Evidence must be relevant to be admissible. MRE 402. There are two types of relevance as it relates to admissibility: logical relevance and legal relevance. See Rock v Crocker, 499 Mich 247, 256 (2016).
Logical relevance. MRE 401 and MRE 402 contemplate logical relevance. Rock, 499 Mich at 256. Two separate questions must be answered in determining whether evidence is logically relevant:
“First, [the court] must determine the materiality of the evidence. In other words, . . . whether the evidence was of consequence to the determination of the action. Second, [the court] must determine the probative force of the evidence, or rather, whether the evidence makes a fact of consequence more or less probable than it would be without the evidence.
. . . A fact that is of consequence to the action is a material fact. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.
. . . Probative force is the 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. Further, any tendency is sufficient probative force.” People v Mills, 450 Mich 61, 67-68 (1995) (quotation marks and citations omitted).
Legal relevance. “Even if logically relevant under MRE 401 and MRE 402, evidence may still be excluded under . . . a rule of legal relevance, defined as a rule limiting the use of evidence that is logically relevant,” such as MRE 404.1 Rock, 499 Mich at 256 (quotation marks and citation omitted). “Legal relevance, as a limiting rule, concerns the purpose for which evidence is used.” Id. See Section 2.2(D) for examples of relevant and irrelevant evidence.
B.Relevant Evidence Admissible
Relevant evidence is generally admissible. MRE 402. The Michigan Supreme Court has addressed the issue of admissibility as follows:
“The test of relevancy is designed to determine whether a single piece of evidence is of such significant import that it warrants being considered in a case. The standards for admissibility are designed to permit the introduction of all relevant evidence, not otherwise excluded, on the theory that it is best to have as much useful information as possible in making these types of decisions[.]” People v Hampton, 407 Mich 354, 367 (1979).
C.Relevant Evidence Excluded (Balancing Test)
“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” MRE 403. For example, subject to any exceptions listed in the specific rule, MRE 404 and MRE 407–MRE 411 exclude from admission certain categories of evidence that may be otherwise relevant to the case. These include character evidence, subsequent remedial measures, settlement negotiations, offers to pay medical expenses, plea discussions, and insurance coverage. Although these matters may be relevant, they are generally excluded by MRE 403 because they tend to be more prejudicial than probative as a matter of law. These specific rules of evidence are discussed throughout this chapter.
“Rule 403 determinations are best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony[.]” People v VanderVliet, 444 Mich 52, 81 (1993). “Assessing probative value against prejudicial effect requires a balancing of several factors, including the time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects.” People v Blackston, 481 Mich 451, 462 (2008).
The Michigan Court of Appeals addressed the issue of “unfair prejudice”:
“‘Unfair prejudice’ does not mean ‘damaging.’ Bradbury v Ford Motor Co, 123 Mich App 179, 185 (1983). Any relevant testimony will be damaging to some extent. We believe that the notion of ‘unfair prejudice’ encompasses two concepts. First, the idea of prejudice denotes a situation in which there exists a danger that marginally probative evidence will be given undue or pre-emptive weight by the jury. In other words, where a probability exists that evidence which is minimally damaging in logic will be weighed by the jurors substantially out of proportion to its logically damaging effect, a situation arises in which the danger of ‘prejudice’ exists. Second, the idea of unfairness embodies the further proposition that it would be inequitable to allow the proponent of the evidence to use it. Where a substantial danger of prejudice exists from the admission of particular evidence, unfairness will usually, but not invariably, exist. Unfairness might not exist where, for instance, the critical evidence supporting a party’s position on a key issue raises the danger of prejudice within the meaning of MRE 403 as we have defined this term but the proponent of this evidence has no less prejudicial means by which the substance of this evidence can be admitted.” Sclafani v Peter S Cusimano Inc, 130 Mich App 728, 735-736 (1983).
“All evidence offered by the parties is ‘prejudicial’ to some extent, but the fear of prejudice does not generally render the evidence inadmissible. It is only when the probative value is substantially outweighed by the danger of unfair prejudice that evidence is excluded.” People v Mills, 450 Mich 61, 75 (1995).
Evidence of the complaining witness’s unrelated death. “The explanation for why a witness is unavailable to testify may be probative of the witness’s credibility.” People v Horton, 341 Mich App 397, 405 (2022). “[T]he knowledge that the complaining witness did not appear because she [was] dead would assist the jury in assessing her credibility.” Id. at 406. “If the jury were aware that the complaining witness died in an unrelated accident, then it would know that her absence was caused by circumstances that have no bearing on her credibility, and this would negate the risk that the jury might erroneously allow her absence to impact its assessment of her credibility.” Id. at 406. The Court also held that “an explanation as to why the complaining witness [was] unavailable to testify [was] also relevant because Snapchat videos in which defendant threatened to kill the witness [were] deemed by the trial court to be admissible evidence at trial” and her “unexplained absence” “at the trial could [have] wrongly lead the jury to infer that her absence [was] attributable to defendant, i.e., that he killed her.” Id. at 406-407.
Evidence addressed material issue of self defense. Evidence that the victims’ boyfriend told her to “shoot, shoot,” was “relevant because it addressed a material issue–the issue of self-defense.” People v Rajput, 505 Mich 7, 14 (2020). The Court of Appeals “made an improper factual finding that defendant and [another individual] were initial aggressors and could have fled,” and “it also erred by finding [the] testimony irrelevant for this reason.” Id. “Regardless of the merits of this defense, whether defendant and [the other individual] were the initial aggressors or could have fled were issues for the jury to decide because defendant presented sufficient evidence to satisfy his burden of proof on self-defense.” Id. at 12 (quotation marks and citation omitted).
Evidence was probative of who impregnated complainant. Evidence of the complainant’s pregnancy and abortion was relevant during defendant’s criminal sexual conduct trial because the evidence made it more probable that sexual penetration had occurred. People v Sharpe, 502 Mich 313, 332-333 (2018). Evidence of the complainant’s lack of sexual partners was also relevant because it was probative of the identity of the person who impregnated the complainant.2 Id. (further holding that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice).
Evidence of pregnancy. Photographs showing a dead fetus were “highly relevant” to the elements of assaulting a pregnant woman causing stillbirth or miscarriage, MCL 750.90a(b), and “the prosecution was entitled to offer all relevant evidence establishing that [the victim] was pregnant and that defendant’s actions resulted in the death of [the victim’s] fetus.” People v Boshell, 337 Mich App 322, 331 (2021).
Evidence of text messages. Text messages between the defendant and the victim were “highly relevant to show the past relationship between the defendant and the victim” in defendant’s “first-degree, premeditated murder case[.]” Boshell, 337 Mich App at 333 (2021).
Evidence of motive. “In a murder case, proof of motive is always relevant, even if not always necessary.” People v Smith, 336 Mich App 79, 113 (2021) (concluding that although “gang-related evidence cannot be admitted to show that a person acted in conformance with gang membership,” such evidence can “be admissible if it is used for a nonconformity purpose”).3
Evidence of consciousness of guilt. Evidence that defendant presented a badge and inquired of a police officer who was conducting a drunk driving investigation whether “anything could be done” was “relevant to proving his consciousness of guilt.” People v Parrott, 335 Mich App 648, 680 (2021). “[A] jury could infer from defendant’s conduct that defendant knew he was unlawfully operating a vehicle while under the influence. Defendant’s conduct and statements could also support an argument that he was attempting to curry favor with law enforcement and influence the investigation’s outcome to avoid arrest.” Id.
Evidence of other murders relevant to charge of conspiracy. Evidence of other murders “was relevant to the charge of conspiracy in [defendant’s] case” where “[t]he prosecutor’s theory of the case was that [defendant] conspired with [his co-defendant] and others to perform hits on behalf of” other individuals. People v Caddell, 332 Mich App 27, 69, 70 (2020). Although defendant was not charged with the additional murders, “he was charged with conspiracy to commit murder, which included a conspiracy related to the [other] murders[.]” Id. (“although he was incarcerated at the time of the murders, the jury could still conclude that [defendant] conspired and planned the murders from within jail”).
Lack of financial motive. Where “financial motive may be relevant evidence of [the charged crime], it logically follows that a lack of financial motive is also relevant to whether a defendant committed [the charged crime].” People v Burger, 331 Mich App 504, 515 (2020) (the trial court erred in excluding testimony from defendant’s landlord in his arson trial where the “testimony was offered to show that defendant was current on his rent and to thus further his theory that he had no financial motive to commit an arson”) (citation omitted).
Evidence made a fact of consequence more probable than without it. Defendant’s statement “that he sexually abused his relatives while he was a juvenile,” which was contained in an affidavit that was prepared in support of a previous motion to withdraw his plea, was relevant evidence in his criminal sexual conduct trial “because it [had] a tendency to make a fact of consequence–[defendant’s] guilt and the children’s credibility–more probable than it would be without the evidence.” People v Cowhy, 330 Mich App 452, 467 (2019) (the court further determined that the affidavit was not otherwise inadmissible under MRE 4104).
Evidence reflected defendant’s emotional state. The victim’s testimony that the defendant “said Islamic prayers and ‘Muslim things’ in Arabic,” and that the victim “‘hated the fact that [defendant] felt he was a bad person’ and ‘the fact that [Muslims had] made him [that] way,” and that he “had become more emotional and upset as they spoke about personal matters” “was relevant to demonstrate [the defendant’s] state of mind as observed by [the victim] during the time that he unlawfully confined her.” People v Urban, 321 Mich App 198, 209-210 (2017) (second alteration in original), vacated in part on other grounds 504 Mich 950 (2019).5 “The prosecution’s theory of the case was that defendant committed the crimes because he had become upset at recent losses in his life, and [the victim’s] testimony reflected defendant’s emotional turmoil.” Urban, 321 Mich App at 210 (further holding that the testimony was not unfairly prejudicial because “evidence that defendant engaged in prayer and religious practices and was severely emotionally distressed during the commission of the crime was unlikely to inflame the jury to the extent that it could not evaluate the case based on the evidence presented”).
Evidence about the state of the defendant’s home – that it was a mess, smelled bad, had broken doors, holes in some walls, and had things painted on the walls – “was . . . relevant to the prosecution’s theory that defendant’s deteriorating emotional state, as evidenced by the neglect and defacement of his home, contributed to his commission of the charged crimes.” Urban, 321 Mich App at 213-214.
Evidence regarding concurrent proceeding was inextricably linked to current case. Evidence from a concurrent proceeding in the probate court involving matters related to trust assets was properly admitted during the proceeding regarding the estate where the evidence from the trust matter was “inextricably linked” to the handling of the estate; specifically, the probate court properly admitted a letter ordering the payment of expenses from the trust where “the record demonstrated that income from the Rhea Trust flows directly to [the] personal estate.” In re Brody Conservatorship, 321 Mich App 332, 349 (2017).
Evidence affected who jury believed and reflected defendant’s state of mind. During the defendant’s murder trial, where the defendant claimed she killed her boyfriend in self-defense, testimony from the victim’s biological daughter that the defendant attempted to prevent the victim’s biological daughter from having custody of her half sister the day after the victim’s death was relevant because it provided a “conflicting portrayal of defendant after the victim’s death,” and “had a tendency to affect whether the jury believed defendant’s daughters’ testimony and reflected defendant’s state of mind shortly after the victim was killed[.]” People v Dixon-Bey, 321 Mich App 490, 513-515 (2017) (the testimony was not unfairly prejudicial because it was “a brief portion of one witness’s testimony during six days of testimony over an eight-day trial,” there was no evidence to support it portrayed the defendant “as an evil person” as she claimed, and “any prejudicial effect from the fact that the jury might have viewed defendant negatively because of how she handled” the custody dispute was “minimal at best when compared to the probative value that this testimony had on several witnesses’ biases and defendant’s mindset shortly after the victim was killed”; the defendant did not make any argument regarding whether the testimony constituted improper character evidence under MRE 404).
Evidence showed defendant was in close proximity to crime. Testimony that an individual matching the defendant’s description was at a gas station 25 minutes before an armed robbery occurred at a Halo Burger located seven miles away from the gas station was relevant evidence during the defendant’s trial for the Halo burger armed robbery. People v Henry, 315 Mich App 130, 145-146 (2016). Testimony established that the witness cooperated in finding an image of the individual matching the defendant’s description on the gas station surveillance video, and this image was later shown to two Halo Burger employees, who identified the robber as the person depicted in the surveillance video image. Id. at 146. The Court of Appeals held that “the evidence was highly relevant” because it “placed defendant in the vicinity of the Halo Burger at the time of the robbery,” and the defendant’s presence at the gas station “resulted in surveillance images that allowed the Halo Burger victims . . . to identify the robber.” Id. (noting further that the probative value of the evidence was not outweighed by the danger of unfair prejudice).
Committee Tip:
When making a determination or inquiring of counsel whether evidence is relevant, consider “then what.” For example, is the evidence otherwise excluded by another rule of evidence such as hearsay?
Evidence of dismissal of a civil action not relevant in criminal trial. The trial court did not abuse its discretion in excluding evidence of the dismissal of a civil lawsuit in defendants’ criminal trial where they were charged with the general intent crime of conducting an unlicensed gambling operation.6 People v Zitka, 335 Mich App 324, 335-336 (2021) (“[d]efendants maintain[ed] that this evidence was relevant to show that they believed they were operating their business in compliance with the law”). “[W]hile evidence concerning whether defendants’ operation met the statutory requirements for a gambling operation involving ‘gambling games’ was relevant, evidence whether defendants specifically intended their operation to be an unlicensed gambling operation or specifically intended to violate MCL 432.218(1)(a) was not relevant.” Zitka, 335 Mich App at 338. Defendants were also charged with the specific intent crime of unlawful use of a computer to commit a crime.7 “The specific intent necessary to commit this offense is the intent to use a computer to conduct a gambling operation without a license”; “the prosecution was not required to prove that defendants used the computer with the specific intent or knowledge that the gambling operation they were conducting was illegal.” Id. at 340. “This would effectively convert the underlying offense into a specific-intent crime”; thus, “the settlement in [the] civil lawsuit would be no more relevant to determining defendants’ guilt or innocence for the crime of unlawful use of a computer than for the underlying crime of conducting the gambling operation.” Id.
Evidence did not have tendency to make consequential fact more or less probable than without it. “In the absence of evidence connecting [a] fracture to defendant,” expert testimony that the victim may have suffered a fracture prior to the events at issue in defendant’s trial for first-degree child abuse was irrelevant because “it did not have 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.”8 People v McFarlane, 325 Mich App 507, 530 (2018) (quotation marks omitted).
Evidence did not relate to crime. The trial court erred by permitting testimony from a witness who was in a romantic relationship with the defendant that the defendant’s mother asked her to lie while testifying about whether the witness gave the defendant permission to use her car on the day he was arrested. People v Henry, 315 Mich App 130, 146-147 (2016). The evidence was irrelevant, and thus inadmissible, because the defendant “was not on trial for stealing the vehicle or unlawfully driving it away,” and it was not disputed that he was arrested in the car. Id. at 147. Moreover, the Court rejected the prosecution’s argument that the evidence was relevant to the witness’s credibility because it showed her “motivation not to lie.” Id. The Court acknowledged that if “a witness is offering relevant testimony, whether that witness is truthfully and accurately testifying is itself relevant because it affects the probability of the existence of a consequential fact,” but concluded that it was “unclear how the [testimony in this case] touched on anything other than defendant’s mother’s potential wrongdoing.” Id. at 147-148 (quotation marks and citation omitted).
3.Balancing Probative Value and Unfair Prejudice
Evidence of a complaining witness’s death in a car accident may be probative of the witness’s credibility to explain why she was unavailable to testify. People v Horton, 341 Mich App 397, 405-407 (2022). In Horton, the Court rejected the defendant’s argument that evidence of the complaining witness’s death should be excluded under MRE 403, stating that “the fact that her death was caused by a car accident does not have [any] tendency to unfairly bolster her credibility or generate any anger toward defendant,” and noting that “evidence that the complaining witness’s death was not caused by defendant would eliminate the risk that the jury could infer that defendant played a role in her death, in light of the evidence that defendant threatened to kill her in Snapchat videos.” Id. at 409. The Court was “unconvinced that the jury’s sympathy would motivate it to find defendant guilty” because “the witness’s death was wholly unconnected to the merits of [the] case.” Id. at 409. Although the Court conceded that “experience and intuition suggest” the defendant’s concerns that “the complaining witness’s credibility would be unfairly bolstered because people ‘valorize’ the dead,” it concluded that the “trial court was presented with a close call, and the trial court’s decision on a close call cannot be an abuse of discretion.” Id. at 409, 410.
The Court also rejected the defendant’s argument that video from the preliminary examination of the complaining witness’s testimony should have been excluded under MRE 403 because it briefly showed the defendant wearing jail garb. Horton, 341 Mich App at 402, 403. In “undertaking the balancing test articulated in MRE 403,” the Horton Court “assess[ed] the value gained from seeing the complaining witness rather than just hearing her, and weigh[ed] this against the risk of unfair prejudice stemming from defendant’s clothing.” Id. at 404. The Court found that “[t]he probative value added by playing the video of the testimony instead of playing the audio or reading the transcripts [was] substantial.” Id. at 404. “Seeing the witness is an important component of assessing the witness’s credibility because it enables jurors to observe factors such as demeanor and body language, and the jurors can obtain a better understanding of the witness’s mood and nonverbal cues. Anything that can assist the jury in assessing the credibility of the complaining witness in a credibility contest has significant probative value.” Id. at 405. The Horton Court held that the “risk of unfair prejudice posed by the video, however, [was] less significant” because “defendant [was] dressed in civilian clothes” “[f]or the entirety of the trial.” Id. at 405.
“The mere fact that [a black-and-white photograph displayed] a fetus [was] not unfairly prejudicial to defendant because . . . that [was] what [made] the photo relevant and probative” in defendant’s trial for assault causing stillbirth or miscarriage. People v Boshell, 337 Mich App 322, 332 (2021). The Court noted that “[w]hile a fetus [was] identifiable, the black-and-white photo lack[ed] any ‘gruesomeness’ factor,” and “[t]he copy of the photo that defense counsel provided . . . look[ed] more like an illustration from a textbook or dictionary, or a copy of an ultrasound photo.” Id (concluding that introduction of the photo did not inject “any risk of unfair prejudice” where it lacked color, and thus lacked details “such as blood or other ‘wetness’”).
The trial court did not reach “an unprincipled decision in determining that any unfair prejudice did not substantially outweigh the probative value” of texts between the defendant and victim that “contained many crude sexual terms and . . . exhibited a lack of respect toward” the victim because the texts were “highly relevant to show the past relationship between the defendant and the victim.” Boshell, 337 Mich App at 333-334 (“while there arguably was some potential for unfair prejudice that could have been injected into the proceedings through these text messages, it did not substantially outweigh the messages’ probative value”).
Where four Facebook posts constituting gang-related evidence were relevant to establish motive and absence of mistake, their admission did not violate MRE 403 because the posts “were not particularly shocking or gratuitous” and while one post contained “some vile homophobic slurs,” the slurs were not gang-related and were made by a rival gang member not the defendant. People v Smith, 336 Mich App 79, 114 (2021).9
Evidence that defendant presented a badge and inquired of a police officer who was conducting a drunk driving investigation whether “anything could be done” was “admissible under MRE 403.” People v Parrott, 335 Mich App 648, 680-681 (2021). “Although this evidence could potentially prejudice defendant, . . . the probative value of defendant’s alleged statement and display of his badge [was] not substantially outweighed by unfair prejudice because it [was] highly probative in that it reflect[ed] his consciousness of guilt.” Id. at 681-682.
Evidence contained in an affidavit, drafted by defendant in support of a previous motion to withdraw his plea, “that he sexually abused his relatives while he was a juvenile, . . . while damaging to [defendant’s] case, [was] not unfairly prejudicial” because “it [bore] directly on his guilt and on the credibility of the [victims].” People v Cowhy, 330 Mich App 452, 467, 468 (2019) (the court further determined that the affidavit was not otherwise inadmissible under MRE 41010).
“[T]he risk of unfair prejudice did not substantially outweigh the probative force of the evidence” where the trial court admitted evidence of the defendant’s participation in “a serious and entirely separate crime.” People v Murphy (On Remand), 282 Mich App 571, 583 (2009). In Murphy, the defendant robbed the victim at gunpoint while stopped at a traffic light. Id. at 573-574. The trial court properly admitted evidence that arose from the defendant’s subsequent participation in a separate carjacking. Id. at 574-575. The carjacking evidence did not violate MRE 403 because (1) it connected the defendant to the vehicle and weapon used to rob the victim in the instant case, (2) the prosecutor never argued to the jury that the defendant’s participation in the subsequent carjacking established his guilt in the armed robbery, and (3) the judge issued a cautionary instruction to the jury limiting the potential of undue prejudice. Murphy (On Remand), 282 Mich App at 583. Upon request, the court “may provide a limiting instruction under MRE 105.” People v Knox, 469 Mich 502, 509 (2004); see also People v VanderVliet, 444 Mich 52, 75 (1993). “If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.” MRE 105.
“[I]f an interrogator’s out-of-court statement is offered to provide context to a defendant’s statement that is not ‘in issue,’ it follows that both the interrogator’s and the defendant’s statements are immaterial and, thus, not relevant.” People v Musser, 494 Mich 337, 355 (2013). See also People v Tomasik, 498 Mich 953, 953 (2015) (holding that the trial court erred in “admitting the recording of the defendants interrogation” because “nothing of any relevance was said during the interrogation . . . and thus was not admissible evidence”). “Likewise, the interrogator’s out-of-court statements or questions have no probative value if those statements or questions, when considered in relationship to a defendant’s statements, do not actually provide context to the defendant’s statements. Musser, 494 Mich at 355-356. “Accordingly, an interrogator’s out-of-court statements must be redacted if that can be done without harming the probative value of a defendant’s statements.” Id. at 356.
However, just because an interrogator’s statement “has some relevance to its proffered purpose does not necessarily mean that the statement may be presented to the jury”; it must satisfy the balancing test under MRE 403. Musser, 494 Mich at 356-357. That is, “a trial court must . . . evaluate the probative value of the out-of-court statements in providing context to a defendant’s statements and the resulting prejudice to a defendant before the interrogator’s out-of-court statements are presented to the jury.” Id. When employing this test, the court “should be particularly mindful that when a statement is not being offered for the truth of the matter asserted and would otherwise be inadmissible if a witness testified to the same at trial, there is a ‘danger that the jury might have difficulty limiting its consideration of the material to [its] proper purpose[.]’” Id. at 357, quoting Stachowiak v Subczynski, 411 Mich 459, 465 (1981) (first alteration in original).
In addition, an investigating officer’s statement “‘may be given undue weight by the jury’ where the determination of a defendant’s guilt or innocence hinges on who the jury determines is more credible–the complainant or the defendant,” and “courts must be mindful of the problems inherent in presenting the statements to the jury[.]” Musser, 494 Mich at 358. “In a trial in which the evidence essentially presents a ‘one-on-one’ credibility contest between the complainant and the defendant, the prosecutor cannot improperly introduce statements from the investigating detective that vouch for the veracity of the complainant and indicate that the detective believes the defendant to be guilty.” Tomasik, 498 Mich at 953.
Finally, even if the statement is relevant for purposes of providing context for a defendant’s statements, the statement(s) must be restricted to their proper scope–providing context to the defendant’s statement. Musser, 494 Mich at 358.
Committee Tip:
An objection may appear to involve hearsay, but can end up being about relevance, as demonstrated in Musser, 494 Mich at 350-363.