unpreserved constitutional error in Michigan

2026Under MRE 103(a), “[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party[.]” Although constitutional questions are reviewed de novo, the appellate court “reviews the effect of an unpreserved constitutional error under the plain-error standard.” People v Shafier, 483 Mich 205, 211 ; 768 NW2d 305 (2009).

2026Under MRE 103(a), “[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party[.]” Although constitutional questions are reviewed de novo, the appellate court “reviews the effect of an unpreserved constitutional error under the plain-error standard.” People v Shafier, 483 Mich 205, 211 ; 768 NW2d 305 (2009).

2017A. STANDARD OF REVIEW Because defendant also failed to preserve his double jeopardy challenge, see People v Strickland, 293 Mich App 393, 401 ; 810 NW2d 660 (2011), our review of this unpreserved constitutional challenge is limited to plain error affecting defendant’s substantial rights, Carines, 460 Mich at 752-753, 763-764 .

2017A. STANDARD OF REVIEW Because defendant also failed to preserve his double jeopardy challenge, see People v Strickland, 293 Mich App 393, 401 ; 810 NW2d 660 (2011), our review of this unpreserved constitutional challenge is limited to plain error affecting defendant’s substantial rights, Carines, 460 Mich at 752-753, 763-764 .

2009People v McNally, 470 Mich 1, 5 ; 679 NW2d 301 (2004).

2009People v McNally, 470 Mich 1, 5 ; 679 NW2d 301 (2004).

2024People v Solloway, 316 Mich App 184, 197 ; 891 NW2d 255 (2016).

2023Id. -17- nevertheless, the Court anticipated that “this harshest possible penalty will be uncommon.” People v Taylor, 510 Mich 112 , 127; 987 NW2d 132 (2022) (quotation marks and citation omitted).

2023While we acknowledge defendant’s argument that no action needs to be taken to preserve for appeal an error concerning the waiver of counsel, we will examine the error as an unpreserved constitutional challenge for plain error affecting substantial rights.2 People v Carines, 460 Mich 2 We do, however, find ourselves in agreement with numerous jurists who have pointed out the inherent absurdity of preserving an effective right to self-representation claim at the trial court level. -4- 750; 597 NW2d 130 (1999), see also, People v Willing, 267 Mich App 208, 219 ; 704 NW2d 472 (2005) because even u

2023While we acknowledge defendant’s argument that no action needs to be taken to preserve for appeal an error concerning the waiver of counsel, we will examine the error as an unpreserved constitutional challenge for plain error affecting substantial rights.2 People v Carines, 460 Mich 2 We do, however, find ourselves in agreement with numerous jurists who have pointed out the inherent absurdity of preserving an effective right to self-representation claim at the trial court level. -4- 750; 597 NW2d 130 (1999), see also, People v Willing, 267 Mich App 208, 219 ; 704 NW2d 472 (2005) because even u

2022And “for the admission of other-acts evidence to violate due process, it must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’ ” Dowling v United States, 493 US 342, 352 ; 110 S Ct 668 ; 107 L Ed 2d 708 (1990), quoting United States v Lovasco, 431 US 783 ; 97 S Ct 2011 ; 52 L Ed 2d 752 (1977). -5- of establishing that, more probably than not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361, 378 ; 624 NW2d 227 (2001).

2022And “for the admission of other-acts evidence to violate due process, it must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’ ” Dowling v United States, 493 US 342, 352 ; 110 S Ct 668 ; 107 L Ed 2d 708 (1990), quoting United States v Lovasco, 431 US 783 ; 97 S Ct 2011 ; 52 L Ed 2d 752 (1977). -5- of establishing that, more probably than not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361, 378 ; 624 NW2d 227 (2001).

2022And “for the admission of other-acts evidence to violate due process, it must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’ ” Dowling v United States, 493 US 342, 352 ; 110 S Ct 668 ; 107 L Ed 2d 708 (1990), quoting United States v Lovasco, 431 US 783 ; 97 S Ct 2011 ; 52 L Ed 2d 752 (1977). -5- of establishing that, more probably than not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361, 378 ; 624 NW2d 227 (2001).

2022And “for the admission of other-acts evidence to violate due process, it must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’ ” Dowling v United States, 493 US 342, 352 ; 110 S Ct 668 ; 107 L Ed 2d 708 (1990), quoting United States v Lovasco, 431 US 783 ; 97 S Ct 2011 ; 52 L Ed 2d 752 (1977). -5- of establishing that, more probably than not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361, 378 ; 624 NW2d 227 (2001).

2022And “for the admission of other-acts evidence to violate due process, it must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’ ” Dowling v United States, 493 US 342, 352 ; 110 S Ct 668 ; 107 L Ed 2d 708 (1990), quoting United States v Lovasco, 431 US 783 ; 97 S Ct 2011 ; 52 L Ed 2d 752 (1977). -5- of establishing that, more probably than not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361, 378 ; 624 NW2d 227 (2001).

2022And “for the admission of other-acts evidence to violate due process, it must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’ ” Dowling v United States, 493 US 342, 352 ; 110 S Ct 668 ; 107 L Ed 2d 708 (1990), quoting United States v Lovasco, 431 US 783 ; 97 S Ct 2011 ; 52 L Ed 2d 752 (1977). -5- of establishing that, more probably than not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361, 378 ; 624 NW2d 227 (2001).

2020Id.

2019This Court reviews the effect of an unpreserved constitutional error under the plain-error standard, People v Shafier, 483 Mich 205, 211 ; 768 NW2d 305 (2009), and a trial court’s evidentiary decision for an abuse of discretion, People v Roper, 286 Mich App 77, 90 ; 777 NW2d 483 (2009). 2.

2019This Court reviews the effect of an unpreserved constitutional error under the plain-error standard, People v Shafier, 483 Mich 205, 211 ; 768 NW2d 305 (2009), and a trial court’s evidentiary decision for an abuse of discretion, People v Roper, 286 Mich App 77, 90 ; 777 NW2d 483 (2009). 2.

2019ANALYSIS Our Supreme Court discussed the types of error implicated when a witness asserts his Fifth-Amendment rights before the jury in People v Gearns, 457 Mich 170 ; 577 NW2d 422 (1998),2 overruled in part on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999).

2019ANALYSIS Our Supreme Court discussed the types of error implicated when a witness asserts his Fifth-Amendment rights before the jury in People v Gearns, 457 Mich 170 ; 577 NW2d 422 (1998),2 overruled in part on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999).

2019ANALYSIS Our Supreme Court discussed the types of error implicated when a witness asserts his Fifth-Amendment rights before the jury in People v Gearns, 457 Mich 170 ; 577 NW2d 422 (1998),2 overruled in part on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999).

2019ANALYSIS Our Supreme Court discussed the types of error implicated when a witness asserts his Fifth-Amendment rights before the jury in People v Gearns, 457 Mich 170 ; 577 NW2d 422 (1998),2 overruled in part on other grounds by People v Lukity, 460 Mich 484, 494 ; 596 NW2d 607 (1999).

2016People v McGee, 280 Mich App 680, 682 ; 761 NW2d 743 (2008).

2016People v McGee, 280 Mich App 680, 682 ; 761 NW2d 743 (2008).

2015See People v Coy, 258 Mich App 1, 12 ; 669 NW2d 831 (2003); People v Bulmer, 256 Mich App 33, 35 ; 662 NW2d 117 (2003) (noting that an objection to evidence on one ground is insufficient to preserve an appellate attack on a different ground).

2015See People v Coy, 258 Mich App 1, 12 ; 669 NW2d 831 (2003); People v Bulmer, 256 Mich App 33, 35 ; 662 NW2d 117 (2003) (noting that an objection to evidence on one ground is insufficient to preserve an appellate attack on a different ground).

2010We further observe that, in Bryant, 483 Mich at 151-152 , our Supreme Court treated a similar claim as an unpreserved constitutional error.

2009Yet, accepting that my position has yet to win the favor of this Court, I offer no opinion regarding that standard's application in this case. [1] People v. Carines, 460 Mich. 750, 778 , 597 N.W.2d 130 (1999) (Kelly, J., dissenting), quoting People v. Graves, 458 Mich. 476, 482 , 581 N.W.2d 229 (1998). [2] Ante at 304. [1] People v. Carines, 460 Mich. 750 , 597 N.W.2d 130 (1999).

2009Yet, accepting that my position has yet to win the favor of this Court, I offer no opinion regarding that standard's application in this case. [1] People v. Carines, 460 Mich. 750, 778 , 597 N.W.2d 130 (1999) (Kelly, J., dissenting), quoting People v. Graves, 458 Mich. 476, 482 , 581 N.W.2d 229 (1998). [2] Ante at 304. [1] People v. Carines, 460 Mich. 750 , 597 N.W.2d 130 (1999).

2004The Full Faith and Credit Clause, US Const, art IY § 1, provides, in relevant part, that “Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State.” The purpose of the Full Faith and Credit Clause “is to prevent the litigation of issues in one state that have already been decided in another.” Martino v Cottman Transmission Systems, Inc, 218 Mich App 54, 58 ; 554 NW2d 17 (1996).

2004The Full Faith and Credit Clause, US Const, art IY § 1, provides, in relevant part, that “Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State.” The purpose of the Full Faith and Credit Clause “is to prevent the litigation of issues in one state that have already been decided in another.” Martino v Cottman Transmission Systems, Inc, 218 Mich App 54, 58 ; 554 NW2d 17 (1996).

2003Bishop, supra. If a defendant’s waiver was otherwise knowingly, voluntarily, and intelligently made, reversal will not be predicated on a waiver that is invalid under the court rules, Robertson, supra, because courts will disregard errors that do not affect the substantial rights of a defendant, Rodriguez, supra. The holdings in the above federal cases accord with, the Michigan Supreme Court’s recent decision in *97 People v Carines, 460 Mich 750, 761-767 ; 597 NW2d 130 (1999), which held that reversal was not warranted on the basis of an unpreserved constitutional error unless the error was p

2003Bishop, supra. If a defendant’s waiver was otherwise knowingly, voluntarily, and intelligently made, reversal will not be predicated on a waiver that is invalid under the court rules, Robertson, supra, because courts will disregard errors that do not affect the substantial rights of a defendant, Rodriguez, supra. The holdings in the above federal cases accord with, the Michigan Supreme Court’s recent decision in *97 People v Carines, 460 Mich 750, 761-767 ; 597 NW2d 130 (1999), which held that reversal was not warranted on the basis of an unpreserved constitutional error unless the error was p