Why Evidentiary Hearings are Rare in Michigan and How to Force One Under MCR 6.508

A Michigan evidentiary hearing in a post-conviction case is uncommon by design. Michigan rules and case law funnel most collateral claims into a paper-based screening process that prioritizes finality and judicial efficiency. But “rare” is not the same as “impossible.”

A defendant can carefully structure allegations that raise genuine factual disputes. And they can back these allegations with sworn affidavits, corroboration, and a solid legal map. In such a scenario, trial courts have no choice but to hold a hearing under Michigan Court Rules (MCR) 6.508(C).

Mark Linton is a respected Michigan appeals attorney known by Michigan judges for his meticulous appellate work. He has built his appellate practice on the exact procedural pressure points that force courts to move a case off paper into a courtroom. 

And here, he explains why hearings are usually an exception. He also explains the types of claims that often need live testimony. Most importantly, he shares the precise pleading and evidentiary strategy.  This strategy makes a court need a Ginther/Ginther-style evidentiary hearing under Michigan rules. 

Why Michigan Courts Decide Most Evidentiary Hearing Requests on Paper

Two structural realities explain the rarity of evidentiary hearings: MCR 6.508’s procedural structure and the principle of finality combined with limited judicial resources. MCR 6.508 has a clear process. The rule says the defendant must file a motion and supporting documents.

How MCR 6.508 Channels Most Post-Conviction Claims Into Paper Review

The court may resolve the motion on the papers unless “an evidentiary hearing is required.” MCR 6.508 authorizes judges to resolve claims on the papers. An evidentiary hearing is required only when factual disputes cannot be resolved without live testimony.

The Michigan Judicial Institute’s Motion for Relief from Judgment checklist offers a clear summary. Courts should schedule hearings only when required. And the checklist outlines the procedural steps that favor document review first.

Finality, Judicial Efficiency, and Limited Resources in Michigan Post-Conviction Review

As for the concept of finality and limited resources, trial courts and the appellate system have repeatedly recognized this. Collateral review is limited. And MCR 6.508 was written to prevent endless re-litigation. The rule also allows Michigan courts to concentrate scarce judicial resources on claims that genuinely require fact-finding.

Cases like the People v. Brown (1992) and related Court of Appeals decisions illustrate this well. Procedural bars and the “good cause/actual prejudice” framework exist to police repeat or frivolous motions. An evidentiary hearing is reserved for situations where material facts outside the existing record must be developed.

The Kinds of Claims that Actually Force Live Proof

Not every post-conviction theory is equally likely to force a hearing. There are several claims that most reliably require live evidence. And these include:

Newly Discovered Evidence of Actual Innocence

This claim is governed by the four-part Cress test from the People v. Cress (2003) case. And all four parts of the test must be passed. Firstly, the evidence has to be newly discovered evidence, not just newly available. Secondly, the evidence shouldn't be merely cumulative. 

Thirdly, you must prove that the evidence couldn't have been discovered earlier through reasonable diligence. Fourthly, there should be a high probability that the evidence would produce a different result at retrial. Courts require live testimony to resolve credibility and materiality when affidavits or forensic results contradict trial testimony.

Ineffective Assistance of Counsel (When the Claim Depends on Disputed Facts)

Say your claim is your trial lawyer's failure to investigate, to interview a witness, or to present exculpatory evidence. Such claims hinge on fact questions about what the counsel did, what they were told, and what witnesses would have said. This is classic Ginther hearing territory.

The Supreme Court has long recognized that ineffective assistance, whether trial or appellate, can satisfy the good cause element of MCR 6.508(D)(3). And therefore, this claim can justify further fact-finding. 

New Forensic or Scientific Testing (That Undermines Prosecution Evidence)

Modern testing can call the prosecution's physical evidence into question. In such cases, courts often need live expert testimony to understand methodology, chain of custody, and the weight of new results. 

Claims Requiring Credibility Determinations 

This works for claims that are usually unavailable from the record. Recantations, witness statements that contradict prior testimony, or newly discovered documentary proof that directly conflicts with trial exhibits often demand a hearing.

These categories often overlap. However, the common thread is that they present material facts outside (or which go directly against) the trial record. And these can't be reliably weighed on paper.

Key Michigan Precedent Governing Evidentiary Hearings

A practical Michigan appellate advocate frames a motion around controlling authority and cites foundational cases that define when evidentiary hearings are required. Several Michigan Supreme Court and Court of Appeals decisions establish the legal standards trial courts must apply when deciding whether to hold a post-conviction evidentiary hearing.

Newly Discovered Evidence Under People v. Cress

People v. Cress sets forth the four-part test governing newly discovered evidence claims. The decision explains how courts should evaluate whether new facts would probably produce a different result on retrial. Cress is most relevant where new testimony, forensic results, or documentary evidence directly undercuts an element of the prosecution’s case or the credibility of a key witness.

Ineffective Assistance Claims and Ginther Evidentiary Hearings

People v. Ginther (1973) is the origin of the post-conviction evidentiary hearing for ineffective assistance of counsel claims. Ginther applies when counsel’s performance is disputed and the existing record is inadequate to resolve the issue. In such circumstances, the trial court must inquire and, where warranted, conduct an evidentiary hearing at which witnesses testify under oath.

Appellate Counsel Errors as Cause Under MCR 6.508

People v. Reed (1995) establishes that ineffective assistance of appellate counsel may constitute cause under MCR 6.508. Reed articulates the performance-and-prejudice framework applicable to appellate-counsel claims and draws on Strickland principles. This authority is most useful where the alleged error stems from what appellate counsel failed to raise or argue.

Failure to Raise Claims Earlier and the Role of Kimble

People v. Kimble (2004) reinforces that ineffective assistance may explain why a claim was not raised earlier and can justify further consideration or fact-finding under MCR 6.508. Kimble is particularly relevant where procedural default is asserted and the defendant must account for the omission.

Trial Court Duties When Affidavits Create Factual Disputes

Recent Court of Appeals decisions and Michigan Judicial Institute benchbook guidance emphasize the duties trial courts have when confronted with affidavits that create factual disputes. Courts are instructed to explain the basis for denying an evidentiary hearing and to address whether the affidavits fail to establish a material factual issue. This guidance is reflected in contemporary COA opinions addressing Ginther hearings and post-conviction review.

A Tactical Checklist for Pleading to Force the Hearing

Lead with the rule and statutory hooks

Start by citing MCR 6.500 to MCR 6.508. If needed, also mention Michigan Compiled Laws (MCL) 770.1. This law deals with motions for a new trial. This helps frame the relief as squarely within the court's remedial powers as possible. And remember to tie each claim to the exact subsection you rely upon.

Present sworn, admissible evidence at the outset

Attach affidavits from newly discovered witnesses, experts (including curriculum vitae and methodology), and the defendant where appropriate. Affidavits should be specific, based on firsthand knowledge, and describe what the witness would testify to at an evidentiary hearing.

Explain why credibility cannot be resolved on the existing record

Identify how the affidavits contradict or supplement the trial record and explain why credibility determinations—such as demeanor, memory, or motive, require live testimony.

Document diligence and timing

For newly discovered evidence claims, detail the efforts made to locate the evidence earlier and explain why discovery was not possible through reasonable diligence.

Provide corroboration and forensic anchors

Supporting documentation such as metadata, lab reports, medical records, or contemporaneous notes strengthens the need for live testimony.

Request a Ginther hearing when alleging ineffective assistance

When counsel’s performance is challenged, expressly request a Ginther hearing, identify proposed witnesses, and cite Ginther, Reed, and Kimble in support.

Preserve the record if a hearing is denied

Request explicit findings explaining why the affidavits do not create a material factual dispute. Boilerplate denials are often inadequate for appellate review.

Doing the things on the checklist ensures you convert a discretionary denial into a reviewable decision. And it often turns into a remand for an evidentiary hearing. 

Most post-conviction claims die silently on paper. And an evidentiary hearing breaks that silence. If your case needs sworn live testimony, not paper screening, contact Mark Linton today to force that moment.