Michigan Supreme Court
Lansing, Michigan 48909
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Chie f Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED NOVEMBER 19, 2002
LESLIE WAKNIN,
Plaintiff-Appellant,
v No. 120299
RICHARD CHAMBERLAIN,
Defendant-Appellee.
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PER CURIAM
Defendant was convicted of assault and battery.
Plaintiff, the victim, then brought this civil suit against
defendant for assault and battery, in part on the basis of the
same act that resulted in defendant’s conviction. The trial
court, relying on Wheelock v Eyl, 393 Mich 74, 79; 223 NW2d
276 (1974), held that evidence of defendant’s conviction could
not be introduced in this civil case. The jury thereafter
returned a verdict of no cause of action. The trial court,
relying on its earlier decision and MRE 403, denied
plaintiff’s motion for a new trial. The Court of Appeals,
relying on MRE 403, affirmed. Unpublished opinion per curiam,
issued October 12, 2001 (Docket No. 224042). Because we
conclude that evidence of defendant’s conviction should not
have been excluded in this subsequent civil case on the basis
of either Wheelock or MRE 403, we reverse the judgment of the
Court of Appeals and remand the case to the trial court for a
new trial.
I
Defendant was convicted of assault and battery for an
incident that occurred on May 6, 1996. Subsequently,
plaintiff, the victim of the incident that gave rise to
defendant’s conviction, brought this civil suit against
defendant, seeking damages for a series of assaults that
allegedly occurred in July of 1995, as well as the alleged
assault and battery of May 6, 1996, that resulted in
defendant’s conviction. Defendant moved to exclude evidence
of his prior conviction, and the trial court granted this
motion, concluding that Wheelock bars the admission of a
defendant’s conviction for purposes of establishing civil
liability.1 Following a trial, the jury returned a verdict of
1
Defendant also moved to preclude plaintiff from
presenting any witnesses because plaintiff had been directed
in a pretrial order to file with the court a list of
witnesses, but he failed to do so. As a result, the trial
court only allowed plaintiff to present the witnesses that
plaintiff had listed in his answer to an interrogatory asking
plaintiff who he was going to call as witnesses. Because
plaintiff failed to list, as a potential witness, the police
2
no cause of action. Plaintiff then filed a motion for a new
trial, arguing that the trial court had erred in excluding
evidence of defendant’s conviction. The trial court denied
plaintiff’s motion, concluding that not only was evidence of
the conviction inadmissible under Wheelock, but it was also
inadmissible under MRE 403 because it would have been more
prejudicial than probative.
The Court of Appeals affirmed the order of the trial
court. The Court did not address the merits of the rule
announced in Wheelock, but instead based its decision on MRE
403. It concluded that the trial court had not abused its
discretion in holding that the probative value of evidence of
defendant’s conviction was outweighed by its prejudicial
effect.2
II
officer who apparently was involved in the criminal assault
and battery charge against defendant, the officer was not
allowed to testify. We agree with the Court of Appeals that
the trial court did not abuse its discretion when it precluded
this officer’s testimony. The trial court may, pursuant to
MCR 2.401(I)(2), preclude any witnesses not named in a witness
list from testifying. In this case, plaintiff concedes that
he did not file a witness list and offers no reason for
failing to do so.
2
The Court of Appeals also concluded that the trial
court did not err in holding that defendant’s criminal
conviction was not admissible for the purpose of impeachment
because, pursuant to MRE 609(a), only crimes containing an
element of dishonesty, false statement, or theft are
admissible to impeach a witness, and an assault and battery
conviction does not involve any of these elements.
3
We review for an abuse of discretion a trial court’s
decision whether to admit evidence. People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999). To the extent that this
inquiry requires examination of the meaning of the Michigan
Rules of Evidence, we address such a question in the same
manner as the examination of the meaning of a court rule or a
statute, which are questions of law that we review de novo.
Id.; Cam Constr v Lake Edgewood Condominium Ass’n, 465 Mich
549, 553; 640 NW2d 256 (2002).
III
This Court in Wheelock, supra at 79, stated that “a
criminal conviction after trial, or plea, or payment of a fine
is not admissible as substantive evidence of conduct at issue
in a civil case arising out of the same occurrence.” After
Wheelock was decided, the Michigan Rules of Evidence were
adopted. An analysis of these rules, as discussed below,
leads us to conclude that the rule announced in Wheelock, at
least as it pertains to the use of a conviction in a
subsequent civil case, did not survive their adoption. This
Court has previously determined that a rule announced in an
opinion by this Court did not survive the adoption of the
Michigan Rules of Evidence. See People v Kreiner, 415 Mich
372, 377; 329 NW2d 716 (1982)(holding that the “tender years”
exception did not survive the adoption of the Michigan Rules
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of Evidence). “In Kreiner, this Court essentially held that
the Michigan Rules of Evidence constituted a codification of
the rules of evidence that superseded the common-law rules.”
People v Starr, 457 Mich 490, 502, n 12; 577 NW2d 673 (1998).
MRE 101 provides that “[t]hese rules govern proceedings
in the courts of this state to the extent and with the
exceptions stated in Rule 1101.” None of the exceptions set
forth in rule 1101 are applicable here. One of the rules that
govern court proceedings in this state is MRE 402. MRE 402
provides that “[a]ll relevant evidence is admissible, except
as otherwise provided by the Constitution of the United
States, the Constitution of the State of Michigan, these
rules, or other rules adopted by the Supreme Court.” MRE 401
defines relevant evidence as that “having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.”
In this case, the fact that defendant had been convicted
of assault and battery for the same conduct that plaintiff is
now seeking civil damages for certainly “would have a tendency
to make the existence of any fact that is of consequence . .
. more probable or less probable than it would be without the
evidence.” Accordingly, defendant’s conviction is relevant
evidence, and thus admissible, unless otherwise precluded by
5
the Michigan or federal constitution, the rules of evidence,
or other rules adopted by the Supreme Court.
In our judgment, the trial court abused its discretion in
finding that defendant’s conviction was more prejudicial than
probative. MRE 403 provides: “Although relevant, evidence may
be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice . . . .” (Emphasis added.)
Evidence is not inadmissible simply because it is prejudicial.
Clearly, in every case, each party attempts to introduce
evidence that causes prejudice to the other party. In People
v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995), we stated:
All evidence offered by the parties is
"prejudicial" to some extent, but the fear of
prejudice does not generally render the evidence
inadmissible. It is only when the probative value
is substantially outweighed by the danger of unfair
prejudice that evidence is excluded.
“Relevant evidence is inherently prejudicial;
but it is only unfair prejudice, substantially
outweighing probative value, which permits
exclusion of relevant matter under Rule 403. . . .
Its major function is limited to excluding matter
of scant or cumulative probative force, dragged in
by the heels for the sake of its prejudicial
effect. . . . It is not designed to permit the
court to ‘even out’ the weight of the evidence, to
mitigate a crime, or to make a contest where there
is little or none.” [United States v McRae, 593
F2d 700, 707 (CA 5, 1979).][3]
3
Similarly, in People v Crawford, 458 Mich 376, 398; 582
NW2d 785 (1998), we stated: “Rule 403 does not prohibit
prejudicial evidence; only evidence that is unfairly so.
Evidence is unfairly prejudicial when there exists a danger
that marginally probative evidence will be given undue or
preemptive weight by the jury.”
6
In this case, the trial court concluded that “the
prejudicial effect would clearly outweigh any probative
value.” The Court of Appeals agreed with this conclusion
without conducting its own analysis. The lower courts here
appear to have focused exclusively on the word “prejudice” and
overlooked the word “unfair.” As we have repeatedly stated,
only evidence whose probative value is substantially
outweighed by its unfair prejudice is inadmissible. The trial
court here stated:
[C]learly the prejudicial effect [of
defendant’s conviction] would be tremendous.
Essentially, school would be out. Plaintiff wants
to just prove his civil case by introducing the
conviction that was secured in district court, and
obviously that would be a bombshell against a
defendant in a civil case who had the jury find out
And, in People v Vasher, 449 Mich 494, 501; 537 NW2d 168
(1995), we stated:
In this context, prejudice means more than
simply damage to the opponent's cause. A party's
case is always damaged by evidence that the facts
are contrary to his contentions, but that cannot be
grounds for exclusion. What is meant here is an
undue tendency to move the tribunal to decide on an
improper basis, commonly, though not always, an
emotional one.
Evidence presents the danger of unfair
prejudice when it threatens the fundamental goals
of MRE 403: accuracy and fairness. Gold, Federal
Rule of Evidence 403: Observations on the nature of
unfairly prejudicial evidence, 58 Wash L R 497
(1983). The perceived danger here is that the jury
would decide that this evidence is more probative
of a fact than it actually is.
7
that a different jury in a criminal case had
convicted him of an assault.
Although we agree with the lower courts that the admission of
defendant’s conviction would be prejudicial, we do not agree
that this prejudicial effect would be unfair.
Defendant’s conviction is not merely marginally probative
evidence, and thus there is no danger that marginally
probative evidence will be given undue weight by the jury.
Rather, that defendant was found guilty beyond a reasonable
doubt—a standard of proof granting him protection greater than
the preponderance of the evidence standard in the civil
case—is highly probative evidence. Where a civil case arises
from the same incident that resulted in a criminal conviction,
the admission of evidence of the criminal conviction during
the civil case is prejudicial for precisely the same reason it
is probative. That fact does not, without more, render
admission of evidence of a criminal conviction unfair, i.e.,
substantially more prejudicial than probative. Defendant had
an opportunity and an incentive to defend himself in the
criminal proceeding. For these reasons, we conclude that the
trial court abused its discretion in precluding evidence of
defendant’s conviction on the basis that its probative value
was substantially outweighed by the danger of unfair
prejudice.
We express no opinion regarding whether pleas of nolo
8
contendere are admissible as substantive evidence in
subsequent civil proceedings.
IV
The trial court abused its discretion in barring the
admission of evidence of defendant’s conviction by a jury on
the basis that the introduction of this evidence would violate
MRE 403. To the extent that Wheelock is inconsistent with the
subsequently enacted Rules of Evidence, it did not survive
their adoption. Accordingly, we reverse the judgment of the
Court of Appeals and remand the case to the trial court for a
new trial.
Maura D. Corrigan
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH, J.
I would not dispose of this case by opinion per curiam,
but would grant leave to appeal.
Michael F. Cavanagh
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