viability defense in Michigan

2024Where the viability of the defense depends entirely upon the resolution of a factual dispute, it is the role of the trial court to ascertain those facts and appraise their effect upon the administration of criminal justice.’ People v Cushman, 65 Mich App 161, 167 ; 237 NW2d 228 (1975).

2024Where the viability of the defense depends entirely upon the resolution of a factual dispute, it is the role of the trial court to ascertain those facts and appraise their effect upon the administration of criminal justice.’ People v Cushman, 65 Mich App 161, 167 ; 237 NW2d 228 (1975).

2025Our Supreme Court has ruled that “sexual penetration” as required for the offense of CSC-I under MCL 750.520b(1) “can be for any purpose[,]” People v Lemons, 454 Mich 234, 253 ; 562 NW2d 447 (1997), whereas “CSC-II requires the prosecutor to prove ‘sexual contact’ ” that involves “touching that ‘can reasonably be construed as being for the purpose of sexual arousal or gratification.’ ” Id.

2025Our Supreme Court has ruled that “sexual penetration” as required for the offense of CSC-I under MCL 750.520b(1) “can be for any purpose[,]” People v Lemons, 454 Mich 234, 253 ; 562 NW2d 447 (1997), whereas “CSC-II requires the prosecutor to prove ‘sexual contact’ ” that involves “touching that ‘can reasonably be construed as being for the purpose of sexual arousal or gratification.’ ” Id.

2025The reasonableness of a party’s inquiry into the viability of a claim is “determined by an objective standard and depends on the particular facts and circumstances of the case.” LaRose Mkt, Inc v Sylvan Ctr, Inc, 209 Mich App 201, 210 ; 530 NW2d 505 (1995).

2025The reasonableness of a party’s inquiry into the viability of a claim is “determined by an objective standard and depends on the particular facts and circumstances of the case.” LaRose Mkt, Inc v Sylvan Ctr, Inc, 209 Mich App 201, 210 ; 530 NW2d 505 (1995).

2024(Citation omitted.) [People v Flansburgh, 71 Mich App 1, 5 ; 246 NW2d 360 (1976) (citation omitted).] Although these cases stand for the proposition that both the facts found by the trial court and its ultimate finding on whether a defendant was entrapped are subject to a clearly erroneous standard, it remains true that whether entrapment exists under the facts is a legal question, not a factual one.

2024(Citation omitted.) [People v Flansburgh, 71 Mich App 1, 5 ; 246 NW2d 360 (1976) (citation omitted).] Although these cases stand for the proposition that both the facts found by the trial court and its ultimate finding on whether a defendant was entrapped are subject to a clearly erroneous standard, it remains true that whether entrapment exists under the facts is a legal question, not a factual one.

2008It then said that an attorney "would violate this ethical obligation by filing a written notice of intent to raise the insanity defense before adequately investigating the viability of such a defense and forming a sufficient basis to believe that the defense is warranted." Id.

2005KELLY, J., dissents and states as follows: I would grant leave to appeal in order to examine the viability of the rule relied on by the trial court, People v. DerMartzex, 390 Mich. 410 , 213 N.W.2d 97 (1973).

2005KELLY, J., dissents and states as follows: I would grant leave to appeal in order to examine the viability of the rule relied on by the trial court, People v. DerMartzex, 390 Mich. 410 , 213 N.W.2d 97 (1973).

1998The Restatement, Property, § 416, p 2448 (1944), likewise provides that [a] promissory restraint or forfeiture restraint on alienation imposed by a vendor on the interest of a vendee under a contract for the sale of an interest in land is valid until the vendee shall have become entitled to receive a deed, unless the restraint violates the rule against perpetuities!1 [1] *453 After Sloman, supra, the few cases dealing with the issue of restraints on alienation in land contract provisions have taken a more measured approach and have focused on the reasonableness of the restriction at issue. 2 I

1998The Restatement, Property, § 416, p 2448 (1944), likewise provides that [a] promissory restraint or forfeiture restraint on alienation imposed by a vendor on the interest of a vendee under a contract for the sale of an interest in land is valid until the vendee shall have become entitled to receive a deed, unless the restraint violates the rule against perpetuities!1 [1] *453 After Sloman, supra, the few cases dealing with the issue of restraints on alienation in land contract provisions have taken a more measured approach and have focused on the reasonableness of the restriction at issue. 2 I

1998The Restatement, Property, § 416, p 2448 (1944), likewise provides that [a] promissory restraint or forfeiture restraint on alienation imposed by a vendor on the interest of a vendee under a contract for the sale of an interest in land is valid until the vendee shall have become entitled to receive a deed, unless the restraint violates the rule against perpetuities!1 [1] *453 After Sloman, supra, the few cases dealing with the issue of restraints on alienation in land contract provisions have taken a more measured approach and have focused on the reasonableness of the restriction at issue. 2 I

1998Questioning the broadness of the rule set forth in Sloman, supra, 3 the Court stated: Restraints on alienation of property are strongly disfavored in Michigan. . . .

1989An insurer’s duty to defend its insured was discussed by this Court in the recent case of Farmers & Merchants Mutual Fire Ins Co v LeMire, 173 Mich App 819, 824 ; 434 NW2d 253 (1988): The duty of an insurance company to defend its insured arises solely from the language of the insurance contract.

1989An insurer’s duty to defend its insured was discussed by this Court in the recent case of Farmers & Merchants Mutual Fire Ins Co v LeMire, 173 Mich App 819, 824 ; 434 NW2d 253 (1988): The duty of an insurance company to defend its insured arises solely from the language of the insurance contract.

1989In arguing that plaintiffs’ claim must be denied despite Clapham, defendant relies on Rieck v Medical Protective Co of Fort Wayne, Indiana, 64 Wis 2d 514 ; 219 NW2d 242 (1974).

1989In arguing that plaintiffs’ claim must be denied despite Clapham, defendant relies on Rieck v Medical Protective Co of Fort Wayne, Indiana, 64 Wis 2d 514 ; 219 NW2d 242 (1974).

1987We express no opinion on the viability of such a claim, see Costa v Able Distributors, Inc, 3 Hawaii App 486; 653 P2d 101 (1982).

1987We express no opinion on the viability of such a claim, see Costa v Able Distributors, Inc, 3 Hawaii App 486; 653 P2d 101 (1982).

1985The viability of the doctrine of sovereign immunity was not seriously assailed until Williams v Detroit, 364 Mich 231 ; 111 NW2d 1 (1961).

1985The viability of the doctrine of sovereign immunity was not seriously assailed until Williams v Detroit, 364 Mich 231 ; 111 NW2d 1 (1961).

1976(Citation omitted.) See also, People v Van Riper, 65 Mich App 230, 235 ; 237 NW2d 262 (1975).

1976(Citation omitted.) See also, People v Van Riper, 65 Mich App 230, 235 ; 237 NW2d 262 (1975).