9.2Pretrial Procedures—Generally
In general, the Michigan Court Rules do not provide for motion practice in criminal proceedings;1 accordingly, the rules for civil motion practice apply. See MCR 6.001(D).
“An application to the court for an order in a pending action must be by motion.” MCR 2.119(A)(1). “Unless made during a hearing or trial, a motion must (a) be in writing, (b) state with particularity the grounds and authority on which it is based, (c) state the relief or order sought, and (d) be signed by the party or attorney as provided in MCR 1.109(D)(3) and [MCR 1.109](E).” MCR 2.119(A)(1).
“A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C)[2] regarding citation of unpublished Court of Appeals opinions.” MCR 2.119(A)(2). “Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 double spaced pages, exclusive of attachments and exhibits.” MCR 2.119(A)(2)(a). See People v Leonard, 224 Mich App 569, 578-579 (1997) (defendant brief in excess of the 20-page limit “was justified” where the matter was “‘very complicated[]’”). “Except as permitted by the court or as otherwise provided in [the Michigan Court Rules], no reply briefs, additional briefs, or supplemental briefs may be filed.” MCR 2.119(A)(2)(b). “Quotations and footnotes may be single-spaced[, a]t least one-inch margins must be used, and printing shall not be smaller than 12-point type.” MCR 2.119(A)(2)(c).
“Except where electronic filing has been implemented, a copy of a motion or response (including brief) filed under [MCR 2.119] must be provided by counsel to the office of the judge hearing the motion.” MCR 2.119(A)(2)(d). “The judge’s copy must be clearly marked JUDGE’S COPY on the cover sheet; that notation may be handwritten.” Id. A judge’s copy is not required where electronic filing has been implemented. Id.
The motion and a notice of hearing on the motion may be combined into one document. MCR 2.119(A)(3).
B.Time for Service and Filing of Motions and Responses
“Notwithstanding any other provision of [MCR 2.107], until further order of the Court, all service of process except for case initiation must be performed using electronic means (e-Filing where available, email, or fax, where available) to the greatest extent possible. Email transmission does not require agreement by the other party(s) but should otherwise comply as much as possible with the provisions in [MCR 2.107(C)(4)].” MCR 2.107(G).
“Unless a different period is set by [the court rules] or by the court for good cause, a written motion (other than one that may be heard ex parte), notice of the hearing on the motion, and any supporting brief or affidavits must be served as follows: (a) at least 9 days before the time set for the hearing, if served by first-class mail, or (b) at least 7 days before the time set for the hearing, if served by delivery under MCR 2.107(C)(1) or [MCR 2.107(C)](2) or MCR 1.109(G)(6)(a).” MCR 2.119(C)(1).
“Unless a different period is set by [the court rules] or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by [the court rules] must be served as follows: (a) at least 5 days before the hearing, if served by first-class mail, or (b) at least 3 days before the hearing, if served by delivery under MCR 2.107(C)(1) or [MCR 2.107(C)](2) or MCR 1.109(G)(6)(a).” MCR 2.119(C)(2).
“If the court sets a different time for serving a motion or response its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.” MCR 2.119(C)(3).
“Unless the court sets a different time, a motion must be filed at least 7 days before the hearing, and any response to a motion required or permitted by [the court rules] must be filed at least 3 days before the hearing.” MCR 2.119(C)(4).
C.Pretrial and Early Scheduling Conferences
1.District Court
“The court, on its own initiative or on motion of either party, may direct the prosecutor and the defendant, and, if represented, the defendant’s attorney to appear for a pretrial conference.” MCR 6.610(B). “The court may require collateral matters and pretrial motions to be filed and argued no later than this conference.” Id.
2.Circuit Court
“At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties, alone or with the parties, appear for a conference.” MCR 2.401(A). “The court shall give reasonable notice of the scheduling of a conference.” Id. “More than one conference may be held in an action.” Id. At an early scheduling conference, or at any other time if the court concludes that it would facilitate the progress of the case, the court must establish times for events including filing motions and scheduling trial. MCR 2.401(B)(2)(a). The court may adopt other provisions it deems appropriate. Id.
3.Scheduling Orders
The scheduling of events in a scheduling order must take into consideration the nature and complexity of the case, including the issues involved; the number and location of parties and potential witnesses, including experts; the extent of expected and necessary discovery; and the availability of reasonably certain trial dates. MCR 2.401(B)(2)(b).
“The scheduling order may also include provisions concerning initial disclosure, discovery of ESI [(electronically stored information)], any agreements the parties reach for asserting claims of privilege or for protection as trial-preparation material after production, preserving discoverable information, and the form in which ESI shall be produced.” MCR 2.401(B)(2)(c).
The scheduling of events in a scheduling order requires meaningful consultation with all counsel of record, whenever reasonably practical. MCR 2.401(B)(2)(d).
“Absent any compelling legal authority,” a trial court has discretion whether to hold an evidentiary hearing; “[t]he trial court need not hold an evidentiary hearing if it can sufficiently decide an issue on the basis of evidence already presented.” IGCFCO III, LLC v One Way Loans, LLC, ___ Mich App ___, ___, ___ n 2 (2024) (holding that “the trial court did not abuse its discretion when it determined an evidentiary hearing was unnecessary” because the “defendants did not present evidence that might have convinced the trial court that an evidentiary hearing was required” or “authority to directly support the argument that they [were] entitled to an evidentiary hearing”).
A defendant is generally entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds. People v Reynolds, 93 Mich App 516, 519 (1979). But “where it is apparent to the court that the challenges are insufficient to raise a constitutional infirmity, or where the defendant fails to substantiate the allegations of infirmity with factual support, no hearing is required.” People v Johnson, 202 Mich App 281, 285 (1993).
“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.” MRE 104(a). “In so deciding, the court is not bound by evidence rules, except those on privilege.” Id.; MRE 1101(b)(1). In determining whether the proffered evidence is admissible under the technical requirements of the rules of evidence, the trial court applies a preponderance of the evidence test. Bourjaily v United States, 483 US 171, 175-176 (1987).
“Although it is always preferable for purposes of appellate review that a trial court explain its reasoning and state its findings of fact with respect to pretrial motions, the court is not required to do so by court rule.” People v Shields, 200 Mich App 554, 558 (1993). See MCR 2.517(A)(4). “The court may state . . . findings and conclusions on the record or include them in a written opinion.” MCR 2.517(A)(3).
A trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse of discretion. People v Unger, 278 Mich App 210, 216-217 (2008). An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes. Id. at 217. A trial court’s findings of fact are reviewed for clear error. MCR 2.613(C).
“Matters under submission to a judge or judicial officer should be promptly determined. Short deadlines should be set for presentation of briefs and affidavits and for production of transcripts. Decisions, when possible, should be made from the bench or within a few days of submission; otherwise a decision should be rendered no later than 35 days after submission. For the purpose of [MCR 8.107], the time of submission is the time the last argument or presentation in the matter was made, or the expiration of the time allowed for filing the last brief or production of transcripts, as the case may be.” MCR 8.107(A). Matters not decided within 56 days of submission must be identified on the quarterly “Report as to Matters Undecided.” MCR 8.107(B).
1 Note, however, that should a court rule or statute provide something contrary to what is provided in MCR 2.119 (the civil motion practice rule), that other court rule or statute applies. See MCR 6.001(D)(1); MCR 6.001(D)(3).
2 MCR 7.215(C)(1) provides:
“An unpublished opinion is not precedentially binding under the rule of stare decisis. Unpublished opinions should not be cited for propositions of law for which there is published authority. If a party cites an unpublished opinion, the party must explain the reason for citing it and how it is relevant to the issues presented. A party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties with the brief or other paper in which the citation appears.”