In People v Szalma, the Michigan Supreme Court held that the Court of Appeals' decision remanding a case for a new trial would subject a defendant to double jeopardy where the trial court had already determined that the prosecutor failed to present sufficient evidence to convict and granted a directed verdict of acquittal. On appeal, the prosecutor argued, and the Court of Appeals agreed, that the trial court's determination regarding the sufficiency of evidence was based on legal error. Specifically, the trial court, with the agreement of the parties, added the element of "sexual purpose" to the CSC-I charge.

The element is not part of the statute. The Court relied on the holding in People v Nix, upholding the proposition that legal error, like the error by the trial court in this case, precludes retrial in cases like this where there has already been a determination regarding sufficiency of evidence. The Court explained that had the prosecutor not agreed to the erroneous addition of an element of the crime at trial, the Court could review whether Nix was correctly decided. "Our adversarial system of justice precludes the prosecution from harboring error at the trial level and subsequently seeking relief on the basis of that error."

The lesson: Nix the errors in the trial court to Nix the possibility that the appellate court will opine "this Court is left with no other option."