“‘[T]he Fifth Amendment is not violated when a defendant who

testifies in his [or her] own defense is impeached with his [or
her] prior silence’ at his [or her] first trial. Jenkins[ v Anderson, 447
US 231, 235 (1980)], citing Raffel v United States, [271 US 494
(1926)].” People v Clary, 494 Mich 260, 263-264, 266, 271-272 (2013)
(noting that “even though this [type of] silence is . . . post-
Miranda silence[,] . . . Raffel has not been overruled by . . . any . . .
United States Supreme Court decision[,]” and holding that
where the defendant did not testify at his first trial, which ended
in a mistrial, he was not “improperly impeached with his silence
when the prosecutor [at the retrial] made repeated references to
his failure to testify at his first trial[]”).44
“[I]f the prosecutor’s comments do not burden a defendant’s

right not to testify, commenting on a defendant’s failure to call a
witness does not shift the burden of proof.” Fields (Carl), 450
Mich at 112. See also People v Gant, 48 Mich App 5, 9 (1973)
(noting that although the prosecutor may not comment on a
defense witness’s failure to testify when the witness has invoked
the right to remain silent, the prosecutor may “comment upon
(1) [the] defendant’s failure to call an accomplice or indicted co-
defendant and (2) the failure of such witnesses to testify[]”).
5. Remarks Referring to the Defendant’s Pre-Arrest

Silence or Conduct
“[T]he prosecutor may not . . . refer to [a] defendant’s post-arrest,
post-Miranda[45] silence with the police[.]” Clary, 494 Mich at 271,
citing Doyle v Ohio, 426 US 610, 618-619 (1976). However, “[a]
defendant’s constitutional right to remain silent is not violated
by the prosecutor’s comment on his silence before custodial
interrogation and before Miranda warnings have been given[; a]
prosecutor may not comment on a defendant’s silence in the face
44
The defendant’s convictions following his second trial were nevertheless reversed because the
prosecutor improperly referred to the defendant’s post-arrest, post-Miranda silence in violation of Doyle v
Ohio, 426 US 610, 618-619 (1976). Clary, 494 Mich at 263. See the Michigan Judicial Institute’s Evidence
Benchbook, Chapter 3, for discussion of self-incrimination and Miranda.
45
Miranda v Arizona, 384 US 436 (1966). See the Michigan Judicial Institute’s Evidence Benchbook,
Chapter 3, for discussion of self-incrimination and Miranda.

of accusation, but may comment on silence that occurred before

any police contact.” McGhee (Larry A), 268 Mich App at 634
(citation omitted; emphasis added). Furthermore, although “due
process prohibits prosecutors from pointing to the fact that a
defendant was silent after he heard Miranda warnings, Doyle[,
426 US at 617-618], . . . that rule does not apply where a suspect
has not received the warnings’ implicit promise that any silence
will not be used against him, Jenkins[, 447 US at 240].” Salinas v
Texas, 570 US 178, 188 n 3 (2013) (plurality opinion).
A criminal suspect generally must “expressly invoke the

privilege against self-incrimination in response to [noncustodial
police questioning] . . . in order to benefit from it,” because “[a]
suspect who stands mute has not done enough to put police on
notice that he [or she] is relying on his [or her] Fifth Amendment
privilege.”46 Salinas, 570 US at 181. Accordingly, where “[the]
petitioner voluntarily answered the [noncustodial] questions of
a police officer who was investigating a murder[, b]ut . . . balked
when the officer asked whether a ballistics test would show that
the shell casings found at the crime scene would match [the]
petitioner’s shotgun[,]” the prosecution’s argument at trial “that
[the petitioner’s] reaction to the officer’s question suggested that
he was guilty[]” did not violate the Fifth Amendment privilege
against self-incrimination, because the petitioner had failed to
expressly invoke the privilege. Id. at 181.
“‘[A] prosecutor may comment on a defendant’s failure to report

a crime when reporting the crime would have been natural if the
defendant’s version of the events were true.’” McGhee (Larry A),
268 Mich App at 634-635 (citations omitted). See also People v
Gibbs (Phillip), 299 Mich App 473, 484 (2013) (the prosecutor’s
comments suggesting that if the defendant’s “testimony were
true—that his participation in [a] robbery was coerced—he
would have called 911 or gone to the police immediately[]” were
not improper; the comments “referred to [the defendant’s]
prearrest silence and, therefore, did not violate his right to
remain silent[,]” and “if [the defendant’s] version of the events
were true[] . . . it would have been natural for him to contact the
police[]”).
“[A] prosecutor may comment on the inferences that may be

drawn from a defendant’s flight.” McGhee (Larry A), 268 Mich
App at 635.
46
“[T]wo exceptions [apply] to the requirement that witnesses invoke the privilege[ against self-
incrimination:] . . . First, . . . a criminal defendant need not take the stand and assert the privilege at his [or
her] own trial[, Griffin v California, 380 US 609, 613-615 (1965), and] . . . [s]econd, . . . a witness’ failure to
invoke the privilege must be excused where governmental coercion makes his [or her] forfeiture of the
privilege involuntary[, Miranda, 384 US at 467-468, 468 n 37].” Salinas, 570 US at ___.

H. Claims of Prosecutorial Error47 and Attorney Misconduct

During Trial
Prosecutors are generally “‘accorded great latitude regarding their
arguments and conduct.’” People v Cooper (James), 309 Mich App 74, 91
(2015), quoting People v Bahoda, 448 Mich 261, 282 (1995). The ultimate
determination of whether the prosecutor engaged in improper
conduct depends on whether the prosecutor’s conduct, taken in
context, deprived the defendant of a fair and impartial trial. People v
McLaughlin, 258 Mich App 635, 644-645 (2003).
Appeals to sympathy or duty. The prosecutor may not appeal to the

sympathy of the jurors or to their sense of civic duty. People v Abraham
(Nathaniel), 256 Mich App 265, 273 (2003); see also People v Watson
(David), 245 Mich App 572, 591 (2001). However, reversal is not
required where the prosecutor’s conduct is isolated and where the
appeal to jury sympathy is not blatant or inflammatory. Id.
(additionally noting that “the trial court instructed the jury to not be
influenced by sympathy or prejudice”).
Comments infringing on defendant’s presumption of innocence.

The prosecutor may not suggest that defense counsel is intentionally
attempting to mislead the jury, because that type of argument
effectively states that defense counsel does not believe his or her own
client, which undermines the defendant’s presumption of innocence.
People v Unger, 278 Mich App 210, 236 (2008). In Unger, the
prosecution exceeded the bounds of proper argument in its initial
closing argument, not in response to defense counsel’s comments,
“when it suggested (1) that defense counsel had attempted to ‘confuse
the issue[s]’ and ‘fool the jury’ by way of ‘tortured questioning,’
‘deliberately loaded questions,’ and ‘a deliberate attempt to mislead,’
(2) that defense counsel had attempted to ‘confuse’ and ‘mislead’ the
jury by using ‘red herrings’ and ‘smoke and mirrors,’ and (3) that
defense counsel had attempted ‘to deter [the jury] from seeing what
the real issues’” were. Id. at 238. (Alterations in original.) However,
because the trial court instructed the jury that the attorneys’
arguments were not evidence, and “because a timely objection and
curative instruction could have alleviated any prejudicial effect the
improper prosecutorial comments may have had, [there was] no error
requiring reversal.” Id. See also People v Schrauben, 314 Mich App 181,
47 See People v Cooper (James), 309 Mich App 74, 87-88 (2015), agreeing with the “prosecutor’s contention
that it is a misnomer to label [these types of] claims . . . as ‘prosecutorial misconduct’” and that “the term
‘misconduct’ is more appropriately applied to those extreme—and thankfully rare—instances where a
prosecutor’s conduct violates the rules of professional conduct or constitutes illegal conduct.” Where “the
conduct about which a defendant complains is premised on the contention that the prosecutor made a
technical or inadvertent error at trial, . . . [rather than] the kind of conduct that would warrant discipline
under [the] code of professional conduct, . . . [the claim] of error might be better and more fairly presented
as [a claim] of ‘prosecutorial error[.]’” Id. at 88.

192-193 (2016) (holding that “the prosecutor’s argument that defense

counsel is a ‘mud slinger’ who ‘pulls things out of people and
muddies up the water’ [improperly] suggest[ed] that defense counsel
was distracting the jury from the truth and deterring the jury from
seeing the real issues[,]” but nevertheless concluding that reversal
was not warranted because “the trial court instructed the jury that the
attorneys’ statements and arguments were not evidence,” and “any
prejudicial effect created by the improper statements could have been
alleviated by a timely objection and curative instruction”).
Comments infringing on defendant’s right to silence.

“[P]rosecutorial comment that infringes on a defendant’s right not to
testify may constitute error.” People v Fields (Carl), 450 Mich 94, 115
(1995).
Comments shifting burden of proof. The prosecutor may not imply

“that the defendant must prove something or present a reasonable
explanation for damaging evidence because such an argument tends
to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464
(2010). For the same reason, the prosecutor may not comment on the
defendant’s failure to present evidence. Id. at 464. “However, a
prosecutor’s argument that inculpatory evidence is undisputed does
not constitute improper comment[; a] prosecutor may also argue that
the evidence was uncontradicted even if the defendant is the only
person who could have contradicted the evidence.” Id. Furthermore,
“where a defendant testifies at trial or advances, either explicitly or
implicitly, an alternate theory of the case that, if true, would exonerate
the defendant, comment on the validity of the alternate theory cannot
be said to shift the burden of proving innocence to the defendant[;
a]lthough a defendant has no burden to produce any evidence, once
the defendant advances evidence or a theory, argument on the
inferences created does not shift the burden of proof.” Fields (Carl),
450 Mich at 115.
“[T]he prosecutor erred by asking the jury to consider the defendant’s

‘moral duty’ to retreat from his own dwelling in relation to his self-
defense claim” because “[a]sking a jury to consider a defendant’s
‘moral duty’ to retreat is inconsistent with the Self-Defense Act,[48] . . .
legally irrelevant to such a claim, and creates a danger of confusion of
the issues.” People v Adamowicz, ___ Mich ___, ___ (2018). “The
prosecutor also erred by eliciting testimony and presenting argument
regarding the defendant’s retrospective assessment of his ability to
retreat, where it was undisputed that the defendant had no duty to
retreat.” Id. at ___. “[T]he prosecutor’s questioning and argument in
this regard were legally irrelevant and created a danger of confusion
48MCL 780.971 et seq.

of the issues. See MRE 401; MRE 403.” Adamowicz, ___ Mich App at
___.49
The prosecutor did not improperly shift the burden of proof “by
comparing the aiding-and-abetting theory of criminal culpability to
teamwork[]” and by “[telling] the jury that it could convict [the
defendant] based on a team theory of guilt[.]” People v Blevins, 314
Mich App 339, 354-355 (2016). “The prosecutor’s references to the way
in which all members of a sports team share in the team’s victory was
obviously a metaphor, . . . [and] the trial court clearly instructed the
jury that the arguments of counsel were not evidence.” Id. at 355.
Cumulative effect of prejudicial comments. “[T]he cumulative effect

of an attorney’s misconduct at trial may require retrial when the
misconduct sought ‘to prejudice the jury and divert the jurors’
attention from the merits of the case.’” Yost v Falker, 301 Mich App
362, 363-367 (2013) (quoting Kern v St Luke’s Hosp Ass’n of Saginaw, 404
Mich 339, 354 (1978), and holding that although defense counsel
“intended to prejudice the jury” through his repeated suggestions
during opening statement, cross-examination, and closing argument
“that the jury should find for [the] defendant to deter the filing of
lawsuits,” retrial was not required “because a note sent by the jury to
the court during deliberations unequivocally demonstrated that
[defense counsel’s] efforts had not succeeded and that the jury was
not prejudiced against the plaintiff’s claim”).
Opening statement. In the absence of bad faith or prejudice to the

defendant, it is not error when the prosecutor fails to prove the
assertions made during opening statements. People v Wolverton, 227
Mich App 72, 75-78 (1997).
Prosecutor’s duty to correct false or misleading testimony. “It is

inconsistent with due process when the prosecution allows false
testimony from a state’s witness to stand uncorrected.” People v Smith
(Feronda), 498 Mich 466, 475 (2015), citing Napue v Illinois, 360 US 264,
269 (1959) (additional citations omitted). In Smith (Feronda), 498 Mich
at 470, “the prosecution breached a duty to correct the substantially
misleading, if not false, testimony of a key witness about his formal
and compensated cooperation in the government’s investigation.”
The defendant was entitled to a new trial because, “[g]iven the overall
weakness of the evidence against the defendant and the significance
of the witness’s testimony, . . . there [was] a reasonable probability
that the prosecution’s exploitation of the substantially misleading
testimony affected the verdict.” Id., citing Napue, 360 US at 271-272.
“Due process required that the jury be accurately apprised of the
49The matter was remanded to the Court of Appeals to determine whether the prosecutorial errors
constituted plain error affecting the defendant’s substantial rights. Adamowicz, ___ Mich App at ___.

incentives underlying the testimony of this critical witness,” and

“[c]apitalizing on [the witness]’s testimony that he had no paid
involvement in the defendant’s case [was] inconsistent with a
prosecutor’s duty to correct false testimony.” Smith (Feronda), 498
Mich at 480, 487, citation omitted. Because “there [was] a ‘reasonable
likelihood’ that the false impression resulting from the prosecutor’s
exploitation of the testimony affected the judgment of the jury, . . . the
defendant [was] entitled to a new trial.” Id. at 483, quoting Napue, 360
US at 271.
See, however, Schrauben, 314 Mich App at 187-189 (holding that “the
trial court did not abuse its discretion by denying [the] defendant’s
motion for a new trial based on perjury” where, “[e]ven if the
prosecutor knowingly presented perjured testimony, the false
testimony likely would not have affected the judgment of the jury[;]”
although “the inconsistencies [in a key witness’s testimony] . . .
certainly cast doubt on [the witness’s] testimony at trial and raised
questions as to his involvement in the [defendant’s crimes],” “there
was concrete evidence presented which implicated [the] defendant,
despite the level of [the witness’s] potential involvement”).
Vouching or bolstering. “A prosecutor may not vouch for the

credibility of witnesses by claiming some special knowledge with
respect to their truthfulness[.]” People v McGhee (Larry A), 268 Mich
App 600, 630 (2005); see also Cooper (James), 309 Mich App at 91; People
v Tomasik, 498 Mich 953, 953 (2015) (holding that “[t]he trial court
abused its discretion by admitting the recording of the defendant’s
interrogation,” and noting that “[i]n a trial in which the evidence
essentially presents a ‘one-on-one’ credibility contest between the
complainant and the defendant, the prosecutor cannot improperly
introduce statements from the investigating detective that vouch for
the veracity of the complainant and indicate that the detective
believes the defendant to be guilty”).
“The mere disclosure of a plea agreement with a prosecution witness,

which includes a provision for truthful testimony, does not constitute
improper vouching or bolstering by the prosecutor, provided the
prosecutor does not suggest special knowledge of truthfulness.”
Cooper (James), 309 Mich App at 91.
Standard of review. Issues of prosecutorial misconduct are decided

on a case-by-case basis, and the reviewing court must examine the
entire record and evaluate a prosecutor’s remarks in context. People v
Dobek, 274 Mich App 58, 64 (2007). “Prosecutorial arguments are also
considered in light of defense arguments.” People v Lawton, 196 Mich
App 341, 353 (1992).
Preserved claims of prosecutorial misconduct are reviewed de novo

to determine whether the defendant was denied a fair and impartial
trial. People v Bennett, 290 Mich App 465, 475 (2010). “In order to
preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” Id.
Prosecutorial misconduct may constitute constitutional or

nonconstitutional error. People v Blackmon, 280 Mich App 253, 269-271
(2008). Whether an error is constitutional or nonconstitutional is a
question of law subject to de novo review. Id. at 259. “[T]o be
constitutional error, [in the absence of an allegation that the
misconduct violated a specific constitutional right,] the misconduct
must have so infected the trial with unfairness as to make the conviction a
deprivation of liberty without due process of law.” Id. at 269.
If prosecutorial misconduct is preserved and is constitutional in

nature, the proper standard of review on direct appeal is the
“harmless beyond a reasonable doubt” standard. Blackmon, 280 Mich
App at 271; see People v Carines, 460 Mich 750, 774 (1999). If
prosecutorial misconduct is preserved and is nonconstitutional in
nature, the proper standard of review on direct appeal is whether “it
is more probable than not that the error in question ‘undermine[d] the
reliability of the verdict,’ thereby making the error ‘outcome
determinative.’” Blackmon, 280 Mich App at 270, quoting People v
Lukity, 460 Mich 484, 495-496 (1999) (alteration in original).
“‘Where a defendant fails to object to an alleged prosecutorial

impropriety, the issue is reviewed for plain error.’” Cooper (James), 309
Mich App at 88 (citation omitted). “A plain error is one that is ‘clear or
obvious,’ and the error must affect the defendant’s ‘substantial
rights.’” Id., quoting Carines, 460 Mich at 763. “‘Reversal is warranted
only when the plain, forfeited error resulted in the conviction of an
actually innocent defendant or when an error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings
independent of [the] defendant’s innocence.’” Cooper (James), 309 Mich
App at 88-89, quoting Carines, 460 Mich at 763 (first alteration in
original).
Unfair prejudice produced by prosecutorial comments may be cured

by the court’s instruction to the jury that counsel’s arguments are not
evidence. People v Green (Rodney), 228 Mich App 684, 693 (1998); see
also People v Roscoe, 303 Mich App 633, 649 (2014) (citing Unger, 278
Mich App at 235, and holding that although the prosecutor
improperly “stated that she had personal knowledge that the
government’s witness was lying,” the “error was not outcome
determinative . . . [because, h]ad [the] defendant objected to this
instance of prosecutorial misconduct, an immediate curative
instruction would have been sufficient to cure the error” and “the
jury eventually heard other testimony that the witness was lying”).

I. Summation of Evidence by Court

“After the close of the evidence and arguments of counsel, the court
may fairly and impartially sum up the evidence if it also instructs the
jury that it is to determine for itself the weight of the evidence and the
credit to be given to the witnesses and that jurors are not bound by
the court’s summation. The court shall not comment on the credibility
of witnesses or state a conclusion on the ultimate issue of fact before
the jury.” MCR 2.513(M) (applicable only to jury trials).
12.9 Issues Affecting the Jury During Trial
A. Reference Document
“The court may authorize or require counsel in . . . criminal cases to
provide the jurors with a reference document or notebook, the
contents of which should include, but which is not limited to, a list of
witnesses, relevant statutory provisions, and, in cases where the
interpretation of a document is at issue, copies of the relevant
document. The court and the parties may supplement the reference
document during trial with copies of the preliminary jury
instructions, admitted exhibits, and other admissible information to
assist jurors in their deliberations.” MCR 2.513(E).50
B. Jury Note Taking

MCR 2.513(H) states:
“The court may permit the jurors to take notes

regarding the evidence presented in court. If the court
permits note taking, it must instruct the jurors that they
need not take notes, and they should not permit note
taking to interfere with their attentiveness. If the court
allows jurors to take notes, jurors must be allowed to
refer to their notes during deliberations, but the court
must instruct the jurors to keep their notes confidential
except as to other jurors during deliberations. The court
shall ensure that all juror notes are collected and
destroyed when the trial is concluded.”51
50
51 In civil cases only, the court may allow jurors “to discuss the evidence among themselves in the jury
room during trial recesses.” MCR 2.513(K). There is no corresponding rule for criminal cases.

C. Jury Questions
The court may allow the jury to ask questions of any witness. MCR
2.513(I). “If the court permits jurors to ask questions, it must employ a
procedure that ensures that such questions are addressed to the
witnesses by the court itself, that inappropriate questions are not
asked, and that the parties have an opportunity outside the hearing of
the jury to object to the questions.” Id. The court must inform the jury
“of the procedures to be followed for submitting questions to
witnesses.” Id. See M Crim JI 2.9:
“(1) During the trial you may think of an important

question that would help you understand the facts in
this case. You are allowed to ask such questions.
(2) You should wait to ask questions until after a witness

has finished testifying and both sides have finished
their questioning. If you still have an important
question after this, do not ask it yourself. Raise your
hand, write the question down, and pass it to the bailiff,
who will give it to me. Do not show your question to
other jurors.
(3) If your question is not asked, it is because I

determined under the law that the question should not
be asked. Do not speculate about why the question was
not asked. In other words, you should draw no
conclusions or inferences about the facts of the case, nor
should you speculate about what the answer might
have been. Also, in considering the evidence you should
not give greater weight to testimony merely because it
was given in answer to questions submitted by
members of the jury.
(4) On the other hand, if you cannot hear what a witness

or lawyer says, please raise your hand immediately and
ask to have the question or answer repeated.”
D. Jury View of Property or Place

“It is within the trial court’s discretion to order a jury view of the
crime scene.” People v Unger, 278 Mich App 210, 255 (2008); see also
People v Mallory, 421 Mich 229, 245 (1984). A crime scene may be
viewed despite changed conditions, where the jury has been apprised
of the changes. People v King (Levurn), 210 Mich App 425, 432 (1995).
MCL 768.28 states that the court may order a view by the jury
“whenever [the] court shall deem such view necessary.”52 MCR
2.513(J) provides:

“On motion of either party, on its own initiative, or at

the request of the jury, the court may order a jury view
of property or of a place where a material event
occurred. The parties are entitled to be present at the
jury view, provided, however, that in a criminal case,
the court may preclude a defendant from attending a
jury view in the interests of safety and security. During
the view, no person, other than an officer designated by
the court, may speak to the jury concerning the subject
connected with the trial. Any such communication must
be recorded in some fashion.”
Committee Tip:
Take a tape recorder along to the jury view to
record any questions that jurors may have.
Additionally, make a record of the jury view after
returning to court.
Because the purpose of a jury view is to help the jury understand

evidence already introduced at trial, a jury view should not be
conducted until after the relevant evidence has been admitted at trial.
Unger, 278 Mich App at 256-257 (nevertheless concluding that the
defendant failed to establish prejudice resulting from defense
counsel’s failure to object).
According to MCR 2.513(J), “in a criminal case, the court may

preclude a defendant from attending a jury view in the interests of
safety and security.” However, an accused defendant in custody has
the fundamental right to be present at a jury view of the crime scene.
Mallory, 421 Mich at 245-250; King (Levurn), 210 Mich App at 432-433.
A defendant may waive his or her right to be present at a jury view by
affirmative consent, by failure to appear at the view when he or she is
free to do so, and by disorderly or disruptive conduct at trial
precluding continuation of the trial in his or her presence. Mallory, 421
Mich at 432-433; King (Levurn), 210 Mich App at 433. Additionally, the
trial court has discretion to order the presence of armed guards or the
shackling of the defendant while in the presence of the jury at a view.
Mallory, 421 Mich at 249.
52 See also
MCR 2.507(D) (applicable to bench trials), which provides that “[o]n application of either party
or on its own initiative, the court sitting as trier of fact without a jury may view property or a place where a
material event occurred.” See Section 12.3 for discussion of bench trials.

E. Prohibited Jury Actions

The court is required to instruct the jurors regarding certain
prohibited actions during the term of jury service. MCR 2.511(H)(2).
Specifically, the jurors must not:
“(a) discuss the case with others, including other jurors,

except as otherwise authorized by the court;
(b) read or listen to any news reports about the case;
(c) use a computer, cellular phone, or other electronic

device with communication capabilities while in
attendance at trial or during deliberation. These devices
may be used during breaks or recesses but may not be
used to obtain or disclose information prohibited in
[MCR 2.511(H)(2)(d)];
(d) use a computer, cellular phone, or other electronic

device with communication capabilities, or any other
method, to obtain or disclose information about the case
when they are not in court. As used in this subsection,
information about the case includes, but is not limited
to, the following:
(i) information about a party, witness, attorney, or

court officer;
(ii) news accounts of the case;
(iii) information collected through juror research

on any topics raised or testimony offered by any
witness;
(iv) information collected through juror research

on any other topic the juror might think would be
helpful in deciding the case.” MCR 2.511(H)(2)(a)-
(d).
12.10 Defendant’s Conduct and Appearance at Trial
A. Presumption of Innocence
1. Generally
Due process entitles an accused to the presumption of
innocence. In re Winship, 397 US 358, 364 (1970). The Sixth
Amendment guarantees the right to a fair trial, which means that
a criminal defendant is entitled to have his or her guilt or
innocence determined solely on the basis of the evidence

introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not
adduced as proof at trial. Taylor v Kentucky, 436 US 478, 485
(1978). “[A] criminal defendant generally has the right to appear
before the court with the appearance, dignity, and self-respect of
a free and innocent [person.]” People v Payne (Scott), 285 Mich
App 181, 187 (2009) (quotation marks and citation omitted).
2. Clothing
The defendant’s right to a fair and impartial trial generally
requires that the defendant not appear before the jury in jail or
prison clothes. Estelle v Williams, 425 US 501, 504-505 (1976);
People v Shaw (Herschel), 381 Mich 467, 480 (1969) People v Daniels
(Jerry), 163 Mich App 703, 710 (1987). The trial court generally
has no discretion in this matter, Shaw (Herschel), 381 Mich at 474,
and “[a] defendant’s timely request to wear civilian clothing
must be granted.” People v Harris (Thomas), 201 Mich App 147,
151-152 (1993) (noting, however, that an exception is permissible
where the defendant’s clothing is not recognizable as jail or
prison garb).
3. Handcuffs/Shackles
Freedom from shackling in the presence of the jury is an
important component of a fair trial. People v Dixon (Lamont), 217
Mich App 400, 404 (1996). “[T]he use of shackles at trial
‘affront[s]’ the ‘dignity and decorum of judicial proceedings that
the judge is seeking to uphold.’” Deck v Missouri, 544 US 622, 631
(2005), quoting Illinois v Allen, 397 US 337, 344 (1970). Absent a
showing of manifest need for restraints, appearing shackled or
handcuffed before a jury may adversely affect a defendant’s
constitutional presumption of innocence, People v Dunn, 446
Mich 409, 425 n 26 (1994); interfere with a defendant’s ability to
communicate with his attorney, Allen, 397 US at 344; and
interfere with a defendant’s ability to participate in his or her
own defense (by freely choosing to testify), Deck, 544 US at 631.
“[G]iven their prejudicial effect, due process does not permit the
use of visible restraints if the trial court has not taken account of
the circumstances of the particular case.” Deck, 544 US at 632. A
defendant may appear before the jury shackled only on a
finding, supported by record evidence, that it is necessary to
prevent escape or injury to persons in the courtroom or to
maintain order. Dunn, 446 Mich at 425. The decision is
discretionary with the trial court, and the trial court should
consider the totality of the circumstances, including the

defendant’s background. Dixon (Lamont), 217 Mich App at 404-

405. A decision to restrain a defendant may be based on
information from the Department of Corrections or a county jail.
Id. at 405.
“‘[T]he Fifth and Fourteenth Amendments prohibit the use of

physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are
justified by a state interest specific to a particular trial.’” People v
Arthur (Charles), 495 Mich 861, 862 (2013) (quoting Deck, 544 US
at 629, with added emphasis, and holding that “the trial court
did not violate the defendant’s due process rights by ordering
[him] to wear leg shackles” in light of his reported escape
attempt and his history of physical violence; “the court sought to
shield the defendant’s leg restraints from the jury’s view[,
and] . . . no juror actually saw the defendant in shackles[]”).
See also Mendoza v Berghuis, 544 F3d 650, 654-656 (CA 6, 2008)53
(the defendant’s due process rights were not violated where his
leg restraints were concealed from the jury by “skirting both
counsel tables with brown paper for the duration of the trial[,]”
and where he was unshackled to testify); People v Payne (Scott),
285 Mich App 181, 186 (2009) (“even if a trial court abuses its
discretion and requires a defendant to wear restraints, the
defendant must show that he [or she] suffered prejudice as a
result of the restraints to be entitled to relief[;]” if the jury was
unable to see shackles on the defendant, no prejudice occurs.
A defendant’s constitutional rights are not violated when jurors

see him or her shackled during transport to or from the
courtroom. Mendoza, 544 F3d at 655-656. See also United States v
Moreno, 933 F2d 362, 368 (CA 6, 1991) (discussing the
reasonableness of transporting defendants with restraints).
“The trial court did not unconstitutionally ‘nullify’ the

defendant’s right to self-representation by declining to remove
the defendant’s leg shackles.” Arthur (Charles), 495 Mich at 862.
“While a defendant’s right to self-representation encompasses
certain specific core rights, including the right to be heard, to
control the organization and content of his [or her] own defense,
to make motions, to argue points of law, to participate in voir
dire, to question witnesses, and to address the court and the jury
at times, the right to self-representation is not unfettered.” Id.,
citing McKaskle v Wiggins, 465 US 168, 174, 176-178 (1984). “That
the defendant elected to relinquish his right of self-
representation rather than exercise that right while seated
53 Although the decisions of lower federal courts may be followed if considered persuasive, Michigan state
courts are not bound by them. People v Gillam, 479 Mich 253, 261 (2007).

behind the defense table does not amount to a denial of the

defendant’s right of self-representation.” Arthur (Charles), 495
Mich at 862 (citation omitted).
The court may also face the question whether it is proper to

handcuff or otherwise restrain witnesses. “[T]he propriety of
handcuffing or shackling a testifying witness is subject to the
same analysis as that for defendants[.]” People v Banks, 249 Mich
App 247, 256-258 (2002) (holding that the trial court abused its
discretion to control trial proceedings and infringed on the
defendant’s right to a fair trial by ordering an alibi witness to be
handcuffed without facts on the record to support the need to
restrain the witness).
4. Gagging
“[I]f a defendant is unruly, disruptive, rude, and obstreperous, a
trial court is within its discretion to gag a defendant when
repeated warnings have been ineffective.” People v Conley
(Aaron), 270 Mich App 301, 309 (2006) (holding that the
defendant was not denied his right to a fair trial when, after he
interrupted the court proceedings on several occasions, the trial
judge threatened to tape his mouth shut if he continued to make
disruptive verbal outbursts).
There are at least three constitutionally permissible ways for a

trial judge to handle an obstreperous defendant: (1) binding and
gagging him or her, and thereby keeping the defendant present;
(2) holding the defendant in contempt; and (3) removing the
defendant from the courtroom until he or she promises to
properly conduct him- or herself. Allen, 397 US at 343-344. In
some situations, binding and gagging might be the most fair and
reasonable way to handle a defendant who is disruptive,
although these procedures should be used only “as a last resort.”
Id. at 344.
B. Right to Be Present
1. Failure to Appoint Foreign Language Interpreter54

The lack of simultaneous translation as provided for in MCL
775.19a may implicate a defendant’s rights to due process of law
guaranteed by the United States and Michigan Constitutions.
People v Gonzalez-Raymundo, 308 Mich App 175, 188 (2014), citing
US Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17.
54 See Section 1.6 for discussion of foreign language interpreters.

“Specifically, a defendant has a right to be present at a trial

against him[ or her], . . . and a defendant’s lack of understanding
of the proceedings against him [or her] renders him [or her]
effectively absent[;]” furthermore, “lack of simultaneous
translation impairs a defendant’s right to confront witnesses
against him [or her] and participate in his [or her] own defense.”
Gonzalez-Raymundo, 308 Mich App at 188.
2. Disruptive Conduct of Defendant

A defendant has the constitutional right to be present at his or
her trial, which includes voir dire. US Const, Am VI; Const 1963,
art 1, § 20; Allen, 397 US at 338; People v Buie (On Remand) (Buie
IV), 298 Mich App 50, 56-57 (2012). Michigan law requires that a
defendant charged with a felony be present at his or her trial.
MCL 768.3. However, neither the constitutional nor the statutory
right to be present is absolute. People v Kruger, 466 Mich 50, 54 n 9
(2002). When the conduct of the defendant disrupts the
administration of justice, the court has the authority to examine
the circumstances of the case and take appropriate action. Id. at
54. “Once lost, the right to be present can, of course, be reclaimed
as soon as the defendant is willing to conduct himself [or herself]
consistently with the decorum and respect inherent in the
concept of courts and judicial proceedings.” Allen, 397 US at 343.
A trial court’s decision to remove a defendant from the

courtroom during trial is reviewed for an abuse of discretion.
See Buie IV, 298 Mich App at 58-59 (holding that the defendant’s
removal from the courtroom following a single interruption of
voir dire was not justified).
Where a competent defendant “defiantly refused to participate

in the [judicial] process or to accept any and all services,
regularly interrupted the courts with his denunciation of the
justice system, made far-fetched claims that had no basis in fact
or law, . . . refused to answer questions posed to him by the
courts[,] . . . defiantly showed up in inappropriate attire and in
[an unnecessary] wheelchair[,] . . . accused the courts of being
derelict in their duties, . . . and generally engaged in
disrespectful, disorderly, and disruptive behavior[,]” he forfeited
his right to be present and was properly excluded from the
courtroom during his trial. People v Kammeraad, 307 Mich App 98,
100, 120-121 (2014).
3. Defendant’s Absence
A defendant may waive his or her right to be present by failing
to appear for trial. People v Woods (Art), 172 Mich App 476, 479

(1988). Two elements are necessary for a valid waiver of the right
to be present at trial: (1) specific knowledge of the right, and (2)
an intentional decision to abandon the right. Buie IV, 298 Mich
App at 57; Woods (Art), 172 Mich App at 479.
“A defendant’s voluntary absence from the courtroom after trial

has begun waives his [or her] right to be present and does not
preclude the trial judge from proceeding with the trial to
conclusion.” People v Swan, 394 Mich 451, 452 (1975). See also
Buie IV, 298 Mich App at 58-59 (the defendant, who “specifically
asked to be excused from the courtroom[,]” could not be found
to have voluntarily waived his right to be present because “[t]he
record [was] silent[] . . . as to whether he was ever specifically
apprised of his constitutional right to be present[;]” nor did the
defendant waive his right to be present by interrupting voir dire,
because his removal following his single interruption of the
proceedings was not justified).
The test for determining whether a defendant’s absence from a
part of a trial requires reversal of his or her conviction is whether
there is any reasonable possibility of prejudice. People v
Armstrong (Douglas), 212 Mich App 121, 129 (1995); see also Buie
IV, 298 Mich App at 59-60 (the defendant’s absence “for only a
short period during voir dire” before he agreed to behave and
was allowed to return did not result in any reasonable possibility
of prejudice, where the “evidence of [the] defendant’s guilt was
overwhelming” and he was present for the remainder of trial).
C. Right to Testify
The trial court is not required to advise the defendant that he or she
has a right to testify, or to obtain a waiver of that right on the record.
People v Harris (Derrick), 190 Mich App 652, 661-662 (1991).
D. Medication
A defendant may have the right to be taken off antipsychotic drugs
before testifying unless the court finds that he or she presents a risk to
himself or herself, or others. See Riggins v Nevada, 504 US 127, 134, 137
(1992) (holding that a defendant has a due process liberty interest in
freedom from the involuntary administration of anti-psychotic
drugs).

12.11 Directed Verdict
A. Rule55
MCR 6.419(A)-(C) provide:
“(A) Before Submission to the Jury. After the prosecutor

has rested the prosecution’s case-in-chief or after the
close of all the evidence, the court on the defendant’s
motion must direct a verdict of acquittal on any charged
offense for which the evidence is insufficient to sustain a
conviction. The court may on its own consider whether
the evidence is insufficient to sustain a conviction. If the
court denies a motion for a judgment of acquittal at the
close of the government’s evidence, the defendant may
offer evidence without having reserved the right to do
so.
(B) Reserving Decision. The court may reserve decision

on the motion, proceed with the trial (where the motion
is made before the close of all the evidence), submit the
case to the jury, and decide the motion either before the
jury returns a verdict or after it returns a verdict of
guilty or is discharged without having returned a
verdict. If the court reserves decision, it must decide the
motion on the basis of the evidence at the time the
ruling was reserved.
(C) After Jury Verdict. After a jury verdict, the

defendant may file an original or renewed motion for
directed verdict of acquittal in the same manner as
provided by MCR 6.431(A) for filing a motion for a new
trial.”
A postjudgment motion for a directed verdict must be filed within six

months of entry of the judgment of sentence. See MCR 6.419(C); MCR
6.431(A)(3).56
B. Test Applied by the Court

A directed verdict of acquittal is appropriate only if, considering all
the evidence in the light most favorable to the prosecution, no rational
trier of fact could find that the essential elements of the crime charged
55 MCR 6.419(D) governs motions for acquittal in bench trials. See Section 12.3(E).
56
For motions filed after a jury verdict, the motion may be deemed presented for filing on the date it is
deposited into the mail if the appellant is pro se, is an inmate in the custody of the Michigan Department
of Corrections, and meets the other requirements of MCR 6.431(A)(5).

were proven beyond a reasonable doubt. People v Mehall, 454 Mich 1, 6

(1997). It is impermissible for a trial court to determine the credibility
of witnesses in deciding a motion for a directed verdict, no matter
how inconsistent or vague that testimony may be. Id.
If the court has reserved decision on a motion for directed verdict, “it
must decide the motion on the basis of the evidence at the time the
ruling was reserved.” MCR 6.419(B).
“The court must state orally on the record or in a written ruling made
a part of the record its reasons for granting or denying a motion for a
directed verdict of acquittal and for conditionally granting or denying
a motion for a new trial.” MCR 6.419(F).
C. Double Jeopardy Implications

When a trial court grants a defendant’s motion for a directed verdict
of acquittal, the prohibition against double jeopardy generally
prevents further action against the defendant based on the same
charges. People v Nix (Terressa), 453 Mich 619, 626-627 (1996).
“However, the trial court’s characterization of its ruling is not
dispositive, and what constitutes an ‘acquittal’ is not controlled by the
form of the action.” Mehall, 454 Mich at 5. Rather, a reviewing court
must “determine whether the ruling of the judge, whatever its label,
actually represents a resolution, correct or not, of some or all of the
factual elements of the offense charged.” United States v Martin Linen
Supply Co, 430 US 564, 571 (1977); see also Mehall, 454 Mich at 5.
“Retrial is not permitted if the trial court evaluated the evidence and
determined that it was legally insufficient to sustain a conviction.” Id. at
6.
“[R]etrial is barred when a trial court grants an acquittal because the

prosecution . . . failed to prove an ‘element’ of the offense that, in
actuality, it did not have to prove.” Evans v Michigan, 568 US 313, 317
(2013). In Evans, 568 US at 315, “[w]hen the State of Michigan rested
its case at [the defendant’s] arson trial, the [trial] court entered a
directed verdict of acquittal, based upon its view that the State had
not provided sufficient evidence of a particular element of the
offense.” However, “the unproven ‘element’ was not actually a
required element at all.” Id. The United States Supreme Court held
that “a midtrial acquittal in these circumstances is an acquittal for
double jeopardy purposes[.]” Id. at 316. Accordingly, the defendant’s
“trial ended in an acquittal when the trial court ruled the State had
failed to produce sufficient evidence of his guilt.” Id. at 330. “The
Double Jeopardy Clause thus bars retrial for his offense and should
have barred the State’s appeal.” Id., reversing People v Evans, 491 Mich
1 (2012).57

See also MCR 6.419(B), permitting the court to “reserve decision on

the motion[ for directed verdict] . . . and decide the motion[, on the
basis of the evidence at the time the ruling was reserved,] either
before the jury returns a verdict or after it returns a verdict of guilty or
is discharged without having returned a verdict.”58
In reviewing a trial court’s decision on a motion for a directed verdict,
an appellate court reviews the record de novo to determine whether
the evidence presented, viewed in the light most favorable to the
prosecution, could have persuaded a rational trier of fact that the
essential elements of the crime charged were proven beyond a
reasonable doubt. People v Aldrich, 246 Mich App 101, 122 (2001).
12.12 Jury Instructions
A. Generally
A defendant has a constitutional right to jury instructions that
include: (1) the elements of the offense, United States v Gaudin, 515 US
506, 510 (1995); (2) any applicable defenses, Mathews v United States,
485 US 58, 63 (1988); (3) the requisite intent, Morissette v United States,
342 US 246, 274 (1952); and (4) a proper reasonable doubt instruction,
In re Winship, 397 US 358, 363 (1970). Taken as a whole, the
instructions must be accurate and fair. Estelle v McGuire, 502 US 62, 72
(1991).
The court is required to instruct the jury on the law applicable to the
case. MCL 768.29. “The trial court must instruct the jury not only on
all the elements of the charged offense, but also, upon request, on
material issues, defenses, and theories that are supported by the
evidence. People v Anstey, 476 Mich 436, 453 (2006). Instructions for
which no supporting evidence exists should not be given. People v
Wess, 235 Mich App 241, 243 (1999).
MCR 2.51259 governs instructions to the jury. “At any time during the
trial, the court may, with or without request, instruct the jury on a
point of law if the instruction will materially aid the jury in
57 On April 5, 2013, the Michigan Supreme Court, “[i]n conformity with the mandate of the Supreme Court
of the United States[]” in Evans, 568 US 313, entered an order vacating its judgment and opinion in Evans,
491 Mich 1, and affirming the judgment of the Wayne County Circuit Court. People v Evans, 493 Mich 959,
959-960 (2013).
58
“Allowing the court to reserve judgment until after the jury returns a verdict mitigates double jeopardy
concerns because ‘reversal would result in reinstatement of the jury verdict of guilt, not a new trial.’” Staff
Comment to ADM 2010-34, quoting Evans, 568 US at 330 n 9.

understanding the proceedings and arriving at a just verdict.” MCR

2.512(B)(1). Additionally, “[b]efore or after arguments or at both
times, as the court elects, the court shall instruct the jury on the
applicable law, the issues presented by the case, and, if a party
requests as provided in [MCR 2.512(A)(2)], that party’s theory of the
case.” MCR 2.512(B)(2). See also MCR 2.513(N)(1), which provides, in
part, that “[a]fter closing arguments are made or waived, the court
must instruct the jury as required and appropriate, but at the
discretion of the court, and on notice to the parties, the court may
instruct the jury before the parties make closing arguments.”
The trial court must “provide a written copy of the final jury
instructions to take into the jury room for deliberation.” MCR
2.513(N)(3). Additionally, “Michigan court rules require that jury
instructions be provided orally.” People v Traver, 502 Mich 23, 43 (2018)
(holding it was error for the trial court to provide written instructions
to the jury concerning elements of the charged offenses without also
reading those instructions aloud). While “[n]either MCR 2.512 nor
MCR 2.513 expressly states whether instructions must be provided
orally, . . . the context in which the word ‘instruct’ is used in our rules
leads us to conclude that the court rules affirmatively require oral
instructions.” Id. at 34, 35.
The court should be careful to characterize the instructions given as

the court’s instructions rather than identify them as instructions
requested by a party. People v Hunter (Ralph), 370 Mich 262, 267 n *
(1963).
B. Model Jury Instructions

The Committee on Model Civil Jury Instructions and the Committee
on Model Criminal Jury Instructions are authorized to adopt, amend,
and repeal model jury instructions. MCR 2.512(D)(1). Trial courts are
required to use the model civil jury instructions and model criminal
jury instructions in the manner set out in MCR 2.512(D)(2)-(4), which
provides as follows:
“(2) Pertinent portions of the instructions approved by

the Committee on Model Civil Jury Instructions or the
Committee on Model Criminal Jury Instructions or a
predecessor committee must be given in each action in
which jury instructions are given if
59

(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.
(3) Whenever a committee recommends that no

instruction be given on a particular matter, the court
shall not give an instruction unless it specifically finds
for reasons stated on the record that
(a) the instruction is necessary to state the

applicable law accurately, and
(b) the matter is not adequately covered by other

pertinent model civil jury instructions.
(4) [MCR 2.512(D)] does not limit the power of the court
to give additional instructions on applicable law not
covered by the model instructions. Additional
instructions, when given, must be patterned as nearly as
practicable after the style of the model instructions and
must be concise, understandable, conversational,
unslanted, and nonargumentative.”
C. Request for Instructions

MCR 2.512(A) provides:
“(1) At a time the court reasonably directs, the parties

must file written requests that the court instruct the jury
on the law as stated in the requests. In the absence of a
direction from the court, a party may file a written
request for jury instructions at or before the close of the
evidence.
(2) In addition to requests for instructions submitted

under [MCR 2.512(A)(1)], after the close of the evidence,
each party shall submit in writing to the court a
statement of the issues and may submit the party’s
theory of the case regarding each issue. The statement
must be concise, be narrative in form, and set forth as
issues only those disputed propositions of fact that are
supported by the evidence. The theory may include
those claims supported by the evidence or admitted.
(3) A copy of the requested instructions must be served

on the adverse parties in accordance with MCR 2.107.

(4) The court shall inform the attorneys of its proposed

action on the requests before their arguments to the jury.
(5) The court need not give the statements of issues or

theories of the case in the form submitted if the court
presents to the jury the material substance of the issues
and theories of each party.”
MCR 2.513(N)(1) provides, in relevant part:
“Before closing arguments, the court must give the

parties a reasonable opportunity to submit written
requests for jury instructions. Each party must serve a
copy of the written requests on all other parties. The
court must inform the parties of its proposed action on
the requests before their closing arguments.”
MCR 2.513(N)(1) gives “the trial court broad authority to carry out its
duty to instruct the jury properly, and this authority extends to
instructing the jury even during deliberations.” People v Craft, ___
Mich App ___, ___ (2018). “There is nothing in the court rules that
preclude the trial court from supplementing its original
instructions . . ., nor is there anything in the rules to suggest that a
party’s acquiescence to the original instructions [bars] the trial court
[from] supplementing its instructions.”60 Id. at ___.
D. Preliminary Instructions
MCR 2.513(A) provides:
“After the jury is sworn and before evidence is taken,

the court shall provide the jury with pretrial
instructions reasonably likely to assist in its
consideration of the case. Such instructions, at a
minimum, shall communicate the duties of the jury, trial
procedure, and the law applicable to the case as are
reasonably necessary to enable the jury to understand
the proceedings and the evidence. The jury also shall be
instructed about the elements of all civil claims or all
charged offenses, as well as the legal presumptions and
burdens of proof. The court shall provide each juror
with a copy of such instructions. MCR 2.512(D)(2)
[(requiring the court to give requested model civil and
criminal jury instructions where applicable and
accurate)] does not apply to such preliminary
instructions.”
60See Section 12.12(I) for additional discussion of supplemental instructions.

E. Interim Instructions
“At any time during the trial, the court may, with or without request,
instruct the jury on a point of law if the instruction will materially aid
the jury in understanding the proceedings and arriving at a just
verdict.” MCR 2.512(B)(1).
The court must also instruct the jury on the applicable law, issues
presented, and, if requested under MCR 2.512(A)(2), a party’s theory
of the case. MCR 2.512(B)(2). These instructions may be given
“[b]efore or after arguments or at both times, as the court elects[.]” Id.
F. Final Instructions
“After closing arguments are made or waived, the court must instruct
the jury as required and appropriate.” MCR 2.513(N)(1). Additionally,
the trial court has the discretion (after giving notice to the parties) to
instruct the jury before the parties give their closing arguments. Id.
After deliberations begin, additional instructions may be given as
appropriate. Id. The plain meaning of the phrase the court must instruct
the jury as used in MCR 2.513(N)(1) is that a complete set of jury
instructions must be verbally communicated to the jury. Traver, 316
Mich App at 591-592, 599-600 (holding that the trial court’s failure to
provide the jury with verbal instructions constituted plain error
requiring reversal).
Additionally, the court must provide the jury with a written copy of
the final instructions to take into the jury room during deliberations.
MCR 2.513(N)(3). The written jury instructions required under MCR
2.513(N)(3) do not substitute for the spoken instructions that must
also be supplied under MCR 2.513(N)(1). Traver, 316 Mich App at 591-
592, 599-600. If a juror requests additional copies of the written
instructions, the court may provide them as necessary. MCR
2.513(N)(3). The court also has discretion to provide the jury with a
copy of electronically recorded instructions. Id.
G. Jurors’ Questions About Instructions and Clarifications

Jurors may submit questions about the court’s jury instructions. See
MCR 2.513(N)(2). As part of its final instructions, the court must
“advise the jury that it may submit in a sealed envelope given to the
bailiff any written questions about the jury instructions that arise
during deliberations.” Id. In addition, after giving its final
instructions, the court must “invite the jurors to ask any questions in
order to clarify the instructions before they retire to deliberate.” Id.
If the jurors have questions, “the court and the parties shall convene,
in the courtroom or by other agreed-upon means.” MCR 2.513(N)(2).

The question must be read aloud on the record, and the attorneys
must offer suggestions for an appropriate response. Id. The court has
discretion whether to provide the jury with a specific response. Id. No
matter what it decides, the court must respond to all questions asked
by the jury, “even if the response consists of a directive for the jury to
continue its deliberations.” Id.
“When it appears that a deliberating jury has reached an impasse, or

is otherwise in need of assistance, the court may invite the jurors to
list the issues that divide or confuse them in the event that the judge
can be of assistance in clarifying or amplifying the final instructions.”
MCR 2.513(N)(4). See also People v Kosik, 303 Mich App 146, 156 (2013)
(a trial court may provide an instruction clarifying an issue that the
trial court believes the jurors might question).
“‘There is no requirement that when a jury has asked for

supplemental instruction on specific areas that the trial judge is
obligated to give all the instructions previously given. The trial judge
need only give those instructions specifically asked.’” People v Katt,
248 Mich App 282, 311 (2001) (citation omitted).
H. Instructions on Lesser Included Offenses
1. Necessarily Included Offenses

“‘Necessarily included’ lesser offenses encompass situations in
which it is impossible to commit the greater offense without first
having committed the lesser.” People v Hendricks, 446 Mich 435,
443 (1994). In other words, “‘[n]ecessarily included lesser
offenses are offenses in which the elements of the lesser offense
are completely subsumed in the greater offense.’” People v
Nickens, 470 Mich 622, 626 (2004) (citation omitted). Either party
may request instructions on lesser included offenses. Id. at 442.
“[A] requested instruction on a necessarily included lesser
offense is proper if [(1)] the charged greater offense requires the
jury to find a disputed factual element that is not part of the
lesser included offense and [(2)] a rational view of the evidence
would support it.” People v Cornell, 466 Mich 335, 357 (2002); see
also People v Jones (Thabo), 497 Mich 155, 163-165 (2014).
MCL 768.32 expressly allows a jury to find a defendant guilty of

an inferior degree of an offense. Hendricks, 446 Mich at 441-442.

“(1) Except as provided in [MCL 768.32(2),61] upon

an indictment for an offense, consisting of different
degrees, as prescribed in this chapter, the jury, or
the judge in a trial without a jury, may find the
accused not guilty of the offense in the degree
charged in the indictment and may find the
accused person guilty of a degree of that offense
inferior to that charged in the indictment, or of an
attempt to commit that offense.”
“[T]he word ‘inferior’ in [MCL 768.32(1)] does not refer to

inferiority in the penalty associated with the offense, but, rather,
to the absence of an element that distinguishes the charged
offense from the lesser offense. The controlling factor is whether
the lesser offense can be proved by the same facts that are used
to establish the charged offense.” People v Torres (Gavino) (On
Remand), 222 Mich App 411, 419-420 (1997). MCL 768.32(1)
permits instructions on only necessarily included offenses, not
cognate offenses.62 People v Reese (Clinton), 466 Mich 440, 446
(2002); Cornell, 466 Mich at 355-357.
The duty of the trial judge to instruct on lesser included offenses

is determined by the evidence. Torres (Gavino), 222 Mich App at
416. If evidence has been presented which would support a
conviction of a lesser included offense, refusal to give a
requested instruction is error requiring reversal. Id. at 416. Even
over the objection of counsel, however, a defendant can make a
knowing waiver of the right to instructions on lesser included
offenses. People v Jones (Ponce), 424 Mich 893, 893 (1986).
Offenses divided into degrees. Where an offense is divided into

degrees, MCL 768.32(1) permits finding a defendant guilty of a
lesser degree of the charged offense if the lesser degree is an
“inferior” offense as defined in Cornell, 466 Mich 335. People v
Nyx (Maurice), 479 Mich 112, 121, 136 (2007) (plurality opinion).
In other words, the lesser degree of the offense must be a
necessarily included offense and not a cognate offense of the
crime charged. Id. (holding that second-degree criminal sexual
conduct (CSC-II) is a cognate offense of first-degree criminal
sexual conduct (CSC-I) and, therefore, a defendant charged with
CSC-I could not properly be convicted of CSC-II under MCL
768.32(1)).
61
MCL 768.32(2) addresses indictments for certain controlled substance offenses. See the Michigan
Judicial Institute’s Controlled Substances Benchbook, Chapter 1, for more information.
62
Cognate offenses “are only ‘related’ or of the same ‘class or category’ as the greater offense and may
contain some elements not found in the greater offense.” Cornell, 466 Mich at 355. See Section 12.12(H)(2)
for discussion of cognate offenses.

However, “when dealing with degreed offenses that can be

committed by alternative methods,” “a more narrowly focused
evaluation of the statutory elements at issue is necessary[.]”
People v Wilder (Darrell), 485 Mich 35, 44 (2010). “Such an
evaluation requires examining the charged predicate crime to
determine whether the alternative elements of the lesser crime
committed are subsumed within the charged offense. As long as
the elements at issue are subsumed within the charged offense,
the crime is a necessarily included lesser offense. Not all possible
statutory alternative elements of the lesser offense need to be
subsumed within the elements of the greater offense in order to
conclude that the lesser offense is a necessarily included lesser
offense.” Id. at 44-45.
Home invasion offenses. In Wilder, 485 Mich at 38, the

defendant entered a residence without permission, displayed a
weapon, and committed a larceny; he was charged with first-
degree home invasion under MCL 750.110a(2) (requiring
commission/intent to commit a felony, larceny, or assault in the
dwelling), and was convicted of third-degree home invasion
under MCL 750.110a(4)(a) (requiring commission/intent to
commit a misdemeanor in the dwelling). The Michigan Supreme
Court instructed that “in order to determine whether the specific
elements used to convict [the] defendant of third-degree home
invasion in this case constitute a necessarily included lesser
offense of first-degree home invasion, one must examine the
offense of first-degree home invasion as charged and determine
whether the elements of third-degree home invasion as
convicted are subsumed within the charged offense.” Wilder, 485
Mich at 45.
In Wilder, 485 Mich at 44, the Court of Appeals erred in

concluding that third-degree home invasion in this case was not
a necessarily included offense of first-degree home invasion
because “it failed to confine its analysis to the elements at issue
in this case; rather, it based its decision on an analysis of
alternative elements that were not at issue.” In reaching its
conclusion, the Court of Appeals wrongly “reasoned that if there
could be any instance in which the underlying misdemeanor is
not subsumed within the predicate felony, then the entire crime
is a cognate offense.” Id. The Michigan Supreme Court
concluded that in this case, third-degree home invasion under
MCL 750.110a(4)(a) based on the commission of misdemeanor
larceny is a necessarily included offense of first-degree home
invasion, MCL 750.110a(2), because “every felony larceny
necessarily includes within it a misdemeanor larceny.” Wilder,
485 Mich at 46. The remaining alternative elements on which a

third-degree home invasion conviction can be based were not

relevant to the analysis in this case. Id. at 44.
“[E]ither a misdemeanor or felony larceny . . . may serve as the

predicate offense for second-degree home invasion[, MCL
750.110a(3); c]onsequently, where . . . the predicate offense for [a]
home invasion charge [is] a larceny, third-degree home
invasion[, MCL 750.110a(4), is] a lesser-included offense of
second-degree home invasion.” People v Jackson (Kevin) (On
Reconsideration), 313 Mich App 409, 422-423 (2015), applying
Wilder (Darrell), 485 Mich at 46. However, a trial court errs in
giving an instruction on third-degree home invasion where there
“is no record evidence that [the] defendant entered [a] home to
commit any crime other than a larceny.” Jackson (Kevin) (On
Reconsideration), 313 Mich App at 423-424 (nevertheless
concluding “that the improper jury instruction did not affect
[the] defendant’s substantial rights” because “the instruction
allowed [the] defendant the chance to be convicted of a lesser
offense than that which the evidence supported”).
Larceny and robbery. Larceny from the person, MCL 750.357, is

not a necessarily included offense of robbery, MCL 750.530.
People v Smith-Anthony, 494 Mich 669, 672, 674 n 7, 687 n 53 (2013)
(because, generally,63 a defendant must take property from the
physical person or immediate presence of a victim to commit a
larceny from the person, while robbery, under MCL 750.530(2),
does not require that the taking have been made in the
immediate presence of the victim, the trial court erred in
instructing the jury on larceny from the person as a lesser
included offense of robbery).
Entering without permission. “[E]ntering without permission[,

MCL 750.115,] is not a lesser offense of entering with the intent
to commit a larceny[, MCL 750.111],” because “entering without
permission contains an additional element—the lack of
permission—on which the prosecution would have to prove
additional facts that are not necessary for the prosecution to
prove entering with intent to commit a larceny.” People v Heft,
299 Mich App 69, 75-76 (2012). Although the Michigan Supreme
Court in Cornell, 466 Mich at 360, held that entering without
permission is necessarily included in entering with intent to
commit larceny, Cornell was distinguishable “because it
expressly concerned a situation in which the prosecution
charged the defendant with ‘breaking and entering,’ not merely
63
“In rare cases, a taking outside the victim’s immediate presence may satisfy the from-the-person
element only if a defendant or the defendant’s accomplices use force or threats to create distance
between a victim and the victim’s property.” People v Smith-Anthony,494 Mich 669, 672-673 (2013). These
circumstances were not present in the Smith-Anthony case. Id. at 673.

entering.” Heft, 299 Mich App at 75-76. In contrast, in Heft, 299

Mich App at 76-77, “the [defendant’s theory] of [the] case [was]
inconsistent with entering without permission,” and “[t]he
prosecution was not required to prove that [the defendant] did
not have permission to enter the house to prove entering with
intent to commit larceny, but would have been required to prove
that [he] did not have permission to enter the house to prove
entering without permission.”
Assault with intent to commit murder and assault with intent

to do great bodily harm less than murder. Assault with intent to
do great bodily harm less than murder is a lesser included
offense of assault with intent to commit murder; therefore, the
trial court properly instructed the jury on both offenses. People v
Brown (Tommy), 267 Mich App 141, 150-151 (2005) (holding that
the specific intent necessary for the offense of assault with intent
to do great bodily harm less than murder was “completely
subsumed” by the specific intent necessary for the offense of
assault with intent to commit murder).
Assault with intent to commit murder and simple assault and

battery. “[A]ssault and battery is not a necessarily included
lesser offense of assault with intent to murder,” because “assault
and battery contains an element that assault with intent to
murder does not, i.e., a harmful or offensive touching.” People v
Haynie, ___ Mich App ___, ___ (2019). See Section 12.12(H)(2) for
information on cognate offenses of assault with intent to commit
murder.
Possession with intent to deliver controlled substances. Where

“the only difference . . . between . . . possession with intent to
deliver offenses is the amount of the illegal substance, it [is]
not . . . possible to commit the greater offense without
committing the lesser offense.” People v McGhee (Larry A), 268
Mich App 600, 607 (2005). However, this does not necessarily
mean that a trial court must give instructions for all possible
amounts if the defendant so requests. Id. at 607-608. “[A]n
instruction on the lesser offense need only be given if a rational
review of the evidence indicates that the element distinguishing
the lesser offense from the greater offense is in dispute.” Id. at
607.
Similarly, simple possession under MCL 333.7403 is a necessarily

included offense of possession with intent to deliver a controlled
substance under MCL 333.7402 where the offenses involve the
same amount of the controlled substance; however, “if the
offenses involve differently categorized statutory amounts,
possession will be treated as a cognate lesser offense.” People v
Robar, 321 Mich App 106, 130 (2017) (noting that having a valid
prescription, the absence of which is not an element of the crime,

only exempts a defendant from prosecution for simple
possession and does not constitute an exemption to possession
with intent to deliver).
Involuntary manslaughter and murder. Statutory involuntary

manslaughter is not an inferior offense of second-degree murder
because it is possible to commit second-degree murder without
first committing involuntary manslaughter. People v Smith
(Randy), 478 Mich 64, 71 (2007). Because statutory involuntary
manslaughter requires elements not required to commit second-
degree murder (that the death resulted from the discharge of a
firearm intentionally pointed at the victim), statutory
involuntary manslaughter is not a necessarily included offense
of second-degree murder, and denial of a defendant’s request for
such a jury instruction is proper. Id. at 71.
Attempted offenses. It is not error to refuse to instruct the jury

on a lesser offense or attempted offense that is unsupported by
the evidence. People v Davis (Keith), 277 Mich App 676, 688-689
(2008), vacated in part on other grounds 482 Mich 978 (2008)64
(noting that attempted robbery is a necessarily included offense
of assault with intent to rob while armed, but holding that the
trial court’s refusal to instruct the jury on attempted assault with
intent to rob was not error because the facts did not support the
instruction).
Reckless driving causing death and moving violation causing

death. Where a defendant is charged with the greater offense of
reckless driving causing death, MCL 257.626(5) precludes an
instruction on the misdemeanor lesser offense of moving
violation causing death. People v Jones (Thabo), 497 Mich 155, 172
(2014), rev’g 302 Mich App 434 (2013). “MCL 257.626(5) is not a
matter of practice and procedure, and, consequently, there [is] no
violation of separation of powers simply because a necessarily
included lesser offense exists and the Legislature has acted
within its constitutional authority by creating a substantive
exception that prohibits or otherwise limits the [factfinder’s]
consideration of that lesser offense.” Jones (Thabo), 497 Mich at
169.

2. Cognate Offenses
Cognate offenses are those that share some common elements,
and are of the same class or category as the greater offense, but
have some additional elements not found in the greater offense.
People v Hendricks, 446 Mich 435, 443 (1994). The jury should not
be instructed on cognate offenses. People v Cornell, 466 Mich 335,
357 (2002).
Criminal sexual conduct. Second-degree criminal sexual

conduct (CSC-II) is a cognate offense of CSC-I. People v Nyx
(Maurice), 479 Mich 112, 121, 136 (2007) (plurality opinion).
Third-degree criminal sexual conduct (CSC-III) is not a

necessarily included offense of CSC-I because it is possible to
commit CSC-I without first committing CSC-III. People v Apgar,
264 Mich App 321, 326-327 (2004), overruled in part on other
grounds by People v White (Anthony), 501 Mich 160 (2017).65 In
Apgar, the defendant was charged with two counts of CSC-I.
After jury selection, the prosecution moved to amend the
information to include a charge of CSC-III. Apgar, 264 Mich App
at 324-325. The trial court denied the motion, but instructed the
jury on CSC-III. Id. at 325. The jury ultimately convicted the
defendant of CSC-III. Id. While the trial court improperly
instructed the jury on CSC-III because the defendant was not
charged with CSC-III and CSC-III is a cognate offense of CSC-I,
the error did not require reversal because the defendant was
provided adequate notice of the uncharged offense (CSC-III)
when all elements of the offense were proved, without objection,
at the defendant’s preliminary examination and trial. Id. at 327-
329.
Felonious assault, assault with intent to commit murder, and

other assault offenses. It was error for the trial court to instruct
the jury on the cognate offense of felonious assault where,
although the defendant was originally charged with felonious
assault, the information was amended to instead charge assault
with intent to commit murder. People v Wheeler, 480 Mich 965, 965
(2007). Thus, where the defendant was no longer charged with
felonious assault, instruction on that offense constituted plain
error because felonious assault is a cognate offense of assault
with intent to commit murder. Id.

Felonious assault (MCL 750.82) is a cognate offense of assault

with intent to rob while armed (MCL 750.89), and not a
necessarily included offense. People v Walls (Thomas), 265 Mich
App 642, 646 (2005). While a conviction for felonious assault
requires that the offender possess a dangerous weapon, a
conviction for assault with intent to rob while armed may be
based on the offender’s possession of “any article used or
fashioned in a manner to lead a person so assaulted reasonably
to believe it to be a dangerous weapon.” MCL 750.89. Because
conviction of felonious assault (lesser offense) requires
possession of a dangerous weapon, and conviction of assault
with intent to rob while armed (greater offense) does not require
possession of a dangerous weapon, it is possible to commit the
greater offense without first committing the lesser offense. Walls
(Thomas), 265 Mich App at 646.
“[M]isdemeanor assault and battery is a cognate lesser offense of

assault with intent to commit murder because all of the elements
of misdemeanor assault and battery are not included within the
greater offense of assault with intent to murder.” People v Haynie,
___ Mich App ___, ___ (2019). Assault and battery requires a
harmful or offensive touching, which is not a required element
of the charge of assault with intent to commit murder. Id. at ___
(“the trial court’s determination to not give a lesser offense
instruction for assault and battery [at the defendant’s trial for
assault with intent to commit murder] was proper”).
I. Objections to the Instructions and Preservation of Error

Failure to give an instruction is not grounds for setting aside the
verdict unless it was requested by the defendant. MCL 768.29. A party
may object to the giving or the failure to give a jury instruction, “only
if the party objects on the record before the jury retires to consider the
verdict (or, in the case of instructions given after deliberations have
begun, before the jury resumes deliberations)[.]” MCR 2.512(C). The
“only if” language in MCR 2.512(C) “does not act as a bar to
proceedings in the trial court, but rather as a restriction on appeal.”
People v Craft, ___ Mich App ___, ___ (2018). Accordingly, “a party can
alter its position on the appropriateness of jury instructions [during
trial court proceedings] when a question is subsequently raised,” and
“is not barred from asking for supplemental instructions even if the
party . . . earlier acquiesced to the original . . . instructions.” Id. at ___
(finding the prosecutor did not waive, and was not estopped, from
arguing in favor of supplemental instructions after approving the
original instructions).66
66See Section 12.12(J) for discussion of when supplemental instructions are appropriate.

The party must state “specifically the matter to which the party
objects and the grounds for the objection.” MCR 2.512(C). The court
must give the objecting party the opportunity to make the objection
outside the hearing of the jury. Id.
To preserve an instructional error for appellate review, a defendant

must object to the instruction before the jury deliberates. People v
Gonzalez, 256 Mich App 212, 225 (2003). Failure to make a timely
objection to a jury instruction constitutes forfeiture and relief is only
warranted if the error was plain and it affected the defendant’s
substantial rights. People v Kowalski, 489 Mich 488, 505-506 (2011); see
also People v Carines, 460 Mich 750, 763 (1999).
If a party expresses satisfaction with the trial court’s instructions, it

constitutes a waiver that extinguishes appellate review regarding the
instructions. People v Carter (Vincent), 462 Mich 206, 215 (2000). See
also Craft, ___ Mich App at ___ (“[i]f a party fails to object to the trial
court’s instructions, then the party has failed to preserve the objection
for appellate review). Furthermore, where a defendant’s attorney
“clearly expresses satisfaction with a trial court’s decision [regarding
a jury instruction], counsel’s action will be deemed to constitute a
waiver[]” of the defendant’s claim on appeal that a jury instruction
was improper. Kowalski, 489 Mich at 503-504 (“by expressly and
repeatedly approving the jury instructions on the record, [the]
defendant waived any objection to the erroneous instructions”).
However, where “the only reason defense counsel agreed to
submission of the felony-murder charge was his mistaken view of the
law that false pretenses could serve as an underlying felony for a
felony murder conviction[,]” the defendant did not waive his right to
plead guilty; “[t]he nature of the instructional error . . . [rose] to the
level of a due process violation,” because “[t]he error was not merely
one in which the jury received an imprecise definition or in which the
trial court omitted an element of the offense for which the evidence
was overwhelming[;]” rather, “the instruction directed the jury to
convict [the] defendant on the basis of affirmative findings that, by
statute, are not grounds on which to convict” and “[the] defendant’s
trial counsel could not unilaterally waive this issue without [the]
defendant’s full knowledge and understanding about exactly what he
was waiving.” People v Oros, 320 Mich App 146, 160-161 (2017),
overruled in part on other grounds 502 Mich 229 (2018).67

J. Instructional Error and Standard of Review

Claims of instructional error are generally reviewed de novo on
appeal, but a trial court’s determination that a jury instruction is
applicable to the facts of the case is reviewed for an abuse of
discretion. People v Dobek, 274 Mich App 58, 82 (2007). The trial court’s
role is to clearly present the case to the jury and to instruct the jury on
the applicable law. Id. at 82.
Jury instructions are to be read as a whole rather than extracted

piecemeal to establish error. McGhee (Larry A), 268 Mich App at 603.
Even if somewhat imperfect, jury instructions are not erroneous if
they fairly presented the issues to be tried and sufficiently protected
the defendant’s rights. People v McLaughlin, 258 Mich App 635, 668
(2003).
“The verdict form is treated as, essentially, part of the package of jury
instructions.” People v Eisen, 296 Mich App 326, 330, 329-331 (2012)
(holding that, although the trial court’s oral jury instructions were
plainly erroneous in omitting an element of a charged offense, no
reversible error occurred because the verdict form reflected the
missing element).
Under MCL 769.26, the failure to give a requested jury instruction

constitutes error that requires reversal only where “‘it is more
probable than not that the error was outcome determinative.’” People
v Lyles, 501 Mich 107, 117-118 (2017), quoting People v Lukity, 460 Mich
484, 496 (1999). See also People v Mitchell (Bradford), 301 Mich App 282,
288-289 (2013) (citing People v Cornell, 466 Mich 335, 365 (2002), and
holding that the trial court’s abuse of discretion in failing to give a
requested instruction on a lesser included offense constituted error
requiring reversal where an inquiry sent by the jury during
deliberations “strongly suggest[ed] that it wanted to consider, and
likely would have convicted [the] defendant of, a lesser charge”);
People v Hawthorne, 474 Mich 174, 176, 181 (2006) (when a trial judge
refuses a defendant’s request to deliver an instruction on the defense
of accident, a verdict is reversible if the defendant “establishe[s] that
the alleged error undermined the reliability of the verdict[]”). In
determining whether an error was outcome determinative, “the
reviewing court should focus on the nature of the error in light of the
weight and strength of the untainted evidence.” Lyles, 501 Mich at 118
(quotation marks and citation omitted).
Elements of offense. The omission of an essential element of a

criminal jury instruction is an error of constitutional magnitude.
Carines, 460 Mich at 761. If the defendant preserves the issue at trial,
and the error is not a structural defect that defies harmless error
analysis, the reviewing court must determine whether the beneficiary
of the error has established that it was harmless beyond a reasonable
doubt. Id. at 774. See also Neder v United States, 527 US 1, 10 (1999)
(indicating that failure to instruct a jury on one of several elements
may be subject to a harmless-error analysis). If the defendant fails to
preserve the issue at trial, review on appeal is for plain error. Carines,
460 Mich at 764.
Where an instruction omitted an element of an offense, and “the

evidence related to the missing element was overwhelming and
uncontested, it cannot be said that the error affected the defendant’s
substantial rights or otherwise undermined the outcome of the
proceedings.” Kowalski, 489 Mich at 506.
However, where a jury instruction “directed the jury to convict

defendant on the basis of affirmative findings that, by statute, are not
grounds on which to convict,” defense counsel’s approval of the
instruction did not waive the defendant’s right to raise the
instructional error on appeal; “defendant’s trial counsel could not
unilaterally waive this issue without defendant’s full knowledge and
understanding about exactly what he was waiving.” People v Oros, 320
Mich App 146, 160-161 (2017), overruled in part on other grounds 502
Mich 229 (2018).68 In Oros, 320 Mich App at 159, the defendant was
convicted of first degree murder on a felony-murder theory; “[t]he
prosecution presented evidence that the murder occurred during
either of two crimes: larceny from a person . . . or use of false
pretenses to defraud.” The jury was instructed that it could convict on
either basis, and the jury verdict form did not require the jury to
specify on which theory it relied in convicting the defendant of felony
murder Id. Defense counsel “expressed his [mistaken] belief that false
pretenses could serve as an underlying felony to support a first-
degree felony murder conviction, and he affirmatively stated that he
had no issue with the jury being [so] instructed.” Id. at 160. The Court
concluded that because “the instruction directed the jury to convict
defendant on the basis of affirmative findings that, by statute, are not
grounds on which to convict . . . defendant’s trial counsel could not
unilaterally waive this issue without defendant’s full knowledge and
understanding about exactly what he was waiving.” Id. at 160-161
(holding that the evidence to support larceny from a person as the
underlying felony for the felony murder charge “falls well short” of
the “overwhelming and uncontested” standard applied by the Court
in Kowalski, 489 Mich at 506).
In the defendant’s trial for murder, the trial court’s failure to give the
defendant’s requested instruction regarding evidence of his character

for peacefulness did not constitute reversible error where his good-
character evidence was “minimal and strongly contradicted by the
prosecution’s witnesses[; g]iven this and the other evidence
implicating [the] defendant in the murder,” he “failed to show that
the instructional error more likely than not affected the outcome of
his trial[.]” Lyles, 501 Mich at 112, 126. The Court of Appeals erred by
“focusing on the importance of the good-character instruction to [the]
defendant’s defense strategy instead of evaluating the likelihood of
[the] defendant’s prevailing on that strategy[;]” “[w]hen considering
whether the error was harmless, the question is whether the
instruction would have made a difference in the outcome[,]” which
“requires a court to consider not only the relationship between the
instruction and [the] defendant’s defense strategy, but also the
strength of that strategy relative to the proofs as a whole.” Id. at 118,
citing Lukity, 460 Mich at 495-496.
“It is structural error requiring automatic reversal to allow a jury to

deliberate a criminal charge where there is a complete failure to
instruct the jury regarding any of the elements necessary to determine
if the prosecution has proven the charge beyond a reasonable doubt.”
People v Duncan (Timothy), 462 Mich 47, 48 (2000) (the defendant’s two
felony-firearm convictions were reversed because the jury was not
instructed on any elements of that offense).
“Where time is not an element of the offense, the prosecution need

not prove the date and time of offenses beyond a reasonable doubt
even though the felony information must identify the date and time of
the offenses.” People v Miller (David), ___ Mich App ___, ___ (2019). In
Miller, the trial court did not commit error when, during the
defendant’s trial for identity theft, it instructed the jury that it could
find “that the offense occurred within a specific time period” because
“the prosecution was not actually required to prove the timing of the
offense as an element of the crime. Id. at ___.
“[T]he trial court did not commit a structural constitutional error, but
rather averted one” by providing timely supplemental instructions
after it received a request for clarification from the jury regarding the
unintentional omission of any instruction on two entire counts. People
v Craft, ___ Mich App ___, ___ (2018) (“[b]efore the jury returns its
verdict, the trial court may supplement its instructions in any manner
consistent with the accurate determination of the charges”). In Craft,
“[t]he trial court’s decision to reinstruct the jury . . . was reasonably
calculated to protect defendant’s right to a properly instructed jury
while avoiding the time and costs of a new trial.” Id. at ___.
“[W]hen a jury instruction sets forth all the elements of the charged
crime but incorrectly adds one more element,” a challenge to the
sufficiency of the evidence “should be assessed against the elements

of the charged crime, not against the erroneously heightened

command in the jury instruction.” Musacchio v United States, 577 US
___, ___ (2016). “If a jury instruction requires the jury to find guilt on
the elements of the charged crime, a defendant will have had a
‘meaningful opportunity to defend’ against the charge[, a]nd if the
jury instruction requires the jury to find those elements ‘beyond a
reasonable doubt,’ the defendant has been accorded the procedure
that [is] required to protect the presumption of innocence.” Id. at ___
Reasonable doubt. Jury instructions, when read as a whole, must

convey the correct concept of reasonable doubt. Victor v Nebraska, 511
US 1, 5, 7, 18, 22 (1994) (approving of instructions defining reasonable
doubt as, among other things, “not a mere possible doubt,” but one
“depending on moral evidence,” such that the jurors could not say
they felt an abiding conviction, “to a moral certainty,” of the truth of
the charge; and as a doubt that will not permit an abiding conviction,
“to a moral certainty,” of the accused’s guilt, and an “actual and
substantial doubt” that is not excluded by the “strong probabilities of
the case”).
12.13 Jury Matters During Deliberations
A. Separation or Sequestration of the Jury

Sequestration of a jury is within the trial court’s discretion. People v
King (Bradford), 215 Mich App 301, 304 (1996); MCL 768.16; M Crim JI
2.15. It is within the trial court’s discretion whether to permit jurors to
separate after deliberations have started. People v Nick, 360 Mich 219,
225 (1960). Where the deliberations are lengthy, it is proper to permit
the jury to recess from time to time and to go home at night. Id.
B. Communication with the Jury

There are three categories of communication with a deliberating jury.
People v France, 436 Mich 138, 142-144 (1990). These categories are
discussed below. Ex parte communication with a deliberating jury is
discouraged. Id. at 161. Consistent with MCR 2.513(B), a court must
ensure that all case-related communications between the court and
the jury are made part of the record.
1. Substantive
“Substantive communication encompasses supplemental
instructions on the law given by the trial court to a deliberating
jury. A substantive communication carries a presumption of
prejudice in favor of the aggrieved party regardless of whether
an objection is raised. The presumption may only be rebutted by

a firm and definite showing of an absence of prejudice.” France,
436 Mich at 143.
An example of a substantive communication is where the jury

asks the trial court for a further definition of a particular crime,
and the trial court provides the jury with a typewritten
definition of that crime. France, 436 Mich at 144, 146 n 9.
2. Administrative
“Administrative communications include instructions regarding
the availability of certain pieces of evidence and instructions that
encourage a jury to continue its deliberations. An administrative
communication carries no presumption. The failure to object
when made aware of the communication will be taken as
evidence that the administrative instruction was not prejudicial.
Upon an objection, the burden of persuasion lies with the
nonobjecting party to demonstrate that the communication
lacked any prejudicial effect.” France, 436 Mich at 143.
An example of an administrative communication is where the

jury asks the trial court for an exhibit or police report, and the
trial court responds that because those items were not received
in evidence, they are unavailable to the jury. France, 436 Mich at
145-146. See also People v Marshall (Dustin), 298 Mich App 607,
624 (2012), vacated in part on other grounds 493 Mich 1020
(2013)69 (prejudice was not presumed from the absence of a
record regarding whether there were any communications
between the jury and the trial court concerning four handwritten
juror notes that were stapled to the verdict form, where each
note referred to an evidentiary matter); People v Powell (Willie),
303 Mich App 271, 274-276 (2013) (the trial court’s instruction
that the jury should continue its deliberations until it could reach
an agreement was administrative in nature and did not violate
the defendant’s rights to be present and to have counsel at a
critical stage of trial).
3. Housekeeping
“Housekeeping communications are those which occur between
a jury and a court officer regarding meal orders, rest room

facilities, or matters consistent with general ‘housekeeping’

needs that are unrelated in any way to the case being decided. A
housekeeping communication carries the presumption of no
prejudice. First, there must be an objection to the
communication, and then the aggrieved party must make a firm
and definite showing which effectively rebuts the presumption
of no prejudice.” France, 436 Mich at 144.
Committee Tip:
In order to effectively respond to written jury
questions:
• Provide jury with envelopes and paper for
questions;
• Meet with attorneys to see if an agreement
can be reached on a response;
• Have attorneys review the written response;
• When next on the record, describe the
question, agreement with counsel, and the
response;
• Always obtain consent of counsel, on the
record, for written, substantive communications
with the jury.
C. Materials in Jury Room and Juror Exposure to Extraneous

Evidence
The court must allow the jurors to take their notes (if they were
permitted to take notes)70 and final jury instructions71 into the jury
room when retiring to deliberate. MCR 2.513(O); see also MCR
2.513(H). The court may allow the jurors to take the reference
document (if prepared under MCR 2.513(E)) and any exhibits or
writings admitted into evidence into the jury room when retiring to
deliberate. MCR 2.513(O).
“Consistent with a defendant’s right to a fair and impartial jury,

‘jurors may only consider the evidence that is presented to them in
open court.’” People v Stokes, 312 Mich App 181, 187 (2015), quoting
People v Budzyn, 456 Mich 77, 88 (1997). A trial court may not provide
the jury with evidence that has not been admitted. People v Davis
70 See Section 12.9(B) for information on jury note taking.
71 See Section 12.12(F) for information on providing copies of final jury instructions to the jurors.

(John), 216 Mich App 47, 57 (1996). “Where the jury considers
extraneous facts not introduced in evidence, this deprives a defendant
of his [or her] rights of confrontation, cross-examination, and
assistance of counsel embodied in the Sixth Amendment.” Budzyn,
456 Mich at 88.
To establish that the jury’s exposure to extraneous evidence was error

requiring reversal, a defendant must prove that the jury was exposed
to extraneous influences, and that the extraneous influences created a
real and substantial possibility of affecting the jury’s verdict (i.e., that
the extraneous influence is substantially related to a material aspect of
the case and that there is a direct connection between the extrinsic
material and the adverse verdict). Budzyn, 456 Mich at 88-89. If the
defendant establishes his or her initial burden, the burden shifts to the
prosecution to demonstrate that the error was harmless beyond a
reasonable doubt, by proving that the extraneous evidence was
duplicative of evidence produced at trial, or that the evidence of guilt
was overwhelming. Id. at 89-90.
The defendant failed to establish “that the jurors were subject to

extraneous influences through their use of cell phones[]” where a
juror “testified that jurors, himself included[ (for text messaging)],
used their cell phones during breaks[]” but that “he had no personal
knowledge for what purposes the other jurors used their cell phones.”
People v Garay, 320 Mich App 29, 41 (2017).
A juror’s statements to other jurors during deliberations “that he

knew [a testifying officer] well, that [the officer] was an expert in
firearms, and that they could be extremely confident in [the officer’s]
testimony[]” did not constitute an extraneous influence on the jury
because the statements “were based on [the juror’s] own personal
knowledge of and experience with the officer[,]” and thus constituted
an “[i]nternal matter[][, which] include[s] the general body of
experiences that jurors are understood to bring with them to the jury
room.” Garay, 320 Mich App at 41-42. “While [the juror] should have
disclosed his relationship with [the officer] during voir dire, [his]
statements did not provide him or the other jurors with any
knowledge regarding [the victim’s] murder.” Id. at 42.
The jury’s use of a dictionary to define a relevant legal term is error,

but is not per se prejudicial. People v Messenger, 221 Mich App 171,
175-177 (1997) (holding that the jury’s use of a dictionary definition of
“premeditation” did not constitute prejudicial error because the
relevant jury instructions were substantively identical to the
dictionary definition).
A collective reenactment by the jury with a gun as to where the victim

was likely sitting and where the gun should have fallen was not a
sufficient basis for a new trial because the reenactment was based on
trial testimony. People v Fletcher (Michael), 260 Mich App 531, 541-544
(2004). The Court of Appeals distinguished this conduct from a
reenactment or experiment that takes into account “matters
extraneous to the trial testimony.” Id. at 543.
“Assuming arguendo that [a juror’s experimental attempt to recreate

the crime scene in his own home] constituted an improper extraneous
influence on the jury,” there was no “real and substantial possibility”
that the juror’s experiment affected the jury’s verdict where the juror
did not share the results of his experiment with the other jurors.
People v Stokes (Stokes II), 500 Mich 918 (2017).
D. Requests to Review Testimony or Evidence

If, after retiring to deliberate, the jury requests to review any
testimony or evidence that has not been allowed into the jury room
under MCR 2.513(O), “the court must exercise its discretion to ensure
fairness and to refuse unreasonable requests, but it may not refuse a
reasonable request.” MCR 2.513(P).
If a court decides to permit the jury to review requested testimony or

evidence, it “may make a video or audio recording of witness
testimony, or prepare an immediate transcript of such testimony, and
such tape or transcript, or other testimony or evidence, may be made
available to the jury for its consideration.” MCR 2.513(P).
If a court decides not to permit the jury to review requested testimony

or evidence, it may order the jury to continue deliberating, “as long as
the possibility of having the testimony or evidence reviewed at a later
time is not foreclosed.” MCR 2.513(P).
It may not constitute an abuse of discretion for a trial court to deny a

jury’s request for a copy of the entire transcript after deliberating for
only a short time. People v Holmes, 482 Mich 1105, 1105 (2008); People v
McDonald (Deandre), 293 Mich App 292, 297 (2011).
12.14 Hung Jury
A. Instructions
Before the jury begins deliberating, the judge should instruct the jury
pursuant to M Crim JI 3.11. See People v Galloway (John), 307 Mich App
151, 158 (2014), rev’d in part on other grounds 498 Mich 902 (2015).72
“When it appears that a deliberating jury has reached an impasse, or
is otherwise in need of assistance, the court may invite the jurors to
list the issues that divide or confuse them in the event that the judge
can be of assistance in clarifying or amplifying the final instructions.”

MCR 2.513(N)(4). Upon indication that the jury is deadlocked, the

judge should instruct the jury pursuant to M Crim JI 3.12. Galloway
(John), 307 Mich App at 152, 158-159, 166 (noting that “the trial court
unnecessarily supplemented the standard deadlocked-jury
instruction” when it “advis[ed] the jury that it could conduct an
internal poll to determine whether its members believed they could
reach a verdict,” and cautioning that “the safest course to avoid juror
coercion [under these circumstances] is to read the standard jury
instructions”) (citations omitted).
If it appears the jury is unable to reach a verdict after having been

given M Crim JI 3.12, the court should have the jury return and then
question the foreperson on the record to determine whether it
appears that it is impossible for the jury to reach a verdict; the trial
court should not ask how the jury’s voting stands. People v Hickey, 103
Mich App 350, 353 (1981); see also People v Wilson (Albert), 390 Mich
689, 692 (1973).
Committee Tip:
Possible questions include:
• Is the jury deadlocked?
• How long has it been deadlocked?
• Has there been any change in the voting one
way or the other?
• Do the jurors appear to have fundamental
differences that cannot be resolved?
• Also, ask counsel if they wish to inquire of the
foreperson.
Generally, comments made to the jury by the trial court before

delivering M Crim JI 3.12 that do not represent a substantial
departure from the instruction will not require reversal of a
defendant’s conviction. People v Rouse (Rouse II), 477 Mich 1063, 1063
(2007) (adopting the rationale of the dissenting opinion in People v
Rouse (Rouse I), 272 Mich App 665, 675-677 (2006) (opinion by Jansen,
J.). In Rouse I, the judge’s extraneous comments included reference to
the fact that if the jury was unable to reach a verdict, the defendant

would have to be retried and all involved would be required to “‘go[]

through this entire process again with another jury.’” People v Rouse
(Rouse I), 272 Mich App 665, 667 (2006) (opinion of the Court). The
Court of Appeals majority concluded that the trial court’s comments
constituted a coercive supplemental instruction. Id. at 672-673. The
Michigan Supreme Court reversed “for the reasons stated in the
Court of Appeals dissenting opinion[.]” Rouse II, 477 Mich at 1063. In
concluding that the trial court’s comments did not represent a
substantial departure from the standard instruction, the dissenting
judge stated:
“Before reading [M Crim JI 3.12] to the jury, the trial

court advised the jury that if it did not reach a verdict, a
new trial would be required. However, immediately
thereafter, the trial court emphasized that no juror
should change his or her honest beliefs simply for the
sake of reaching a verdict. The trial court then read [M
Crim JI 3.12], which also cautions that a juror should not
relinquish his or her honest beliefs simply to reach a
verdict. Contrary to [the] defendant’s assertion, the jury
did not return its verdict shortly after hearing these
instructions. Instead, the jury deliberated for
approximately five more hours. During this time span,
the jury responded to an inquiry from the trial court by
indicating that it wished to continue deliberating.
The trial court’s remarks did not appeal to the jury’s

sense of civic duty and did not suggest a failure of
purpose. Nor did the trial court’s remarks coerce the
jurors by informing them that they were required to
reach a verdict. Quite simply, the trial court’s statement
that another trial would be necessary if the jury could
not reach a verdict did not suggest that the jury should
take a different approach to its deliberations.
Accordingly, the remarks did not constitute a
substantial departure from the instruction mandated by
[People v Sullivan (Charles), 392 Mich 324, 341-342
(1974)].” Rouse I, 272 Mich App at 676-677 (citation
omitted).
B. Discharge of Hung Jury and Mistrial73

The court may declare a mistrial and discharge the jury “after
determining that the jury is deadlocked or that some other manifest
necessity exists[.]” MCR 6.420(D). “Before ordering a mistrial, the
73 See Section 12.17 for discussion of mistrial and the double jeopardy implications of declaring a mistrial.

court must, on the record, give each defendant and the prosecutor an
opportunity to comment on the propriety of the order, to state
whether that party consents or objects, and to suggest alternatives.”
MCR 6.417.
If the jury is discharged, the court may order a new trial before a new
jury. MCR 2.514(C). “The decision to declare a mistrial after a finding
of manifest necessity because of a deadlocked jury is entrusted to the
‘“sound discretion of the trial court.”’” People v Ackah-Essien, 311 Mich
App 13, 31 (2015), quoting People v Lett, 466 Mich 206, 216-217 (2002),
aff’d sub nom Renico v Lett, 559 US 766 (2010) (additional citation
omitted).
“[A] trial court, before declaring a mistrial because of a hung jury, [is
not required] to consider any particular means of breaking the
impasse[ or] to consider giving the jury new options for a verdict.”
Blueford v Arkansas, 566 US 599, 609 (2012), citing Renico, 559 US at
773-774. Blueford was decided before MCR 6.417 was adopted; it is
unclear whether the court rule provides heightened protections for
the defendant in this regard.
Committee Tip:
If the trial court decides to declare a mistrial,
explain to the jury on the record that the
declaration of a mistrial is discretionary with the
court, and that the court is exercising its
discretion in light of the information received
regarding the state of the jury deliberations.
C. Multiple Defendants
“If two or more defendants are jointly on trial, the jury at any time
during its deliberations may return a verdict with respect to any
defendant as to whom it has agreed.” MCR 6.420(B). However, “[i]f
the jury cannot reach a verdict with respect to any other defendant,
the court may declare a mistrial as to that defendant. Id.
D. Multiple Charges—Verdict on One or More Counts But Not

All
Where a defendant is charged with multiple counts and the jury
reaches a unanimous verdict on any of the counts, the court may
accept the jury’s verdict with regard to that count or those counts,

even if the jury is unable to reach a unanimous verdict on all counts

charged against the defendant. Specifically, MCR 6.420(C) states:
“If a defendant is charged with two or more counts, and

the court determines that the jury is deadlocked so that
a mistrial must be declared, the court may inquire of the
jury whether it has reached a unanimous verdict on any
of the counts charged, and, if so, may accept the juryʹs
verdict on that count or counts.”
Where a jury, before returning to deliberations, verbally reported that

it had voted unanimously against guilt on two charges, was
deadlocked on one lesser charge, and had not yet considered a fourth
lesser charge, the jury’s announcement did not constitute an acquittal
of the greater charges, and retrial on all four charges was not barred
after the trial court eventually declared a mistrial because the jury
remained hopelessly deadlocked. Blueford, 566 US at 601, 610.
Although the jury was instructed to consider the offenses in order,
from greater to lesser, and to proceed to each lesser offense only after
agreeing that the defendant was not guilty of the greater offenses,
“the foreperson’s announcement of the jury‘s unanimous votes on
capital and first-degree murder [did not] represent[] . . . a resolution
of some or all of the elements of those offenses in [the defendant’s]
favor.” Id. at 606. “The foreperson’s report was not a final resolution of
anything[,] . . . [and t]he jurors in fact went back to the jury room to
deliberate further, even after the foreperson had delivered her
report[;]” because it was possible for the “jury to revisit the offenses of
capital and first-degree murder, notwithstanding its earlier votes[,] . .
. the foreperson’s report prior to the end of deliberations lacked the
finality necessary to amount to an acquittal on those offenses[.]” Id. at
606, 608.
E. Standard of Review
A trial court’s declaration of a mistrial on the basis that the jury is
unable to reach a unanimous verdict is reviewed for an abuse of
discretion. Lett, 466 Mich at 208.
12.15 Verdict
A. Unanimity Requirement and Alternate Theories of the

Offense
“A jury verdict must be unanimous.” MCR 6.410(B). “This mandate
implicitly prohibits a stipulation or waiver to a less than unanimous
verdict.” 1989 Staff Comment to MCR 6.410.

When the prosecution “offers evidence of multiple acts by a

defendant, each of which would satisfy the actus reus element of a
single charged offense, the trial court is required to instruct the jury
that it must unanimously agree on the same specific act if the acts are
materially distinct or if there is reason to believe the jurors may be
confused or disagree about the factual basis of the defendant’s guilt.”
People v Cooks, 446 Mich 503, 530 (1994). “When neither of these
factors is present . . . a general instruction to the jury that its verdict
must be unanimous does not deprive the defendant of his [or her]
right to a unanimous verdict.” Id.
“[A]lternate theories of a defendant’s state of mind relate to a single

element of a single offense.” People v Johnson (William), 187 Mich App
621, 629 (1991). “When a statute lists alternative means of committing
an offense which in and of themselves do not constitute separate and
distinct offenses, jury unanimity is not required with regard to the
alternate theory.” Id. at 629-630. For example, the mental state of
malice necessary to support a conviction for second-degree murder
may be established in three ways: (1) by proof that the defendant
acted with an intent to kill; (2) by proof that the defendant acted with
an intent to inflict great bodily harm; or (3) by proof that the
defendant acted with wanton and willful disregard of the likelihood
that the natural tendency of his behavior would cause death or great
bodily harm. Id. at 629. Where the trial court instructed the jurors that
it was unnecessary that they unanimously agree on which of those
three alternative states of mind the defendant held so long as they
unanimously agreed that the defendant acted with one of those states
of mind, the defendant’s right to a unanimous verdict was not
violated. Id. at 629-630.
Similarly, where the defendant was charged with unlawful

imprisonment and the jury was given the option to convict “on the
basis of either [the] defendant’s restraint of the victim by means of a
weapon or dangerous instrument, [MCL 750.349b(1)(a),] or on [the]
defendant’s restraint of the victim in order to facilitate the
commission of another felony, [MCL 750.349b(1)(c),]” a specific
unanimity instruction was not required because MCL 750.349b
“expressly provides alternative theories under which a defendant
may be convicted.” People v Chelmicki, 305 Mich App 58, 67-68 (2014),
citing Cooks, 446 Mich at 515, and Johnson (William), 187 Mich App at
629-630.
Bodily injury, mental anguish, and the other conditions listed in the
definition of personal injury, MCL 750.520a(n),74 are merely different
ways of defining the single element of personal injury for the crime of
first-degree criminal sexual conduct; therefore, these listed conditions
74 Formerly MCL 750.520a(j).

should not be construed to represent alternative theories upon which

jury unanimity is required. People v Asevedo, 217 Mich App 393, 397
(1996). Accordingly, if the evidence of any one of the listed conditions
is sufficient, then the element of personal injury has been proven. Id.
at 397.
The jury does not have to unanimously decide whether the defendant
was the principal or an aider and abettor where both theories are
supported by the evidence. People v Smielewski (Timothy Richard), 235
Mich App 196, 201-203 (1999).
B. Inconsistent and Mutually Exclusive Verdicts

“[C]onsistency in jury verdicts is not necessary.” People v Russell
(Fred), 297 Mich App 707, 722 (2012), citing People v Vaughn (Marcus),
409 Mich 463, 465-467 (1980); see also Dunn v United States, 284 US
390, 393 (1932). “Each count in an indictment is regarded as if it was a
separate indictment.” Dunn, 284 US at 393. “[A]n apparent
inconsistency between a jury’s verdict of acquittal on some counts
and its failure to return a verdict on other counts [does not] affect[]
the preclusive force of the acquittals under the Double Jeopardy
Clause of the Fifth Amendment.” Yeager v United States, 557 US 110,
112 (2009).
“Juries are not held to any rules of logic nor are they required to
explain their decisions.” Vaughn (Marcus), 409 Mich at 466. “The
ability to convict or acquit another individual of a crime is a grave
responsibility and an awesome power.” Id. “An element of this power
is the jury’s capacity for leniency.” Id. Conversely, “a trial judge sitting
as the trier of fact may not enter an inconsistent verdict.” People v
Walker (Alonzo), 461 Mich 908, 908 (1999).
Generally, an inconsistent verdict arises in a situation where the jury

acquits the defendant of one charge and convicts him or her of
another even though the acquittal on one charge renders it impossible
for the jury to have found the existence of all the elements of the
charge on which it convicts; for example, where a defendant is
acquitted of an underlying felony charge but convicted of felony-
firearm. People v Davis (Joel), 320 Mich App 484, 491 (2017) (noting that
“[i]n these circumstances, it is easily surmised that the jury did its job
but acted leniently”), vacated in part on other grounds ___ Mich ___
(2019)75.
75“[A]
prior Court of Appeals decision that has been reversed on other grounds has no precedential
value . . . . [W]here the Supreme Court reverses a Court of Appeals decision on one issue and does not
specifically address a second issue in the case, no rule of law remains from the Court of Appeals decision.”
Dunn v Detroit Auto Inter-Ins Exch, 254 Mich App 256, 262 (2002). See also MCR 7.215(J)(1). However, its
analysis may still be persuasive. See generally Dunn, 254 Mich App at 263-266.

Distinct from an inconsistent verdict is a mutually exclusive verdict.

See People v Williams (Kathleen), 323 Mich App 202, 208 n 4 (2018). “A
mutually exclusive verdict occurs when a guilty verdict on one count
requires a finding of fact that ‘negatives some fact essential to a
finding of guilty on a second count[.]’” Id., quoting United States v
Daigle, 149 F Supp 409, 414 (D DC, 1957). Examples of mutually
exclusive verdicts requiring one of the convictions to be vacated
include:
• Larceny from the person, MCL 750.357, and larceny in a

building, MCL 750.360. Williams (Kathleen), 323 Mich
App at 211. “[A]lthough a defendant may be charged
with [both of] these offenses in the alternative with
regard to the same larceny, he or she may not be
convicted of both.” Id. “The fact that the victim of a
larceny from the person is in a building at the time of the
larceny is not sufficient to convict of larceny in a
building.” Id.
• Felonious assault, MCL 750.82, and assault with intent to

do great bodily harm (AWIGBH) less than murder, MCL
750.84(1)(a). People v McKewen, ___ Mich App ___, ___
(2018). “By convicting defendant on [the charge of
AWIGBH], [the jury] made a finding–one we may not
disturb–that defendant acted with the intent to do great
bodily harm. But that finding is inconsistent with
felonious assault as defined by MCL 750.82.” McKewen,
___ Mich App at ___. “[T]he proper action for the trial
court is to enter judgment of conviction on the AWIGBH
charge, but not on felonious assault, even though the
jury found defendant guilty of both.” Id. at ____ (it was
problematic that the trial court did not instruct on
negative elements because “two crimes [were] charged
based on the same conduct, one of which [had] a
negative element that is the direct opposite of a positive
element of the other charge,” and “the lack of instruction
on the negative element deprive[d] the jury of
knowledge that their verdicts [were] inconsistent”).
“[T]he Court of Appeals erred by relying on the principle of mutually

exclusive verdicts to vacate [only] defendant’s aggravated domestic
assault conviction” where the defendant challenged his aggravated
domestic violence and assault with intent to do great bodily harm
(AWIGBH) convictions under double-jeopardy principles. People v
Davis (Joel), ___ Mich ___, ___ (2019). Although “the statutory
language of AWIGBH requires a defendant to commit assault with the
specific intent to do great bodily harm, whereas the statutory
language of aggravated domestic assault requires a defendant to
commit assault without the intent to commit great bodily harm,” “the
jury was not instructed that it must find that defendant acted without

the intent to inflict great bodily harm” relative to the aggravated

domestic assault charge. Id. at ___ (“the jury was instructed that to
convict defendant of AWIGBH, it must find that defendant acted
‘with intent to do great bodily harm . . .’”). Therefore, “the jury never
found that defendant acted without the intent to inflict great bodily
harm,” and his “guilty verdict for [aggravated domestic violence] was
not mutually exclusive to [his] guilty verdict for AWIGBH, where the
jury affirmatively found that defendant acted with intent to do great
bodily harm.” Id. at ___ (remanded to address the merits of
defendant’s double-jeopardy argument).
C. Several Counts
A verdict must be returned on each count if there is more than one
count; a general verdict of guilty cannot be received. People v Huffman,
315 Mich 134, 137-139 (1946).
MCR 6.420(C) allows a jury deadlocked on one or more of multiple

charges to issue verdicts on those counts on which it can reach a
unanimous verdict.
A verdict form is defective if it does not give the jury the opportunity
to return a general verdict of not guilty or to find the defendant not
guilty on each count. People v Wade (Michael), 283 Mich App 462, 468
(2009) (reversing the defendant’s conviction where the verdict form
only gave the jury the options of finding the defendant guilty or not
guilty of first-degree murder, guilty of second-degree murder, or
guilty of involuntary manslaughter; the jury was not given the
opportunity to find the defendant generally not guilty, or not guilty of
the lesser included offenses).
D. Use of Special Verdicts

“The court may require the jury to return a special verdict in the form
of a written finding on each issue of fact, rather than a general
verdict.” MCR 2.515(A). The form of a special verdict must be settled
on the record or in writing, “in advance of argument and in the
absence of the jury[.]” Id. MCR 2.515(A) provides, in part:
“The court may submit to the jury:
(1) written questions that may be answered

categorically and briefly;
(2) written forms of the several special findings

that might properly be made under the pleadings
and evidence; or

(3) the issues by another method, and require the

written findings it deems most appropriate.”
The court must adequately instruct the jury on the matter submitted
so that the jury is able to make findings on each issue. MCR 2.515(A).
The court must enter judgment in accordance with the special verdict.
MCR 2.515(B).
Where the court omits from the special verdict form an issue of fact
that was raised in the pleadings or the evidence, a party must demand
its submission before the jury retires, or else the party is deemed to
have waived the right to a jury trial on that issue. MCR 2.515(C). “The
court may make a finding with respect to an issue omitted without a
demand. If the court fails to do so, it is deemed to have made a
finding in accord with the judgment on the special verdict.” Id.
E. Polling
MCR 6.420(D) provides:
“Before the jury is discharged, the court on its own

initiative may, or on the motion of a party must, have
each juror polled in open court as to whether the verdict
announced is that juror’s verdict. If polling discloses the
jurors are not in agreement, the court may (1)
discontinue the poll and order the jury to retire for
further deliberations, or (2) either (a) with the
defendant’s consent, or (b) after determining that the
jury is deadlocked or that some other manifest necessity
exists, declare a mistrial and discharge the jury.”
The option “permitting the court to ‘discontinue the poll and order
the jury to retire for further deliberations’ requires the court to cut off
the polling as soon as disagreement is disclosed. The court should not
allow the polling to continue because of its potentially coercive effect.
Nor, for the same reason, should the court question the jury to
determine where the jury stands numerically. See [People v Wilson
(Albert), 390 Mich 689, 692 (1973)].” 1989 Staff Comment to MCR
6.420.
A jury verdict in a criminal case becomes final when it is announced

in open court, assented to by the jury, and accepted by the trial court.
People v Henry (Rahiem), 248 Mich App 313, 319-320 n 19 (2001); see
also MCR 6.420(A). But a jury may change the form and substance of
its verdict to coincide with its intent if the jury has not yet been
discharged. Henry (Rahiem), 248 Mich App at 320 n 20. Before being
discharged, a jury may return to deliberations after announcing a
verdict and polling discloses lack of unanimity. MCR 6.420(D). The
jury cannot be reconvened after being discharged in a criminal case.

Henry (Rahiem), 248 Mich App at 320.
Committee Tip:
Because the jury cannot be reconvened after
being discharged, trial judges should individually
poll jurors in every case, even if the attorneys do
not request it.
12.16 No-Impeachment Rule

The “no-impeachment rule” generally prohibits impeachment of a jury
verdict based on statements or incidents occurring during deliberations.
Peña-Rodriguez v Colorado, 580 US ___, ___ (2017). Michigan’s no-
impeachment rule, MRE 606(b), provides:
“Inquiry into validity of verdict or indictment. Upon an

inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring
during the course of the jury’s deliberations or to the effect of
anything upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict
or indictment or concerning the juror’s mental processes in
connection therewith. But a juror may testify about (1)
whether extraneous prejudicial information was improperly
brought to the jury’s attention, (2) whether any outside
influence was improperly brought to bear upon any juror, or
(3) whether there was a mistake in entering the verdict onto
the verdict form. A juror’s affidavit or evidence of any
statement by the juror may not be received on a matter about
which the juror would be precluded from testifying.”
The no-impeachment rule is subject to a constitutional exception “when,

after the jury is discharged, a juror comes forward with compelling
evidence that another juror made clear and explicit statements indicating
that racial animus was a significant motivating factor in his or her vote to
convict.” Peña-Rodriguez, 580 US at ___. “[W]here a juror makes a clear
statement that indicates he or she relied on racial stereotypes or animus
to convict a criminal defendant, the Sixth Amendment requires that the
no-impeachment rule give way in order to permit the trial court to
consider the evidence of the juror’s statement and any resulting denial of
the jury trial guarantee.” Id. at ___. “Not every offhand comment
indicating racial bias or hostility will justify setting aside the no-

impeachment bar to allow further judicial inquiry[; rather, f]or the

inquiry to proceed, there must be a showing that one or more jurors
made statements exhibiting overt racial bias that cast serious doubt on
the fairness and impartiality of the jury’s deliberations and resulting
verdict[, and] . . . the statement must tend to show that racial animus was
a significant motivating factor in the juror’s vote to convict.” Id. at ___.
“Whether that threshold showing has been satisfied is a matter
committed to the substantial discretion of the trial court in light of all the
circumstances, including the content and timing of the alleged
statements and the reliability of the proffered evidence.” Id. at ___.
12.17 Mistrial and Double Jeopardy Implications of Mistrial

Declaration76
A. Determination and Permissibility of Retrial

A mistrial should be granted only for an irregularity that is
prejudicial to the defendant’s rights and impairs the defendant’s
ability to get a fair trial. People v Alter, 255 Mich App 194, 205 (2003);
People v Haywood (David), 209 Mich App 217, 228 (1995). “A mistrial
should be granted only where the error complained of is so egregious
that the prejudicial effect can be removed in no other way.” People v
Gonzales (Ronnie), 193 Mich App 263, 266 (1992). “Before ordering a
mistrial, the court must, on the record, give each defendant and the
prosecutor an opportunity to comment on the propriety of the order,
to state whether that party consents or objects, and to suggest
alternatives.” MCR 6.417.
A motion for mistrial raises the issue of double jeopardy, because the
federal and state constitutions prohibit twice placing an individual in
jeopardy of life or limb for the same offense. US Const, Am V; Const
1963, art 1, § 15. As summarized in People v Ackah-Essien, 311 Mich
App 13, 32 (2015):
“Generally, jeopardy attaches in a jury trial once the jury

is empaneled and sworn.[77] [People v Mehall, 454 Mich 1,
4 (1997)]. Once jeopardy attaches, the defendant has a
constitutional right to have his or her case completed
and decided by that tribunal. [People v Henry (Rahiem),
248 Mich App 313, 318 (2001)]. ‘If the trial is concluded
prematurely, a retrial for that offense is prohibited
unless the defendant consented to the interruption or a
76 See Section 9.10 for additional discussion of double jeopardy.
77
In a bench trial, jeopardy attaches when the court begins to hear evidence. People v Robbins (Darrell),
223 Mich App 355, 362 (1997).

mistrial was declared because of a manifest necessity.’

[Mehall, 454 Mich at 4]. A jury’s inability to reach a
unanimous verdict is one circumstance that constitutes
a manifest necessity permitting retrial. Id. Indeed, a
‘hung jury’ is the ‘prototypical example’ of a situation
when the ‘manifest necessity’ standard is satisfied with
respect to granting a mistrial and permitting retrial.
[People v Lett, 466 Mich 206, 217 (2002), aff’d sub nom
Renico v Lett, 559 US 766 (2010)] (quotation marks
omitted), quoting [Oregon v Kennedy, 456 US 667, 672
(1982)]. ‘Necessarily intertwined with the constitutional
[double jeopardy] issue . . . is the threshold issue
whether the trial court properly declared a mistrial.’
[Lett, 466 Mich at 213].”
A mistrial granted on the defendant’s motion or with his or her

consent waives double jeopardy protections unless the motion or
consent is prompted by prosecutorial conduct intended to goad the
defendant into the mistrial request. Kennedy, 456 US at 669, 675-676,
679 (where the prosecutor did not intend to provoke a mistrial when
he asked a prosecution witness if the reason the witness had not done
business with the defendant was because the defendant was “‘a
crook[,]’” the double jeopardy clause did not bar retrial after the
defendant successfully moved for a mistrial).
B. Retrial Following Mistrial Due to Hung Jury

“The decision to declare a mistrial after a finding of manifest
necessity because of a deadlocked jury is entrusted to the ‘“sound
discretion of the trial court.”’” Ackah-Essien, 311 Mich App at 31
(2015), quoting Lett, 466 Mich at 216-217 (2002) (additional citation
omitted). “[A] trial court, before declaring a mistrial because of a
hung jury, [is not required] to consider any particular means of
breaking the impasse[ or] to consider giving the jury new options for
a verdict.” Blueford v Arkansas, 566 US 599, 609 (2012), citing Lett, 559
US at 773-774. Blueford was decided before MCR 6.417 was adopted; it
is unclear whether the court rule provides heightened protections for
the defendant in this regard.
Retrial after a mistrial due to a deadlocked jury does not violate the
Double Jeopardy Clause. Lett, 559 US at 773. “A ‘mistrial premised
upon the trial judge’s belief that the jury is unable to reach a verdict
[has been] long considered the classic basis for a proper mistrial.’” Id.
at 774, quoting Arizona v Washington, 434 US 497, 509 (1978). In Renico,
559 US at 775, quoting Washington, 434 US at 517, the United States
Supreme Court reiterated its holding “that a trial judge declaring a
mistrial is not required to make explicit findings of “‘“manifest
necessity”’” nor to ‘articulate on the record all the factors which

informed the deliberate exercise of his [or her] discretion.’” The

United States Supreme Court has “never required a trial judge, before
declaring a mistrial based on jury deadlock, to force the jury to
deliberate for a minimum period of time, to question the jurors
individually, to consult with (or obtain the consent of) either the
prosecutor or defense counsel, to issue a supplemental jury
instruction, or to consider any other means of breaking the impasse.”
Renico, 559 US at 775. In fact, the United States Supreme Court has
never “‘overturned a trial court’s declaration of a mistrial after a jury
was unable to reach a verdict on the ground that the “manifest
necessity” standard had not been met.’” Id., quoting Winston v Moore,
452 US 944, 947 (1981).
Where, “[b]efore the jury concluded deliberations . . . , [the jury

foreperson] reported that [the jury] was unanimous against guilt on
charges of capital murder and first-degree murder, was deadlocked
on manslaughter, and had not voted on negligent homicide[,]” and
where the jury then continued deliberations before a mistrial was
declared because the jury remained hopelessly deadlocked, the
Double Jeopardy Clause did not bar the defendant’s retrial on all of
the charged offenses. Blueford, 566 US at 601, 610. Although the jury
was instructed to consider the offenses in order, from greater to lesser,
and to proceed to each lesser offense only after agreeing that the
defendant was not guilty of the greater offenses, “the foreperson’s
announcement of the jury‘s unanimous votes on capital and first-
degree murder [did not] represent[] . . . a resolution of some or all of
the elements of those offenses in [the defendant’s] favor.” Id. at 606.
“The foreperson’s report was not a final resolution of anything[,] . . .
[and t]he jurors in fact went back to the jury room to deliberate
further, even after the foreperson had delivered her report[;]” because
it was possible for the “jury to revisit the offenses of capital and first-
degree murder, notwithstanding its earlier votes[,] . . . the
foreperson’s report prior to the end of deliberations lacked the finality
necessary to amount to an acquittal on those offenses[.]” Id. at 606,
608.
C. Examples of Other Common Bases for Mistrial Motions

Defendant’s incompetence. If the issue of the defendant’s
competence to stand trial arises during trial, “the court may,
consonant with double jeopardy considerations, declare a mistrial.”
MCR 6.125(B).
Juror misconduct. “A trial court’s denial of a motion for a mistrial

based on juror misconduct is an abuse of discretion only where the
misconduct was such that it affected the impartiality of the jury or
disqualified its members from exercising the powers of reason and
judgment.” People v Messenger, 221 Mich App 171, 175 (1997). “A new

trial will not be granted if no substantial harm was done thereby to

the defendant, even though the misconduct may merit a rebuke from
the trial court if brought to its notice.” Id.
Reference to polygraph test. Reference to a polygraph test is

normally inadmissible before a jury, People v Nash, 244 Mich App 93,
97 (2000), and may constitute grounds for the declaration of mistrial,
People v Smith (Kerry), 211 Mich App 233, 234-235 (1995). However, an
inadvertent, unsolicited mention by a witness that a polygraph was
administered does not necessarily require declaration of a mistrial.
People v Ortiz-Kehoe, 237 Mich App 508, 514 (1999). “[F]actors that can
be considered when deciding whether a trial court abused its
discretion in failing to grant a mistrial when a witness has mentioned
a polygraph[ include]:
“‘(1) [W]hether [the] defendant objected and/or sought a

cautionary instruction; (2) whether the reference was
inadvertent; (3) whether there were repeated references;
(4) whether the reference was an attempt to bolster the
witness’s credibility; and (5) whether the results of the
test were admitted rather than merely the fact that a test
had been conducted.’” Ortiz-Kehoe, 237 Mich App at 514
(citation omitted; first alteration in original).
Unresponsive testimony. Generally, “‘unresponsive testimony by a

prosecution witness does not justify a mistrial unless the prosecutor
knew in advance that the witness would give the unresponsive
testimony or the prosecutor conspired with or encouraged the
witness to give that testimony[.]’” People v Jackson (Kevin) (On
Reconsideration), 313 Mich App 409, 427 (2015) (citation omitted).
The trial court’s decision on a motion for mistrial is reviewed for an
abuse of discretion. Alter, 255 Mich App at 205. A trial court should
grant a mistrial only for an irregularity that is prejudicial to the rights
of the defendant and impairs his or her ability to get a fair trial. Id.

Glossary
A
Accused
• For purposes of the Code of Criminal Procedure, person,

accused, or a similar word means “an individual or, unless a
contrary intention appears, a public or private corporation,
partnership, or unincorporated or voluntary association.” MCL
761.1(p).
Alcoholic liquor
• For purposes of MCL 8.9(10)(c), alcoholic liquor means “that

term as defined in . . . MCL 436.1105.” MCL 8.9(10)(c)(i).
• For purposes of the MCL 768.37, alcoholic liquor means “that

term as defined in . . . MCL 436.1105.” MCL 768.37(3)(a).
• For purposes of the Michigan Vehicle Code, alcoholic liquor

means “any liquid or compound, whether or not medicated,
proprietary, patented, and by whatever name called, containing
any amount of alcohol including any liquid or compound
described in . . . [MCL 436.1105(2)].” MCL 257.1d.
• For purposes of the Natural Resources and Environmental

Protection Act, Part 801, Marine Safety, alcoholic liquor means
“that term as defined in . . . MCL 257.1d.” MCL 324.80101(b).
MCL 257.1d defines alcoholic liquor as “any liquid or
compound, whether or not medicated, proprietary, patented,
and by whatever name called, containing any amount of
alcohol including any liquid or compound described in . . .
[MCL 436.1105(2)].”
Appearance ticket
Michigan Judicial Institute Glossary-1

Criminal Proceedings Benchbook, Vol. 1
• For purposes of MCL 764.9c to MCL 764.9g, appearance ticket

means “a complaint or written notice issued and subscribed by
a police officer or other public servant authorized by law or
ordinance to issue it directing a designated person to appear in
a designated local criminal court at a designated future time in
connection with his or her alleged commission of a designated
violation or violations of state law or local ordinance for which
the maximum permissible penalty does not exceed 93 days in
jail or a fine, or both.” MCL 764.9f(1).
Appointing authority
• For purposes of the Deaf Persons’ Interpreters Act, appointing

authority means “a court or a department, board, commission,
agency, or licensing authority of this state or a political
subdivision of this state or an entity that is required to provide
a qualified interpreter in circumstances described under [MCL
393.503a].” MCL 393.502(a). MCL 393.503a provides that “[i]f
an interpreter is required as an accommodation for a deaf or
deaf-blind person under state or federal law, the interpreter
shall be a qualified interpreter.”
Arrest card
• For purposes of MCL 28.241 et seq. (governing criminal history

records of the Michigan State Police), arrest card means “a paper
form or an electronic format prescribed by the [Michigan State
Police] that facilitates the collection and compilation of criminal
and juvenile arrest history record information and biometric
data.” MCL 28.241a(a).
Assaultive crime
• For purposes of MCL 765.6b(6), assaultive crime means “that

term as defined in [MCL 770.9a.]” MCL 765.6b(6)(a). MCL
770.9a(3) defines assaultive crime as “an offense against a person
described in [MCL 750.81c(3), MCL 750.82, MCL 750.83, MCL
750.84, MCL 750.86, MCL 750.87, MCL 750.88, MCL 750.89,
MCL 750.90a, MCL 750.90b(a), MCL 750.90b(b), MCL 750.91,
MCL 750.200–MCL 750.212a, MCL 750.316, MCL 750.317, MCL
750.321, MCL 750.349, MCL 750.349a, MCL 750.350, MCL
750.397, MCL 750.411h(2)(b), MCL 750.411h(3), MCL 750.411i,
MCL 750.520b, MCL 750.520c, MCL 750.520d, MCL 750.520e,
MCL 750.520g, MCL 750.529, MCL 750.529a, MCL 750.530, or
MCL 750.543a–MCL 750.543z.]”
• For purposes of MCL 770.9a, assaultive crime means “an offense

against a person described in [MCL 750.81c(3), MCL 750.82,
MCL 750.83, MCL 750.84, MCL 750.86, MCL 750.87, MCL
Glossary-2 Michigan Judicial Institute

750.88, MCL 750.89, MCL 750.90a, MCL 750.90b(a), MCL

750.90b(b), MCL 750.91, MCL 750.200–MCL 750.212a, MCL
750.316, MCL 750.317, MCL 750.321, MCL 750.349, MCL
750.349a, MCL 750.350, MCL 750.397, MCL 750.411h(2)(b),
MCL 750.411h(3), MCL 750.411i, MCL 750.520b, MCL 750.520c,
MCL 750.520d, MCL 750.520e, MCL 750.520g, MCL 750.529,
MCL 750.529a, MCL 750.530, or MCL 750.543a–MCL 750.543z.”
MCL 770.9a(3).
Authorized user
• For purposes of MCR 1.109(G), authorized user “means a user of

the e-filing system who is registered to filed, serve, and receive
documents and related data through approved electronic
means. A court may revoke user authorization for good cause
as determined by the court, including but not limited to a
security breach.” MCR 1.109(G)(1)(a).
B
Before
• For purposes of the Code of Criminal Procedure, taken, brought,

or before “a magistrate or judge for purposes of criminal
arraignment or the setting of bail means either” physical
presence before a judge or district court magistrate or presence
before a judge or district court magistrate by use of 2-way
interactive video technology. MCL 761.1(t).
Bicycle
• For purposes of the Michigan Vehicle Code, bicycle means “a

device propelled by human power upon which a person may
ride, having either 2 or 3 wheels in a tandem or tricycle
arrangement, all of which are over 14 inches in diameter.” MCL
257.4.
Biometric data

records of the Michigan State Police), biometric data means “all
of the following:
(i) Fingerprint images recorded in a manner prescribed

by the [Michigan State Police].

(ii) Palm print images, if the arresting law enforcement

agency has the electronic capability to record palm print
images in a manner prescribed by the [Michigan State
Police].
(iii) Digital images recorded during the arrest or

booking process, including a full-face capture, left and
right profile, and scars, marks, and tattoos, if the
arresting law enforcement agency has the electronic
capability to record the images in a manner prescribed
by the [Michigan State Police].
(iv) All descriptive data associated with identifying

marks, scars, amputations, and tattoos.” MCL
28.241a(b).
Brought

C
Case or court proceeding
• For purposes of MCR 1.111, concerning foreign language

interpreters, case or court proceeding means “any hearing, trial,
or other appearance before any court in this state in an action,
appeal, or other proceeding, including any matter conducted
by a judge, magistrate, referee, or other hearing officer.” MCR
1.111(A)(1).
Certified foreign language interpreter

interpreters, certified foreign language interpreter means “a
person who has:
(a) passed a foreign language interpreter test

administered by the State Court Administrative Office
or a similar state or federal test approved by the state
court administrator,

(b) met all the requirements established by the state

court administrator for this interpreter classification,
and
(c) registered with the State Court Administrative

Office.” MCR 1.111(A)(4).
Citation
• For purposes of the Michigan Vehicle Code, citation means “a

complaint or notice upon which a police officer shall record an
occurrence involving 1 or more vehicle law violations by the
person cited.” MCL 257.727c(1)
Civil infraction
• For purposes of the Michigan Vehicle Code, civil infraction

means “an act or omission prohibited by law which is not a
crime as defined in . . . MCL 750.5 . . . and for which civil
sanctions may be ordered.” MCL 257.6a.
Commercial motor vehicle
• For purposes of the Michigan Vehicle Code, commercial motor

vehicle means “a motor vehicle or combination of motor
vehicles used in commerce to transport passengers or
property[,]” other than “a vehicle used exclusively to transport
personal possessions or family members for nonbusiness
purposes[,]” “if 1 or more of the following apply:
(a) It is designed to transport 16 or more passengers,

including the driver.
(b) It has a gross vehicle weight rating or gross vehicle

weight, whichever is greater, of 26,001 pounds or more.
(c) It has a gross combination weight rating or gross

combination weight, whichever is greater, of 26,001
pounds or more, inclusive of towed units with a gross
vehicle weight rating or gross vehicle weight, whichever
is greater, of more than 10,000 pounds.
(d) A motor vehicle carrying hazardous material and on

which is required to be posted a placard as defined and
required under 49 CFR parts 100 to 199.” MCL 257.7a.
Commercial quadricycle
• For purposes of the MVC, commercial quadricycle means “a

vehicle that satisfies all of the following:

(a) The vehicle has fully operative pedals for propulsion

entirely by human power.
(b) The vehicle has at least 4 wheels and is operated in a

manner similar to a bicycle.
(c) The vehicle has at least 6 seats for passengers.
(d) The vehicle is designed to be occupied by a driver

and powered either by passengers providing pedal
power to the drive train of the vehicle or by a motor
capable of propelling the vehicle in the absence of
human power.
(e) The vehicle is used for commercial purposes.
(f) The vehicle is operated by the owner of the vehicle or

an employee of the owner of the vehicle.” MCL 257.7b
Commercial vehicle
• For purposes of the Michigan Vehicle Code, commercial vehicle

“includes all motor vehicles used for the transportation of
passengers for hire, or constructed or used for transportation of
goods, wares, or merchandise, and all motor vehicles designed
and used for drawing other vehicles that are not constructed to
carry a load independently or any part of the weight of a
vehicle or load being drawn[, but] . . . does not include a
limousine operated by a limousine driver, a taxicab operated
by a taxicab driver, or a personal vehicle operated by a
transportation network company driver.” MCL 257.7.
Complaint
• For purposes of the Code of Criminal Procedure, complaint

means “a written accusation, under oath or upon affirmation,
that a felony, misdemeanor, or ordinance violation has been
committed and that the person named or described in the
accusation is guilty of the offense.” MCL 761.1(c).
Consumed
• For purposes of the Code of Criminal Procedure, consumed

means “to have eaten, drunk, ingested, inhaled, injected, or
topically applied, or to have performed any combination of
those actions, or otherwise introduced into the body.” MCL
768.37(3)(b).
Controlled substance

• For purposes of MCL 8.9(10)(c), controlled substance means “that

term as defined in . . . MCL 333.7104.” MCL 8.9(10)(c)(ii).
• For purposes of the MCL 768.37, controlled substance means

“that term as defined in . . . MCL 333.7104.” MCL 768.37(3)(c).
• For purposes of the Michigan Vehicle Code, controlled substance

means “a controlled substance or controlled substance
analogue as defined in . . . MCL 333.7104[.]” MCL 257.8b. MCL
333.7104(2) defines controlled substance as “a drug, substance, or
immediate precursor included in schedules 1 to 5 of [MCL
333.7201 et seq.].”

Protection Act, Part 801, Marine Safety, controlled substance
means “that term as defined in . . . MCL 333.7104.” MCL
324.80101(i). MCL 333.7104(2) defines controlled substance as “a
drug, substance, or immediate precursor included in schedules
1 to 5 of [MCL 333.7201 et seq.].”
Co-occurring disorder
• For purposes of Chapter 10C of the Revised Judicature Act of

1961 (juvenile mental health courts), co-occurring disorder
“means having 1 or more disorders relating to the use of
alcohol or other controlled substances of abuse as well as any
serious mental illness, serious emotional disturbance, or
developmental disability. A diagnosis of co-occurring disorders
occurs when at least 1 disorder of each type can be established
independent of the other and is not simply a cluster of
symptoms resulting from 1 disorder.” MCL 600.1099b(a).
Court records
• For purposes of the Michigan Court Rules, court records “are

recorded information of any kind that has been created by the
court or filed with the court in accordance with Michigan Court
Rules. Court records may be created using any means and may
be maintained in any medium authorized by these court rules
provided those records comply with other provisions of law
and these court rules.
(a) Court records include, but are not limited to:
(i) documents, attachments to documents,

discovery materials, and other materials filed with
the clerk of the court,
(ii) documents, recordings, data, and other

recorded information created or handled by the
court, including all data produced in conjunction

with the use of any system for the purpose of
transmitting, accessing, reproducing, or
maintaining court records.
(b) For purposes of [MCR 1.109(A)]:
(i) Documents include, but are not limited to,

pleadings, orders, and judgments.
(ii) Recordings refer to audio and video

recordings (whether analog or digital),
stenotapes, log notes, and other related
records.
(iii) Data refers to any information entered in

the case management system that is not
ordinarily reduced to a document but that is
still recorded information, and any data
entered into or created by the statewide
electronic-filing system.
(iv) Other recorded information includes, but

is not limited to, notices, bench warrants,
arrest warrants, and other process issued by
the court that do not have to be maintained on
paper or digital image.
(2) Discovery materials that are not filed with the

clerk of the court are not court records. Exhibits
that are maintained by the court reporter or other
authorized staff pursuant to MCR 2.518 or MCR
3.930 during the pendency of a proceeding are not
court records.” MCR 1.109(A).
Courtroom support dog
• For purposes of MCL 600.2163a, courtroom support dog

“means a dog that has been trained and evaluated as a support
dog pursuant to the Assistance Dogs International Standards
for guide or service work and that is repurposed and
appropriate for providing emotional support to children and
adults within the court or legal system or that has performed
the duties of a courtroom support dog prior to September 27,
2018.” MCL 600.2163a(1)(a).
Crime
• For purposes of the Crime Victim’s Rights Act, Article 1, crime

means “a violation of a penal law of this state for which the

offender, upon conviction, may be punished by imprisonment

for more than 1 year or an offense expressly designated by law
as a felony.” MCL 780.752(1)(b).
Criminal history record information

records of the Michigan State Police), criminal history record
information means “name; date of birth; personal descriptions
including identifying marks, scars, amputations, and tattoos;
aliases and prior names; social security number, driver’s license
number, and other identifying numbers; and information on
misdemeanor arrests and convictions and felony arrests and
convictions.” MCL 28.241a(d).
Culpable/culpability
• For purposes of MCL 8.9, culpable means “sufficiently

responsible for criminal acts or negligence to be at fault and
liable to punishment for commission of a crime.” MCL
8.9(10)(a).
D
Dangerous weapon
• For purposes of MCL 764.1f(2)(b), dangerous weapon means “1

or more of the following:
(i) A loaded or unloaded firearm, whether operable or

inoperable.
(ii) A knife, stabbing instrument, brass knuckles,

blackjack, club, or other object specifically designed or
customarily carried or possessed for use as a weapon.
(iii) An object that is likely to cause death or bodily

injury when used as a weapon and that is used as a
weapon or carried or possessed for use as a weapon.
(iv) An object or device that is used or fashioned in a

manner to lead a person to believe the object or device is
an object or device described in subparagraphs (i) to
(iii).”
Data

• For purposes of MCR 1.109(A)(1), in which the term court

records is defined, data “refers to any information entered in the
case management system that is not ordinarily reduced to a
document but that is still recorded information, and any data
entered into or created by the statewide electronic-filing
system.” MCR 1.109(A)(1)(b)(iii).
Dating relationship
• For purposes of MCL 764.15a(b), dating relationship means

“frequent, intimate associations primarily characterized by the
expectation of affectional involvement. This term does not
include a casual relationship or an ordinary fraternization
between 2 individuals in a business or social context.” MCL
764.15a(b).
• For purposes of MCL 780.582a(1)(b), dating relationship means

“that term as defined in . . . MCL 600.2950.” MCL
600.2950(30)(a) defines dating relationship as “frequent, intimate
associations primarily characterized by the expectation of
affectional involvement. Dating relationship does not include a
casual relationship or an ordinary fraternization between 2
individuals in a business or social context.”
Deaf person
• For purposes of the Deaf Persons’ Interpreters Act, deaf person

means “a person whose hearing is totally impaired or whose
hearing, with or without amplification, is so seriously impaired
that the primary means of receiving spoken language is
through other sensory input; including, but not limited to, lip
reading, sign language, finger spelling, or reading.” MCL
393.502(b).
Deaf-blind person
• For purposes of the Deaf Persons’ Intepreters Act, deaf-blind

person means “a person who has a combination of hearing loss
and vision loss, such that the combination necessitates
specialized interpretation of spoken and written information in
a manner appropriate to that person’s dual sensory loss.” MCL
393.502(c).
Deaf interpreter
• For purposes of the Deaf Persons’ Interpreters Act, deaf

interpreter or intermediary interpreter means “any person,
including any deaf or deaf-blind person, who is able to assist in
providing an accurate interpretation between spoken English

and sign language or between variants of sign language by

acting as an intermediary between a deaf or deaf-blind person
and a qualified interpreter.” MCL 393.502(e).
Defendant
• For purposes of the Crime Victim’s Rights Act, Article 1,

defendant means “a person charged with, convicted of, or found
not guilty by reason of insanity of committing a crime against a
victim.” MCL 780.752(1)(d).

defendant means “a person charged with or convicted of having
committed a serious misdemeanor against a victim.” MCL
780.811(1)(c).
Developmental disability

1961 (juvenile mental health courts), developmental disability
“means that term as defined in . . . MCL 330.1100a.” MCL
600.1099b(c).
District court magistrate
• For purposes of the Code of Criminal Procedure, magistrate

does not include a district court magistrate unless specifically
preceded by the words district court. See MCL 761.1(l).
Division
• For purposes of the Deaf Persons’ Interpreters Act, division

means “the division on deaf and hard of hearing of the
department of labor and economic growth.” MCL 393.502(d).
Document
• For purposes of the Michigan Court Rules, document means “a

record produced on paper or a digital image of a record
originally produced on paper or originally created by an
approved electronic means, the output of which is readable by
sight and can be printed to 8 1/2 x 11 inch paper without
manipulation.” MCR 1.109(B).

records is defined, documents “include, but are not limited to,
pleadings, orders, and judgments.” MCR 1.109(A)(1)(b)(i).
Domestic violence

• For purposes of MCL 765.6b(6), domestic violence means “that

term as defined in . . . MCL 400.1501.” MCL 400.1501(d) defines
domestic violence as “the occurrence of any of the following acts
by a person that is not an act of self-defense: (i) [c]ausing or
attempting to cause physical or mental harm to a family or
household member[;] (ii) [p]lacing a family or household
member in fear of physical or mental harm[;] (iii) [c]ausing or
attempting to cause a family or household member to engage
in involuntary sexual activity by force, threat of force, or
duress[;] [and/or] (iv) [e]ngaging in activity toward a family or
household member that would cause a reasonable person to
feel terrorized, frightened, intimidated, threatened, harassed,
or molested.”
Drug treatment court
• For purposes of MCL 600.1060 et seq., drug treatment court

means “a court supervised treatment program for individuals
who abuse or are dependent upon any controlled substance or
alcohol. A drug treatment court shall comply with the 10 key
components promulgated by the national association of drug
court professionals, which include all of the following essential
characteristics:
• (i) Integration of alcohol and other drug treatment services

with justice system case processing.
• (ii) Use of a nonadversarial approach by prosecution and

defense that promotes public safety while protecting any
participant’s due process rights.
• (iii) Identification of eligible participants early with prompt

placement in the program.
• (iv) Access to a continuum of alcohol, drug, and other related

treatment and rehabilitation services.
• (v) Monitoring of participants effectively by frequent alcohol

and other drug testing to ensure abstinence from drugs or
alcohol.
• (vi) Use of a coordinated strategy with a regimen of graduated

sanctions and rewards to govern the courtʹs responses to
participants’ compliance.
• (vii) Ongoing close judicial interaction with each participant

and supervision of progress for each participant.

• (viii) Monitoring and evaluation of the achievement of program

goals and the program’s effectiveness.
• (ix) Continued interdisciplinary education in order to promote

effective drug court planning, implementation, and operation.
• (x) The forging of partnerships among other drug courts,

public agencies, and community-based organizations to
generate local support.” MCL 600.1060(c).
DWI/sobriety court
• For purposes of MCL 600.1084, DWI/sobriety court means “the

specialized court docket and programs established within
judicial circuits and districts throughout this state that are
designed to reduce recidivism among alcohol offenders and
that comply with the 10 guiding principles of DWI courts as
promulgated by the National Center for DWI Courts.” MCL
600.1084(9)(a).
E
Electric bicycle
• For purposes of the Michigan Vehicle Code, electric bicycle

“means a device upon which an individual may ride that
satisfies all of the following:
(a) The device is equipped with all of the following:

(i) A seat or saddle for use by the rider.
(ii) Fully operable pedals for human propulsion.
(iii) An electric motor of not greater than 750 watts.
(b) The device falls within 1 of the following categories:
(i) Class 1 electric bicycle. As used in this subparagraph,

‘class 1 electric bicycle’ means an electric bicycle that is
equipped with an electric motor that provides
assistance only when the rider is pedaling and that
disengages or ceases to function when the electric
bicycle reaches a speed of 20 miles per hour.
(ii) Class 2 electric bicycle. As used in this

subparagraph, ‘class 2 electric bicycle’ means an electric
bicycle that is equipped with a motor that propels the

electric bicycle to a speed of no more than 20 miles per

hour, whether the rider is pedaling or not, and that
disengages or ceases to function when the brakes are
applied.
(iii) Class 3 electric bicycle. As used in this

subparagraph, ‘class 3 electric bicycle’ means an electric
bicycle that is equipped with a motor that provides
assistance only when the rider is pedaling and that
disengages or ceases to function when the electric
bicycle reaches a speed of 28 miles per hour.” MCL
257.13e.
Electric skateboard
• For purposes of the Michigan Vehicle Code, electric skateboard

“means a wheeled device that has a floorboard designed to be
stood upon when riding that is no more than 60 inches long
and 18 inches wide, is designed to transport only 1 person at a
time, has an electrical propulsion system with power of no
more than 2,500 watts, and has a maximum speed on a paved
level surface of not more than 25 miles per hour. An electric
skateboard may have handlebars and, in addition to having an
electrical propulsion system with power of no more than 2,500
watts, may be designed to also be powered by human
propulsion.” MCL 257.13f.
Electronic data
• For purposes of the Fourth Amendment Rights Protection Act,

electronic data means “information related to an electronic
communication or the use of an electronic communication
service, including, but not limited to, the contents, sender,
recipients, or format of an electronic communication; the
precise or approximate location of the sender or recipients of
an electronic communication at any time during the
communication; the time or date the communication was
created, sent, or received; and the identity of an individual or
device involved in the communication, including, but not
limited to, an internet protocol address. The term does not
include subscriber information.” MCL 37.262(a).
Electronic filing or e-filing
• For purposes of MCR 1.109(G), electronic filing or e-filing

“means the electronic transmission of data and documents to
the court through the electronic-filing system.” MCR
1.109(G)(1)(b).

Electronic-filing system
• For purposes of MCR 1.109(G), electronic-filing system “means a

system provided by the State Court Administrative Office that
permits electronic transmission of data and documents.” MCR
1.109(G)(1)(c).
Electronic monitoring device
• For purposes of MCL 765.6b(6), electronic monitoring device

“includes any electronic device or instrument that is used to
track the location of an individual or to monitor an individual’s
blood alcohol content, but does not include any technology that
is implanted or violates the corporeal body of the individual.”
MCL 765.6b(6)(c).
Electronic notification
• For purposes of MCR 1.109(G), electronic notification “means the

electronic transmission of information from the court to
authorized users through the electronic-filing system. This
does not apply to service of documents. See [MCR
1.109(G)(1)(f)].” MCR 1.109(G)(1)(d).
Electronic service or e-service
• For purposes of MCR 1.109(G), electronic service or e-service

“means the electronic service of information by means of the
electronic-filing system under [MCR 1.109]. It does not include
service by e-mail under MCR 2.107(C)(4).” MCR 1.109(G)(1)(e).
Electronic signature
• For purposes of the Michigan Court Rules, electronic signature

“means an electronic sound, symbol, or process, attached to or
logically associated with a record and executed or adopted by a
person with the intent to sign the record. The following form is
acceptable: /s/ John L. Smith.” MCR 1.109(E)(4)(a).
F
Felony

records of the Michigan State Police), felony means “a violation
of a penal law of this state for which the offender may be

punished by imprisonment for more than 1 year or an offense

expressly designated by law to be a felony.” MCL 28.241a(f).
• For purposes of the Code of Criminal Procedure, felony means

“a violation of a penal law of this state for which the offender,
upon conviction, may be punished by imprisonment for more
than 1 year or an offense expressly designated by law to be a
felony.” MCL 761.1(f).
• For purposes of the Michigan Penal Code, felony means “an

offense for which the offender, on conviction may be punished
by death, or by imprisonment in state prison.” MCL 750.7.
Financially able to pay for interpretation costs

interpreters, a person is financially able to pay for interpretation
costs if “the court determines that requiring reimbursement of
interpretation costs will not pose an unreasonable burden on
the person’s ability to have meaningful access to the court.”
MCR 1.111(A)(3). For purposes of MCR 1.111, a person is
financially able to pay for interpretation costs when:
“(a) The person’s family or household income is greater than

125% of the federal poverty level; and
(b) An assessment of interpretation costs at the conclusion of

the litigation would not unreasonably impede the person’s
ability to defend or pursue the claims involved in the
matter.” MCR 1.111(A)(3).
I
Indigent
• For purposes of the Michigan Indigent Defense Commission

Act, indigent “means meeting 1 or more of the conditions
described in [MCL 780.991(3)].” MCL 780. 983(e).
Indigent criminal defense services

Act, indigent criminal defense services means “local legal defense
services provided to a defendant and to which both of the
following conditions apply: (i) [t]he defendant is being
prosecuted or sentenced for a crime for which an individual
may be imprisoned upon conviction, beginning with the

defendant’s initial appearance in court to answer to the

criminal charge[, and] (ii) [t]he defendant is determined to be
indigent under [MCL 780.991(3)].” MCL 780.983(f). Indigent
criminal defense services do not include services authorized to be
provided under the appellate defender act, MCL 780.711—
MCL 780.719. MCL 780.983(g).
Indigent criminal defense system

Act, indigent criminal defense system means either “[t]he local
unit of government that funds a trial court[,]” or “[i]f a trial
court is funded by more than 1 local unit of government, those
local units of government, collectively.” MCL 780.983(h).
Ingestion
• For purposes of MCL 8.9(10)(c), ingestion means “to have eaten,

drunk, ingested, inhaled, injected, or topically applied, or to
have performed any combination of those actions, or otherwise
introduced into the body.” MCL 8.9(10)(c)(iii).
Insane/insanity
• For purposes of the Code of Criminal Procedure, “[a]n

individual is legally insane if, as a result of mental illness as
defined in . . . MCL 330.1400, or as a result of having an
intellectual disability as defined in . . . MCL 330.1100b, 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 having an intellectual disability does not
otherwise constitute a defense of legal insanity.” MCL
768.21a(1).
Intellectual disability
• For purposes of the Mental Health Code and the Code of

Criminal Procedure, intellectual disability “means a condition
manifesting before the age of 18 years that is characterized by
significantly subaverage intellectual functioning and related
limitations in 2 or more adaptive skills and that is diagnosed
based on the following assumptions:
(a) Valid assessment considers cultural and linguistic

diversity, as well as differences in communication and
behavioral factors.

(b) The existence of limitation in adaptive skills occurs

within the context of community environments typical
of the individual’s age peers and is indexed to the
individual’s particular needs for support.
(c) Specific adaptive skill limitations often coexist with

strengths in other adaptive skills or other personal
capabilities.
(d) With appropriate supports over a sustained period,

the life functioning of the individual with an intellectual
disability will generally improve.” MCL 330.1100b(12);
see also MCL 768.21a(1).
Intent
• For purposes of MCL 8.9, intent means “a desire or will to act

with respect to a material element of an offense if both of the
following circumstances exist: a desire or will to act with
respect to a material element of an offense if both of the
following circumstances exist:
(i) The element involves the nature of a person’s conduct

or a result of that conduct, and it is the person’s
conscious object to engage in conduct of that nature or
to cause that result.
(ii) The element involves the attendant circumstances,

and the person is aware of the existence of those
circumstances or believes or hopes that they exist.”
MCL 8.9(10)(b).
Intermediary interpreter
• For purposes of the Deaf Persons’ Interpreters Act, intermediary

interpreter or deaf interpreter means “any person, including any
deaf or deaf-blind person, who is able to assist in providing an
accurate interpretation between spoken English and sign
language or between variants of sign language by acting as an
intermediary between a deaf or deaf-blind person and a
qualified interpreter.” MCL 393.502(e).
Interpret/interpretation

interpreters, interpret and interpretation mean “the oral
rendering of spoken communication from one language to
another without change in meaning.” MCR 1.111(A)(5).
Intoxicated or impaired

• For purposes of MCL 8.9, intoxicated or impaired “includes, but

is not limited to, a condition of intoxication resulting from the
ingestion of alcoholic liquor, a controlled substance, or
alcoholic liquor and a controlled substance.” MCL 8.9(10)(c).
Intoxicating substance
• For purposes of the MCL 257.625, intoxicating substance means

“any substance, preparation, or a combination of substances
and preparations other than alcohol or a controlled substance,
that is either of the following:
(i) Recognized as a drug in any of the following

publications or their supplements:
(A) The official United States pharmacopoeia.
(B) The official homeopathic pharmacopoeia of the

United States.
(C) The official national formulary.
(ii) A substance, other than food, taken into a person’s

body, including, but not limited to, vapors or fumes,
that is used in a manner or for a purpose for which it
was not intended, and that may result in a condition of
intoxication.” MCL 257.625(25)(a).
J
Judicial district
• For purposes of the Code of Criminal Procedure, judicial district

means “(i) [w]ith regard to the circuit court, the county[;] (ii)
[w]ith regard to municipal courts, the city in which the
municipal court functions or the village served by a municipal
court under . . . MCL 600.9928[;] (iii) [w]ith regard to the district
court, the county, district, or political subdivision in which
venue is proper for criminal actions.” MCL 761.1(i).
Juvenile
• For purposes of Subchapter 6.900 of the Michigan Court Rules,

juvenile means an individual at least 14 years of age who
allegedly committed a specified juvenile violation on or after
the individual’s 14th birthday and before the individual’s 17th
birthday. MCR 6.903(E).


juvenile means “an individual alleged or found to be within the
court’s jurisdiction under . . . [MCL 712A.2(a)(1)], for an
offense, including, but not limited to, an individual in a
designated case.” MCL 780.781(1)(e).
Juvenile history record information

records of the Michigan State Police), juvenile history record
information means “name; date of birth; personal descriptions
including identifying marks, scars, amputations, and tattoos;
aliases and prior names; social security number, driver’s license
number, and other identifying numbers; and information on
juvenile offense arrests and adjudications or convictions.” MCL
28.241a(g).
Juvenile mental health court
• For purposes of Chapter 10C of the Revised Judicature Act

of 1961, juvenile mental health court “means all of the
following:
(i) A court-supervised treatment program for juveniles

who are diagnosed by a mental health professional with
having a serious emotional disturbance, co-occurring
disorder, or developmental disability.
(ii) Programs designed to adhere to the 7 common

characteristics of a juvenile mental health court as
described under [MCL 600.1099c(3)].
(iii) Programs designed to adhere to the 10 essential

elements of mental health court promulgated by the
Bureau of Justice Assistance, or amended, that include
all of the following characteristics:
(A) A broad-based group of stakeholders

representing the criminal justice system, the
juvenile justice system, the mental health system,
the substance abuse treatment system, any related
systems, and the community guide the planning
and administration of the court.
(B) Eligibility criteria that address public safety

and a community’s treatment capacity, in addition
to the availability of alternatives to pretrial
detention for juveniles with mental illnesses, and
that take into account the relationship between
mental illness and a juvenile’s offenses, while
allowing the individual circumstances of each case

to be considered.
(C) Participants are identified, referred, and

accepted into mental health courts, and then linked
to community-based service providers as quickly
as possible.
(D) Terms of participation are clear, promote

public safety, facilitate the juvenile’s engagement in
treatment, are individualized to correspond to the
level of risk that each juvenile presents to the
community, and provide for positive legal
outcomes for those individuals who successfully
complete the program.
(E) In accordance with the Michigan indigent

defense commission act, [MCL 780.981–MCL
780.1003], provide legal counsel to juvenile
respondents to explain program requirements,
including voluntary participation, and guide
juveniles in decisions about program involvement.
Procedures exist in the juvenile mental health court
to address, in a timely fashion, concerns about a
juvenile’s competency whenever they arise.
(F) Connect participants to comprehensive and

individualized treatment supports and services in
the community and strive to use, and increase the
availability of, treatment and services that are
evidence based.
(G) Health and legal information are shared in a

manner that protects potential participants’
confidentiality rights as mental health consumers
and their constitutional rights. Information
gathered as part of the participants’ court-ordered
treatment program or services is safeguarded from
public disclosure in the event that participants are
returned to traditional court processing.
(H) A team of criminal justice, if applicable,

juvenile justice, and mental health staff and
treatment providers receives special, ongoing
training and assists mental health court
participants to achieve treatment and criminal and
juvenile justice goals by regularly reviewing and
revising the court process.

(I) Criminal and juvenile justice and mental health

staff collaboratively monitor participants’
adherence to court conditions, offer individualized
graduated incentives and sanctions, and modify
treatment as necessary to promote public safety
and participants’ recovery.
(J) Data are collected and analyzed to demonstrate

the impact of the juvenile mental heath court, its
performance is assessed periodically, procedures
are modified accordingly, court processes are
institutionalized, and support for the court in the
community is cultivated and expanded.” MCL
600.1099b(e).
Juvenile offense

records of the Michigan State Police), juvenile offense means “an
offense committed by a juvenile that, if committed by an adult,
would be a felony, a criminal contempt conviction under . . .
MCL 600.2950 [or MCL] 600.2950a, a criminal contempt
conviction for a violation of a foreign protection order that
satisfies the conditions for validity provided in . . . MCL
600.2950i, or a misdemeanor.” MCL 28.241a(h).
K
Knowledge
• For purposes of MCL 8.9, knowledge means “awareness or

understanding with respect to a material element of an offense
if both of the following circumstances exist:
(i) The element involves the nature or the attendant

circumstances of the personʹs conduct, and the person is
aware that his or her conduct is of that nature or that
those circumstances exist.
(ii) The element involves a result of the personʹs

conduct, and the person is aware that it is practically

certain that his or her conduct will cause that result.”

MCL 8.9(10)(d).
L
Law enforcement agency

records of the Michigan State Police), law enforcement agency
means “the police department of a city, township, or village,
the sheriff’s department of a county, the department, or any
other governmental law enforcement agency of this state.”
MCL 28.241a(i).
M
Magistrate
• For purposes of the Code of Criminal Procedure, magistrate

means “a judge of the district court or a judge of a municipal
court. Magistrate does not include a district court magistrate,
except that a district court magistrate may exercise the powers,
jurisdiction, and duties of a magistrate if specifically provided
in this act, the revised judicature act[,] . . . MCL 600.101 to
[MCL] 600.9947, or any other statute. This definition does not
limit the power of a justice of the supreme court, a circuit judge,
or a judge of a court of record having jurisdiction of criminal
cases under this act, or deprive him or her of the power to
exercise the authority of a magistrate.” MCL 761.1(l).
Mental health court
• For purposes of MCL 600.1090 et seq., mental health court means

“any of the following:
(i) A court-supervised treatment program for

individuals who are diagnosed by a mental health
professional with having a serious mental illness,
serious emotional disturbance, co-occurring disorder, or
developmental disability.
(ii) Programs designed to adhere to the 10 essential

elements of a mental health court promulgated by the
bureau of justice assistance that include all of the
following characteristics:
(A) A broad-based group of stakeholders

representing the criminal justice system, mental
health system, substance abuse treatment system,
any related systems, and the community guide the
planning and administration of the court.
(B) Eligibility criteria that address public safety

and a community’s treatment capacity, in addition
to the availability of alternatives to pretrial
detention for defendants with mental illnesses, and
that take into account the relationship between
mental illness and a defendant’s offenses, while
allowing the individual circumstances of each case
to be considered.
(C) Participants are identified, referred, and

accepted into mental health courts, and then linked
to community-based service providers as quickly
as possible.
(D) Terms of participation are clear, promote

public safety, facilitate the defendant’s engagement
in treatment, are individualized to correspond to
the level of risk that each defendant presents to the
community, and provide for positive legal
outcomes for those individuals who successfully
complete the program.
(E) In accordance with the Michigan indigent

defense commission act, . . . MCL 780.981 to [MCL]
780.1003, provide legal counsel to indigent
defendants to explain program requirements,
including voluntary participation, and guides
defendants in decisions about program
involvement. Procedures exist in the mental health
court to address, in a timely fashion, concerns
about a defendant’s competency whenever they
arise.
(F) Connect participants to comprehensive and

individualized treatment supports and services in
the community and strive to use, and increase the
availability of, treatment and services that are
evidence based.
(G) Health and legal information are shared in a

manner that protects potential participants’
confidentiality rights as mental health consumers
and their constitutional rights as defendants.
Information gathered as part of the participants’
court-ordered treatment program or services are

safeguarded from public disclosure in the event
that participants are returned to traditional court
processing.
(H) A team of criminal justice and mental health

staff and treatment providers receives special,
ongoing training and assists mental health court
participants achieve treatment and criminal justice
goals by regularly reviewing and revising the
court process.
(I) Criminal justice and mental health staff

collaboratively monitor participants’ adherence to
court conditions, offer individualized graduated
incentives and sanctions, and modify treatment as
necessary to promote public safety and
participants’ recovery.
(J) Data are collected and analyzed to demonstrate

the impact of the mental health court, its
performance is assessed periodically, and
procedures are modified accordingly, court
processes are institutionalized, and support for the
court in the community is cultivated and
expanded.” MCL 600.1090(e).
Mental health professional
• For purposes of Chapter 10C of the Revised Judicature Act

of 1961 (juvenile mental health courts), mental health
professional “means an individual who is trained and
experienced in the area of mental illness or developmental
disabilities and who is 1 of the following:
(i) A physician.
(ii) A psychologist.
(iii) A registered professional nurse licensed or

otherwise authorized to engage in the practice of
nursing under part 172 of the public health code, . . .
MCL 333.17201 to [MCL] 333.17242].
(iv) A licensed master’s social worker licensed or

otherwise authorized to engage in the practice of social
work at the mater’s level under part 185 of the public
health code, . . . MCL 333.18501 to [MCL] 333.18518.

(v) A licensed professional counselor licensed or

counseling under part 181 of the public health code, . . .
MCL 333.18101 to [MCL] 333.18117.
(vi) A marriage and family therapist licensed or

marriage and family therapy under part 169 of the
public health code, . . . MCL 333.16901 to [MCL]
333.16915.” MCL 600.1099b(f).
Mental illness/mentally ill
• For purposes of the Mental Health Code and the Code of

Criminal Procedure, 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); see
also MCL 768.21a(1).
Metadata
• For purposes of the Fourth Amendment Rights Protection Act,

metadata means “information generally not visible when an
electronic document is printed describing the history, tracking,
or management of the electronic document, including
information about data in the electronic document that
describes how, when, and by whom the data were collected,
created, accessed, or modified and how the data are formatted.
The term does not including any of the following:
(i) A spreadsheet formula.
(ii) A database field.
(iii) An externally or internally linked file.
(iv) A reference to an external file or hyperlink.” MCL

37.262(b).
Minor offense
• For purposes of the Code of Criminal Procedure, minor offense

means “a misdemeanor or ordinance violation for which the
maximum permissible imprisonment does not exceed 92 days
and the maximum permissible fine does not exceed $1,000.00.”
MCL 761.1(m).
Misdemeanor

records of the Michigan State Police), misdemeanor means
“either of the following:
(i) A violation of a penal law of this state that is not a

felony or a violation of an order, rule, or regulation of a
state agency that is punishable by imprisonment or a
fine that is not a civil fine.
(ii) A violation of a local ordinance that substantially

corresponds to state law and that is not a civil
infraction.” MCL 28.241a(j).
• For purposes of the Code of Criminal Procedure, misdemeanor

means “a violation of a penal law of this state that is not a
felony or a violation of an order, rule, or regulation of a state
agency that is punishable by imprisonment or a fine that is not
a civil fine.” MCL 761.1(n).
• For purposes of the Michigan Penal Code, “[w]hen any act or

omission, not a felony, is punishable according to law, by a fine,
penalty or forfeiture, or imprisonment, in the discretion of the
court, such act or omission shall be deemed a misdemeanor.”
MCL 750.8.
Motorboat

Protection Act, Part 801, Marine Safety, motorboat means “a
vessel propelled wholly or in part by machinery.” MCL
324.80103(f).
Motor vehicle
• For purposes of the Michigan Vehicle Code, motor vehicle means

“every vehicle that is self-propelled, but for purposes of
chapter 4, motor vehicle does not include industrial equipment
such as a forklift, a front-end loader, or other construction
equipment that is not subject to registration under this act.
Motor vehicle does not include a power-driven mobility device
when that power-driven mobility device is being used by an
individual with a mobility disability. Motor vehicle does not
include an electric patrol vehicle being operated in compliance
with the electric patrol vehicle act . . . MCL 257.1571 to [MCL]
257.1577. Motor vehicle does not include an electric personal
assistive mobility device. Motor vehicle does not include an
electric carriage. Motor vehicle does not include a commercial
quadricycle. Motor vehicle does not include an electric bicycle.

Motor vehicle does not include an electric skateboard.” MCL

257.33.
Moving violation
• For purposes of MCL 257.601b, moving violation means “an act

or omission prohibited under this act or a local ordinance
substantially corresponding to this act that occurs while a
person is operating a motor vehicle, and for which the person is
subject to a fine.” MCL 257.601b(5)(b).
N
Negligence
• For purposes of MCL 8.9, negligence means “the failure to use

reasonable care with respect to a material element of an offense
to avoid consequences that are the foreseeable outcome of the
person’s conduct with respect to a material element of an
offense and that threaten or harm the safety of another.” MCL
8.9(10)(e).
Notice of electronic filing or service
• For purposes of MCR 1.109(G), notice of electronic filing or service

“means a notice automatically generated by the e-filing system
at the time a document is filed or served.” MCR 1.109(G)(1)(f).
O
Offense
• For purposes of the Crime Victim’s Rights Act, Article 2, offense

means “1 or more of the following:
(i) A violation of a penal law of this state for which a

juvenile offender, if convicted as an adult, may be
offense expressly designated by law as a felony.
(ii) A violation of [MCL 750.81] (assault and battery,

including domestic violence), [MCL 750.81a] (assault;
infliction of serious injury, including aggravated
domestic violence), [MCL 750.115] (breaking and
entering or illegal entry), [MCL 750.136b(7)] (child

abuse in the fourth degree), [MCL 750.145]

(contributing to the neglect or delinquency of a minor),
[MCL 750.145d] (using the internet or a computer to
make a prohibited communication), [MCL 750.233]
(intentionally aiming a firearm without malice), [MCL
750.234] (discharge of a firearm intentionally aimed at a
person), [MCL 750.235] (discharge of an intentionally
aimed firearm resulting in injury), [MCL 750.335a]
(indecent exposure), or [MCL 750.411h] (stalking)[.]
(iii) A violation of [MCL 257.601b(2)] (injuring a worker

in a work zone) or [MCL 257.617a] (leaving the scene of
a personal injury accident) . . . or a violation of [MCL
257.625] (operating a vehicle while under the influence
of or impaired by intoxicating liquor or a controlled
substance, or with unlawful blood alcohol content) . . . if
the violation involves an accident resulting in damage
to another individual’s property or physical injury or
death to another individual.
(iv) Selling or furnishing alcoholic liquor to an

individual less than 21 years of age in violation of
section 33 of the former 1933 (Ex Sess) PA 8, or [MCL
436.1701], if the violation results in physical injury or
death to any individual.
(v) A violation of [MCL 324.80176(1) or MCL

324.80176(3)] (operating a motorboat while under the
influence of or impaired by intoxicating liquor or a
controlled substance, or with unlawful blood alcohol
content) . . . if the violation involves an accident
resulting in damage to another individual’s property or
physical injury or death to any individual.
(vi) A violation of a local ordinance substantially

corresponding to a law enumerated in subparagraphs
(i) to (v).
(vii) A violation described in subparagraphs (i) to (vi)

that is subsequently reduced to a violation not included
in subparagraphs (i) to (vi).” MCL 780.781(1)(g).
Operate
• For purposes of MCL 324.80176, operate means “to be in control

of a vessel propelled wholly or in part by machinery while the
vessel is underway and is not docked, at anchor, idle, or
otherwise secured.” MCL 324.80176(8).
Operating while intoxicated

• For purposes of the Michigan Vehicle Code, operating while

intoxicated means “any of the following:
(a) The person is under the influence of alcoholic liquor,

a controlled substance, or other intoxicating substance
or a combination of alcoholic liquor, a controlled
substance, or other intoxicating substance.
(b) The person has an alcohol content of 0.08 grams or

more per 100 milliliters of blood, per 210 liters of breath,
or per 67 milliliters of urine, or, beginning October 1,
2018, the person has an alcohol content of 0.10 grams or
or per 67 milliliters of urine.
(c) The person has an alcohol content of 0.17 grams or

or per 67 milliliters of urine.” MCL 257.625(1).
Ordinance violation
• For purposes of the Code of Criminal Procedure, ordinance

violation means “either of the following: (i) [a] violation of an
ordinance or charter of a city, village, township, or county that
is punishable by imprisonment or a fine that is not a civil fine[;]
(ii) [a] violation of an ordinance, rule, or regulation of any other
governmental entity authorized by law to enact ordinances,
rules, or regulations that is punishable by imprisonment or a
fine that is not a civil fine.” MCL 761.1(o).
Other recorded information

records is defined, other recorded information “includes, but is not
limited to, notices, bench warrants, arrest warrants, and other
process issued by the court that do not have to be maintained
on paper or digital image.” MCR 1.109(A)(1)(b)(iv).
P
Partially Indigent

Act, partially indigent means “a criminal defendant who is
unable to afford the complete cost of legal representation, but is
able to contribute a monetary amount toward his or her
representation.” MCL 780.983(k).

Participant
• For purposes of MCL 600.1200 et seq., participant means

“individual who is admitted into a veterans treatment court.”
MCL 600.1200(e).

1961 (juvenile mental health courts), participant “means a
juvenile who is admitted into a juvenile mental health court.”
MCL 600.1099b(g).
Person
• For purposes of the Code of Criminal Procedure, person,

accused, or a similar word means “an individual or, unless a
contrary intention appears, a public or private corporation,
partnership, or unincorporated or voluntary association.” MCL
761.1(p).
• For purposes of the Crime Victim’s Right Act, Article 1, person

means “an individual, organization, partnership, corporation,
or governmental entity.” MCL 780.752(1)(j).

or governmental entity.” MCL 780.781(1)(h).

or governmental entity.” MCL 780.811(1)(e).
• For purposes of the Michigan Vehicle Code, person means

“every natural person, firm, copartnership, association, or
corporation and their legal successors.” MCL 257.40.
Power-driven mobility device
• For purposes of the Michigan Vehicle Code, power-driven

mobility device means “a mobility device powered by a battery,
fuel, or other engine and used by an individual with a mobility
disability for the purpose of locomotion. Notwithstanding any
other provisions of this act, the requirements of this act apply
to a power-driven mobility device while that device is being
operated on a street, road, or highway in this state.” MCL
257.43c.
Prosecuting attorney
• For purposes of the Code of Criminal Procedure, prosecuting

attorney means “the prosecuting attorney for a county, an
assistant prosecuting attorney for a county, the attorney

general, the deputy attorney general, an assistant attorney
general, a special prosecuting attorney, or, in connection with
the prosecution of an ordinance violation, an attorney for the
political subdivision or governmental entity that enacted the
ordinance, charter, rule, or regulation upon which the
ordinance violation is based.” MCL 761.1(r).
• For purposes of the Crime Victim’s Rights Act, prosecuting

attorney means “the prosecuting attorney for a county, an
assistant prosecuting attorney for a county, the attorney
general, the deputy attorney general, an assistant attorney
general, or a special prosecuting attorney.” MCL 780.752(1)(l).
Q
Qualified interpreter
• For purposes of the Deaf Persons’ Interpreters Act, qualified

interpreter means “a person who is certified through the
national registry of interpreters for the deaf or certified through
the state by the division.” MCL 393.502(f).
R
Record
• For purposes of MCL 600.1428, record means “information of

any kind that is recorded in any manner and that has been
created by a court or filed with a court in accordance with
supreme court rules.” MCL 600.1428(4).
Recklessness
• For purposes of MCL 8.9, recklessness means “an act or failure to

act that demonstrates a deliberate, willful, or wanton disregard
of a substantial and unjustifiable risk without reasonable
caution for the rights, safety, and property of others.” MCL
8.9(10)(f).
Recordings

records is defined, recordings “refer to audio and video

recordings (whether analog or digital), stenotapes, log notes,

and other related records.” MCR 1.109(A)(1)(b)(ii).
S
School bus zone
• For purposes of MCL 257.601b, school bus zone means “the area
lying within 20 feet of a school bus that has stopped and is
displaying 2 alternately flashing red lights at the same level,
except as described in [MCL 257.682(2)].” MCL 257.601b(5)(c).
School property
• For purposes of MCL 764.15(1)(n), school property means “that

term as defined in . . . MCL 333.7410.” MCL 333.7410(8)(b)
defines school property as “a building, playing field, or property
used for school purposes to impart instruction to children in
grades kindergarten through 12, when provided by a public,
private, denominational, or parochial school, except those
building used primarily for adult education or college
extension courses.”
Serious emotional disturbance

1961 (juvenile mental health courts), serious emotional
disturbance “means that term as defined in . . . MCL 330.1100d.”
MCL 600.1099b(h).
Serious impairment of a body function
• For purposes of the Michigan Vehicle Code, serious impairment

of a body function “includes, but is not limited to, 1 or more of
the following:
(a) Loss of a limb or loss of use of a limb.
(b) Loss of a foot, hand, finger, or thumb or loss of use of

a foot, hand, finger, or thumb.
(c) Loss of an eye or ear or loss of use of an eye or ear.
(d) Loss or substantial impairment of a bodily function.
(e) Serious visible disfigurement.
(f) A comatose state that lasts for more than 3 days.

(g) Measurable brain or mental impairment.
(h) A skull fracture or other serious bone fracture.
(i) Subdural hemorrhage or subdural hematoma.
(j) Loss of an organ.” MCL 257.58c.
Serious mental illness

1961 (juvenile mental health courts), serious mental illness
“means that term as defined in . . . MCL 330.1100d.” MCL
600.1099b(i).
Serious misdemeanor

“[e]xcept as otherwise defined in this article, as used in this
article, [serious misdemeanor] means 1 or more of the following:
(i) A violation of . . . MCL 750.81, assault and battery,

including domestic violence.
(ii) A violation of . . . MCL 750.81a, assault; infliction of

serious injury, including aggravated domestic violence.
(iii) A violation of . . . MCL 750.115, breaking and

entering or illegal entry.
(iv) A violation of . . . [MCL 750.136b(7)], child abuse in

the fourth degree.
(v) A violation of . . . MCL 750.145, contributing to the

neglect or delinquency of a minor.
(vi) A misdemeanor violation of . . . MCL 750.145d,

using the internet or a computer to make a prohibited
communication.
(vii) A violation of . . . MCL 750.233, intentionally

aiming a firearm without malice.
(viii) A violation of . . . MCL 750.234, discharge of a

firearm intentionally aimed at a person.
(ix) A violation of . . . MCL 750.235, discharge of an

intentionally aimed firearm resulting in injury.
(x) A violation of . . . MCL 750.335a, indecent exposure.
(xi) A violation of . . . MCL 750.411h, stalking.

(xii) A violation of . . . [MCL 257.601b(2)], injuring a

worker in a work zone.
(xiii) A violation of . . . MCL 257.617a, leaving the scene

of a personal injury accident.
(xiv) A violation of . . . MCL 257.625, operating a vehicle

while under the influence of or impaired by intoxicating
liquor or a controlled substance, or with an unlawful
blood alcohol content, if the violation involves an
property or physical injury or death to another
individual.
(xv) Selling or furnishing alcoholic liquor to an

individual less than 21 years of age in violation of . . .
MCL 436.1701, if the violation results in physical injury
or death to any individual.
(xvi) A violation of . . . [MCL 324.80176(1) or MCL

324.80176(3)], operating a vessel while under the
influence of or impaired by intoxicating liquor or a
controlled substance, or with an unlawful blood alcohol
content, if the violation involves an accident resulting in
damage to another individual’s property or physical
injury or death to any individual.
(xvii) A violation of a local ordinance substantially

corresponding to a violation enumerated in
subparagraphs (i) to (xvi).
(xviii) A violation charged as a crime or serious

misdemeanor enumerated in subparagraphs (i) to (xvii)
but subsequently reduced to or pleaded to as a
misdemeanor. As used in this subparagraph, ‘crime’
means that term as defined in [MCL 780.752(1)(b)].”
MCL 780.811(1)(a).
Sexually transmitted infection
• For purposes of MCL 333.5129(3), sexually transmitted infection

“means syphilis, gonorrhea, chancroid, lymphogranuloma
venereum, granuloma inguinale, and other sexually
transmitted infections that the [Department of Health and
Human Services] may designate and require to be reported
under [MCL 333.5111].” MCL 333.5101(1)(h).
Specified juvenile violation

• For purposes of MCL 764.1f, specified juvenile violation means

“any of the following:
(a) A violation of [MCL 750.72, MCL 750.83, MCL

750.86, MCL 750.89, MCL 750.91, MCL 750.316, MCL
750.317, MCL 750.349, MCL 750.520b, MCL 750.529,
MCL 750.529a, or MCL 750.531].
(b) A violation of [MCL 750.84 or MCL 750.110a(2)], if

the juvenile is armed with a dangerous weapon.[]
(c) A violation of [MCL 750.186a], regarding escape or

attempted escape from a juvenile facility, but only if the
juvenile facility from which the individual escaped or
attempted to escape was 1 of the following:
(i) A high-security or medium-security facility

operated by the family independence agency or a
county juvenile agency.
(ii) A high-security facility operated by a private

agency under contract with the family
independence agency or a county juvenile agency.
(d) A violation of [MCL 333.7401(2)(a)(i) or MCL

333.7403(2)(a)(i)].
(e) An attempt to commit a violation described in

subdivisions (a) to (d).
(f) Conspiracy to commit a violation described in

(g) Solicitation to commit a violation described in

(h) Any lesser included offense of a violation described

in subdivisions (a) to (g) if the individual is charged
with a violation described in subdivisions (a) to (g).
(i) Any other violation arising out of the same

transactions as a violation described in subdivisions (a)
to (g) if the individual is charged with a violation
described in subdivisions (a) to (g).” MCL 764.1f(2). See
also MCR 6.903(H).
State-certified treatment court
• For purposes of MCL 600.1088, state-certified treatment court

“includes the treatment courts certified by the state court
administrative office as provided in” MCL 600.1062 (drug

treatment court), MCL 600.1084 (DWI/sobriety court), MCL

600.1091 (mental health court), MCL 600.1099c (juvenile mental
health court), or MCL 600.1201 (veterans treatment court).
MCL 600.1088(2).
T
Taken

V
Vehicle
• For purposes of the Michigan Vehicle Code, vehicle means

“every device in, upon, or by which any person or property is
or may be transported or drawn upon a highway, except
devices exclusively moved by human power or used
exclusively upon stationary rails or tracks and except, only for
the purpose of titling and registration under this act, a mobile
home as defined in . . . [MCL 125.2302].” MCL 257.79.
Vessel

Protection Act, Part 801, Marine Safety, vessel means “every
description of watercraft used or capable of being used as a
means of transportation on water.” MCL 324.80104(r).
Veterans treatment court/veterans court
• For purposes of MCL 600.1200 et seq., veterans treatment court or

veterans court means “a court adopted or instituted under [MCL
600.1201] that provides a supervised treatment program for
individuals who are veterans and who abuse or are dependent
upon any controlled substance or alcohol or suffer from a
mental illness.” MCL 600.1200(j).
Victim
• For purposes of the Crime Victim’s Rights Act, Article 1, victim

means “any of the following:
(i) An individual who suffers direct or threatened

physical, financial, or emotional harm as a result of the
commission of a crime, except as provided in
subparagraph (ii), (iii), (iv), or (v).
(ii) The following individuals other than the defendant

if the victim is deceased, except as provided in
subparagraph (v):
(A) The spouse of the deceased victim.
(B) A child of the deceased victim if the child is 18

years of age or older and sub-subparagraph (A)
does not apply.
(C) A parent of the deceased victim if sub-

subparagraphs (A) and (B) do not apply.
(D) The guardian or custodian of a child of the

deceased victim if the child is less than 18 years of
age and sub-subparagraphs (A) to (C) do not
apply.
(E) A sibling of the deceased victim if sub-

subparagraphs (A) to (D) do not apply.
(F) A grandparent of the deceased victim if sub-

subparagraphs (A) to (E) to not apply.
(iii) A parent, guardian, or custodian of the victim, if the

victim is less than 18 years of age, who is neither the
defendant nor incarcerated, if the parent, guardian, or
custodian so chooses.
(iv) A parent, guardian, or custodian of a victim who is

mentally or emotionally unable to participate in the
legal process if he or she is neither the defendant nor
incarcerated.
(v) For the purpose of submitting or making an impact

statement only, if the victim as defined in subparagraph
(i) is deceased, is so mentally incapacitated that he or
she cannot meaningfully understand or participate in
the legal process, or consents to the designation as a
victim of the following individuals other than the
defendant:
(A) The spouse of the victim.

(B) A child of the victim if the child is 18 years of

age or older.
(C) A parent of the victim.

victim if the child is less than 18 years of age.
(E) A sibling of the victim.
(F) A grandparent of the victim.
(G) A guardian or custodian of the victim if the

victim is less than 18 years of age at the time of the
commission of the crime and that guardian or
custodian is not incarcerated.” MCL 780.752(1)(m).

(i) A person who suffers direct or threatened physical,

commission of an offense, except as provided in
subparagraph (ii), (iii), (iv), or (v).
(ii) The following individuals other than the juvenile if

the victim is deceased, except as provided in
subparagraph (v):

does not apply.
(C) A parent of a deceased victim if sub-

(D) The guardian or custodian of a child of a

apply.


subparagraphs (A) to (E) do not apply.
(iii) A parent, guardian, or custodian of a victim who is

less than 18 years of age and who is neither the juvenile

nor incarcerated, if the parent, guardian, or custodian so

chooses.

mentally or emotionally unable to participate in the
legal process if he or she is neither the juvenile nor
incarcerated.

juvenile:

age or older.


custodian is not incarcerated.” MCL 780.781(1)(j).

(i) An individual who suffers direct or threatened

physical, financial, or emotional harm as a result of the
commission of a serious misdemeanor, except as
provided in subparagraph (ii), (iii), (iv), or (v).
(ii) The following individuals other than the defendant

if the victim is deceased, except as provided in
subparagraph (v):

does not apply.
(C) A parent of a deceased victim if sub-

(D) The guardian or custodian of a child of a

apply.


subparagraphs (A) to (E) do not apply.
(iii) A parent, guardian, or custodian of a victim who is

less than 18 years of age and who is neither the
defendant nor incarcerated, if the parent, guardian, or
custodian so chooses.

so mentally incapacitated that he or she cannot
meaningfully understand or participate in the legal
process if he or she is not the defendant and is not
incarcerated.

defendant:

age or older.


custodian is not incarcerated.” MCL 780.811(1)(h).

Videoconferencing
• For purposes of Subchapter 2.400 of the Michigan Court Rules,

videoconferencing means “the use of an interactive technology
that sends video, voice, and data signals over a transmission
circuit so that two or more individuals or groups can
communicate with each other simultaneously using video
codecs, monitors, cameras, audio microphones, and audio
speakers.” MCR 2.407(A)(2).
Violent felony
• For purposes of MCR 6.106(B)(1), violent felony means “a felony,

an element of which involves a violent act or threat of a violent
act against any other person.” MCR 6.106(B)(2).
Vulnerable adult
• For purposes of MCL 764.1a, vulnerable adult means “that term

as defined in . . . MCL 750.145m.” MCL 764.1a(7)(b). MCL
750.145m(u) defines vulnerable adult as “1 or more of the
following: (i) [a]n individual age 18 or over who, because of
age, developmental disability, mental illness, or physical
disability requires supervision or personal care or lacks the
personal and social skills required to live independently[;] (ii)
[a]n adult as defined in . . . MCL 400.703[;] (iii) [a]n adult as
defined in . . . MCL 400.11.”

Rate this Publication
In an effort to measure our performance, MJI is seeking continued feedback from our
audience regarding the content of our publications. Your feedback will serve as a basis
for improving our products.
Click here to access the survey for this publication.
If you wish to make comments or suggestions about a specific publication, please send
an e-mail to mji-info@courts.mi.gov.
Criminal Proceedings Benchbook, Vol. 1, Revised Ed. Subject Matter Index
Subject Matter Index
Numerics
180-day rule 6-19
A
Access to court proceedings
gag orders 1-3
public trial 1-3, 12-8
standard of review 1-12
Adjournment 9-21
factors to consider 9-21
Affidavit 3-64
based on hearsay information
informant must speak with personal knowledge 3-66, 3-67
based on personal information
informant must be credible 3-67
execution 3-70
hearsay information
information must be reliable 3-67
requirements 3-64
submission by electronic device 3-72
validity 3-65
verifying 3-70
Alibi defense 10-25
cross-examination of alibi witness 10-28
impeachment with alibi notice 10-27
jury instruction 10-28
notice 10-25
failure to provide timely notice 10-26
Alternate theories of offense 12-86
Anticipatory search warrant 3-64
Appeals
district court
magistrates 2-21, 5-15
plea 6-40
felony 6-77
misdemeanor 6-58
preservation 6-77
Appearance ticket
alleged misdemeanor violation 3-45
Appointment of counsel 4-2
district court 5-9
Michigan Judicial Institute Page 1

Subject Matter Index Criminal Proceedings Benchbook, Vol. 1, Revised Ed.
sentencing 6-58
district court magistrates 2-15
MIDCA 4-5
preliminary examination 7-27
Arraignment 2-16, 5-10, 5-31
arrest by warrant 5-21
arrest in county of charged offense 5-21
arrest outside county of charged offense 5-22
arrest without warrant 5-25
counsel 5-32
felony 5-42
advice of rights 5-45
Crime Victim’s Rights Act (CVRA) 5-52
procedure 5-42
right to counsel 5-45
fingerprinting 3-31, 5-29
interactive video technology 5-20
juveniles
automatic waiver cases 5-49
pretrial release 5-51
procedures 5-50
location 5-20
Marine Safety Act violations 5-37
notice to appear 5-39
warrantless arrest 5-38
misdemeanor 5-31
Crime Victim’s Rights Act (CVRA) 5-39
procedures 5-31
pleas 5-33
preliminary examination
scheduling 7-7
probable cause conference
scheduling 7-7
right to arraignment 5-16
waiver 5-29
warrantless arrest
arrest in county of charged offense 5-25
arrest outside county of charged offense 5-27
Arrest 3-6
by warrant 5-21
arraignment 5-21
delay between crime and arrest 3-6
delay between warrantless arrest and arraignment 3-10
probable cause 3-6
search incident to arrest 11-15
warrantless 3-41
Page 2 Michigan Judicial Institute

arraignment 5-25
Arrest card
destruction 3-31
Arrest warrant 2-16, 5-10
alternatives 3-45
execution 3-28
electronic device 3-29
issuance 3-24
juveniles 3-28
probable cause 3-20
return 3-28
substantive requirements 3-27
Attorney misconduct 1-13, 12-45
disciplinary proceedings 1-13
Attorneys
motion to disqualify 1-14
removal of counsel 4-18
substitution of counsel 4-16
withdrawal of counsel 4-16
assigned appellate counsel 4-19
good cause 4-17
procedure 4-18
B
Bail 5-25
felonies 5-44
interim bail 5-21, 5-24, 5-28
juveniles 5-51
Bailey v United States, 568 US 186 (2013 3-58
Batson errors 12-19
Bench trial 12-5
court view of property or place 12-6
evidentiary issues 12-6
findings 12-7
judgment 12-7
judicial disqualification 12-5
motion for acquittal 12-7
pretrial motions 12-5
Bill of particulars 9-15
Bindover 7-46
certificate and return 7-54
circuit court arraignment 7-56
following finding of probable cause 7-47
following waiver of preliminary examination 7-46

greater offense 7-47

jurisdiction 7-48
lesser offense 7-47
open murder charge 7-48
prosecutor’s appeal 7-52
Biometric data 3-29
destruction 3-31
Bolstering testimony 12-45
C
Change of venue 2-30
timing of motion 2-31
Charge
use of uncounseled plea to enhance charge 6-44
Circuit court arraignment
conducted by district court 7-58
elimination by local order 7-57
procedures 7-59
scheduling 7-58
waiver 7-56
Citation to appear
traffic civil infraction 3-46
traffic misdemeanor 3-46
Civil infractions 2-18, 5-12
Civil pleadings
electronic filing
process 3-4
Civil trial
effect of outcome on criminal proceedings 9-36
Closing argument 12-39
commentary on defendant’s failure to testify 12-42
commentary on defendant’s pre-arrest silence or conduct 12-43
commentary on witness testimony 12-41
defendant’s right to present a defense 12-40
permissible content 12-39
Closure of courtroom 12-8
Cognate offenses 12-72
Collateral estoppel
application between civil and criminal proceedings 9-36
cross-over estoppel 9-36
double jeopardy 9-34
Communicable disease testing and examination 7-43
expedited examination or testing for CSC offenses 7-44
list of offenses requiring mandatory testing 7-43
Community caretaking exception to warrant requirement 11-11
Competence to stand trial 10-4

commitment for treatment 10-8

competency examination 10-7
dismissal based on incompetency 10-9
general test 10-5
hearing 10-8
medication 10-6
ordering inquiry 10-6
preservation of evidence during period of incompetence 10-9
pretrial motions during period of incompetence 10-9
raising the issue of competence 10-6
reinstatement of charges following dismissal based on incompetency 10-9
use of competency evidence for other purposes 10-11
Complaint 3-11, 3-13
alternatives 3-45
drafting 3-14
filing 3-13
forms 3-14
required signatures 3-14
complaining witness 3-15
prosecuting attorney 3-15
substantive requirements 3-16
Crime Victim’s Rights Act 3-18
date of offense 3-17
nature of the offense 3-16
place of offense 3-17
typing 3-14
who may file 3-13
other authorized official 3-13
private citizen 3-13
prosecuting attorney 3-13
Conditional guilty pleas 6-20
Contempt of court 1-14
Continuance 9-21
Corpus delicti 7-39
Counsel
advice of rights
arraignment 5-31
appointment 2-15, 5-9
forfeiture 4-26
forfeiture and prejudice 4-28
Court rules
rules applicable to district court criminal proceedings 2-12, 5-5
felonies 2-14, 5-7
misdemeanors 2-12, 5-6

Crime Victim’s Rights Act (CVRA) 5-39, 5-52

Criminal liability 10-2
statutory
general criminal liability requirement 10-2
intent, knowledge, or recklessness requirement 10-3
strict liability 10-3
unspecified mens rea 10-3
voluntary intoxication 10-4
Criminal responsibility
insanity 10-12
Cross-examination 12-35
Curtilage 11-25
D
Deadlocked jury 12-82
double jeopardy 9-34
mistrial 12-94
Deaf litigants 1-18
Defaults 2-18, 5-12
Defendant
conduct and appearance at trial 12-53
disruptive conduct 12-57
gagging 12-56
handcuffing or shackling during trial 12-54
prison garb 12-54
right to be present at trial 12-56
right to testify 12-58
Defendant’s conduct and appearance at trial
absence 12-57
clothing 12-54
disruptive conduct 12-57
gagging 12-56
handcuffs or shackles 12-54
Defendant’s right to testify 12-58
medication 12-58
Defenses
alibi 10-25
diminished capacity 10-18
entrapment 10-22
guilty but mentally ill 10-17
plea 10-18
insanity 6-66, 6-67
intoxication 10-19
involuntary intoxication 10-21
mens rea defenses 10-2
mental status 10-4


not guilty by reason of insanity 10-12
voluntary intoxication 10-4, 10-19
Deferral 6-32
Deferred adjudication 6-32
Detainer 9-47
Diminished capacity 10-18
Direct examination 12-35
Directed verdict 12-59
double jeopardy implications 9-33, 12-60
test 12-59
Discharge of defendant following preliminary examination 7-53
Discovery
mandatory disclosure 9-6
District court
arraignment 5-25, 5-31, 5-42
counsel 5-32
Crime Victim’s Rights Act (CVRA) 5-39, 5-52
felony procedure 5-42
fingerprinting 5-29
interactive video technology 5-20
interim bail 5-21, 5-25
location 5-20
Marine Safety Act 5-37
pleas 5-33
right to arraignment 5-16
waiver 5-29
warrantless arrest 5-25, 5-27
warrentless arrest 5-25
bail 5-21
felony arraignment 5-42
fingerprints 3-31
jurisdiction following bindover 7-48
juveniles 5-49
appeal 2-21, 5-15
appointment of counsel 2-15, 5-9
arraignment 2-16, 5-10
arrest warrants 2-16, 5-10
bail and bond 2-17, 5-11
bond 2-17, 5-11
civil infractions 2-18, 5-12
first appearance of defendant 2-16, 5-10

ordinance violations 2-18, 5-12

pleas 2-18, 5-12, 6-46
probable cause conference 2-20, 5-14
search warrants 2-16, 5-10
misdemeanor arraignment 5-31
pleas 5-33, 6-46
appeal 6-58
authority to accept felony plea 6-59
entering plea 6-48
guilty or nolo contendere 6-49
written plea 6-49
guilty pleas 6-50
Marine Safety Act offenses 6-56
Michigan Vehicle Code offenses 6-56
nolo contendere pleas 6-50
plea agreements 6-5
record requirements 6-48
standing mute or pleading not guilty 6-48
understanding, voluntary, and accurate 6-54
withdrawal 6-57
records 2-21, 5-15
traffic violations
arraignment 5-34
video and audio technology 5-20
waiver of right to arraignment 5-29
waiver of right to counsel 5-29
Double jeopardy
Blockburger 9-29
collateral estoppel 9-34
criminal trial following civil trial 9-36
cross-over collateral estoppel 9-36
directed verdict 12-60
implications of directed verdict 12-60
mistrial 12-93
multiple punishments for the same offense 9-37
retrial following mistrial for hung jury 12-94
E
Electronic Communications Privacy Act 3-76
Electronic filing 3-3
service 3-5
transmission failures 3-5
Emergency aid exception to warrant requirement 11-11
Entrapment 10-22
entrapment by estoppel 10-24

hearing 10-22
Evidence
bench trial 12-6
sufficiency 12-8
identification evidence
biometric data 3-29
fingerprints 3-29
pleas and plea discussions 6-39
Evidentiary hearing 9-4
Ex parte communications 1-11
Exclusionary rule 11-46
exceptions 11-46
F
Fees
records reproduction 1-10
Felony
definition 2-9, 5-4, 7-5
pleas 6-59
Fingerprinting 3-31, 5-29
records
destruction of records 3-31
Fingerprints 3-31
First appearance of defendant 2-16, 5-10
Foreign language interpreters 1-25
appointment 1-25
appointment of more than one interpreter 1-30
classifications 1-28
certified 1-28
conflicts of interest 1-31
costs 1-32
court employee 1-30
oath or affirmation 1-31
other capable person 1-29
qualified 1-28
recordings 1-31
constitutional right 12-56
determination whether to appoint 1-25
Michigan Court Rules 1-25
waiver 1-27
Forfeiture of counsel 4-26
prejudice 4-28
Fourth Amendment
collection of data by a federal agency 11-3
motion to suppress evidence 11-2

G
Gagging 12-56
Grand jury 3-80
citizen 3-81
discovery 3-84
multicounty 3-82
oath 3-83
one person 3-81
rule of evidence 3-84
Guilty but mentally ill 10-17
Guilty pleas 6-17
felony 6-61
misdemeanor 6-50
H
Habitual offender
notice of intent to seek enhanced sentence 3-40
Handcuffs or shackles 12-54
Hearsay 7-35
Hot pursuit exception to warrant requirement 11-11
Hung jury 12-82
clarifying instructions 12-65
discharge 12-84
double jeopardy implications 9-34
mistrial
retrial 12-94
verdict on fewer than all charges 12-85
I
Incompetence to stand trial 10-4
Indigence
court-appointed counsel 4-2
Michigan Indigent Defense Commission Act 2-15, 4-5, 5-9
Ineffective assistance of counsel
plea negotiations 6-16
Information or indictment 3-11, 3-35
amendments 3-36
content 3-35
Insanity defense 10-12
acquittal 10-17
criminal responsibility 10-12
examinations 10-13

experts 10-13
guilty but mentally ill plea 6-66
jury instructions 10-16
not guilty plea 6-67
notice 10-13
possible verdicts 10-16
privileged communications 10-15
standard 10-14
Intent 10-2
statutory construction
Interactive video technology 5-20
Interim bail 3-50, 5-21, 5-25
release 8-12
conditional 8-13
warrant specification 3-80, 8-10
warrantless arrest 5-28
Interpreters 1-17
deaf or deaf-blind individuals 1-18
foreign language interpreters 1-25
right to simultaneous translation 1-17
Intoxication 10-19
Involuntary intoxication 10-21
J
Jaworski rights 6-24, 6-26
Joinder
of counts
multiple defendants 3-38
single defendant 3-37
Judges
appearance by video communication equipment 1-12
disqualification 1-15
ex parte communications 1-11
judicial impartiality 12-37
piercing the veil of judicial impartiality 12-37
questions or comments 12-37
substitution after voir dire 12-24
trial court’s duty to control proceedings 12-30, 12-32
Judgment
bench trial 12-7

Judicial disqualification 1-15, 12-5

Jurisdiction
district court 2-9, 5-3, 7-3
pleas 7-10
preliminary examination 7-17, 7-19
preliminary examination and attendant hearings 7-17
probable cause conference 7-8
personal jurisdiction 2-5
circuit court 2-8
waiver 2-5
subject matter jurisdiction 2-2
circuit court 2-7
waiver 2-2
territorial jurisdiction 2-3
Jury
alternate jurors 12-11
anonymous jury 12-13
communication 12-78
deliberations 12-78
exposure to extraneous evidence 12-80
materials in jury room 12-80
request to review evidence 12-82
hung 12-82
identity of jurors 12-13
issues during trial 12-50
jury instructions
model jury instructions 12-62
jury selection
number of jurors 12-11
jury view of property or place 12-51
no-impeachment rule 12-92
note taking 12-50
polling 12-91
prohibited actions 12-53
questions from jury 12-51
reference document 12-50
removal or substitution of juror at trial 12-23
representative cross-section 12-9
request to review evidence 12-82
sequestration or separation 12-78
verdict
inconsistency 12-88
mutually exclusive 12-88
voir dire 12-13
Jury deliberations 12-78
hung jury 12-82

discharge 12-84
mistrial 12-84
verdict on less than all charges 12-85
Jury instructions 12-61
clarifying instructions 12-65
cognate offenses 12-72
error 12-75
final instructions 12-65
interim instructions 12-65
lesser included offenses 12-66
necessarily included offenses 12-66
objections and preservation of error 12-73
preliminary instructions 12-64
questions from jurors 12-65
request for instructions 12-63
Jury selection 12-9
Batson errors 12-19
challenges for cause 12-15
discrimination 12-19
peremptory challenges 12-17
voir dire 12-13
Jury sequestration 12-78
Juvenile proceedings
arrest warrant 3-28
district court 5-49
K
Knock-and-announce 3-77
L
Lesser included offenses
instructions 12-66
Lesser offenses
bindover 7-47
plea 6-21
Limited English proficient persons—see Foreign language interpreters
Lineup
defendant’s request 9-55
evaluating suggestiveness of 9-52
photo 9-53

M
Magistrates 2-14
authority of district court magistrate 2-14, 5-8
default 2-18, 5-12
misdemeanors 2-18, 5-12
neutral and detached 3-52
Magistrates and judges of district court 2-14
Magistrates—see District court
magistrates
Marine Safety Act 5-37
Mens rea 10-2
criminal responsibility 10-12
insanity defense 10-12
intoxication 10-19
involuntary intoxication 10-21
statutory construction
Mental status 10-4
competence 10-4
entry of plea 6-4
Michigan Indigent Defense Commission Act (MIDCA) 2-15, 4-5, 5-9, 5-32
Misdemeanors 2-18, 5-12, 7-52
appeal 6-58
arraignment 5-31
definition 2-9, 5-4, 7-5
pleas 6-46
appeal 6-40, 6-58
applicable court rules 6-46
available pleas 6-46
plea agreement 6-57
right to jury trial 6-51
Missouri v McNeely, 569 US 141 (2013) 3-76
Mistrial 12-93
defendant’s incompetence 12-95
double jeopardy implications 9-34, 12-93
hung jury 12-84
juror misconduct 12-95

reference to polygraph 12-95

scenarios other than hung jury 12-95
unresponsive testimony 12-95
Model jury instructions 12-62
Motion for acquittal
bench trial 12-7
Motion for reconsideration 9-24
Motion for rehearing 9-23
Motion to change venue 2-30
Motion to dismiss 9-28
Motion to suppress evidence
Fourth Amendment grounds 11-2
Multiple representation 4-4
N
Necessarily included offenses 12-66
No-impeachment rule 12-92
Nolo contendere pleas 6-17, 6-18, 6-50
felony 6-61
Not guilty by reason of insanity 10-12
Notice of intent to seek enhanced sentence 3-40
O
Oaths or affirmations 12-24
bailiff 12-26
child witness 12-28
interpreter 12-28
juror oath after voir dire 12-25
juror oath before voir dire 12-24
witness 12-27
Opening statement 12-31
Ordinance violations 2-18, 5-12
P
Peremptory challenges 12-17
Person to be searched for and/or seized
description of 3-57
Place to be searched
description of 3-55
premises 3-55
Plea by mail 6-49
Pleas 2-18, 5-12
accurate, understanding, and voluntary plea requirements 6-21

admissibility of pleas and plea discussions 6-39

advice of rights 6-24, 6-61
Jaworski rights 6-26
method of recital 6-27
right to trial 6-25
trial rights 6-51
advice of trial rights
substantial compliance 6-29
appeal 6-40
challenges to constitutionality of underlying statute 6-44
factual guilt 6-19, 6-43
felony 6-77
following waiver of appellate rights 6-43
nonjurisdictional defects 6-19, 6-43
preservation of issues 6-77
appellate counsel 6-41
arraignment 5-33
circuit court 6-59
collateral attack on uncounseled plea 6-44
deferred adjudication 6-33
district court 6-46
entering a plea
standing mute or pleading not guilty 6-48
evidence
hearsay 6-39
inadmissibility of withdrawn plea 6-77
felony 6-59
accurate 6-65
authority of district court 6-59
guilty or nolo contendere 6-61
understanding 6-63
understanding, voluntary, and accurate plea requirements 6-63
voluntary 6-64
withdrawal 6-68
felony plea in district court 7-60
future conviction enhancement 6-79
guilty but mentally ill 6-66, 10-18
guilty plea 6-17, 6-50
conditional plea 6-20
lesser offense 6-21
unconditional plea 6-19
Jaworski rights 6-24
substantial compliance 6-29

misdemeanor 6-46
applicable court rules 6-46
authority of district court judge or magistrate 6-46
constitutional trial rights 6-51
entering a plea 6-48
Marine Safety Act offenses 6-56
Michigan Vehicle Code offenses 6-56
pleading guilty or nolo contendere 6-49
withdrawing or challenging plea 6-57
written plea 6-49
negotiations 6-5
ineffective assistance of counsel 6-16
nolo contendere plea 6-17, 6-18, 6-50
conditional plea 6-20
lesser offense 6-21
unconditional plea 6-19
plea agreements 6-5
bar-to-office conditions 6-11
Cobbs and Killebrew 6-6
court’s refusal to accept plea 6-12
probation conditions 6-11
refusal to accept 6-57
violations 6-12
violations by court 6-14
violations by defendant 6-13
violations by prosecutor 6-12
plea under advisement 6-32
problem-solving courts 6-33
refusal to accept 6-57, 6-68
taking plea under advisement 6-32
withdrawal 6-68
after acceptance but before sentencing 6-69
after sentencing 6-73
before acceptance 6-68
divisibility of multiple pleas arising from single plea agreement 6-75
effect 6-77
standards 6-57
timing of motion 6-57
Prearrest delay 3-6
motion to dismiss


Preliminary examination
adjournment 7-21
bindover
remand to district court 7-50
circuit court review 7-55
appeal to circuit court 7-55
motion to dismiss 7-55
closure of courtroom 7-30
competency 7-42
discovery 7-24
evidence 7-34
evidentiary standards 7-32
felony plea in district court 7-60
jurisdiction 7-17
juveniles 7-12
designated proceedings 7-13
probable cause inquiry 7-32
record 7-45
deprivation of counsel 7-29
right to preliminary examination 7-10
fugitive 7-12
grand jury indictment 7-12
new charges added by amendment of information 7-11
rules of evidence
hearsay 7-35
scheduling 7-7
timing 7-20
transcript 7-45
venue 7-17, 7-18
victims
sequestration 7-31
victims’ rights 7-40
disclosure of victims’ personal information 7-40
immediate commencement of examination to take victim testimony 7-41
notice 7-40
separate waiting areas 7-40
waiver 7-14
entry of plea 7-16
problem-solving courts 7-16
uncounseled waiver 7-15
witnesses 7-38
sequestration 7-31
subpoenas 7-24
testimony by telephonic, voice, or video conferencing 7-38

Presumption of innocence 12-53

Pretrial release 7-54
denial of 8-15
felonies 5-44
juveniles 5-51
misdemeanors 5-34
money bail 8-7
personal recognizance 8-3
rationale for decision 8-17
Privilege
waiver
insanity defense 10-15
Pro se litigants 1-16
Probable cause 3-20, 3-61
affidavits 3-23
definition 3-21, 3-61
evidentiary support 3-22
record of testimony 3-23
staleness 3-62
to arrest 3-6
Probable cause conference 2-20, 5-14, 7-7, 7-8
joinder 7-8
scheduling 7-7
Problem-solving courts 6-32
Property to be seized
description of 3-58
property subject to seizure 3-60
Prosecutorial error 12-45
bolstering or vouching 12-45
commentary on defendant’s pre-arrest silence or conduct 12-43
failure to correct false or misleading testimony 12-45
Public trial 1-3
gag orders 1-3
R
Records
access 1-4
definitions 1-4
Department of State Police records
arrest card 3-31
biometric data 3-29
fingerprints 3-29, 3-31
district court 2-21, 5-15
record of proceedings 1-2
reproduction fees 1-10

retention and destruction 1-9

records that may not be destroyed 3-33
sealing 1-7
Recross examination 12-36
Redirect examination 12-36
Release
pending appeal 8-27
Right to counsel 4-5
actual imprisonment 4-3
appeal
plea 6-41, 6-78
arraignment 5-32
constitutional rights 4-2
counsel of choice 4-3
Michigan Indigent Defense Commission Act 4-5
pleas 6-24
review 7-29
waiver 7-27
uncounseled plea and collateral attack 6-44
waiver of counsel 4-19, 7-27
self-representation 4-19
S
Search and seizure
automobiles 11-32
conduct not constituting a seizure 11-37
containers 11-40
detention of occupants 11-35
dog sniff 11-38
length of stop 11-35
probable cause to search 11-38
reasonableness of traffic stop 11-33
search of occupants 11-39
blood draw 11-6, 11-13, 11-16
breath test 11-16
community caretaking 11-30
consent 11-20
consent by reference to search warrant 11-24
consent by third person 11-21
defendant’s consent 11-20
definitions 11-4
dog sniff 11-6, 11-38
dwellings 11-25
curtilage 11-25

knock-and-announce 11-27
knock-and-talk 11-28
no-knock entry 11-28
standing 11-26
warrantless entry 11-30
exclusionary rule 11-46
attenuation doctrine 11-49
exceptions involving causal relationship between unconstitutional act and
discovery of evidence 11-46
good faith 11-52
independent source doctrine 11-48
inevitable discovery exception 11-46
statutory violations 11-55
expectation of privacy 11-9
generally 11-2
hot pursuit 11-30
location of the search 11-25
parolees 11-45
prison or jail 11-44
probationers 11-45
reasonable expectation of privacy 11-4, 11-9
curtilage 11-5
drug-sniffing dogs 11-6
information conveyed to third parties 11-6
open fields 11-5
testing of bodily fluids 11-6
use of flashlight 11-7
use of GPS tracking device 11-7
use of historical cell phone records 11-7
vehicle parked on public street 11-6
roadblocks and checkpoints 11-45
schools 11-43
search 11-4
seizure 11-8
standing
abandoned property 11-10
dwellings 11-26
standing generally 11-9
Terry stop 11-19
traffic stops 11-32
Search warrant 2-16, 5-10
affidavit 3-64
execution 3-70
hearsay information 3-66
public access to 3-80
anticipatory 3-64
authority to issue 3-53

circuit court judge 3-53

district court judge 3-53, 3-54
district court magistrate 3-54
description of person to be searched for or seized 3-57
description of premises 3-55
description of property to be seized 3-58
detention incident to execution of search warrant 11-31
drafting and typing documents 3-51
electronic communications 3-76
exceptions
border searches 11-24
consent 11-20
exigent circumstances 11-11
inspections 11-24
inventory search 11-18
Terry stop 11-19
traffic stops 11-33
exceptions to warrant requirement 11-11
execution 3-77
required actions upon seizure of property 3-78
initiating the process 3-50
invalidity and suppression of evidence 3-69
issuance
electronic device 3-72
knock-and-announce 11-27
no-knock entry 11-28
operating while intoxicated cases 3-73
probable cause 3-61
property subject to seizure 3-60
review of decision to issue 3-54
signature of prosecuting official 3-51
Seizure 3-60
Self-representation
advice at subsequent proceedings 4-25
right of 4-19
standby counsel 4-26
Sentence bargaining 6-5
Sequestration
trial 12-78
Sixth Amendment
Speedy trial
180-day rule 9-45
delay 9-42
right to 9-41, 9-49

Statutes of limitations 6-19

Stipulations 12-30
Strict liability 10-3
Subpoenas 12-29
motion to quash 12-30
right to compulsory process 12-29
subpoena duces tecum 12-30
Sufficiency of evidence
bench trial 12-8
Summons to appear 3-49
Suppression of evidence
defective search warrant 3-69
Fourth Amendment grounds 11-46
T
Terry stops 11-19
Traffic stops
reasonableness 11-33
Traffic violations
arraignment 5-34
written plea 6-49
Translators 1-17
Trial
attorney misconduct 12-45
bench trial 12-5
court view of property or place 12-6
evidentiary issues 12-6
findings 12-7
judgment 12-7
judicial disqualification 12-5
motion for acquittal 12-7
pretrial motions 12-5
closing argument 12-39
closure 1-3, 12-8
conducting the trial 12-30
court’s duty to control proceedings 12-30, 12-32
defendant’s absence 12-57
defendant’s clothing 12-54
defendant’s conduct and appearance 12-53
defendant’s presumption of innocence 12-53
defendant’s right to be present 12-56
defendant’s right to testify 12-58
interim commentary 12-32
jury instructions
model jury instructions 12-62
jury selection


jury trial 12-2
alternate jurors 12-11
anonymous jury 12-13
communication with jury 12-78
deliberations 12-78
directed verdict 12-59
issues affecting jury during trial 12-50
jury instructions 12-61
jury selection 12-9
oath or affirmation 12-24
removal or substitution of juror at trial 12-23
right to jury 12-2
sequestration or separation of jury 12-78
standard of review of waiver 12-4
substitution of judge 12-24
waiver of jury trial 12-2
oaths or affirmations 12-24
open trial 1-3, 12-8
opening statement 12-31
prosecutorial error 12-45
questions or comments by judge 12-37
recross examination 12-36
redirect examination 12-36
special protections for vulnerable witnesses 12-33
stipulations 12-30
summation of evidence by court 12-50
trial rights 12-2
verdict 12-86
videoconferencing technology 12-32
witnesses
court’s duty to control witnesses 12-32
cross-examination 12-35
direct examination 12-35
examination 12-32
Trial rights 12-2
compulsory process 12-29
presumption of innocence 12-53
V
Venue
criminal conduct near county boundary lines 2-23

criminal conduct occurring at more than one location 2-23

accessory after the fact 2-26
felony consisting of two or more acts 2-23
identity theft and related offenses 2-25
district court 2-28
preliminary examination 7-17, 7-18
error 2-32
general rules based on political district and location of criminal conduct 2-22
generally 2-21
location of offense impossible to determine 2-27
motion to change venue 2-30
sufficiency of evidence 2-29
Verdict 12-86
bench trial 12-7
inconsistent and mutually exclusive verdicts 12-88
inquiry into validity of verdict 12-92
no-impeachment rule 12-92
polling 12-91
several counts 12-90
special verdict 12-90
unanimity requirement 12-86
alternate theories of offense 12-86
Victims’ rights 7-40
Video and audio technology 5-20
appearance of judge 1-12
Videoconferencing technology 12-32
View of property or place
bench trial 12-6
Voir dire 12-13
challenges for cause 12-15
peremptory challenges 12-17
substitution of judges after voir dire 12-24
Voluntary intoxication 10-4, 10-19
Vouching 12-45
W
Waiver
waiver of arraignment 5-29
waiver of right to counsel 5-29
Waiver of counsel—see Right to counsel
Warrantless arrest 3-41
Warrants 2-16, 3-11, 5-10
Witnesses 12-32
bolstering or vouchering 12-45
cross-examination 12-35
direct examination 12-35

false or misleading testimony

prosecutor’s duty to correct 12-45
material witness 9-17
production 9-17
questions or comments by judge 12-37
special protections for vulnerable witnesses 12-33
support animals 12-33
videoconferencing technology 12-32
Written plea 6-49

Tables of Authority
Cases
Michigan Statutes
Michigan Court Rules
Michigan Rules of Evidence
Michigan Rules of Professional Conduct
Michigan Criminal Jury Instructions
United States Code
Constitutional Authority

Table of Authorities Index
Criminal Proceedings Benchbook, Vol. 1, Revised Ed.

TABLE OF AUTHORITIES
Cases
A
Abela v Gen Motors Corp, 469 Mich 603 (2004) 6-75
Adams v Williams, 407 US 143 (1972) 3-23
Aguilar v Texas, 378 US 108 (1963) 3-67
Ake v Oklahoma, 470 US 68 (1985) 9-18
Alabama v Shelton, 535 US 654 (2002) 4-3
Alabama v White, 496 US 325 (1990) 11-20
Ambrose v Booker, 684 F3d 638 (CA 6, 2012) 12-11
Anders v California, 386 US 738 (1967) 4-19
Arizona v Gant, 556 US 332 (2009) 11-41, 11-42, 11-43, 11-54
Arizona v Johnson, 555 US 323 (2009) 11-36, 11-37, 11-40
Arizona v Washington, 434 US 497 (1978) 12-94
Ashe v Swenson, 397 US 436 (1970) 9-30, 9-34
Attorney Gen v Michigan Pub Svc Comm, 243 Mich App 487 (2000) 1-14
Avink v SMG, 282 Mich App 110 (2008) 1-14
B
Bailey v United States, 568 US 186 (2013) 3-58, 11-8, 11-31, 11-32
Barber v Page, 390 US 719 (1968) 7-33
Barker v Wingo, 407 US 514 (1972) 9-41, 9-43
Batson v Kentucky, 476 US 79 (1986) 12-19
Bednarski v Bednarksi, 141 Mich App 15 (1985) 1-18, 1-20, 1-21, 1-22, 1-24
Berghuis v Smith, 559 US 314 (2010) 12-10, 12-19
Bers v Bers, 161 Mich App 457 (1987) 9-23
Betterman v Montana, 578 US ___ (2016) 3-7, 9-41
Birchfield v North Dakota, 579 US ___ (2016) 3-75, 11-6, 11-17
Blockburger v United States, 284 US 299 (1932) 9-29
Blueford v Arkansas, 566 US 599 (2012) 9-34, 12-85, 12-86, 12-94, 12-95
Boccarossa v Dep’t of Transportation, 190 Mich App 313 (1991) 12-30
Bourjaily v United States, 483 US 171 (1987) 9-5
Boykin v Alabama, 395 US 238 (1969) 6-26
Brady v Maryland, 373 US 83 (1963) 9-8, 9-13
Brady v United States, 397 US 742 (1970) 6-17, 6-23, 6-64
Bravo-Fernandez v United States, 580 US ___ (2016) 9-32, 9-34, 9-35
Brendlin v California, 551 US 249 (2007) 11-8, 11-32, 11-39
Brigham City, Utah v Stuart, 547 US 398 (2006) 11-12
Brown v Illinois, 422 US 590 (1975) 11-49
Michigan Judicial Institute TOA: Cases - 1
Table of Authorities: Cases
Bumper v North Carolina, 391 US 543 (1968) 11-24

Byrd v United States, 584 US ___ (2018) 11-9, 11-43
C
California v Acevedo, 500 US 565 (1991) 11-40
California v Greenwood, 486 US 35 (1988) 11-6
California v Hodari D, 499 US 621 (1991) 11-8
Calvert Bail Bond Agency, LLC v St Clair Co, 314 Mich App 548 (2016) 8-24
Camara v Municipal Court, 387 US 523 (1967) 11-24
Carpenter (Timothy) v United States, ___ US ___ (2018) 11-7
Carroll v United States, 267 US 132 (1925) 11-18, 11-38
Castaneda v Partida, 430 US 482 (1977) 3-82
Chaidez v United States, 568 US 342 (2013) 6-16, 6-75
Chambers v Maroney, 399 US 42 (1970) 11-38
City of Plymouth v McIntosh, 291 Mich App 152 (2010) 3-46, 5-37
City of Troy v Ohlinger, 438 Mich 477 (1991) 11-11, 11-30
City of Westland v Kodlowski, 298 Mich App 647 (2012) 11-22
City of Westland v Kodlowski, 495 Mich 871 (2013) 11-22
Class v United States, 583 US ___ (2018) 6-44
Coleman v Alabama, 399 US 1 (1970) 4-2, 7-26, 7-29
Collins v Virgina, ___ US ___ (2018) 11-26
Cooper v Oklahoma, 517 US 348 (1996) 10-5
Currier v Virgina, ___ US ___ (2018) 9-24
Currier Virginia, ___ US ___ (2018) 9-30
Custis v United States, 511 US 485 (1994) 6-45
D
Davis v United States, 564 US 229 (2011) 11-42, 11-54
Deck v Missouri, 544 US 622 (2005) 12-54, 12-55
Donkers v Kovach, 277 Mich App 366 (2007) 12-27
Dow Chemical Co v United States, 476 US 227 (1986) 11-5, 11-6
Doyle v Ohio, 426 US 610 (1976) 12-43, 12-44
Drayton v United States, 536 US 194 (2002) 11-8
Drope v Missouri, 420 US 162 (1975) 10-4, 10-7
Duncan v Louisiana, 391 US 145 (1968) 12-9
Dunn v Detroit Auto Inter-Ins Exch, 254 Mich App 256 (2002) 1-13, 3-7, 3-10, 3-11, 3-
28, 3-38, 3-56, 3-72, 3-84, 4-22, 4-23, 4-25, 5-18, 6-5, 7-28, 9-16, 9-25, 9-26, 9-
50, 9-54, 11-22, 12-36, 12-41, 12-71, 12-72, 12-74, 12-76, 12-79, 12-83, 12-88
Dunn v United States, 284 US 390 (1932) 12-88
Duren v Missouri, 439 US 357 (1979) 12-9, 12-10, 12-11
Dusky v United States, 362 US 402 (1960) 10-5
E
Estelle v McGuire, 502 US 62 (1991) 12-61
Estelle v Williams, 425 US 501 (1976) 12-54
TOA: Cases - 2 Michigan Judicial Institute

Evans & Luptak, PLC v Lizza, 251 Mich App 187 (2002) 1-13, 1-14
Evans v Michigan, 568 US 313 (2013) 9-33, 12-60
F
Faretta v California, 422 US 806 (1975) 4-19, 4-23, 4-27
Fernandez v California, 571 US ___ (2014) 11-21
Florence v Board of Chosen Freeholders of County of Burlington, 566 US 318 (2012) 11-
44
Florida v Bostick, 501 US 429 (1991) 11-8
Florida v Harris, 568 US 237 (2013) 11-38
Florida v Jardines, 569 US 1 (2013) 11-4, 11-6, 11-10, 11-25, 11-26, 11-29, 11-30
Florida v Jimeno, 500 US 248 (1991) 11-20
Florida v Riley, 488 US 445 (1989) 11-6
Florida v Rodriguez, 469 US 1 (1984) 11-8
Florida v Wells, 495 US 1 (1990) 11-18
Frankfurth v Detroit Med Ctr, 297 Mich App 654 (2012) 9-24
Franks v Delaware, 438 US 154 (1978) 3-65
Frisbie v Collins, 342 US 519 (1952) 3-21
G
Garza v Idaho, ___ US ___ (2019) 6-43
Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672 (1972) 6-21, 7-60
Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115 (1974) 6-21, 7-60
Georgia v Randolph, 547 US 103 (2006) 11-22
Gideon v Wainwright, 372 US 335 (1963) 4-3, 6-24, 6-44
Giordenello v United States, 357 US 480 (1958) 3-21, 3-23
Godinez v Moran, 509 US 389 (1993) 6-4, 10-5
Grievance Administrator v Fieger, 476 Mich 241 (2006) 1-14
Griffin v California, 380 US 609 (1965) 12-42, 12-44
Griffin v Wisconsin, 483 US 868 (1987) 11-45
H
Halbert v Michigan, 545 US 605 (2005) 6-20, 6-41, 6-78, 6-79
Hamilton v People, 46 Mich 186 (1881) 3-17
Heien v North Carolina, 574 US ___ (2014) 11-16, 11-32, 11-33
Herring v United States, 555 US 135 (2009) 11-52
Hill v Lockhart, 474 US 52 (1985) 6-16, 6-22
Hudson v Michigan, 547 US 586 (2006) 3-78, 11-28, 11-49, 11-55
Hudson v Palmer, 468 US 517 (1984) 11-44
I
Iannelli v United States, 420 US 770 (1975) 9-30
Illinois v Allen, 397 US 337 (1970) 12-54, 12-56, 12-57
Illinois v Caballes, 543 US 405 (2005) 11-5, 11-35
Illinois v Gates, 462 US 213 (1983) 3-55, 3-67

Illinois v Rodriguez, 497 US 177 (1990) 11-21, 11-41
Illinois v Wardlow, 528 US 119 (2000) 11-19
In re Attorney General, 129 Mich App 128 (1983) 2-29, 2-31, 7-19
In re Bail Bond Forfeiture (People v Gaston), 496 Mich 320 (2014) 8-23
In re Carey, 241 Mich App 222 (2000) 10-5
In re Closure of Preliminary Examination, 200 Mich App 566 (1993) 7-31
In re Colacasides, 379 Mich 69 (1967) 3-81
In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697 (2000) 1-15
In re Contempt of Dorsey, 306 Mich App 571 (2014) 2-2
In re Contempt of Dougherty, 429 Mich 81 (1987) 1-14
In re Disclosure of Juror Names (People v Mitchell), 233 Mich App 604 (1999) 1-6
In re Disclosure of Juror Names and Addresses (People v Mitchell), 233 Mich App 604
(1999) 12-13
In re Elliott, 315 Mich 662 (1946) 2-9, 7-49
In re Forfeiture of $176,598, 443 Mich 261 (1993) 11-2, 11-12, 11-46
In re Forfeiture of Bail Bond (On Remand) (People v Moore), 276 Mich App 482 (2007)
8-23
In re Forfeiture of Bail Bond (People v Stanford), 318 Mich App 330 (2016) 8-22
In re Forfeiture of Bail Bond, 209 Mich App 540 (1995) 8-25
In re Forfeiture of Bail Bond, 229 Mich App 724 (1998) 8-25, 8-27
In re Forfeiture of Surety Bond, 208 Mich App 369 (1995) 8-22, 8-23, 8-27
In re Guilty Plea Cases, 395 Mich 96 (1975) 6-18, 6-22, 6-26, 6-27, 6-29, 6-52
In re Midland Publishing Co, Inc, 420 Mich 148 (1984) 1-6
In re People v Atkins, 444 Mich 737 (1994) 1-6
In re Rudy Liddell, 722 F3d 737 (2013) 5-47, 6-17, 6-24
In re Subpoenas to News Media Petitioners, 240 Mich App 369 (2000) 3-84
In re Wayne Co Prosecutor, 110 Mich App 739 (1981) 7-24
In re Winship, 397 US 358 (1970) 12-53, 12-61
Indiana v Edwards, 554 US 164 (2008) 4-27
Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America v
Dorsey, 268 Mich App 313 (2005) 1-12
Int’l Union, United Auto, Aerospace and Agricultural Implement Workers of America v
Dorsey, 474 Mich 1097 (2006) 1-12
Iowa v Tovar, 541 US 77 (2004) 4-22
J
Jaben v United States, 381 US 214 (1965) 3-22, 3-23
Jaikins v Jaikins, 12 Mich App 115 (1968) 1-14
Jeffers v United States, 432 US 137 (1977) 9-31
Jenkins v Anderson, 447 US 231 (1980) 12-43, 12-44
Jenson v Puste, 290 Mich App 338 (2010) 1-5, 1-8
Johnson v California, 545 US 162 (2005) 12-23
K
Kansas v Cheever, 571 US 87 (2013) 10-16, 10-20
Katz v United States, 389 US 347 (1967) 11-4, 11-5, 11-10

Kentucky v King, 563 US 452 (2011) 11-11

Kern v St Luke’s Hosp Ass’n of Saginaw, 404 Mich 339 (1978) 12-47
Knowles v Iowa, 525 US 113 (1998) 11-39
Kyles v Whitley, 514 US 419 (1995) 9-12, 9-13
Kyllo v United States, 533 US 27 (2001) 11-4
L
Lancaster v Metrish, 683 F3d 740 (CA 6, 2012) 10-18
Lichon v American Universal Ins Co, 435 Mich 408 (1990) 6-18, 6-19
M
Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750 (2014) 9-23
Manko v Root, 190 Mich App 702 (1991) 3-75
Manson v Brathwaite, 432 US 98 (1977) 9-49, 9-52
Manuel v City of Joliet, Illinois, 580 US ___ (2017) 11-5
Mapp v Ohio, 367 US 643 (1961) 11-2, 11-46
Marquette Prison Warden v Meadows, 114 Mich App 121 (1982) 1-16
Martinez v California, 528 US 152 (2000) 4-19
Maryland v King, 569 US 435 (2013) 8-15, 8-16, 8-18, 11-44
Mathews v United States, 485 US 58 (1988) 12-61
Matthews v BCBSM, 456 Mich 365 (1998) 3-21
McCray v Illinois, 386 US 300 (1967) 3-23
McKaskle v Wiggins, 465 US 168 (1984) 12-55
Mendoza v Berghuis, 544 F3d 650 (CA 6, 2008) 12-55
Metrish v Lancaster, 569 US 351 (2013) 10-18
Michigan Dep’t of State Police v Sitz, 496 US 444 (1990) 11-45
Michigan v Fisher, 558 US 45 (2009) 11-12
Michigan v Long, 463 US 1032 (1983) 11-40
Michigan v McQueen, 493 Mich 135 (2013) 12-4
Michigan v Summers, 452 US 692 (1981) 3-57, 11-31, 11-37
Minnesota v Carter, 525 US 83 (1998) 11-27
Minnesota v Olson, 495 US 91 (1990) 11-27
Miranda v Arizona, 384 US 436 (1966) 1-19, 7-17, 12-44
Missouri v Frye, 566 US 134 (2012) 5-47, 6-16, 6-24
Missouri v McNeely, 569 US ___ (2013) 3-76
Missouri v McNeely, 569 US 141 (2013) 11-6, 11-13, 11-17
Montejo v Louisiana, 556 US 778 (2009) 4-2
Moore v Illinois, 434 US 220 (1977) 9-49
Moore v Kemp, 809 F2d 702 (CA 11, 1987) 9-19
Morissette v United States, 342 US 246 (1952) 12-61
Muehler v Mena, 544 US 93 (2005) 11-32
Murray v United States, 487 US 533 (1988) 11-48
Musacchio v United States, 577 US ___ (2016) 12-78

N
Napue v Illinois, 360 US 264 (1959) 12-47
Navarette v California, 572 US 393 (2014) 11-20, 11-33, 11-34
Nebraska Press Ass’n v Stuart, 427 US 539 (1976) 1-3
Neder v United States, 527 US 1 (1999) 12-76
Negri v Slotkin, 397 Mich 105 (1976) 4-26
Neil v Biggers, 409 US 188 (1972) 9-49, 9-52
New Jersey v TLO, 469 US 325 (1985) 11-43
New York v Belton, 453 US 454 (1981) 11-41, 11-42, 11-43, 11-54
Nichols v United States, 511 US 738 (1994) 6-45
Nix v Williams (Robert), 467 US 431 (1984) 11-46, 11-48
Nixon v Warner Communications, Inc, 435 US 589 (1978) 1-13
North Carolina v Pearce, 396 US 711 (1969) 9-29
O
Oakland Co v State of Michigan, ___ Mich App ___ (2018) 4-6, 4-7, 4-9, 4-10, 4-12, 4-
13, 5-32, 5-46, 9-20
Oliver v United States, 466 US 170 (1984) 11-5, 11-6
Omdahl v West Iron Co Bd of Ed, 478 Mich 423 (2007) 1-16
Oregon v Kennedy, 456 US 667 (1982) 12-94
Ornelas v United States, 517 US 690 (1996) 3-21, 11-56
P
Padilla v Kentucky, 559 US 356 (2010) 6-16, 6-74, 6-75
Pate v Robinson, 383 US 375 (1966) 10-5, 10-6
Peña-Rodriguez v Colorado, 580 US ___ (2017) 12-92
Pennsylvania v Labron, 518 US 938 (1996) 11-38
People Coleman, 436 Mich 124 (1990) 3-56
People v Abraham (Nathaniel), 256 Mich App 265 (2003) 10-18, 12-39, 12-45
People v Abrams, 204 Mich App 667 (1994) 6-13, 6-15
People v Aceval, 282 Mich App 379 (2009) 4-4
People v Ackah-Essien, 311 Mich App 13 (2015) 12-85, 12-93, 12-94
People v Acosta, 143 Mich App 95 (1985) 6-13
People v Adamowicz, ___ Mich ___ (2018) 12-46
People v Adams (Shawn), 485 Mich 1039 (2010) 11-54
People v Adams (Stephan), 232 Mich App 128 (1998) 3-7, 3-8
People v Adkins (Kenneth Ray), 452 Mich 702 (1996) 4-21
People v Akhmedov, 297 Mich App 745 (2012) 10-23, 10-24
People v Akins, 259 Mich App 545 (2003) 4-4, 4-18
People v Aldrich, 246 Mich App 101 (2001) 9-11, 12-61
People v Allen (Demarcus), 498 Mich 954 (2015) 6-70
People v Allen (Lee), 192 Mich App 592 (1992) 6-20
People v Al-Shara, 311 Mich App 560 (2015) 6-27, 6-28, 6-29, 6-30
People v Alter, 255 Mich App 194 (2003) 12-93, 12-96
People v Anderson (Donny), 398 Mich 361 (1976) 4-21, 4-22
People v Anderson (Franklin), 389 Mich 155 (1973) 9-51
People v Anderson (Josephus), ___ Mich App ___ (2019) 6-13
People v Anderson (Tremel), ___ Mich ___ (2018) 7-34, 7-35

People v Andrews (Dwight), 192 Mich App 706 (1992) 6-21
People v Anstey, 476 Mich 436 (2006) 12-61
People v Anthony, ___ Mich App ___ (2019) 11-6, 11-8, 11-32, 11-37, 11-38
People v Antkoviak, 242 Mich App 424 (2000) 6-53
People v Antwine, 293 Mich App 192 (2011) 11-9, 11-27
People v Apgar, 264 Mich App 321 (2004) 12-72
People v Armisted, 295 Mich App 32 (2011) 6-16
People v Armstrong (Douglas), 212 Mich App 121 (1995) 12-58
People v Armstrong (Parys), 305 Mich App 230 (2014) 12-23
People v Arnold (Lonnie James), 502 Mich 438 (2018) 3-38, 4-22, 4-25, 9-26
People v Arnold, ___ Mich ___ (2018) 4-22
People v Arquette, 202 Mich App 227 (1993) 4-3
People v Arterberry, 431 Mich 381 (1988) 3-57
People v Arthur (Charles), 495 Mich 861 (2013) 4-20, 12-55
People v Asevedo, 217 Mich App 393 (1996) 12-88
People v Babcock (Jack), 301 Mich 518 (1942) 12-36
People v Baham, 321 Mich App 228 (2017) 9-40
People v Baham, 321 Mich App 228(2017) 6-78
People v Bahoda, 448 Mich 261 (1995) 12-45
People v Bailey (David), 7 Mich App 157 (1967) 6-24
People v Bailey (Ryan), 310 Mich App 703 (2015) 3-35
People v Baker, 103 Mich App 255 (1981) 9-50
People v Baker, 288 Mich App 378 (2010) 9-40
People v Banks, 249 Mich App 247 (2002) 9-14, 12-56
People v Barbarich, 291 Mich App 468 (2011) 11-33
People v Barbee, ___ Mich App ___ (2018) 11-4, 11-5, 11-6, 11-7
People v Barkley, 225 Mich App 539 (1997) 3-71
People v Bass, 317 Mich App 241 (2016) 7-51
People v Baugh, 249 Mich App 125 (2002) 3-80
People v Bell (Marlon), 473 Mich 275 (2005) 12-23
People v Bellanca, 386 Mich 708 (1972) 3-84
People v Bennett, 290 Mich App 465 (2010) 7-52, 12-49
People v Bercheny, 387 Mich 431 (1972) 7-49, 7-51
People v Bergman, 312 Mich App 471 (2015) 9-38
People v Berry, 84 Mich App 604 (1970) 3-63
People v Bettistea, 173 Mich App 106 (1988) 3-37
People v Beuschlein, 245 Mich App 744 (2001) 11-13
People v Beydoun, 283 Mich App 314 (2009) 11-25
People v Biddles, 316 Mich App 148 (2016) 12-38
People v Bigelow, 229 Mich App 218 (1998) 9-40
People v Billings, 283 Mich App 538 (2009) 6-42
People v Bisard, 114 Mich App 784 (1982) 3-7, 3-9
People v Blackmon, 280 Mich App 253 (2008) 12-49
People v Blanton, 317 Mich App 107 (2016) 6-75
People v Blasius, 435 Mich 573 (1990) 11-12
People v Blevins, 314 Mich App 339 (2016) 9-54, 12-47
People v Blue, 428 Mich 684 (1987) 6-67
People v Blume, 443 Mich 476 (1993) 2-3
People v Boatman, 273 Mich App 405 (2006) 6-64, 6-75
People v Booth, 414 Mich 343 (1982) 6-23

People v Bordash, 208 Mich App 1 (1994) 6-16, 6-22

People v Bosca, 310 Mich App 1 (2015) 9-8, 9-39
People v Brake, 208 Mich App 233 (1994) 3-64
People v Brannon, 194 Mich App 121 (1992) 1-18, 1-19, 1-21, 3-61
People v Bray, 481 Mich 888 (2008) 8-23
People v Brinkey, ___ Mich App ___ (2019) 6-21, 6-23, 6-74
People v Broilo, 58 Mich App 547 (1975) 3-63
People v Brooks (Anthony), 293 Mich App 525 (2011) 7-28, 7-29
People v Brooks (Anthony), 490 Mich 993 (2012) 7-28
People v Brooks (Miguel), 184 Mich App 793 (1990) 5-49
People v Brooks (Robert), 75 Mich App 448 (1977) 3-51
People v Brown (Craig), 279 Mich App 116 (2008) 11-10, 11-23
People v Brown (James), 19 Mich App 66 (1969) 7-22
People v Brown (Shawn), 492 Mich 684 (2012) 6-31, 6-63, 6-74, 6-75, 6-79
People v Brown (Tommy), 267 Mich App 141 (2005) 12-70
People v Brownfield (After Remand), 216 Mich App 429 (1996) 6-23
People v Bryant (Ramon), 289 Mich App 260 (2010) 12-10
People v Bryant (Ramon), 491 Mich 575 (2012) 12-9, 12-10, 12-11
People v Buckner, 144 Mich App 691 (1985) 7-22, 7-23
People v Budzyn, 456 Mich 77 (1997) 12-80, 12-81
People v Buie (On Remand) (Buie IV), 298 Mich App 50 (2012) 4-16, 4-17, 12-57, 12-58
People v Buie, 491 Mich 294 (2012) 12-33
People v Bulger, 462 Mich 495 (2000) 6-20, 6-42
People v Bullock, 440 Mich 15 (1992) 11-40
People v Burns (Gary), 250 Mich App 436 (2002) 6-20
People v Burrill, 391 Mich 124 (1974) 3-13, 3-21, 3-22, 3-24, 7-17, 7-19
People v Cain (Brandon), 498 Mich 108 (2015) 12-26, 12-27
People v Cain (Darryl) (Cain I), 299 Mich App 27 (2012) 3-10, 3-28, 5-18, 5-19, 9-53
People v Cain (Darryl) (Cain II), 495 Mich 874 (2013) 3-10, 3-28, 5-18, 9-39, 9-53
People v Cain (Janice), 238 Mich App 95 (1999) 3-7, 3-8, 3-9, 3-10, 9-41, 9-43
People v Callon, 256 Mich App 312 (2003) 9-17
People v Campbell (Lawrence), 236 Mich App 490 (1999) 3-73
People v Campbell (Michael), 316 Mich App 279 (2016) 3-38, 4-22, 4-25, 9-26
People v Carines, 460 Mich 750 (1999) 6-8, 6-10, 6-16, 6-70, 12-26, 12-49, 12-74, 12-75
People v Carpenter (James), 464 Mich 223 (2001) 10-13, 10-18, 10-19
People v Carpentier, 446 Mich 19 (1994) 6-19, 6-43, 6-45
People v Carroll, 396 Mich 408 (1976) 9-28
People v Carter (Deborah), 250 Mich App 510 (2002) 11-38
People v Carter (Edward), 412 Mich 214 (1981) 7-26
People v Carter (Vincent), 462 Mich 206 (2000) 12-74
People v Cartwright, 454 Mich 550 (1997) 11-11, 11-30
People v Caulley, 197 Mich App 177 (1992) 10-15, 10-19, 10-21
People v Ceteways, 156 Mich App 108 (1986) 4-18
People v Chambers (Billy), 277 Mich App 1 (2007) 9-38
People v Champion (Kenneth), 452 Mich 92 (1996) 11-19
People v Chavies, 234 Mich App 274 (1999) 3-84
People v Cheeks, 216 Mich App 470 (1996) 12-38
People v Chelmicki, 305 Mich App 58 (2014) 12-87
People v Chenault, 495 Mich 142 (2014) 9-13
People v Chilton, 394 Mich 34 (1975) 6-23, 6-66
People v Chism, 390 Mich 104 (1973) 11-20

People v Chowdhury, 285 Mich App 509 (2009) 11-6, 11-24

People v Cipriano, 431 Mich 315 (1988) 3-10, 5-16, 5-19
People v Clary, 494 Mich 260 (2013) 12-43
People v Clement, 254 Mich App 387 (2002) 2-3, 6-41, 6-57
People v Cline, 276 Mich App 634 (2007) 2-31
People v Cobbs, 443 Mich 276 (1993) 6-6, 6-7, 6-54, 6-71
People v Cocuzza, 413 Mich 78 (1982) 12-5
People v Coddington, 188 Mich App 584 (1991) 7-48
People v Cohen, 294 Mich App 70 (2011) 3-6, 3-22, 7-33
People v Cole (David), 491 Mich 325 (2012) 6-17, 6-18, 6-21, 6-22, 6-23, 6-55, 6-63, 6-
64, 6-65
People v Cole (John), 349 Mich 175 (1957) 12-36
People v Coleman, ___ Mich App ___ (2019) 6-77
People v Collins (Charles), 166 Mich 4 (1911) 12-16
People v Collins (Harold), 388 Mich 680 (1972) 9-41, 9-42, 9-43
People v Collins (Jesse), 298 Mich App 458 (2012) 4-3, 8-21
People v Collins (Stormy), 298 Mich App 166 (2012) 2-5
People v Collins (WC), 438 Mich 8 (1991) 3-59
People v Conley (Aaron), 270 Mich App 301 (2006) 9-40, 9-41, 12-56
People v Conyers, 194 Mich App 395 (1992) 12-37
People v Cook (Dale), 153 Mich App 89 (1986) 3-58
People v Cook (Robert), 285 Mich App 420 (2009) 12-3, 12-4
People v Cook, ___ Mich App ___ (2018) 6-20
People v Cooks, 446 Mich 503 (1994) 12-87
People v Coones, 216 Mich App 721 (1996) 12-5
People v Cooper (After Remand), 220 Mich App 368 (1996) 3-34
People v Cooper (James), 309 Mich App 74 (2015) 12-45, 12-48, 12-49
People v Cornell, 466 Mich 335 (2002) 12-66, 12-69, 12-72, 12-75
People v Corr, 287 Mich App 499 (2010) 11-37, 11-55
People v Corteway, 212 Mich App 442 (1995) 6-16
People v Cotton (James), 191 Mich App 377 (1991) 7-39
People v Coy, 258 Mich App 1 (2003) 9-12
People v Craft, ___ Mich App ___ (2018) 9-53, 12-64, 12-73, 12-77
People v Crawford (David), 429 Mich 151 (1987) 7-22
People v Crawl, 401 Mich 1 (1977) 3-20
People v Crippen, 242 Mich App 278 (2000) 7-33, 7-35
People v Cummings (Warren), 84 Mich App 509 (1978) 6-13
People v Currelley, 99 Mich App 561 (1980) 9-54
People v Custer, 465 Mich 319 (2001) 11-19, 11-55
People v Czuprynski, ___ Mich App ___ (2018) 3-75
People v D’Angelo, 401 Mich 167 (1977) 10-22
People v Dagwan, 269 Mich App 338 (2005) 11-20, 11-23
People v Daniel (Hank), 207 Mich App 47 (1994) 9-42
People v Daniels (Chris), 39 Mich App 94 (1972) 9-51
People v Daniels (Daniel), 211 Mich App 257 (2015) 12-36
People v Daniels (Daniel), 311 Mich App 257 (2015) 4-20, 9-22, 9-23, 12-35
People v Daniels (Jerry), 163 Mich App 703 (1987) 12-54
People v Darden, 230 Mich App 597 (1998) 7-56
People v Daughenbaugh, 193 Mich App 506 (1992) 3-56
People v Daughenbaugh, 441 Mich 867 (1992) 3-56
People v Davenport, 99 Mich App 687 (1980) 3-6

People v David, 119 Mich App 289 (1982) 3-63

People v Davis (Demond) 10-8
People v Davis (Demond), 310 Mich App 276 (2015) 10-10
People v Davis (Gevon), 472 Mich 156 (2005) 9-32
People v Davis (Harriet), 442 Mich 1 (1993) 11-11, 11-13, 11-14, 11-15, 11-30
People v Davis (Joel), ___ Mich ___ (2019) 12-88
People v Davis (Joel), ___ Mich ___ (2019). 12-89
People v Davis (Joel), 320 Mich App 484 (2017) 12-88
People v Davis (John), 216 Mich App 47 (1996) 12-80
People v Davis (Keith), 277 Mich App 676 (2008) 12-71
People v Davis (Keith), 482 Mich 978 (2008) 12-71
People v Davis (Marcus), 250 Mich App 357 (2002) 11-34
People v Davis (Melvin), 146 Mich App 537 (1985) 9-52
People v Davis (Michael), 283 Mich App 737 (2009) 9-46
People v Davis (Thomas), 241 Mich App 697 (2000) 9-50
People v Davis, 29 Mich App 443 (1971) 7-49
People v Davis-Christian, 316 Mich App 204 (2016) 9-10
People v Dean (Raymond), 103 Mich App 1 (1982) 10-28
People v DeClerk, 400 Mich 10 (1977) 12-7
People v DeLisle, 202 Mich App 658 (1993) 2-31
People v Den Uyl, 320 Mich 477 (1948) 7-22
People v Dennany, 445 Mich 412 (1994) 4-19, 4-21, 4-26
People v Dickinson, 321 Mich App 1 (2017) 9-14, 9-40
People v Dimambro, 318 Mich App 204 (2016) 9-12
People v Dixon (Lamont), 217 Mich App 400 (1996) 12-54
People v Dobek, 274 Mich App 58 (2007) 12-48, 12-75
People v Dowdy, 489 Mich 373 (2011) 7-51
People v Drake (Chips), 246 Mich App 637 (2001) 7-32, 7-33
People v Duenaz, 306 Mich App 85 (2014) 9-39, 9-47
People v Dunbar (Charles), 463 Mich 606 (2001) 7-53
People v Duncan (Pat), 388 Mich 489 (1972) 3-80
People v Duncan (Timothy), 462 Mich 47 (2000) 12-77
People v Dunn, 446 Mich 409 (1994) 12-54
People v Dunson, 139 Mich App 511 (1985) 7-18
People v Duranseau, 221 Mich App 204 (1997) 9-26
People v Durfee, 215 Mich App 677 (1996) 4-18
People v Dye (Clifford), 356 Mich 271 (1959) 12-35
People v Earl (Ronald), 297 Mich App 104 (2012) 11-39
People v Earl (Ronald), 495 Mich 33 (2014) 11-39
People v Earls, 477 Mich 1119 (2007) 3-86
People v Eaton, 184 Mich App 649 (1990) 2-2, 2-6, 6-19, 6-43
People v Eddington, 77 Mich App 177 (1977) 7-22
People v Edmond, 81 Mich App 743 (1978) 8-7
People v Eisen, 296 Mich App 326 (2012) 12-75
People v Ellis (Tyrone), 468 Mich 25 (2003) 12-4
People v Eloby (After Remand), 215 Mich App 472 (1996) 6-32
People v Elston, 462 Mich 751 (2000) 9-14
People v Ept, 299 Mich 324 (1941) 9-15
People v Ervin (Timothy), 163 Mich App 518 (1987) 3-9
People v Evans, 156 Mich App 68 (1986) 4-17
People v Evans, 434 Mich 314 (1990) 8-23

People v Evans, 491 Mich 1 (2012) 9-33, 12-60

People v Evans, 493 Mich 959 (2013) 9-33, 12-61
People v Everett, 318 Mich App 511 (2017) 9-16
People v Fagan (On Remand), 213 Mich App 67 (1995) 3-84
People v Fairey, ___ Mich App ___ (2018) 7-33
People v Farquharson, 274 Mich App 268 (2007) 3-81, 3-84
People v Farrow, 461 Mich 202 (1999) 11-24
People v Ferguson, 376 Mich 90 (1965) 9-48
People v Ferrigan, 103 Mich App 214 (1981) 3-25
People v Fetterley, 229 Mich App 511 (1998) 3-59, 3-78, 11-27
People v Fields (Carl), 450 Mich 94 (1995) 10-28, 12-40, 12-42, 12-43, 12-46
People v Fiorillo, 195 Mich App 701 (1992) 3-54
People v Fisher (Charles), 220 Mich App 133 (1996) 2-24
People v Flaherty, 165 Mich App 113 (1987) 2-24
People v Fletcher (Michael), 260 Mich App 531 (2004) 12-82
People v Florinchi, 84 Mich App 128 (1978) 2-30
People v Fonville, 291 Mich App 363 (2011) 6-72
People v Ford, 262 Mich App 443 (2004) 9-29
People v Forrest, 72 Mich App 266 (1976) 9-42
People v Fortson, 202 Mich App 13 (1993) 3-36, 7-11
People v France, 436 Mich 138 (1990) 12-78, 12-79, 12-80
People v Franklin (John), 298 Mich App 539 (2012) 9-41
People v Franklin (Joseph), 491 Mich 916 (2012) 6-5, 6-8, 6-10, 6-16, 6-70
People v Franklin, 500 Mich 92 (2017) 3-65
People v Frazier (Alvin), 485 Mich 1044 (2010) 6-79
People v Frazier (Corey), 478 Mich 231 (2007) 4-28, 9-51
People v Frederick (On Remand), 313 Mich App 457 (2015) 11-29
People v Frederick, 500 Mich 228 (2017) 11-29, 11-30
People v Frohriep, 247 Mich App 692 (2001) 11-29
People v Fultz, 111 Mich App 587 (1981) 10-14
People v Fuqua, 146 Mich App 250 (1985) 10-28
People v Fyda, 288 Mich App 446 (2010) 10-22, 10-23, 10-25, 12-40, 12-43, 12-46
People v Gaines, 198 Mich App 130 (1993) 6-78
People v Gaines, 306 Mich App 289 (2014) 3-38, 9-25
People v Gallego (Luis), 199 Mich App 566 (1993) 9-47
People v Gallego, 430 Mich 443 (1988) 6-12
People v Galloway (John), 307 Mich App 151 (2014) 12-82, 12-83
People v Galloway (John), 498 Mich 902 (2015) 12-82
People v Galloway, 259 Mich App 634 (2003) 11-29
People v Gant, 48 Mich App 5 (1973) 12-43
People v Garay, 320 Mich App 29 (2017) 12-81
People v Garland, 286 Mich App 1 (2009) 9-39
People v Garvie, 148 Mich App 444 (1986) 6-44
People v Garvin (Demar), 235 Mich App 90 (1999) 3-78
People v Gates (Gregory), 434 Mich 146 (1990) 9-35
People v Gayheart, 285 Mich App 202 (2009) 2-3, 2-22, 2-29
People v Gentner, Inc, 262 Mich App 363 (2004) 9-48
People v Gibbs (Phillip), 299 Mich App 473 (2013) 9-40, 12-44
People v Gillam (Vincent), 93 Mich App 548 (1979) 3-62
People v Gillam (Willie), 479 Mich 253 (2007) 3-62, 3-77, 5-47, 6-17, 6-24, 12-55
People v Gillespie, 42 Mich App 679 (1972) 4-15

People v Gilmore, 222 Mich App 442 (1997) 9-42, 9-43, 9-47
People v Ginther, 390 Mich 436 (1973) 4-16, 4-17, 6-17
People v Girard, 269 Mich App 15 (2005) 9-26, 9-28
People v Glass (Willie), 464 Mich 266 (2001) 3-11, 3-12, 3-80, 3-82, 7-12
People v Goddard (Kenneth), 135 Mich App 128 (1984) 12-36
People v Goddard (Kenneth), 429 Mich 505 (1988) 12-36
People v Goecke, 457 Mich 442 (1998) 2-2, 2-8, 2-9, 7-33, 7-49
People v Goforth, 222 Mich App 306 (1997) 11-22
People v Goldston, 470 Mich 523 (2004) 3-75, 11-2, 11-52, 11-53
People v Gomer, 206 Mich App 55 (1994) 6-70
People v Gomez, 295 Mich App 411 (2012) 6-16, 6-75
People v Gonzales (Ronnie), 193 Mich App 263 1992) 12-93
People v Gonzalez (Ervey), 214 Mich App 513 (1995) 7-47
People v Gonzalez, 256 Mich App 212 (2003) 12-74
People v Gonzalez-Raymundo, 308 Mich App 175 (2014) 1-17, 1-28, 12-56
People v Graham, 173 Mich App 473 (1988) 3-15
People v Grant (Andre), 445 Mich 535 (1994) 10-16
People v Gray (Allen), 457 Mich 107 (1998) 9-50, 9-54
People v Gray (Norman), 466 Mich 44 (2002) 10-28
People v Green (Louis), 131 Mich App 232 (1983) 12-42
People v Green (Robert), ___ Mich App ___ (2018) 3-81, 4-3, 7-12
People v Green (Robert), 322 Mich App 676 (2018) 3-83
People v Green (Rodney), 228 Mich App 684 (1998) 12-49
People v Green, 310 Mich App 249 (2015) 9-7
People v Greenfield (On Reconsideration), 271 Mich App 442 (2006) 9-6
People v Gregory, 30 Mich 370 (1874) 3-17, 3-18
People v Grove, 455 Mich 439 (1997) 6-5, 6-8, 6-10, 6-16, 6-70
People v Guthrie, 317 Mich App 381 (2016) 3-32, 3-34
People v Gwinn, 111 Mich App 223 (1981) 9-55
People v Haack, 396 Mich 367 (1976) 6-22, 6-65
People v Hackett (William), 460 Mich 202 (1999) 12-43
People v Hackett, 421 Mich 338 (1984) 9-10
People v Hall (Lisa), 435 Mich 599 (1990) 7-10, 7-34, 7-52, 7-55
People v Hammond, 84 Mich App 60 (1978) 9-42
People v Hampton, 138 Mich App 235 (1984) 9-51
People v Hana, 447 Mich 325 (1994) 3-39, 9-27, 9-28
People v Hannold, 217 Mich App 382 (1996) 6-5, 6-40
People v Hardiman, 151 Mich App 115 (1986) 8-10
People v Harrell, 398 Mich 384 (1976) 12-13
People v Harris (Derrick), 190 Mich App 652 (1991) 12-58
People v Harris (Donald), 191 Mich App 422 (1991) 6-27
People v Harris (Isaiah), 261 Mich App 44 (2004) 9-56
People v Harris (Lamar), 224 Mich App 130 (1997) 6-70
People v Harris (Melody), 470 Mich 882 (2004) 6-42
People v Harris (Michael), 148 Mich App 506 (1986) 9-47
People v Harris (Thomas), 201 Mich App 147 (1993) 12-54
People v Harris (Walter), 159 Mich App 401 (1987) 7-48
People v Harris, 499 Mich 332 (2016) 4-12, 4-13, 5-32
People v Harrison (Charles), 163 Mich App 409 (1987) 5-18
People v Harvey (Wayne), 167 Mich App 734 (1988) 2-31
People v Hawkins, 468 Mich 488 (2003) 3-67, 3-68, 3-69, 3-71

People v Hawthorne, 474 Mich 174 (2006) 12-75

People v Hayden (Michael) (After Remand), 125 Mich App 650 (1983) 7-32
People v Hayden (William), 205 Mich App 412 (1994) 7-53
People v Hayes (Larry), 421 Mich 271 (1984) 10-13
People v Haynes (Joseph), 256 Mich App 341 (2003) 6-74
People v Haynie, ___ Mich App ___ (2019) 10-12, 10-15, 12-70, 12-73
People v Haywood (David), 209 Mich App 217 (1995) 12-93
People v Head, ___ Mich App ___ (2018) 3-40
People v Heft, 299 Mich 69 (2012) 12-69
People v Hellstrom, 264 Mich App 187 (2004) 11-2, 11-46
People v Hendershot, 357 Mich 300 (1959) 9-45
People v Hendricks, 446 Mich 435 (1994) 12-66, 12-72
People v Henry (After Remand), 305 Mich App 127 (2014) 7-56, 7-57, 9-54
People v Henry (Darrin), 477 Mich 1123 (2007) 11-10
People v Henry (Rahiem), 248 Mich App 313 (2001) 12-91, 12-93
People v Herndon, 246 Mich App 371 (2001) 3-10, 11-44
People v Herrick, 216 Mich App 594 (1996) 1-14, 3-14
People v Hickey, 103 Mich App 350 (1981) 12-83
People v Hickman, 470 Mich 602 (2004) 9-49, 9-51
People v Hicks (Rodney), 259 Mich App 518 (2003) 4-26
People v Higuera, 244 Mich App 429 (2001) 3-11, 3-16
People v Hill (Eric), 299 Mich App 402 (2013) 11-11, 11-14, 11-18, 11-30, 11-53
People v Hill (Thomas), 485 Mich 912 (2009) 4-20
People v Hill, 44 Mich App 308 (1973) 3-22
People v Hoffman, 205 Mich App 1 (1994) 9-28
People v Holmes, 482 Mich 1105 (2008). 12-82
People v Holtzman, 234 Mich App 166 (1999) 9-7
People v Horne, 147 Mich App 375 (1985) 7-22
People v Hornsby, 251 Mich App 462 (2002) 9-53
People v Horton (Lajamille), 283 Mich App 105 (2009) 11-20
People v Horton, 500 Mich 1034 (2017) 6-16, 6-22
People v Houthoofd, 487 Mich 568 (2010) 2-22, 2-24, 2-32, 7-55
People v Howard (Connell), 226 Mich App 528 (1997) 12-41
People v Howard (Troy), 233 Mich App 52 (1998) 11-28
People v Hudson, 241 Mich App 268 (2000) 7-33
People v Huffman, 315 Mich 134 (1946) 12-90
People v Hunt (Arthur), 442 Mich 359 (1993) 7-11, 7-35, 7-47
People v Hunter (Ralph), 370 Mich 262 (1963) 12-62
People v Hyde, 285 Mich App 428 (2009) 11-47
People v Ingram, 439 Mich 288 (1992) 6-45
People v Jackson (Andre), 292 Mich App 583 (2011) 9-8, 9-14
People v Jackson (Andrew), 417 Mich 243 (1983) 6-70
People v Jackson (Damon), 245 Mich App 17 (2001) 10-14
People v Jackson (Dorsey), 188 Mich App 117 (1990) 3-57
People v Jackson (Dwayne), 203 Mich App 607 (1994) 6-70, 6-71
People v Jackson (Harvey), 483 Mich 271 (2009) 7-53
People v Jackson (Kevin) (On Reconsideration), 313 Mich App 409 (2015) 12-9, 12-69,
12-96
People v Jackson (Walter), 467 Mich 272 (2002) 9-22
People v Jacobsen (Sheri Lynn), 448 Mich 639 (1995) 9-18
People v James (William), 272 Mich App 182 (2006) 6-42, 6-78

People v Jaworski, 387 Mich 21 (1972) 6-26, 6-51

People v Jendrzejewski, 455 Mich 495 (1997) 2-31, 2-32, 12-16
People v Jenkins (Shawn), 472 Mich 26 (2005) 11-19
People v Johnson (Gary) (On Rehearing), 208 Mich App 137 (1994) 12-7
People v Johnson (Henry), 427 Mich 98 (1986) 9-15
People v Johnson (James), 202 Mich App 281 (1993) 9-5
People v Johnson (Jessie), 466 Mich 491 (2002) 10-22, 10-23, 10-25
People v Johnson (Larry), 210 Mich App 630 (1995) 6-11
People v Johnson (Ricardo), 197 Mich App 362 (1992) 6-77
People v Johnson (Van), 57 Mich App 117 (1974) 7-16
People v Johnson (William), 187 Mich App 621 (1991) 12-87
People v Jones (Eddie), 249 Mich App 131 (2002) 3-56
People v Jones (Edward), 168 Mich App 191 (1988) 4-17
People v Jones (Henry), 162 Mich App 675 (1987) 3-58
People v Jones (Jeffrey), 279 Mich App 86 (2008) 9-49
People v Jones (Ponce), 424 Mich 893 (1986) 12-67
People v Jones (Stacey), 252 Mich App 1 (2002) 3-37
People v Jones (Thabo), 302 Mich App 434 (2013) 12-71
People v Jones (Thabo), 497 Mich 155 (2014) 12-66, 12-71
People v Juillet, 439 Mich 34 (1991) 10-22, 10-23
People v Kaigler, 368 Mich 281 (1962) 11-20
People v Kammeraad, 307 Mich App 98 (2014) 4-24, 4-26, 4-28, 9-39, 10-4, 10-5, 10-6,
10-7, 10-12, 12-57
People v Kaslowski, 239 Mich App 320 (2000) 3-57, 3-64
People v Katt, 248 Mich App 282 (2001) 12-66
People v Kaufman, 457 Mich 266 (1998) 9-48
People v Kavanaugh, 320 Mich App 293 (2017) 11-35, 11-36
People v Kazmierczak, 461 Mich 411 (2000) 3-55, 11-2, 11-40
People v Keller, 479 Mich 467 (2007) 3-61, 3-69
People v Kelly (Albert), 231 Mich App 627 (1998) 3-6, 12-39
People v Kennedy (Johnny Ray), ___ Mich ___ (2018) 3-7
People v Kennedy (Johnny Ray), 502 Mich 206 (2018) 3-7, 3-11, 9-18
People v Killebrew, 416 Mich 189 (1982) 6-6, 6-16, 6-54
People v King (Bradford), 215 Mich App 301 (1996) 12-78
People v King (Genevieve), 271 Mich App 235 (2006) 2-5, 2-26
People v King (Levurn), 210 Mich App 425 (1995) 12-51
People v King (Russell), 412 Mich 145 (1981) 7-48
People v Kinnebrew, 75 Mich App 81 (1977) 9-48
People v Kiyoshk, 493 Mich 923 (2013) 2-6
People v Kline (Donald), 113 Mich App 733 (1982) 6-4
People v Knight, 473 Mich 324 (2005) 12-19, 12-20, 12-21, 12-23
People v Kolniak, 175 Mich App 16 (1989) 3-66, 3-69
People v Konrad, 449 Mich 263 (1995) 7-39
People v Koonce, 466 Mich 515 (2002) 9-17
People v Kosik, 303 Mich App 146 (2013) 12-66
People v Kowalski (Jerome), 492 Mich 106 (2012) 10-7
People v Kowalski, 489 Mich 488 (2011) 12-74, 12-76
People v Kreiner, 497 Mich 1024 (2015) 6-6
People v Kruger, 466 Mich 50 (2002) 12-57
People v Krysztopaniec, 170 Mich App 588 (1988) 4-4
People v Kurylczyk, 443 Mich 289 (1993) 9-51, 9-52, 9-54

People v Labelle, 478 Mich 891 (2007) 11-16, 11-23, 11-39, 11-41
People v Lacalamita, 286 Mich App 467 (2009) 10-14, 12-39
People v Lane (Raymond), 453 Mich 132 (1996) 4-25
People v Lanzo Constr Co, 272 Mich App 470 (2006) 3-50, 12-8
People v Lapworth, 273 Mich App 424 (2006) 11-23
People v Laws, 218 Mich App 447 (1996) 7-17, 7-24
People v Lawton, 196 Mich App 341 (1992) 9-22, 12-48
People v Lee (Albert), 212 Mich App 228 (1995) 12-16, 12-17
People v Lee (Lum), 258 Mich 618 (1932) 12-31
People v Legrone, 205 Mich App 77 (1994) 12-16
People v Lemons (Cory), 299 Mich App 541 (2013) 11-13, 11-53
People v Leonard, 224 Mich App 569 (1997) 9-3
People v Leshaj, 249 Mich App 417 (2002) 12-42
People v Lester, 232 Mich App 262 (1998) 9-13
People v Lett, 466 Mich 206 (2002) 12-85, 12-86, 12-94
People v Levine (Brian), 461 Mich 172 (1999) 3-50, 11-38
People v Lewis (Gary) (On Remand), 322 Mich App 22 (2017) 7-30
People v Lewis (Gary), 500 Mich 1 (2017) 7-29
People v Lewis (Gary), 501 Mich 1 (2017) 4-4, 7-29
People v Lewis (James), 160 Mich App 20 (1987) 7-22
People v Lockridge, 498 Mich 358 (2015) 6-8
People v Lombardo, 216 Mich App 500 (1996) 11-9
People v Long (David Kerk) (On Remand), 419 Mich 636 (1984) 11-18
People v Losinger, 331 Mich 490 (1951) 7-16
People v Lowenstein, 118 Mich App 475 (1982) 3-52
People v Lown, 488 Mich 242 (2011) 2-2, 2-5, 2-6, 2-7, 9-44, 9-46
People v Lukity, 460 Mich 484 (1999) 12-49, 12-75, 12-77
People v Lyles, 501 Mich 107 (2017) 12-75, 12-77
People v Maggit, 319 Mich App 675 (2017) 11-16, 11-51
People v Mahdi, 317 Mich App 446 (2016) 11-23, 11-26, 11-46, 11-48
People v Mahone, 294 Mich App 208 (2011) 12-23
People v Mallory, 421 Mich 229 (1984) 5-16, 5-18, 5-26, 12-51, 12-52
People v Manning, 243 Mich App 615 (2000) 5-18, 9-48
People v Marsack, 231 Mich App 364 (1998) 11-21
People v Marshall (Dustin), 298 Mich App 607 (2012) 12-79
People v Marshall (Dustin), 493 Mich 1020 (2013) 12-79
People v Martin (Bobby), 271 Mich App 280 (2006) 3-59, 3-65, 3-67
People v Martinez (Gilbert), 307 Mich App 641 (2014) 6-8, 6-13, 6-71
People v Matheson, 70 Mich App 172 (1976) 6-4
People v Maxson, 482 Mich 385 (2008) 6-42
People v Mayberry, 52 Mich App 450 (1974) 3-22
People v Mayhew, 236 Mich App 112 (1999) 1-14
People v Mazzie, ___ Mich App ___ (2018) 11-9, 11-35, 11-55
People v McAllister, 241 Mich App 466 (2000) 9-55
People v McBurrows, 322 Mich App 404 (2017) 2-23, 2-24
People v McCline, 442 Mich 127 (1993) 12-24
People v McCray (Lorenzo), 245 Mich App 631 (2001) 10-28
People v McDonald (Deandre), 293 Mich App 292 (2011) 12-82
People v McFall, 224 Mich App 403 (1997) 7-25, 9-18, 12-29
People v McGee (Anthony), 280 Mich App 680 (2008) 9-39
People v McGee (Keangela), 258 Mich App 683 (2003) 2-8, 3-36, 3-37, 3-40, 7-11, 7-49

People v McGhee (Larry A), 255 Mich App 623 (2003) 3-56
People v McGhee (Larry A), 268 Mich App 600 (2005) 12-41, 12-42, 12-44, 12-48, 12-
70, 12-75
People v McGinnis, 402 Mich 343 (1978) 10-27, 10-29
People v McKewen, ___ Mich App ___ (2018) 9-32, 12-89
People v McLaughlin, 258 Mich App 635 (2003) 9-41, 12-31, 12-45, 12-75
People v McSwain, 259 Mich App 654 (2003) 10-5
People v Mead (On Remand), 320 Mich App 613 (2017) 11-23, 11-39, 11-40, 11-41
People v Mehall, 454 Mich 1 (1997) 9-33, 12-60, 12-93
People v Melotik, 221 Mich App 190 (1997) 3-69
People v Meshell, 265 Mich App 616 (2005) 9-40
People v Messenger, 221 Mich App 171 (1997) 12-81, 12-96
People v Mette, 243 Mich App 318 (2000) 10-6, 10-12
People v Miklovich, 375 Mich 536 (1965) 7-49, 7-50
People v Miller (David), ___ Mich App ___ (2019) 12-77
People v Miller (Joseph), 498 Mich 13 (2015) 9-37, 9-40
People v Miller (Marvin), 288 Mich App 207 (2010) 7-51
People v Miller (Michael), 482 Mich 540 (2008) 12-14, 12-16
People v Miller (Willie), 440 Mich 631 (1992) 10-9, 10-11
People v Mills (Vester), 450 Mich 61 (1995) 12-30
People v Missouri, 100 Mich App 310 (1980) 9-43
People v Mitchell (Bradford), 301 Mich App 282 (2013) 12-75
People v Mitchell (Donald), 431 Mich 744 (1988) 6-23, 6-31, 6-72
People v Mitchell, 456 Mich 693 (1998) 9-39
People v Monasterski, 105 Mich App 645 (1981) 9-47
People v Moore (Eric), 497 Mich 1043 (2015) 10-13, 10-19
People v Moore (Eric), unpublished opinion per curiam of the Court of Appeals,
issued June 24, 2014 (Docket No. 315193) 10-19
People v Moore (Reuben), 391 Mich 426 (1974) 6-44
People v Morrow, 214 Mich App 158 (1995) 9-28
People v Morton, 77 Mich App 240 (1977) 9-52
People v Mosly, 259 Mich App 90 (2003) 12-3, 12-4
People v Muhammad (Elamin), ___ Mich App ___ (2018). 3-36
People v Muhammad (Elamin), ___ Mich App, ___ (2018) 3-21, 3-24
People v Mullen, 282 Mich App 14 (2008) 3-65
People v Mungo (On Second Remand), 295 Mich App 537 (2012) 11-43, 11-54
People v Munley, 175 Mich App 399 (1989) 8-27
People v Mushlock, 226 Mich 600 (1924) 3-63
People v Mysliwiec, 315 Mich App 414 (2016) 8-7, 8-20
People v Nash, 244 Mich App 93 (2000) 12-96
People v Nash, 418 Mich 196 (1983) 11-9
People v Naugle, 152 Mich App 227 (1986) 3-35
People v Nelson, 443 Mich 626 (1993) 11-2
People v Nevitt, 76 Mich App 402 (1977) 7-52, 7-55
People v New, 427 Mich 482 (1986) 6-19, 6-43
People v Nguyen, 305 Mich App 740 (2014) 3-6, 11-16
People v Nick, 360 Mich 219 (1960) 12-78
People v Nickens, 470 Mich 622 (2004) 10-19, 10-20, 12-66
People v Nix (Paul), 301 Mich App 195 (2013) 7-57, 7-59
People v Nix (Terressa), 453 Mich 619 (1996) 9-33, 12-60
People v Nixten, 183 Mich App 95 (1990) 6-12

People v Nutt, 469 Mich 565 (2004) 9-29

People v Nyx (Maurice), 479 Mich 112 (2007) 12-67, 12-72
People v O’Brien, 89 Mich App 704 (1979) 4-16
People v Olney, ___ Mich App ___ (2019) 7-34
People v Oros, 320 Mich App 146 (2017) 9-25, 12-74, 12-76
People v Oros, 502 Mich 229 (2018) 9-25, 12-74, 12-76
People v Ortiz-Kehoe, 237 Mich App 508 (1999) 12-96
People v Osborn, 122 Mich App 63 (1982) 3-62
People v Paquette, 214 Mich App 336 (1995) 12-37
People v Parker, 319 Mich App 664 (2017) 7-36
People v Patmore, 264 Mich App 139 (2004) 6-72
People v Patton, 285 Mich App 229 (2009) 3-8, 9-41, 9-47
People v Paul (Clyde), 203 Mich App 55 (1993) 3-72
People v Paul (Clyde), 444 Mich 949 (1994) 3-54
People v Paul, 444 Mich 949 (1994) 3-72
People v Payne (Scott), 285 Mich App 181 (2009) 6-5, 7-56, 12-54, 12-55
People v Payne, 424 Mich 475 (1985) 3-25, 3-52
People v Pennington, ___ Mich App ___ (2018) 12-6
People v Perkins (Floyd), 314 Mich App 140 (2016) 4-3
People v Perkins (Mark), 468 Mich 448 (2003) 7-32, 7-34
People v Perlos, 436 Mich 305 (1990) 3-74, 11-9
People v Perry (Rodney), 317 Mich App 589 (2016) 3-36, 3-37, 9-38, 9-51
People v Petrella, 424 Mich 221 (1985) 12-8
People v Phillips (Louis), 383 Mich 464 (1970) 5-29
People v Phillips (Paul), 468 Mich 583 (2003) 9-6, 9-15
People v Pigula, 202 Mich App 87 (1993) 3-35
People v Pointer-Bey, 321 Mich App 609 (2017) 6-8, 6-31, 6-65, 6-71
People v Portillo, 241 Mich App 540 (2000) 4-5
People v Powell (Paul), 235 Mich App 557 (1999) 11-10
People v Powell (Willie), 303 Mich App 271 (2013) 12-79
People v Pruitt, 229 Mich App 82 (1998) 7-24
People v Pubrat, 451 Mich 589 (1996) 6-24
People v Putman, 309 Mich App 240 (2015) 12-28
People v Quider, 172 Mich 280 (1912) 3-11, 3-16, 3-17
People v Ramsey (Bruce), 422 Mich 500 (1985) 10-14, 10-18
People v Ramsey, 385 Mich 221 (1971) 12-6
People v Randall (Robert), 42 Mich App 187 (1972) 7-39
People v Rasmussen, 191 Mich App 721 (1991) 11-10
People v Ratcliff, 299 Mich App 625 (2013) 9-50
People v Ratcliff, 495 Mich 876 (2013) 9-50
People v Ratliff, 424 Mich 874 (1986) 4-22
People v Ray, 431 Mich 260 (1988) 10-5, 10-6
People v Reagan (E.J.), 395 Mich 306 (1975) 6-14
People v Ream, 481 Mich 223 (2008) 9-37, 9-39
People v Reedy, 151 Mich App 143 (1986) 7-49, 7-50
People v Reese (Clinton), 466 Mich 440 (2002) 12-67
People v Reese (Richard), 281 Mich App 290 (2008) 11-49, 11-50
People v Reichenbach, 459 Mich 109 (1998) 6-45
People v Reid (Gregory), 420 Mich 326 (1984) 6-20
People v Reid (Michael), 488 Mich 917 (2010) 2-9
People v Reynolds (Anthony), 93 Mich App 516 (1979) 9-5

People v Richards (Kyle), 315 Mich App 564 (2016) 4-22

People v Richards (Kyle), 501 Mich 921 (2017) 4-23
People v Richert (After Remand), 216 Mich App 186 (1996) 5-32
People v Rivera, 301 Mich App 188 (2013) 9-43, 9-46
People v Robar, 321 Mich App 106 (2017) 12-70
People v Robbins (Darrell), 223 Mich App 355 (1997) 7-20, 7-52, 7-53, 7-55, 12-93
People v Rosborough, 387 Mich 183 (1972) 3-64
People v Roscoe, 303 Mich App 633 (2014) 12-49
People v Roseberry, 465 Mich 713 (2002) 6-45
People v Ross (Edward), 145 Mich App 483 (1985) 9-42
People v Ross (Kenneth), 181 Mich App 89 (1989) 12-38
People v Roupe, 150 Mich App 469 (1986) 12-16
People v Rouse ( II), 477 Mich 1063 (2007) 12-83
People v Rouse, 272 Mich App 665 (2006) 12-83, 12-84
People v Russell (Darwin), 266 Mich App 307 (2005) 3-36
People v Russell (Fred), 297 Mich App 707 (2012) 12-88
People v Russell (Lord), 471 Mich 182 (2004) 4-22, 4-23, 6-25
People v Russo, 439 Mich 584 (1992) 3-54, 3-61, 3-62
People v Ryan (Thomas), 451 Mich 30 (1996) 6-12
People v Saffold, 465 Mich 268 (2001) 6-27, 6-29
People v Salazar, 124 Mich App 249 (1983) 7-49
People v Sanford (Davontae), 495 Mich 989 (2014) 6-73
People v Sawyer (Thomas), 215 Mich App 183 (1996) 12-13, 12-14
People v Sawyer, 222 Mich App 1 (1997) 9-51
People v Schneider, 132 Mich App 214 (1984) 6-44
People v Schoeneth, 44 Mich 489 (1880) 2-9
People v Schrauben, 314 Mich App 181 (2016) 12-40, 12-45, 12-48
People v Schumacher, 276 Mich App 165 (2007) 7-39, 12-41
People v Scott (Nelson), ___ Mich App ___ (2018) 3-8
People v Seals, 285 Mich App 1 (2009) 3-85
People v Sepulveda, 412 Mich 889 (1981) 1-26
People v Shabaz, 424 Mich 42 (1985) 11-3, 11-11
People v Shaw (Herschel), 381 Mich 467 (1969) 12-54
People v Sherbine, 421 Mich 502 (1984) 3-68
People v Sherrod, 32 Mich App 183 (1971) 2-8, 7-49
People v Shields (Kyle), 200 Mich App 554 (1993) 9-5, 12-5
People v Short, 289 Mich App 538 (2010) 11-54
People v Shorter (Dakota), ___ Mich App ___ (2018) 12-34
People v Shue, 145 Mich App 64 (1985) 9-47
People v Siebert, 450 Mich 500 (1995) 6-14
People v Siemieniec, 368 Mich 405 (1962) 3-63
People v Simmons (Michael), 316 Mich App 322 (2016) 11-9, 11-34, 11-36
People v Simon (Kenneth), 189 Mich App 565 (1991) 12-6
People v Skowronek, 57 Mich App 110 (1975) 7-49
People v Slaughter, 489 Mich 302 (2011) 11-11, 11-15, 11-18
People v Sledge, 312 Mich App 516 (2015) 1-3
People v Sloan, 450 Mich 160 (1995) 3-71
People v Smart, 497 Mich 950 (2015) 6-5, 6-40
People v Smielewski (Timothy Richard), 235 Mich App 196 (1999) 12-88
People v Smielewski (Timothy), 214 Mich App 55 (1995) 4-2
People v Smith (Diapolis), 463 Mich 199 (2000) 12-9, 12-10

People v Smith (Feronda), 498 Mich 466 (2015) 12-47

People v Smith (Kerry), 211 Mich App 233 (1995) 12-7, 12-96
People v Smith (Lee), 420 Mich 1 (1984) 11-9
People v Smith (Randy), 478 Mich 64 (2007) 12-71
People v Smith (Rosie), 438 Mich 715 (1991) 9-46
People v Smith (Roy), 28 Mich App 656 (1974) 2-30
People v Smith (Steven), 191 Mich App 644 (1991) 11-49
People v Smith (Timothy), 423 Mich 427 (1985) 1-11, 7-17
People v Smith (Virgil), ___ Mich ___ (2018) 6-11, 6-15
People v Smith-Anthony, 494 Mich 669 (2013) 12-69
People v Smyers, 47 Mich App 61 (1973) 3-63
People v Sobczak-Obetts, 463 Mich 687 (2001) 3-79, 11-56
People v Spencer (Charles), 192 Mich App 146 (1991) 6-71
People v Spicer, 402 Mich 406 (1978) 8-19
People v Stanaway, 446 Mich 643 (1994) 9-10
People v Steanhouse, 313 Mich App 1 (2015) 9-16, 12-41
People v Steanhouse, 500 Mich 453 (2017) 9-16, 12-41
People v Stephan, 241 Mich App 482 (2000) 10-18
People v Sterling, 154 Mich App 223 (1986) 12-38
People v Stevens (Adam), 498 Mich 162 (2015) 12-35, 12-37, 12-38
People v Stevens (Eugene) (After Remand), 460 Mich 626 (1999) 11-46
People v Stevens (James), 461 Mich 655 (2000) 3-84, 6-77
People v Stewart, 166 Mich App 263 (1988) 3-57
People v Stokes ( II), 500 Mich 918 (2017) 12-82
People v Stokes ( II), 501 Mich 918 (2017) 12-40
People v Stokes, 312 Mich App 181 (2015) 12-40, 12-80
People v Stone, 269 Mich App 240 (2005) 9-28, 9-47
People v Strand, 213 Mich App 100 (1995) 9-53
People v Strawther, 480 Mich 900 (2007) 9-38
People v Strickland, 293 Mich App 393 (2011) 4-17
People v Strong, 213 Mich App 107 (1995) 6-72
People v Strutenski, 39 Mich App 72 (1972) 9-15
People v Stumpf, 196 Mich App 218 (1992) 3-66, 3-67
People v Sturgis, 427 Mich 392 (1986) 9-40
People v Suchy, 143 Mich App 136 (1985) 9-22
People v Sullivan (Charles), 392 Mich 324 (1974) 12-84
People v Sullivan (John), 231 Mich App 510 (1998) 10-15
People v Swafford, 483 Mich 1 (2009) 9-47
People v Swan, 394 Mich 451 (1975) 12-58
People v Swirles (After Remand), 218 Mich App 133 (1996) 6-76
People v Tanner (Hattie Mae), 255 Mich App 369 (2003) 3-7, 3-10
People v Tanner (Hattie Mae), 469 Mich 437 (2003) 3-7, 3-11, 9-18
People v Tate (Monya), 244 Mich App 553 (2001) 12-24
People v Tavernier, 295 Mich App 582 (2012) 11-42
People v Taylor (Kelvin), 252 Mich App 519 (2002) 12-37
People v Taylor (Paul), 253 Mich App 399 (2002) 11-31
People v Taylor (Robbie), 316 Mich App 52 (2016) 2-8, 7-49, 7-50
People v Taylor (Willie), 245 Mich App 293 (2001) 12-4
People v Tejeda (On Remand), 192 Mich App 635 (1992) 3-52
People v Telford, 56 Mich 541 (1885) 3-18
People v Tennille, 315 Mich App 51 (2016) 12-21, 12-22

People v Thew, 201 Mich App 78 (1993) 6-17, 6-72

People v Thomas (Billie), 96 Mich App 210 (1980) 7-42
People v Thomas (Elisah), 501 Mich 913 (2017) 9-55
People v Thomas (Michael), 441 Mich 879 (1992) 1-20
People v Thomason (Timothy), 173 Mich App 812 (1988) 5-30
People v Tierney, 266 Mich App 687 (2005) 3-6, 11-12, 11-25
People v Tobey, 401 Mich 141 (1977) 3-37
People v Toma, 462 Mich 281 (2000) 10-14
People v Tomasik, 498 Mich 953 (2015) 12-48
People v Toodle, 155 Mich App 539 (1986) 3-55
People v Toohey, 438 Mich 265 (1991) 11-18
People v Torres (Gavino) (On Remand), 222 Mich App 411 (1997) 12-67
People v Tracey, 221 Mich App 321 (1997) 9-7
People v Trakhtenberg, 493 Mich 38 (2012) 9-36
People v Traver, ___ Mich ___ (2018) 12-62
People v Traver, 316 Mich App 588 (2016) 12-65
People v Travis, 443 Mich 668 (1993) 10-26, 10-27, 10-29
People v Traylor, 245 Mich App 460 (2001) 4-18
People v Turner (Clarence Duane), 144 Mich App 107 (1985) 9-22
People v Twomey, 173 Mich App 247 (1988) 7-22
People v Tyburski, 196 Mich App 576 (1992) 12-14
People v Ulman, 244 Mich App 500 (2001) 3-61
People v Unger, 278 Mich App 210 (2008) 3-36, 3-59, 9-5, 12-40, 12-45, 12-49, 12-51,
12-52
People v Vansickle, 303 Mich App 111 (2013) 10-24, 10-25
People v Vasquez (After Remand), 461 Mich 235 (1999) 11-47
People v Vaughn (Marcus), 409 Mich 463 (1980) 12-7, 12-88
People v Vaughn, 491 Mich 642 (2012) 12-27
People v Veling, 443 Mich 23 (1993) 2-6, 2-9
People v Vonins (After Remand), 203 Mich App 173 (1993) 6-16, 6-22
People v Waclawski, 286 Mich App 634 (2009) 3-12, 3-71, 7-56, 9-43, 9-47
People v Wade (Michael), 283 Mich App 462 (2009) 12-90
People v Wagner (Charles), 114 Mich App 541 (1982) 12-4
People v Wakeford, 418 Mich 95 (1983) 9-38
People v Walker (Alonzo), 461 Mich 908 (1999) 12-7, 12-88
People v Walker (Jefforey), 162 Mich App 60 (1987) 12-16
People v Walker (Lee) (On Rehearing), 374 Mich 331 (1965) 9-48
People v Walker (On Rehearing), 374 Mich 331 (1965) 1-19, 7-17
People v Walls (Thomas), 265 Mich App 642 (2005) 12-73
People v Walters (Jayne), 266 Mich App 341 (2005) 9-23, 9-24
People v Wanty, 189 Mich App 291 (1991) 6-19, 6-43
People v Ward, 459 Mich 602 (1999) 6-29, 6-79
People v Ward, 460 Mich 1204 (1999) 6-29
People v Watson (David), 245 Mich App 572 (2001) 12-31, 12-35, 12-45
People v Weatherford, 132 Mich App 165 (1984) 8-18, 8-28
People v Weathersby, 204 Mich App 98 (1994) 12-38
People v Webbs, 263 Mich App 531 (2004) 2-24, 2-32
People v Wershe, 166 Mich App 602 (1988) 8-27
People v Wess, 235 Mich App 241 (1999) 12-61
People v West (Halton), 159 Mich App 424 (1987) 6-19, 6-43
People v Westra, 445 Mich 284 (1994) 3-55

People v Wheeler, 480 Mich 965 (2007) 12-72

People v White (Anthony), 501 Mich 160 (2017) 12-72
People v White (Calvin), 167 Mich App 461 (1988) 3-54
People v White (John), 411 Mich 366 (1981) 10-22
People v White (Kadeem), 493 Mich 962 (2013) 9-23
People v White (Rickey), 307 Mich App 425 (2014) 6-17
People v Whitehead, 238 Mich App 1 (1999) 3-10, 5-16, 5-19
People v Whyte, 165 Mich App 409 (1988) 6-4
People v Wickham, 200 Mich App 106 (1993) 9-42
People v Wiggins, 6 Mich App 340 (1967) 7-16
People v Wilder (Darrell), 485 Mich 35 (2010) 12-68, 12-69
People v Wilkins (David), 184 Mich App 443 (1990) 10-15, 10-21
People v Williams (Anterio), 244 Mich App 249 (2001) 9-28
People v Williams (Avana), 464 Mich 174 (2001) 6-8, 6-72
People v Williams (Carletus), 483 Mich 226 (2009) 3-37, 9-25
People v Williams (Charles), 386 Mich 565 (1972) 4-17, 9-22
People v Williams (Cleveland), 475 Mich 245 (2006) 3-84, 9-41, 9-46
People v Williams (Eddie), ___ Mich ___ (2018) 6-8
People v Williams (Joezell), 475 Mich 101 (2006) 9-40
People v Williams (John Lavell), 472 Mich 308 (2005) 11-36
People v Williams (Kathleen), ___ Mich App ___ (2018) 12-89
People v Williams (Kathleen), 323 Mich App 202 (2018) 12-89
People v Williams (Kevin), 244 Mich App 533 (2001) 4-2
People v Williams (Robert), 294 Mich App 461 (2011) 9-39
People v Williams (Rodney), 470 Mich 634 (2004) 4-21, 4-24, 4-25, 7-27
People v Williams (SL), 241 Mich App 519 (2000) 12-11, 12-13
People v Wilson (Albert), 390 Mich 689 (1973) 12-83, 12-91
People v Wilson (Donald), 469 Mich 1018 (2004) 7-52
People v Wilson (Dwayne), 496 Mich 91 (2014) 9-36
People v Wilson (Roy), 397 Mich 76 (1976) 9-22
People v Wilson, 496 Mich 91 (2014) 9-32
People v Winters, 320 Mich App 506 (2017) 6-30, 6-31
People v Wolfe, 338 Mich 525 (1953) 3-17
People v Wolverton, 227 Mich App 72 (1997) 12-31, 12-47
People v Woodard, 321 Mich App 377 (2017) 3-76, 11-17, 11-21
People v Woods (Art), 172 Mich App 476 (1988) 12-57
People v Woods (Robert), 241 Mich App 545 (2000) 10-24
People v Wookfolk, 304 Mich App 450 (2014) 3-8
People v Woolfolk, 304 Mich App 450 (2014) 3-7, 3-9, 9-55
People v Woolfolk, 497 Mich 23 (2014) 3-7, 9-55
People v Wright, 367 Mich 611 (1962) 3-63
People v Yost, 468 Mich 122 (2003) 7-33, 7-35, 7-52, 7-55
People v Young (Donnie), 21 Mich App 684 (1970) 9-52
People v Zahn, 234 Mich App 438 (1999) 11-10
People v Zitka, ___ Mich App ___ (2018) 9-36, 10-25
People v Zuccarini, 172 Mich App 11 (1988) 3-59
Peoples v Evening News Ass’n, 51 Mich 11 (1883) 9-23
Perry v New Hampshire, 565 US 228 (2012) 9-52
Peters Production, Inc v Desnick Broadcasting Co, 171 Mich App 283 (1988) 1-16
Presley v Georgia, 558 US 209 (2010) 1-3
Puckett v United States, 556 US 129 (2009) 1-15

Puerto Rico v Sanchez Valle, 579 US ___ (2016) 9-31, 9-32
R
Raffel v United States, 271 US 494 (1926) 12-43
Rakas v Illinois, 439 US 128 (1978) 11-9
Renico v Lett, 559 US 766 (2010) 9-34, 12-85, 12-94
Rice v White, 660 F3d 242 (CA 6, 2011) 12-19
Richards v Wisconsin, 520 US 385 (1997) 11-28
Richmond Newspapers, Inc v Virginia, 448 US 555 (1980) 1-3, 12-8
Riggins v Nevada, 504 US 127 (1992) 12-58
Riley v California, 573 US ___ (2014) 11-16, 11-33
Rivera v Illinois, 556 US 148 (2009) 12-18
Riverside Co v McLaughlin, 500 US 44 (1991) 3-10, 5-16, 5-19
Rodriguez v United States, 575 US ___ (2015) 11-7, 11-35
Rothgery v Gillespie Co, 554 US 191 (2008) 5-45, 6-24
Rothgery v Gillespie Co, Texas, 554 US 191 (2008) 4-2
Rymal v Baergen, 262 Mich App 274 (2004) 1-14
S
Safford Unified School Dist #1 v Redding, 557 US 364 (2009) 11-44
Salinas v Texas, 570 US ___ (2013) 12-44
Salinas v Texas, 570 US 178 (2013) 12-44
Samson v California, 547 US 843 (2006) 11-45
Schlossberg v State Bar Grievance Bd, 388 Mich 389 (1972) 1-13
Schmerber v California, 384 US 757 (1966) 11-13
Schneckloth v Bustamonte, 412 US 218 (1973) 11-20
Sell v United States, 539 US 166 (2003) 10-6
Shadwick v City of Tampa, 407 US 345 (1972) 3-25, 3-52
Shenkman v Bragman, 261 Mich App 412 (2004) 1-16
Sheppard (Samuel) v Maxwell, 384 US 333 (1966) 2-30
Sitz v Dep’t of State Police, 443 Mich 744 (1993) 11-45
Skilling v United States, 561 US 358 (2010) 2-30
Smith v Cain, 565 US 73 (2012) 9-13
Smith v Maryland, 442 US 735 (1979) 11-6
Snyder v Louisiana, 552 US 472 (2008) 12-21, 12-22
Spinelli v United States, 393 US 410 (1969) 3-67, 3-68
Stack v Boyle, 342 US 1 (1951) 8-2
State v Turley, 149 Wash 2d 395 (2003) 6-76
Stovall v Denno, 388 US 293 (1967) 9-52
Strickler v Greene, 527 US 263 (1999) 9-13
T
Taylor v Kentucky, 436 US 478 (1978) 12-54
Taylor v Louisiana, 419 US 522 (1975) 12-9
Terry v Ohio, 392 US 1 (1968) 3-57, 11-2, 11-3, 11-19, 11-32, 11-39

Texas v Brown, 460 US 730 (1983) 11-7

Thaler v Haynes, 559 US 43 (2010) 12-22
Thornton v United States, 541 US 615 (2004) 11-42
Town of Newton v Rumery, 480 US 386 (1987) 6-11
Truel v City of Dearborn, 291 Mich App 125 (2010) 3-86
U
Ungar v Sarafite, 376 US 575 (1964) 9-21
United States v Bagley, 473 US 667 (1985) 9-13
United States v Brignoni-Ponce, 422 US 873 (1975) 11-24
United States v Chadwick, 433 US 1 (1977) 11-32
United States v Cotton, 535 US 625 (2002) 2-2
United States v Cronic, 466 US 648 (1984) 4-28, 7-29
United States v Daigle, 149 F Supp 409 (D DC, 1957) 12-89
United States v Dunn, 480 US 294 (1987) 11-7, 11-25
United States v Frechette, 583 F3d 374 (CA 6, 2009) 3-62
United States v Gaudin, 515 US 506 (1995) 12-61
United States v Gonzalez-Lopez, 548 US 140 (2006) 4-4
United States v Grubbs, 547 US 90 (2006) 3-64
United States v Jacobsen, 466 US 109 (1984) 11-4, 11-8
United States v Johns, 469 US 478 (1985) 11-40
United States v Jones, 565 US 400 (2012) 11-4, 11-7, 11-10, 11-29, 11-32
United States v Knights, 534 US 112 (2001) 11-45, 11-46
United States v Lee, 274 US 559 (1927) 11-7
United States v Leon, 468 US 897 (1984) 3-20, 3-75, 11-52, 11-55
United States v Lovasco, 431 US 783 (1977) 3-7
United States v Martin Linen Supply Co, 430 US 564 (1977) 9-33, 12-60
United States v Matlock, 415 US 164 (1974) 11-21
United States v Miller, 425 US 435 (1976) 11-6
United States v Moreno, 933 F2d 362 (CA 6, 1991) 12-55
United States v Place, 462 US 696 (1983) 11-6, 11-8
United States v Robinson, 414 US 218 (1973) 11-15
United States v Ross, 456 US 798 (1982) 11-38, 11-40
United States v Salerno, 481 US 739 (1987) 8-2
United States v Salvucci, 448 US 83 (1980) 11-9
United States v Sokolow, 490 US 1 (1989) 11-34
United States v Tucker, 404 US 443 (1972) 7-17
United States v Ventresca, 380 US 102 (1965) 3-55, 11-3
United States v Wade, 388 US 218 (1967) 9-50, 9-53
United States v Warshak, 631 F3d 266 (CA 6, 2010) 3-76
United States v Wheeler, 435 US 313 (1978) 9-31
United States v White, 401 US 745 (1971) 11-6
United States v Yefsky, 994 F2d 885 (CA 1, 1993) 3-39
Utah v Strieff, 579 US ___ (2016) 11-46, 11-48, 11-49, 11-52
V
Vermont v Brillon, 556 US 81 (2009) 9-42

Victor v Nebraska, 511 US 1 (1994) 12-78

Virginia v Moore, 553 US 164 (2008) 11-15
W
Waller v Georgia, 467 US 39 (1984) 1-3
Washington v Texas, 388 US 14 (1967) 9-17, 12-29
Wayne Co Prosecutor v Recorder’s Court Judge, 119 Mich App 159 (1982) 3-11
Weaver v Massachusetts, 582 US ___ (2017) 1-3, 12-14
Wheeler v City of Lansing, 660 F3d 931 (CA 6, 2011) 3-59
Whiteley v Warden, Wyoming State Penitentiary, 401 US 560 (1971) 3-24
Whren v United States, 517 US 806 (1996) 11-33
Williams v Pennsylvania, 579 US ___ (2016) 1-15
Winston v Moore, 452 US 944 (1981) 12-95
Wyoming v Houghton, 526 US 295 (1999) 11-40
Y
Ybarra v Illinois, 444 US 85 (1979) 3-57
Yeager v United States, 557 US 110 (2009) 9-31, 12-88
Yost v Falker, 301 Mich App 362 (2013) 12-47
Youngblood v West Virginia, 547 US 867 (2006) 9-14

Michigan Statutes
MCL 8.3k 12-25

MCL 8.9 10-2, Glossary-9, Glossary-18, Glossary-19, Glossary-22, Glossary-28,
Glossary-32
MCL 8.9(1) 10-2
MCL 8.9(2) 10-3
MCL 8.9(3) 10-3, 10-4
MCL 8.9(4) 10-3, 10-4
MCL 8.9(5) 10-3
MCL 8.9(6) 10-4, 10-20
MCL 8.9(7) 10-2
MCL 8.9(10) Glossary-1, Glossary-7, Glossary-9, Glossary-17, Glossary-18, Glossary-
19, Glossary-23, Glossary-28, Glossary-32
MCL 15.231 3-80, 5-40, 5-53
MCL 15.246 3-80
MCL 24.201 4-6
MCL 24.401 1-9, 1-11
MCL 24.403 1-11
MCL 24.406 1-9
MCL 28.171 3-29
MCL 28.176 3-33
MCL 28.176(1) 3-29, 3-30
MCL 28.211 8-14
MCL 28.215 8-14
MCL 28.241 Glossary-2, Glossary-3, Glossary-9, Glossary-15, Glossary-20, Glossary-22,
Glossary-23, Glossary-27
MCL 28.241a(a) Glossary-2
MCL 28.241a(b) 3-29, Glossary-4
MCL 28.241a(d) Glossary-9
MCL 28.241a(f) Glossary-16
MCL 28.241a(g) Glossary-20
MCL 28.241a(h) Glossary-22
MCL 28.241a(i) Glossary-23
MCL 28.241a(j) Glossary-27
MCL 28.243 3-29, 3-31, 3-32, 3-33, 3-34, 5-29, 8-13
MCL 28.243(1) 3-30
MCL 28.243(2) 3-30
MCL 28.243(3) 3-29, 3-31
Michigan Judicial Institute TOA: MCLs - 1

Table of Authorities: Michigan Statutes
MCL 28.243(5) 3-34

MCL 28.243(6) 3-31
MCL 28.243(7) 3-31
MCL 28.243(8) 3-29, 3-33, 3-34
MCL 28.243(9) 3-34, 3-35
MCL 28.243(10) 3-32, 3-33, 3-34
MCL 28.243(12) 3-34
MCL 28.243(14) 3-32, 3-33, 3-34
MCL 28.243a(1) 9-39
MCL 28.295 2-25
MCL 28.433 3-61
MCL 37.262(a) Glossary-14
MCL 37.263 11-4
MCL 52.201 9-12
MCL 66.7 3-17
MCL 66.9(2) 3-17, 3-18
MCL 90.5(1) 3-17
MCL 90.10(1) 3-17, 3-18
MCL 125.2302 Glossary-37
MCL 257.1 10-2
MCL 257.1d Glossary-1
MCL 257.6a Glossary-5
MCL 257.7b Glossary-6
MCL 257.13e Glossary-14
MCL 257.13f Glossary-14
MCL 257.43a 3-74
MCL 257.43c Glossary-31
MCL 257.204a 6-56
MCL 257.227 11-55
MCL 257.227(4) 11-55
MCL 257.310(7) 2-25
MCL 257.311 3-48
MCL 257.311a 3-48
MCL 257.321a 5-35
MCL 257.321a(1) 5-36
MCL 257.601b 3-19, Glossary-28, Glossary-33
MCL 257.601b(2) 3-19, Glossary-29, Glossary-35
MCL 257.601b(5) Glossary-28, Glossary-33
MCL 257.601d 3-48, 3-74
MCL 257.617 3-46, 3-48
MCL 257.617a 3-19, Glossary-29, Glossary-35
MCL 257.619 3-46, 3-48
TOA: MCLs - 2 Michigan Judicial Institute

MCL 257.625 2-16, 2-19, 3-19, 3-20, 3-42, 3-74, 5-10, 5-13, 6-56, Glossary-19, Glossary-
29, Glossary-35
MCL 257.625(1) 3-48, 3-73, 3-74, 5-35, 6-56, 9-40, Glossary-30
MCL 257.625(2) 6-56
MCL 257.625(3) 3-48, 3-73, 5-35, 6-56
MCL 257.625(4) 3-48, 3-74, 9-38
MCL 257.625(5) 3-74, 9-40
MCL 257.625(6) 3-48, 3-74, 5-35, 6-56
MCL 257.625(7) 3-48, 3-74, 5-35
MCL 257.625(8) 3-48, 3-74, 5-35, 6-56
MCL 257.625(25) Glossary-19
MCL 257.625a(2) 3-75, 11-16
MCL 257.625a(5) 3-74
MCL 257.625a(6) 3-74
MCL 257.625b(1) 5-35
MCL 257.625b(2) 6-56
MCL 257.625b(4) 6-56
MCL 257.625c 3-73, 11-47
MCL 257.625c(1) 3-73, 3-74
MCL 257.625d(1) 3-76, 11-17
MCL 257.625m 2-16, 2-19, 3-42, 3-74, 5-10, 5-13, 5-35
MCL 257.626 3-48
MCL 257.626(3) 3-74
MCL 257.626(4) 3-74
MCL 257.626(5) 12-71
MCL 257.727 3-46, 3-47
MCL 257.727(a) 3-48
MCL 257.727(b) 3-48
MCL 257.727(c) 3-48
MCL 257.727(d) 3-48
MCL 257.727c 5-37
MCL 257.727c(1) 3-46, 3-47, Glossary-5
MCL 257.727c(2) 3-47
MCL 257.727c(3) 3-46
MCL 257.728 2-16, 3-25, 5-10
MCL 257.728(1) 3-46, 3-47, 3-48, 5-37
MCL 257.728(5) 3-47
MCL 257.728(8) 3-46, 3-47
MCL 257.728(9) 3-47
MCL 257.728e 5-37
MCL 257.732 5-36
MCL 257.732(21) 6-32
MCL 257.742 3-46
MCL 257.742(3) 3-46
MCL 257.743 3-47
MCL 257.743(5) 3-47
MCL 257.903 2-25
MCL 257.904(3) 3-31
MCL 257.904(4) 9-38


MCL 287.261 2-19, 5-13
MCL 287.290 2-19, 5-13
MCL 287.1017 3-61
MCL 287.1117 3-61
MCL 324.501 2-19, 5-13
MCL 324.513 2-19, 5-13
MCL 324.1602 3-61
MCL 324.8901 2-19, 5-13
MCL 324.8907 2-19, 5-13
MCL 324.40101 2-18, 5-12
MCL 324.40120 2-18, 5-12
MCL 324.43501 2-19, 5-13
MCL 324.43561 2-19, 5-13
MCL 324.48701 2-18, 5-12
MCL 324.48740 2-18, 5-12
MCL 324.73101 2-19, 5-13
MCL 324.73111 2-19, 5-13
MCL 324.80101 2-18, 5-12, 5-37
MCL 324.80101(b) Glossary-1
MCL 324.80101(i) Glossary-7
MCL 324.80103(f) Glossary-27
MCL 324.80104(r) Glossary-37
MCL 324.80147 5-38
MCL 324.80166(4) 5-37
MCL 324.80167 5-38, 5-39
MCL 324.80167(c) 5-38
MCL 324.80168(1) 5-39
MCL 324.80168(2) 5-39
MCL 324.80168(3) 5-39
MCL 324.80168(4) 5-39, 6-56
MCL 324.80171 5-37
MCL 324.80176(1) 3-19, 3-20, 5-38, Glossary-29, Glossary-35
MCL 324.80176(3) 3-19, 3-20, 5-38, Glossary-29, Glossary-35
MCL 324.80176(4) 5-38
MCL 324.80176(5) 5-38
MCL 324.80176(6) 5-38
MCL 324.80176(7) 5-38
MCL 324.80176(8) Glossary-29
MCL 324.80180(1) 5-38
MCL 324.80199 2-18, 5-12
MCL 324.81101 2-20, 5-14
MCL 324.81134 2-16, 2-20, 5-10, 5-14
MCL 324.81135 2-16, 2-20, 5-11, 5-14
MCL 324.81150 2-20, 5-14
MCL 324.82101 2-20, 5-14
MCL 324.82128 2-17, 2-20, 5-10, 5-14
MCL 324.82129 2-17, 2-20, 5-10, 5-14
MCL 324.82160 2-20, 5-14
MCL 330.1001 2-7


MCL 330.1100b(12) Glossary-18
MCL 330.1100d Glossary-33, Glossary-34
MCL 330.1400(g) Glossary-26
MCL 330.1401 10-17
MCL 330.1434 10-17
MCL 330.1515 10-17
MCL 330.1516 10-17
MCL 330.1750 10-15
MCL 330.1750(1) 10-15
MCL 330.1750(2) 10-8
MCL 330.2020 10-4, 10-5
MCL 330.2020(1) 10-5
MCL 330.2020(2) 10-6
MCL 330.2022(1) 7-42
MCL 330.2022(2) 10-9
MCL 330.2022(3) 10-9
MCL 330.2024 10-6
MCL 330.2026(1) 10-7
MCL 330.2028(1) 10-7
MCL 330.2028(3) 10-8, 10-11
MCL 330.2030 10-11
MCL 330.2030(1) 10-8
MCL 330.2030(2) 10-8
MCL 330.2030(3) 10-8, 10-11
MCL 330.2031 10-8
MCL 330.2032 10-10
MCL 330.2032(3) 10-9
MCL 330.2034(1) 10-8, 10-9
MCL 330.2038 10-9
MCL 330.2040 10-11
MCL 330.2040(1) 10-9
MCL 330.2044 10-9, 10-11
MCL 330.2044(1) 10-9, 10-10, 10-11
MCL 330.2044(3) 10-10
MCL 330.2044(4) 10-10
MCL 330.2050(1) 6-68, 10-17
MCL 330.2050(2) 10-17
MCL 330.2050(3) 10-17
MCL 330.2060 10-4
MCL 330.2074 10-4
MCL 333.1101 10-2
MCL 333.1104(5) 7-44
MCL 333.5129(3) 7-43, 7-44, Glossary-35
MCL 333.7101 6-34


MCL 333.7401(2) 9-39, Glossary-36
MCL 333.7401c(2) 9-40
MCL 333.7402 12-70
MCL 333.7403 12-70
MCL 333.7403(2) 6-34, Glossary-36
MCL 333.7404(2) 6-34
MCL 333.7411 6-34, 6-35
MCL 333.7411(1) 6-34
MCL 333.7411(2) 6-34, 6-35
MCL 333.7411(3) 6-35
MCL 333.7413 6-34
MCL 333.7502 3-61
MCL 333.13517 3-61
MCL 333.26421 10-24
MCL 393.501 1-17, 1-18, 1-20, 1-22, 1-24
MCL 393.502(a) Glossary-2
MCL 393.502(b) 1-19, Glossary-10
MCL 393.502(c) Glossary-10
MCL 393.502(d) Glossary-11
MCL 393.502(e) 1-23, Glossary-11, Glossary-18
MCL 393.502(f) 1-23, Glossary-32
MCL 393.502(g) 1-23
MCL 393.502(h) 1-23
MCL 393.503(1) 1-20
MCL 393.503(2) 1-20
MCL 393.503(3) 1-18, 1-22
MCL 393.503(4) 1-21
MCL 393.503(5) 1-22
MCL 393.503a 1-23, Glossary-2
MCL 393.504(1) 1-18, 1-21
MCL 393.504(2) 1-18
MCL 393.504(3) 1-21
MCL 393.505 1-19
MCL 393.505(1) 1-18
MCL 393.505(2) 1-18
MCL 393.506(1) 1-24, 12-28
MCL 393.506(2) 1-24
MCL 393.507 1-25
MCL 393.507(1) 1-24, 1-25
MCL 393.507(3) 1-25

MCL 393.508(1) 1-22

MCL 393.508(2) 1-22
MCL 399.811 1-9, 1-10
MCL 400.1501(d) Glossary-12
MCL 436.1235 3-61
MCL 436.1701 3-19, 3-20, Glossary-29, Glossary-35
MCL 436.1703 2-19, 5-13, 6-53
MCL 436.1703(1) 6-53
MCL 436.1915 2-19, 5-13
MCL 445.61 2-25, 2-26, 10-2
MCL 445.79c 2-25, 2-26
MCL 475.1 2-18, 5-12
MCL 479.43 2-18, 5-12
MCL 480.11 2-19, 5-13
MCL 480.25 2-19, 5-13
MCL 500.3101 11-35
MCL 500.3101a 11-55
MCL 500.3101a(3) 11-55
MCL 552.631 8-7
MCL 552.631(3) 8-7
MCL 552.632 8-7
MCL 600.101 2-14, 5-8, Glossary-23
MCL 600.401 2-7
MCL 600.412 2-7
MCL 600.601 2-7
MCL 600.601(4) 2-6, 2-8
MCL 600.605 2-7
MCL 600.606 2-6, 5-49
MCL 600.606(1) 5-49
MCL 600.606(2) 7-12
MCL 600.1001 2-6, 2-8
MCL 600.1021(1) 2-6, 2-8
MCL 600.1021(2) 2-7
MCL 600.1060 6-33, Glossary-12
MCL 600.1062(1) 5-54
MCL 600.1062(2) 5-54
MCL 600.1062(4) 5-55
MCL 600.1062(5) 5-54
MCL 600.1068(1) 7-16
MCL 600.1068(4) 5-54
MCL 600.1068(5) 7-16
MCL 600.1070(1) 5-54
MCL 600.1070(2) 5-54, 6-33
MCL 600.1084 6-33, Glossary-13, Glossary-37


MCL 600.1088(1) 5-54, 5-55, 5-56, 5-57, 6-33
MCL 600.1088(2) 6-33, Glossary-37
MCL 600.1090 6-33, Glossary-23
MCL 600.1090(e) Glossary-25
MCL 600.1091(1) 5-56
MCL 600.1091(2) 5-56
MCL 600.1091(4) 5-56
MCL 600.1094(1) 7-16
MCL 600.1094(3) 7-16
MCL 600.1094(4) 5-56
MCL 600.1095(2) 5-56, 6-33
MCL 600.1098 5-56
MCL 600.1099b 6-33
MCL 600.1099b(a) Glossary-7
MCL 600.1099b(c) Glossary-11
MCL 600.1099b(e) Glossary-22
MCL 600.1099b(f) Glossary-26
MCL 600.1099b(g) Glossary-31
MCL 600.1099b(h) Glossary-33
MCL 600.1099b(i) Glossary-34
MCL 600.1099c(1) 5-56
MCL 600.1099c(2) 5-57
MCL 600.1099c(3) Glossary-20
MCL 600.1099c(4) 5-57
MCL 600.1099f(1) 7-16
MCL 600.1099f(3) 7-16
MCL 600.1099g 5-57
MCL 600.1099h(b) 5-57, 6-33
MCL 600.1099k(2) 5-57
MCL 600.1200(e) Glossary-31
MCL 600.1200(j) Glossary-37
MCL 600.1201(2) 5-55
MCL 600.1201(4) 5-56
MCL 600.1201(5) 5-55
MCL 600.1205(1) 7-16
MCL 600.1205(4) 5-55
MCL 600.1205(5) 7-16
MCL 600.1206(1) 5-55
MCL 600.1206(2) 5-55, 6-33
MCL 600.1208(1) 5-55
MCL 600.1301 12-9
MCL 600.1307a(1) 12-15
MCL 600.1315 12-13
MCL 600.1337 12-16
MCL 600.1420 1-3, 7-31, 7-32, 12-8


MCL 600.1428(1) 1-9
MCL 600.1428(2) 1-9
MCL 600.1428(3) 1-9
MCL 600.1430 1-16
MCL 600.1432 12-27, 12-28
MCL 600.1434 12-27, 12-28
MCL 600.1455(1) 7-24, 12-29
MCL 600.1645 2-32
MCL 600.1701 1-14
MCL 600.1701(g) 8-7
MCL 600.1988 1-10
MCL 600.2163a 9-6, 12-33, 12-34, Glossary-8
MCL 600.2163a(1) 12-33, 12-34, Glossary-8
MCL 600.2163a(4) 12-34
MCL 600.2163a(5) 12-34
MCL 600.2163a(8) 12-33
MCL 600.2163a(20) 12-33
MCL 600.2164a(1) 12-33
MCL 600.2164a(2) 12-33
MCL 600.2164a(3) 12-33
MCL 600.2201 12-29
MCL 600.2203(1) 12-29
MCL 600.2950(30) Glossary-10
MCL 600.2950a 3-29, 3-30, Glossary-22
MCL 600.2950i 3-30, Glossary-22
MCL 600.4835 8-23, 8-24
MCL 600.8103(1) 2-22
MCL 600.8103(2) 2-23
MCL 600.8103(3) 2-23
MCL 600.8212 3-54
MCL 600.8311 2-2, 2-7, 2-10, 2-11, 5-3, 6-46, 7-4, 7-17, 7-58
MCL 600.8311(a) 2-10, 5-5, 7-5
MCL 600.8311(c) 2-10, 5-2, 7-56
MCL 600.8311(e) 7-17
MCL 600.8311(f) 2-12, 5-2, 5-4, 6-4, 7-4, 7-56, 7-58
MCL 600.8312 2-3, 2-22, 2-30, 7-18
MCL 600.8312(1) 2-22
MCL 600.8312(2) 2-22
MCL 600.8312(3) 2-23
MCL 600.8312(4) 2-23, 2-27, 2-28
MCL 600.8317 2-12, 5-4, 6-47, 7-3
MCL 600.8320 3-54
MCL 600.8331 2-21, 5-15, 6-48, 7-45
MCL 600.8355 12-11, 12-12
MCL 600.8511 2-14, 2-16, 2-17, 2-21, 3-54, 5-8, 5-10, 5-11, 5-14, 5-37, 6-4, 6-47, 7-6, 7-
7, 7-19
MCL 600.8511(a) 2-17, 2-18, 2-19, 5-11, 5-12, 5-13
MCL 600.8511(b) 2-17, 2-19, 5-11, 5-13

MCL 600.8511(c) 2-16, 2-17, 2-20, 5-11, 5-13, 5-14

MCL 600.8511(d) 2-17, 2-20, 5-11, 5-14
MCL 600.8511(e) 2-16, 3-22, 3-25, 3-51, 5-10
MCL 600.8511(f) 2-17, 5-11
MCL 600.8511(g) 2-16, 3-51, 3-54, 5-10
MCL 600.8511(h) 2-14, 2-20, 5-8, 5-14, 5-48, 7-9
MCL 600.8512a 2-17, 2-18, 5-11, 5-12, 6-47
MCL 600.8513 2-17, 5-11
MCL 600.8513(1) 2-17, 5-11, 7-7, 7-15, 7-19, 7-46
MCL 600.8513(2) 2-15, 5-9
MCL 600.8515 8-27
MCL 700.5101 2-7
MCL 712A.1 2-6, 2-8
MCL 712A.1() 2-6, 2-8
MCL 712A.2(a) 2-6, 2-8, 5-49, 7-12, Glossary-20
MCL 712A.2(b) 2-6, 2-7
MCL 712A.2(d) 2-6
MCL 712A.2(h) 2-6, 2-8
MCL 712A.2d 7-13, 7-14
MCL 712A.2d(4) 7-13, 7-14
MCL 712A.2d(7) 7-14
MCL 712A.4 2-6, 5-48, 5-49, 7-7, 7-14
MCL 712A.4(1) 7-14
MCL 712A.4(3) 7-14
MCL 712A.4(10) 7-14
MCL 712A.6 5-57, 6-33
MCL 712A.13a(4) 3-44
MCL 712A.17b 12-34
MCL 712A.17b(1) 12-34
MCL 712A.17b(5) 12-34
MCL 712A.17b(16) 12-34
MCL 712A.18 3-43
MCL 712A.18n 10-4
MCL 712A.18s 10-4
MCL 712A.32 2-6, 2-8
MCL 750.1 10-2
MCL 750.5 6-53, Glossary-5
MCL 750.7 2-10, 5-4, 7-5, Glossary-16
MCL 750.8 2-10, 5-5, 7-5, Glossary-27
MCL 750.10 3-84
MCL 750.54 3-61
MCL 750.81 3-15, 3-45, 5-23, 6-38, 8-11, 8-13, Glossary-28, Glossary-34
MCL 750.81(3) 6-38
MCL 750.81(4) 6-38
MCL 750.81a 3-15, 3-45, 5-23, 8-11, 8-13, Glossary-28, Glossary-34
MCL 750.81a(3) 6-39
MCL 750.81c(3) Glossary-2
MCL 750.81d(1) 9-39

MCL 750.82 9-38, 9-39, 9-40, 12-73, 12-89, Glossary-2

MCL 750.82(1) 9-38
MCL 750.83 Glossary-2, Glossary-36
MCL 750.84(1) 12-89
MCL 750.89 9-39, 9-40, 12-73, Glossary-2, Glossary-3, Glossary-36
MCL 750.90a Glossary-2, Glossary-3
MCL 750.90b(a) Glossary-2, Glossary-3
MCL 750.90b(b) Glossary-2, Glossary-3
MCL 750.91 Glossary-2, Glossary-3, Glossary-36
MCL 750.110a(2) 9-40, 12-68, Glossary-36
MCL 750.110a(3) 12-69
MCL 750.110a(4) 12-68, 12-69
MCL 750.111 12-69
MCL 750.136b(7) Glossary-28, Glossary-34
MCL 750.145a 7-43
MCL 750.145d Glossary-29, Glossary-34
MCL 750.145m Glossary-42
MCL 750.145m(u) Glossary-42
MCL 750.157n 2-26
MCL 750.157r 2-26
MCL 750.157v 2-26
MCL 750.157w 2-26
MCL 750.165 8-7
MCL 750.165(3) 8-7
MCL 750.197c(1) 9-39
MCL 750.218 2-26
MCL 750.219a 2-26
MCL 750.219e 2-26
MCL 750.227 9-40
MCL 750.227b 9-39, 9-40
MCL 750.227b(1) 6-65
MCL 750.238 3-61
MCL 750.248 2-26
MCL 750.248a 2-26
MCL 750.249 2-26
MCL 750.285 2-25
MCL 750.308 3-61
MCL 750.316(1) 9-39

MCL 750.317 9-38, Glossary-2, Glossary-3, Glossary-36

MCL 750.317a 2-24, 2-25
MCL 750.335a(1) 9-40, 9-41
MCL 750.335a(2) 9-40, 9-41
MCL 750.338 7-43
MCL 750.338a 7-43
MCL 750.338b 7-43
MCL 750.349b 9-39, 12-87
MCL 750.349b(1) 12-87
MCL 750.350a 6-35
MCL 750.350a(4) 6-35
MCL 750.350a(5) 6-35
MCL 750.350a(6) 6-36
MCL 750.357 12-69, 12-89
MCL 750.360 12-89
MCL 750.362 2-26
MCL 750.363 2-26
MCL 750.411h Glossary-29, Glossary-34
MCL 750.411h(2) Glossary-2, Glossary-3
MCL 750.411h(3) Glossary-2, Glossary-3
MCL 750.411i Glossary-2, Glossary-3
MCL 750.413 9-39
MCL 750.450 7-43
MCL 750.451 7-43
MCL 750.451c 6-36
MCL 750.451c(1) 6-36
MCL 750.451c(2) 6-36
MCL 750.451c(3) 6-36
MCL 750.451c(4) 6-36
MCL 750.451c(5) 6-36
MCL 750.451c(6) 6-36
MCL 750.451c(7) 6-36, 6-37
MCL 750.451c(8) 6-37
MCL 750.452 7-43
MCL 750.455 7-43
MCL 750.462a 2-6
MCL 750.520a(j) 12-87
MCL 750.520a(n) 12-87
MCL 750.520b 6-61, 6-63, 7-43, 7-44, Glossary-2, Glossary-3, Glossary-36
MCL 750.520b(1) 9-39
MCL 750.520b(2) 6-6
MCL 750.520c 6-61, 6-63, 7-43, 7-44, Glossary-2, Glossary-3
MCL 750.520c(1) 9-39
MCL 750.520d 7-43, 7-44, Glossary-2, Glossary-3
MCL 750.520d(1) 9-39

MCL 750.520e 7-43, 7-44, Glossary-2, Glossary-3

MCL 750.520g 7-44, Glossary-2, Glossary-3
MCL 750.520k 1-6
MCL 750.529 9-38, 9-40, Glossary-2, Glossary-3, Glossary-36
MCL 750.529a 9-39, Glossary-2, Glossary-3, Glossary-36
MCL 750.530(2) 12-69
MCL 750.535a 3-61
MCL 750.535b 9-39
MCL 750.539k 2-26
MCL 750.543z Glossary-2, Glossary-3
MCL 750.546 2-19, 5-13
MCL 750.551 2-19, 5-13
MCL 750.552c 2-19, 5-13
MCL 760.1 2-9, 5-4, 7-5
MCL 761.1 3-25
MCL 761.1(f) 2-10, 5-4, 7-5, 7-17, Glossary-16
MCL 761.1(g) 3-84
MCL 761.1(i) Glossary-19
MCL 761.1(l) 2-14, 2-15, 5-8, 5-9, 7-19, Glossary-11, Glossary-23
MCL 761.1(m) 2-10, 5-5, 7-5, Glossary-26
MCL 761.1(n) 2-10, 5-5, 7-5, Glossary-27
MCL 761.1(o) Glossary-30
MCL 761.1(p) Glossary-1, Glossary-31
MCL 761.1(r) Glossary-32
MCL 761.1(t) Glossary-3, Glossary-4, Glossary-37
MCL 762.2 2-4, 2-5, 2-27
MCL 762.2(1) 2-4, 2-5
MCL 762.2() 2-4, 2-5, 2-27
MCL 762.3 2-3
MCL 762.3(1) 2-23
MCL 762.3(2) 2-27
MCL 762.3() 2-23, 2-27, 2-28, 2-29, 2-30, 7-18
MCL 762.5 2-25
MCL 762.7 2-29, 2-30, 2-31, 7-19
MCL 762.8 2-22, 2-23, 2-24, 2-25, 2-26, 2-30
MCL 762.10 2-22
MCL 762.10c 2-22, 2-25
MCL 762.10c(1) 2-25
MCL 762.10c(2) 2-25
MCL 762.10c(3) 2-26
MCL 762.11 6-37
MCL 762.11(1) 6-37
MCL 762.13(1) 6-37
MCL 762.14 6-37
MCL 762.15 6-37
MCL 763.1 1-16, 4-19, 5-32, 7-27, 9-17
MCL 763.2 6-4, 12-2

MCL 763.3 12-2

MCL 763.3(1) 6-25, 6-53, 12-3
MCL 763.3(2) 6-25, 6-54
MCL 763.5 9-29
MCL 764.1 2-16, 3-13, 3-25, 5-10
MCL 764.1() 3-13, 3-15
MCL 764.1(2) 3-13, 3-51
MCL 764.1(3) 3-14, 3-15, 3-25
MCL 764.1(4) 3-29
MCL 764.1a 3-16, 3-21, Glossary-42
MCL 764.1a(1) 3-15, 3-20
MCL 764.1a(2) 3-22, 3-23
MCL 764.1a(3) 3-15, 3-22, 3-23
MCL 764.1a(4) 3-15
MCL 764.1a(5) 3-16
MCL 764.1a(7) Glossary-42
MCL 764.1b 3-24, 3-27, 3-28, 5-16, 5-21, 5-26
MCL 764.1c 3-24, 3-27, 5-26
MCL 764.1c(1) 5-26, 5-27
MCL 764.1c(2) 3-24, 5-26
MCL 764.1d 3-11, 3-13, 3-16
MCL 764.1e 5-37
MCL 764.1f 3-28, 5-51, Glossary-36
MCL 764.1f(1) 5-49, 7-12
MCL 764.1f(2) 7-12, Glossary-9, Glossary-36
MCL 764.1g 3-26
MCL 764.1g(1) 3-25, 3-26
MCL 764.1g(2) 3-26
MCL 764.1g(3) 3-27
MCL 764.4 5-23
MCL 764.5 5-23
MCL 764.6 5-23
MCL 764.7 5-23
MCL 764.9a 3-49, 3-50
MCL 764.9a(1) 3-49
MCL 764.9a(2) 3-49
MCL 764.9a(3) 3-49
MCL 764.9c 5-27, 5-36, Glossary-2
MCL 764.9c(1) 3-45, 5-27, 5-36
MCL 764.9c(3) 3-45, 3-46
MCL 764.9f 5-27
MCL 764.9f(1) 3-45, Glossary-2
MCL 764.9g Glossary-2
MCL 764.9g(1) 5-36
MCL 764.9g(2) 5-37
MCL 764.13 3-10, 3-45, 5-16, 5-17, 5-25
MCL 764.15 3-41, 5-25
MCL 764.15(1) 3-41, 3-42, 3-44, 5-25, Glossary-33
MCL 764.15a 3-43, 5-23, 5-25, 8-10, 8-13
MCL 764.15a(b) Glossary-10
MCL 764.15b 3-43

MCL 764.15e 3-43

MCL 764.15e(3) 8-15
MCL 764.15f 3-44
MCL 764.16(a) 3-44
MCL 764.16(c) 3-44
MCL 764.16(d) 3-44
MCL 764.18 3-28
MCL 764.19 3-29
MCL 764.25b 3-61
MCL 764.26 3-10, 5-16
MCL 764.26a 3-32
MCL 764.27 5-49
MCL 764.27a 5-52
MCL 764.29 3-31, 5-29, 5-31, 5-43
MCL 764.29(1) 3-31
MCL 764.29(2) 3-31
MCL 765.1 8-10, 8-26
MCL 765.3 8-10
MCL 765.4 3-50
MCL 765.5 3-50, 8-2, 8-16
MCL 765.6 3-50, 8-11
MCL 765.6(1) 5-44, 7-54, 8-7, 8-9, 8-11
MCL 765.6(2) 8-9
MCL 765.6a 8-7
MCL 765.6b 3-44
MCL 765.6b(1) 8-6
MCL 765.6b(3) 8-7
MCL 765.6b(6) 8-6, 8-7, Glossary-2, Glossary-12, Glossary-15
MCL 765.7 8-27
MCL 765.15 8-24
MCL 765.15(1) 8-24, 8-25
MCL 765.15(2) 8-24, 8-26
MCL 765.15(3) 8-26
MCL 765.15(a) 8-24, 8-25
MCL 765.26 8-22
MCL 765.26(1) 8-21
MCL 765.26(2) 8-21
MCL 765.26(3) 8-21
MCL 765.28 8-24
MCL 765.28(1) 8-22, 8-23
MCL 765.28(2) 8-23, 8-24, 8-26
MCL 765.28(3) 8-24
MCL 765.29 9-18
MCL 766.1 2-11, 2-20, 5-4, 5-14, 5-47, 6-4, 7-4, 7-6, 7-7, 7-10, 7-17, 7-19, 7-20
MCL 766.4 2-11, 2-14, 2-20, 5-4, 5-8, 5-14, 5-48, 5-51, 6-59, 7-4, 7-6, 7-7, 7-8, 7-9, 7-14,
7-58
MCL 766.4(1) 5-43, 5-47, 5-51, 7-7, 7-9, 7-14, 7-20
MCL 766.4(2) 5-43, 5-47, 7-9
MCL 766.4(3) 2-12, 5-4, 6-4, 6-47, 6-60, 7-4, 7-10, 7-60
MCL 766.4() 5-43, 5-48, 7-7, 7-11, 7-20, 7-21, 7-41
MCL 766.4(5) 7-8

MCL 766.4(6) 7-34, 7-38

MCL 766.5 7-54
MCL 766.7 5-43, 5-47, 5-48, 7-7, 7-11, 7-14, 7-17, 7-21, 7-22, 7-23
MCL 766.9(1) 7-30, 7-31
MCL 766.9(2) 7-31
MCL 766.9(3) 7-31
MCL 766.10 7-31, 7-32
MCL 766.11(1) 7-24
MCL 766.11a 7-34, 7-38
MCL 766.11b 7-25, 7-34, 7-35, 7-36, 7-37, 7-38
MCL 766.11b(1) 7-25, 7-34
MCL 766.11b(2) 7-25
MCL 766.12 7-26
MCL 766.13 2-11, 5-4, 7-4, 7-5, 7-32, 7-35, 7-46, 7-47, 7-48, 7-56, 7-58
MCL 766.14(1) 7-53
MCL 766.15 7-45
MCL 766.15(1) 7-54
MCL 766.15(2) 7-54
MCL 766.15(3) 7-54
MCL 767.1 2-7, 3-11, 3-12, 3-80
MCL 767.2 3-84
MCL 767.3 3-81, 4-3, 7-12
MCL 767.4 3-81, 4-3, 7-12
MCL 767.4a 9-6
MCL 767.7 3-81
MCL 767.7a 3-81
MCL 767.7c 3-81
MCL 767.7d 3-81, 3-82
MCL 767.7e 3-81
MCL 767.7f 3-81, 3-82
MCL 767.7g 3-81
MCL 767.9 3-83
MCL 767.11 3-81, 3-82
MCL 767.12 3-82
MCL 767.19e 3-81, 3-82, 3-83
MCL 767.23 3-82
MCL 767.25(1) 3-82
MCL 767.25(3) 3-82
MCL 767.29 9-28
MCL 767.30 3-82
MCL 767.32 12-29
MCL 767.35 9-18
MCL 767.37 3-82, 6-18, 6-64
MCL 767.37a 5-20
MCL 767.40 3-12, 7-49
MCL 767.40a(1) 9-16
MCL 767.40a(2) 9-16
MCL 767.40a(3) 9-16
MCL 767.40a(4) 9-16, 9-17
MCL 767.40a(5) 9-17
MCL 767.42 3-12

MCL 767.42(1) 3-80, 5-48, 7-11, 7-14, 7-15, 7-19

MCL 767.42(2) 7-12, 7-15
MCL 767.44 9-15
MCL 767.45(1) 2-32, 3-35
MCL 767.55 3-35
MCL 767.71 7-33
MCL 767.91 9-18
MCL 767.93(1) 7-25
MCL 767.94a 9-6, 9-15
MCL 767A.1 3-86
MCL 767A.2 3-84
MCL 767A.3 3-84
MCL 767A.3(1) 3-84
MCL 767A.4(g) 3-84
MCL 767A.5 3-85
MCL 767A.5(1) 3-85
MCL 767A.5(2) 3-85
MCL 767A.5() 3-84
MCL 767A.5(6) 3-85, 3-86
MCL 767A.6(1) 3-85
MCL 767A.8 3-86
MCL 767A.9 3-85
MCL 768.1 9-41
MCL 768.2 9-21
MCL 768.3 12-57
MCL 768.5 9-27
MCL 768.8 12-2
MCL 768.10 12-16
MCL 768.12(1) 12-17
MCL 768.12(2) 12-17
MCL 768.13(1) 12-17
MCL 768.13(2) 12-18
MCL 768.13(3) 12-17
MCL 768.14 12-25, 12-26, 12-27
MCL 768.15 12-25
MCL 768.16 12-26, 12-78
MCL 768.18 12-11, 12-12, 12-24
MCL 768.20 10-25, 10-26, 10-27
MCL 768.20(1) 10-26, 10-27
MCL 768.20(2) 10-26, 10-27
MCL 768.20(3) 10-26
MCL 768.20a 6-66, 6-67, 10-13, 10-17, 10-19
MCL 768.20a(1) 10-13, 10-21
MCL 768.20a(2) 10-13
MCL 768.20a(3) 6-68, 10-13
MCL 768.20a(4) 10-13
MCL 768.20a(5) 10-13
MCL 768.20a(6) 10-13
MCL 768.21 10-27
MCL 768.21(1) 10-13, 10-26
MCL 768.21(2) 10-26

MCL 768.21a 10-13, 10-19

MCL 768.21a(1) 6-67, 10-12, 10-14, Glossary-17, Glossary-18, Glossary-26
MCL 768.21a(2) 10-15
MCL 768.21a(3) 10-12
MCL 768.26 12-6
MCL 768.28 12-51
MCL 768.29 12-37, 12-61, 12-73
MCL 768.29a(1) 10-16
MCL 768.29a(2) 10-16, 10-17
MCL 768.32 12-66
MCL 768.32(1) 12-66, 12-67
MCL 768.32(2) 12-67
MCL 768.35 6-21, 6-22
MCL 768.36 10-19
MCL 768.36(1) 10-17
MCL 768.36(2) 6-66
MCL 768.36(3) 10-19
MCL 768.37(2) 10-19
MCL 768.37(3) Glossary-1, Glossary-6, Glossary-7
MCL 769.4a 6-37, 6-38, 6-39
MCL 769.4a(1) 6-37, 6-38
MCL 769.4a(2) 6-38
MCL 769.4a(3) 6-38
MCL 769.4a(4) 6-38
MCL 769.4a(5) 6-38, 6-39
MCL 769.4a(6) 6-39
MCL 769.4a(7) 6-39
MCL 769.4a(8) 6-38
MCL 769.10 6-63, 6-75
MCL 769.12(1) 6-71
MCL 769.13 3-40, 7-57, 7-58
MCL 769.26 2-32, 7-34, 12-75
MCL 770.3(1) 6-40
MCL 770.3a 6-42
MCL 770.3a(1) 6-42
MCL 770.3a(4) 6-42
MCL 770.8 8-27
MCL 770.9 8-27
MCL 770.9a 8-27, Glossary-2
MCL 770.9a(1) 8-26
MCL 770.9a(3) Glossary-2, Glossary-3
MCL 770.9b 8-26, 8-27
MCL 770.9b(1) 8-26
MCL 770.12(3) 8-27
MCL 771.2 5-54, 5-55, 5-56, 6-33
MCL 771.3 6-36
MCL 771.3c 6-34
MCL 771.14(1) 5-41, 5-57
MCL 771.14(2) 5-41, 5-57
MCL 774.1a 5-33, 6-46, 6-48

MCL 774.1c 6-46

MCL 775.15 9-18, 12-29
MCL 775.16 2-15, 5-9, 5-32, 5-42, 5-45, 5-46, 5-51, 7-26, 7-27
MCL 775.19 1-17, 1-32
MCL 775.19a 1-17, 1-18, 1-20, 1-28, 1-32, 12-56
MCL 775.22 4-15, 8-26
MCL 776.9 9-47
MCL 776.13 9-47
MCL 780.64(1) 8-12
MCL 780.64(2) 8-12
MCL 780.64(3) 8-12
MCL 780.64(4) 8-12
MCL 780.131 9-45, 9-46
MCL 780.131(1) 9-46
MCL 780.131(2) 9-45, 9-46
MCL 780.133 2-5, 9-45, 9-46
MCL 780.581 3-27, 5-23, 5-24, 8-9, 8-11
MCL 780.581(1) 5-25, 8-10, 8-13
MCL 780.581(2) 5-28, 8-10
MCL 780.582 3-27, 5-24, 8-9, 8-10, 8-11, 8-13
MCL 780.582a 3-44, 5-24, 5-28, 8-9, 8-10, 8-11, 8-14, 8-15
MCL 780.582a(1) 5-24, 8-10, 8-11, 8-13, Glossary-10
MCL 780.582a(2) 8-14
MCL 780.582a(3) 8-14
MCL 780.582a(4) 8-14
MCL 780.582a(5) 8-14
MCL 780.582a(7) 8-14
MCL 780.585 3-27, 8-10, 8-11
MCL 780.586 8-9
MCL 780.601 9-47
MCL 780.651 3-51, 3-70, 3-73
MCL 780.651(1) 2-16, 3-53, 3-54, 3-58, 3-70, 5-10
MCL 780.651(2) 3-53, 3-70, 3-71, 3-72
MCL 780.651(3) 2-16, 3-53, 3-54, 3-72, 5-10
MCL 780.651(4) 3-53, 3-54, 3-72
MCL 780.651(5) 3-73
MCL 780.651(6) 3-73
MCL 780.651(7) 3-73
MCL 780.651(8) 3-80
MCL 780.651(9) 3-80
MCL 780.652 3-60
MCL 780.652(2) 3-58
MCL 780.652a 3-61
MCL 780.653 3-23, 3-67, 3-69
MCL 780.653(b) 3-67, 3-68, 3-69, 3-70
MCL 780.654 3-56, 3-57, 3-58
MCL 780.654(1) 3-55, 3-58
MCL 780.654(3) 3-78
MCL 780.655 3-78, 3-79
MCL 780.655(1) 3-78
MCL 780.655(2) 3-79

MCL 780.655(3) 3-79

MCL 780.656 3-77, 3-78, 11-27, 11-55
MCL 780.658 3-51
MCL 780.751 5-39, 5-52, 5-54, 5-55, 5-56, 5-57, 7-32, 7-40
MCL 780.752(1) Glossary-9, Glossary-11, Glossary-31, Glossary-32, Glossary-35,
Glossary-39
MCL 780.752a 5-40, 5-54
MCL 780.753 5-53
MCL 780.755(1) 5-53
MCL 780.756(1) 7-40
MCL 780.756(2) 7-40
MCL 780.757 7-40
MCL 780.758(1) 7-40
MCL 780.758(2) 5-52
MCL 780.758(3) 5-53
MCL 780.761 7-32
MCL 780.764 5-57
MCL 780.765(1) 5-58
MCL 780.765(2) 5-58
MCL 780.781 3-18
MCL 780.781(1) 3-18, 3-19, 3-20, Glossary-20, Glossary-29, Glossary-31, Glossary-40
MCL 780.781a 5-40, 5-54
MCL 780.783a 3-18, 3-20
MCL 780.784 3-18
MCL 780.792 5-41, 5-57
MCL 780.792(1) 5-41, 5-57
MCL 780.792(3) 5-41, 5-57
MCL 780.793(1) 5-41, 5-58
MCL 780.793(3) 5-41, 5-58
MCL 780.811(1) 3-19, 3-20, 5-5, 5-39, Glossary-11, Glossary-31, Glossary-35, Glossary-
41
MCL 780.811a 3-18, 3-19, 3-20
MCL 780.811b 5-40, 5-54
MCL 780.812 3-18, 5-40
MCL 780.816(1) 5-40, 5-41
MCL 780.821 7-32
MCL 780.824 5-41
MCL 780.825(1) 5-41
MCL 780.825(2) 5-41
MCL 780.826(2) 5-41
MCL 780.830 5-40
MCL 780.834 5-54, 5-55, 5-56, 5-57
MCL 780.905 5-55
MCL 780.971 12-46
MCL 780.981 2-15, 4-5, 4-17, 5-9, 5-32, 5-42, 5-43, 5-45, 5-46, 5-51, 7-26, 7-27, 9-20,
MCL 780.983(a) 4-6, 4-8, 5-51
MCL 780.983(c) 4-5
MCL 780.983(e) 4-9, Glossary-16

MCL 780.983(f) 2-16, 5-9, 5-32, 5-42, 5-43, 5-45, 5-47, 7-27, Glossary-17
MCL 780.983(g) Glossary-17
MCL 780.983(h) Glossary-17
MCL 780.983(i) 4-7
MCL 780.983(k) Glossary-30
MCL 780.985(1) 4-5
MCL 780.985(5) 4-6
MCL 780.989(1) 4-5
MCL 780.991 4-17, 7-26
MCL 780.991(1) 2-15, 4-7, 4-8, 4-11, 4-12, 5-9, 5-32, 5-42, 5-45, 5-47, 5-51, 7-26, 7-27
MCL 780.991(2) 4-12, 4-13, 4-14, 4-17
MCL 780.991(3) 2-15, 4-8, 4-9, 4-10, 4-11, 4-12, 4-13, 5-9, 5-32, 5-45, 5-47, 5-51, 7-26,
7-27, Glossary-16, Glossary-17
MCL 780.991(f) 4-10
MCL 780.993 4-7
MCL 780.993(3) 4-6
MCL 780.993(4) 4-7
MCL 780.993(8) 4-7
MCL 780.993(11) 4-7
MCL 780.993(17) 4-14, 4-15
MCL 780.995 4-7
MCL 780.997 4-7
MCL 780.1003 2-15, 5-9, 5-32, 5-45, 7-27, Glossary-21, Glossary-24
MCL 780.1003(1) 4-14
MCL 780.1003(3) 4-14
MCL 780.1003(4) 4-14
MCL 780.1003(5) 4-14
MCL 791.236(19) 11-45
MCL 801.263(2) 9-39


Michigan Court Rules
MCR 1.108(1) 5-47, 5-48, 7-8, 7-21

MCR 1.109 1-4, 1-10, 3-3, 3-23, Glossary-15
MCR 1.109(A) 1-4, 1-5, 1-7, Glossary-8, Glossary-10, Glossary-11, Glossary-30,
MCR 1.109(B) Glossary-11
MCR 1.109(D) 1-9, 3-3, 3-11, 3-13, 3-16, 3-23, 3-70, 5-26, 9-2
MCR 1.109(E) 1-5, 3-14, 3-15, 3-72, 9-2, Glossary-15
MCR 1.109(F) 1-5
MCR 1.109(G) 3-3, 3-4, 3-5, Glossary-3, Glossary-14, Glossary-15, Glossary-28
MCR 1.111 1-25, 1-26, 1-30, Glossary-4, Glossary-16, Glossary-18
MCR 1.111(A) 1-28, 1-29, 1-30, Glossary-4, Glossary-5, Glossary-16, Glossary-18
MCR 1.111(B) 1-25, 1-26, 1-27, 1-28
MCR 1.111(C) 1-27, 1-28
MCR 1.111(D) 1-31
MCR 1.111(E) 1-26, 1-30, 1-31
MCR 1.111(F) 1-25, 1-26, 1-27, 1-28, 1-30, 1-31, 1-32
MCR 1.111(G) 1-32, 12-28
MCR 1.111(H) 1-27, 1-32
MCR 1.119(E) 3-72
MCR 2.003 12-5
MCR 2.003(B) 1-15
MCR 2.003(C) 1-15, 12-5
MCR 2.107 12-63
MCR 2.107(C) 9-3, Glossary-15
MCR 2.113(A) 3-23
MCR 2.117(B) 4-16
MCR 2.117(C) 4-16
MCR 2.119 1-8, 9-2, 9-3
MCR 2.119(A) 9-2, 9-3
MCR 2.119(C) 9-3
MCR 2.119(F) 9-23
MCR 2.302(B) 9-6
MCR 2.302(C) 1-8, 9-6
MCR 2.305(F) 12-29
MCR 2.314(B) 10-15
MCR 2.401(A) 9-4
MCR 2.401(B) 9-4
Michigan Judicial Institute TOA: MCRs - 1

Table of Authorities: Michigan Court Rules
MCR 2.407 5-9, 5-21, 5-22, 7-7, 7-9, 12-32

MCR 2.407(A) Glossary-42
MCR 2.503(B) 9-21
MCR 2.504 9-28
MCR 2.506 12-29
MCR 2.506(A) 12-29, 12-30
MCR 2.506(B) 12-29
MCR 2.506(E) 12-29
MCR 2.506(F) 12-29
MCR 2.506(H) 12-30
MCR 2.506(I) 12-30
MCR 2.507 12-39
MCR 2.507(A) 12-31
MCR 2.507(B) 12-35
MCR 2.507(C) 12-35
MCR 2.507(D) 12-6, 12-52
MCR 2.507(E) 12-40
MCR 2.507(F) 12-31
MCR 2.510 12-9, 12-13, 12-15, 12-17, 12-19, 12-25
MCR 2.510(C) 12-13
MCR 2.511 12-9, 12-13, 12-15, 12-17, 12-25
MCR 2.511(A) 12-9
MCR 2.511(C) 12-16
MCR 2.511(D) 12-15
MCR 2.511(E) 12-17, 12-18
MCR 2.511(F) 12-19
MCR 2.511(H) 12-25, 12-26, 12-27, 12-53
MCR 2.512 12-61, 12-62
MCR 2.512(A) 12-62, 12-63, 12-65
MCR 2.512(B) 12-62, 12-65
MCR 2.512(C) 12-73, 12-74
MCR 2.512(D) 12-62, 12-63, 12-64
MCR 2.513 12-62
MCR 2.513(A) 12-64
MCR 2.513(B) 12-30, 12-78
MCR 2.513(C) 12-31
MCR 2.513(D) 12-32
MCR 2.513(E) 12-50, 12-80
MCR 2.513(H) 12-50, 12-80
MCR 2.513(I) 12-51
MCR 2.513(J) 12-51, 12-52
MCR 2.513(K) 12-50
MCR 2.513(L) 12-39, 12-40
MCR 2.513(M) 12-50
MCR 2.513(N) 12-39, 12-62, 12-64, 12-65, 12-66, 12-83
MCR 2.513(O) 12-80, 12-82
MCR 2.513(P) 12-82
MCR 2.514(C) 12-85
MCR 2.515(A) 12-90, 12-91
MCR 2.515(B) 12-91
MCR 2.515(C) 12-91
TOA: MCRs - 2 Michigan Judicial Institute

MCR 2.517(A) 9-5, 12-5

MCR 2.518 1-4, 1-7, 1-9, Glossary-8
MCR 2.518(A) 1-7
MCR 2.518(C) 1-9
MCR 2.613(C) 6-15, 9-5, 12-8
MCR 3.207(A) 8-6
MCR 3.218 1-4
MCR 3.604(I) 8-22, 8-23
MCR 3.706(A) 8-6
MCR 3.903 1-4
MCR 3.903(A) 7-13
MCR 3.903(D) 7-14
MCR 3.930 1-5, Glossary-8
MCR 3.935(A) 5-50, 5-51
MCR 3.935(D) 7-14
MCR 3.951 7-14
MCR 3.951(A) 7-14
MCR 3.951(B) 7-14
MCR 3.953(A) 7-14
MCR 4.101(A) 3-46, 3-47
MCR 4.401(A) 2-15, 5-8
MCR 4.401(B) 2-14, 2-16, 2-17, 3-54, 5-8, 5-11, 7-6
MCR 4.401(C) 2-14, 5-8
MCR 4.401(D) 2-21, 5-15
MCR 4.401(E) 5-9, 5-21, 5-22, 7-7, 7-9, 12-32
MCR 6.001 2-12, 3-27, 5-6, 9-6
MCR 6.001(A) 2-12, 2-14, 3-22, 3-28, 5-5, 5-7, 5-17, 6-4, 6-46, 7-24, 8-10, 8-12
MCR 6.001(B) 2-12, 2-13, 3-49, 5-5, 5-6, 5-7, 5-17, 5-21, 5-22, 5-24, 5-26, 5-27, 5-28, 5-
29, 5-30, 5-31, 5-32, 5-33, 6-4, 6-5, 6-6, 6-10, 6-13, 6-17, 6-18, 6-20, 6-21, 6-25,
6-32, 6-46, 6-49, 6-50, 7-60
MCR 6.001(C) 5-49
MCR 6.001(D) 2-12, 3-23, 5-6, 9-2, 12-6, 12-29, 12-30, 12-50, 12-62
MCR 6.001(E) 2-12, 5-5, 12-3
MCR 6.003(4) 2-15, 5-8
MCR 6.004 2-12, 5-6
MCR 6.004(A) 9-41
MCR 6.004(C) 8-4, 9-43, 9-44, 9-45
MCR 6.004(D) 9-45
MCR 6.005 2-13, 5-6
MCR 6.005(A) 4-7, 4-8, 5-46, 7-26
MCR 6.005(B) 4-10, 5-33
MCR 6.005(D) 4-12, 4-21, 4-22, 4-23, 4-24, 4-27, 5-30, 7-27, 7-28, 7-29
MCR 6.005(E) 4-21, 4-25, 6-24, 6-25, 7-22, 7-26, 7-27, 7-28, 7-29, 9-21
MCR 6.005(F) 4-4, 4-5
MCR 6.005(G) 4-5
MCR 6.005(H) 4-15, 4-16
MCR 6.005(I) 3-82, 3-83, 4-16
MCR 6.006 2-13, 5-6, 5-9, 5-20, 5-21, 5-22, 7-7, 7-9, 12-32
MCR 6.006(A) 5-17, 5-20, 5-22, 5-28, 7-9, 7-15, 7-23, 12-32
MCR 6.006(B) 7-38
MCR 6.006(C) 12-32

MCR 6.006(D) 5-21, 7-15, 7-23, 7-38, 7-45

MCR 6.008 2-8, 2-13, 5-7, 6-47, 7-49
MCR 6.008(A) 2-7, 2-10, 2-11, 2-14, 5-3, 5-7, 6-46, 7-4, 7-17, 7-48
MCR 6.008(B) 2-7, 2-8, 7-48, 7-50, 7-55
MCR 6.008(C) 2-8, 2-12, 5-4, 6-4, 6-47, 7-4, 7-10, 7-49
MCR 6.008(D) 2-8, 5-4, 6-4, 6-47, 7-4, 7-5, 7-10, 7-49
MCR 6.008(E) 2-8, 6-47, 7-50
MCR 6.101 2-13, 3-24, 5-6, 5-26
MCR 6.101(A) 3-11, 3-13, 3-16, 3-17, 5-26
MCR 6.101(B) 3-11, 3-15
MCR 6.101(C) 3-11, 3-13, 3-15
MCR 6.102 3-21, 3-23, 3-27, 3-41, 8-10, 8-11, 8-13
MCR 6.102(A) 3-12, 3-20, 3-21, 3-49
MCR 6.102(B) 3-12, 3-22, 3-23
MCR 6.102(C) 3-27, 3-49
MCR 6.102(D) 2-13, 3-27, 5-6, 8-10
MCR 6.102(E) 3-28
MCR 6.102(F) 2-13, 5-6, 5-24, 8-12, 8-13
MCR 6.103 2-13, 3-49, 3-50, 5-6
MCR 6.103(A) 3-12, 3-49
MCR 6.103(B) 3-49
MCR 6.103(C) 3-49, 3-50
MCR 6.104 3-12, 5-7, 5-17, 5-21, 5-22, 5-27
MCR 6.104(A) 2-13, 3-10, 3-12, 5-6, 5-7, 5-16, 5-17, 5-21, 5-22, 5-27
MCR 6.104(B) 2-13, 5-7, 5-21, 5-22, 5-25, 5-27
MCR 6.104(C) 5-22, 5-23, 5-28, 5-32, 5-44
MCR 6.104(D) 3-24, 5-26, 5-44
MCR 6.104(E) 3-24, 5-23, 5-26, 5-28, 5-29, 5-31, 5-42, 5-43, 5-44, 5-46, 5-47, 7-7, 7-14,
7-20
MCR 6.104(F) 2-21, 5-15
MCR 6.104(G) 5-17
MCR 6.106 2-13, 5-6, 8-3, 8-19
MCR 6.106(A) 5-34, 5-44, 7-54, 8-2
MCR 6.106(B) 5-34, 8-2, 8-3, 8-15, 8-16, 8-17, 8-18, 8-27, Glossary-42
MCR 6.106(C) 8-3, 8-17
MCR 6.106(D) 8-6, 8-7, 8-17, 8-18
MCR 6.106(E) 8-6, 8-7, 8-8, 8-21
MCR 6.106(F) 8-3, 8-6, 8-8, 8-17, 8-18, 8-28
MCR 6.106(G) 8-16, 8-17
MCR 6.106(H) 8-18, 8-19, 8-27
MCR 6.106(I) 8-21, 8-22, 8-26
MCR 6.108 2-14, 5-7
MCR 6.108(A) 5-47, 7-7, 7-8, 7-10
MCR 6.108(B) 2-20, 5-14, 7-9
MCR 6.108(C) 7-9
MCR 6.108(D) 7-9, 7-41
MCR 6.108(E) 7-8
MCR 6.110 2-14, 5-7, 7-32, 7-50, 7-55, 7-56
MCR 6.110(A) 5-43, 5-48, 7-8, 7-10, 7-11, 7-14, 7-15, 7-20, 7-46
MCR 6.110(B) 5-43, 5-48, 7-8, 7-21, 7-22, 7-23, 7-41
MCR 6.110(C) 7-24, 7-34, 7-35, 7-36, 7-37, 7-38, 7-45, 7-50, 7-55

MCR 6.110(D) 7-36, 7-37, 7-50, 7-55, 9-48

MCR 6.110(E) 7-47, 7-50, 7-53, 7-55
MCR 6.110(F) 7-20, 7-47, 7-50, 7-53, 7-55
MCR 6.110(G) 7-54
MCR 6.110(H) 7-49, 7-50, 7-55
MCR 6.110(I) 7-58
MCR 6.111 2-14, 5-7, 6-12, 6-60, 6-68, 7-4, 7-56, 7-57, 7-58, 7-59
MCR 6.111(A) 5-2, 6-12, 7-4, 7-57, 7-58, 7-59, 7-60
MCR 6.111(C) 6-12, 6-68, 7-59
MCR 6.112 7-59
MCR 6.112(B) 3-12, 7-12, 7-14, 7-15
MCR 6.112(C) 3-12
MCR 6.112(D) 3-35
MCR 6.112(E) 9-15
MCR 6.112(F) 3-40, 7-57, 7-58
MCR 6.112(G) 3-12
MCR 6.112(H) 3-36, 3-40
MCR 6.113 7-58, 7-59
MCR 6.113(A) 7-56, 7-58, 7-59
MCR 6.113(B) 7-56, 7-59
MCR 6.113(C) 7-56, 7-57
MCR 6.113(D) 7-45
MCR 6.113(E) 3-40, 6-26, 7-57, 7-58, 12-2, 12-3
MCR 6.120 3-37, 9-24
MCR 6.120(A) 3-37, 9-24
MCR 6.120(B) 3-37, 3-38, 3-39, 9-24, 9-25, 9-26, 9-27
MCR 6.120(C) 3-38, 9-24, 9-26
MCR 6.121 3-38, 9-27
MCR 6.121(A) 3-38, 3-39, 9-26, 9-27
MCR 6.121(B) 3-39, 9-27
MCR 6.121(C) 3-39, 9-27
MCR 6.121(D) 3-39, 9-27
MCR 6.125 2-13, 5-6, 10-5, 10-6, 10-7
MCR 6.125(B) 7-42, 10-6, 12-95
MCR 6.125(C) 7-42, 10-7
MCR 6.125(D) 10-7
MCR 6.125(E) 7-42, 10-8
MCR 6.125(F) 10-9
MCR 6.200 7-24
MCR 6.201 9-6, 9-10, 9-11, 9-12, 9-15
MCR 6.201(A) 7-40, 9-6, 9-7, 9-14, 9-15
MCR 6.201(B) 7-24, 9-8
MCR 6.201(C) 9-9, 9-10
MCR 6.201(D) 9-10
MCR 6.201(E) 9-11
MCR 6.201(F) 9-11
MCR 6.201(G) 9-11
MCR 6.201(H) 9-11
MCR 6.201(I) 9-12
MCR 6.201(J) 9-12
MCR 6.201(K) 9-6

MCR 6.202 2-13, 5-6, 7-37

MCR 6.300 6-46
MCR 6.301 6-12, 6-60, 6-68, 7-59
MCR 6.301(A) 6-12, 6-57, 6-68
MCR 6.301(B) 6-18, 6-62
MCR 6.301(C) 6-20, 6-67
MCR 6.301(D) 6-21, 7-60
MCR 6.302 6-17, 6-18, 6-19, 6-21, 6-22, 6-23, 6-30, 6-31, 6-39, 6-49, 6-50, 6-52, 6-55, 6-
61, 6-63, 6-65, 6-66, 6-67, 6-68, 6-74, 6-76, 7-59, 10-18
MCR 6.302(A) 6-21, 6-22
MCR 6.302(B) 6-17, 6-18, 6-22, 6-25, 6-26, 6-27, 6-28, 6-30, 6-31, 6-40, 6-52, 6-55, 6-
62, 6-63, 6-64, 6-65, 6-66, 6-75, 6-76
MCR 6.302(C) 6-5, 6-6, 6-7, 6-9, 6-15, 6-23, 6-32, 6-64, 6-65, 6-66
MCR 6.302(D) 6-18, 6-19, 6-22, 6-23, 6-65, 6-66, 6-67
MCR 6.302(E) 6-22, 6-66
MCR 6.302(F) 6-32
MCR 6.303 6-66, 7-59, 10-18
MCR 6.304 7-59
MCR 6.304(A) 6-67
MCR 6.304(B) 6-68
MCR 6.304(C) 6-67
MCR 6.304(D) 6-68
MCR 6.310 6-8, 6-10, 6-14, 6-71, 6-76, 6-78, 7-59
MCR 6.310(A) 6-68
MCR 6.310(B) 6-5, 6-8, 6-9, 6-10, 6-14, 6-15, 6-16, 6-66, 6-69, 6-70, 6-71, 6-72
MCR 6.310(C) 6-58, 6-63, 6-64, 6-69, 6-73, 6-75, 6-76
MCR 6.310(D) 6-78
MCR 6.310(E) 6-13
MCR 6.312 6-77
MCR 6.401 6-25, 6-54, 12-2
MCR 6.402 6-25, 12-2, 12-3
MCR 6.402(A) 12-2, 12-3
MCR 6.402(B) 12-2, 12-3, 12-4
MCR 6.403 12-7
MCR 6.410 12-86
MCR 6.410(A) 12-11
MCR 6.410(B) 12-86
MCR 6.411 12-12, 12-23, 12-24
MCR 6.412(A) 12-9, 12-13, 12-15, 12-17, 12-19, 12-25
MCR 6.412(C) 12-13
MCR 6.412(D) 12-15, 12-16
MCR 6.412(E) 12-17, 12-18
MCR 6.412(F) 12-27
MCR 6.414 12-39
MCR 6.414(G) 12-39
MCR 6.417 12-85, 12-93, 12-94
MCR 6.419 12-59
MCR 6.419(B) 12-60, 12-61
MCR 6.419(C) 12-59
MCR 6.419(D) 12-7, 12-59
MCR 6.419(F) 12-60

MCR 6.420 12-91

MCR 6.420(A) 12-91
MCR 6.420(B) 12-85
MCR 6.420(C) 12-86, 12-90
MCR 6.420(D) 12-84, 12-91, 12-92
MCR 6.425(E) 2-13, 5-6
MCR 6.425(F) 6-78, 6-79
MCR 6.425(G) 6-73, 6-79
MCR 6.427 2-13, 5-6
MCR 6.431(A) 12-59
MCR 6.435 2-13, 5-6
MCR 6.440 2-13, 5-6
MCR 6.445 2-13, 5-6
MCR 6.610 2-13, 2-21, 5-6, 5-15, 6-4, 6-5, 6-6, 6-10, 6-13, 6-17, 6-18, 6-20, 6-21, 6-30,
6-31, 6-32, 6-46, 6-50, 7-60
MCR 6.610(4) 6-28
MCR 6.610(B) 9-4
MCR 6.610(C) 2-21, 5-15, 6-48
MCR 6.610(D) 2-21, 5-2, 5-7, 5-15, 5-29, 5-31, 5-32, 5-33, 6-48, 6-53, 7-56
MCR 6.610(E) 2-21, 5-15, 6-5, 6-12, 6-18, 6-19, 6-21, 6-22, 6-23, 6-24, 6-25, 6-26, 6-27,
6-28, 6-29, 6-30, 6-31, 6-41, 6-46, 6-48, 6-49, 6-50, 6-51, 6-52, 6-53, 6-54, 6-55,
6-57, 6-58
MCR 6.610(F) 2-21, 5-15, 6-44, 6-58
MCR 6.610(H) 5-2, 5-7, 5-42, 5-43, 5-44, 5-45, 7-56
MCR 6.615 2-13, 5-6, 5-37
MCR 6.615(A) 3-46, 3-47, 5-34, 5-37
MCR 6.615(B) 5-35, 5-36
MCR 6.615(C) 5-35
MCR 6.615(D) 5-34, 5-36
MCR 6.620 2-13, 5-7
MCR 6.620(A) 12-11, 12-12
MCR 6.620(B) 12-18
MCR 6.625 2-13, 5-7, 6-40
MCR 6.625(A) 6-58
MCR 6.625(B) 6-59
MCR 6.901(A) 7-13
MCR 6.901(B) 5-49
MCR 6.903(E) Glossary-19
MCR 6.903(H) Glossary-36
MCR 6.905(C) 4-19
MCR 6.907 5-50
MCR 6.907(A) 5-50
MCR 6.907(C) 5-50, 5-51
MCR 6.909 5-51
MCR 6.909(A) 5-51
MCR 6.909(B) 5-52
MCR 6.911(A) 5-51, 7-13
MCR 6.911(B) 7-13
MCR 7.103(A) 6-40
MCR 7.103(B) 6-41, 6-57
MCR 7.104 2-21, 5-15

MCR 7.104(A) 6-59

MCR 7.105(A) 6-40, 6-41, 6-59
MCR 7.105(G) 6-41, 6-57, 6-58
MCR 7.205(F) 9-48
MCR 7.210(B) 1-2
MCR 7.211(C) 1-8, 1-9, 4-19
MCR 7.212(A) 1-2
MCR 7.213(C) 9-49
MCR 7.215(C) 9-2
MCR 7.215(J) 1-13, 3-7, 3-10, 3-11, 3-28, 3-38, 3-56, 3-72, 3-84, 4-22, 4-23, 4-25, 5-18,
6-5, 7-28, 9-16, 9-25, 9-26, 9-50, 9-54, 11-22, 12-36, 12-41, 12-71, 12-72, 12-74,
12-76, 12-79, 12-83, 12-88
MCR 8.107 9-5
MCR 8.107(A) 9-5
MCR 8.107(B) 9-5
MCR 8.108(B) 1-2
MCR 8.108(E) 1-2
MCR 8.109(A) 1-2
MCR 8.109(B) 1-2
MCR 8.111(C) 7-20, 7-53
MCR 8.112(B) 3-40, 5-18, 5-20, 7-15, 7-23, 7-39, 7-57, 7-58, 12-33
MCR 8.116(D) 1-3, 7-31
MCR 8.119 1-4, 1-5, 1-8
MCR 8.119(A) 1-4
MCR 8.119(C) 3-4
MCR 8.119(D) 1-5, 1-9, 3-3
MCR 8.119(E) 1-5
MCR 8.119(F) 1-5, 1-7, 1-8
MCR 8.119(G) 1-5
MCR 8.119(H) 1-5, 1-7, 1-11
MCR 8.119(I) 1-5, 1-6, 1-7, 1-8, 1-9
MCR 8.119(J) 1-5, 1-10, 1-11
MCR 8.119(K) 1-10
MCR 8.125(B) 5-34
MCR 8.125(C) 5-34
MCR 9.100 1-13
MCR 9.103(A) 1-13
MCR 9.104 1-13

Michigan Rules of Evidence
MRE 104 9-5

MRE 401 12-47
MRE 403 12-47
MRE 410 6-39, 6-40, 6-77
MRE 601 12-28
MRE 603 12-27, 12-28
MRE 604 12-28
MRE 606 12-92
MRE 611 4-20, 12-32, 12-35, 12-36, 12-37
MRE 614 12-35
MRE 615 7-32
MRE 702 9-20
MRE 801 10-28
MRE 803 6-40
MRE 804 7-39
MRE 1101 3-84, 7-37, 8-16, 8-18, 8-19, 9-5
Michigan Judicial Institute TOA: MREs - 1

Table of Authorities: Michigan Rules of Evidence
TOA: MREs - 2 Michigan Judicial Institute

Michigan Rules of Professional Conduct
MRPC 1.2(b) 4-16

MRPC 1.7 1-14
MRPC 1.7(b) 4-5
MRPC 1.8 1-14
MRPC 1.9 1-14
MRPC 1.16 4-16
MRPC 1.16(c) 4-16
MRPC 3.7 1-14
MRPC 8.3 1-14
Michigan Judicial Institute TOA: MRPCs - 1

Table of Authorities: Michigan Rules of Professional Conduct
TOA: MRPCs - 2 Michigan Judicial Institute

Michigan Criminal Jury Instructions
M Crim JI 1.4 12-24

M Crim JI 2.1 12-25
M Crim JI 2.9 12-51
M Crim JI 2.15 12-78
M Crim JI 3.11 12-82
M Crim JI 3.12 12-83, 12-84
M Crim JI 3.25 10-16, 10-17
M Crim JI 3.27 10-16, 10-17
M Crim JI 3.29 10-16, 10-17
M Crim JI 3.31 10-16, 10-17
M Crim JI 5.9 12-28
M Crim JI 6.2 10-20
M Crim JI 7.4 10-28
M Crim JI 7.9 10-16
M Crim JI 7.10(1) 10-15
M Crim JI 7.10(2) 10-15, 10-22
M Crim JI 7.10(3) 10-15
M Crim JI 7.11 10-14, 10-16
M Crim JI 7.12 10-16, 10-18
M Crim JI 15.5(6) 3-63
Michigan Judicial Institute TOA: M Crim JI - 1

Table of Authorities: Michigan Criminal Jury Instructions
TOA: M Crim JI - 2 Michigan Judicial Institute

United States Code
18 USC 2510 3-76

18 USC 2522 3-76
18 USC 2701 3-76, 11-7
18 USC 2703(d) 11-7
18 USC 2712 3-76
18 USC 3121 3-76
18 USC 3127 3-76
28 USC 2254(d) 12-19
28 USC 2255(h) 5-47, 6-17, 6-24
Michigan Judicial Institute TOA: USC - 1

Table of Authorities: United States Code
TOA: USC - 2 Michigan Judicial Institute

Constitutional Authority
Michigan Constitutional Authority
Const 1963 art 6 § 4 4-6
Const 1963 art 6 § 5 4-6
Const 1963, art 1, § 11 3-50, 3-51, 3-55, 3-56, 3-58, 11-2, 11-45
Const 1963, art 1, § 13 1-16, 4-19, 7-27
Const 1963, art 1, § 14 12-2
Const 1963, art 1, § 15 3-50, 5-44, 8-2, 8-15, 8-16, 8-27, 9-29, 12-93
Const 1963, art 1, § 16 8-7
Const 1963, art 1, § 17 1-17, 4-2, 5-16, 10-5, 12-56
Const 1963, art 1, § 20 1-3, 3-11, 4-2, 5-32, 6-40, 6-53, 9-17, 9-41, 12-2, 12-8, 12-9, 12-
11, 12-29, 12-57
Const 1963, art 1, § 24 7-32, 7-40
Const 1963, art 3 § 2 4-6
Const 1963, art 3, § 2 3-52
Const 1963, art 6, § 1 1-14
Const 1963, art 6, § 4 4-9
Const 1963, art 6, § 13 2-2, 2-7
Const 1963, art 6, § 19 3-25
Const 1963, art 6, § 28 4-6
U.S. Constitutional Authority

US Const, Am IV 3-50, 3-51, 3-55, 11-2
US Const, Am V 1-17, 4-2, 9-29, 10-5, 12-56, 12-93
US Const, Am VI 1-3, 4-2, 4-19, 5-32, 9-17, 9-41, 12-2, 12-8, 12-9, 12-57
US Const, Am XIV 1-17, 4-2, 10-5, 12-56
Michigan Judicial Institute TOA: MI & US Const - 1

Table of Authorities: MI & US Constitutions
TOA: MI & US Const - 2 Michigan Judicial Institute

MJI (Criminal)

Uploaded by

Copyright:

Available Formats

MJI (Criminal)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

MJI (Criminal)

Uploaded by

Copyright:

Available Formats

CRIMINAL

MICHIGAN JUDICIAL INSTITUTE © 2019

• The Honorable David F. Viviano, Chief Justice Pro Tem

• The Honorable Elizabeth T. Clement, MJI Supervising Justice

• The Honorable Stephen J. Markman, the Honorable Brian

• The Honorable Milton L. Mack, Jr., State Court Administrator

• Mr. Thomas P. Clement, Supreme Court General Counsel

• Mr. Larry S. Royster, Supreme Court Chief of Staff

Michigan Judicial Institute Staff

• Alessa Boes, Research Attorney Specialist

• Amanda Clark, Judicial Education Analyst

• Anne M. DeMarco, Program Assistant

• Rachael Drenovsky, Learning Center Coordinator

• Amy Feinauer, Program Assistant

• Heather Leidi, Administrative Specialist

• Sarah Roth, Publications Manager

• Corrie S. Schmidt-Parker, Research Attorney

• Danielle Stackpole, Research Attorney

• Peter C. Stathakis, Program Manager

• Cathy Weitzel, Training & Development Specialist

Statements in this benchbook represent the professional judgment of

The Criminal Proceedings Benchbook, Volume 1, is part of a two-volume set.

This revised edition of the Criminal Proceedings Benchbook, Volume 1, was

• The Honorable James M. Biernat, Jr., Chief Judge, 16th

• The Honorable Kathleen M. Brickley, Chief Judge, Van

• The Honorable Miriam Cavanaugh, Chief Judge,

• Brett DeGroff, State Appellate Defender Office, Assistant

• The Honorable J. Richardson Johnson, 9th Circuit Court,

• The Honorable Raymond J. Kostrzewa, Jr., Chief Judge,

• Donald A. Kuebler, Genesee County Prosecutor’s Office,

• Bradene Moore, Michigan Judicial Institute (SCAO),

• Bobbi Morrow, Trial Court Services (SCAO), District Court

• Stacy L. Westra, Trial Court Services (SCAO), Circuit Court

The Criminal Proceedings Benchbooks, Volumes 1 and 2, derive from the

The MJI Michigan Circuit Court Benchbook was originally authored by

The MJI Criminal Procedure Monograph series formerly contained the

• Monograph 1: Issuance of Complaints & Arrest Warrants—

• Monograph 2: Issuance of Search Warrants—Fourth Edition

• Monograph 3: Misdemeanor Arraignments & Pleas—Third

• Monograph 4: Felony Arraignments & Pleas—Third Edition

• Monograph 5: Preliminary Examinations—Third Edition

• Monograph 6: Pretrial Motions—Third Edition

• Monograph 7: Probation Revocation—Fourth Edition

• Monograph 8: Felony Sentencing—Revised Edition

• Monograph 9: Postconviction Proceedings

Former MJI Criminal Procedure Monographs 1-7 were originally authored

Former MJI Criminal Procedure Monograph 9 was originally authored by

This benchbook is intended for Michigan judges who handle criminal

• The focus is on process rather than substantive law

• The text is intended to include the authority the judge

• The text is designed to be read aloud or incorporated in a

• The text attepmts to identify whether the court’s decision is

With these concepts in mind, the text is organized as follows:

• The format generally follows the sequence of the Michigan

• The format generally follows the typical sequence in which

• At the beginning of each chapter is a table of contents that

• Sections in each chapter are identified by the word or

• If the court is required to consider particular factors when

• Every effort has been made to cite the relevant Michigan