12.8Conducting the Trial1
A.Duty of Court to Control Proceedings
“The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court.” MCR 2.513(B).2
The prosecution retains the burden of proving beyond a reasonable doubt each element of the crime charged, even if the defendant offers to stipulate to any elements of the crime charged. People v Mills, 450 Mich 61, 69-70 (1995). For example, evidence may be properly admitted on an undisputed point—one to which the defendant has stipulated—if the evidence is necessary to establish intent. Id. at 66, 70 n 5, 71, 79-80 (holding that even though the defendants offered to stipulate to the contents of photographs depicting the severity of the burns inflicted on the victim, the trial court properly admitted the photographs because they were necessary to show the defendants’ intent to kill and to corroborate the testimony of the prosecution’s expert witness and the victim).
“Unless the parties and the court agree otherwise, . . . the prosecutor, before presenting evidence, must make a full and fair statement of the case and the facts . . . the prosecutor intends to prove. Immediately thereafter, or immediately before presenting evidence, the defendant may make a similar statement.” MCR 2.513(C) (applicable only to jury trials). See also MCR 2.507(A), which is applicable to both jury and nonjury trials (unless waived with the consent of the court and opposing counsel, a party introducing evidence “must make a full and fair statement of that party’s case and the facts the party intends to prove[]”). The court may impose reasonable time limits on opening statements and closing arguments. MCR 2.507(F); MCR 2.513(C).
“While [the Michigan Supreme Court] has always conceded to a trial court a liberal discretion in the control and direction of statements and arguments of counsel to the jury, it has as strongly upheld the right of counsel to state their theory of the law as applicable to the facts which they expect to prove.” People v Lee, 258 Mich 618, 621 (1932). In the absence of bad faith or prejudice to the defendant, it is not error when the prosecutor fails to prove the assertions made during opening statements. People v Wolverton, 227 Mich App 72, 75-78 (1997).3
It is improper for a prosecutor, during opening statement, to appeal to the jury to sympathize with a victim. People v Watson, 245 Mich App 572, 591 (2001). However, reversal is not required where the prosecutor’s conduct is isolated and where the appeal to jury sympathy is not blatant or inflammatory. Id. at 591 (additionally noting that “the trial court instructed the jury to not be influenced by sympathy or prejudice[]”). The ultimate determination of whether the prosecutor engaged in improper conduct depends on whether the prosecutor’s conduct, taken in context, deprived the defendant of a fair and impartial trial. People v McLaughlin, 258 Mich App 635, 644-645 (2003).
“Each party may, in the court’s discretion, present interim commentary at appropriate junctures of the trial.” MCR 2.513(D) (applicable only in jury trials).
1.Trial Court’s Duty to Exercise Control Over Witnesses
“The court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.” MRE 611(a). “The court must exercise reasonable control over the appearance of parties and witnesses so as to: (1) ensure that the fact-finder can see and assess their demeanor; and (2) ensure their accurate identification.” MRE 611(b).
2.Taking Testimony by Use of Videoconferencing Technology4
Notwithstanding any other court rule, videoconferencing technology is not permitted to “be used in bench or jury trials, or any proceeding wherein the testimony of witnesses or presentation of evidence may occur, except in the discretion of the court after all parties have had notice and an opportunity to be heard on the use of videoconferencing technology.” MCR 6.006(B)(4). See also MCR 6.006(C)(3) regarding trials in district court.
MCL 600.2164a(1) specifically permits the use of video communication equipment for the purpose of presenting expert testimony at trial. If the court determines “that expert testimony will assist the trier of fact and that a witness is qualified to give the expert testimony,” and if all the parties consent, the court may allow a qualified expert witness “to be sworn and testify at trial by video communication equipment that permits all the individuals appearing or participating to hear and speak to each other in the court, chambers, or other suitable place.” Id.5
Additionally, MCL 600.2163a permits the use of videorecorded statements or closed-circuit television in presenting the testimony of child victim-witnesses, victim-witnesses with developmental disabilities, and vulnerable adult victim-witnesses in prosecutions and proceedings involving certain offenses.6 See MCL 600.2163a(1)(g); MCL 600.2163a(8); MCL 600.2163a(20).7 See also M Crim JI 5.16, which addresses witness testimony introduced via video rather than in-person:
“The next witness, [identify witness], will testify by videoconferencing technology. You are to judge the witness’s testimony by the same standards as any other witness, and you should give the witness’s testimony the same consideration you would have given it had the witness testified in person. If you cannot hear something that is said or if you have any difficulty observing the witness on the videoconferencing screen, please raise your hand immediately.”
3.Special Protections for Certain Witnesses8
MCL 600.2163a affords child victim-witnesses, victim-witnesses with developmental disabilities, and vulnerable adult victim-witnesses special protections in prosecutions and proceedings involving certain offenses. MCL 600.2163a(1)(g).9 The special protections available under MCL 600.2163a include the use of dolls or mannequins, the presence of a support person, the presence of a courtroom support dog10 (and the dog’s handler), the exclusion of all unnecessary persons from the courtroom, the placement of the defendant as far from the witness stand as is reasonable, the use of a podium, and the use of videorecorded statements or closed-circuit television in presenting the victim-witness’s testimony.
“[A] notice of intent to use a support person or courtroom support dog is only required if the support person or courtroom support dog is to be utilized during trial and is not required for the use of a support person or courtroom support dog during any other courtroom proceeding.” MCL 600.2163a(5). “A notice of intent . . . must be filed with the court and must be served upon all parties to the proceeding,” and “[t]he notice must name the support person or courtroom support dog, identify the relationship the support person has with the witness, if applicable, and give notice to all parties that the witness may request that the named support person or courtroom support dog sit with the witness when the witness is called upon to testify during trial.” Id.
“A court must rule on a motion objecting to the use of a named support person or courtroom support dog before the date when the witness desires to use the support person or courtroom support dog.” MCL 600.2163a(5).
“[A] fully abled adult witness may not be accompanied by a support animal or support person while testifying.” People v Shorter (Dakota), 324 Mich App 529, 542 (2018).11
Unless otherwise ordered by the court, the prosecution must introduce its testimony first. MCR 2.507(B). As long as the prosecutor acts in good faith, he or she should be allowed wide latitude in presenting the case, so that the jurors can grasp the theory and the defendant’s connection with the alleged offense. People v Dye, 356 Mich 271, 277 (1959).
”Leading questions should not be used on direct examination except as necessary to develop a witness’s testimony.” MRE 611(d)(1). See, e.g., Watson, 245 Mich App at 587 (holding that reversal was not required where the prosecutor asked leading questions of the thirteen-year-old victim only to the extent necessary to develop her testimony).12
Only one attorney for a party is permitted to examine a witness, unless otherwise ordered by the court. MCR 2.507(C).
“The court may examine a witness regardless of who calls the witness.” MRE 614(b). See Section 12.8(F) for more information on judicial questioning.
“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. But the judge may limit cross-examination regarding matters not testified to on direct examination.” MRE 611(c). Additionally, under MRE 611(a), the trial court may limit cross-examination to protect a witness from harassment or undue embarrassment. People v Daniels, 311 Mich App 257, 268 (2015).
Leading questions are permissible during cross-examination. MRE 611(d)(1)(A).
“[H]ostile cross-examination of a defendant in a criminal prosecution is a function of the prosecuting attorney[,] and . . . a judge before whom a jury case is being tried should avoid any invasion of the prosecutor’s role.” People v Cole, 349 Mich 175, 196 (1957).
“Cross-examination is a powerful legal engine for discovering the truth. But when it repeatedly transgresses well-established boundaries, an improper cross-examination denies a defendant a fair trial.” People v Evans, 335 Mich App 76, 78-79 (2020). In Evans, rather than calling an expert witness, “the prosecutor sought to undermine the opinions of the defense experts through cross-examination.” Id. at 83. However, the prosecutor’s cross-examination of a defense expert witness “crossed the line on multiple occasions,” where the prosecutor “likened [the expert] to a cartoon character, accused her of writing her report in crayon, baselessly accused her of withholding evidence, misrepresented her testimony, and badgered her relentlessly.” Id. at 79 (concluding this behavior denied defendant a fair trial).
Under MRE 611(a), “‘a trial court, in certain circumstances, may prohibit a defendant who is exercising his right to self-representation from personally questioning the victim.’” Daniels, 311 Mich App at 268 (citation omitted). “MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses—particularly children who have accused the defendant of committing sexual assault[; t]he court must balance the criminal defendant’s right to self-representation with ‘the State’s important interest in protecting child sexual abuse victims from further trauma.’” Daniels, 311 Mich App at 269 (citation omitted). “[T]he trial court wisely and properly prevented defendant from personally cross-examining [his children, regarding their testimony that he sexually abused them,] to stop the children from suffering ‘harassment and undue embarrassment,’” following “a motion hearing at which [the court] heard considerable evidence that defendant’s personal cross-examination would cause [the children] significant trauma and emotional stress.” Id. at 270-271, quoting MRE 611(a). The defendant’s right to self-representation was not violated under these circumstances where the defendant was instructed “to formulate questions for his [children], which his advisory attorney then used to cross-examine them.” Daniels, 311 Mich App at 270-271.
On redirect examination, a witness may explain answers he or she made on cross-examination. People v Babcock, 301 Mich 518, 529 (1942).
On recross examination, the prosecution may inquire into new matters not covered during cross-examination where the new matters are in response to matters introduced during redirect examination. People v Goddard, 135 Mich App 128, 138 (1984), rev’d on other grounds 429 Mich 505 (1988).13
F.Questions or Comments by Judge - Judicial Impartiality
A trial court is vested with broad discretion over the administration of trial proceedings. People v Taylor, 252 Mich App 519, 522 (2002). See also MCL 768.29; MRE 611(a). “The court may examine a witness regardless of who calls the witness.” MRE 614(b).
However, “[a] trial judge’s conduct deprives a party of a fair trial if the conduct pierces the veil of judicial impartiality,” and “[a] judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” People v Stevens, 498 Mich 162, 170-171 (2015) (citations omitted).14 “Invading the prosecutor’s role is a clear violation of this tenet.” People v Boshell, 337 Mich App 322, 347-348 (2021) (multiple times the trial judge in Boshell “asked numerous questions of the witness,” and “[a]fter the parties followed up with a few questions of their own, the trial judge revisited the topic once again, asking several more questions”). Examples of objectionable conduct by the trial court include volunteering information not in evidence, “campaigning from the bench,” and interrupting or making derogatory remarks toward counsel. People v Conyers, 194 Mich App 395, 405-406 (1992). “A defendant must overcome a heavy presumption of judicial impartiality when claiming judicial bias.” People v Biddles, 316 Mich App 148, 152 (2016). “A single instance of misconduct generally does not create an appearance that the trial judge is biased, unless the instance is ‘so egregious that it pierces the veil of impartiality.’” Id., quoting Stevens, 498 Mich at 171.
The discussion in the following sub-subsections addresses judicial impartiality in the context of a post-trial claim of an unfair and partial trial. For discussion of judicial bias/impartiality in the context of a motion for judicial disqualification, see the Michigan Judicial Institute’s Judicial Disqualification in Michigan publication.
1.Factors for Consideration
“In evaluating the totality of the circumstances, [a] reviewing court should inquire into a variety of factors including, but not limited to, the nature of the trial judge’s conduct, the tone and demeanor of the judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge’s conduct was directed at one side more than the other, and the presence of any curative instructions, either at the time of an inappropriate occurrence or at the end of trial.” People v Stevens, 498 Mich 162, 172, 190-191 (2015) (concluding that “it [was] reasonably likely that the judge’s conduct with respect to defendant’s expert witness improperly influenced the jury by creating the appearance of advocacy or partiality against defendant,” and that the judge’s curative instruction to the jury “was not enough to overcome the bias the judge exhibited against the defense throughout the trial”).
2.Structural Error
“When the issue is preserved and a reviewing court determines that a judge has pierced the veil of judicial impartiality, a structural error has been established that requires reversing the judgment and remanding the case for a new trial.” People v Stevens, 498 Mich 162, 178 (2015) (citations omitted). “[J]udicial partiality can never be held to be harmless and, therefore, is never subject to harmless-error review.” Id. at 179-180 (citations omitted).
3.Analysis of Factors
Nature of Judicial Conduct. “‘[I]t is appropriate for a judge to question witnesses to produce fuller and more exact testimony or elicit additional relevant information.’” People v Swilley, 504 Mich 350, 372 (2019), quoting People v Stevens, 498 Mich 162, 173 (2015). “However, ‘undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge’s part toward witnesses . . . may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto[.]’” Swilley, 504 Mich at 372, quoting Stevens, 498 Mich at 174 (alterations in original).
“[A] judge should not exhibit disbelief of a witness intentionally or unintentionally or permit his own views on disputed issues of fact to become apparent to the jury, [and a] judge should avoid questions that are intimidating, argumentative, or skeptical.” Swilley, 504 Mich at 372-373 (quotation marks and citation omitted). “[I]t is not the role of the court to impeach a witness or undermine a witness’s general credibility.” Id. at 373. “Questions from a judge that are designed to emphasize or expose incredible, unsubstantiated, or contradictory aspects of a witness’s testimony are impermissible.” Id. at 374 (the trial judge’s conduct weighed in favor of finding that he pierced the veil of judicial impartiality where his “questioning of [the witness] did not serve to clarify any of the issues or produce fuller testimony but, instead, served to impeach and to undermine the witness’s general credibility”).
Tone and Demeanor. “Because of the jury’s inclination to follow the slightest indication of bias on the part of the judge, ‘[t]o ensure an appearance of impartiality, a judge should not only be mindful of the substance of his or her words, but also the manner in which they are said.’” Swilley, 504 Mich at 381, quoting Stevens, 498 Mich at 175. Controversial manner, tone, pert remarks, and quips should be avoided, and “[a]dversarial cross-examination of a witness by a judge is impermissible.” Swilley, 504 Mich at 381. While “[j]udicial questioning might be more necessary when confronted with a difficult witness who refuses to answer questions or provides unclear answers, . . . judicial intervention is less justified when a witness provides clear, responsive answers, or has done nothing to deserve heated judicial inquiry.” Id. at 381-382 (the trial judge’s repeated use of questions that suggested the witness’s actions were illogical or unnatural cast doubt on the witness’s truthfulness and indicated the judge was skeptical of the witness; the judge’s use of questions to make substantive points and arguments supported a conclusion of judicial partiality).
Context and Scope of Judicial Intervention. “[I]n a long or complicated trial, it may be more appropriate for a judge to intervene a greater number of times than in a shorter or more straightforward trial.” Swilley, 504 Mich at 386 (quotation marks and citation omitted). “However, the focus is not solely on whether the trial itself was long or complicated. . . . [A]n appellate court must consider the scope of the judicial conduct in the context of the length and complexity of the trial, as well as the complexity of the issues therein.” Id. (quotation marks and citation omitted). “[A] judge’s inquiries may be more appropriate when a witness testifies about a topic that is convoluted, technical, scientific, or otherwise difficult for a jury to understand.” Id. at 387 (quotation marks and citation omitted; alteration in original). “[W]hen a witness testifies on a clear or straightforward issue, judicial questioning is less warranted, even if the testimony occurs within the context of a lengthy trial, or one that involves other complex but unrelated matters.” Id. (concluding this factor “support[ed] the conclusion that the [trial] judge pierced the veil of judicial impartiality” when he “intervened extensively and inappropriately” during testimony that “was not technical, convoluted or scientific”).
Extent Judicial Conduct was Directed At One Side. “Judicial partiality may be exhibited when an imbalance occurs with respect to either the frequency of the intervention or the manner of the conduct.” Swilley, 504 Mich at 388 (quotation marks and citation omitted). “This inquiry is therefore twofold: in order to determine whether judicial questioning was imbalanced, a reviewing court must evaluate both the frequency of the questions and the manner in which they were asked.” Id. “[T]o assess whether judicial questioning was imbalanced, [an appellate court does] not simply look at the number of questions but also the nature of those questions.” Id. (“stark difference[s] between the trial judge’s treatment of witnesses on opposing sides of [the] case . . . support[ed] a conclusion of judicial partiality”).
Presence of a Curative Instruction. “[A] judge’s administration of curative instructions does not always guarantee that a defendant has received an impartial trial; in some instances judicial conduct may so overstep its bounds that no instruction can erase the appearance of partiality.” Swilley, 504 Mich at 390 (quotation marks and citation omitted) (although the trial judge instructed the jury throughout the trial that he had no interest in the case’s outcome, “his lengthy badgering of [witnesses] suggested the opposite,” leaving curative instructions “particularly empty”).
MCR 2.513(L) (applicable only to jury trials) provides, in relevant part:
“After the close of all the evidence, the parties may make closing arguments. . . . [T]he prosecutor is entitled to make the first closing argument. If the defendant makes an argument, . . . the prosecutor may offer a rebuttal limited to the issues raised in the defendant’s argument. The court may impose reasonable time limits on the closing arguments.”
See also MCR 2.507(E)-(F) (applicable to jury and nonjury trials).
Committee Tip:
Many courts give jury instructions before closing argument, because it assists the jury in better understanding the closing arguments of the parties. See MCR 2.513(N)(1) (the trial court, in its discretion and on notice to the parties, may orally instruct the jury before closing arguments).15
In a case in which the defendant asserted the affirmative defense of insanity, the trial court’s decision to deny the defendant’s request to make a surrebuttal argument did not constitute an abuse of discretion because former
1.Permissible Content of Closing Argument
During closing argument, a prosecutor may argue the evidence admitted at trial and reasonable inferences arising from that evidence. People v Kelly, 231 Mich App 627, 641 (1998). The prosecutor may not appeal to the sympathy of the jurors or to their sense of civic duty. People v Abraham, 256 Mich App 265, 273 (2003).17
“[P]rosecutorial comment that infringes on a defendant’s right not to testify may constitute error.” People v Fields, 450 Mich 94, 115 (1995). Additionally, “[a] prosecutor may not imply in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464 (2010). For the same reason, the prosecutor may not comment on the defendant’s failure to present evidence. Id. at 464. “However, a prosecutor’s argument that inculpatory evidence is undisputed does not constitute improper comment[; a] prosecutor may also argue that the evidence was uncontradicted even if the defendant is the only person who could have contradicted the evidence.” Id. Furthermore, “where a defendant testifies at trial or advances, either explicitly or implicitly, an alternate theory of the case that, if true, would exonerate the defendant, comment on the validity of the alternate theory cannot be said to shift the burden of proving innocence to the defendant[; a]lthough a defendant has no burden to produce any evidence, once the defendant advances evidence or a theory, argument on the inferences created does not shift the burden of proof.” Fields, 450 Mich at 115.
The prosecutor may not suggest that defense counsel is intentionally attempting to mislead the jury, because that type of argument effectively states that defense counsel does not believe his or her own client, which undermines the defendant’s presumption of innocence. People v Unger, 278 Mich App 210, 236 (2008). See also People v Schrauben, 314 Mich App 181, 192-193 (2016), overruled in part on other grounds by People v Posey, ___ Mich ___ (2023).18
“If the defendant makes an argument, . . . the prosecutor may offer a rebuttal limited to the issues raised in the defendant’s argument.” MCR 2.513(L); see also MCR 2.507(E).
2.Defendant’s Right to Present a Defense
Where defense counsel, in closing argument, does “not . . . attempt to add new evidence to the trial,” but rather makes “a permissible attempt to argue a reasonable inference from the evidence adduced at trial,” a “trial court abuse[s] its discretion when it refuse[s] to allow defense counsel” to include this argument. People v Stokes (Stokes I), 312 Mich App 181, 206-207 (2015), vacated in part on other grounds by People v Stokes (Stokes II), 501 Mich 918 (2017)19 (concluding that “the trial court abused its discretion when it refused to allow defense counsel to specifically argue that [a particular other individual had] . . . committed the crimes,” because the argument was reasonably inferable from the evidence). However, “this error [does] not deprive [a defendant] of [the constitutional] right to present a defense” where “[t]he relevant evidence [is] presented to the jury” and counsel’s other arguments “clearly impl[y]” the reasonable inference, such that the defendant is “not deprived of a meaningful opportunity to present a complete defense.” Stokes I, 312 Mich App at 207-208 (citations omitted).
3.Remarks Involving Witness Testimony
The prosecutor is free to argue the evidence and all reasonable inferences from it as it relates to the prosecutor’s theory of the case, People v Schumacher, 276 Mich App 165, 178-179 (2007), and may argue from the facts that a witness is credible or that the defendant or another witness is not worthy of belief, People v Howard, 226 Mich App 528, 548 (1997). However, “[a] prosecutor may not vouch for the credibility of witnesses by claiming some special knowledge with respect to their truthfulness.” People v McGhee, 268 Mich App 600, 630 (2005).20 See also People v Skippergosh, ___ Mich App ___, ___ (2024). In Skippergosh, the Court of Appeals rejected the defendant’s argument “that the prosecution impermissibly vouched during its closing argument by arguing that [the victim’s] brother, sister-in-law, niece, and father had no motivations for falsely testifying against [the defendant].” The Court stated: “[I]n light of the testimony presented at trial, it was reasonable for the prosecution to infer and argue that [the victim’s] family members did not have any unusual or impermissible motivations for testifying, and that they were compelled to do so simply out of commonplace concern for the well-being of a family member.”
“The prosecutor’s characterization of defendant’s account of the criminal episode as a lie or a ‘story’ did not deprive defendant of a fair and impartial trial, nor did it constitute plain error that affected defendant’s substantial rights; . . . the prosecutor’s classification of defendant’s account of the incident as a lie properly advanced the prosecution’s position that defendant’s testimony was not credible in light of the contradictory evidence adduced at trial[, and] . . . [t]he prosecutor did not improperly imply that he had special knowledge that defendant fabricated his account of the incident.” People v Steanhouse, 313 Mich App 1, 33-34 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017)21 (citation omitted).
Where the complaining witness testified, without prompting, that she was a religious person, and the prosecutor then couched his closing argument in terms of a credibility contest between a person with a “‘deep rooted belief in God’” and a person who was a “‘liar,’” the defendant’s conviction required reversal; the “case hinged on the crucial issue of credibility, which the prosecutor [improperly] urged the jury to resolve on the basis of the complainant’s religious beliefs.” People v Leshaj, 249 Mich App 417, 422 (2002).
A prosecutor may “argue from the evidence presented that an expert witness had a financial motive to testify at trial.” Unger, 278 Mich App at 236, 239 (holding that the prosecutor was free to argue that defense counsel “had ‘bought’” a defense expert’s testimony by paying the expert a substantial sum of money). But where a case turns primarily on conflicting expert testimony, a prosecutor should take special steps to avoid misconduct designed to impugn the integrity of defense expert witnesses. Id. at 240. In Unger, 278 Mich App at 240, the Court found that the prosecutor unnecessarily and impermissibly impugned the integrity of a defense expert witness by arguing that the expert was hired “‘to come in with [his] credentials and fool this jury,’” that the expert was hired to provide “‘[r]easonable doubt at reasonable prices,’” and that the expert “‘did what he was paid to do.’” (Alterations in original.)
“[A]ttacking the credibility of a theory advanced by a defendant does not [improperly] shift the burden of proof.” McGhee, 268 Mich App at 635.
4.Remarks Involving Defendant’s Failure to Testify
The Fifth Amendment prohibits the prosecutor from commenting on a defendant’s failure to take the stand. Griffin v California, 380 US 609, 615 (1965). The prosecutor also may not, during closing argument, direct questions to the defendant that would require a defendant who did not testify to explain the evidence against him or her. People v Green, 131 Mich App 232, 234-239 (1983). Such a practice would shift the burden of proof to the defendant and violate the Fifth Amendment protection against self-incrimination. Id. at 236-237. However, when a defendant does take the stand, the prosecutor may comment on the validity of the argument without shifting the burden of proof to the defendant. Fields, 450 Mich at 109-113, 116. Additionally, “a prosecutor’s argument that inculpatory evidence is undisputed does not constitute improper comment[; a] prosecutor may also argue that the evidence was uncontradicted even if the defendant is the only person who could have contradicted the evidence.” Fyda, 288 Mich App at 464.22
Questioning a defendant about his or her failure to confront his accomplice does not violate the defendant’s right to silence. People v Hackett, 460 Mich 202, 204-205 (1999).
“‘[T]he Fifth Amendment is not violated when a defendant who testifies in his [or her] own defense is impeached with his [or her] prior silence’ at his [or her] first trial. Jenkins[ v Anderson, 447 US 231, 235 (1980)], citing Raffel v United States, [271 US 494 (1926)].” People v Clary, 494 Mich 260, 263-264, 266, 271-272 (2013) (noting that “even though this [type of] silence is . . . post-Miranda silence[,] . . . Raffel has not been overruled b . . . any . . . United States Supreme Court decision[,]” and holding that where the defendant did not testify at his first trial, which ended in a mistrial, he was not “improperly impeached with his silence when the prosecutor [at the retrial] made repeated references to his failure to testify at his first trial[]”).23
“[I]f the prosecutor’s comments do not burden a defendant’s right not to testify, commenting on a defendant’s failure to call a witness does not shift the burden of proof.” Fields, 450 Mich at 112. See also People v Gant, 48 Mich App 5, 9 (1973) (noting that although the prosecutor may not comment on a defense witness’s failure to testify when the witness has invoked the right to remain silent, the prosecutor may “comment upon (1) [the] defendant’s failure to call an accomplice or indicted co-defendant and (2) the failure of such witnesses to testify[]”).
5.Remarks Referring to the Defendant’s Pre-Arrest Silence or Conduct
“[T]he prosecutor may not . . . refer to [a] defendant’s post-arrest, post-Miranda[24] silence with the police[.]” Clary, 494 Mich at 271, citing Doyle v Ohio, 426 US 610, 618-619 (1976). However, “[a] defendant’s constitutional right to remain silent is not violated by the prosecutor’s comment on his silence before custodial interrogation and before Miranda warnings have been given[; a] prosecutor may not comment on a defendant’s silence in the face of accusation, but may comment on silence that occurred before any police contact.” McGhee, 268 Mich App at 634 (citation omitted; emphasis added). Furthermore, although “due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle[, 426 US at 617-618], . . . that rule does not apply where a suspect has not received the warnings’ implicit promise that any silence will not be used against him, Jenkins[, 447 US at 240].” Salinas v Texas, 570 US 178, 188 n 3 (2013) (plurality opinion).
A criminal suspect generally must “expressly invoke the privilege against self-incrimination in response to [noncustodial police questioning] . . . in order to benefit from it,” because “[a] suspect who stands mute has not done enough to put police on notice that he [or she] is relying on his [or her] Fifth Amendment privilege.”25 Salinas, 570 US at 181. Accordingly, where “[the] petitioner voluntarily answered the [noncustodial] questions of a police officer who was investigating a murder[, b]ut . . . balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match [the] petitioner’s shotgun[,]” the prosecution’s argument at trial “that [the petitioner’s] reaction to the officer’s question suggested that he was guilty[]” did not violate the Fifth Amendment privilege against self-incrimination, because the petitioner had failed to expressly invoke the privilege. Id. at 181.
“‘[A] prosecutor may comment on a defendant’s failure to report a crime when reporting the crime would have been natural if the defendant’s version of the events were true.’” McGhee, 268 Mich App at 634-635 (citations omitted). See also People v Gibbs, 299 Mich App 473, 484 (2013) (the prosecutor’s comments suggesting that if the defendant’s “testimony were true—that his participation in [a] robbery was coerced—he would have called 911 or gone to the police immediately[]” were not improper; the comments “referred to [the defendant’s] prearrest silence and, therefore, did not violate his right to remain silent[,]” and “if [the defendant’s] version of the events were true[] . . . it would have been natural for him to contact the police[]”).
“[A] prosecutor may comment on the inferences that may be drawn from a defendant’s flight.” McGhee, 268 Mich App at 635.
H.Claims of Prosecutorial Error26 and Attorney Misconduct During Trial
Prosecutors are generally “‘accorded great latitude regarding their arguments and conduct.’” People v Cooper, 309 Mich App 74, 91 (2015), quoting People v Bahoda, 448 Mich 261, 282 (1995). The ultimate determination of whether the prosecutor engaged in improper conduct depends on whether the prosecutor’s conduct, taken in context, deprived the defendant of a fair and impartial trial. People v McLaughlin, 258 Mich App 635, 644-645 (2003).
Appeals to sympathy or duty. The prosecutor may not appeal to the sympathy of the jurors or to their sense of civic duty. People v Abraham, 256 Mich App 265, 273 (2003); see also People v Watson, 245 Mich App 572, 591 (2001). However, reversal is not required where the prosecutor’s conduct is isolated and where the appeal to jury sympathy is not blatant or inflammatory. Id. (additionally noting that “the trial court instructed the jury to not be influenced by sympathy or prejudice”).
Closing arguments. “[P]rosecutors are not permitted to make statements that are unsupported by the evidence.” People v Urbanski, ___ Mich App ___, ___ (2023). Accordingly, the prosecutor engaged in misconduct by making comments during closing arguments that “were clearly an invitation for the jury to find defendant guilty based on an inference” where “there was no evidence supporting such an argument[.]” Id. at ___.
Comments infringing on defendant’s presumption of innocence. The prosecutor may not suggest that defense counsel is intentionally attempting to mislead the jury, because that type of argument effectively states that defense counsel does not believe his or her own client, which undermines the defendant’s presumption of innocence. People v Unger, 278 Mich App 210, 236 (2008). In Unger, the prosecution exceeded the bounds of proper argument in its initial closing argument, not in response to defense counsel’s comments, “when it suggested (1) that defense counsel had attempted to ‘confuse the issue[s]’ and ‘fool the jury’ by way of ‘tortured questioning,’ ‘deliberately loaded questions,’ and ‘a deliberate attempt to mislead,’ (2) that defense counsel had attempted to ‘confuse’ and ‘mislead’ the jury by using ‘red herrings’ and ‘smoke and mirrors,’ and (3) that defense counsel had attempted ‘to deter [the jury] from seeing what the real issues’” were. Id. at 238. (Alterations in original.) However, because the trial court instructed the jury that the attorneys’ arguments were not evidence, and “because a timely objection and curative instruction could have alleviated any prejudicial effect the improper prosecutorial comments may have had, [there was] no error requiring reversal.” Id. See also People v Schrauben, 314 Mich App 181, 192-193 (2016), overruled in part on other grounds by People v Posey, ___ Mich ___ (2023)27 (holding that “the prosecutor’s argument that defense counsel is a ‘mud slinger’ who ‘pulls things out of people and muddies up the water’ [improperly] suggest[ed] that defense counsel was distracting the jury from the truth and deterring the jury from seeing the real issues[,]” but nevertheless concluding that reversal was not warranted because “the trial court instructed the jury that the attorneys’ statements and arguments were not evidence,” and “any prejudicial effect created by the improper statements could have been alleviated by a timely objection and curative instruction”).
“[I]t is not improper for a prosecutor to comment on the weakness of a defense theory,” and “a prosecutor’s remarks, which might be improper in his closing statement, may be proper when offered to rebut an argument proffered by the defense in closing.” People v Clark, 330 Mich App 392, 435 (2019) (the prosecutor’s remarks during rebuttal “were proper commentary on the weakness of the defense theory of the case” where the prosecutor “did not denigrate defense counsel or otherwise suggest that defense counsel did not believe her own client” and his remarks “did not amount to commenting that defense counsel was intentionally trying to mislead the jury”).
Comments infringing on defendant’s right to silence. “[P]rosecutorial comment that infringes on a defendant’s right not to testify may constitute error.” People v Fields, 450 Mich 94, 115 (1995).
During the defendant’s trial for carjacking, “the prosecutor’s remarks during rebuttal closing about what defendant ‘might have said’ but ‘didn’t say,’ namely, answering the officer’s question, ‘Where did you get the car from?’ [did not] amount[] to an improper comment on defendant’s failure to testify.” People v Savage, 327 Mich App 604, 615 (2019). “[T]he prosecutor’s comments were not an improper reference to defendant’s decision not to testify at trial, nor were they an improper reference to defendant decision not to answer a police officer’s question,” because “the prosecutor’s argument was directly responsive to defense counsel’s argument [that another person could have stolen the car] . . . and it was a commentary on the pattern of defendant’s responses to the police officer, which the jury could observe for itself [via video recording], rather than on any invocation of defendant’s Fifth Amendment right to remain silent or decision not to testify at trial.” Id. at 616.
Comments shifting burden of proof. The prosecutor may not imply “that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof.” People v Fyda, 288 Mich App 446, 463-464 (2010). For the same reason, the prosecutor may not comment on the defendant’s failure to present evidence. Id. at 464. “However, a prosecutor’s argument that inculpatory evidence is undisputed does not constitute improper comment[; a] prosecutor may also argue that the evidence was uncontradicted even if the defendant is the only person who could have contradicted the evidence.” Id. Furthermore, “where a defendant testifies at trial or advances, either explicitly or implicitly, an alternate theory of the case that, if true, would exonerate the defendant, comment on the validity of the alternate theory cannot be said to shift the burden of proving innocence to the defendant[; a]lthough a defendant has no burden to produce any evidence, once the defendant advances evidence or a theory, argument on the inferences created does not shift the burden of proof.” Fields, 450 Mich at 115.
“[T]he prosecutor erred by asking the jury to consider the defendant’s ‘moral duty’ to retreat from his own dwelling in relation to his self-defense claim” because “[a]sking a jury to consider a defendant’s ‘moral duty’ to retreat is inconsistent with the Self-Defense Act,[28] . . . legally irrelevant to such a claim, and creates a danger of confusion of the issues.” People v Adamowicz, 503 Mich 880, 880 (2018). “The prosecutor also erred by eliciting testimony and presenting argument regarding the defendant’s retrospective assessment of his ability to retreat, where it was undisputed that the defendant had no duty to retreat.” Id. “[T]he prosecutor’s questioning and argument in this regard were legally irrelevant and created a danger of confusion of the issues. See MRE 401; MRE 403.” Adamowicz, 503 Mich App at 880.29
The prosecutor did not improperly shift the burden of proof “by comparing the aiding-and-abetting theory of criminal culpability to teamwork[]” and by “[telling] the jury that it could convict [the defendant] based on a team theory of guilt[.]” People v Blevins, 314 Mich App 339, 354-355 (2016). “The prosecutor’s references to the way in which all members of a sports team share in the team’s victory was obviously a metaphor, . . . [and] the trial court clearly instructed the jury that the arguments of counsel were not evidence.” Id. at 355.
Cumulative effect of prejudicial comments. “[T]he cumulative effect of an attorney’s misconduct at trial may require retrial when the misconduct sought ‘to prejudice the jury and divert the jurors’ attention from the merits of the case.’” Yost v Falker, 301 Mich App 362, 363-367 (2013) (quoting Kern v St Luke’s Hosp Ass’n of Saginaw, 404 Mich 339, 354 (1978), and holding that although defense counsel “intended to prejudice the jury” through his repeated suggestions during opening statement, cross-examination, and closing argument “that the jury should find for [the] defendant to deter the filing of lawsuits,” retrial was not required “because a note sent by the jury to the court during deliberations unequivocally demonstrated that [defense counsel’s] efforts had not succeeded and that the jury was not prejudiced against the plaintiff’s claim”).
Improper questioning of an inflammatory nature. The prosecutor engaged in misconduct where, “throughout his cross-examination of [an expert witness], [he] accused [the expert] of being a hypocrite, engaging in deceit, purposely appearing dense, lacking intelligence, and ignoring or hiding evidence to make her opinion [that the defendant was legally insane] more palatable to the jury.” People v Evans, 335 Mich App 76, 104-105 (2020) (finding that “[a]bsent the prosecutor’s brutal and improper cross-examination, there was more than a reasonable likelihood that a reasonable juror would have determined that [the defendant] was legally insane when she murdered her mother”).
Opening statement. In the absence of bad faith or prejudice to the defendant, it is not error when the prosecutor fails to prove the assertions made during opening statements. People v Wolverton, 227 Mich App 72, 75-78 (1997).
Prosecutor’s duty to correct false or misleading testimony. “It is inconsistent with due process when the prosecution allows false testimony from a state’s witness to stand uncorrected.” People v Smith, 498 Mich 466, 475 (2015), citing Napue v Illinois, 360 US 264, 269 (1959) (additional citations omitted). This duty applies “especially when that testimony conveys to the jury an asserted confession from the defendant.” People v Brown, 506 Mich 440, 446 (2020). “When credibility is a dominant consideration in ascertaining guilt or innocence, other independent evidence apart from the testimony of the defendant and the victim is particularly vital to the fact-finding process. And false testimony simply undermines the jury’s ability to discern the truth in these circumstances.” Id. at 453. Notwithstanding, “[i]n some cases, a new trial will not be warranted given the sheer strength of the truthful evidence relative to the false testimony.” Id.
In Brown, 506 Mich at 447, the detective, who interviewed defendant regarding the victim’s allegations of sexual assault, “asked defendant if the truth was ‘somewhere in the middle’” of the victim’s allegations and his claim of innocence, to which the defendant gave no verbal or nonverbal response. At trial, the detective “testified that defendant said that the truth . . . was actually ‘somewhere in the middle.’” Id. “Therefore, the prosecutor elicited false testimony from the detective on direct examination.” Id. During cross-examination, the detective “never admitted that he was mistaken,” and “simply stated that it was ‘possible’ he was wrong and agreed that his testimony ‘could be incorrect.’” Id. at 448-449. “Instead of correcting the record and having [the detective] concede that defendant never made any such admission,” the prosecutor stated he could rely on the previous testimony and the police report. Id. at 449. However, the detective’s “testimony on direct and cross-examination was contradictory, and the police report was patently false. Thus, the redirect examination did nothing to correct the record and, indeed, further suggested that the prosecutor believed that [the detective] initially told the truth and that defendant made the admission during the interview.” Id. at 449-450. “[T]he prosecutor’s failure to correct the testimony and instead rely on that testimony in questioning is especially problematic because it reinforced the deception of the use of false testimony and thereby contributed to the deprivation of due process.” Id. at 450 (cleaned up). The prosecutor’s actions “left it to the jury to decide if defendant made self-incriminatory statements during the interview. Leaving this kind of false testimony for the jury to assess on its own is highly prejudicial,” and likely “affected the jury’s verdict, one ultimately resting on the credibility of the victim and the defendant.” Id. at 454 (vacating defendant’s conviction and remanding for a new trial).
In Smith, 498 Mich at 470, “the prosecution breached a duty to correct the substantially misleading, if not false, testimony of a key witness about his formal and compensated cooperation in the government’s investigation.” The defendant was entitled to a new trial because, “[g]iven the overall weakness of the evidence against the defendant and the significance of the witness’s testimony, . . . there [was] a reasonable probability that the prosecution’s exploitation of the substantially misleading testimony affected the verdict.” Id., citing Napue, 360 US at 271-272. “Due process required that the jury be accurately apprised of the incentives underlying the testimony of this critical witness,” and “[c]apitalizing on [the witness]’s testimony that he had no paid involvement in the defendant’s case [was] inconsistent with a prosecutor’s duty to correct false testimony.” Smith, 498 Mich at 480, 487, citation omitted. Because “there [was] a ‘reasonable likelihood’ that the false impression resulting from the prosecutor’s exploitation of the testimony affected the judgment of the jury, . . . the defendant [was] entitled to a new trial.” Id. at 483, quoting Napue, 360 US at 271.
See, however, Schrauben, 314 Mich App at 187-189, overruled in part on other grounds by People v Posey, ___ Mich ___ (2023)30 (holding that “the trial court did not abuse its discretion by denying [the] defendant’s motion for a new trial based on perjury” where, “[e]ven if the prosecutor knowingly presented perjured testimony, the false testimony likely would not have affected the judgment of the jury[;]” although “the inconsistencies [in a key witness’s testimony] . . . certainly cast doubt on [the witness’s] testimony at trial and raised questions as to his involvement in the [defendant’s crimes],” “there was concrete evidence presented which implicated [the] defendant, despite the level of [the witness’s] potential involvement”).
Use of word “victim.” “[N]o published Michigan decision or other authority . . . precludes the prosecution from referring to the complainant as ‘the victim.’” People v Wisniewski, ___ Mich App ___, ___ (2025). “While use of the word ‘victim’ assumes a crime has been committed, the fact that a prosecutor is of that view would not surprise a reasonable juror, nor would the prosecutor’s use of the word in argument or voir dire generally be understood as anything other than the contention of the prosecution.” Id. at ___ (quotation marks and citation omitted). In Wisniewski, “the prosecution’s main references to each complainant as ‘the victim’ were during jury selection, i.e., early in the proceedings.” Id. at ___. “The trial court swiftly informed the jury in its preliminary instructions of the definition of ‘victim’ under the applicable legislation, that being MCL 750.520a(s).” Wisniewski, ___ Mich App at ___ (“[T]he trial court instructed the jury, consistent with MCL 750.520a(s), that the term ‘victim’ means the person alleging to have been subjected to a criminal sexual conduct.”). “Because the CSC section of the penal code establishes that the complainant in a CSC case is the ‘victim,’ and because the trial court informed the jury of this fact while clarifying that victimization merely is an allegation, no prosecutorial error occurred.” Wisniewski, ___ Mich App at ___. “In other words, because the prosecution . . . used the language to refer to the complainants that has been codified by our Legislature, the trial court did not plainly err by allowing the prosecution to use that language.” Id. at ___. “[E]ven to a layperson on the jury, the clear basis for maintaining the criminal proceedings is the fact that the prosecution believes that the complainant actually is ‘the victim.’” Id. at ___. “Thus, the prosecution’s use of that term could not have suggested anything to the jury of which it was not already aware.” Id. at ___. Accordingly, “to the extent that this issue [was] properly framed as implicating ‘prosecutorial error’ or ‘prosecutorial misconduct,’ the trial court did not plainly err because Michigan statutes, particularly MCL 750.520a(s), contemplate that the term ‘victim’ refers to the complainant in a CSC prosecution.” Wisniewski, ___ Mich App at ___. “Further, to the extent that defendant argue[d] that referring to each complainant as ‘the victim’ violated his right to a fair trial, . . . common sense suggests that such language is consistent with the prosecutorial role.” Id. at ___ (“[A] reasonable juror obviously would understand that the prosecution’s position is that the complainant in a CSC trial is a ‘victim.’ Otherwise, the trial would not be taking place at all.”).
Vouching or bolstering. “A prosecutor may not vouch for the credibility of witnesses by claiming some special knowledge with respect to their truthfulness[.]” People v McGhee, 268 Mich App 600, 630 (2005); see also Cooper, 309 Mich App at 91; People v Tomasik, 498 Mich 953, 953 (2015) (holding that “[t]he trial court abused its discretion by admitting the recording of the defendant’s interrogation,” and noting that “[i]n a trial in which the evidence essentially presents a ‘one-on-one’ credibility contest between the complainant and the defendant, the prosecutor cannot improperly introduce statements from the investigating detective that vouch for the veracity of the complainant and indicate that the detective believes the defendant to be guilty”).
“The prosecutor may, however, argue from the facts that a witness is worthy of belief.” Clark, 330 Mich App at 434 (there was no misconduct where “the prosecutor did not imply that he had special knowledge that [the witness] was telling the truth”; [r]ather he argued that [the witness’s] testimony was credible because it was corroborated by other evidence, which was a proper argument”). A prosecutor may also “comment on his own witnesses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.” People v Thomas, 260 Mich App 450, 455 (2004). For example, in People v Isrow, 339 Mich App 522, 528-531 (2021), the prosecutor did not commit misconduct when he noted in his closing argument that testimony from police officers could assist the jury in determining which of the other witnesses’ testimony was credible because he did not ask the jury to accept any specific determinations by the police officers regarding other witnesses’ credibility. See also People v Skippergosh, ___ Mich App ___, ___ (2024). In Skippergosh, the Court of Appeals rejected the defendant’s argument “that the prosecution impermissibly vouched during its closing argument by arguing that [the victim’s] brother, sister-in-law, niece, and father had no motivations for falsely testifying against [the defendant].” The Court stated: “[I]n light of the testimony presented at trial, it was reasonable for the prosecution to infer and argue that [the victim’s] family members did not have any unusual or impermissible motivations for testifying, and that they were compelled to do so simply out of commonplace concern for the well-being of a family member.”
“The mere disclosure of a plea agreement with a prosecution witness, which includes a provision for truthful testimony, does not constitute improper vouching or bolstering by the prosecutor, provided the prosecutor does not suggest special knowledge of truthfulness.” Cooper, 309 Mich App at 91.
Standard of review. Issues of prosecutorial misconduct are decided on a case-by-case basis, and the reviewing court must examine the entire record and evaluate a prosecutor’s remarks in context. People v Dobek, 274 Mich App 58, 64 (2007). “Prosecutorial arguments are also considered in light of defense arguments.” People v Lawton, 196 Mich App 341, 353 (1992).
Preserved claims of prosecutorial misconduct are reviewed de novo to determine whether the defendant was denied a fair and impartial trial. People v Bennett, 290 Mich App 465, 475 (2010). “In order to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction.” Id.
Prosecutorial misconduct may constitute constitutional or nonconstitutional error. People v Blackmon, 280 Mich App 253, 269-271 (2008). Whether an error is constitutional or nonconstitutional is a question of law subject to de novo review. Id. at 259. “[T]o be constitutional error, [in the absence of an allegation that the misconduct violated a specific constitutional right,] the misconduct must have so infected the trial with unfairness as to make the conviction a deprivation of liberty without due process of law.” Id. at 269.
If prosecutorial misconduct is preserved and is constitutional in nature, the proper standard of review on direct appeal is the “harmless beyond a reasonable doubt” standard. Blackmon, 280 Mich App at 271; see People v Carines, 460 Mich 750, 774 (1999). If prosecutorial misconduct is preserved and is nonconstitutional in nature, the proper standard of review on direct appeal is whether “it is more probable than not that the error in question ‘undermine[d] the reliability of the verdict,’ thereby making the error ‘outcome determinative.’” Blackmon, 280 Mich App at 270, quoting People v Lukity, 460 Mich 484, 495-496 (1999) (alteration in original).
“‘Where a defendant fails to object to an alleged prosecutorial impropriety, the issue is reviewed for plain error.’” Cooper, 309 Mich App at 88 (citation omitted). “A plain error is one that is ‘clear or obvious,’ and the error must affect the defendant’s ‘substantial rights.’” Id., quoting Carines, 460 Mich at 763. “‘Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of [the] defendant’s innocence.’” Cooper, 309 Mich App at 88-89, quoting Carines, 460 Mich at 763 (first alteration in original).
Unfair prejudice produced by prosecutorial comments may be cured by the court’s instruction to the jury that counsel’s arguments are not evidence. People v Green, 228 Mich App 684, 693 (1998); see also People v Roscoe, 303 Mich App 633, 649 (2014) (citing Unger, 278 Mich App at 235, and holding that although the prosecutor improperly “stated that she had personal knowledge that the government’s witness was lying,” the “error was not outcome determinative . . . [because, h]ad [the] defendant objected to this instance of prosecutorial misconduct, an immediate curative instruction would have been sufficient to cure the error” and “the jury eventually heard other testimony that the witness was lying”).
I.Summation of Evidence by Court
“After the close of the evidence and arguments of counsel, the court may fairly and impartially sum up the evidence if it also instructs the jury that it is to determine for itself the weight of the evidence and the credit to be given to the witnesses and that jurors are not bound by the court’s summation. The court shall not comment on the credibility of witnesses or state a conclusion on the ultimate issue of fact before the jury.” MCR 2.513(M) (applicable only to jury trials).