The prosecution in Michigan generally does not have to present every witness at trial, but must produce enough evidence on every element of the charged offense to withstand a motion for directed verdict at the conclusion of the prosecution’s case. Michigan Court Rule 6.419 provides that “after the prosecutor has rested the prosecution’s case in chief or after the close of all evidence, the court on Defendant’s motion must direct a verdict of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the Defendant may offer evidence without having reserved the right to do so”. The Defense has to convince the trial Judge that the evidence in the light most favorable to the prosecution cannot support a conviction.
There are some instances in which heresay evidence is permissible under the Michigan rules of evidence in lieu of presenting a witness. The rules pertaining to heresy are complicated, and it is the role of the lawyer to try and admit or exclude evidence depending upon the circumstances of the case.
Upon request of the defense, the prosecutor must provide “reasonable assistance” to the defendant to secure defense witnesses for trial. People v Koonce, 466 Mich 515, 521; 648 NW2d 153 (2002); MCL 767.40a(5). However, a Prosecutor no longer has a duty to discover and produce all res gestae witnesses. People v Perez, 469 Mich 415, 419; 670 NW2d 655 (2003); MCL 767.40a. If the prosecutor endorses a witness under MCL 767.40a(3), then the prosecutor must exercise due diligence to produce the witness. People v Wolford, 189 Mich App 478, 483- 484; 473 NW2d 767 (1991).
“Due diligence” has been defined as attempting to do “everything reasonable, not everything possible” to produce a witness. People v Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988) (citation and quotation omitted). “Reasonable assistance” has been applied as a lesser standard. See People v Long, 246 Mich App 582, 586; 633 NW2d 843 (2001). The Defense can request a missing witness jury instruction (CJI2d 5.12) for witnesses the prosecution failed to produce. If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness’s testimony would have been unfavorable to the prosecution’s case. People v. Eccles, 260 Mich App 379, 389; 677 NW2d 76 (2004). However, this jury instruction is not automatically given – Defense must make the request to the Court for the jury to be so instructed.
When charged with an misdemeanor or felony in Michigan it is important to hire an experienced criminal lawyer to assist you. An experienced criminal lawyer may be able to help you achieve a great result.
There are many lawyers who claim to do more than what they are able – just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.