1.8Limitations on Evidence
Committee Tip:
The rules and cases discussed in this section do not distinguish between jury and bench trials. Where the court is serving as the fact finder, there might be greater latitude in limiting evidence where the court already has much of the background information.
A.Precluding a Witness From Testifying
1.Civil Cases
MCR 2.401(I)(2) allows a trial court to prohibit testimony from witnesses not identified in a pretrial order or required witness list.
“Trial courts should not be reluctant to allow unlisted witnesses to testify where justice so requires, particularly with regard to rebuttal witnesses.” Pastrick v Gen Tel Co of Mich, 162 Mich App 243, 245 (1987). The court may impose reasonable conditions on allowing the testimony of an undisclosed witness if there is no prejudice to the opposing party. Id. at 246 (finding that giving the “defendants an opportunity to interview the undisclosed witness and to secure their own expert” were reasonable conditions in allowing the prosecutor’s undisclosed rebuttal witness to testify). The Court also noted that a reasonable condition will normally include a reasonable time frame. Id. at 246-247 n 1.
In deciding whether the court will sanction the party by precluding a witness from testifying, the court should consider the following factors on the record:
“(1) whether the violation was willful or accidental; (2) the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the [opposing party]; (4) actual notice to the [opposing party] of the witnesses and the length of time prior to trial that the [opposing party] received such actual notice; (5) whether there exists a history of [the party] engaging in deliberate delay; (6) the degree of compliance by the [party] with other provisions of the court’s order; (7) an attempt by the [party] to timely cure the defect; and (8) whether a lesser sanction would better serve the interests of justice. This list should not be considered exhaustive.” Duray Dev, LLC v Perrin, 288 Mich App 143, 165 (2010) (quotation marks and citation omitted).
The trial court did not “abuse[] its discretion in denying [the] plaintiff’s motion to add [a new] expert witness,” which was untimely filed “four days after the trial court had entered its . . . order granting summary disposition in favor of [the] defendants” and “more than one year and three months after the due date for filing and serving witness lists.” Cox v Hartman, 322 Mich App 292, 312, 315 (2017). “[The] plaintiff did not act diligently in pursuing [the] case”; furthermore, “the trial court reasonably concluded that [the] defendants would be prejudiced in preparing for trial if the motion was granted.” Id. at 315-316 (further rejecting the plaintiff’s contention “that she should be permitted to file an ‘amended’ affidavit of merit signed by a new expert witness pursuant to MCR 2.112(L)(2)(b),” because “amendment of the affidavit of merit would not affect or undermine the rationale or basis on which summary disposition was granted,” i.e., that the “plaintiff failed to present a standard-of-care expert who was qualified to testify at trial”).
2.Criminal Cases
In criminal cases, discovery violations are addressed in MCR 6.201(J). Although that provision does not explicitly mention precluding a witness from testifying, it does give the court discretion to sanction discovery violations.1 In addition, witness preclusion is an express remedy for violations of sequestration orders and failing to properly file an alibi or insanity defense.2 See e.g., People v Meconi, 277 Mich App 651, 654 (2008); MCL 768.21(1).
For discovery and sequestration order violations, “the exclusion of a witness is an extreme sanction that should not be employed if the trial court can fashion a different remedy that will limit the prejudice to the party injured by the violation while still permitting the witness to testify.” People v Rose, 289 Mich App 499, 526 (2010) (discovery violation). See also Meconi, 277 Mich App at 654 (sequestration).
Where an unlisted expert’s testimony was important to the defendant’s case and the prosecution would have had adequate time to prepare for it, the trial court abused its discretion when it denied the defendant’s late request to add the expert to the witness list. People v Yost, 278 Mich App 341, 380-381, 386 (2008) (the trial court’s decision to preclude the defense expert’s testimony did not fall within the range of reasonable and principled outcomes because without the expert’s testimony, the defendant was unable to establish a defense regarding whether the victim actually died of an overdose; the defendant was also unable to contradict the prosecutor’s assertions regarding the number of pills needed to cause an overdose without the expert’s testimony). “[G]iven the nature of the toxicology evidence against defendant, the trial court should have realized that the importance of the toxicologist to the defense substantially outweighed any prejudice that the prosecution might suffer in preparing for the late endorsement.” Id.
For alibi and insanity defense violations, the court must “exclude evidence offered by the defendant for the purpose of establishing an alibi or the insanity of the defendant” if the written notice required by MCL 768.20 or MCL 768.20a is not filed and served, or if “the notice given by the defendant does not state, as particularly as is known to the defendant or the defendant’s attorney, the name of a witness to be called in behalf of the defendant to establish” an alibi or insanity defense. MCL 768.21(1). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 10, for more information on alibi and insanity defenses.
“The court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.” MRE 611(a).
Committee Tip:
If the judge feels it is necessary to intervene and limit the questioning of a witness, the judge should tell the jury that he or she is not trying to suggest any opinion about the case nor favor one side, but merely trying to move the case along.
1.Time Limitations on Witness Testimony
“MRE 611(a) grants a trial court broad power to control the manner in which a trial is conducted, including the examination of witnesses.” Hartland Twp v Kucykowicz, 189 Mich App 591, 595 (1991) (finding “the record show[ed] that the trial court properly exercised its discretion in limiting the time for examination of witnesses,” where on the fifth day of trial, the court limited direct and cross-examination to one hour each due to concerns about “the pace of cross-examination, about counsel’s exploration of irrelevant issues, and [his] tendency to pose the same questions over and over”); see also People v Willis, 322 Mich App 579, 589 (2018).
The trial court’s decision to limit witness testimony to 1.5 hours was not an abuse of discretion where “counsel had adequate time to develop the facts and issues at the center of the parties’ dispute” and “the trial court permitted [the plaintiff] more than three hours for its examination of [one of its key witnesses] on the basis of counsel’s pledge that he could complete the rest of the witness examinations in a half hour.” Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App 589, 618 (2010). The Court noted that it disapproves of “utterly arbitrary time limitations unrelated to the nature and complexity of a case or the length of time consumed by other witnesses,” but found the time limitation was not arbitrary in the current case because it had been suggested by the plaintiff. Id. at 618 n 12.
Contrast with Barksdale v Bert’s Marketplace, 289 Mich App 652, 657 (2010), where the trial court’s decision to limit witness examination to 30 minutes per side was arbitrary and an abuse of discretion when both sides quickly picked a jury, delivered opening statements, and the plaintiff’s attorney expeditiously examined the plaintiff “without repetitive or irrelevant questions.” The Court of Appeals concluded that the facts in Barksdale were distinguishable from those in Alpha Capital Mgt, and could “discern no reasonable basis for the trial court’s determination that limiting witness examinations to 30 minutes for each side advanced the trial-management goals set forth in MRE 611(a).” Barksdale, 289 Mich App at 657.
2.Time Limitations on Defendant’s Testimony
Restrictions on a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. Rock v Arkansas, 483 US 44, 55-56 (1987) (a trial court “must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify”).
3.Limitations on Cross-Examination
In controlling trial proceedings, a trial court may impose reasonable limits on cross-examination pursuant to MRE 611(a), even in a criminal case where the defendant has a constitutional right to confrontation. People v Willis, 322 Mich App 579, 590-591 (2018).
Child victims of sexual assault.“MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses—particularly children who have accused the defendant of committing sexual assault. The court must balance the criminal defendant’s right to self-representation with the State’s important interest in protecting child sexual abuse victims from further trauma.” People v Daniels, 311 Mich App 257, 269-271 (2015) (holding that the “trial court wisely and properly prevented defendant from personally cross-examining [his children regarding their testimony that he sexually abused them], to stop the children from suffering ‘harassment or undue embarrassment,’” following “a motion hearing at which [the court] heard considerable evidence that defendant’s personal cross-examination would cause [the children] significant trauma and emotional stress”) (quoting MRE 611(a); additional quotation marks and citations omitted). The defendant’s right to self-representation was not violated under these circumstances where the defendant was instructed “to formulate questions for his [children], which his advisory attorney then used to cross-examine them.” Daniels, 311 Mich App at 270.
Adult witnesses. In Willis, 322 Mich App at 589, the defendant argued that it was improper for the trial court to limit defense counsel’s cross-examination of a police sergeant “about the sergeant’s incorrect assumption that defendant was prohibited from being around schools pursuant to the Sex Offenders Registration Act (SORA), . . . and purportedly belittling defense counsel by reading out loud the substance of MRE 611 when issuing its ruling.” The Court of Appeals concluded that “[t]he trial court’s remarks were not of such a nature as to unduly influence the jury.” Willis, 322 Mich App at 591.3 The Court also found that the trial court “appropriately exercised its discretion to control the trial to prevent improper questioning of the sergeant and avoid wasting time” where the trial court and the parties discussed the parameters of the testimony before the sergeant took the stand and agreed to limit his testimony to his squad car video, the additional questions defense counsel asked the sergeant were previously covered in similar testimony, and the trial court read the court rule to explain its interruptions of the testimony after first cautioning defense counsel that the questions were “beyond the redirect,” and “beyond what we’ve gone into and what I said you should do or could cover on recross.” Id. at 591-592.
C.Limiting Cumulative Evidence
The court has discretion to exclude cumulative evidence. MRE 403. Where a witness’s testimony “was entirely consistent with that of several prior witnesses,” the trial court properly excluded it on the basis of cumulative evidence. McDonald v Stroh Brewery Co, 191 Mich App 601, 608 (1991). However, “cumulative evidence which rebuts the prosecutor’s case should be admissible if it assists the defendant.” People v Norwood, 123 Mich App 287, 293 (1983) (finding the trial court abused its discretion when it determined that the testimony of two witnesses was “merely cumulative” where it “would have been helpful to defendant, since their testimony supported defendant’s account of the incident in several particulars and would likely have enhanced his credibility in the eyes of the jury”).
“Any error resulting from the exclusion of cumulative evidence is harmless.” Badiee v Brighton Area Sch, 265 Mich App 343, 357 (2005). However, improperly admitted cumulative evidence is not automatically harmless error. People v Hamilton, 500 Mich 938 (2017) (vacating and remanding where the Court of Appeals determined that because the witness’s testimony was arguably cumulative, its admission constituted harmless error).
Committee Tip:
If employed by the court, two factors may help uphold decisions on the limitations of proof and arguments: (1) solicit input from counsel; and (2) provide sufficient advance notice.