Some out-of-court statements are not hearsay. MRE 801(d). Nonhearsay statements include prior statements of a testifying witness and an opposing party’s statement. MRE 801(d)(1)-(2). These statements are still subject to relevancy requirements. See MRE 402. The unavailability of a witness is not relevant to whether testimony is admissible under MRE 801. People v Benson, 500 Mich 964, 964 (2017).
“Contractual documents with legal effect independent of the truth of any statements contained in the documents are admissible.” People v Abcumby-Blair, 335 Mich App 210, 239 (2020).
A.Prior Statement of Testifying Witness
A prior statement of a testifying witness is not precluded as hearsay solely because the declarant and the witness are the same person. See MRE 801(c); MRE 801(d)(1). If the statement falls under one of the categories listed in MRE 801(d)(1), it is considered nonhearsay. MRE 801(d)(1) states that a statement is not hearsay when “[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.”
1.Prior Inconsistent Statements1
For purposes of MRE 801(d)(1)(A), prior inconsistent statements are “not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position.” See People v Chavies, 234 Mich App 274, 282 (1999) (quotation marks and citation omitted), overruled in part on other grounds People v Williams, 475 Mich 245, 254 (2006).2 “The word ‘inconsistent’ is defined as marked by incompatibility of elements, not in agreement with each other, and not consistent in standards of behavior.” People v Green, 313 Mich App 526, 531 (2015) (quotation marks and citations omitted).
Where a prior inconsistent statement is used for impeachment purposes, it “is not regarded as an exception to the hearsay rule because it is not offered as substantive evidence to prove the truth of the statement, but only to prove that the witness in fact made the statement.” Merrow v Bofferding, 458 Mich 617, 631 (1998). See also People v Jenkins, 450 Mich 249, 256-257, 260-261 (1995), where the Court concluded that a prior inconsistent statement of a testifying witness was hearsay that was admissible solely for the purpose of impeaching the witness (although admission of the statement was error due to other issues that arose as a result of the statement’s admission).
Committee Tip:
What takes a prior inconsistent statement from being admissible only for impeachment to being substantively admissible is contained in MRE 801(d)(1)(A), i.e., the statement was made by the declarant (witness) under oath subject to the penalty of perjury, or in a deposition.
2.Prior Consistent Statements3
The term “‘consistent’ . . . is defined as agreeing or accordant; compatible; not self-contradictory, constantly adhering to the same principles, course, form, etc., and holding firmly together; cohering.” People v Green, 313 Mich App 526, 532 (2015) (quotation marks and citations omitted).
Four elements must be established before admitting a prior consistent statement: “(1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.” People v Jones, 240 Mich App 704, 706-707 (2000) (quotation marks and citation omitted). The motive mentioned in elements (2) and (4) must be the same motive. Id. at 711. Consistent statements made after the motive to fabricate arises constitute inadmissible hearsay. People v McCray, 245 Mich App 631, 642 (2001).
Committee Tip:
The fourth element, the timing of the prior consistent statement, is often at issue. See People v Mahone, 294 Mich App 208, 212-214 (2011).
3.Prior Statement of Identification
MRE 801(d)(1)(C) requires the party seeking to introduce the evidence to show only that the witness is present and available for cross-examination. People v Malone, 445 Mich 369, 377 (1994). “[S]tatements of identification are not limited by whether the out-of-court declaration is denied or affirmed at trial. . . . As long as the statement is one of identification, [MRE] 801(d)(1)(C) permits the substantive use of any prior statement of identification by a witness as nonhearsay, provided the witness is available for cross-examination.” Malone, 445 Mich at 377. In addition, the declarant is irrelevant; MRE 801(d)(1)(C) does not preclude out-of-court statements from a third party. Malone, 445 Mich at 377-378. In Malone, a witness previously identified the defendant as the victim’s shooter, but denied making the identification while on the stand. Id. at 371-372. The trial court allowed an attorney and a police officer, both of whom were present at the prior identification, to testify that the witness had made the identification. Id. at 374. The Michigan Supreme Court concluded that this testimony was properly admitted as substantive evidence under MRE 801(d)(1)(C) because “the distinction between first- and third-party statements of prior identification does not limit substantive admissibility.” Malone, 445 Mich at 390.
Committee Tip:
Statements delineated as nonhearsay under MRE 801(d)(1) must be accompanied by the declarant/witness testifying who is subject to cross-examination concerning the statements. Without this threshold, these hearsay exclusions are not employable for admission.
A statement is not hearsay if it is an opposing party’s statement offered against an opposing party and:
“(A) was made by the party in an individual or representative capacity, except a statement made in connection with:
(i) a guilty plea to a misdemeanor motor-vehicle violation; or
(ii) an admission of responsibility for a civil infraction under a motor-vehicle law;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy, if there is independent proof of the conspiracy.” MRE 801(d)(2).
The Michigan Supreme Court explained the rationale for admitting an opposing party’s statement:
“[T]he admissibility of [an opposing party’s] statement springs from a sense of fundamental fairness captured in the phrase, ‘You said it; you’re stuck with it.’ The hearsay rule operates to prevent a party from being ‘stuck’ with what others have said without an opportunity to challenge them directly before the trier of fact. However, there is no reason, given the adversarial nature of our system, to extend the rule’s protection to a party’s own statements.” Shields v Reddo, 432 Mich 761, 775 (1989).
1.A Party’s Adoption of Belief or Truth of Statement
Criminal cases. Under MRE 801(d)(2)(B), “[a]dmission of evidence of a defendant’s silence as a tacit admission of guilt is prohibited, unless the defendant has shown his adoption of or belief in the truth of the accusation.” People v Greenwood, 209 Mich App 470, 473 (1995). In Greenwood, a detective testified during defendant’s trial for larceny that the defendant was invited to come to the police station to give a formal interview, but never did. Id. at 472-473. In her closing argument, the prosecutor relied on this testimony to establish the defendant’s guilt. Id. at 473. The Court of Appeals concluded that admitting the testimony was improper, and, thus the prosecutor should not have relied on it in her closing argument. Id. The Court stated that “there is no evidence that defendant adopted or believed in the truth of the prosecutor’s accusation that defendant remained silent and refused to come into the police station ‘because he [committed the larceny].’” Id.
Medical malpractice cases. In medical malpractice cases, an affidavit of merit constitutes a party admission under MRE 801(d)(2)(B). Barnett v Hidalgo, 478 Mich 151, 160-161 (2007). “[B]y filing the affidavit of merit with the court, plaintiff manifests ‘an adoption or belief in its truth,’” as required by MRE 801(d)(2)(B). Barnett, 478 Mich at 161-162 (plaintiff hired her own experts to prepare the affidavits, was fully aware of their statements in the affidavits, voluntarily submitted those affidavits to support her complaint, and called those experts to testify at trial).
2.Statements by Authorized Persons
Criminal cases. It was proper for a trial court to admit a defendant’s notice of alibi under MRE 801(d)(2)(C) to impeach the defendant where it was filed by the defendant’s attorney, “who was a person authorized by defendant to make a statement concerning the subject.” People v Von Everett, 156 Mich App 615, 624-625 (1986).
Medical malpractice cases. In medical malpractice cases, an affidavit of merit constitutes a party admission under MRE 801(d)(2)(C). Barnett v Hidalgo, 478 Mich 151, 160 (2007). “An independent expert who is not withdrawn before trial is essentially authorized by the plaintiff to make statements regarding the subjects listed by [MCL 600.2912d(1)(a)-(d)]. Therefore, consistent with the actual language of MRE 801(d)(2)(C), an affidavit of merit is ‘a statement by a person authorized by the party to make a statement concerning the subject . . . .’” Barnett, 478 Mich at 162.
3.Statements by Agents or Employees
A party should be held “responsible for their choice of an agent or employee, and consequently for words spoken and actions taken by those they have chosen, during the period of time they choose to maintain the relationship.” Shields v Reddo, 432 Mich 761, 775 (1989). The Court noted that the statement must be made while the relationship still exists; statements made after the relationship is terminated are not admissible under MRE 801(d)(2)(D). Shields, 432 Mich at 775-776. In Shields, the plaintiff urged the Court to admit into evidence the deposition testimony of the defendant’s former employee under MCR 2.308(A)(1)(b)4 without making a showing of unavailability. Shields, 432 Mich at 764. The Court stated that “the deposition testimony of a person who was employed by a party at the time of the occurrence out of which an action arose, but who was no longer employed by the party when the deposition was taken, is not admissible in evidence without a finding that the deponent is unavailable to testify at trial.” Id. at 785.
In order for a statement to be admissible under MRE 801(d)(2)(E), the proponent of the evidence must establish three things:
(1) by a preponderance of the evidence and using independent evidence, a conspiracy existed;
(2) the statement was made during the course of the conspiracy; and
(3) the statement furthered the conspiracy. People v Martin, 271 Mich App 280, 316-317 (2006).
“A conspiracy exists where two or more persons combine with the intent to accomplish an illegal objective.” Martin, 271 Mich App at 317. In order to establish that a conspiracy existed, the proponent may offer circumstantial or indirect evidence; direct proof of the conspiracy is not required to satisfy the first requirement. Id. In satisfying the second requirement, a “conspiracy continues ‘until the common enterprise has been fully completed, abandoned, or terminated.’” Id., quoting People v Bushard, 444 Mich 384, 394 (1993). Idle chatter will not show that a statement furthered a conspiracy under the third requirement. Martin, 271 Mich App at 317. However, “statements that prompt the listener, who need not be one of the conspirators, to respond in a way that promotes or facilitates the accomplishment of the illegal objective will suffice.” Id.
In Martin, the defendant and his brother were charged with crimes arising out of their participation in the operation of an adult entertainment establishment. Martin, 271 Mich App at 285. At trial, Angela Martin, the ex-wife of the defendant’s brother, testified about certain statements she heard her ex-husband make, including his admission that sex acts were occurring at the establishment and that he and the other participants financially benefited from the illegal activities. Id. at 316. Angela further testified that she overheard a telephone conversation between the defendant and her ex-husband regarding “the VIP cards necessary to access the downstairs area where acts of prostitution occurred.” Id. at 318. The defendant was convicted, and on appeal argued that Angela’s testimony regarding his brother’s statements was inadmissible hearsay. Id. at 316.
The Court of Appeals noted that trial testimony given before Angela’s testimony provided evidence sufficient to raise an inference that the defendant and his brother conspired to carry out the illegal objectives of maintaining the establishment as a house of prostitution, accepting earnings of prostitutes, and engaging in a pattern of racketeering activity. Martin, 271 Mich App at 317-318. The Court further noted that because the conversation about the use of VIP cards clearly concerned the activities covered by the conspiracy, the statements were made in furtherance of the conspiracy. Id. at 318-319. Statements made to Angela regarding the financial compensation her ex-husband and the defendant earned from the establishment were also made in furtherance of the conspiracy because the statements informed Angela of her collective stake in the success of the conspiracy and served to foster the trust and cohesiveness necessary to keep Angela from interfering with the continued activities of the conspiracy. Id. at 319. Because the statements about which Angela testified satisfied the requirements in MRE 801(d)(2)(E), they were properly admitted against the defendant at trial. Martin, 271 Mich App at 316-319.
Committee Tip:
As with MRE 803(d)(1), the MRE 803(d)(2) exclusions have a threshold for one of the described statements, i.e, they must be used against the party making the statement. Also note that although these statements are often called statements by a party opponent, in only MRE 801(d)(2)(A) is the speaker actually a party. Rather the rule is designed to impose statements made by others on the party. See MRE 801(d)(2)(B)-(E).