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Court of Appeals: Doctor Testimony Not Required for Section 8 Defense.

Unregistered patients do not need to have a doctor testify at a hearing to determine whether that person is permitted to present an affirmative defense under Michigan’s Medical Marihuana Act (MMA) to a jury. In an unpublished opinion, the Michigan Court of Appeals vacated Mr. Sherwood’s conviction and sentence ordering a new trial on the allegations that he was unlawfully manufacturing marihuana. The primary issue was whether the MMA required unregistered patients to present a doctor at a section 8 hearing. The court said “contrary to the state’s argument, there is nothing in the MMMA that requires a defendant to offer the expert testimony of a physician or any other medical expert in order to satisfy the elements of a Section 8 affirmative defense”. The court continued, a defendant need only produce “some evidence” on all the elements of a Section 8 affirmative defense before the court is required to instruct the jury on the defense.”

The standard articulated by the Court is welcomed by defense attorneys who represent patients and caregivers. Often times, the doctors would refuse to show up for court or take the fifth amendment and choose to remain silent for fear that their own admissions would subject them to criminal prosecution. In fact, I have been in court when a prosecutor warned a doctor prior to his testimony that his statements could incriminate him. The statement by the court reflects what Matt Newburg has said for years about section 8 defenses. The Sherwood court did patients and caregivers another favor by setting forth the threshold necessary to be entitled to a medical marijuana defense at trial. The court said “a defendant need not prove all of the elements of the defense, but rather the evidence submitted by leave open material questions of fact as to each of the elements.” The standard is now clear, if, after the defendant presents his evidence there are facts in which reasonable jurors could differ, the defendant must be permitted to present that defense to a jury.

This case comes on the heels of the Michigan Supreme Court’s Opinion in People v Hartwick and People v Tuttle. However, the Sherwood opinion distinguishes these two recent Supreme Court Opinions. The court of appeals notes the differences between the two factual scenarios and finds the facts sufficiently different from Hartwick thus, permitting the Court of Appeals to find a different result.

You can read the entire opinion by clicking here: People v. Sherwood

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