Opinion
No. 2001-51.
Entered: August 11, 2004.
On order of the Court, the proposed amendment of Rule 404 of the Michigan Rules of Evidence having been published for comment at 469 Mich. 1203-1205 (Part 1, 2003), and an opportunity having been provided for comment in writing and at a public hearing, the Court declines to modify the rule of evidence. The administrative file is closed without further action.
Justices KELLY, TAYLOR, and YOUNG concur, and Chief Justice CORRIGAN, and Justices WEAVER and MARKMAN dissent in statements below.
I agree with the majority of my colleagues that the proposed amendment is attractive because, as we know, victims of domestic violence are frequently reluctant to testify against abusive partners. However, I am unwilling to modify MRE 404 for only one class of crime victims. Also, like Justice YOUNG, I am not convinced that the principles undergirding the rule as currently written are faulty. I too remain open to be convinced of the wisdom of alternative approaches.
I concur with the Court's decision not to amend MRE 404(b) to adopt a domestic violence exception.
There is currently great enthusiasm for prosecution of "domestic violence" offenders. As is customary at a time of such zeal, reformers want the courts to gut traditional evidentiary protections so as to facilitate prosecutions. While I am as horrified by the specter of domestic abuse as any, I do not feel it, or any other imaginable domestic peril, justifies the wholesale dumping of our traditional defendant protection rules. The rules at issue often are not popular rules, and to champion them, especially when the blood is up to jettison them to accomplish so much good, is to invite misunderstanding, but this is what judges have always been required to do. In refusing to dismantle these canons established bit by bit over hundreds of years, even for a worthy cause, the majority integrates itself into that tradition.
I join in Justice TAYLOR's statement and write separately to make a few additional points.
I recognize that there is a growing body of literature suggesting that victims are frequently reluctant to testify against abusive domestic partners. I also recognize the frustration that this kind of reluctance presents to prosecutors and all who seek to protect such victims. However, rules of evidence are stubborn things, characteristically frustrating to those who are committed to the idea that more expeditious trial processes would lead to convictions of those they believe to be guilty of crimes.
Although I respect the sincere ardor of the proponents urging amendment of this rule, I do not believe that they have made a compelling case that the rule should be modified to accommodate this narrow class of crime victims. Surely all victims would be equally desirous of having the propensity of the defendant to commit bad acts made known to the trier of fact to lighten the burden of having to prove that the defendant committed the charged offense. Further, I am unconvinced that domestic abuse perpetrators, as a class, have a higher recidivism rate than many other classes of perpetrators, such as rapists or child molesters. While the Congress has recently adopted crime-specific exceptions to the general prohibition against propensity evidence, see FRE 413 and 414, I am unconvinced that the principles undergirding MRE 404 ought to be undercut by specific classes of criminality. However, I remain open to be convinced of the wisdom of alternative approaches as we gather broader-based empirical data on criminal recidivism rates and experience under the revised federal rules.
I have argued at length elsewhere that the rules of evidence are the product of centuries of refinement — judgments about the kind of evidence that is best designed to preserve and protect the judiciary's ability to provide a fair trial. While this Court should always be willing to reexamine these rules, I believe it should move cautiously in abandoning such bedrock principles as those that animate MRE 404. As interpreted by this Court, MRE 404 provides a number of reasonable exceptions whereby evidence of prior bad acts may properly be introduced against a criminal defendant. Consequently, until we conclude that a defendant's guilt should be decided as much on past conduct as on current charged conduct, I believe that MRE 404 serves a vital purpose protecting the interests of all concerned in the pursuit of justice.
People v. Katt, 468 Mich. 272, 297-301 (2003) (YOUNG, J., dissenting).
I respectfully dissent from the majority's decision to close this administrative file without taking further action. We opened this file to consider whether to allow evidence of prior acts of domestic violence to be admitted in domestic violence prosecutions. Our current rule, MRE 404(b), bars admission of evidence of prior bad acts to prove a defendant's character and action in conformity with that character. I recognize that this rule has ancient origins, but a trend has begun to emerge in some states treating evidence of prior acts of domestic violence as an exception to the general ban on propensity evidence. Domestic violence cases present unique challenges and obstacles to successful prosecutions. Therefore, before closing this administrative file, we should carefully consider the ramifications of failing to amend MRE 404 and draw guidance from the experiences of other states.
Domestic violence is a growing problem both in Michigan and nationwide. In Michigan, the growing scourge of domestic violence is reflected in part by the number of petitions for personal protection orders that were filed last year. Statewide there were 47,858 filings for PPOs in 2003. In Wayne County alone there were 14,285 filings, representing sixteen percent of the total filings and twenty-eight percent of the combined civil, domestic, and miscellaneous family filings in that circuit. Also, Wayne County judges last year heard more than 18,000 motions on personal protection cases.
The unique nature of domestic violence, and its troubling emergence as a growing problem, is summarized in a recent law review article, Kovach, Prosecutorial use of other acts of domestic violence for propensity purposes: A brief look at its past, present and future, 2003 U Ill L R 1115, 1116-1117:
Domestic violence is a criminal justice and public policy epidemic of enormous proportions. There has only recently been reliable data on the prevalence of domestic violence in the United States. One out of every five U.S. women has been physically assaulted by an intimate partner. One survey analyzing data gathered from 1993 through 1998 found that women experienced about 900,000 violent offenses at the hands of an intimate in 1998, down from a staggering 1.1 million in 1993. During the same time period, only about half the domestic violence against women was reported to the police. Even when domestic violence cases enter the criminal justice system, prosecution of domestic violence is difficult because, among other reasons, there is typically a lack of documented physical evidence or witnesses; the victim is often noncooperative; and there is jury bias against victims of domestic violence. As a result, many prosecutors' offices have changed their strategy, so that a domestic violence case is not centered on the victim's testimony but rather consists of other evidence. One form of this "other evidence" can be the defendant's other domestic violence acts, which, if admitted, often have a dispositive effect on the outcome of the case. For instance, evidence of the defendant's other acts of domestic violence could serve to corroborate the victim's testimony, the physical evidence, or another witness's testimony. [Citations omitted.]
The cyclical nature of this crime is important to note. Domestic violence defendants have a high rate of recidivism and, over time, domestic violence often becomes more frequent and severe. Id., p. 1131. Forty-seven percent of those who beat their spouses do so at least three times a year. Thirty-two percent of victims are victimized again within six months of the initial episode. Also, domestic violence often goes unreported and may lead to more serious crimes, including murder. See the attached February 5, 2004, letter from the Honorable Amy Krause, Chair of the Michigan Domestic Violence Prevention and Treatment Board, and citations therein.
Moreover, the difficulty in proving domestic violence makes the problem that much worse:
Domestic violence cases contain unique factors that frequently hinder successful prosecutions. Often, the victim does not want the case to proceed, or the victim may refuse to testify for the prosecution, or may even testify on behalf of the defendant. The victim's reluctance may be due to a number of factors such as intimidation by the defendant, including threats of retaliation, susceptibility to the batterer's promises to cease abuse, cultural or family pressures, or uncertainty whether she will be believed or that her batterer will be held accountable. Domestic violence often occurs behind closed doors or away from witnesses who could testify on the prosecution's behalf. Victims of domestic violence may suffer from Battered Women's Syndrome or from Post Traumatic Stress Disorder as a result of the frequent abuse, which often causes victims to be unable to remember violent events. Finally, juror and judicial bias against domestic violence victims often hinders prosecution. [Kovach, supra, p. 1126 (citations omitted).]
To overcome these unique hurdles, two states — California and Alaska — have authorized admission of evidence of prior acts of domestic violence for propensity purposes. Other states, such as Kansas, Minnesota, and Colorado, have expanded the availability of non-propensity theories for admitting evidence of prior acts of domestic violence. The experiences in these states offer guidance on whether and how we should amend our own rules.
Since 1997, California Evidence Code (CEC) § 1109 has provided for admission of evidence of other acts of domestic violence for propensity purposes where the defendant is charged with domestic violence. The trial court has discretion, however, to exclude such evidence if its probative value is substantially outweighed by undue prejudice. CEC § 352. See Kovach, supra, pp. 1132-1134.
The Alaska legislature took a similar step in 1997. Alaska Rule of Evidence 404(b)(4) provides that in "a prosecution for a crime involving domestic violence . . . evidence of other crimes involving domestic violence by the defendant against the same or another person . . . is admissible." "The public policy considerations behind this evidence rule include the lack of witnesses in domestic violence cases and thus the need for corroboration, frequent victim reluctance to testify due to fear of the defendant, and the cyclical nature of domestic violence: the ongoing pattern of abuse escalates in frequency and severity over time." Kovach, supra, p. 1141.
Like California, Alaska provides procedural safeguards in the use of propensity evidence. In addition to the required balancing of probative value and prejudice, the other acts evidence must be less than ten years old, it must be similar to the charged offense, and it must have been committed upon persons similar to the victim in the charged case. ARE 404(b)(2); Kovach, supra, p. 1141.
Both the California and Alaska rules have withstood constitutional challenge. California courts have rejected both due process and equal protection challenges to CEC § 1109. See People v. Hoover, 77 Cal App. 4th 1020 (2000); People v. Jennings, 81 Cal App. 4th 1301 (2000); Kovach, supra, pp 1134-1136. Alaska courts have similarly held that ARE 404(b)(4) does not violate the due process or equal protection clauses. See Fuzzard v. Alaska, 13 P.3d 1163, 1167 (Alas App, 2000). In rejecting a due process challenge to the Alaska rule, a central consideration was that the trial court retains discretion to exclude evidence that is more prejudicial than probative. Id.; Allen v. Alaska, 945 P.2d 1233 (Alas App, 1997) (involving a due process challenge to a different provision); Kovach, supra, p. 1142. Also, the Alaska Court of Appeals in Fuzzard rejected an equal protection challenge to the use of propensity evidence "in light of the state's interest in addressing proof problems posed by domestic violence." Kovach, supra, p. 1142.
Finally, Colorado, Minnesota, and Kansas have expanded the nonpropensity theories under which evidence of other acts of domestic violence may be admitted. Kovach, supra, pp. 1143-1148. Minnesota's statute has been interpreted to allow evidence of the history of the relationship between the victim and the defendant to explain the context in which the charged assault occurred. Id. at 1147.
I believe that our Court should more fully consider the experiences in these other states before closing our administrative file on this subject. This Court has already published for comment two proposed amendments to MRE 404 that would allow evidence of other acts of domestic violence for propensity purposes. Our first proposal synthesized the Alaska, California, and Minnesota rules, and would have provided:
In the prosecution of an offense involving domestic violence or interference with a report of an offense involving domestic violence, evidence of other acts involving domestic violence by the defendant against the same or another person or interference with a report of an offense involving domestic violence is admissible, unless found inadmissible under MRE 403. For purposes of this subrule, "domestic violence" has the meaning given in MCL 400.1501, and an "offense involving domestic violence" includes, but is not limited to, those crimes proscribed by MCL 750.81(2) and MCL 750.81a(2). [ 469 Mich. 1204-1205.]
The second proposal that we published would have provided: "In the prosecution of an offense involving domestic violence, evidence of other acts of domestic violence is admissible and may be considered for its bearing on any matter to which it is relevant." 469 Mich. 1205. This language was based on Rules 413 and 414 of the Federal Rules of Evidence, which allow propensity evidence to be admitted in federal sexual assault cases.
The majority has now decided to close this file, apparently concluding that it does not favor either of the two published proposals. I would suggest, however, that in light of the growing problem of domestic violence both in Michigan and nationwide, we should at the very least consider other possible alternatives before closing this file. For example, we could consider adding more procedural safeguards to the proposed rules similar to the safeguards that exist in other states. Specifically, we could (1) require notice of the proposed admission of other acts evidence, (2) require a degree of similarity between the other acts and the charged offense, or (3) require that the prior act have occurred no more than ten years before the charged offense. These safeguards, along with the requirement in our first proposal that the court balance the probative value and prejudice, would conform our rule to those that have withstood constitutional challenge in other states.
In the alternative, if these safeguards would not alleviate the majority's concerns regarding the use of propensity evidence, we could consider the less drastic alternative of simply expanding the nonpropensity theories under which evidence of prior acts of domestic violence may be admitted. The approaches followed in Minnesota, Colorado, and Kansas are worthy of our consideration. For example, as the Minnesota experience suggests, a reasonable theory of relevance may exist that does not constitute a propensity theory, but which at the same time does not fit neatly within the framework of our existing rule. A juror might not understand how a discrete act of domestic violence occurred without knowing the history of the relationship between the victim and the defendant. Thus, evidence of prior acts of domestic violence may be probative on nonpropensity grounds if it provides a contextual explanation for how or why an individual act of abuse occurred.
For these reasons, I would not close this administrative file, but would publish additional proposals and invite comments from the public, both in writing and at a public hearing. The unique and troubling difficulties in proving domestic violence cases warrant our careful consideration.
I respectfully dissent from the order closing the administrative file and declining to modify MRE 404 to allow evidence of prior acts of domestic violence in domestic-violence cases. Various proposals concerning this issue have been before the Court for over a year, since June 2003. For the many and persuasive reasons that Chief Justice CORRIGAN states in her dissent for not closing the file, I would adopt proposal A, as published for public comment on July 16, 2003.
Proposal A, which is a synthesis of provisions from other states, including Rule 404(b)(4) of the Alaska Rules of Evidence, Section 404(b) of the Minnesota Rules of Evidence, and Section 1109 of the California Evidence Code, would modify MRE 404(b) as follows:
[The present language of Rule 404 would be amended as indicated below by underlining for new text and strikeovers for text that would be deleted.]
Rule 404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
(a) [Unchanged.]
(b) Other crimes, wrongs, or acts.
(1) [Unchanged.]
(2) In the prosecution of an offense involving domestic violence or interference with a report of an offense involving domestic violence, evidence of other acts involving domestic violence by the defendant against the same or another person or interference with a report of an offense involving domestic violence is admissible, unless found inadmissible under MRE 403. For purposes of this subrule, "domestic violence" has the meaning given in MCL 400.1501, and an "offense involving domestic violence" includes, but is not limited to, those crimes proscribed by MCL 750.81(2) and 750.81a(2).
I concur with the dissenting statement of Chief Justice CORRIGAN. I too would not yet close this administrative file and would continue our consideration of this matter. The proposed amendments to MRE 404(b), or some variation, in my judgment, have the potential to strengthen the truth-seeking function of the criminal justice process with regard to domestic violence prosecutions without undermining constitutional protections for defendants. In these regards, I offer the following thoughts:
(1) Domestic violence cases are different in terms of their ongoing character, the position of control of abusers over their victims and the reluctance of victims to testify, the potential for the intimidation of victims by their abusers and the incidence of recantations by victims, the lack of neutral witnesses, the ambiguities of what differentiate consensual and nonconsensual relationships between the victim and the abuser, and the demonstrated propensity toward recidivism on the part of abusers. As a result, the public interest in admitting all relevant evidence that will assist the fact-finder in ascertaining the truth of criminal charges becomes correspondingly greater.
Concerning Justice YOUNG's view that there is no evidence of greater levels of recidivism among domestic violence offenders than any other criminal offenders, see, for example, Hotatling and Buzawa (2003) "Foregoing Criminal Justice Assistance: The NonReporting of New Incidents of Abuse in a Court Sample of Domestic Violence Victims." Final Report to the National Institute of Justice, Washington DC: National Institute of Justice (half of all domestic violence victims were revictimized within a year); Sandra Adams (1999), "Serial Batterers." Probation Research Bulletin. Boston, MA: Massachusetts Office of the Commissioner of Probation (91% of domestic violence offenders who were under restraining orders in Massachusetts had victimized different victims); New York State Unified Court System, October 24, 2001 ("recidivism rate for domestic violence crimes two and a half times that of crimes between strangers.")
The general rule in criminal cases is well settled, that the commission of other, though similar offenses, by the defendant, can not be proved for the purpose of showing that he was more likely to have committed the offense for which he is on trial. . . . But the courts in several of the States have shown a disposition to relax the rule in cases where the offense consists of illicit intercourse between the sexes. . . .
* * *
We think there is much good sense in these decisions, and that a crime consisting of illicit sexual intercourse, like the present [incest case], involves different principles in this respect, and should be governed by different rules from those which apply to offenses generally, or perhaps to any other class of offenses. [ People v. Jenness, 5 Mich. 305, 319-321 (1858) (CHRISTIANCY, J., for the Court).]
(2) Similar rules have proved workable and effective in a growing number of states, while analogous rules in criminal prosecutions for sexual assault have proved workable and effective both in other states and in the federal justice system.
The courts in these states have consistently held such rules to be constitutional. See, e.g., People v. Jennings, 81 Cal App. 4th 1301, 1309-1313 (2000), and the cases cited therein.
(3) Nothing in the proposed amendment would undermine current protections in Michigan rules afforded defendants in domestic violence cases concerning hearsay evidence, irrelevant evidence, and prejudicial evidence. Further, defendants would have the same right to respond to evidence of past misconduct, including the assistance of counsel, cross-examination, and the opportunity for rebuttal. They would, of course, have to be convicted of the charged offense by a unanimous jury on the basis of guilt beyond a reasonable doubt.
Contrary to the assertion of Justice YOUNG, the purpose of the proposed amendment is not to create "more expeditious trial processes. . . ." Rather, by allowing the fact-finder to consider more, rather than less, relevant evidence, it is to create a more "thorough" and a more "accurate" trial process.
(4) Additionally, like Chief Justice CORRIGAN, I would also favor the additional protections of pretrial notice of propensity evidence, limitations on the age of such evidence, and threshold requirements of similarity in nature between the past and the present conduct, and between the victims of the past and the present conduct. In addition, I would favor limitations on the use of evidence drawn from personal protection orders granted absent a hearing.
(5) The proposed amendment addresses the problem of domestic violence more honestly than the present system in which exceptions to the rule against character evidence are often stretched excessively in order to permit the introduction of clearly relevant evidence of past misconduct. Such stretching of the rules comes eventually to affect not only the law pertaining to domestic violence prosecutions, but the law pertaining to all criminal prosecutions, and inevitably results in a wider range of variation in the manner in which different defendants are treated in the courtroom.
Cf. IA Wigmore, Evidence, § 62.2, pp. 1334-1336:
[T]here is a strong tendency in prosecutions for sex offenses to admit evidence of the accused's sexual proclivities. Do such decisions show that the general rule against the use of propensity evidence against an accused is not honored in sex offense prosecutions? We think so.
* * *
. . . [J]urisdictions that do not expressly recognize a lustful disposition exception may effectively recognize such an exception by expansively interpreting in prosecutions for sex offenses various well-established exceptions to the character evidence rule.
(6) A reasonable juror, I believe, would have an interest in knowing the full relevant history of misconduct by a defendant in a domestic violence case, not because such history would be dispositive of the charged case, but because such history might be helpful in placing the charged case within an appropriate context. The current irrebuttable presumption against this juror having access to such evidence is inconsistent with the premise of the jury system, in which the ordinary citizen brings his common sense and judgment to bear on the credibility of witnesses and the disputed facts of a criminal case.
[W]here a witness has testified to a fact or transaction which, standing alone and entirely unconnected with anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural or probable; such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transaction — a link in the chain of testimony, without which it would be impossible for the jury properly to appreciate the testimony in reference to such principal transaction. And such previous facts should therefore be elicited by the examination of the party producing the witness. Any other rule, in such a case, would be grossly unfair towards the witness; render a trial a process for suppressing, rather than eliciting, the truth, and defeat the very objects for which courts of justice are instituted.
* * *
To permit the evidence, therefore, of an isolated transaction, which could only be made to appear probable by exhibiting the antecedent facts which induced it, and yet to exclude from the investigation all such antecedent facts, would be to set at defiance the order of nature, and the laws of truth which God has stamped upon the human mind. [ Jenness, n. 2 supra, pp. 323-324.]
(7) A reasonable juror might also understandably desire access to evidence relevant to a criminal defendant's "dispositions and inclinations, a bout the presence or absence of effective inhibitions against engaging in serious violence or other criminality, about his willingness to hazard the practical risks of criminal conduct, and about the probability or improbability that he has been falsely or mistakenly implicated." Such a juror would also recognize — and be so instructed by the trial court — that the defendant must ultimately be proved guilty beyond a reasonable doubt of the charged offense.
Karp, Evidence of propensity and probability in sex offense cases and other cases, 70 Chi-Kent L Rev 15, 26-27 (1994).
(8) The starting principle of our criminal justice system should be that, consistent with the constitution and due process of law, a complete picture of the available evidence will be presented to the jury. Because the proposed reform has operated well elsewhere, and because the majority has not demonstrated why a juror should be deprived of evidence that might assist him in rendering a better-informed decision concerning the truth of a serious criminal charge, I would not yet close this file and would continue our consideration of this matter.
Without this evidence [of past misconduct in a criminal incest case,] the jury could not properly appreciate [the witness's] evidence in relation to the particular transaction in question, nor render a verdict not based upon a partial, and, to some extent, a false, estimate of the evidence. We think, therefore, this evidence was properly admitted. It tended to explain what might otherwise have appeared improbable or unnatural. . . .
We do not think the evidence in reference to such previous acts can be said to operate unfairly upon the defendant in such case; as he is not exposed to the risk of a conviction upon them, and every such previous fact stated by the witness, opens a wider field, and gives more ample facilities for contradiction if the testimony be false. If the evidence were confined to a single transaction, a designing witness might more easily contrive a fictitious case, which should appear consistent with surrounding circumstances, and which, therefore, might be difficult of contradiction. But by admitting evidence of such previous transactions, the difficulties in the way of such fabrication are increased, as every additional transaction testified to multiplies the chances of detection and contradiction if the transactions be not real. [ Jenness, n. 2 supra, pp. 324-325.]
The allegedly momentary "zeal," by which Justice TAYLOR explains the position of the dissenters in favor of supplying the jury with some context for assessing a type of criminal conduct particularly in need of context, was apparently too much even for Justice CHRISTIANCY and this Court to withstand in 1858. See ns 2, 6, and 8.
Further, in setting forth the historical pedigree of their positions, both Justice TAYLOR ("hundreds of years") and Justice YOUNG ("centuries") considerably overstate matters. For a more balanced statement of what prevailed throughout much of the nineteenth century in the United States, see, generally, Karp, n 7 supra, pp. 26-35; Jenness, n. 2 supra.