common-law affirmative defense in Michigan

2022The panel considered People v Dupree, 486 Mich 693 ; 788 NW2d 399 (2010), in which this Court held that the traditional common-law affirmative defense of self-defense could be raised as a defense to the nonassaultive crime of felon in possession of a firearm.

2022The panel considered People v Dupree, 486 Mich 693 ; 788 NW2d 399 (2010), in which this Court held that the traditional common-law affirmative defense of self-defense could be raised as a defense to the nonassaultive crime of felon in possession of a firearm.

2022We ordered oral argument on their applications and instructed the parties to address two issues: whether the common-law affirmative defense of defense of others may be raised as a defense to the felony and misdemeanor charges against them, see People v Dupree, 486 Mich 693 (2010); People v Triplett, 499 Mich 52 (2016), and whether trial defense counsel’s failure to request such an instruction deprived the defendants of the effective assistance of counsel, see Strickland v Washington, 466 US 668 (1984). [People v Leffew, 506 Mich 1031 , 1031 (2020)].

2022We ordered oral argument on their applications and instructed the parties to address two issues: whether the common-law affirmative defense of defense of others may be raised as a defense to the felony and misdemeanor charges against them, see People v Dupree, 486 Mich 693 (2010); People v Triplett, 499 Mich 52 (2016), and whether trial defense counsel’s failure to request such an instruction deprived the defendants of the effective assistance of counsel, see Strickland v Washington, 466 US 668 (1984). [People v Leffew, 506 Mich 1031 , 1031 (2020)].

2017“To merit an instruction on the affirmative defense of duress, a defendant must establish a prima facie case of the elements of duress.” People v McKinney, 258 Mich App 157, 164 ; 670 NW2d 254 (2003).

2017“To merit an instruction on the affirmative defense of duress, a defendant must establish a prima facie case of the elements of duress.” People v McKinney, 258 Mich App 157, 164 ; 670 NW2d 254 (2003).

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2009In Dixon v United States, 548 US 1 ; 126 S Ct 2437 ; 165 L Ed 2d 299 (2006), the United States Supreme Court assumed that duress constituted a viable defense to an analogous federal statute criminalizing the acquisition of a firearm while under indictment, 18 USC 922(n).

2009In Dixon v United States, 548 US 1 ; 126 S Ct 2437 ; 165 L Ed 2d 299 (2006), the United States Supreme Court assumed that duress constituted a viable defense to an analogous federal statute criminalizing the acquisition of a firearm while under indictment, 18 USC 922(n).

2020“Duress is a common-law affirmative defense.” 13 To merit a duress instruction, a defendant bears the burden of producing some evidence from which the jury could conclude the following: “A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant; C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and D) The defendant committed the act to avoid the threatened harm.”[14] Regarding

2016People v Lemons, 454 Mich 234, 245 , 246 n 15; 562 NW2d 447 (1997); People v Dupree, 284 Mich App 89, 99 ; 771 NW2d 470 (2009).

2016People v Lemons, 454 Mich 234, 245 , 246 n 15; 562 NW2d 447 (1997); People v Dupree, 284 Mich App 89, 99 ; 771 NW2d 470 (2009).

2015Henderson, 306 Mich App at 4 .

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012The dissent relies on a footnote in Reed v Breton, 475 Mich 531 , 539 n 8; 718 NW2d 770 (2006), explaining that the mere absence of language specifically abrogating the common law does not necessarily mean that no abrogation occurred.

2012The dissent relies on a footnote in Reed v Breton, 475 Mich 531 , 539 n 8; 718 NW2d 770 (2006), explaining that the mere absence of language specifically abrogating the common law does not necessarily mean that no abrogation occurred.

2012Otherwise, there would be no incentive for anyone to spend their time and money to go through the process .... [Kolanek, 291 Mich App at 238-239 .] 57 MCL 333.26428(a). 58 MCL 333.26428(b) (emphasis added). 59 See Hamilton v People, 29 Mich 173 (1874); People v Mortimer, 48 Mich 37 ; 11 NW 776 (1882); People v Waldvogel, 49 Mich 337 ; 13 NW 620 (1882). 60 See, e.g., United States v Bailey, 444 US 394, 415 ; 100 S Ct 624 ; 62 L Ed 2d 575 (1980) (holding that a criminal defendant must produce evidence of all the elements of an affirmative defense to be entitled to an instruction on that defense

2012See, e.g., Redden, 290 Mich App at 83-85 (ruling that the circuit court improperly acted as the trier of fact when “colorable issues” remained concerning the defendant’s § 8 defense, which should have been submitted to a jury); People v Anderson, 293 Mich App 33, 66 ; 809 NW2d 176 (2011) (M.

2012See, e.g., Redden, 290 Mich App at 83-85 (ruling that the circuit court improperly acted as the trier of fact when “colorable issues” remained concerning the defendant’s § 8 defense, which should have been submitted to a jury); People v Anderson, 293 Mich App 33, 66 ; 809 NW2d 176 (2011) (M.