In Michigan, a person who stands trial for a criminal charge is entitled to be judged based on the facts of the crime, not the quality of his or her character. For example, the prosecuting attorney who is pressing assault charges against someone who instigated a bar fight is generally not allowed to introduce evidence that the defendant was convicted of assault crimes in the past. The danger of the jury inferring that a defendant who has assaulted before must have assaulted again are simply too great. As a general proposition, the defendant’s past stays out.
However, there are circumstances when prior bad acts and convictions can be admitted into a jury trial. The prosecutor is well aware of these exceptions and may serve as traps for the unwary defendant (or the criminal defense lawyer that did not properly prepare for it). Anyone facing a criminal charge in Michigan should know when his or her prior record can come into court and devastate their case:
THE 404(B) EXCEPTION
MRE 404(b)(1) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.”
The prosecutor can introduce prior bad acts and convictions into trial (upon sufficient notice to the defendant), provided that the prior bad act or conviction is being introduced for some purpose other than the defendant acting in conformity with a character trait. For example, the prosecutor in a bank robbery case may introduce evidence of other bank robberies (whether charged or uncharged) to show that the defendant had a common plan or modus operandi when he robs banks, leaves the same “calling card” at every robbed bank, or undertaking the robberies for the same reason every time. Nevertheless, there is still a danger that a jury will not consider some other purpose and conclude from the prior conviction that the defendant was acting in conformity with a past bad act. The prosecutor may claim a different purpose, but the introduction of the 404(b) evidence is just a pretext for character evidence.
In People v. VanderVliet, 444 Mich 52, 508 NW2d 114 (1993), the Michigan Supreme Court articulated a four-prong test for trial courts to consider whether “other-acts” evidence should come in:
- First, that the evidence be offered for a proper purpose under MRE 404(b).
- Second, that it be relevant to proving a fact of the case.
- Third, that the probative value of the evidence is not substantially outweighed by unfair prejudice.
- Fourth, that the trial court may, upon request, provide a limiting instruction to the jury. The judge may direct that the prior conviction may only be considered for a particular purpose, but not for the general proposition that defendant was acting in conformity to a past act.
In People v. Knox, 469 Mich 502, 674 NW2d 366 (2004), to prove that the defendant had physically abused and murdered his infant son, the prosecution introduced evidence that the defendant had become angry with the child’s mother in the past, and had physically abused her. The Michigan Supreme Court considered whether the prior violent act and the charged violent offense were “sufficiently similar” to render the prior act relevant under MRE 404(b). They ultimately found the prior act to be inadmissible. The majority noted that the prior act of violence and the charged offense were distinct in nature, emphasizing that the defendant’s prior manifestations of anger towards the mother bore no resemblance to the acts determined to have caused the death of the child. The prior conviction was irrelevant to the prior case at hand and, if admitted, would result in unfair prejudice to the defendant because the jury would likely judge him based on his past deeds. Therefore, it was properly excluded.
“The prosecution in a criminal case shall provide written notice at least 14 days in advance of trial, or orally on the record later if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence.” MRE 404(b)(2).
DEFENDANT PUTS HIS CHARACTER AT ISSUE IN TRIAL
Even if a prior criminal act is not otherwise admissible by the prosecutor under MRE 404(b), the defendant can “open the door” for the evidence to come in if he or she chooses to take the stand. If the defendant testifies that he or she is a peaceful person and has never threatened or assaulted anyone, the prosecutor is then permitted to introduce evidence of prior convictions or bad acts that contradict the defendant’s testimony (e.g. a prior assaultive conviction).
MRE 404(a)(1) states “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except [e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.”
In homicide cases where self-defense is an issue, the accused can offer evidence of a trait of character for aggression of the alleged victim of the crime. However, this opens up the door for the prosecutor to introduce evidence “to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor.” MRE 404(a)(2). This can include prior bad acts and convictions.
IMPEACHING DEFENDANT AS A WITNESS
Even if the defendant who testifies in his defense does NOT put his character at issue, certain prior convictions may still be introduced against him. MRE 609(a) states that, “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and:”
- “(1) the crime contained an element of dishonesty or false statement, or”
- “(2) the crime contained an element of theft, and”
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- “(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and”
- “(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.”
However, the prosecutor cannot introduce the conviction “if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.” MRE 609(c). This does not apply if the conviction was the subject of a “pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or… based on a finding of innocence.” MRE 609(d). Generally, juvenile adjudications are not admissible against the accused in adult criminal court, but may be admissible against a juvenile in a delinquency proceeding in the family court. MRE 609(e).
For the purposes of determining “probative value”, the court shall consider only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity. MRE 609(b). “If a determination of prejudicial effect is required, the court shall consider only the conviction’s similarity to the charged offense and the possible effects on the decisional process if admitting the evidence causes the defendant to elect not to testify.”
STATUTORY EXCEPTIONS FOR SEXUAL ASSAULT CASES AND DOMESTIC VIOLENCE
“[I]n in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault, evidence of the defendant’s commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant…”. MCL 768.27b(1). However, “[e]vidence of an act occurring more than 10 years before the charged offense is inadmissible under this section unless the court determines that 1 or more of the following apply:”
- “The act was a sexual assault that was reported to law enforcement within 5 years of the date of the sexual assault.” MCL 768.27b(4)(a).
- “The act was a sexual assault and a sexual assault evidence kit was collected.” MCL 768.27b(4)(b).
- “The act was a sexual assault and the testing of evidence connected to the assault resulted in a DNA identification profile that is associated with the defendant.” MCL 768.27b(4)(c).
- “Admitting the evidence is in the interest of justice.” MCL 768.27b(4)(d).
“If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown.” MCL 768.27b(2).
WHAT CAN THE DEFENDANT DO TO KEEP PRIOR CONVICTIONS OUT?
A person accused of a crime does not have to wait for the prosecutor to ambush at trial if he or she is aware of a prior conviction that can be used. The defense attorney can file a motion in limine with the court ahead of trial asking that the prior conviction be excluded from the jury’s consideration. Even if a prior crime or bad act could be introduced under MRE 404(b), there may be legitimate reasons why the court would bar it from trial:
- EVIDENCE NOT RELEVANT: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. For example, introducing evidence that the defendant was convicted of a prior racial intimidation crime is not relevant in a trial where the defendant is accused of assaulting someone in the same race.
- EVIDENCE IS UNFAIRLY PREJUDICIAL: All evidence introduced by the prosecutor is prejudicial to the defendant to some extent, but to be excludible it must rise to the level of being unfair. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
Your criminal defense lawyer should be able to anticipate the evidence that will be used against you at trial and plan accordingly ahead of time. If your lawyer is not asking you about your prior record or not talking about pretrial motions that can filed ahead of trial, then you may have the wrong advocate in your corner. If you are charged with any crime and need skilled legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
