Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 17, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 116315
NETO ALAN LAYHER,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
Defendant appeals the judgment of the Court of Appeals
affirming his conviction for one count of first-degree
criminal sexual conduct, MCL 750.520b(1)(b)(ii), and two
counts of second-degree criminal sexual conduct, MCL
750.520c(1)(b)(ii).1 We granted leave limited to whether the
1
The trial court sentenced defendant to twenty to forty
years imprisonment for the first-degree CSC conviction and to
concurrent terms of eight to fifteen years imprisonment for
each second-degree CSC conviction.
trial court erred so as to require reversal in allowing the
prosecutor to cross-examine a defense witness concerning a
prior charge for which he was acquitted.
We conclude that the overly broad holding of People v
Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), which states
“no inquiry may be made regarding prior arrests or charges
against” a witness that did not result in a conviction, is
inconsistent with precedent and with the approach to the
admission of evidence that we have followed since the adoption
of the Michigan Rules of Evidence.2 We hold, consistent with
existing precedent and the Michigan Rules of Evidence, that a
trial court may allow inquiry into prior arrests or charges
for the purpose of establishing witness bias where, in its
sound discretion, the trial court determines that the
admission of evidence is consistent with the safeguards of the
Michigan Rules of Evidence.
We conclude that evidence of the witness’ prior arrest
without conviction to show the witness’ bias was admissible
under MRE 402 and MRE 403. The judgment of the Court of
Appeals is affirmed and the defendant’s conviction is upheld.
I
Defendant, Neto Layher, was convicted by jury over his
general denial of three counts of criminal sexual conduct
2
The Michigan Rules of Evidence were adopted by this
Court on January 5, 1978. 402 Mich lxxxviii.
2
involving his minor niece, the complainant. During trial, all
witnesses were sequestered.
In the summer of 1996, complainant was fifteen and
staying with her grandmother, defendant’s mother.
Complainant, who is mentally slow, testified at trial that
three incidents occurred sometime before July 5, 1996. During
the first incident, defendant rubbed complainant’s breasts and
genitals, first over and then under her clothes, while she was
sleeping in her grandmother’s bedroom. Complainant testified
that she did not tell anyone because she was scared. The
second incident happened when she was sleeping on the floor in
her grandmother’s room while her grandmother and complainant’s
sibling slept in the bed nearby. Defendant woke her by
touching her over her clothes in the same manner as before.
He left the room and then returned again, this time touching
her under her clothes as before. Defendant asked her if she
would tell. Again, she testified that she said she would not
because she was scared. The third incident occurred when
complainant was lying on her grandmother’s bed. No one else
was in the room. She testified that defendant gave her five
dollars because she was not going to tell and then took the
money back. Defendant again began rubbing complainant under
her clothes. During this incident, complainant testified that
defendant penetrated her vagina with his finger.
3
Complainant and her siblings had, throughout their lives,
been moved from the home of one family member to the next. As
a result, none of the witnesses were able to testify with
specificity regarding when the children were at one home or
another. For example, complainant’s grandmother testified
that the children were not with her at the beginning of the
summer of 1996, but, rather, were with her at the end of the
summer. The grandmother’s testimony was inconsistent with
that of all the other witnesses.
Sometime after the incidents described above, complainant
and her two siblings went to live with Karen Byrd, the
girlfriend of another uncle. Complainant and Ms. Byrd
testified that complainant told Ms. Byrd of the incidents.
Ms. Byrd then contacted the authorities. Soon after the
authorities became involved, complainant and her siblings were
moved from Ms. Byrd’s home to the home of Christine (Layher)
Walton, an aunt.
While the children were staying with Ms. Walton, Robert
(Bob) Ganger, who was working for defense counsel, was sent by
defense counsel to investigate the case. Mr. Ganger testified
that he was sent in response to a call defense counsel
received saying that Ms. Walton and complainant wanted to talk
to an attorney. It was not specified who made that call.
Mr. Ganger first visited with Ms. Walton and then with Ms.
Walton and complainant on two additional visits. Mr. Ganger
4
became the lead defense witness as a result of these
conversations.
As a result of the conflict in testimony between Mr.
Ganger and complainant, the prosecution sought to introduce
the fact that Mr. Ganger had been tried and acquitted on the
charge of criminal sexual conduct involving a child under the
age of thirteen. The prosecution reasoned:
My position is that is certainly relevant in
this case to show bias. Bias is very important for
the jury to hear. And this particular
charge . . . is necessary for the jury to hear
about because of this particular case and the fact
that Neto Layher is charged with a criminal sexual
conduct.
I certainly think that that shows bias that
he’s going to try to assist another person who has
been charged with the same thing he’s been charged
with, and obviously I would believe he would think
wrongly accused of.
The trial court allowed the cross-examination to proceed. The
Court of Appeals affirmed3 the trial court’s ruling on this
evidentiary matter. We granted leave to appeal, limited to
whether the trial court abused its discretion by allowing
introduction of this evidence of Mr. Ganger’s prior arrest and
acquittal.
II
A
We review evidentiary decisions for abuse of discretion.
3
238 Mich App 573; 607 NW2d 91 (1999).
5
People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998); People
v Bahoda; 448 Mich 261, 289; 531 NW2d 659 (1995). The trial
court’s decision on close evidentiary questions cannot “by
definition” be an abuse of discretion. People v Golochowicz,
413 Mich 298, 322; 319 NW2d 518 (1982). However, where
decisions regarding the admission of evidence involve
preliminary questions of law such as whether a rule of
evidence or statute precludes admissibility, our review is de
novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607
(1999).
Logical relevance is the foundation for admissibility.
People v VanderVliet, 444 Mich 52, 60; 508 NW2d 114 (1993).
Logical relevance is defined by MRE 402 and MRE 401. MRE 402
provides:
All 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. Evidence which is not relevant
is not admissible.
As defined by MRE 401, “relevant evidence” is evidence that
has “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.”
B
The prosecutor introduced evidence of Mr. Ganger’s past
arrest and acquittal of criminal sexual conduct involving a
6
child less than thirteen to create an inference of bias on the
part of Mr. Ganger in favor of defendant. Bias is a common
law evidentiary term used “to describe the relationship
between a party and a witness . . . in favor of or against a
party. Bias may be induced by a witness’ like, dislike, or
fear of a party, or by the witness’ self-interest.” United
States v Abel, 469 US 45, 52; 105 S Ct 465; 83 L Ed 2d 450
(1984).
In Abel, the United States Supreme Court addressed the
issue of bias in the context of the Federal Rules of Evidence
(on which the MRE are modeled). The defendant and a defense
witness in that case belonged to the Aryan Brotherhood, a
secret prison gang that encouraged members to commit perjury,
theft, and murder to protect each other. The Abel Court
concluded that evidence showing a witness’ membership in the
gang was sufficiently probative of bias to warrant its
admission. The Court first noted that the FRE govern the
admissibility of such evidence, but that, while the rules
address impeachment of a witness by character evidence and
conduct (FRE 608), by evidence of a criminal conviction (FRE
609), and by showing of religious beliefs or opinion (FRE
610), they do not expressly address impeachment for bias. Id.
at 49. The Court concluded that possible bias of a witness is
a permissible basis of impeachment under the FRE despite the
omission of any express treatment of impeachment for bias.
7
After reiterating the nature and admissibility of relevant
evidence under FRE 401 and FRE 402, the Court stated at p 51:
A successful showing of bias on the part of a
witness would have a tendency to make the facts to
which he testified less probable in the eyes of the
jury than it would be without such testimony.
* * *
We think the lesson to be drawn from all of
this is that it is permissible to impeach a witness
by showing his bias under the Federal Rules of
Evidence just as it was permissible to do so before
their adoption. . . .
The Court explained the meaning of “bias” as follows:
Bias is a term used in the “common law of
evidence” to describe the relationship between a
party and a witness which might lead the witness to
slant, unconsciously or otherwise, his testimony in
favor of or against a party. Bias may be induced
by a witness’ like, dislike, or fear of a party, or
by the witness’ self-interest. Proof of bias is
almost always relevant because the jury, as finder
of fact and weigher of credibility, has
historically been entitled to assess all evidence
which might bear on the accuracy and truth of a
witness’ testimony. [Id. at 52.]
Addressing first the relevance inquiry of FRE 401, the
Court concluded that evidence of the defendant’s and defense
witness’ membership in the Aryan Brotherhood “supported the
inference that [the witness’] testimony was slanted or perhaps
fabricated in [the defendant’s] favor. A witness’ and a
party’s common membership in an organization, even without
proof that the witness or party has personally adopted its
tenets, is certainly probative of bias.” Id. Having found
the evidence relevant, the Court then addressed whether the
8
prejudicial effect of this evidence substantially outweighed
its probative value under FRE 403. The Court noted that the
trial court had taken reasonable precautions (not permitting
the impeachment witness to mention the gang by name, and
giving a limiting instruction concerning the use of the
testimony) and concluded that these precautions ensured that
“the admission of this highly probative evidence did not
unduly prejudice the respondent.” Id. at 55. The Court
accordingly found no abuse of discretion in the trial court’s
decision to admit the impeaching testimony.
We agree with the Abel Court that evidence of bias is
“almost always relevant.” We have consistently reaffirmed our
observation in People v MacCullough, 281 Mich 15, 26; 274 NW
693 (1937), that “The interest or bias of a witness has never
been regarded as irrelevant.” Indeed, as we note below, MRE
611(b) states that “[a] witness may be cross-examined on any
matter relevant to any issue in the case, including
credibility.”
C
Regarding the admissibility of evidence concerning Mr.
Ganger’s prior arrest and acquittal, the trial court reasoned:
This is cross-examination. The Prosecutor is
entitled to elicit information to support any claim
that she may have that he’s biased. She certainly
could argue on the one hand that the witness would
be biased because he is employed, I would assume,
by you and your client. She could also and
apparently seeks to do so, argue that as a result
9
of him being accused and acquitted of a crime which
he claims he did not do of a very similar nature,
that he is therefore biased in the Defendant’s
favor and presumably would color his testimony to
help the Defendant, another person who he may
believe would also be wrongly accused of the same
crime.
We agree with the trial court that the evidence of Mr.
Ganger’s prior arrest and acquittal is logically relevant
under MRE 401. As noted in Abel, supra at 52, “[p]roof of
bias is almost always relevant because the jury, as finder of
fact and weigher of credibility, has historically been
entitled to assess all evidence that might bear on the
accuracy and truth of a witness’ testimony.” Further, the
trial court has wide discretion regarding admissibility of
bias during cross-examination under MRE 611.4 Wischmeyer v
Shanz, 449 Mich 469, 475; 536 NW2d 760 (1995). Mr. Ganger’s
prior arrest for, and acquittal of, a charge involving the
sexual abuse of a child supports the inference that Mr. Ganger
would color his testimony in favor of defendant.
Nevertheless, logically relevant evidence may be excluded
as “otherwise provided by the Constitution of the United
States, the Constitution of the State of Michigan, these
4
MRE 611 provides in pertinent part:
(b) Scope of cross-examination. A witness may
be cross-examined on any matter relevant to any
issue in the case, including credibility. The
judge may limit cross-examination with respect to
matters not testified to on direct examination.
10
rules, or other rules adopted by the Supreme Court.” MRE
402.5 We must therefore consider whether, despite its logical
relevance, the evidence of Mr. Ganger’s prior arrest and
acquittal should have been excluded.
III
On appeal, defendant argues that the evidence should be
excluded pursuant to the “rule” of People v Falkner, as well
as by analysis under MRE 403 and MRE 609.
A
First, Defendant argues that the admission of a witness’
prior arrest without conviction violates the holding in
Falkner. In 1973, Falkner held that
in the examination or cross-examination of any
witness, no inquiry may be made regarding prior
arrests or charges against such witness which did
not result in conviction . . . . [Id. at 695.][6]
5
As to whether Falkner is a “rule adopted by the Supreme
Court” within the meaning of MRE 402, we need not decide, in
the context of this case, whether that phrase applies to
evidentiary “rules” established by decisions of this Court
that predate the adoption of the MRE. As the United States
Supreme Court in Abel assumed that the “rule” concerning
impeachment for bias existed before the adoption of the FRE
and continued to exist thereafter, we assume, for the purposes
of this case, that the Falkner “rule” similarly continued to
exist after the adoption of the MRE. Abel, supra at 51-52.
6
People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973),
relied on Falkner to hold the impeachment of a criminal
defendant with evidence that he was previously charged with
the same offense for which he stood trial warranted a new
trial. Rappuhn stated that Falkner “speaks to the impeachment
of any witness by use of an arrest record.” Rappuhn at 271.
In People v Sanders, 394 Mich 439, 440; 231 NW2d 639 (1975),
this Court characterized Falkner as prohibiting the
11
This Court has not addressed whether Falkner precludes the use
of evidence of a prior arrest or charge without conviction
where offered for the purpose of showing witness bias.
The Court of Appeals acknowledged that Falkner’s holding
was “phrased broadly,” but created an exception that would
allow evidence of a prior arrest that did not result in a
conviction where it “is not used to directly impeach the
witness but to bring out the witness’ bias or interest in the
outcome of the case.” 238 Mich App at 578, quoting People v
Hogan, 105 Mich App 473, 483; 307 NW2d 72 (1981). The panel
relied on Court of Appeals cases that it characterized as
limiting Falkner’s prohibition of the use of prior arrests for
the purpose of impeaching a witness’ credibility generally.
Hogan, supra, and People v Bostic, 110 Mich App 747; 313 NW2d
98 (1981).
Falkner speaks generally about the impeachment and
discrediting of witnesses by use of prior arrests.7 However,
as we have observed above, Falkner did not address the well
impeachment of a witness’ credibility “by reference to an
arrest which does not result in conviction.”
7
Specifically, Falkner dealt with the impeachment of two
defense alibi witnesses with evidence of their prior
convictions for receiving stolen property. In the course of
conducting this proper impeachment, the prosecutor also
questioned the witnesses, without objection from the
defendant, regarding the fact that these convictions
represented reductions from the charged offense of unarmed
robbery. 389 Mich 686-687.
12
established authority holding that cross-examination of a
witness regarding bias is “always relevant.” MacCullough,
supra. Because Falkner’s holding did not exclude impeachment
regarding a witness’ bias, we conclude that an express
limitation of Falkner is warranted and reasonable. As
explained in Davis v Alaska, 415 US 308, 316; 94 S Ct 1105; 39
L Ed 2d 347 (1974), quoting 3A Wigmore, Evidence (Chadbourn
rev), § 940, p 775:
A more particular attack on the witness’
credibility is effected by means of cross
examination directed toward revealing possible
biases, prejudices, or ulterior motives of the
witness as they may relate directly to issues or
personalities in the case at hand. The partiality
of a witness is “always relevant as discrediting
the witness and affecting the weight of his
testimony.”
Falkner’s arguably absolute prohibition of the introduction of
prior arrests without conviction conflicts with this Court’s
traditionally liberal view of cross-examination regarding
witness bias. Wilson v Stilwill, 411 Mich 587, 599; 309 NW2d
898 (1981)(“There is ‘a general canon that on cross
examination the range of evidence that may be elicited for any
purpose of discrediting is to be very liberal,’” quoting 3A
Wigmore, Evidence (Chadbourn rev), § 944, p 778 (emphasis in
original); Hayes v Coleman, 338 Mich 371, 381; 61 NW2d 634
(1953)(“It is always permissible upon the cross-examination of
an adverse witness to draw from him any fact or circumstance
13
that may tend to show his relations with, feelings toward,
bias or prejudice for or against, either party, or that may
disclose a motive to injure the one party or to befriend or
favor the other”).
A proponent’s attempt to discredit a witness’ testimony
by showing that the witness may be biased in favor of, or
against, a party or witness, is highly relevant, particularly
in cases like the present, where that witness is effectively
the sole source of evidence that contradicts the accuser.
Denying the factfinder this type of evidence undermines the
truth-seeking process.
We therefore hold that evidence of bias arising from past
arrest without conviction is admissible if relevant, as long
as its probative value is not substantially outweighed by the
danger of unfair prejudice. MRE 403. Because prejudicial
inferences may also be drawn from evidence of past arrests,
“we instruct the bench and bar to employ the evidentiary
safeguards already present” in the Michigan Rules of Evidence
in determining the admissibility of a past arrest that did not
result in conviction. VanderVliet, supra at 74.
B
We next apply this holding to the case before us. In
doing so we address the defendant’s argument that the
admission of the evidence violated MRE 403. MRE 403 provides:
14
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Mr. Ganger’s testimony on direct examination about his
conversations with complainant and her aunt, Ms. Walton,
contradicted the complainant’s, and was offered by the defense
to discredit complainant’s accusations. Most significantly,
Mr. Ganger testified that the complainant told him that the
defendant had not sexually assaulted her and that she had been
threatened by the prosecution with perjury if she refused to
testify.
As a result of these and other contradictions, the
prosecutor offered and was allowed by the trial court to
pursue the following line of questioning on cross-examination
of Mr. Ganger to impeach him:
Q. Mr. Ganger, isn’t it true that in 1992 you
were charged with criminal sexual conduct first
degree against a child under the age of 13?
A. Yes, I was.
Q. And you were tried for that, correct?
A. Yes, I was.
Q. And you were acquitted, is that correct?
A. Yes, I was.
Q. And you were aware when you went to speak
to Olivia and Christine that Mr. Layher was charged
with criminal sexual conduct in the first degree?
15
The prosecution’s stated purpose for the admission of this
evidence was to establish bias that may have affected both Mr.
Ganger’s manner of investigating the case and his testimony at
trial.
The defendant contends that evidence of Mr. Granger’s
prior arrest and acquittal on charges of criminal sexual
conduct against a child had “nothing to do” with the case
against defendant. We disagree. Mr. Ganger, like defendant,
denied that he was guilty of the charges. Conceivably, being
wrongly accused of the same charge pending against defendant,
Mr. Ganger would perhaps be overly vigilant in researching the
case and consciously or unconsciously slant his testimony at
trial. Furthermore, the fact of Mr. Ganger’s acquittal on the
charge lessens the prejudicial effect. We hold that the trial
court did not abuse its discretion in determining that the
probative value of Mr. Ganger’s past arrest and acquittal on
the same charge pending against defendant was not
substantially outweighed by the danger of unfair prejudice.
MRE 403.
C
Finally, the defense argues that admission of Mr.
Ganger’s prior arrest and acquittal violated MRE 609. We
disagree. MRE 609 provides for the impeachment of witnesses
by evidence of convictions of crimes containing elements of
dishonesty or false statement or crimes containing an element
16
of theft with certain conditions. MRE 609 only applies to the
use of past convictions; it does not address the use of past
arrests that do not result in convictions for the purpose of
showing a witness’ bias. We therefore reject and need not
further address the defense argument that MRE 609 precluded
admission of past arrests that do not result in conviction.
IV
For the reasons stated, the judgment of the Court of
Appeals and the defendant’s conviction are affirmed.
CORRIGAN , C.J., and TAYLOR , YOUNG, and MARKMAN , JJ.,
concurred with WEAVER , J.
17
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 116315
NETO ALAN LAYHER,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I agree with the majority that, in appropriate
circumstances, trial courts may admit evidence of a prior
arrest not resulting in conviction for the purpose of
establishing witness bias. I agree, also, that neither People
v Falkner1 nor MRE 609 bars this evidence, and that an
analysis of whether it is admissible is governed by MRE 401
and MRE 403.
I write separately because I believe this Court should
give further guidance about when prior arrests are admissible
1
389 Mich 682; 209 NW2d 193 (1973).
to show bias. I would require that, before evidence of prior
arrests is admitted, there must be a showing that a
particularized bias exists. Also, there must be a reasonable
degree of probability that the earlier arrest caused the
witness to be biased. Such a holding would assist trial judges
in analyzing whether to admit evidence of prior arrests to
show bias and protect against abusive use of arrests on cross
examination.
Moreover, I disagree with the majority's conclusion that
the trial judge did not abuse his discretion in admitting
evidence of Mr. Ganger's past arrest. I would conclude that
the trial judge's failure to weigh the challenged evidence's
probative value against its danger of prejudice constitutes an
abuse of discretion. Because it appears that the error in this
case resulted in a miscarriage of justice, I would reverse the
Court of Appeals decision. Accordingly, I respectfully
dissent.
I. The Admissibility of Past Arrests
to Show Witness Bias
As the majority recites, evidence of a past arrest may be
admitted, in appropriate circumstances, to show witness' bias.
And, as United States v Abel states,2 proof of bias is often
relevant because "the jury, as finder of fact and weigher of
2
469 US 45, 52; 105 S Ct 465; 83 L Ed 2d 450 (1984).
2
credibility, has historically been entitled to assess all
evidence which may bear on the accuracy and truth of a
witness' testimony."
However, the decision to allow evidence of past arrests
that did not result in convictions is an ominous one.3 First,
there is a seemingly endless series of circumstances under
which bias could be inferred. See 3A Wigmore, Evidence
(Chadbourn rev), § 949, p 784. Also, as the majority admits,
prejudicial inferences may be drawn from this type of
evidence. See slip op at 16. Thus, the decision to admit past
arrests should be undertaken with great caution.
More importantly, admitting evidence of one's past
arrests may have the regrettable effect of deterring witnesses
from testifying.4 This would represent as significant a
hindrance to the truth-seeking process as would a rule
precluding bias evidence altogether.
For these reasons, I find inadequate the majority's
simple instruction that the bench and bar should "employ the
evidentiary safeguards already present" in the Michigan Rules
3
See Carolina v State, 839 P2d 663, 666 (Ok Crim App,
1992), noting the multiple concerns associated with using
prior arrests to show bias.
4
See State v Taylor, 498 SW2d 614, 619 (Mo App, 1973)
(McMillian, J., concurring); cf. State v Cadena, 9 Ariz App
369, 371-372; 452 P2d 534 (1969), acknowledging that the
potential effect of introducing a witness' prior bad acts is
that it may discourage witnesses from testifying.
3
of Evidence when analyzing the admissibility of past arrests
to show witness bias. Slip op at 16. Let it be clear that I
agree that MRE 4015 and MRE 4036 are the guiding principles to
be used to determine the admissibility of prior arrests to
show bias. However, considering the significant concerns
associated with admitting them, further direction is
warranted.
I would require that, before trial judges admit evidence
of earlier arrests to show bias, they find the existence of a
particularized bias.7
I would require, also, that trial judges find that a
reasonable degree of probability exists that the evidence of
the earlier arrest caused the witness to be biased. As the
court in Smith observed, "[i]n those cases in which courts
5
"'Relevant evidence' means evidence 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."
6
"Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
7
An example of particularized bias arises where, for
example the accusation against the defense witness "grew out
of the same episode which led to the charge for which the
defendant is standing trial." See Commonwealth v Smith, 26
Mass App 673, 678, n 1; 532 NE2d 57 (1988). See also State v
Lewis, 328 So 2d 75, 79 (La, 1976), stating that the witness'
bias is admissible where it is "direct or personal, rather
than indirect or general in nature."
4
have countenanced examination about prior arrests or pending
charges to suggest bias on the part of the witness, there has
generally been a link between the witness's entanglement with
law enforcement and the main case on trial." Id. at 676. The
court in Carolina stated that "there must be a nexus between
the arrest of the witness and the conclusion of bias . . . ."
Carolina, supra at 666.8
These two directives would provide needed assistance to
trial judges called upon to make the difficult determination
whether to admit evidence of past arrests. More specifically,
it would help trial judges determine the probative value of
the proffered evidence and whether that value is substantially
outweighed by the danger of unfair prejudice. It would also
lessen the occurrence of unrelated collateral attacks on
witnesses, while keeping the focus of trials on the truth
seeking process.9
8
See, e.g., State v Moynahan, 164 Conn 560, 600-602; 325
A2d 199 (1973), holding that there was no error where the
prosecutor inquired about a witness' prior arrest. The arrest
stemmed from the same investigation and involved the same type
of criminal behavior and the same informer as that pertaining
to the defendant's trial.
9
This opinion should not be construed as advocating a
heightened standard for admitting prior arrests to show bias.
The directives articulated above are not meant to be
interpreted as inconsistent with MRE 403. Rather, they are
given to (1) protect against misuse of this subject of cross
examination, and (2) provide an enlightened basis for the
trial court's determination of relevance and its decision
(continued...)
5
These directives would be especially helpful where, as
here, a witness' prior arrest is unrelated to the factual
circumstances that gave rise to the trial at which he is
testifying. I do not deny the possibility that evidence of an
earlier arrest may be properly admitted in this scenario.10
However, if the evidence creates merely a remote inference of
bias, it should be excluded. Compare Dardi, supra at 336,
with Gaston v State, 451 NE2d 360, 365 (Ind App, 1983).
9
(...continued)
whether to exclude evidence under MRE 403. In the analogous
context of MRE 404(b) evidence, this Court has given
directives for similar reasons. See People v VanderVliet, 444
Mich 52, 74, 89, n 51; 508 NW2d 114 (1993); People v Crawford,
458 Mich 376, 388; 582 NW2d 785 (1998), stressing that the
relationship between the proffered MRE 404(b) evidence and the
ultimate fact sought to be proven must be "closely
scrutinized." In Crawford, we gave this directive in
recognition of the fact that determining the admissibility of
other acts evidence is often difficult. See also People v
Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000),
clarifying the degree of similarity required in order to admit
evidence based on the theory of common plan, scheme, or
system, under MRE 404(b).
10
See, e.g., State v Sweeney, 443 So 2d 522, 529-530 (La,
1983), where the prosecutor properly inquired into the prior
arrest of the witness. The witness' prior arrest had been
made by the same officers who arrested and testified against
the defendant; United States v Dardi, 330 F2d 316, 336 (CA 2,
1964), noting that where a prior arrest may have embittered a
witness so as to motivate her testimony in a particular
manner, the evidence would be relevant; Waters v State, 360 So
2d 358, 365-366 (Ala Crim App, 1978), there was no error where
the prosecutor cross-examined a defense witness about an
incident where she was arrested together with defendant, even
though the arrest was for a crime unrelated to that
prosecution.
6
In Dardi, a witness, Brann, testified for the government.
Thereafter, the defense called McCollom, who testified that
Brann's reputation for veracity in Switzerland was "just as
poor as it could possibly be." Id at 336. On cross
examination, the prosecution asked McCollom whether there was
an outstanding warrant against McCollom in Switzerland for
embezzling $50,000. That question fairly probed the likelihood
that McCollom harbored a bias against Brann, because Brann had
revealed information that led to the embezzlement charge. In
Gaston there was a prosecution for dealing in a controlled
substance. A cross-examination of the defendant's alibi
witness, Cruse, regarding Cruse's prior arrest for marijuana
possession was found to be improper. The Court reasoned that
there was no nexus connecting the fact of the arrest and the
conclusion of bias.11
This case is of the type that presents the greatest
challenge to determining the admissibility of prior arrests.
I believe that the steps I have articulated would greatly
assist trial judges.
11
See also Lewis, supra at 79-80, holding that cross
examination of a defense witness directed at whether his
brother had been arrested for an unrelated offense was too
remote and, thus, improper. The Court explained that any bias
that may have resulted from the witness' arrest was "too
remote" and involved "too collateral an issue" to be
admissible on a bias theory.
7
II. The Trial Court's Abuse Of Discretion
The majority holds that "the trial court did not abuse
its discretion in determining that the probative value of Mr.
Ganger's past arrest and acquittal on the same charge pending
against defendant was not substantially outweighed by the
danger of unfair prejudice." Slip op at 18. I disagree.
This court reviews evidentiary decisions for an abuse of
discretion. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659
(1995). The term "discretion" involves "'the idea of choice,
of an exercise of the will, of a determination made between
competing considerations.'" People v Talley, 410 Mich 378,
387; 301 NW2d 809 (1981),12 quoting People v Williams, 386 Mich
565, 573; 194 NW2d 337 (1972).
Here, the trial court, over defense objection,13 admitted
evidence of Mr. Ganger's prior arrest. It articulated its
rationale as follows:
All right. Well, the Court would rule that the
evidence is relevant and it's probative and the
12
Partially overruled on other grounds People v Kaufman,
457 Mich 266, 276; 577 NW2d 466 (1998)
13
In objecting, defense counsel argued that no exception
to the Michigan Rules of Evidence supported the admission of
the challenged evidence. He urged that the evidence served
merely to suggest to the jury that Mr. Ganger was "a bum."
Furthermore, defense counsel argued that the evidence should
not come in until there was a showing that "[Mr. Ganger has]
actually got some bias . . . ." Thus, the objection preserved
the issue whether the prior arrest was admissible under MRE
403. The prosecutor has not argued otherwise.
8
issue is whether or not the witness--whether a
-
witness, as in all witnesses' testimony, is whether
the witnesses' testimony is credible and should be
believed.
This is cross-examination. The Prosecutor is
entitled to elicit information to support any claim
that she may have that he's biased. She certainly
could argue on the one hand that the witness would
be biased because he is employed, I would assume,
by you and your client. She could also and
apparently seeks to do so, argue that as a result
of him being accused and acquitted of a crime which
he claims he did not do of a very similar nature,
that he is therefore biased in the Defendant's
favor and presumably would color his testimony to
help the Defendant, another person who he may
believe would be also wrongly accused of the same
crime.
It's not being offered under [MRE] 609. It's
not being offered to impeach his credibility
because he was convicted of a crime. It's being
offered to show bias for a very specific purpose
which the Court would rule is a legitimate purpose
and it is relevant and it is material and it is
probative and I will allow it.
My review of the record below persuades me that the trial
judge failed to conduct any type of MRE 403 balancing
analysis.14 Although the trial judge discussed the challenged
evidence's probative value and relevance, there is no
14
By explicitly weighing the MRE 403 factors, trial courts
maintain the appearance of justice by showing the parties that
the dictates of the law were recognized and followed. It also
facilitates appellate review. See United States v Johnson, 820
F2d 1065, 1069 (CA 9, 1987); United States v Robinson, 544 F2d
611, 616 (CA 2, 1976), aff'd en banc on rehearing 560 F2d 507
(CA 2, 1977), stating that Federal Rule of Evidence 403 (after
which MRE 403 is modeled), was designed principally to promote
correct factual determinations in individual cases and actual
and perceived fairness in the judicial process.
9
indication that he considered its prejudicial effect.15
Consequentially, there is nothing in the record supporting the
conclusion that the trial judge weighed the danger of unfair
prejudice associated with the challenged evidence against its
probative value.16
Therefore, I find erroneous the majority's conclusion
that the probative value of Mr. Ganger's past arrest and
acquittal was not substantially outweighed by the danger of
unfair prejudice. The record establishes that the trial court
never made a determination to that effect.17 Thus, I would hold
15
I do not suggest that trial judges must state magic
words in order for their MRE 403 analyses to survive appellate
scrutiny. However, there should be some indication on the
record that the trial judge conducted the proper inquiry.
Compare, State v Micko, 393 NW2d 741, 745 (ND, 1986), finding
error where the record revealed that the trial judge failed to
make the essential balancing required of him under North
Dakota Rule of Evidence 403; with United States v
Merriweather, 78 F3d 1070, 1079, n 1 (CA 6, 1996), reluctantly
finding no error requiring reversal where the record supported
the conclusion that the district court implicitly held that
the balance under FRE 403 favored admission; however, the
court reiterated that district courts should make an express
determination under FRE 403.
16
Furthermore, there is no indication that the trial court
took any reasonable precautions to lessen the prejudicial
effect of the evidence. Cf. Abel, supra at 55, where the
district court admitted evidence that a witness belonged to a
gang that required its members to commit perjury; however, the
court prevented testimony regarding the name of the gang to
minimize potential prejudice.
17
The majority asserts that the fact of Mr. Ganger's
acquittal on the charge lessens the prejudicial effect.
However, there is no indication from the record that the trial
(continued...)
10
that the trial court's failure to do so constitutes an abuse
of discretion. See generally Talley, supra at 387; see also
United States v Robinson, 174 US App DC 224, 229; 530 F2d 1076
(1976), stating that it is preferable that district courts
perform the FRE 403 balancing analysis expressly.
III. The Error Requires Reversal.
My determination that the trial court abused its
discretion would not end the matter. Rather, this Court can
reverse because of the error only if defendant establishes
that it is more probable than not that the error resulted in
a miscarriage of justice. MCL 769.26. In my view, defendant
has sustained his burden.
Here, the only evidence of defendant's guilt was the
testimony of the complainant. Thus, Ganger's credibility was
key. Had the jury believed Ganger's testimony that the
complainant stated on two separate occasions that defendant
did not sexually touch her, defendant would likely have been
acquitted. The effect of the evidence that defendant's star
witness had been charged with molesting a young child cannot
17
(...continued)
court relied on this fact in admitting the challenged
evidence. Thus, I find this fact inapposite. See also Old
Chief v United States, 519 US 172, 182, n 6; 117 S Ct 644; 136
L Ed 2d 574 (1997), stating that, when reviewing trial courts'
decisions to admit evidence of prior bad acts, "[i]t is
important that a reviewing court evaluate the trial court's
decision from its perspective when it had to rule and not
indulge in review by hindsight."
11
be underestimated. Hence, it affirmatively appears more
probable than not that the error was outcome determinative.
IV. Conclusion
Evidence of a witness' past arrests may be admitted to
establish bias if, in its sound discretion, the trial court
determines that admission is consistent with the safeguards of
the Michigan Rules of Evidence. However, to ensure against
abuse of this rule, I would require a finding that a
particularized bias exists, and that it is reasonably probable
that the past arrest caused witness bias.
Here, the trial court's failure to analyze the challenged
evidence's prejudicial effect and to compare that to its
probative value was an abuse of discretion. Because it
affirmatively appears that the error in this case resulted in
a miscarriage of justice, I would reverse the Court of Appeals
decision to affirm defendant's convictions.
CAVANAGH , J., concurred with KELLY , J.
12