Opinion
99-10
October 10, 2000.
On order of the Court, this is to advise that the Court is considering the amendment of Rules 404, 703, 803, 804, 902 and 1101 of the Michigan Rules of Evidence. The proposed amendments have been recommended by the Advisory Committee on the Rules of Evidence. The full report of the committee can be found at http://www.supremecourt.state.mi.us.
Before determining whether the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposals. We welcome the views of all who wish to address the proposals or who wish to suggest alternatives.
As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of these proposals does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposals in their present form.
[The present language would be amended as indicated below.]
Rule 404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
[Committee proposal for subrule (a)(1)]
(a) Character evidence generally. Evidence 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:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a trait of character for aggression of the accused offered by the prosecution;
[Majority proposal for subrule (a)(2)]
(2) Character of alleged victim of a crime other than a sexual conduct crime. When self-defense is an issue, E evidence of a pertinent trait of character for aggression of the alleged victim of the crime, other than in a prosecution for criminal sexual conduct, offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor the same, or to rebut evidence that the alleged victim was the aggressor;
[Minority proposal for subrule (a)(2)]
(2) Character of alleged victim of homicide of a crime other than a sexual conduct crime . When self-defense is an issue in a charge of homicide, E evidence of a pertinent trait of character for aggression of the alleged victim of the crime, other than in a prosecution for criminal sexual conduct, offered by an accused, or evidence offered by the prosecution 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 case to rebut evidence that the alleged victim was the first aggressor;
[Committee proposal for subrule (a)(3)]
(3) Character of alleged victim of sexual conduct crime. In a prosecution for criminal sexual conduct, evidence of the alleged victim's past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease;
(4) Character of witness. [No Change.]
(b) Other crimes, wrongs, or acts. [No Change.]
Staff Comment: In subrule (a)(2), both the Committee's recommendation and the minority proposal would limit evidence of the alleged victim's character to evidence of a character trait for aggression, and that only when self-defense is an issue. The minority proposal would further restrict the use of that evidence to just homicide cases.
The proposal to amend subrule (a)(1) is similar to a pending proposal to amend the Federal Rules of Evidence. It would allow the prosecution to introduce evidence of the defendant's aggressive character if the defendant has introduced similar evidence about the alleged victim.
The Advisory Committee's report provides more detailed explanations of these proposals. The report is posted on the Court's website: [http://www.supremecourt.state.mi.us].
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Rule 703 Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing shall be in evidence. The court may require that underlying facts or data essential to an opinion or inference be in evidence. This rule does not restrict the discretion of the court to receive expert opinion testimony subject to the condition that the factual bases of the opinion be admitted in evidence thereafter. Staff Comment: Proposed amended MRE 703 would require that the facts upon which an expert's opinion is based be introduced into evidence in some way other than through the expert's hearsay testimony. The current rule is often misinterpreted as allowing such hearsay testimony to prove the supporting facts. The proposed amendment is consistent with pre-MRE common law. Much of the inconvenience that accompanied the common law rule will be ameliorated by the concurrently proposed amendments to MRE 803(6) [certification of business records] and MRE 902(11) [self-authentication]. Also, because MRE 703 speaks only to the facts or data "in the particular case," neither the current rule nor the proposed amendment requires independent proof of the sources of knowledge that qualify the witness as an expert in the first instance.
Two committee members voted against recommending this amendment. The Advisory Committee's report provides more detailed explanations of the majority and minority viewpoints. The report is posted on the Court's website:
[http://www.supremecourt.state.mi.us].
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court. Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1)-(5) [Unchanged.]
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7)-(24) [Unchanged.]
Staff Comment: The proposed amendment of MRE 803(6) provides that the rule's foundation requirements can be established without the expense and inconvenience of presenting witnesses to testify that the records satisfy those requirements. Protections are provided by the authentication requirements in the concurrently proposed new MRE 902(11).
The Advisory Committee's report provides more detailed explanations of this proposal and the related proposal to amend MRE 902. The report is posted on the Court's website:
[http://www.supremecourt.state.mi.us].
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Rule 804 Hearsay Exceptions; Declarant Unavailable
(a) [Unchanged.]
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1)-(5) [Unchanged.]
(6) Statement by declarant made unavailable by opponent . A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
(7 6) [Unchanged.]
Staff Comment: Proposed new MRE 804(6) would add a new hearsay exception similar to that found in current FRE 804(6). But this proposal would require that the opposing party at least "encouraged" wrongdoing that made the declarant unavailable. The federal rule requires only that the party have "acquiesced" in the wrongdoing.
The Advisory Committee's report provides a more detailed explanation of this proposal. The report is posted on the Court's website:
[http://www.supremecourt.state.mi.us].
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Rule 902 Self-Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1)-(10) [Unchanged.]
(11) Certified records of regularly conducted activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that —
(A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) The record was kept in the course of the regularly conducted business activity; and (C) It was the regular practice of the business activity to make the record. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. Staff Comment: Proposed new MRE 902(11), together with the concurrently proposed amendment of MRE 803(6), allow the written certification of business records by the record custodian as an alternative to a court appearance and testimony by the custodian. The notice provision provides the opposing party an opportunity to challenge the certification. This proposal, tailored for Michigan practice, is similar to a pending amendment to FRE 902.
The Advisory Committee's report provides a more detailed explanation of this proposal and the related proposal to amend MRE 803(6). The report is posted on the Court's website:
[http://www.supremecourt.state.mi.us].
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Rule 1101 Applicability
(a) [Unchanged.]
(b) Rules inapplicable. The rules other than those with respect to privileges do not apply in the following situations and proceedings:
(1)-(7) [Unchanged.] (8) Preliminary examinations . At preliminary examinations in criminal cases, hearsay is admissible to prove in regard to property, ownership, authority to use, value, possession and entry. Staff Comment: Proposed new MRE 1101(8) would allow hearsay to be introduced at preliminary examinations to prove, e.g., the ownership or value of property. The intent of the amendment is to minimize the inconvenience experienced by witnesses who must set aside other business in order to attend preliminary examinations and testify to facts that usually are not in dispute.
The Advisory Committee adopted this recommendation by an 11-1 vote.
The committee's report provides a more detailed explanation of this proposal and the minority statement opposing the proposal. The report is posted on the Court's website:
[http://www.supremecourt.state.mi.us].
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered, and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court clerk by December 11, 2000. When filing a comment, please refer to our file No. 99-10.