One Court of Justice

In Michigan v. Snyder, the Michigan Court of Appeals held that a prior theft conviction is inadmissible at trial for purposes of impeachment because a theft conviction typically fails to meet the requirements for admissibility under the Michigan Rules of Evidence (MRE) 609.

MRE 609 provides that a witness’s prior theft conviction may be admitted at trial if the prior theft conviction has significant probative value to the witness’s credibility. Determining significant probative value contains two elements: the age of the conviction and the degree to which the conviction of the crime is indicative of veracity. In this case, defendant was convicted at trial for stealing four pieces of silver. Defendant moved to exclude a prior theft conviction before trial, but the trial court denied the motion and admitted the conviction. In a previous opinion, the Court of Appeals reversed and remanded the trial court’s decision because the trial court failed to analyze whether the prior conviction had significant probative value towards credibility. On remand, the trial court once again admitted the prior conviction and reasoned that the prior conviction had significant probative value because its facts were different from the facts of this case. The Court of Appeals found that the trial court erred once again because it did not analyze the two elements required to determine significant probative value. In its own analysis, the Court of Appeals held that, although defendant’s prior conviction occurred two years ago, generally a prior theft conviction is not of significant probative value. The Court reasoned that previous opinions have held theft crimes to be minimally probative, or, at most, moderately probative, which does not surpass the MRE’s “significant” threshold. Therefore, the Court of Appeals found that the trial court erred and reversed and remanded the case for proceedings consistent with its findings.

In People v. Fomby the Michigan Court of Appeals held that testimony of a certified video forensic technician regarding the identity of individuals in still photographs that he created from a surveillance video was lay witness opinion, rather than expert testimony, and was properly admitted under MRE 701.  The court reasoned that the testimony was rationally based on the video technician’s perceptions and was intended to provide the jury with a clearer understanding of the individuals in the video.

In Meier v. Awaad et. al., plaintiffs issued a subpoena to the Michigan Department of Community Health (“MDCH”) seeking the identities of Medicaid beneficiaries who were diagnosed by the defendant physician as having either epliepsy or a seizure disorder.  Plaintiffs sought this information in connection with their class action claim that this doctor had intentionally misdiagnosed them, and others, with these conditions for his own financial gain.  In ruling on this subpoena, the Court of Appeals considered Michigan’s statutory physician-patient privilege and held:  (1)  that the defendants (the physician and related entities) were entitled to raise the privilege issue; and (2)  that even though the information was not sought from a physician, the privilege still protects the information from disclosure.  Read more »

In a technically-unanimous opinion, the Michigan Supreme Court reversed the Court of Appeals and remanded a Whistleblowers’ Protection Act (WPA) case for reinstatement of a trial verdict for plaintiff.  It was technically unanimous since Justice Zahra did not participate because he was on the Court of Appeals’ panel that reversed the trial court’s denial of summary disposition to defendants, and Justice McCormack did not participate, presumably since argument occurred before her tenure began.

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In People of the State of Michigan v. Hill, the Michigan Court of Appeals reversed the suppression of evidence and resulting dismissal of a manufacture of marijuana charge, holding that the community caretaker exception to the warrant requirement was satisfied under the facts of the case.  Police responded to a call by Defendant’s neighbor expressing concern for Defendant’s well-being.  When police officers arrived after midnight, the neighbor explained to the officers that she had not heard the typical sounds of Defendant working at night, and that Defendant’s car had been unused for several days.  The police noted the leaves on Defendant’s car, that he had old mail in his mailbox, and that his home lights were on.  Police repeatedly knocked on doors, yelled through a window, and called the home phone number.  Receiving no response, the officers decided to enter the home for a welfare check.  Upon opening a closet door “tall enough for a person,” the officers found marijuana plants.  The trial court suppressed the evidence based on warrantless entry, but the Court of Appeals held that the community caretaker exception applied under these facts.  Critically, the Court found that the officers were motivated by a perceived need to render assistance, and that it was reasonable under the circumstances to conclude that the defendant might be in the home and in need of assistance.  Additionally, the court of appeals held that the good faith exception to the exclusionary rule would allow admission of the evidence even if the officers had violated the Fourth Amendment.

In a dissenting opinion, Judge Markey took the view that the community caretaker exception should not apply, finding no support for the officers’ conclusion that defendant might be in his home or in need of immediate assistance.  Judge Markey found that the circumstances known to officers merely indicated that the homeowner might be away for a weekend trip, and that there was no emergency situation which could justify warrantless entry.

In lieu of granting leave to appeal in People v. Mack, the Michigan Supreme Court affirmed the judgment of the Court of Appeals in a 4-3 decision.  In a memorandum opinion, the majority held that the legislatively created rule of evidence, MCL 768.27b, which addresses the admissibility of evidence in domestic-violence cases that a defendant has committed other acts of domestic violence, did not infringe on the Michigan Supreme Court’s constitutional authority to establish the rules of “practice and procedure in all courts of this state.”  The majority determined that the statute did not infringe on the Court’s authority even though in certain instances the statute expands the admissibility of evidence beyond the scope permitted by MRE 404(b)(1).  The majority held that the reasoning of People v. Watkins, 491 Mich 450; 818 NW2d 296 (2012), which addressed a similar statute, MCL 768.27a, regarding the admissibility of evidence that a defendant accused of certain sexual offenses against a minor has committed other sexual offenses against a minor, fully controls in this case.

In a dissenting opinion, Justice Marilyn Kelly, joined by Justices Cavanagh and Hathaway, disagreed with the majority’s conclusion, reasoning that because the statute conflicts with MRE 404(b) and regulates a matter of procedure, that the Legislature “overstepped its constitutional authority when enacting it.”  The dissent concluded that the statute is unconstitutional and violated the separation of powers.  The dissent would grant leave to appeal to reconsider Watkins.

In People v. King, Case No. 301793, the Court of Appeals upheld the provision in the defendant’s sentence subjecting him to lifetime electronic monitoring following his conviction for two counts of criminal sexual conduct in the first degree (“CSC-I”) where the victim was 13 years old.  The Court noted that it reached this result only because it was required to do so in light of People v. Brantley, __ Mich. App. __ (Case No. 298488 May 17, 2012).  The Court found that MCL 750.520b(2)(b), 520(c), and 520(n) are ambiguous regarding whether a defendant convicted of any CSC-I offense is subject to mandatory lifetime electronic monitoring, or whether the statute requires this monitoring only where the victim is under 13 years old.  Accordingly the Court requested that a conflict panel be convened to review this issue. Read more »

During a fourth and final police interview, the defendant confessed to murdering his brother and sister-in-law.  At that point in the pretrial proceedings, the confession was the primary evidence implicating defendant in the murders.  The trial court excluded the testimony of one expert witness (a social psychologist), who proposed to testify regarding police interrogation techniques and the existence of “false confessions.”  The trial court also excluded the testimony of another expert witness (a clinical and forensic psychologist), who proposed to testify regarding defendant’s psychological profile, which he constructed from psychological tests and clinical interviews of defendant, as well as to testify that the circumstances of defendant’s confession were consistent with the literature on false confessions.  The Court of Appeals concluded that the trial court’s determination that the social psychologist’s testimony was unreliable and would not assist the trier of fact was not an abuse of discretion.  The Court of Appeals also concluded that the trial court’s determination that the clinical and forensic psychologist’s testimony would not assist the trier of fact, after the testimony regarding false confessions was excluded, also did not constitute an abuse of discretion.

In a lead opinion authored by Justice Mary Beth Kelly, and joined by Chief Justice Young and Justice Zahra, the Michigan Supreme Court in People v. Kowalski determined that the claim of a false confession is “beyond the ken of common knowledge”—an inquiry that focuses on whether the proposed expert testimony is on a matter that would be commonly understood by the average person—and thus satisfied the threshold requirement under MRE 702 that the proposed expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue.”  Thus, the lead opinion held that expert testimony about false confessions is admissible when it satisfies the other requirements of MRE 702.  But the lead opinion also affirmed the exclusion of the social psychologist’s testimony and of the portion of the clinical and forensic psychologist’s testimony that was based on false-confession research because the testimony was not reliable.  Further, the Michigan Supreme Court held that exclusion of this testimony did not violate defendant’s Sixth Amendment right to present a defense.  The Michigan Supreme Court, however, reversed the lower courts’ rulings excluding the clinical and forensic psychologist’s testimony regarding the psychological testing he performed and remanded the case to the trial court to determine its admissibility.

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Yesterday, the Michigan Supreme Court denied two applications for leave to appeal and held two cases in abeyance pending the United States Supreme Court’s decision in Chaidez v. U.S., ___U.S.__; 132 S.Ct. 2101;__L.E.2d__(2012).  In Chaidez, the Supreme Court will decide whether it’s previous decision in Padilla v. Kentucky applies retroactively to defendants whose counsel failed to advise them that pleading guilty to the offense would subject them to deportation, even if that advice and guilty plea came before the Padilla decision was announced.

The Court also denied rehearing in People v. Rao, Case No. 142537.  This criminal case involved the question of whether “newly discovered” radiological studies and an expert report, which defendant claims suggested that the child abuse victim suffered from metabolic bone disease, were sufficient to reverse his conviction and require a new trial. 

Chief Justice Young authored a concurring opinion to explain the reasons he believed this “newly discovered evidence” did not require reversal of defendant’s conviction.  First, he noted that the x-ray itself is outside of the purview of the jurors to understand without expert opinion testimony.  Second, the second piece of proffered evidence—a report from a defense expert—relies on Dr. Gibson’s earlier study to conclude that the victim may have suffered from a bone disease.  Dr. Gibson specifically replied to this later report and noted that there was no evidence, in his opinion, suggesting the existence of this condition in the victim.  Chief Justice Young opined that the third piece of evidence, a radiological report from Dr. Gibson, was the only piece of evidence which defendant could rely on to support his request.  However, the Chief Justice concluded that this study did not suggest that the victim had metabolic bone disease.  Instead, the report notes that the abnormalities and irregularities in the child’s ribs may be due “to old fractures”.  In light of this, the Chief Justice concluded that none of this newly-discovered evidence was exculpatory, and therefore defendant was not entitled to a new trial.

Justices Hathaway and Marilyn Kelly would have granted the defendant’s request for a rehearing.

The Court split 4-3 in deciding that a state statute permitting propensity evidence against defendants accused of sex crimes against minors is valid, and thus trumps MRE 404(b)’s prior bad acts prohibition.

The decision affirmed the Court of Appeals in People v. Watkins and reversed People v. Pullen.  MCL 768.27a(1) permits introduction of propensity evidence relating to prior bad acts against minors in cases where the defendant is accused of one of a list of sex offenses against a minor.  The Court held, in Justice Zahra’s majority opinion, that this statute trumps MRE 404(b), which would otherwise prohibit such evidence.  To do so, the Court further held that this law doesn’t impermissibly intrude on its court-rule-making prerogative in the Michigan Constitution.  The majority, joined by Justices Young, Markman, and Mary Beth Kelly, found that MCL 768.27a(1) reflected a substantive policy decision to protect children, which is a valid power of the Legislature.  Conversely, the majority held that the statute is not an invalid usurpation of the court’s ability to administer the conduct of trials and referee evidence admissibility.

Finally, the Court confirmed that evidence admitted under this statute remains subject to the prejudicial effect v. probative value test in MRE 403.  However, because of the statute, the propensity factor actually weighs in favor of probative value, not prejudicial effect, under the MRE 403 test.  In footnote 2, the Court noted that with the conclusion that MRE 403 still applies, it avoided the question of whether the statute would be invalid, as depriving defendants of due-process rights to a fair trial.   (However, this still seems to leave open individual, as-applied challenges to the statute.)

The dissent, authored by Justice Marilyn Kelly and joined by Justices Cavanagh and Hathaway, argued that MCL 768.27a(1) impermissibly intruded upon the Court’s rule-making providence, and therefore could not be upheld.

The Michigan Supreme Court also granted two applications in criminal cases, both examining assessment of 50 points for offense variable 7, MCL 777.37(1)(a), for acts beyond those necessary to commit the offense.