reasonable probability defense in Michigan

2017“To establish ineffective assistance of counsel, the defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness 1 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -1- and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.’ Id. (internal quotation marks and citation omitted).

2017“To establish ineffective assistance of counsel, the defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness 1 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -1- and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.’ Id. (internal quotation marks and citation omitted).

2017Prejudice to the defendant “can be shown by proving that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” People v Cooper, 309 Mich App 74, 80 ; 867 NW2d 452 (2015) (internal quotation marks and citation omitted).

2017Prejudice to the defendant “can be shown by proving that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” People v Cooper, 309 Mich App 74, 80 ; 867 NW2d 452 (2015) (internal quotation marks and citation omitted).

2019To establish that a defendant’s trial counsel was ineffective, the defendant must demonstrate that “(1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” People v Johnson, 315 Mich App 163, 174 ; 889 NW2d 513 (2016) (quotation marks and citation omitted).

2019To establish that a defendant’s trial counsel was ineffective, the defendant must demonstrate that “(1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” People v Johnson, 315 Mich App 163, 174 ; 889 NW2d 513 (2016) (quotation marks and citation omitted).

1997Further, we note that the nonconstitutional error at issue is harmless under our “harmless error” rule because defendant has not sustained his burden of proving that there is “a reasonable probability that the error affected the outcome of the trial.” People v Hubbard, 209 Mich App 234, 243 ; 530 NW2d 130 (1995), citing with approval People v Hall, 435 Mich 599, 609, n 8 ; 460 NW2d 520 (1990).

1997However, in Hubbard, supra at 243 , this Court applied the standard articulated in Johnson, supra (opinion by Boyle, J.), and Hall, supra, of deciding that nonconstitutional errors are harmless unless the defendant sustains his burden of establishing “a reasonable probability that the error affected the outcome of the trial.”

2021In light of our resolution of this issue, we do not address the trial court’s conclusion regarding good faith. -5- erroneous deprivation of the affected interest if those safeguards are not provided. [Kennedy, 502 Mich at 215 (quotation marks and citation omitted).] In order to determine whether an indigent defendant makes the showing necessary to obtain appointment of an expert witness, our Supreme Court adopted the reasonable probability standard set forth in Moore v Kemp, 809 F 2d 702 (CA 11, 1987): [A] defendant must demonstrate something more than a mere possibility of assistance from a r

2021In light of our resolution of this issue, we do not address the trial court’s conclusion regarding good faith. -5- erroneous deprivation of the affected interest if those safeguards are not provided. [Kennedy, 502 Mich at 215 (quotation marks and citation omitted).] In order to determine whether an indigent defendant makes the showing necessary to obtain appointment of an expert witness, our Supreme Court adopted the reasonable probability standard set forth in Moore v Kemp, 809 F 2d 702 (CA 11, 1987): [A] defendant must demonstrate something more than a mere possibility of assistance from a r

2019The defendant was prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been different. [Id. at 80-81 (citations omitted).] “Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Jackson (On Reconsideration), 313 Mich App 409, 432 ; 884 NW2d 297 (2015) (quotation marks and citation omitted).

2019The defendant was prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been different. [Id. at 80-81 (citations omitted).] “Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Jackson (On Reconsideration), 313 Mich App 409, 432 ; 884 NW2d 297 (2015) (quotation marks and citation omitted).

2017“Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579 ; 640 NW2d 246 (2002). -1- “To prove that defense counsel was not effective, the defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” Heft, 299 Mich App at 80-81 .

2017“Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579 ; 640 NW2d 246 (2002). -1- “To prove that defense counsel was not effective, the defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” Heft, 299 Mich App at 80-81 .

2025ANALYSIS “To establish ineffective assistance of counsel, a defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” People v Putman, 309 Mich App 240, 247-248 ; 870 NW2d 593 (2015) (quotation marks and citation omitted).

2025ANALYSIS “To establish ineffective assistance of counsel, a defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” People v Putman, 309 Mich App 240, 247-248 ; 870 NW2d 593 (2015) (quotation marks and citation omitted).

2024Id.

2024Id.; Carines, 460 Mich at 763 .

2014Whether a defendant has been denied effective assistance of counsel “is a mixed question of fact and constitutional law.”42 A trial court’s findings of fact are reviewed for clear error and questions of law are reviewed de novo.43 Because no evidentiary hearing was held, this Court’s review of trial counsel’s performance is limited to mistakes apparent on the record.44 The United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel.45 To establish ineffective assistance of counsel, “the defendant must show that (1) defense counsel’s performance w

2014Whether a defendant has been denied effective assistance of counsel “is a mixed question of fact and constitutional law.”42 A trial court’s findings of fact are reviewed for clear error and questions of law are reviewed de novo.43 Because no evidentiary hearing was held, this Court’s review of trial counsel’s performance is limited to mistakes apparent on the record.44 The United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel.45 To establish ineffective assistance of counsel, “the defendant must show that (1) defense counsel’s performance w

2017“This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251, 255 ; 631 NW2d 764 (2001). 1 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -3- Although we agree that the prosecutor improperly questioned defendant regarding the truthfulness of the testifying police officers, defendant has not shown that his trial counsel’s failure to object to the improper questions was objectively unreasonable under the circumstances.

2017“This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251, 255 ; 631 NW2d 764 (2001). 1 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -3- Although we agree that the prosecutor improperly questioned defendant regarding the truthfulness of the testifying police officers, defendant has not shown that his trial counsel’s failure to object to the improper questions was objectively unreasonable under the circumstances.

2016“Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App 326, 329 ; 820 NW2d 229 (2012) (citation and quotation marks omitted).

2016“Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of proving otherwise.” People v Eisen, 296 Mich App 326, 329 ; 820 NW2d 229 (2012) (citation and quotation marks omitted).

2025“Trial counsel cannot be faulted for failing to raise an objection or motion that would have been futile.” People v Fike, 228 Mich App 178, 182 ; 577 NW2d 903 (1998).

2025“Trial counsel cannot be faulted for failing to raise an objection or motion that would have been futile.” People v Fike, 228 Mich App 178, 182 ; 577 NW2d 903 (1998).

2025Our Supreme Court held that “defense counsel’s failure to attempt to engage a single expert witness to rebut the prosecution’s expert testimony, or to attempt to consult an expert with the scientific training to support the defendant’s theory of the case, fell below an objective standard of reasonableness, and created a reasonable probability that this error affected the outcome of the defendant’s trial.” Id. at 383 .

2024“Effective assistance of counsel is presumed.” People v Rockey, 237 Mich App 74, 76 ; 601 NW2d 887 (1999).

2024“Effective assistance of counsel is presumed.” People v Rockey, 237 Mich App 74, 76 ; 601 NW2d 887 (1999).

2021“A defendant is prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been different.” People v Carll, 322 Mich App 690, 703 ; 915 NW2d 387 (2018).

2021“A defendant is prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been different.” People v Carll, 322 Mich App 690, 703 ; 915 NW2d 387 (2018).

2021In Carpenter, decided in 2001, our Supreme Court held as follows: [B]y enacting a comprehensive statutory scheme setting forth the requirements for and the effects of asserting a defense based on either mental illness or mental retardation, the Legislature has signified its intent not to allow a defendant to introduce evidence of mental abnormalities short of legal insanity to avoid or reduce criminal responsibility by negating specific intent. [Carpenter, 464 Mich at 226 .] This Court decided Yost seven years later.

2019“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v Lockett, 295 Mich App 165, 187 ; 814 NW2d 295 (2012).

2019Also, “to assist trial courts in determining whether a defendant has made a sufficient showing to be entitled to expert assistance under Ake, [the Kennedy Court] adopt[ed] the reasonable probability standard from Moore v Kemp[, 809 F2d 702 (CA 11, 1987), cert den 481 US 1054 ; 107 S Ct 2192 ; 95 L Ed 2d 847 (1987)].” Kennedy, 502 Mich at 210 .