Monday, August 30, 2010

Newly available evidence versus newly discovered evidence

In People v Terrell, __ Mich App __ (#286834, 8/26/2010) the Court of Appeals held that when a defendant knew or should have known that his codefendant could provide exculpatory testimony; the codefendant asserting his/her privilege against self-incrimination does equal newly discovered evidence but is instead merely newly available evidence.


A new trial based on newly discovered evidence is warranted where the defendant satisfies the following four part test: “(1) ‘the evidence itself, not merely its materiality, was newly discovered’; (2) ‘the newly discovered evidence was not cumulative’; (3) ‘the party could not, using reasonable diligence, have discovered and produced the evidence at trial’; and (4) the new evidence makes a different result probable on retrial.” People v Cress, 468 Mich 678, 691, 692 (2003). Quoting People v Johnson, 451 Mich 115, 118 n 6 (1996).

If a codefendant invokes his privilege against self incrimination and refuses to testify, a defendant can be denied the benefit of any potentially exculpatory testimony the codefendant might have provided. See Owen, 500 F3d at 91. In such case, the trial court could grant a severance if it is persuaded that the deprivation causes the defendant prejudice. Id. The prosecutor could confer limited immunity on the codefendant so he may testify truthfully and that, as a last resort, a defendant could take the stand and convey his story. Id. at 92. Under MCR 6.121(C) a defendant is entitled to severance if he makes a “showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”

Although newly available evidence does not constitute newly discovered evidence sufficient to warrant a new trial, this does not preclude the possibility that a codefendant’s post-trial or post-conviction exculpatory statements may ever qualify as newly discovered evidence under MCR 6.431(B). There may be cases where such evidence does indeed constitute newly discovered evidence. However, in this case, defendant knew or should have known that his codefendant could offer material testimony regarding defendant’s role in the charged crime; therefore, defendant cannot claim that he “discovered” that evidence only after trial.

Thursday, August 26, 2010

Serious impairment of body function in no fault automobile accident cases.

On July 31, 2010 the Michigan Supreme Court in McCormick v Carrier overturned the existing case law interpretation found in Kreiner v Fischer, 471 Mich 109 (2004) of a serious impairment of body function for no fault automobile accident cases. Under MCL 500.3135, there is tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle “for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”


In my first jury trial since this decision, I used the following jury instruction today (based on McCormick) to explain a Serious impairment of body function:

Serious impairment of body function is a (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).

Under the first prong, it must be established that the injured person has suffered an objectively manifested impairment of body function. As such the focus is not on the injury itself, but how the injury affected a particular body function. An objectively manifested impairment is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an “objectively manifested” impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.

If there is an objectively manifested impairment of body function, the next question is whether the impaired body function is “important.” The relevant definition of the adjective “important” is ‘marked by or having great value, significance, or consequence’. Whether a body function has great “value,” “significance,” or “consequence” will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person’s life. Likewise, if as to that person, the impairment is of an unimportant body function, the person has not suffered an impairment of an important body function. What is important to one is not important to all; a brief impairment may be devastating whereas a near permanent impairment may have little effect.

Finally, if the injured person has suffered an objectively manifested impairment of body function, and that body function is important to that person, then you must determine whether the impairment “affects the person’s general ability to lead his or her normal life.” To “affect” the person’s “general ability” to lead his or her normal life is to influence some of the person’s power or skill, i.e., the person’s capacity, to lead a normal life. In that regards, “to lead his or her normal life” is to have an influence on some of the person’s capacity to live in his or her normal manner of living. This requires a subjective, person and fact specific inquiry that must be decided on a case-by-case basis. Accordingly, this determining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident.

In that regards the law merely requires that a person’s general ability to lead his or her normal life has been affected, not necessarily destroyed. Thus, the consideration is not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected. Second, and relatedly, the law only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has been affected. While the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected. Third, and finally, the law does not create an express temporal requirement as to how long an impairment must last in order to have an effect on “the person’s general ability to live his or her normal life.” An impairment does not have to be permanent in order to be a serious impairment of body function.

If you decide that all three elements have been proved, then plaintiff is entitled to recover damages for non-economic loss for pain and suffering, mental anguish, fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or mortification, aggravation of a pre-existing ailment or condition that you determine the plaintiff has sustained as a result of that injury.

Tuesday, August 24, 2010

My suggestion for the selection of judges.

It is a given that judicial appointments are too often political and judicial elections are too influenced by money. My suggestion to fill judicial vacancies would be to have the attorneys residing or having an office in the electoral jurisdiction vote under the auspices of the State Bar on the applications for any judicial appointment. Each lawyer and each law office would vote separately for one candidate and the top two candidates from each would move on in the appointment process. These top four candidates would then be submitted to the State Bar for their evaluation and the governor would then appoint the new judge from these four candidates.  It's not a perfect answer but this would allow the persons (attorneys) with the most knowledge of the judicial candidates to decide who would be the best judge for the vacancy. The State Bar would do the evaluation for the candidate and governor’s benefit and the governor would be able to decide his/her preference from the four candidates. Allowing for some preference but hopefully ensuring quality candidates.


For elections I would propose a retention vote whereby a judge would remain in office unless the voters by a 2/3rds majority voted for his/her non-retention. This significantly high requirement would discourage the removal of good judges but not eliminate the opportunity to remove bad judges.

Monday, August 23, 2010

The traditional common law affirmative defense of self-defense.

People v Dupree, ___ Mich ___ #139396, 7/23/2010)


The traditional common law affirmative defense of self-defense may be interposed to a charge of being a felon in possession of a firearm, MCL 750.224f. Once the defendant injects the issue of self-defense and satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of self-defense exist, the prosecution bears the burden of proof “‘to exclude the possibility that the killing was done in self-defense

At common law, the affirmative defense of self-defense justifies otherwise punishable criminal conduct, usually the killing of another person, “if the defendant honestly and reasonably believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.” Generally, [o]ne who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. “A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.”

Friday, August 20, 2010

Restricted licenses for OWI probationers if they are in an Alcohol Sobriety Court

The Michigan House and Senate has approved Key Interlock/OWI Court/Restricted License legislation and the related bills are on their way to the Governor for signing. As of January 1, 2011, repeat OWI Offenders in Michigan will be able to have restricted licenses if they are in an Alcohol Sobriety Court and have an interlock device on the vehicle. The idea being to encourage participation in these specialty courts and allow persons committed to sobriety to have some ability to operate a motor vehicle.  In Ionia and Montcalm Court, Judge Voet has an alcohol related sobriety court in the 64A District Court and Judge Kreeger has an upcoming drug court in the 8th Circuit Court.

Wednesday, August 18, 2010

My suggestion, to minimize prison overcrowding and the related costs.

My suggestion, to minimize prison overcrowding and the related costs, would be to give judges additional authority to individualize a defendant’s sentence.


1. If a conviction involves, or includes by history, assaultive/bodily injury or sexual misconduct, the options of jail, probation, prison, etc continue per existing law.

2. If a conviction is not for delivery or manufacturing a controlled substance; but involves, or includes by history, use of drugs and/or alcohol; all incarceration would be served in jail subject to a 'one year’ limitation. (The court would have available the maximum sentence allowed by law but could only impose up to one year in jail at a time.) For example OWI-3d; the possible maximum sentence is 5 years. With outpatient counseling, inpatient, AA, blood alcohol monitoring a court can change behavior if given sufficient time (probation) and negative reinforcement (jail). The problem now is that we run out of jail time at the county level which leaves prison as the only incarceration alternative. Under my proposal, subject to a 'one year’ jail limit (the most that could be imposed at any one time), the circuit court could impose up to five years of jail over a five year period of probation for a person convicted of OWI-3d. A similar process could be utilized with the presently available rehabilitation and drug testing options for drug offenses. One additional safeguard also could be to increase the allowed period of probation.

3. If a conviction is for delivery or manufacturing a controlled substance or is not otherwise included supra; the court would have the authority to impose jail, probation, prison, etc per existing law. If prison is imposed, the judge would have the authority to impose a determinate (like the Federal system) or indeterminate prison sentence. The determinate prison sentence would still be per the sentencing guidelines, but would be a flat sentence with no parole. Sometimes all that is needed is a flat prison sentence to punish the wrongdoer and act as a deterrent.

 I also think we should use the FOC child support collections model in the criminal justice system whereby all monies paid go through the state and are then disbursed to the local governmental unity. It is extremely inefficient for every district and circuit court in every county throughout the state to have their own collection process. And for defendants to set up payment plans for multiple courts in the same county and in other counties throughout the state. I see so many defendants not in compliance going from jail to jail and then repeating the process in one continuous loop. Under this proposal, a defendant would pay x amount per month to the state and the same would then be disbursed to the local government units. Enforcement could be in each court or in the court with the oldest file. 

Tuesday, August 17, 2010

Whether the proposed change would modify the established custodial environment of the child.

Pierron v Pierron, ___ Mich ___ (#138824, 5/11/2010)


When considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the established custodial environment of that child. In making this determination, it is the child's standpoint, rather than that of the parents, that is controlling.

If the proposed change would modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by clear and convincing evidence that the change is in the child's best interests. Under such circumstances, the trial court must consider all the best-interest factors because a case in which the proposed change would modify the custodial environment is essentially a change-of-custody case.

If the proposed change would not modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child's best interests. Under those circumstances, although the trial court must determine whether each of the best-interest factors applies, if a factor does not apply, the trial court need not address it any further other than stating that the factor is irrelevant.

Monday, August 16, 2010

therapist duty of care to clients in group therapy

Dawe v Bar-Levav & Assoc, __ Mich App __ (#269147, 8/12/2010)
On remand from the Supreme Court, the Court of Appeals held that a treating professional has a duty to take reasonable precautions to ensure that the patients assigned to her therapy group were healthy enough to participate in group therapy. It is then a question for jury whether the therapist’s decision to place a former patient into group therapy with other clients falls below the general standard of care applicable to medical professionals and whether that decision was the cause of plaintiff's injuries. In this case a former group therapy client came to the office, drew a handgun, shot and killed one of the psychiatrists, and fired into the group therapy room, killing one patient and wounding others. The jury returned a verdict for plaintiff and on appeal the court noted that "a psychiatrist-patient relationship is a 'special relationship' that imposes a duty to protect another from harm by a third party." It can thereby be foreseeable that a patient who was not healthy enough to participate in group therapy might be or become a danger to the other group members.

Friday, August 13, 2010

Prohibition from possessing or purchasing ammunition or a firearm

Federal and/or state law may prohibit a person from possessing or purchasing ammunition or a firearm (including a rifle, pistol, or revolver if (s)he is subject to a personal protection order or has been convicted of a misdemeanor crime of domestic violence.

Thursday, August 12, 2010

Judicial consciousness in a civilized system of jurisprudence.

“[T]he question of whether sick people are to be treated for their illness or punished for it, is a question which touches the very heart of judicial consciousness of a civilized system of jurisprudence. If, perchance, the parties or counsel fail to raise the matter our courts cannot close their eyes to so important a matter.” People v Griffes, 13 Mich App 299, 306 (1968).

Wednesday, August 11, 2010

Relief After Violent Encounter-Ionia/Montcalm, Inc groundbreaking

Relief After Violent Encounter-Ionia/Montcalm, Inc. is proudly stepping out in the community by disclosing their once private location.  

RAVE-I/M, Inc. offers free and confidential services to victims of domestic violence and sexual assault. We are part of the community, the victims are part of the community, and we will not be silent.

Join RAVE for a sign groundbreaking ceremony, BBQ, and fun!
When: August 13, 2010; 3:00 pm to 6:00 pm
Where: 850 East Lincoln Ave, Ionia, MI

For more information about the event please visit their website, www.raveim.org or call 616-527-3351. 

deposition of a high ranking government or corporate official

In Alberto v Toyota Motor Corp, _ Mich App _ (#296824, 8/5/2010) the court held that before a party may take the deposition of a high-ranking government or corporate official, the party must demonstrate that the official possesses superior or unique information relevant to the issues being litigated, and the information cannot be obtained by a less intrusive method.  http://www.michbar.org/opinions/appeals/2010/080510/46525.pdf

Access to the courts

The 8th Circuit Court is taking another step into the age of technology. In order to post information and to improve access to the court, Judge David Hoort announces that he will begin posting information relating to the circuit court at http://www.blogger.com/. According to Judge Hoort, although ethical rules prohibit judges from discussing pending or impending proceedings, this will be an opportunity for the court to explain for public information the procedures of the court and inform the public of possible administrative or substantive changes in the law. The thought being that in this day of ever-changing technology and desire for transparency, courts have not only an interest, but arguably a responsibility to make information relating to the court accessible to the public.


When reasonably possible, Judge Hoort’s intention is to provide information about recent appellate decisions, legislation affecting the courts and changes or new court rules relating to court procedures. Hopefully, with a corresponding benefit of accuracy in recognition of information otherwise being disbursed on the internet or via second hand sources. Obviously, this will not always be a regular event or in competition with the ‘rich and famous’ as the in court obligations related to the day to day judicial activities of the court take priority.

Judge Hoort presently is a co-chair for the State Bar of Michigan Criminal Jurisprudence and Practice Committee, and serves on the State Bar’s Judicial Cross Roads Task Force Access to Justice Committee and Michigan Public Defense Work Group, and is a liaison to the SBM Judicial Cross Roads Technology and Criminal Law Section Committees. He is also a member of the Ionia County Leadership Academy, Montcalm County Coordinated Response to Domestic Violence, and a VITA volunteer tax preparer for the Montcalm/Ionia Financial Awareness Alliance.