1.2​Establishing a Record for Review

A.​Bench Trial¹

“In actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment.” MCR 2.517(A)(1). “The court may state the findings and conclusions on the record or include them in a written opinion.” MCR 2.517(A)(3).² “A court must base its decision on testimony given in open court, not extrajudicial information.” Gubin v Lodisev, 197 Mich App 84, 86 (1992).

A court’s decision should include “[b]rief, definite, and pertinent findings and conclusions on the contested matters . . . without overelaboration of detail or particularization of facts.” MCR 2.517(A)(2). Findings are sufficient if it appears that the trial court was aware of the issues in the case and correctly applied the law. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 176 (1995).

In a criminal bench trial, while it is unnecessary for “[t]he court [to] make specific findings of fact regarding each element of the [charged] crime, People v Legg, 197 Mich App 131, 134 (1992), the court’s opinion should “manifest[] a finding” that the defendant committed the charged crime, People v Davis, 146 Mich App 537, 550-551 (1985).

Additionally, a trial judge’s findings and verdict must be consistent. People v Walker, 461 Mich 908, 908 (1999). It is improper and unethical for a trial court to give a defendant a “waiver break” by dismissing charges in exchange for the defendant’s waiver of a jury trial; “it is not within the power of the judicial branch to dismiss charges or acquit a defendant on charges that are supported by the case presented by the prosecutor.” People v Ellis, 468 Mich 25, 26-28 (2003) (noting that due to double jeopardy principles “a judge that rewards a defendant for waiving a jury trial by ‘finding’ him not guilty of a charge for which an acquittal is inconsistent with the court’s factual findings cannot be corrected on appeal”; “[d]espite the inability of the appellate process to correct the effects of an improper ‘waiver break’ in the form of inconsistent verdicts, . . . this judicial practice violates the law and a trial judge’s ethical obligations”).³

Committee Tips:

Knowing the applicable law makes finding the relevant facts easier. Consider ordering counsel to provide proposed findings of fact and conclusions of law before the trial.

When rendering a decision after a bench trial, it is recommended that the judge cover the following:

•​Applicable statutes;

•​Applicable jury instructions;

•​Burden of proof;

•​Any presumptions that may apply;

•​Findings of facts sufficient to show an appellate court that the trial judge was aware of the issues and correctly applied the appropriate law;

•​Conclusions of law; and

•​Entry of the appropriate judgment.

B.​Required Findings of Fact/Conclusions of Law in Civil and Criminal Cases

“Findings of fact and conclusions of law are unnecessary in decisions on motions unless findings are required by a particular rule.” MCR 2.517(A)(4). “But remand may be warranted when articulation of the trial court’s reasoning is necessary to facilitate appellate review.” McNeal v Lincolnshire 2007 Ltd Dividend Housing Ass'n, LLC, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted) (concluding that “because [the] appeal follow[ed] a motion for summary disposition, which is reviewed de novo, the trial court’s failure to provide its reasoning did not impact [the Court’s] ability to perform appellate review”).

Specific situations requiring a “finding” include, but are not limited to:

•​Jury instructions—MCR 2.512(D)(3) (where the relevant jury instruction committee recommends that no instruction be given, “the court shall not give an instruction unless it specifically finds for reasons stated on the record that (a) the instruction is necessary to state the applicable law accurately, and (b) the matter is not adequately covered by other pertinent model civil jury instructions”).

•​Batson⁴ challenges—People v Bell, 473 Mich 275, 300 (2005) (“trial courts are well advised to articulate and thoroughly analyze each of the three steps set forth in Batson . . . in determining whether peremptory challenges were improperly exercised”; “[i]n doing so, trial courts should clearly state the Batson step that they are addressing and should articulate their findings regarding that step”).

•​Impeachment by evidence of conviction of crime—MRE 609(b) (“[t]he court must articulate, on the record, the analysis of each factor”).

1.​Findings Specific to Criminal Cases.

Specific situations requiring a “finding” in criminal cases include, but are not limited to:

•​Joint representation of criminal defendants—MCR 6.005(F)(3) (“[t]he court may not permit the joint representation unless [among other things, it] finds on the record that joint representation in all probability will not cause a conflict of interest and states its reasons for the finding”).

•​Directed verdict of acquittal—MCR 6.419(F) (“[t]he court must state orally on the record or in a written ruling made a part of the record its reasons for granting or denying a motion for a directed verdict of acquittal”).

•​Motion for a new trial—MCR 6.431(B) (“[t]he court must state its reasons for granting or denying a new trial orally on the record or in a written ruling made a part of the record”).

•​Probation violation hearings—MCR 6.445(E)(2) (“[a]t the conclusion of the hearing, the court must make findings in accordance with MCR 6.403 and, if the violation is proven, whether the violation is a technical or non-technical violation of probation”).

•​Deviating from the legislative sentencing guidelines— MCL 769.34(3); see also People v Lockridge, 498 Mich 358, 392 (2015)⁵ (in order to facilitate appellate review for reasonableness, the court must justify any sentence imposed outside the advisory minimum guidelines range).

•​Walker hearings—People v Walker, 374 Mich 331, 338 (1965) (“the trial judge, on the basis of [a] separate hearing and record made, determines [whether the defendant’s] confession was . . . voluntarily given”).⁶

•​Wade⁷ hearings—People v Kachar, 400 Mich 78, 97 (1977)⁸ (“the trial court must state on the record the reasons for determining whether the prosecution has established by clear and convincing evidence that the in-court identification has a sufficient independent basis to purge the taint caused by the illegal confrontation”).

•​Ginther hearings—People v Ginther, 390 Mich 436, 441-442 (1973) (“[w]hen a defendant asserts that his assigned lawyer is not adequate or diligent or . . . that his lawyer is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion”).⁹

•​Entrapment hearings—People v Juillet, 439 Mich 34, 61 (1991) (“when the defense of entrapment is raised, the trial court must conduct an evidentiary hearing outside the presence of the jury . . . [and] make specific findings of fact on the entrapment issue”); People v Jade, ___ Mich App ___, ___ (2024) (“the test that Michigan courts must apply to determine whether the particular facts of a case constitute entrapment, and the ultimate decision whether entrapment occurred, also involve principles of law that are expressed in a body of common law developed in this state’s jurisprudence defining the standards and boundaries of the entrapment defense”).¹⁰

2.​Findings Specific to Civil Cases

Specific situations requiring a “finding” in civil cases include, but are not limited to:

•​Order for adjournment—MCR 2.503(D)(1) (“the [court’s written or oral] order must state the reason for the adjournment”).

•​Involuntary dismissal—MCR 2.504(B)(2) (“[i]f the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in MCR 2.517”).

•​Motion for a new trial/to amend judgment—MCR 2.611(F) (“the court shall give a concise statement of the reasons for the ruling, either in an order or opinion filed in the action or on the record”).

•​Hearings and trials in domestic relations actions—MCR 3.210(D) (“the court must make findings of fact as provided in MCR 2.517, except that (1) findings of fact and conclusions of law are required on contested postjudgment motions to modify a final judgment or order, and (2) the court may distribute pension, retirement, and other deferred compensation rights with a qualified domestic relations order, without first making a finding with regard to the value of those rights”).

•​Determining interests in land—MCR 3.411(D) (“the court shall make findings determining the disputed rights in and title to the premises”) and MCR 3.411(E) (“the court shall hear evidence and make findings, determining the value of the use of the premises”).

•​Contempt proceedings—In re Contempt of Calcutt, 184 Mich App 749, 758 (1990) (“[s]ince civil contempt actions are tried by the court without a jury, [the court] must make findings of fact, state its conclusions of law, and direct entry of the appropriate judgment”).

C.​Expanding Record on Remand

“The Court of Appeals [or a circuit court sitting as an appellate court] may, at any time, in addition to its general powers, in its discretion, and on the terms it deems just . . . remand the case to allow additional evidence to be taken[.]” MCR 7.216(A)(5). See also MCR 7.112.

“While a matter is pending in the Supreme Court, the Court may, at any time, in addition to its general powers, . . . adjourn the case until further evidence is taken and brought before it” or “enter any judgment or order that ought to have been entered, and enter other and further orders and grant relief as the case may require[.]” MCR 7.316(A)(5); MCR 7.316(A)(7).

See Section 1.5 for additional information on the topic of remand.

Committee Tip:

Be sure to answer the questions presented in remand orders.