31 Michigan opinions name it 2 courts 1960–2025 3 in the last five years
The cases below were cited by Michigan courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
People v. Gearnsgreen2 sentences2025A constitutional error may also arise if a witness’s claim of the privilege not to testify denies a defendant the right to confront the witness, or if a prosecutor attempts “to build its case out of inferences arising from use of the testimonial privilege” to an extent that “denies the defendant a fair trial in violation of due process.” People v Gearns, 457 Mich 170, 186-189 ; 577 NW2d 422 (1998) (quotation marks and citation omitted), overruled on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999). 2025A constitutional error may also arise if a witness’s claim of the privilege not to testify denies a defendant the right to confront the witness, or if a prosecutor attempts “to build its case out of inferences arising from use of the testimonial privilege” to an extent that “denies the defendant a fair trial in violation of due process.” People v Gearns, 457 Mich 170, 186-189 ; 577 NW2d 422 (1998) (quotation marks and citation omitted), overruled on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999). | 1 | 3 |
People v. Giacalonegreen2 sentences2018However, constitutional error may potentially arise if the witness’s invocation of a privilege denies a defendant the right to confront a witness, see id. and Gearns, 457 Mich at 186-187 , or if due process is violated by a prosecutor’s misconduct in making a “ ‘conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,’ ” Gearns, 457 Mich at 188 , quoting Namet v United States, 373 US 179, 186 ; 83 S Ct 1151 ; 10 L Ed 2d 278 (1963). 1994In People v Giacalone, 399 Mich 642, 645 ; 250 NW2d 492 *709 (1977), our Supreme Court held that "[a] lawyer may not knowingly offer inadmissable evidence or call a witness knowing that he will claim a valid privilege not to testify.” The rationale for this rule is the adverse inference that may be drawn against the defendant by the jury from the claim of testimonial privilege. | 1 | 2 |
People v. Scruggsgreen2 sentences1990People v. Stearns (1968), 380 Mich 704, 713 (Adams, J. dissenting). 8 The McCarthy Court footnoted its opinion (footnote 20) with the following: “In all such inquiries [by the trial judge of a guilty pleading accused] ‘[m]atters of reality, and not mere ritual, should be controlling.’ Kennedy v. United States (CA 6, 1968), 397 F2d 16, 17.” 9 The defendant was represented by counsel at the preliminary examination and when the plea of guilty of unarmed robbery was offered and accepted by the trial court and at the time of sentencing. 10 Contrast People v. Scruggs (1968), 14 Mich App 47 , and Peo 1969See People v. Scruggs (1968), 14 Mich App 47 and People v. Dickerson (1969), 17 Mich App 201 ; contrast People v. Bartlett (1969), 17 Mich App 205 . | 1 | 2 |
People v. Dickersongreen2 sentences1990People v. Stearns (1968), 380 Mich 704, 713 (Adams, J. dissenting). 8 The McCarthy Court footnoted its opinion (footnote 20) with the following: “In all such inquiries [by the trial judge of a guilty pleading accused] ‘[m]atters of reality, and not mere ritual, should be controlling.’ Kennedy v. United States (CA 6, 1968), 397 F2d 16, 17.” 9 The defendant was represented by counsel at the preliminary examination and when the plea of guilty of unarmed robbery was offered and accepted by the trial court and at the time of sentencing. 10 Contrast People v. Scruggs (1968), 14 Mich App 47 , and Peo 1969See People v. Scruggs (1968), 14 Mich App 47 and People v. Dickerson (1969), 17 Mich App 201 ; contrast People v. Bartlett (1969), 17 Mich App 205 . | 1 | 2 |
People v. Aldrichgreen1 sentence2017First, if the substance of the witness’s past testimonial statement is still placed before the jury, the defendant’s constitutional right of confrontation is implicated 50 Thomas, 260 Mich App at 454-455 . 51 Aldrich, 246 Mich App at 112 (citation omitted). 52 See Benton, 294 Mich App at 202 . 53 Carines, 460 Mich at 763-764 . 54 Pipes, 475 Mich at 274 . -12- because the witness cannot be cross-examined regarding the privileged matters.55 Second, in some circumstances, the inferences arising from the witness’s invocation of a testimonial privilege in the jury’s presence can unreasonably infrin | 1 | 1 |
Smith v. United Statesgreen2 sentences2015For example, in Smith v United States, 947 A2d 1131, 1135 (DC, 2008), the Court of Appeals for the District of Columbia applied the District of Columbia’s testimonial privilege, which mirrors the federal privilege, and noted that “it is a ‘settled rule’ that ‘a defendant ordinarily does not have standing to complain of an erroneous ruling on a witness’s claim of privilege.’ ” (Citation omitted.) Moreover, Brock aligns with precedent involving waiver of other privileges such as the Fifth Amendment privilege against self-incrimination. 2015Additionally, [g]iven the importance of the spousal testimonial privilege, it would ... be .entirely appropriate and often prudent for the [trial] court, even in the absence of an objection, to make sure that the testifying spouse understands that she cannot be required to testify against her spouse, especially if she does not have her own counsel. [Id] Indeed, in order to give effect to the testimonial privilege enumerated in MCL 600.2162(2), “outside the presence of the jury, the trial judge should tell one who is called to testify for or against his spouse that his testimony cannot be compe | 1 | 1 |
People v. Paaschegreen2 sentences2015An attorney is not permitted to knowingly call a witness when he or she is aware that the witness “will claim a valid privilege not to testify,” because “critical weight is added to the prosecution’s case” and an “adverse inference . . . may be drawn against the defendant by the jury from the claim of testimonial privilege.” Paasche, 207 Mich App at 709 (quotation marks and citation omitted). *18 Michigan courts have recognized a procedure for “protect [ing] the defendant’s rights when the trial court is confronted with a potential witness who plans to assert a testimonial privilege.” Id. 2015An attorney is not permitted to knowingly call a witness when he or she is aware that the witness “will claim a valid privilege not to testify,” because “critical weight is added to the prosecution’s case” and an “adverse inference . . . may be drawn against the defendant by the jury from the claim of testimonial privilege.” Paasche, 207 Mich App at 709 (quotation marks and citation omitted). *18 Michigan courts have recognized a procedure for “protect [ing] the defendant’s rights when the trial court is confronted with a potential witness who plans to assert a testimonial privilege.” Id. | 1 | 1 |
Paramount Pictures Corp. v. Miskinisgreen2 sentences2015See Paramount Pictures Corp v Miskinis, 418 Mich 708, 715 ; 344 NW2d 788 (1984) (noting that “[t]he Fifth Amendment privilege against self-incrimination is a personal privilege and cannot be asserted on behalf of another”); People v Wood, 447 Mich 80, 90 ; 523 NW2d 477 (1994) (noting that a criminal defendant “lacked standing to either claim the privilege against self-incrimination for a witness or to complain about an error on the part of the trial judge in overruling the witness’s attempt to assert it”) (quotation marks and citation omitted). 2015See Paramount Pictures Corp v Miskinis, 418 Mich 708, 715 ; 344 NW2d 788 (1984) (noting that “[t]he Fifth Amendment privilege against self-incrimination is a personal privilege and cannot be asserted on behalf of another”); People v Wood, 447 Mich 80, 90 ; 523 NW2d 477 (1994) (noting that a criminal defendant “lacked standing to either claim the privilege against self-incrimination for a witness or to complain about an error on the part of the trial judge in overruling the witness’s attempt to assert it”) (quotation marks and citation omitted). | 1 | 1 |
| Ex Parte Grothegreen | 1 | 1 |
People v. Stearnsgreen1 sentence1990People v. Stearns (1968), 380 Mich 704, 713 (Adams, J. dissenting). 8 The McCarthy Court footnoted its opinion (footnote 20) with the following: “In all such inquiries [by the trial judge of a guilty pleading accused] ‘[m]atters of reality, and not mere ritual, should be controlling.’ Kennedy v. United States (CA 6, 1968), 397 F2d 16, 17.” 9 The defendant was represented by counsel at the preliminary examination and when the plea of guilty of unarmed robbery was offered and accepted by the trial court and at the time of sentencing. 10 Contrast People v. Scruggs (1968), 14 Mich App 47 , and Peo | 1 | 1 |
| People v. Bentongreen | 1 | 1 |
| People v. Johnsongreen | 1 | 1 |
| People v. Sykesgreen | 1 | 1 |
| People v. Jaworskigreen | 1 | 1 |
| People v. Jelksgreen | 1 | 1 |
| Hileman v. Indreicagreen | 1 | 1 |
| People v. Mosdengreen | 1 | 1 |
| Zamler v. Smithgreen | 1 | 1 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in Michigan. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
People v. Bartlett
green
2 sentences1993Because we agree that "[t]here is no way that a trial judge or we can decide the truth or falsity of the defendant’s assertions on affidavit without a testimonial hearing,” People v Barlett, 17 Mich App 205, 218 ; 169 NW2d 337 (1969), and because we believe that our decision is consistent with Supreme Court precedent, we now hold that a defendant is entitled to an evidentiary hearing to determine whether representations concerning the length of the sentence were made where the defendant has submitted an affidavit sufficient in detail with regard to the nature of the promises and the persons wh 1993Because we agree that "[t]here is no way that a trial judge or we can decide the truth or falsity of the defendant’s assertions on affidavit without a testimonial hearing,” People v Barlett, 17 Mich App 205, 218 ; 169 NW2d 337 (1969), and because we believe that our decision is consistent with Supreme Court precedent, we now hold that a defendant is entitled to an evidentiary hearing to determine whether representations concerning the length of the sentence were made where the defendant has submitted an affidavit sufficient in detail with regard to the nature of the promises and the persons wh | 6 | 1969–1993 |
Michigan v. Bryant
green
2 sentences2023Bryant also clarified that Davis’s discussion of an ongoing emergency “should not be taken to imply that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry.” Id. at 366 . 2023Bryant also clarified that Davis’s discussion of an ongoing emergency “should not be taken to imply that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry.” Id. at 366 . | 2 | 2023–2023 |
Namet v. United States
green
2 sentences2018However, constitutional error may potentially arise if the witness’s invocation of a privilege denies a defendant the right to confront a witness, see id. and Gearns, 457 Mich at 186-187 , or if due process is violated by a prosecutor’s misconduct in making a “ ‘conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,’ ” Gearns, 457 Mich at 188 , quoting Namet v United States, 373 US 179, 186 ; 83 S Ct 1151 ; 10 L Ed 2d 278 (1963). 2018However, constitutional error may potentially arise if the witness’s invocation of a privilege denies a defendant the right to confront a witness, see id. and Gearns, 457 Mich at 186-187 , or if due process is violated by a prosecutor’s misconduct in making a “ ‘conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege,’ ” Gearns, 457 Mich at 188 , quoting Namet v United States, 373 US 179, 186 ; 83 S Ct 1151 ; 10 L Ed 2d 278 (1963). | 2 | 1998–2018 |
People v. Barrows
green
2 sentences2001The defendant challenged the trial court’s acceptance of the plea because the court did not directly question him to establish the existence of the crime and his participation in that crime as required by People v Barrows, 358 Mich 267, 272 ; 99 NW2d 347 (1959). 5 The Berry Court found that because the degree hearing process involves not only a plea, but a testimonial hearing and fact finding by the trial court, the analysis of a plea under the open murder statute should be different from that of a summary plea proceeding. 2001The defendant challenged the trial court’s acceptance of the plea because the court did not directly question him to establish the existence of the crime and his participation in that crime as required by People v Barrows, 358 Mich 267, 272 ; 99 NW2d 347 (1959). 5 The Berry Court found that because the degree hearing process involves not only a plea, but a testimonial hearing and fact finding by the trial court, the analysis of a plea under the open murder statute should be different from that of a summary plea proceeding. | 2 | 1970–2001 |
Branzburg v. Hayes
green
2 sentences1990Justice White, writing for himself, Chief Justice Burger, and Justices Blackmun, Powell and Rehnquist, in addition to declining to recognize the existence of a first amendment reporter’s "testimonial privilege that other citizens do not enjoy” [ 408 US at 690 ; 92 S Ct at 2661 ], specifically dealt with, and rejected, the claim that newsmen are entitled to a "conditional, not absolute” privilege — a testimonial privilege conditioned upon the inability of prosecutors to establish relevancy, unavailability from other sources, and a need so compelling as to override invasion of first amendment in 1990Justice White, writing for himself, Chief Justice Burger, and Justices Blackmun, Powell and Rehnquist, in addition to declining to recognize the existence of a first amendment reporter’s "testimonial privilege that other citizens do not enjoy” [ 408 US at 690 ; 92 S Ct at 2661 ], specifically dealt with, and rejected, the claim that newsmen are entitled to a "conditional, not absolute” privilege — a testimonial privilege conditioned upon the inability of prosecutors to establish relevancy, unavailability from other sources, and a need so compelling as to override invasion of first amendment in | 2 | 1986–1990 |
People v. Lukity
green
2 sentences2025A constitutional error may also arise if a witness’s claim of the privilege not to testify denies a defendant the right to confront the witness, or if a prosecutor attempts “to build its case out of inferences arising from use of the testimonial privilege” to an extent that “denies the defendant a fair trial in violation of due process.” People v Gearns, 457 Mich 170, 186-189 ; 577 NW2d 422 (1998) (quotation marks and citation omitted), overruled on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999). 2025A constitutional error may also arise if a witness’s claim of the privilege not to testify denies a defendant the right to confront the witness, or if a prosecutor attempts “to build its case out of inferences arising from use of the testimonial privilege” to an extent that “denies the defendant a fair trial in violation of due process.” People v Gearns, 457 Mich 170, 186-189 ; 577 NW2d 422 (1998) (quotation marks and citation omitted), overruled on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999). | 1 | 2025–2025 |
People v. Benton
green
1 sentence2017First, if the substance of the witness’s past testimonial statement is still placed before the jury, the defendant’s constitutional right of confrontation is implicated 50 Thomas, 260 Mich App at 454-455 . 51 Aldrich, 246 Mich App at 112 (citation omitted). 52 See Benton, 294 Mich App at 202 . 53 Carines, 460 Mich at 763-764 . 54 Pipes, 475 Mich at 274 . -12- because the witness cannot be cross-examined regarding the privileged matters.55 Second, in some circumstances, the inferences arising from the witness’s invocation of a testimonial privilege in the jury’s presence can unreasonably infrin | 1 | 2017–2017 |
People v. Thomas
green
1 sentence2017First, if the substance of the witness’s past testimonial statement is still placed before the jury, the defendant’s constitutional right of confrontation is implicated 50 Thomas, 260 Mich App at 454-455 . 51 Aldrich, 246 Mich App at 112 (citation omitted). 52 See Benton, 294 Mich App at 202 . 53 Carines, 460 Mich at 763-764 . 54 Pipes, 475 Mich at 274 . -12- because the witness cannot be cross-examined regarding the privileged matters.55 Second, in some circumstances, the inferences arising from the witness’s invocation of a testimonial privilege in the jury’s presence can unreasonably infrin | 1 | 2017–2017 |
Commonwealth v. Kane
green
1 sentence2017The last issue arising from Detective Kubiak’s testimony regarding Lewis’s and Welch’s absence is whether the prosecutor violated her ethical duties69 by calling a codefendant, accomplice, or other witness intimately connected with the crime, knowing the witness would assert a testimonial privilege.70 Unlike the analysis of the related due process issue, the focus of 66 Id. at 191 , citing Commonwealth v Kane, 388 Mass 128, 138; 445 NE2d 598 (1983) (footnote omitted). 67 Gearns, 457 Mich 192 , citing Price v State, 37 Wis2d 117; 154 NW2d 222 (1967). 68 The prosecutor only relied on such infere | 1 | 2017–2017 |
Price v. State
green
1 sentence2017The last issue arising from Detective Kubiak’s testimony regarding Lewis’s and Welch’s absence is whether the prosecutor violated her ethical duties69 by calling a codefendant, accomplice, or other witness intimately connected with the crime, knowing the witness would assert a testimonial privilege.70 Unlike the analysis of the related due process issue, the focus of 66 Id. at 191 , citing Commonwealth v Kane, 388 Mass 128, 138; 445 NE2d 598 (1983) (footnote omitted). 67 Gearns, 457 Mich 192 , citing Price v State, 37 Wis2d 117; 154 NW2d 222 (1967). 68 The prosecutor only relied on such infere | 1 | 2017–2017 |
People v. Pipes
green
1 sentence2017First, if the substance of the witness’s past testimonial statement is still placed before the jury, the defendant’s constitutional right of confrontation is implicated 50 Thomas, 260 Mich App at 454-455 . 51 Aldrich, 246 Mich App at 112 (citation omitted). 52 See Benton, 294 Mich App at 202 . 53 Carines, 460 Mich at 763-764 . 54 Pipes, 475 Mich at 274 . -12- because the witness cannot be cross-examined regarding the privileged matters.55 Second, in some circumstances, the inferences arising from the witness’s invocation of a testimonial privilege in the jury’s presence can unreasonably infrin | 1 | 2017–2017 |
People v. Carines
green
1 sentence2017First, if the substance of the witness’s past testimonial statement is still placed before the jury, the defendant’s constitutional right of confrontation is implicated 50 Thomas, 260 Mich App at 454-455 . 51 Aldrich, 246 Mich App at 112 (citation omitted). 52 See Benton, 294 Mich App at 202 . 53 Carines, 460 Mich at 763-764 . 54 Pipes, 475 Mich at 274 . -12- because the witness cannot be cross-examined regarding the privileged matters.55 Second, in some circumstances, the inferences arising from the witness’s invocation of a testimonial privilege in the jury’s presence can unreasonably infrin | 1 | 2017–2017 |
People v. Dyer
green
1 sentence2015“The proper procedure is for the prosecutor to inform the court, out of the presence of the witness [and the jury], of the possible need for the witness to be informed of Fifth Amendment rights.” Dyer, 425 Mich at 578 n 5. | 1 | 2015–2015 |
People v. Wood
green
2 sentences2015See Paramount Pictures Corp v Miskinis, 418 Mich 708, 715 ; 344 NW2d 788 (1984) (noting that “[t]he Fifth Amendment privilege against self-incrimination is a personal privilege and cannot be asserted on behalf of another”); People v Wood, 447 Mich 80, 90 ; 523 NW2d 477 (1994) (noting that a criminal defendant “lacked standing to either claim the privilege against self-incrimination for a witness or to complain about an error on the part of the trial judge in overruling the witness’s attempt to assert it”) (quotation marks and citation omitted). 2015See Paramount Pictures Corp v Miskinis, 418 Mich 708, 715 ; 344 NW2d 788 (1984) (noting that “[t]he Fifth Amendment privilege against self-incrimination is a personal privilege and cannot be asserted on behalf of another”); People v Wood, 447 Mich 80, 90 ; 523 NW2d 477 (1994) (noting that a criminal defendant “lacked standing to either claim the privilege against self-incrimination for a witness or to complain about an error on the part of the trial judge in overruling the witness’s attempt to assert it”) (quotation marks and citation omitted). | 1 | 2015–2015 |
People v. Moorer
green
1 sentence2014People v Moorer, 262 Mich App 64, 76 ; 683 NW2d 736 (2004). | 1 | 2014–2014 |
People v. Moorer
green
1 sentence2014People v Moorer, 262 Mich App 64, 76 ; 683 NW2d 736 (2004). | 1 | 2014–2014 |
Old Chief v. United States
green
1 sentence1998NOTES [1] The second is "based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." Id. at 186 , 83 S.Ct. at 1154-1155 . | 1 | 1998–1998 |
People v. Scheidt
green
1 sentence1998The second theory is based on a concept of prosecutorial misconduct, where the government makes a "conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." Id. at 186 , 83 S.Ct. at 1154-1155 . | 1 | 1998–1998 |
State v. Corrales
green
2 sentences1998Prosecutorial insistence in asking prejudicial questions depicting *432 a defendant's involvement in the crime after it becomes clear that the witness-alleged accomplice has refused and will continue to refuse to testify is an attempt to build the prosecutor's case out of inferences arising from use of the testimonial privilege and is misconduct. [ Id. at 591 , 676 P.2d 615 (citations omitted).] The instant cases stand in stark contrast to Corrales . 1998Prosecutorial insistence in asking prejudicial questions depicting *432 a defendant's involvement in the crime after it becomes clear that the witness-alleged accomplice has refused and will continue to refuse to testify is an attempt to build the prosecutor's case out of inferences arising from use of the testimonial privilege and is misconduct. [ Id. at 591 , 676 P.2d 615 (citations omitted).] The instant cases stand in stark contrast to Corrales . | 1 | 1998–1998 |
People v. Wheeler
green
1 sentence1994People v Wheeler, 151 Ill 2d 298; 602 NE2d 826 (1992). [35] Hogan, The constitutionality of an absolute privilege for rape crisis counseling: A criminal defendant's sixth amendment rights versus a rape victim's right to confidential therapeutic counseling, 30 BC L R 411, 413 (1989) (the testimonial privilege for communications between a rape victim and her counselor promotes the important social goals of rehabilitation of the victim and prosecution of the rapist). [36] After the defendant has made a plausible showing of materiality, "the prosecutor, representing the interests of the privilege | 1 | 1994–1994 |
| People v. Jackson neutral | 1 | 1990–1990 |
Celotex Corp. v. Catrett
green
2 sentences1990Accordingly, we decline to join some other circuit courts, to the extent that they have stated their contrary belief that those predicates do exist, and have thereupon adopted the qualified privilege balancing process urged by three Branzburg dissenters and rejected by the majority. [In re Grand Jury Proceedings, 810 F2d 580, 583-584 (CA 6, 1987).][ 1 ] Also see Ex parte Grothe, 687 SW2d 736, 738 (Tex Crim App, 1984), cert den 474 US 944 (1985). 1990Justice White, writing for himself, Chief Justice Burger, and Justices Blackmun, Powell and Rehnquist, in addition to declining to recognize the existence of a first amendment reporter's "testimonial privilege that other citizens do not enjoy" [ 408 US at 690 ; 92 S Ct at 2661 ], specifically dealt with, and rejected, the claim that newsmen are entitled to a "conditional, not absolute" privilege a testimonial privilege conditioned upon the inability of prosecutors to establish relevancy, unavailability from other sources, and a need so compelling as to override invasion of first amendment in | 1 | 1990–1990 |
| People v. DeWitt green | 1 | 1989–1989 |
| People v. Boone neutral | 1 | 1977–1977 |
| Simmons v. United States green | 1 | 1976–1976 |
| United States v. Wade green | 1 | 1973–1973 |
| People v. James Smith neutral | 1 | 1973–1973 |
| People v. Qualls green | 1 | 1971–1971 |
| People v. Lowenstein green | 1 | 1970–1970 |
| People v. Mason green | 1 | 1970–1970 |
| People v. Perine green | 1 | 1970–1970 |
| People v. Andrews green | 1 | 1970–1970 |
| American Parts Co., Inc. v. American Arbitration Ass'n green | 1 | 1970–1970 |
| Peoples Savings Bank v. Stoddard green | 1 | 1960–1960 |
| Peoples Savings Bank v. Stoddard green | 1 | 1960–1960 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.