prosecutorial error in Michigan

2016Prosecutorial error may not be premised “on a prosecutor’s good-faith effort to admit evidence.” People v Dobek, 274 Mich App 58, 76 ; 732 NW2d 546 (2007).

2016Prosecutorial error may not be premised “on a prosecutor’s good-faith effort to admit evidence.” People v Dobek, 274 Mich App 58, 76 ; 732 NW2d 546 (2007).

2022ANALYSIS With respect to the prosecutorial error argument, “[a] prosecutor has committed [error] if the prosecutor abandoned his or her responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial.” People v Lane, 308 Mich App 38, 62 ; 862 NW2d 446 (2014).

2022ANALYSIS With respect to the prosecutorial error argument, “[a] prosecutor has committed [error] if the prosecutor abandoned his or her responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial.” People v Lane, 308 Mich App 38, 62 ; 862 NW2d 446 (2014).

2018I want you to apply all of that, all of these exhibits, all of the evidence to the charges filed, and I’m asking, do your job and come back with a verdict of guilty as charged on all these counts.” Prosecutorial error occurs “when [the prosecutor] invites jurors to suspend their powers of judgment and decide the case on the basis of sympathy or civic duty.” People v 7 We note that in People v Cooper, 309 Mich App 74, 87-88 ; 867 NW2d 452 (2015), this Court explained that the accurate label for most prosecutorial misconduct claims is prosecutorial error, because only the most extreme cases rise

2018I want you to apply all of that, all of these exhibits, all of the evidence to the charges filed, and I’m asking, do your job and come back with a verdict of guilty as charged on all these counts.” Prosecutorial error occurs “when [the prosecutor] invites jurors to suspend their powers of judgment and decide the case on the basis of sympathy or civic duty.” People v 7 We note that in People v Cooper, 309 Mich App 74, 87-88 ; 867 NW2d 452 (2015), this Court explained that the accurate label for most prosecutorial misconduct claims is prosecutorial error, because only the most extreme cases rise

2018People v Bennett, 290 Mich App 465, 475 ; 802 NW2d 627 (2010).

2018People v Bennett, 290 Mich App 465, 475 ; 802 NW2d 627 (2010).

2025People v Jackson, 313 Mich App 409, 425-426 ; 884 NW2d 297 (2015).

2025People v Jackson, 313 Mich App 409, 425-426 ; 884 NW2d 297 (2015).

2025Id. at 765-766 .

2024Accordingly, a prosecutorial violation of MCR 6.201(A) based on a failure to disclose the laboratory report or wet swab sample would have been nonconstitutional in nature.” Elston, 462 Mich at 765-766 .

2018Defendant did not timely object to the alleged prosecutorial error or request a curative instruction, and thus this issue is unpreserved. -2- Generally, issues of prosecutorial error are reviewed “de novo to determine if the defendant was denied a fair and impartial trial.” People v Thomas, 260 Mich App 450, 453 ; 678 NW2d 631 (2004).

2018Defendant did not timely object to the alleged prosecutorial error or request a curative instruction, and thus this issue is unpreserved. -2- Generally, issues of prosecutorial error are reviewed “de novo to determine if the defendant was denied a fair and impartial trial.” People v Thomas, 260 Mich App 450, 453 ; 678 NW2d 631 (2004).

2017People v Mann, 288 Mich App 114, 119 ; 792 NW2d 53 (2010).

2017People v Mann, 288 Mich App 114, 119 ; 792 NW2d 53 (2010).

2017Prosecutorial error issues “are decided case by case, with the reviewing court examining the pertinent portion of the record and evaluating the prosecutor’s remarks in context.” People v Akins, 259 Mich App 545, 562 ; 675 NW2d 863 (2003) (quotation marks and citation omitted).

2017Prosecutorial error issues “are decided case by case, with the reviewing court examining the pertinent portion of the record and evaluating the prosecutor’s remarks in context.” People v Akins, 259 Mich App 545, 562 ; 675 NW2d 863 (2003) (quotation marks and citation omitted).

2017People v Brown, 279 Mich App 116, 134 ; 755 NW2d 664 (2008).

2017People v Brown, 279 Mich App 116, 134 ; 755 NW2d 664 (2008).

2026People v Head, 323 Mich App 526, 539 ; 917 NW2d 752 (2018).

2026People v Head, 323 Mich App 526, 539 ; 917 NW2d 752 (2018).

2025In 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -7- addition, failing to advance a meritless or futile argument does not constitute ineffective assistance of counsel.

2025In 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -7- addition, failing to advance a meritless or futile argument does not constitute ineffective assistance of counsel.

2022Defendant alternatively argues that defense counsel was ineffective for failure to object at trial. “[E]stablishing ineffective assistance requires a defendant to show (1) that trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.” People v Randolph, 502 Mich 1, 9 ; 917 NW2d 249 (2018).

2022Defendant alternatively argues that defense counsel was ineffective for failure to object at trial. “[E]stablishing ineffective assistance requires a defendant to show (1) that trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.” People v Randolph, 502 Mich 1, 9 ; 917 NW2d 249 (2018).

2022It is grounds for a challenge for cause that the person: * * * (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[.] In Eccles, 260 Mich App at 385-386 , the Court stated: Initially, we note that it is not disputed that the prospective jurors at issue here had each been the subject of misdemeanor criminal prosecutions, a fact that, as discussed above, constitutes a proper ground for a prosecutorial challenge for cause under MCR 2.511(D)(11).[2] A proper ground for a challen

2022At a minimum, given these two facts in evidence, the prosecutorial error during closing argument was not “plain, i.e., clear or obvious.” See Carines, 460 Mich at 763 .

2022“A defendant’s opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant’s guilt or innocence.” People v Dobek, 274 Mich App 58, 63-64 ; 732 NW2d 546 (2007). -9- It is a “well-established principle that it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial.” People v Douglas, 496 Mich 557, 583 ; 852 NW2d 587 (2014) (quotation marks and citations omitted).

2022“A defendant’s opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant’s guilt or innocence.” People v Dobek, 274 Mich App 58, 63-64 ; 732 NW2d 546 (2007). -9- It is a “well-established principle that it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial.” People v Douglas, 496 Mich 557, 583 ; 852 NW2d 587 (2014) (quotation marks and citations omitted).

2020People v Grayer, 252 Mich App 349, 357 ; 651 NW2d 818 (2002).

2020People v Grayer, 252 Mich App 349, 357 ; 651 NW2d 818 (2002).

2019Mullins, 322 Mich App at 172 ; Jackson, 313 Mich App at 416 .

2018However, “because defendant’s issue is unpreserved, this Court reviews the issue for plain error affecting his substantial rights.” People v Perry, 317 Mich App 589, 600 ; 895 NW2d 216 (2016).

2018However, “because defendant’s issue is unpreserved, this Court reviews the issue for plain error affecting his substantial rights.” People v Perry, 317 Mich App 589, 600 ; 895 NW2d 216 (2016).

2015People v Noble, 238 Mich App 647, 660 ; 608 NW2d 123 (1999).

2015People v Noble, 238 Mich App 647, 660 ; 608 NW2d 123 (1999).

1982As Tolbert, supra, makes abundantly clear, this is the typical scenario leading to a prosecutorial claim of abandonment.

1982As Tolbert, supra, makes abundantly clear, this is the typical scenario leading to a prosecutorial claim of abandonment.

1981Citing the case of United States v Dinitz, 424 US 600, 607-609 ; 96 S Ct 1075 ; 47 L Ed 2d 267 (1976), the Court in Benton stated that the important consideration for purposes of the double jeopardy provision when a defendant’s motion for mistrial is occasioned by judicial, and presumably prosecutorial, error, is whether the defendant "retained primary control over the course to be followed”. *211 As the Court so found in Benton , we believe that the prosecutorial error complained of in this case was not of such a magnitude that the granting of a mistrial was "a manifest necessity”.

1981Citing the case of United States v Dinitz, 424 US 600, 607-609 ; 96 S Ct 1075 ; 47 L Ed 2d 267 (1976), the Court in Benton stated that the important consideration for purposes of the double jeopardy provision when a defendant’s motion for mistrial is occasioned by judicial, and presumably prosecutorial, error, is whether the defendant "retained primary control over the course to be followed”. *211 As the Court so found in Benton , we believe that the prosecutorial error complained of in this case was not of such a magnitude that the granting of a mistrial was "a manifest necessity”.

1978This error was harmless beyond a reasonable doubt under the test adopted in People v Wichman, 15 Mich App 110, 116 ; 166 NW2d 298 (1968), and People v Lauzon, 84 Mich App 201 ; 269 NW2d 524 (1978).

1978This error was harmless beyond a reasonable doubt under the test adopted in People v Wichman, 15 Mich App 110, 116 ; 166 NW2d 298 (1968), and People v Lauzon, 84 Mich App 201 ; 269 NW2d 524 (1978).

1978This error was harmless beyond a reasonable doubt under the test adopted in People v Wichman, 15 Mich App 110, 116 ; 166 NW2d 298 (1968), and People v Lauzon, 84 Mich App 201 ; 269 NW2d 524 (1978).

1978This error was harmless beyond a reasonable doubt under the test adopted in People v Wichman, 15 Mich App 110, 116 ; 166 NW2d 298 (1968), and People v Lauzon, 84 Mich App 201 ; 269 NW2d 524 (1978).