holding that (1) “on a showing that the defendant has a good- faith belief, grounded on some demonstrable fact, that there is a reasonable probability that the records are likely to contain material information necessary to the defense,” a trial court may conduct an in camera review; and (2) “[o]nly after the court has conducted the in camera inspection and is satisfied that the records reveal evidence necessary to the defense is the evidence to be supplied to defense counsel”
How later courts described this case
- holding that (1) “on a showing that the defendant has a good- faith belief, grounded on some demonstrable fact, that there is a reasonable probability that the records are likely to contain material information necessary to the defense,” a trial court may conduct an in camera review; and (2) “[o]nly after the court has conducted the in camera inspection and is satisfied that the records reveal evidence necessary to the defense is the evidence to be supplied to defense counsel”
- stating, in camera review is appropriate "on a showing that the defendant has a good-faith belief, grounded on some demonstrable tact [sic], that there is a reasonable probability that the records are likely to contain material information necessary to the defense"
- stating Stanaway's general assertion that the records were needed to attack an accuser's testimony "falls short of the specific justification necessary to overcome the privilege" and "without a more specific request, defendant is fishing"
- holding that “if the complainant will not waive her statutory privilege and allow the in camera inspection after the defendant’s motion has been granted, suppression of the complainant’s testimony is the appropriate sanction[]”
Written by the judges who cited it.
Later courts went against this
Declined to follow by In Re Investigation of Death of White, 256 Mich. App. 39 (2003)
Because the procedure established in Stanaway resulted from a concern that is not present in this appeal, a criminal defendant's assertion of his constitutional right to a fair trial, we reject the prosecutor's attempt to apply that decision to the facts of the instant case and thereby abrogate the legislatively created privilege.
Distinguished
Distinguished by In re Request for Investigative Subpoena, 256 Mich. App. 39 (2003)
Because the procedure established in Stanaway resulted from a concern that is not present in this appeal, a criminal defendant’s assertion of his constitutional right to a fair trial, we reject the prosecutor’s attempt to apply that decision to the facts of the instant case and thereby abrogate the legislatively created privilege.
The opinion
Riley, J.
(concurring). Although I join Justice Brickley’s discussion and result in part iv, I write separately to express my dissatisfaction with the nonconstitutional harmless-error doctrine in Mich *697 igan. Despite guidance from both our court rules 1 and statute, 2 this Court has yet to fully examine the relevant considerations for nonconstitutional harmless error and certainly has failed to set forth a clear and concise nonconstitutional harmless-error test. 3 Instead, this Court has generally cho *698 sen to rely on the harmless-error statute and court rules for the limited guidance provided therein in making this determination. People v Travis, 443 Mich 668, 686 ; 505 NW2d 563 (1993). From a plain reading of these rules, however, the vague concept of injustice certainly does not provide any meaningful help to appellate courts in reviewing non-constitutional error.
Indeed, the lack of guidance from these sources has led many panels of the Court of Appeals to consider varying considerations, including an assumption that the federal constitutional harmless-error rule applies to nonconstitutional error. 4 See Chapman v California, 386 US 18, 24 ; 87 S Ct 824 ; 17 L Ed 2d 705 (1967) (the prosecution must prove, and the court must determine, beyond a reasonable doubt that there is no "reasonable possibility that the evidence complained of might have contributed to the conviction”). However, this assumption fails to recognize that there are important state considerations relevant to this inquiry, 5 in- *699 eluding the policies implicit in the statute and court rules that have yet to be examined. Indeed, the United States Supreme Court in Chapman, supra, explicitly recognized a state’s interest in this respect:
The application of a state harmless-error rule is, of course, a state question where it involves only errors of state procedure or state law. But the error from which these petitioners suffered was a denial of rights guaranteed [by the federal constitution] .... Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent — expressly created by the Federal Constitution itself — is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule. [Chapman, supra at 21 .]
While I do not attempt to fully explain or adopt a nonconstitutional harmless-error test in this opinion, I write separately to indicate the need for full briefing and argument on this important issue of state law. See People v Anderson (After Remand), 446 Mich 392, 407, n 39 ; 521 NW2d 538 (1994). Considering the frequent use of this doctrine and the many factors currently considered by *700 our courts, 6 a full and decisive explanation by this Court would be in order. However, until this opportunity arises and the parties are properly prepared to argue this issue, I likewise reserve full consideration of this issue. Nevertheless, I agree that this error, the admission of Officer Peters’ hearsay testimony, resulted in a miscarriage of justice and thus cannot be deemed harmless.
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). Emphasis added.]
Moreover, our evidentiary court rule provides a similar harmless-error rule:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context, or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the trial court. [MRE 103. Emphasis added.]
No 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; MSA 28.1096. Emphasis added.]
Although this Court did appear to adopt a harmless-error test in People v Robinson, 386 Mich 551, 562 ; 194 NW2d 709 (1972), it is unclear whether that test applies to nonconstitutional error. However, even if it does, the question remains whether the Court’s discussion of that test was dicta. Indeed, I note that if Robinson did *698 purport to create a new test applicable to nonconstitutional error, the discussion of the relevant authorities was rather brief, given the degree of confusion regarding this issue. Accordingly, I question its continued relevance to nonconstitutional harmless error.
There have been varying tests and considerations applied when analyzing harmless error. See, e.g., Robinson, supra; People v Roberson, 55 Mich App 413 ; 222 NW2d 761 (1974) (distinguishing between constitutional and nonconstitutional error); People v Winans, 187 Mich App 294 ; 466 NW2d 731 (1991) (not indicating any difference in tests and simply applying the two-part Robinson test); People v Fredericks, 125 Mich App 114, 118 ; 335 NW2d 919 (1983) ("Error is not harmless if, in the absence of the error, it is reasonably possible that some juror would have voted to acquit”); People v Norwood, 70 Mich App 53 ; 245 NW2d 170 (1976) (applying the beyond a reasonable doubt standard to an evidentiary error). However, a majority of this Court has never applied the beyond a reasonable doubt standard to a nonconstitutional error. Indeed, when reviewing nonconstitutional error, this Court has simply reviewed the error under the miscarriage of justice standard set forth in the harmless-error statute. Travis, supra at 686 .
Without having this issue fully briefed and argued, I reserve full explanation of these policies until the appropriate case.
See n 4.