Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 11, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 119818
JONATHAN JOE JONES,
Defendant-Appellee.
________________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
Following a jury trial, defendant was convicted of first
degree murder, MCL 750.316, and conspiracy to commit murder,
MCL 750.157a. The Court of Appeals reversed defendant’s
convictions, holding that defendant was denied a fair trial
when the prosecution elicited testimony from its “key witness”
that the witness had taken and passed a polygraph test.
Although we agree with the Court of Appeals that introduction
of this testimony was error, we hold that defendant’s
convictions should not be reversed because the unpreserved,
nonconstitutional error did not affect defendant’s substantial
rights.
We reverse the judgment of the Court of Appeals and
remand the matter to that Court to address an issue that was
raised before that Court, but not decided.
I
On August 11, 1998, at approximately 2:00 to 3:00 a.m.,
a Saginaw resident named Oliver R. Henderson was kicked and
stomped to death1 by two men. The prosecution alleged the
assailants to be Kim G. Martin and the defendant.
The evidence against the defendant included a DNA match
of the victim's blood on defendant’s trousers,2 which were
seized from defendant’s house, inculpatory statements that he
made before and after the killing, testimony concerning the
defendant’s actions two hours after the assault, and testimony
of an eyewitness.
Julie Pryor, who has a child fathered by defendant,
testified that before the assault defendant had said that he
was going to take revenge on the person that had taken his
television.
“A. [Pryor] said, I’m going to get them, you know. I’m
going to hurt them. I’m going to beat them up.
* * *
1
Mr. Henderson died in January 1999, after five months
in a coma.
2
At trial, a scientist from the Michigan State Police
DNA lab testified that there were bloodstains matching the
victim’s blood found on Kim Martin’s shoes, as well as on
pants belonging to defendant.
2
“A. [Pryor] I can’t recall exactly, but I know he said,
I am going to get that M-F-r. I’m going to kick his A.”
Pryor testified that, after 5:00 a.m. on August 11, defendant
had come home, asked her if the police had been by, and
changed his clothes. Pryor also testified that later she
asked defendant if he had attacked the victim, “Rodell,” and
that defendant admitted that he had done it.
“Q. Did you have occasion to speak with the defendant,
Jonathan Joe Jones, about what had happened to Rodell [the
deceased]?
“A. Yeah, but it wasn’t once or twice maybe.
“Q. Where was it that you spoke to him about it?
“A. At Mike’s house.
“Q. What did he say about what had happened to Rodell?
“A. I just asked him, you know, why he did it. And he
said he took the TV and told him why. He wouldn’t say nothing
else.
“Q. Did he seem remorseful?
“A. No.
“Q. Did he tell you any specific acts that he had done to
Rodell?
“A. No.
* * *
“Q. So you asked him specifically if he had done this to
Rodell?
“A. Yes.
“Q. And he admitted to you that he had?
“A. Yeah.”
Pryor also testified that on another occasion, while defendant
3
was talking about the victim, she overheard defendant say “he
stomped his ass.”
On the first day of trial, while cross-examining a police
officer, defense counsel sought to demonstrate that Ricky
Jones,3 an eyewitness to the killing, had told multiple
stories during the course of the investigation. Counsel asked
the officer, “In fact, you gave Mr. Jones a polygraph on two
different occasions, is that correct?” The circuit court
sustained the assistant prosecutor's immediate objection, and
the question was never answered.
At the next recess, the assistant prosecutor moved for a
mistrial:
I'm moving for a mistrial based upon [defense
counsel's] referral to the fact that Ricky Jones
was given a polygraph test. Clearly if the People
brought this out about defendant it would be
grounds for a mistrial, and I believe it's just as
inappropriate for defense to attack a prosecution
witness through the use of inadmissible evidence as
it would be for the People to do the same thing.
The court denied the motion:
Well, I believe it could be handled by a
curative instruction. I don't think it manifests
necessity and jeopardy has attached. I will deny
the motion.
No curative instruction was given, nor was one requested by
either party.
The following day, Ricky testified. Ricky stated that
3
Ricky Jones is not a relative of the defendant. To
prevent any confusion we will refer to him throughout the
opinion as “Ricky.”
4
Kim Martin was kicking the victim in the head. After a time,
Martin asked defendant, "Did you want a piece of this?"
Defendant then joined in. Defendant jumped and landed with
both feet on the victim's head four or five times. Ricky
acknowledged that he drank three to five forty-ounce beers
over a twelve to fourteen hour period on the day of the
attack, and had ingested $30 to $40 worth of crack cocaine
several hours before witnessing the attack. Near the end of
his testimony on direct examination by the assistant
prosecutor, the following exchange occurred.
“Q. Did you take a polygraph in this case?
“A. Yes.
“Q. Did you pass that?
“A. Yes.
“[Defense Counsel]: I’m going to object.
“The Court: Sustained.
“[Assistant Prosecuting Attorney]: Judge, that was
brought up yesterday over my objection.
“The Court: Sustained. Sustained. Move on. Move on.”
No curative instruction was offered or requested, nor did
defendant move to strike the witness’s answer.
At the conclusion of the jury trial, defendant was found
guilty of first-degree murder and conspiracy to commit murder.
He was sentenced to two concurrent terms of life imprisonment.
Defendant appealed to the Court of Appeals, which
5
reversed defendant’s convictions.4 The Court of Appeals
focused on the assistant prosecutor’s question to Ricky about
the polygraph examination that he had taken and passed. The
Court of Appeals held that the assistant prosecutor’s question
violated the bright-line rule that testimony concerning the
result of a polygraph examination is not admissible at trial.
People v Barbara, 400 Mich 352, 377; 255 NW2d 171 (1977). The
Court of Appeals reversed defendant’s convictions, holding
that the error was prejudicial to defendant and seriously
affected the fairness of the judicial proceeding.
We granted the prosecutor’s motion for leave to appeal
limited to the issue whether defendant’s conviction should be
reversed because the assistant prosecutor asked a key witness
whether he had taken and passed a polygraph examination.
II
In our grant of leave to appeal, we asked the parties to
address the doctrine of invited error.5 However, our review
of this case has convinced us that invited error is not the
4
Unpublished opinion per curiam, issued July 17, 2001
(Docket No. 221264).
5
The order stated, in part: “If this was error, what
category of error was it, and by what standard should the
Court decide whether the error warranted reversal of the
defendant’s convictions? The parties are to address
specifically whether any error that occurred was ‘invited’ by
the defense. See United States v Young, 470 US 1 (1985);
Vannoy v City of Warren, 386 Mich 686 (1972); People v Finley,
431 Mich 506, 543 n 11 (1988) (Cavanagh, J.). The parties are
to further discuss whether and, if so, how, the ‘invited
error’ doctrine fits into this Court’s jurisprudence regarding
forfeiture and waiver of error. See People v Carines, 460
Mich 750 (1999); People v Carter, 462 Mich 206 (2000).” 465
Mich 974 (2002).
6
relevant doctrine. Rather, it would be more accurate to
characterize the applicable doctrine as “invited response.”6
The doctrine of invited response is used as an aid in
determining whether a prosecutor’s improper remarks require
the reversal of a defendant’s conviction. It is used not to
6
“Invited error” is typically said to occur when a
party’s own affirmative conduct directly causes the error.
For example, in Vannoy v City of Warren, 386 Mich 686, 690;
194 NW2d 304 (1972), this Court explained that a party cannot
seek appellate review of an instruction that he himself
requested, saying, "Assuming error as claimed, that error
comes within the purview of what of tradition and common sense
is known as 'invited error.'" Appellate review is precluded
because when a party invites the error, he waives his right to
seek appellate review, and any error is extinguished. People
v Carter, 462 Mich 206, 214-215; 612 NW2d 144 (2000). To the
contrary, in this case the alleged error was not directly
attributable to the affirmative conduct of defendant and
defendant cannot be said to have waived the alleged error—the
prosecutor’s overreaching—for appellate review.
A doctrine that is related to the “invited response”
doctrine, but not applicable in this case, is the doctrine of
“fair response.” Under the doctrine of fair response, there
is no error because a party is entitled to fairly respond to
issues raised by the other party. We adopted the doctrine of
“fair response” in People v Fields, 450 Mich 94; 538 NW2d 356
(1995). Regarding what is fair response, this Court in Fields
stated, “[t]he nature and type of comment allowed is dictated
by the defense asserted, and the defendant’s decision
regarding whether to testify. When a defense makes an issue
legally relevant, the prosecutor is not prohibited from
commenting on the improbability of the defendant’s theory or
evidence.” Id. at 116. See also United States v Robinson, 485
US 25, 31; 108 S Ct 864; 99 L Ed 2d 23 (1988) (holding that
when the prosecutor’s statement that the defendant could have
explained his story to the jury was made in response to the
comments made by defense counsel, the prosecutor’s statements
did not infringe the defendant’s Fifth Amendment rights). In
contrast, although the prosecutor’s conduct in this case was
“invited” in the sense that defense counsel “opened the door”
to the admission of the polygraph examination evidence, it
cannot be characterized as “fair.” The response is not “fair”
because evidence of a polygraph test is clearly inadmissible,
the prosecutor demonstrably knew that the evidence was not
admissible, and the prosecutor did not avail himself of the
curative instruction offered by the court to remedy
defendant’s improper questioning, choosing instead to resort
to a self-help remedy entailing inadmissible evidence.
7
excuse improper comments, but to determine their effect on the
trial as a whole. Darden v Wainwright, 477 US 168, 182; 106
S Ct 2464; 91 L Ed 2d 144 (1986).
The United States Supreme Court has recognized that the
doctrine of invited response has an appropriate place in
determining whether the prosecutor’s closing remarks affected
the fairness of a trial. United States v Young, 470 US 1, 12
13; 105 S Ct 1038; 84 L Ed 2d 1 (1985). Under the doctrine of
invited response, the proportionality of the response, as well
as the invitation, must be considered to determine whether the
error, which might otherwise require reversal, is shielded
from appellate relief. Young, supra.
We now apply this doctrine as an aid to determine whether
the prosecutor’s improper introduction of evidence at trial
affected the fairness of the trial. In determining the effect
of the prosecutor’s improper introduction of the polygraph, we
must analyze the circumstances surrounding that error,
including the defense counsel’s conduct. Whether Ricky had
taken a polygraph examination (and, inevitably, whether Ricky
had passed the examination) was introduced by defense counsel.
By its very nature, especially in the context of the defense’s
attack on the credibility of Ricky, this question tended
strongly to imply that Ricky had “failed” the polygraph
examination. Nevertheless, we specifically disapprove of the
prosecutor’s knowing inappropriate behavior in introducing the
evidence of the polygraph examination. The prosecution
objected to defense counsel’s improper question, and the court
8
sustained that objection. Further, the court offered to
provide a curative instruction, although ultimately one was
not requested by either party. It was the assistant
prosecutor who then decided on his own to offer the
inadmissible evidence in rebuttal to the defense attorney’s
question about the polygraph. As the Court emphasized in
Young, the idea of invited response is not to be read as
suggesting judicial approval of response-in-kind. Id. at 10.
In this case, the trial court had offered the remedy of a
curative instruction. The prosecution was not entitled to
take the matter of balancing the equities into its own hands.
A prosecutor has the responsibility of a minister of justice,
not simply that of an advocate.
III
The issue is whether the assistant prosecutor’s question
to Ricky about the polygraph test is error requiring reversal
of defendant’s convictions. We review this under the
standards for unpreserved, nonconstitutional error. Defense
counsel objected to the prosecutor’s questions, but only after
they had already been answered, and did not request that the
answers be stricken. We agree with the rule that to be
timely, an objection should be interposed between the question
and the answer. See In re Weiss, 224 Mich App 37, 39; 568
NW2d 336 (1997). The purpose of requiring objections to be
timely, see MRE 103(a)(1), is to give the trial court an
9
opportunity to correct the error. People v Grant, 445 Mich
535, 551; 520 NW2d 123 (1994). Accordingly, we review
defendant’s claim of error under the standard for unpreserved,
nonconstitutional error set out in People v Grant, supra, and
People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
To avoid forfeiture of an unpreserved, nonconstitutional
plain error, the defendant bears the burden of establishing
that: (1) error occurred, (2) the error was plain, i.e., clear
or obvious, and (3) the plain error affected substantial
rights. Grant, supra at 548-549, and Carines, supra at 763.
Once the defendant establishes these three elements, the
appellate court must still exercise its discretion in deciding
whether to reverse. Reversal is warranted only when the
plain, unpreserved error resulted in the conviction of an
actually innocent defendant or when an error seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings independent of the defendant’s innocence.
Carines, supra at 763.
We agree with the Court of Appeals that the first two
criteria were met. As the parties concede, testimony
concerning the result of a polygraph examination is not
admissible at trial, Barbara, supra. The bright-line rule
that evidence relating to a polygraph examination is
inadmissible is well established. See Barbara, supra, and
People v Brocato, 17 Mich App 277, 290-294; 169 NW2d 483
10
(1969). Further, the assistant prosecutor had earlier
objected to defense counsel’s attempt to inject a reference to
the polygraph examination. Thus, there is no question that
this was plain error.
The question is whether this plain error affected
defendant’s substantial rights. To establish that a plain
error affected substantial rights, there must be a showing of
prejudice, i.e., that the error affected the outcome of the
lower-court proceedings. Grant, supra. The defendant bears
the burden of persuasion with respect to prejudice. Carines,
supra, p 763. The Court of Appeals held that the error
required reversal because Ricky was the prosecution’s key
witness—the only eye witness to the attack. We disagree, and
hold that defendant has failed to meet his burden of
persuasion regarding prejudice.
As we outlined above, there was substantial evidence
corroborating Ricky’s testimony. Bloodstains matching the
victim’s blood were found on Kim Martin’s shoes and
defendant’s pants. There was testimony that two hours after
the attack, the defendant returned home, asked Julie Pryor if
the police had been there, and changed his clothes. Further,
Julie Pryor testified that she had heard defendant admit
committing the attack on the victim.
We also consider, as a factor in determining whether the
error affected defendant’s substantial rights, that this was
an invited response. Although the testimony that Ricky had
11
passed the polygraph examination did tend to improperly
bolster his credibility, it clearly was in rebuttal to the
defense counsel’s earlier, inaccurate suggestion that Ricky
had failed a polygraph examination. The prosecutor elicited
the testimony that the witness had actually passed the
polygraph to rebut this false implication. However, there
would have been no need to rebut such a false implication if
defense counsel had not previously attacked Ricky’s
credibility with the use of inadmissible evidence. We find
that this reduces any potential harm resulting from the
improper polygraph evidence introduced by the prosecutor.7
Contrary to the dissent’s assertion, we do not hold that
the invited-response doctrine excuses the prosecutor’s
“willful and deliberate side-stepping of the trial court’s
ruling . . . .” Post at 3. Rather, as we have explained, n
6, the prosecutor’s conduct did not constitute a “fair
response”; the prosecutor improperly took matters into his own
hands by eliciting the inadmissible evidence regarding the
polygraph test. Nevertheless, much as the United States
Supreme Court did in Young, supra, we have examined the
7
We do not “dim[] the brightness” of the rule
prohibiting the admission of polygraph-examination evidence,
despite the dissent’s assertion to the contrary, post at 8.
The bright-line rule in People v Barbara, supra, that
testimony concerning the result of a polygraph examination is
not admissible at trial remains intact. We reverse the
holding of the Court of Appeals that defendant was denied a
fair trial because we conclude that this unpreserved,
nonconstitutional error did not affect defendant’s substantial
rights.
12
prosecutor’s conduct in context and have determined that
although error occurred, reversal under the plain-error
doctrine is not warranted.
In Young, the defendant was on trial for mail fraud and
other crimes arising out of a transaction with Apco Oil
Corporation. During summation, defense counsel intimated that
the prosecution deliberately withheld exculpatory evidence and
attempted to cast a false light on the defendant’s activities.
Defense counsel pointed at the prosecutor’s table and stated:
“I submit to you that there’s not a person in this courtroom
including those sitting at this table who think that [the
defendant] intended to defraud Apco.” Young, supra at 4-5
(citation omitted). The prosecutor did not object to defense
counsel’s summation, but responded to this statement during
rebuttal argument by commenting: “‘I think [defense counsel]
said that not anyone sitting at this table thinks that Mr.
Young intended to defraud Apco. Well, I was sitting there and
I think he was. . . . If we are allowed to give our personal
impressions since it was asked of me.’” Id. at 5 (citation
omitted). Defense counsel did not object and did not request
any curative instructions. On appeal, however, defendant
argued that he was unfairly prejudiced by the prosecutor’s
remarks during rebuttal.
The Court held that the issue was not whether the
prosecutor’s response was appropriate, but whether it was
“plain error” that a reviewing court could act on absent a
13
timely objection. The Court noted that both defense counsel
and the prosecutor played fast and loose with the rules of
professional conduct; the Court cautioned that “[t]he kind of
advocacy shown by this record has no place in the
administration of justice and should neither be permitted nor
rewarded; a trial judge should deal promptly with any breach
by either counsel.” Id. at 9. However, the Court held that
“the issue is not the prosecutor’s license to make otherwise
improper arguments, but whether the prosecutor’s ‘invited
response,’ taken in context, unfairly prejudiced the
defendant.” Id. Thus, the reviewing court must “not only
weigh the impact of the prosecutor’s remarks, but must also
take into account defense counsel’s opening salvo.” Id. at 12
(emphasis supplied.) The Court concluded:
[T]he prosecutor’s statement of his belief
that the evidence showed Apco had been defrauded
should not have been made; it was an improper
expression of personal opinion and was not
necessary to answer defense counsel’s improper
assertion that no one on the prosecution team
believed respondent intended to defraud Apco.
Nevertheless, we conclude that any potential harm
from this remark was mitigated by the jury’s
understanding that the prosecutor was countering
defense counsel’s repeated attacks on the
prosecution’s integrity and defense counsel’s
argument that the evidence established no such
crime. [Id. at 17-18 (emphasis supplied).]
We find the Young Court’s plain error analysis to be
persuasive. The facts of this case are directly analogous to
those present in Young: The prosecutor and defendant each
played fast and loose with the rules of professional conduct
14
when they, in turn, attempted to place inadmissible polygraph
evidence before the jury. However, as in Young, any potential
prejudice to defendant resulting from the prosecutor’s conduct
was mitigated by the fact that he was acting in response to
defense counsel’s own improper attempt to create a false
inference that Ricky had failed a polygraph examination.
Moreover, in light of the substantial evidence of defendant’s
guilt, the error cannot be said to have been outcome
determinative.
Given the substantial evidence corroborating Ricky’s
testimony and establishing defendant’s guilt and defense
counsel’s prior, improper attempt to create a false inference
that Ricky had failed a polygraph examination, the additional
improper bolstering created by the testimony that Ricky had
taken and passed a polygraph test was not outcome
determinative.
Because defendant has not met his burden of establishing
that the error complained of affected the outcome of the
lower-court proceedings, defendant did not establish the three
elements necessary to avoid forfeiture. Accordingly,
defendant forfeited the claim of error by not timely objecting
to the assistant prosecutor’s question to Ricky about the
polygraph test.
Conclusion
For these reasons, we reverse the judgment of the Court
of Appeals and reinstate the judgment of the circuit court.
15
MCR 7.302(F)(1). The Court of Appeals did not address
defendant’s argument that his convictions should be reversed
because the circuit court admitted gruesome photographs. We
remand the case to the Court of Appeals to address that issue.
We do not retain jurisdiction.
Elizabeth A. Weaver
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
16
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 119818
JONATHAN JOE JONES,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (dissenting).
I must respectfully dissent. I agree with the majority
only to the extent that introduction of the polygraph evidence
constitutes an unpreserved error. To avoid forfeiture of an
unpreserved error, whether constitutional or
nonconstitutional, a defendant must prove three things: (1)
the error occurred, (2) the error was plain, and (3) the plain
error affected defendant’s substantial rights.1 See People v
Grant, 445 Mich 535, 548-549; 520 NW2d 123 (1994); People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
1
Whether the error is constitutional or
nonconstitutional has no effect on the test to be employed in
determining whether an unpreserved error ultimately warrants
reversal. However, I think it is important to note that
improper introduction of polygraph-examination evidence is
arguably a violation of a defendant’s constitutional right to
a fair trial, as guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution. People v
Barbara, 400 Mich 352; 255 NW2d 171 (1977).
I agree with the majority that defendant has met the
first two prongs. However, I must respectfully dissent from
the remainder of the opinion because I disagree with the
majority’s assertion that defendant has not met his burden of
persuasion with respect to the effect the error had on his
substantial rights.
An error “affecting substantial rights” is an error that
is “prejudicial.” In Grant, supra at 553, this Court held
that
a plain, unpreserved error may not be considered by
an appellate court for the first time on appeal
unless the error could have been decisive of the
outcome or unless it falls under the category of
cases, yet to be clearly defined, where prejudice
is presumed or reversal is automatic. [Emphasis in
original.]
While, admittedly, there is other evidence against defendant
in this case, bolstering the credibility of the (otherwise
incredible) sole eyewitness with the admission of polygraph
examination results is clearly prejudicial.
Polygraph-examination evidence is excluded from trial
because it “ha[s] not received the degree of standardization
or acceptance among scientists which would warrant
admissibility.” People v Barbara, 400 Mich 352, 364; 255 NW2d
171 (1977). One of the earliest cases in which this Court
examined the admissibility of polygraph examinations was
People v Davis, 343 Mich 348; 72 NW2d 269 (1955). In that
2
case, this Court recognized “[t]he tremendous weight which
such tests would necessarily carry in the minds of [jurors].”
Id. at 372. Although the majority notes the bright-line rule
against introducing polygraph-examination evidence, the
majority minimizes the effect of that violation on defendant’s
substantial rights by calling it an “invited response.”
The majority’s use of the doctrine of “invited response”
“as an aid to determine whether the prosecutor’s improper
introduction of evidence at trial affected the fairness of the
trial” ante at 8, is flawed in two major respects. First, the
“invited response” rule does not allow a party to introduce
evidence in response to an improper action. Both cases on
which the majority relies, Darden v Wainwright, 477 US 168;
106 S Ct 2464; 91 L Ed 2d 144 (1986), and United States v
Young, 470 US 1; 105 S Ct 1038; 84 L Ed 2d 1 (1985), involved
“responses” made in the prosecutor’s closing remarks, not
“responses” in the form of clearly inadmissible evidence. The
prosecutor’s willful and deliberate sidestepping of the trial
court’s ruling on his objection is not the type of “response”
contemplated by the “invited response” doctrine. The doctrine
of “invited response,” as adopted by the United States Supreme
Court, does not allow a prosecutor to introduce evidence in
derogation of the trial court’s ruling that such evidence is
improper simply because it is a “response” to defense
3
counsel’s actions. The majority claims that “[t]he facts of
the instant case are directly analogous to those present in
Young: The prosecutor and defendant each ‘played fast and
loose with the rules of professional conduct . . . .’” Ante
at 14. What the majority fails to recognize in its “analogy”
is that the attorneys in Young “played fast and loose with the
rules of professional conduct” in making their closing remarks
(which are not to be considered as evidence by the jury),
while the attorneys in this case played fast and loose with
introduction of evidence itself.
The second problem with the majority’s application of the
“invited response” doctrine is the failure to recognize that
the doctrine applies where there was no objection to the
initial impropriety.2 Here, the prosecutor timely objected to
the improper question regarding the polygraph examination.
The objection was sustained, and the question remained
unanswered. Yet, apparently because the prosecutor was
unsatisfied with the trial judge’s refusal to grant a
2
See Darden, supra (improper comments by prosecutor
were made in closing remarks, in response to comments made by
defense in opening summation); Young, supra at 13 (“the
prosecutor at the close of defense summation should have
objected to the defense counsel’s improper statements with a
request that the court give a timely warning and curative
instruction to the jury.”); Lawn v United States, 355 US 339,
359; 78 S Ct 311; 2 L Ed 2d 321 (1958) (defense counsel made
improper statements in closing argument, the prosecutor did
not object, but rather responded in his summation).
4
mistrial, he felt compelled to ignore the judge’s ruling and
elicit information regarding the polygraph examination on
cross-examination. The “invited response” doctrine should not
be expanded so it can be used as a vehicle for circumventing
the rulings of trial judges on the admissibility of evidence,
nor should it be applied so as to implicitly condone the
conduct of the prosecutor in this case.3
The proper procedure when a party attempts to introduce
inadmissible evidence is an objection. In this case, a proper
objection was made to defense counsel’s improper question; the
trial judge correctly sustained the objection. Instead of
requesting the curative instruction proposed by the judge, the
prosecutor chose to ignore the trial court’s ruling and
attempted to right the wrong on his own.
The majority’s expansion of the “invited response”
doctrine to allow total disregard for the rulings of the trial
judge, as well as the evidentiary rules, could have
catastrophic results. Allowing introduction of polygraph
examination evidence through the back door eviscerates the
3
I thank the majority for pointing out that the
prosecutor’s conduct was improper. Ante at 12. While I agree
that application of the “invited response” doctrine does not
expressly excuse the prosecutor’s behavior, it does implicitly
condone such behavior. Hopefully, this exchange between the
dissent and majority will clarify that the majority opinion
should not serve as an invitation to attorneys to defy the
rulings of trial judges.
5
protections guaranteed by the Michigan Rules of Evidence and
encourages attorneys to retaliate against the introduction or
attempted introduction of improper evidence in any manner they
see fit. The prosecutor in this case intentionally ignored
the trial court’s ruling and declined the proper method of
addressing defendant’s improper question. It is exactly this
type of misconduct that the Michigan Rules of Evidence are
intended to protect against.
The “rules are intended to secure fairness in
administration . . . to the end that the truth may be
ascertained and proceedings justly determined.” MRE 102. The
rules of evidence are meaningless if evidence that is not
admissible under the rules becomes admissible because of
egregious behavior on the part of the prosecutor in response
to an attempt to introduce improper evidence. This degrades
the authority of the trial judge and encourages prosecutorial
misconduct.
If one takes away the majority’s erroneous application of
the “invited response” doctrine, it is clear that defendant’s
substantial rights were affected by the introduction of the
improper polygraph-examination evidence. The evidence was
prejudicial to defendant because it could have affected the
outcome of the trial.
Once a defendant has shown that an unpreserved error was
6
a plain error that affected substantial rights, the appellate
court may, in its discretion, reverse defendant’s conviction.
“Reversal is warranted only when the plain, unpreserved error
result[s] in the conviction of an actually innocent defendant
or when an error seriously affect[s] the fairness, integrity,
or public reputation of the judicial proceedings independent
of the defendant’s innocence.” Ante at 10, citing Carines,
supra at 783.
The prosecutor’s deliberate introduction of polygraph
examination evidence, in derogation of the trial court’s
ruling, clearly affects the fairness, integrity, and public
reputation of judicial proceedings. Polygraph-examination
evidence is excluded from trial because it does not meet the
standard for admissibility of scientific evidence and because
of the potential effect on jurors. See Barbara, supra at 364;
see also Davis, supra at 372. The prosecutor’s flagrant
disregard for the trial judge’s ruling that the evidence was
not admissible clearly affects the integrity and public
reputation of judicial proceedings. As the majority correctly
notes, “[a] prosecutor has the responsibility of a minister of
justice, not simply that of an advocate.” Ante at 9.
To allow prosecutors (or defense attorneys) to introduce
polygraph-examination evidence in response to an improper
attempt to reduce or bolster a witness’s credibility
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undermines the integrity and public reputation of judicial
proceedings. In this case, the trial judge sustained the
prosecutor’s objection when defense counsel questioned a
witness about a polygraph examination. The judge also stated
that the error could be cured with an instruction. In spite
of the judge’s ruling, the prosecutor took matters into his
own hands and asked the witness about the polygraph
examination. This makes a mockery of the longstanding
prohibition on introduction of polygraph-examination evidence,
the prosecutor’s responsibility to act as a minister of
justice, and the trial judge’s ability to enforce rulings on
the admissibility of evidence.
Although the majority does not expressly permit violation
of the bright-line rule against introduction of polygraph
examination evidence, the evidence can be admitted through the
back door if the prosecutor chooses to disregard the trial
court’s ruling. In extending the “invited response” doctrine
to the admission of polygraph-examination evidence despite a
sustained objection, the majority dims the brightness of this
rule and opens the door to abuse by both parties.
The introduction of the polygraph-examination evidence
constitutes plain error that affected defendant’s substantial
rights. Because the prosecutorial misconduct also seriously
affected the integrity and public reputation of the
8
proceedings, I would affirm the judgment of the Court of
Appeals.
Michael F. Cavanagh
Marilyn Kelly
9