Evidence of prior acts of criminal sexual conduct is not always admissible under MCL 768.27a

The Michigan Supreme Court held in People v. Uribe, No. 32112, that even though Michigan law permits the admissibility of evidence of the defendant’s past bad acts involving child sexual abuse, under certain circumstances, the admissibility of the evidence is not automatic.  There are several factors that should be considered in judging admissibility of this type of evidence, including differences between past acts and the current charged crime and the reliability of the evidence supporting the occurrence of the past acts.  Further any evidence of this type of prior bad act must still pass muster under MRE 403—it must be more probative than prejudicial. 
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Defendants beware: violation of bond condition may result in conviction and incarceration for criminal contempt

In People v. Mysliwiec, No. 326423, the Michigan Court of Appeals affirmed defendant’s conviction for criminal contempt as a result of a violation of a condition of his bond.  In so doing, the Court of Appeals held that a bond condition is a court order.  Further, the court clarified that a defendant may be convicted for criminal contempt for a bond violation even where the condition of bond was not necessary to protect a “named person”.  
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Trial counsel is not ineffective for failing to request self-defense jury instruction when defense is not viable

It is well established that an attorney who employs a legitimate trial strategy as a result of reasonable professional judgement is not ineffective.  Now, the Michigan Supreme Court has clarified that where testimony at trial establishes that defendant was the initial aggressor, it is a legitimate trial strategy to decide that self-defense is not a viable defense theory and therefore not request the self-defense jury instruction.  In People v. Kusk, No. 153315, trial counsel instead opted to argue that the defendant was innocent of the charges of felonious assault and felony-firearm. This strategy proved at least partially successful as the defendant was acquitted of felonious assault and felony firearm, and instead was only convicted of misdemeanor of domestic assault.  The Court of Appeals opinion was reversed and the case was remanded to the trial court for further proceedings. 
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MSC: Predatory conduct of a co-offender not considered during sentencing

In a unanimous opinion, the Michigan Supreme Court held in People v. Gloster that a trial court may not consider the conduct of a co-offender when assessing 15 points for “predatory conduct” under Offense Variable (OV) 10 (exploitation of a vulnerable victim), MCL 777.40.  In direct contrast to other OVs, MCL 777.40 does not contain language directing the court to assess a defendant points on the basis of conduct by that defendant’s co-offenders in multiple-offender situations.
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COA holds that governmental liability for failure to properly maintain a highway extends not only to physical injury but to other damages flowing from physical injury

In Streng v. Board of Mackinac County Road Commissioners, No.  323226, the Court of Appeals held that where a governmental agency is charged with tort liability for failure to keep a highway under repair under the Governmental Tort Liability Act (GTLA), the liability, procedure and remedy will be governed exclusively by MCL 224.21.  Furthermore, with regard to MCL 224.21, (1) substantial compliance with notice requirements is sufficient to bring a claim, (2) the term “the clerk” means the county clerk, and (3) a plaintiff is entitled to all damages flowing naturally from their physical injury. Read More

Swain will get a new trial in highly-publicized innocence case

Lorinda Swain will get a new trial after the Michigan Supreme Court held that the Court of Appeals erred in failing to give proper deference to the trial court’s findings that the defendant was entitled to a new trial.  In People v. Swain, No. 150994, the Michigan Supreme Court concluded that the defendant had properly filed her successive motion for relief from judgment based on her claim that there was “new evidence that was not discovered before the first such motion” as provided in MCR 6.502(G)(2).  In so doing, the Court held that People v Cress, 468 Mich 678 (2003) does not apply to the procedural threshold of MCR 6.502(G)(2).  The case was remanded to the Calhoun Circuit Court for a new trial.
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MMMA restricted again: Only “patients” and “primary caregivers” are entitled to §8 affirmative defense

In the consolidated case of People v. Bylsma, No. 317904, and People v. Overholt, No. 321556, the Michigan Court of Appeals clarified that only “patients” and “primary caregivers”, as those terms are defined under the Michigan Medical Marihuana Act (“MMMA”), can raise the §8 affirmative defense. The Court of Appeals held to be eligible for the §8 affirmative defense, an individual must either be a “patient” himself—which requires being diagnosed with a serious or debilitating medical condition—or be the sole “primary caregiver”—which requires the individual to be at least 21 years old, have agreed to assist with a patient’s medical use of marihuana, and have never been convicted of a felony involving illegal drugs—of no more than five qualifying patients.  Further, this affirmative defense only applies to a charge arising out of activities directly related to a defendant’s status as a patient or as the sole primary caregiver for a specific patient’s medical use of marihuana.
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COA upholds the right to file a civil action for a denial of health insurance benefits, even after an unfavorable regulatory decision

Under the Patient’s Right to Independent Review Act (PRIRA), a person who is denied insurance coverage can appeal externally to the Office of Financial and Insurance Regulations (OFIR) and file a claim in county circuit court, the Court of Appeals held in Beaumont Hospital v Wass, No. 323393.  A circuit court claim is not barred by an unfavorable OFIR decision regarding the same appeal.
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MSC holds that cities can regulate wages in municipal contractor agreements that affect or involve city property

In Associated Builders and Contractors v City of Lansing, No. 149622, the Michigan Supreme Court upheld a Lansing ordinance requiring contractors and subcontractors that perform construction on behalf of the city to pay their laborers at least the prevailing wage. Read More

Two Michigan jurists on SCOTUS short list

As reported by numerous media outlets, presumptive Republican Presidential nominee Donald Trump has released a list of 11 judges and justices that make up the "short list" he would consider nominating for Justice Scalia's vacant U.S. Supreme Court seat.  Two of the jurists are from Michigan.
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