1.6Standard of Review
The standard of review is one of the initial concerns in deciding any appeal. See MCR 7.111(B); MCR 7.212(C)(7).
Committee Tips:
The standard of review reflects the level of deference an appellate court gives to a decision of the lower court.
Generally, the standard of review on appeal will be:
• de novo for questions of law;
• clearly erroneous for determinations of fact; and
• abuse of discretion for application of the law to the facts.
Questions of law are reviewed de novo. Brackett v Focus Hope, Inc, 482 Mich 269, 275 (2008); People v Sierb, 456 Mich 519, 522 (1998). Questions of law include the interpretation of statutes, court rules, and constitutional provisions. Estes v Titus, 481 Mich 573, 578-579 (2008); In re Carey, 241 Mich App 222, 226 (2000).
A lower court’s findings of fact are reviewed for clear error. MCR 2.613(C). See also Walters v Snyder, 239 Mich App 453, 456 (2000). “In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v Lanzo Constr Co, 272 Mich App 470, 473 (2006).
Committee Tips:
Many decisions made by a trial judge are discretionary and are reviewed for an abuse of discretion.
It is prudent for a judge to recognize his or her discretion when making these types of decisions.
“At its core, an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.” People v Babcock, 469 Mich 247, 269 (2003). “An abuse of discretion occurs . . . when the trial court chooses an outcome falling outside this principled range of outcomes.” Id. See also Maldonado v Ford Motor Co, 476 Mich 372, 388 (2006), which adopted the Babcock Court’s articulation of the abuse of discretion standard as the “default standard.” However, “by characterizing the ‘principled outcomes’ standard as the default standard, Maldonado recognized that another formulation could exist. Accordingly, a default abuse of discretion standard of review is an assumed or assigned standard of review unless the law instructs otherwise.” Shulick v Richards, 273 Mich App 320, 324-325 (2006) (finding that the Michigan Supreme court has “instructed otherwise” with respect to child custody cases in Fletcher v Fletcher, 447 Mich 871 (1994)).
“An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.” MCR 2.613(A).
Similarly, “[n]o judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCL 769.26. See also MRE 103(a).
An appellate court “err[s] by applying harmless error analysis without first determining whether [a] trial court’s order . . . was erroneous.” People v Muhammad, 498 Mich 909, 909 (2015).
“A constitutional error does not automatically require reversal. . . . [M]ost constitutional errors can be harmless.” People v Solomon, 220 Mich App 527, 535 (1996). “Violations of the constitution that are subject to a harmless-error analysis are errors that ‘occurred during the presentation of the case to the jury, and that may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.’” Id. at 536, quoting Arizona v Fulminante, 499 US 279, 307-308 (1991). See Section 1.6(F) for more information on constitutional errors.
F.Which Standard of Review Should Be Employed?
“[T]he standard for reviewing error on appeal depends upon two factors: first, whether the error is constitutional or nonconstitutional, and second, whether the error is preserved or forfeited.” People v Carines, 460 Mich 750, 773 (1999).1 Forfeiture is the failure to timely assert a right, whereas, waiver is the intentional relinquishment or abandonment of a known right. Id. at 762 n 7.
“Michigan generally follows the ‘raise or waive’ rule of appellate review.” Wells v State Farm Fire & Cas Co, 509 Mich 855, 856 (2022) (quotation marks and citation omitted). “Therefore, a litigant preserves an issue for appellate review by raising it in the trial court . . . despite the trial court’s failure to rule on it.” Id. at 856 (quotation marks, citation, and alteration omitted). “[I]ssue preservation requirements only impose a general prohibition against raising an issue for the first time on appeal.” Glasker-Davis v Auvenshine, 333 Mich App 222, 227 (2020). “[A] party also need not preserve an objection to ‘a finding or decision’ made by the trial court, MCR 2.517(A)(7), or, at least under some circumstances, other acts or omissions undertaken sua sponte by a court.” Glasker-Davis, 333 Mich App at 227-228; but see In re SB, ___ Mich App ___, ___ (2024) (holding that any objection regarding the trial court’s sua sponte order extending the personal protection order (PPO) was forfeited and unpreserved where, even though respondent objected to the court’s authority to sua sponte extend the effective date of the PPO, respondent had the opportunity to object to the actual extension of the PPO’s restrictions and failed to do so). “[S]o long as the issue itself is not novel, a party is generally free to make a more sophisticated or fully-developed argument on appeal than was made in the trial court.” Glasker-Davis, 333 Mich App at 228.
“‘What suffices for waiver depends on the nature of the right at issue.’” People v Vaughn, 491 Mich 642, 655 (2012), quoting New York v Hill, 528 US 110, 114 (2000). Certain constitutional rights, such as the right to counsel and the right to plead not guilty, “fall[] within [an] exceedingly narrow class of rights that are placed outside the general preservation requirements and require a personal and informed waiver.” Vaughn, 491 Mich at 654-658 (holding that, “[a]lthough the violation of the right to a public trial is among the limited class of constitutional violations that are structural in nature,” it “‘does not necessarily affect qualitatively the guilt-determining process or the defendant’s ability to participate in the process,’” and therefore remains subject to the Carines2 forfeiture analysis) (citation omitted). See People v Davis, 331 Mich App 699, 712 (2020) (although “[c]ounsel strategically and intentionally relinquished or abandoned the right to a public trial in order to vastly reduce the number of supporters for the victim in the courtroom in an effort to mask the fact that no one was there for defendant,” counsel “did not affirmatively indicate an approval of the court’s decision” to close the courtroom; accordingly, the Court reviewed the matter under the plain-error test).
In general civil cases, the Court of Appeals is required to “apply the raise-or-waive rule and, thus, the plain-error standard does not apply in those cases.” HMM v JS, ___ Mich App ___, ___ (2024). However, “because of the potential criminal consequences for a respondent’s violation of a PPO, and the liberty interests at stake, . . . plain-error review also applies to unpreserved issues in PPO proceedings,” even though PPO proceedings are civil in nature. Id. at ___.
1.Preserved Constitutional Error
“If the error is not a structural defect that defies harmless error analysis, the reviewing court must determine whether the beneficiary of the error has established that it is harmless beyond a reasonable doubt.” People v Carines, 460 Mich 750, 774 (1999).3 “A constitutional error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” People v Shepherd, 472 Mich 343, 347 (2005) (quotation marks, alteration, and citations omitted). If the error is structural, automatic reversal is required. People v Anderson (After Remand), 446 Mich 392, 404-405 (1994).4 Structural errors include “the total deprivation of the right to trial counsel, an impartial judge, excluding grand jury members who are the same race as defendant, denial of the right to self-representation, denial of the right to a public trial, and a constitutionally improper reasonable doubt instruction.” Id. at 405.
2.Preserved Nonconstitutional Error
“The defendant has the burden of establishing a miscarriage of justice under a ‘more probable than not’ standard.” People v Carines, 460 Mich 750, 774 (1999), quoting People v Lukity, 460 Mich 484 (1999).
3.Unpreserved Constitutional or Nonconstitutional Error
“Review of an unpreserved error is limited to determining whether a plain error occurred that affected substantial rights.” Rivette v Rose-Molina, 278 Mich App 327, 328 (2008). A plain-error analysis applies to both constitutional and nonconstitutional errors that are not preserved for appellate review. People v Carines, 460 Mich 750, 774 (1999).
“Appellate courts may grant relief for unpreserved errors if the proponent of the error can satisfy the ‘plain error’ standard, which has four parts (the ‘Carines prongs’). The first three Carines prongs require establishing that (1) an error occurred, (2) the error was ‘plain’—i.e., clear or obvious, and (3) the error affected substantial rights—i.e., the outcome of the lower court proceedings was affected.” People v Cain, 498 Mich 108, 116 (2015). “If the first three elements are satisfied, the fourth Carines prong calls upon an appellate court to ‘exercise its discretion in deciding whether to reverse,’ and (4) relief is warranted only when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings . . . .” Id. (quotation marks and citation omitted; first alteration in original).” See also MRE 103(e) (“A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.”)
When reviewing an unpreserved claim of error, “[c]ourt[s] should . . . engage[] in a fact-intensive and case-specific inquiry under the fourth Carines prong to assess whether, in light of any 'countervailing factors' on the record, leaving the error unremedied would constitute a miscarriage of justice, i.e., whether the fairness, integrity, or public reputation of the proceedings was seriously affected.” Cain, 498 Mich at 128 (internal citation omitted). “Reversal is required only in the most serious cases, those in which the error contributed to the conviction of an actually innocent person or otherwise undermined the fairness and integrity of the process to such a degree that an appellate court cannot countenance that error.” Id. at 119.
“A constitutional challenge to legislation that is not raised and addressed in the record below is not preserved for appellate review. . . . However, [an appellate court] may address unpreserved constitutional questions where no question of fact exists and the interest of justice and judicial economy so dictate.” STC, Inc v Dep’t of Treasury, 257 Mich App 528, 538 (2003).
“[A] defendant’s inability to satisfy the [Carines] plain-error standard in connection with a specific trial court error does not necessarily mean that he or she cannot meet the ineffective-assistance standard regarding counsel’s alleged deficient performance relating to that same error.”5 People v Randolph, 502 Mich 1, 22 (2018). “Courts must independently analyze each claim, even if the subject of a defendant’s claim relates to the same error.” Id.
The reviewing court need not reverse a lower court’s ruling if the lower court reached the correct result, albeit for the wrong reason. Burise v City of Pontiac, 282 Mich App 646, 652 n 3 (2009); People v McLaughlin, 258 Mich App 635, 652 n 7 (2003).