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A Better Partnership
April 30, 2014

Where ineffective counsel claim is based on the failure to produce evidence, trial court must determine admissibility of that evidence

In People v. Kranz, the Michigan Supreme Court considered the application for leave to appeal the Court of Appeals’ September 24, 2013 judgment. In lieu of granting leave to appeal, the Supreme Court vacated the portion of the opinion addressing ineffective assistance of counsel as it relates to the presentation of a defense, and remanded the case to the Court of Appeals. While retaining jurisdiction, the Court of Appeals is to remand the case to the Allegan Circuit Court for further findings related to the claim of ineffective assistance of counsel, including the admissibility of evidence not produced at trial.
The Supreme Court concluded that the trial court failed to complete its duties under the April 12, 2012 order of the Court of Appeals, which remanded for a hearing under People v. Ginther, 390 Mich. 436 (1973), because it did not determine the admissibility of the evidence that it considered in finding ineffective assistance by trial counsel. Where a claim of ineffective assistance of counsel is based on the failure of counsel to produce evidence at trial, there is no reasonable likelihood of a different outcome unless the evidence is admissible. The Supreme Court also noted that, independent of any question regarding the documents’ admissibility, the trial court may consider whether it would have permitted further cross-examination of witnesses if counsel had provided the documents produced at the hearing as a foundation for his questions, and, if so, whether that line of questioning would have created a reasonable probability of a different outcome under People v. Armstrong, 490 Mich. 281 (2011). The Supreme Court specified that the trial court must make findings of fact and legal determinations on the record, but may not grant or deny a motion for a new trial. Then the Court of Appeals must review the trial court’s findings and determinations under the standards set forth in Armstrong and reconsider whether the defendant is entitled to a new trial.
Unpersuaded that the remaining questions presented should be reviewed, the Supreme Court denied the appeal in all other respects.

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