examination defense in Michigan

2020People v Meredith, 459 Mich 62, 66-67 ; 586 NW2d 538 (1998).

1999When someone is not available, that person is not “at hand,” “readily obtainable; accessible,” or “free or ready to be seen, spoken to.” Random House Webster’s College Dictionary (1992), p 94. 5 In light of the totality of the circumstances surrounding this case and the decision in Meredith, supra, we conclude that the complainant was “unavailable” for purposes of MRE 804(a)(2). 6 In light of the complainant’s unavailability, MRE 804(b)(1) permits the trial court to admit into evidence her former testimony from the preliminary examination because defense counsel had an opportunity and similar

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2026That is because, “[i]n Michigan, the preliminary examination is solely a creation of the Legislature—it is a statutory right,” and “[t]here is no federal constitutional right to a preliminary examination or hearing.” People v Johnson, 427 Mich 98, 103 ; 398 NW2d 219 (1986) (footnote omitted), citing Gerstein v Pugh, 420 US 103 , 95 S Ct 854 , 43 L Ed 2d 54 (1975).

2026That is because, “[i]n Michigan, the preliminary examination is solely a creation of the Legislature—it is a statutory right,” and “[t]here is no federal constitutional right to a preliminary examination or hearing.” People v Johnson, 427 Mich 98, 103 ; 398 NW2d 219 (1986) (footnote omitted), citing Gerstein v Pugh, 420 US 103 , 95 S Ct 854 , 43 L Ed 2d 54 (1975).

2023Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 423 ; 684 NW2d 864 (2004).

2023Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 423 ; 684 NW2d 864 (2004).

2026That is because, “[i]n Michigan, the preliminary examination is solely a creation of the Legislature—it is a statutory right,” and “[t]here is no federal constitutional right to a preliminary examination or hearing.” People v Johnson, 427 Mich 98, 103 ; 398 NW2d 219 (1986) (footnote omitted), citing Gerstein v Pugh, 420 US 103 , 95 S Ct 854 , 43 L Ed 2d 54 (1975).

2026That is because, “[i]n Michigan, the preliminary examination is solely a creation of the Legislature—it is a statutory right,” and “[t]here is no federal constitutional right to a preliminary examination or hearing.” People v Johnson, 427 Mich 98, 103 ; 398 NW2d 219 (1986) (footnote omitted), citing Gerstein v Pugh, 420 US 103 , 95 S Ct 854 , 43 L Ed 2d 54 (1975).

2020Id.

2020For the second factor, defendant argues that because the applicable burden of proof at the preliminary examination was lower than it was at trial, see People v Yost, 468 Mich 122, 126 ; 659 NW2d 604 (2003), he approached his line of questioning differently and, thus, did not have a similar motive to develop the victim’s testimony at the preliminary examination as he would at trial.

2020For the second factor, defendant argues that because the applicable burden of proof at the preliminary examination was lower than it was at trial, see People v Yost, 468 Mich 122, 126 ; 659 NW2d 604 (2003), he approached his line of questioning differently and, thus, did not have a similar motive to develop the victim’s testimony at the preliminary examination as he would at trial.

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2018See People v George, 114 Mich App 204, 207 ; 318 NW2d 666 (1982) (stating in dicta that the prosecutor has correctly noted that “the doctrines of collateral estoppel and res judicata bar a prosecutor from proceeding against an accused by bringing a second complaint and warrant after the first has been dismissed”); People v Riley, 72 Mich App 299, 302 ; 249 NW2d 397 (1976) (holding that the dismissal of a defendant’s charges on procedural grounds at the close of a preliminary examination did not bar the prosecution from refiling charges against the defendant because there was not an adjudicatio

2018See People v George, 114 Mich App 204, 207 ; 318 NW2d 666 (1982) (stating in dicta that the prosecutor has correctly noted that “the doctrines of collateral estoppel and res judicata bar a prosecutor from proceeding against an accused by bringing a second complaint and warrant after the first has been dismissed”); People v Riley, 72 Mich App 299, 302 ; 249 NW2d 397 (1976) (holding that the dismissal of a defendant’s charges on procedural grounds at the close of a preliminary examination did not bar the prosecution from refiling charges against the defendant because there was not an adjudicatio

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2016And just as the filing of the magistrate’s return confers jurisdiction on the circuit court, id., it has the effect of divesting the *55 district court of jurisdiction, People v Sherrod, 32 Mich App 183, 186 ; 188 NW2d 221 (1971).

2016And just as the filing of the magistrate’s return confers jurisdiction on the circuit court, id., it has the effect of divesting the *55 district court of jurisdiction, People v Sherrod, 32 Mich App 183, 186 ; 188 NW2d 221 (1971).

2009Under Michigan law, an “inference” does not equate with a “presumption.” In Ward v Consolidated Rail Corp, 472 Mich 77, 84 ; 693 NW2d 366 (2005), our Supreme Court observed that the “trial court’s instructions to the jury blurred the distinction between pre *185 sumptions and inferences and were not tailored to the evidence submitted by the parties.” Black’s Law Dictionary (8th ed) defines an “inference” as a “conclusion reached by considering other facts and deducing a logical consequence from them.” According to MRE 301, however, in a civil case “a presumption imposes on the party against wh

2009Under Michigan law, an “inference” does not equate with a “presumption.” In Ward v Consolidated Rail Corp, 472 Mich 77, 84 ; 693 NW2d 366 (2005), our Supreme Court observed that the “trial court’s instructions to the jury blurred the distinction between pre *185 sumptions and inferences and were not tailored to the evidence submitted by the parties.” Black’s Law Dictionary (8th ed) defines an “inference” as a “conclusion reached by considering other facts and deducing a logical consequence from them.” According to MRE 301, however, in a civil case “a presumption imposes on the party against wh

2003Our Supreme Court explained: 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, In re Elliott, 315 Mich 662, 675 ; 24 NW2d 528 (1946), or “before whom the defendant had been examined.” Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119 ; 215 NW2d 145 (1974).

2003Our Supreme Court explained: 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, In re Elliott, 315 Mich 662, 675 ; 24 NW2d 528 (1946), or “before whom the defendant had been examined.” Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119 ; 215 NW2d 145 (1974).

2003Our Supreme Court explained: 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, In re Elliott, 315 Mich 662, 675 ; 24 NW2d 528 (1946), or “before whom the defendant had been examined.” Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119 ; 215 NW2d 145 (1974).

2003Our Supreme Court explained: 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, In re Elliott, 315 Mich 662, 675 ; 24 NW2d 528 (1946), or “before whom the defendant had been examined.” Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119 ; 215 NW2d 145 (1974).

1986In Atkins , we said: Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel. [Id., 173.] The prosecution’s duty to correct the false testimony of a state witness arises "when [the false testimony] appears.” Napue, supra, 269 . 9 In the present case, the witness falsely testified that he was offered no consideration in return for his cooperation at the preliminary examination hea

1986Citing People v Dixon, 392 Mich 691 ; 222 NW2d 749 (1974), the defense argued that the search violated defendant’s right to post bond, and that the police are limited to a pat-down search for offensive weapons during an arrest for a misdemeanor until the arrested person is provided an opportunity to post bail under the interim bail statute, MCL 780.581; MSA 28.872(1).

1986Citing People v Dixon, 392 Mich 691 ; 222 NW2d 749 (1974), the defense argued that the search violated defendant’s right to post bond, and that the police are limited to a pat-down search for offensive weapons during an arrest for a misdemeanor until the arrested person is provided an opportunity to post bail under the interim bail statute, MCL 780.581; MSA 28.872(1).

1974Had such an appeal been made, it would have been error, Clark v Grand Trunk WR Co, 367 Mich 396 ; 116 NW2d 914 (1962).

1974Had such an appeal been made, it would have been error, Clark v Grand Trunk WR Co, 367 Mich 396 ; 116 NW2d 914 (1962).

1974Plaintiff-appellant’s petition for extension of time for the filing of petitions is considered and the same is hereby denied December 17, 1974, without prejudice to plaintiff-appellant or any interested party filing with the probate court a motion requesting an extension of time as to any defendant for which an examination and hearing cannot be scheduled within the time established in People v McQuillan, 392 Mich 511 (1974).

1972People v Bean, 7 Mich App 402 (1967).

1971That is for your determination.” (Emphasis supplied.) An examination of the instruction indicates that it amply comports with the jurisprudence of this state as enunciated in Reed v. City of Detroit (1896), 108 Mich 224 , 225: “ * * * where a person sustains personal injury through the negligence of another, he is not to *349 be deprived of bis full damages because of tbe failure of his surgeon to administer the best remedies or treatment.