Litigation/Jul 29, 2014

NEW MICHIGAN SUPREME COURT DECISION REVERSES “BENDER” RULE

Most lay persons know what it means to be Mirandized and are familiar with the well known refrain: “You have the right to remain silent. Anything you say or do can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you..” In People v Bender, 453 Mich 594 (1996), the Michigan Supreme Court ruled that police officers who have a suspect in custody must inform the suspect that an attorney has attempted to contact him or her. If the police officers fail to promptly inform the suspect, any admissions made by the suspect including voluntary statements made with knowledge of the Miranda rights are inadmissible.

In People v Tanner, Michigan Supreme Court Docket No. 146211, the Michigan Supreme Court revisited the Bender rule and reversed that decision by a lengthy written opinion dated June 23, 2014. Justice Markman and the entire bench reviewed the underlying facts of a rather heinous crime involving both murder and mutilation of a dead body.

In order to overturn Bender the Supreme Court was forced to grapple with the principles of stare decisis which generally require subsequent courts to follow legal precedents established by prior published court decisions. Following stare decisis results in “evenhanded, predictable development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

To overturn precedent, the Tanner court agreed that the case to be overturned must have been wrongly decided, and that “less injury will result from overruling the case than from following it.” Both of these factors appear to be subjective. The justices who decided Bender obviously thought Bender was correctly decided. The court in Tanner concluded that Bender had not become “fundamental to everyone’s expectations” so there was little mischief in overturning Bender.

Whether or not Bender or Tanner were correctly decided leaves constitutional scholars and commentators ample fodder for discussion. What rings out is that criminals now have fewer rights than they did prior to Tanner and that courts from time to time feel compelled to depart from prior decisions when faced with striking factual situations.

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