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1977

A Review of the Proposed Michigan Rules of Evidence A Review of the Proposed Michigan Rules of Evidence

James K. Robinson John W. Reed University of Michigan Law School, reedj@umich.edu

Available at: https://repository.law.umich.edu/articles/808

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Part of the Evidence Commons, and the State and Local Government Law Commons

Recommended Citation Recommended Citation Reed, John W. "A Review of the Proposed Michigan Rules of Evidence." J. Robinson, co-author. Mich. St. B. J. 56 (1977): 21-39.

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A Review Of The ProposedMichigan Rules Of Evidence

By James K. Robinson and John W. Reed

INTRODUCTIONOn January 6, 1977, the Supreme Court of Michigan entered an order stating that

it is considering adoption of the proposed Michigan Rules of Evidence which weresubmitted to the Court by the committee which it appointed in March 1975. The Courthas solicited comments from interested persons regarding the proposed rules. Acopy of the Supreme Court's order is published in this issue of the Bar Journal. Theproposed rules are published in the January 26, 1977, issue of North Western Re-porter, Second Series (Michigan Edition). The purpose of this article is to review ingeneral the background and substance of the proposed rules. More detailed informa-tion concerning the rules may be obtained by consulting the text of the rules and thecommittee notes thereto.

It is beyond the scope of this article to discuss in detail the policy considerationssupporting adoption of each proposed rule which conflicts with prior Michigan law.For the most part the proposed rules are identical with the Federal Rules of Evidenceand the policy considerations favoring adoption of the rules are discussed in theFederal Advisory Committee Notes and the legislative history of the Federal Rules.

EVIDENCE LAWREFORM GENERALLY

The first major effort to reform thelaw of evidence was undertaken by theAmerican Law Institute in 1939. Theproduct of that effort was the publica-tion of the Model Code of Evidence in1942. At that time Professor Morgan,in his foreword to the Model Code,said:

"[Tlhe rules of evidence have becomeso complicated as to invite compari-son with equity pleading, of whichStory wrote that the ability to under-stand and apply them 'requires vari-ous talents, vast learning, and aclearness and acuteness of percep-tion, which belong only to very giftedminds' ... It is time ... for radicalreformation of the law of evidence."Morgan, Foreword, American LawInstitute, Model Code of Evidence 5(1942).

The Model Code achieved little suc-cess in reforming the law of evidence.In 1953 the National Conference ofCommissioners on Uniform StateLaws published the Uniform Rules of

Evidence, which substantially revisedthe Model Code. Although the Uni-form Rules were well received byjudges, lawyers and law professors, therules were enacted only by the VirginIslands. In 1965 the California Legis-lature enacted the California EvidenceCode. The California Code is basedupon the Uniform Rules; however, thelegislature modified them to complywith California policy and practice. In1967, the New Jersey Supreme Courtpromulgated a modified version of theUniform Rules.

In 1965 the United States SupremeCourt appointed a committee to formu-late rules of evidence for the federalcourts. The Federal Rules of Evidencewere enacted by Congress and becameeffective July 1, 1975. At this writingat least six states have adopted rulesof evidence patterned after the FederalRules. These states are Wisconsin,Nevada, New Mexico, Nebraska, Maineand Arkansas. A number of otherstates are in the process of consider-ing adoption of evidence rules similarto the Federal Rules.

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For a more detailed discussion of thebackground of evidence law reform,including the background of the Fed-eral Rules of Evidence, see Spangen-berg, The Federal Rules of Evidence -An Attempt at Uniformity in FederalCourts, 15 Wayne L Rev 1061 (1969);Hungate, An Introduction to the Pro-posed Rules ofEvidence, 32 Fed B J 225(1973); Berger, An Introduction to theFederal Rules of Evidence, 2 LitigationNo. 1, p 8 (Fall 1975).

EVIDENCE LAW REFORMIN MICHIGAN

The prospect of imminent adoptionof the Federal Rules of Evidenceprompted the Board of Commissionersof the State Bar of Michigan to ap-point a special committee in 1974 toconsider the feasibility of adoptingrules of evidence for Michigan. Thespecial committee issued a report en-dorsing "the concept of a Michiganevidence code which adheres to thefederal rules of evidence except whereparticular state considerations requiredeviation." In support of its conclu-sion, the special committee quotedfrom the report of the California LawRevision Commission recommendingcodification of California evidence law:

"In few, if any, areas of the law isthere as great a need for immediateand accurate information as there isin the law of evidence. On most legal

questions, the judge or lawyer hastime to research the law before it isapplied. But questions involving theadmissibility of evidence arise sud-denly during trial. Proper objections- stating the correct grounds -

must be made immediately or thelawyer may find that his objectionhas been waived. The judge mustrule immediately in order that thetrial may progress in an orderly fash-ion. Frequently, evidence questionscannot be anticipated and, hence,necessary research often cannot bedone beforehand.

There is, therefore, an acute need fora systematic, comprehensive, and au-thoritative statement of the law ofevidence that is easy to use and con-venient for immediate reference."West's California Evidence CodeXXIII (1968).

The State Bar Board of Commis-sioners adopted a resolution in De-cember 1974 endorsing the report ofits special evidence committee. SeeReport of the State Bar Special Com-mittee on Uniform Rules of Evidence,53 Mich State B J 765 (1974). OnMarch 19, 1975, the Supreme Court ofMichigan issued an order constitutingand appointing a committee to prepare

JamesK.

James K. Robinson is Chairman and John W. Reed is Report-er of the Committee on Rules of Evidence appointed by theSupreme Court of Michigan. Mr. Robinson is a partner in theDetroit firm of Honigman Miller Schwartz and Cohn and Ad-junct Professor at Wayne State University Law School. Mr.Reed is Professor of Law at the University of Michigan LawSchool.

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proposed Michigan Rules of Evidence.See Robinson, The Impact of FederalRules of Evidence on Michigan Evi-dence Law, 54 Mich State B J 193(1975). The committee consisted ofrepresentatives from the Judiciary,the Legislature and the State Bar.Persons serving on the committee haddiversified backgrounds and virtuallyevery segment of the legal communitywas well represented.

HOW THE PROPOSED RULESWERE DRAFTED

The manner in which the SupremeCourt Evidence Committee preparedits proposed rules is described in thePrologue to the rules:

"At [its first] meeting the Committeeunanimously agreed that it woulddraft Michigan Rules of Evidencegenerally patterned on the FederalRules of Evidence. Thereafter, theCommittee proceeded to considerproposed rules of evidence using theoutline of the Federal Rules of Evi-dence as the agenda for the Commit-tee's work.

"Before each meeting an agenda wasestablished and circulated to Com-mittee members setting the proposedrules to be considered at the Com-mittee's next meeting. Ih addition,before each meeting, legal memo-randa were forwarded to Commit-tee members discussing the impacton Michigan law which would occurthrough adoption of the proposedrules ...

"At the Committee's meetings therules were taken up in the order setout in the Federal Rules of Evidence.After discussion of a proposed ruleand its impact on existing Michiganlaw, motions were entertained toadopt a form of the rule under con-sideration. These motions were dis-cussed and thereafter voted on bythe Committee. At the conclusion ofthe Committee's adoption of a full setof proposed counterpart rules to theFederal Rules of Evidence, one meet-ing ... was devoted to a review of all

rules previously adopted to deter-mine whether changes in specificrules should be made by the Commit-tee in light of the entire set of rulesadopted. A number of changes weremade at that meeting.

"Thereafter, the Chairman and Re-porter prepared a draft of committeenotes. This draft was circulated forreview by the Committee, togetherwith several proposed technicalchanges in the rules. At its [last]meeting ... the Committee approvedthe final draft of the ProposedMichigan Rules of Evidence withCommittee Notes. At this meeting theCommittee authorized the Chairmanand Reporter to make all necessarychanges in the proposed rules andcommittee notes and at the earliestpossible date thereafter to submit thedraft to the Supreme Court of Michi-gan for its consideration. The Com-mittee directed the Chairman andReporter to communicate to theCourt that the Committee recom-mends that these proposed MichiganRules of Evidence be adopted by theCourt." Prologue, Proposed Michi-gan Rules of Evidence.

The source and format of the pro-posed rules are described in the Com-mittee's General Comment:

"The Michigan Rules of Evidence aredrawn in large part from the FederalRules of Evidence, which took effectJuly 1, 1975. The Committee Note fol-lowing each Michigan rule indicatesits source. When that source is thecorresponding federal rule, theMichigan Committee Note usuallydoes not restate the rule's back-ground or comment on its meaning.Rather the Federal Advisory Com-mittee Notes and Congressional re-ports are allowed to speak for them-selves. The few exceptions, in whichthere are 'Committee Comments,' areinstances in which the MichiganCommittee doubts or disagrees withviews suggested in the federal pre-enactment materials, or in which theCommittee has devised a variant rule.

"The Committee's statements regard-ing 'Impact on Prior Michigan Law'

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merely indicate the Committee's per-ceptions of the correspondence, orlack of it, between the rules andprior Michigan law. Prepared as anaid to Bench and Bar in the transi-tion from prior Michigan law to theserules, these statements are descrip-tive only, and not prescriptive. Theyare not to be carried forward as agloss on the new rules." GeneralComment, Proposed Michigan Rulesof Evidence.

The proposed Michigan Rules ofEvidence were submitted to the Su-preme Court in January 1977 andsimultaneously published for commentin the North Western Reporter, Sec-ond Series (Michigan Edition) pur-suant to the Court's January 6, 1977,order which is published in this issueof the Bar Journal.

A BRIEF DESCRIPTIONOF THE MRE

As stated in the General Commentto the proposed Michigan Rules ofEvidence (MRE), the proposed rulesare drawn in large part from the Fed-eral Rules of Evidence. A major differ-ence in approach exists between themethod of adopting the Federal Rulesand the method contemplated foradopting the Michigan Rules. TheFederal Rules were enacted by Con-gress. The Michigan Rules will beadopted by the Supreme Court ofMichigan. Adoption of the rules by theCourt rather than enactment by theLegislature is consistent with theMichigan Supreme Court's view of thepower committed to it by the MichiganConstitution. In Perin v Peuler, 373Mich 531, 541 (1964), the Court said:

"The function of enacting andamending judicial rules of practiceand procedure [including the rules ofevidence] has been committed exclu-sively to this Court (Const 1908, art 7,§ 5; Const 1963, art 6, § 5); a functionwith which the legislature may notmeddle or interfere save as the Courtmay acquiesce and adopt for reten-tion at judicial will." Accord People vJackson, 391 Mich 323, 366 (1974).

With only minor changes to conformthe Federal Rules to state use, theMichigan Rules of Evidence and theFederal Rules are identical with thefollowing principal exceptions:

1. MRE 202 (Judicial Notice of Law);

2. MRE 302 (Presumptions in Crimi-nal Cases);

3. MRE 404 (Character Evidence notAdmissible to Prove Conduct; Ex-ceptions; Other Crimes);

4. MRE 606 (Competency of Jurorsas Witnesses);

5. MRE 609 (Impeachment by Con-viction of Crime);

6. MRE 611(b) (Scope of Cross-exam-ination);

7. MRE 612 (Writing or Object Usedto Refresh Memory);

8. MRE 801(d)(1)(A) (hearsay - priorinconsistent statements).

The nature of the differences be-tween the proposed Michigan Rulesand the Federal Rules is such that lit-tle, if any, damage is done to the ad-vantage of uniformity between federaland state evidence law which will begained through the adoption of theproposed Michigan evidence rules.

We shall now briefly describe theproposed Michigan Rules, noting thesignificant differences between themand the Federal Rules and existingMichigan law.

Article IGeneral Provisions

By virtue of the scope rule, MRE101, the Michigan Rules of Evidencegovern all proceedings in Michigancourts with the exception of four kindsof situations specified in MRE 1101:determination of preliminary ques-tions of fact, grand jury proceedings,summary contempt proceedings, and agroup of miscellaneous proceedings,e.g., sentencing, and granting or re-voking probation.

In keeping with the Michigan con-stitutional concept of judicial suprem-

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acy in matters of practice and proce-dure (see Perin v Peuler, 373 Mich 531(1964)), the Michigan Rules of Evi-dence govern even when there is acontrary statute (e.g., MRE 601 effec-tively displaces the Dead Man's Act).MRE 101, provides, however, thatstatutory evidence rules not in conflictwith the Michigan Rules of Evidenceremain in effect (e.g., MRE 501 pre-serves existing privileges, most ofwhich are statutory).

As the title suggests, the six rules inArticle I deal with concepts, most ofthem orthodox and familiar, applica-ble to the presenting and receiving ofevidence generally. For example, therules are to be construed "to the endthat the truth may be ascertained andproceedings justly determined" (MRE102); inadmissible evidence is not tobe suggested to members of the jury byoffers of proof or by improper ques-tions in their hearing (MRE 103 (c));harmless error is not ground for rever-sal (MRE 103 (a)); offers of proof gen-erally are required (MRE 103(a)(2));the court must instruct on admissibil-ity for a limited purpose (MRE 105);and the traditional rule of "complete-ness" directs the admission of the re-mainder of a writing (or another writ-ing) "which ought in fairness to beconsidered contemporaneously" withthe writing already introduced (MRE106).

MRE 104 clarifies judge and juryroles in determining questions con-cerning the qualification of witnesses,the existence of privileges, and theadmissibility of evidence. Such ques-tions are generally for the court; andin determining those questions, thecourt is not bound by the rules of evi-dence except those relating to priv-ileges. However, when relevancy ofevidence depends on the fulfillmentof a condition of fact, the court is toadmit it "upon, or subject to, the in-troduction of evidence sufficient tosupport a finding of the fulfillment of

the condition."

This scheme is consistent with priorMichigan law generally, althoughthere are aberrant holdings. MRE104(d), however, which provides thatan accused does not, merely by testify-ing on a preliminary matter, subjecthimself to cross-examination as toother issues in the case, departs fromthe holding in People v Johnson, 382Mich 632, 640 (1969), that a defendantby taking the stand waives his right torefuse to answer "any question thatmay be material to the case and whichwould, in the case of any other wit-ness, be legitimate cross-examination."

Article IIJudicial Notice

MRE 201 provides an orthodox pat-tern of judicial notice of "adjudicativefacts," i.e., the facts of the particularcase. In keeping with Michigan andgeneral authorities, facts are madejudicially noticeable when they are"either (1) generally known within theterritorial jurisdiction of the trialcourt or (2) capable of accurate andready determination by resort tosources whose accuracy cannot rea-sonably be questioned." MRE 201 setsforth the procedure for taking judicialnotice, and it makes the judiciallynoticed fact conclusive on the jury in acivil action, but not in a criminal case.

MRE 202, dealing with judicialnotice of law, has no counterpart inthe Federal Rules, it being the posi-tion of the Federal Advisory Commit-tee that "the manner in which law isfed into the judicial process is never aproper concern of the rules of evidencebut rather of the rules of procedure."The Michigan Committee concludedthat the convenience of lodging thejudicial notice of law rule adjacent tothe judicial notice of fact rule out-weighed conceptual concerns; accord-ingly it drafted MRE 202, patternedafter Rule 9 of the Uniform Rules ofEvidence (1953).

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In essence MRE 202 assumes thatthe law of the various American juris-dictions should be treated as domesticlaw, subject to judicial notice, a reflec-tion of the effectiveness of modernpublishing and communication prac-tices. Private acts, ordinances andregulations of governmental subdivi-sions or agencies of Michigan, and thelaw of foreign countries are also judi-cially noticeable, but only if a party sorequests, furnishes the court withhelpful information, and has given ad-verse parties adequate notice. MRE202 represents a modest liberalizationof the procedures heretofore estab-lished by MCLA 600.2114a, 600.2118a(3), and 24.261(6).

Article IIIPresumptions

MRE 301 provides that civil pre-sumptions shift only the burden ofgoing forward with evidence, and notthe burden of persuasion. In so provid-ing the rule is identical with the cor-responding federal rule. Once a pre-sumption shifts the burden of goingforward with evidence, the party inwhose favor it operates is entitled to adirected verdict on the issue if the ad-versary produces no evidence rebut-ting the presumption. In short, it is amandatory inference.

When rebutted the presumption dis-appears, a development sometimestermed "the bursting of the bubble."The implication is not entirely accu-rate, however, because MRE 301, likeits federal counterpart, permits thebasic facts of a rebutted presumption,if logically supportive, to serve never-theless as the basis of an inference andallows the judge to inform the jury ofthat permissible inference.

In all of this, MRE 301 is consistentwith prior Michigan law except forsome cases indicating that one tra-ditionally strong presumption - thatof undue influence when a fiduciarybenefits from a relationship of trust -may shift the burden of persuasion.

See e.g., Totorean v Samuels, 52 MichApp 14 (1974).

MRE 302, dealing with presump-tions in criminal cases, has no coun-terpart in the Federal Rules, Congresshaving preferred to deal with the sub-ject in connection with its pending re-vision of the federal criminal code.MRE 302, which deals only with pro-cedural matters and not validity,makes clear that a criminal presump-tion is never mandatory, that the proofbeyond a reasonable doubt require-ment is not affected, and that wheninstructing the jury the court shouldstate that "it may, but need not, inferthe existence" of the presumed factfrom the basic facts. (Emphasis add-ed.) In all of these matters, MRE 302is consistent with prior Michigan law.

Article IVRelevancy and Its Limits

The first three rules of Article IVdeal with relevancy generally, and theremaining eight deal with particularapplications in areas frequently recur-ring.

MRE 401 views the issue of rele-vance as essentially one of logical orrational relationship between evidenceoffered and facts that are "of conse-quence to the determination of the ac-tion." The quoted phrase has the samemeaning as the more traditional term,"material," a term generally avoidedin the federal and proposed Michiganrules.

The test of relevancy is whether theevidence has "any tendency" to makethe disputed fact "more probable orless probable than it would be withoutthe evidence." On the whole, the rele-vancy threshold is low and the rule isgenerally consistent with prior Michi-gan law.

MRE 402, essentially a technicalprovision, excludes irrelevant evidenceand admits all relevant evidence "ex-cept as otherwise provided by the Con-stitution of the United States, the

MICHIGAN STATE BAR JOURNAL JANUARY, 1977

Constitution of the State of Michigan,these rules, or other rules adopted bythe Supreme Court."

Perhaps no provision of the proposedrules will have a more pervasive effectthan MRE 403, which reads as fol-lows:

"Although relevant, evidence maybe excluded if its probative value issubstantially outweighed by the dan-ger of unfair prejudice, confusion ofthe issues, or misleading the jury, orby considerations of undue delay,waste of time, or needless presenta-tion of cumulative evidence."

The rule directs a weighing of pro-bative value against the "costs" of theevidence in terms of the prejudice, con-fusion, or waste of time. The rule isconsistent with prior Michigan law.People v Der Martzex, 390 Mich 410,415 (1973). However, the scheme ofMRE 401 and 403, which requirescounsel and the court to consider rele-vancy questions in three steps - first,testing for probative value; second,identifying the "costs;" and third,weighing probative value againstprejudice, etc. - should produceclearer, wiser and fairer rulings.

MRE 404, the first of eight rulesdealing with relevance questions inparticular settings, adopts the or-thodox prohibition against the use of atrait of character to prove that an in-dividual acted in conformity therewithon a particular occasion. The rule thenadopts three familiar exceptions: First,one accused of a crime may offer evi-dence of his good character, and theprosecutor may then join the issue andoffer evidence of bad character; second,the accused may offer evidence of apertinent trait of character of thevictim of the crime, and the prosecutormay rebut; and third, parties mayoffer evidence of the character of awitness bearing on credibility, as pro-vided in some detail in MRE 607, 608,and 609.

MRE 404 differs from its federal

counterpart, however, in excludingevidence of the character of the victimof a sexual conduct crime, except forevidence of the victim's past sexualconduct with the accused and evidenceof specific instances of sexual activityto show the source or origin of semen,pregnancy, or disease, and then only ifthe court determines that probativevalue is not "substantially out-weighed" by the danger of unfair prej-udice, confusion of the issues, or mis-leading the jury. The rule is thus con-sonant with Michigan's recentlyenacted statute covering sexual con-duct crimes. See MCLA 750.520j.

MRE 405 identifies the appropriatemethods of proving character. Gener-ally character may be proved only byreputation or opinion; but in thosecases in which character is an essen-tial element of a charge, claim, or de-fense, proof may also be made of spe-cific instances of conduct. MRE 405,which is identical with Federal Rule405, departs from prior Michigan law- and common law generally - inpermitting proof of character by opin-ion as well as by reputation evidence.

MRE 406 follows prior Michiganlaw in making admissible evidence ofthe habit of a person or the routinepractice of an organization to provethat the conduct of the person or or-ganization on a particular occasionwas in conformity with that habit orroutine practice.

MRE 407 follows Michigan priorpractice in making evidence of reme-dial measures taken after an event in-admissible to prove negligence orculpable conduct. For similar policyreasons, MRE 408 renders inadmissi-ble evidence of compromises and offersto compromise. In one aspect, however,this latter rule changes prior Michi-gan law. It states that "Evidence ofconduct or statements made in com-promise negotiations is likewise notadmissible." Michigan has tradition-ally admitted factual statements made

MICHIGAN STATE BAR JOURNAL JANUARY, 1977

during compromise negotiations, pro-tecting, for practical purposes, onlyexpress settlement offers and hypo-thetical statements. Believing the or-thodox rule a trap for the unwary, andin any event inconsistent with the gen-eral purposes of the rule, the MichiganCommittee elected to employ the lan-guage quoted, which is also containedin Federal Rule 408.

In yet another protective provision,MRE 409 makes evidence of paying orpromising to pay medical and similarexpenses inadmissible to prove liabil-ity for the injury treated.

MRE 410 renders inadmissiblepleas of guilty later withdrawn, pleasof nolo contendere, offers to pleadguilty or nolo contendere, and state-ments made in connection with any ofthe foregoing pleas or offers. PriorMichigan cases agree that a plea ofguilty later withdrawn and statementsmade in connection therewith are in-admissible, but they are less clear asto the admissibility of offers to pleadguilty or nolo contendere. To the ex-tent that certain prior Michigan casesmay be read to allow evidence of suchoffers, they are rejected by MRE 410.MRE 410 further provides, however,for the admissibility in perjury casesof evidence of statements made inconnection with pleas and offers toplead when made by defendant underoath, on the record, and in the pres-ence of counsel. The Michigan Com-mittee found no Michigan authorityinconsistent with that provision.

Finally, MRE 411 makes evidenceof liability insurance inadmissible toprove negligence or wrongful conduct.In the form adopted, however, thisfamiliar rule does not require the ex-clusion of such evidence when offeredfor another purpose, such as proof ofownership or control, or the bias of awitness, and in this regard maychange prior Michigan law which ap-pears to have prohibited introductionof liability insurance for all purposes,

not merely to show the insured's neg-ligence.

Article VPrivileges

In common with the Federal Rulesof Evidence but for somewhat differentreasons, the Michigan Rules of Evi-dence contain no provisions dealingwith specific privileges. MRE 501reads as follows:

"The privilege of a witness, person,government, state, or political subdi-vision thereof shall be governed bythe principles of the common law ex-cept as modified by statute or courtrule."

Thus, the rule carries forward priorMichigan law with respect to privi-leges, whether common-law in origin,e.g., the attorney-client privilege, orstatutory, e.g., the physician-patientprivilege.

Article VIWitnesses

MRE 601 reads:"Every person is competent to be a

witness except as otherwise providedin these rules."The United States Supreme Court's

Advisory Committee, commenting onidentical language in its draft, said:

"This general ground-clearingeliminates all grounds of incompe-tency not specifically recognized inthe succeeding rules of this Article."

Most of the common-law grounds ofincompetency have long since beeneliminated in Michigan as elsewhere,e.g., conviction of infamous crime,interest in the outcome of litigation,marriage, etc. MRE 601 is inconsis-tent with prior Michigan law, how-ever, in eliminating the few groundsthat remain.

Chief among these is the DeadMan's Act, MCLA 600.2116; GCR1963, 608. The 1967 amendment to theAct permitting a party to testify as tomatters "equally within the knowl-

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edge of the person incapable of testify-ing" if "some material portion of histestimony is supported by some othermaterial evidence tending to corrobo-rate his claim" has had the effect ofdiminishing the exclusionary force ofthe Act already, particularly becausethe cases have required very little cor-roboration to avoid the statute.

MRE 601 is inconsistent also withprior Michigan cases suggesting thatdeterminations of competency to tes-tify where there are problems of men-tal or moral qualification are withinthe court's discretion. The question ofmental capacity is particularly suitedto the jury as one of weight and credi-bility, subject to judicial authority toreview the sufficiency of the evidence;and standards of moral qualificationsare dealt with by the manner of ad-ministering the oath under MRE 603.

MRE 602 requires the witness tohave personal knowledge of the mattertestified to (except in the case of opin-ion testimony by expert witnesses),and MRE 603 requires him to "declarethat he will testify truthfully, by oathor affirmation administered in theform calculated to awaken his con-science and impress his mind with hisduty to do so." In both regards the newrules effect no change in Michiganlaw.

MRE 604 somewhat tightens theprocedure for using interpreters, re-quiring them to be sworn and to bequalified as experts.

MRE 605 and 606 render judge andjuror incompetent to testify in the trialof the case in which they are sitting,and no apparent change in Michiganpractice is effected thereby.

Federal Rule 606 contains a provi-sion dealing with whether testimony,affidavits, or statements of a jurormay be received for the purpose of in-validating or supporting a verdict orindictment. MRE 606 contains nocounterpart, the Michigan Committee

having concluded that the question isone of substantive law rather than ofevidence and that, in any event, thearea is inappropriately governed by aninflexible rule, being more suitablysubject to case law development.

MRE 607 is the first of three rulesdealing with impeachment of witness-es. It provides simply that:

"The credibility of a witness maybe attacked by any party, includingthe party calling him."

Although inconsistent with the or-thodox and Michigan view that a wit-ness' credibility generally may not beattacked by the party calling him, thenew rule represents a less than star-tling change because of the numerousexceptions to the traditional rule. Forexample, prior Michigan law recog-nized the right of a party to impeachhis own witness if the witness was ad-verse or hostile, if the party was takenby surprise by the witness' testimony,if the witness was a res gestae witnesswhom the prosecution was obliged tocall, or where the witness' recollectionneeded to be refreshed by his prior in-consistent statements.

MRE 608 provides that the credibil-ity of a witness may be attacked by evi-dence of character for untruthfulness(and, if attacked, supported similarly).The evidence may be in the form ofreputation, and to that extent the rule iswholly consistent with prior Michiganlaw. The rule provides also, however,that the evidence may be in the form ofopinion, and to that extent it is inconsis-tent with prior Michigan law.

MRE 608(b) prohibits extrinsic proofof specific instances of conduct (otherthan convictions) bearing on credibil-ity, but it permits, in the court's discre-tion, cross-examination about specificinstances if deemed probative of truth-fulness or untruthfulness. Except thatthe cases do not clearly limit inquiry toconduct probative of truthfulness or un-truthfulness, MRE 608(b) is generallyin accord with prior Michigan law.

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In the sessions of the Michigan Com-mittee, as in the Congressional hear-ings, the question of impeachment of awitness by evidence of conviction of acrime, covered by MRE 609, generatedmore discussion and controversy thanany other rule. The proposed Michiganrule is identical with its federal coun-terpart with respect to what might becalled the four auxiliary provisions: (b)time limit; (c) effect of pardon, annul-ment, or certificate of rehabilitation;(d)juvenile adjudications; and (e) pend-ency of appeal. With respect to the gen-eral rule stated in subdivision (a), how-ever, the proposed Michigan rule differsfrom the federal equivalent by creatingseparate rules, one applicable only tocriminal defendants (MRE 609(a)(1))and another applicable to all other wit-nesses (MRE 609(a)(2)).

The heart of MRE 609(a) is a divi-sion of crimes into two categories(crimes punishable by death or by im-prisonment in excess of one year, andcrimes involving dishonesty or falsestatement regardless of the punish-ment), which are then applied some-what differently to a witness-accusedand to all other witnesses.

With respect to all witnesses, in-cluding a witness-accused, convictionof a serious crime (i.e., one punishableby death or by imprisonment for morethan a year) but not involving dishon-esty or false statement, may be shownonly if "the court determines that theprobative value of admitting this evi-dence on the issue of credibility out-weighs its prejudicial effect."

As to the other category of crimes(those that involve dishonesty or falsestatement, without regard to severityof punishment) a distinction is drawnbetween a witness-accused and allother witnesses. In the case of thewitness-accused, conviction of a crimeinvolving dishonesty may be admitted,again, only if the court determinesthat probative value outweighs preju-dicial effect; but as to all other witness-

es, the court has no discretion to ex-clude evidence of such a conviction forimpeachment purposes. Thus, the prin-cipal departures from prior Michiganlaw are:

1) Misdemeanor convictions aremade admissible to impeach wit-nesses in criminal cases if the mis-demeanor involves dishonesty orfalse statement and, in the case of awitness-accused, the court deter-mines that the conviction is moreprobative on the issue of credibilitythan unfairly prejudicial. Cf. People vRenno, 392 Mich 45 (1974) (no mis-demeanor impeachment in criminalcases).

2) Misdemeanor convictions aremade admissible to impeach wit-nesses in civil cases only if the mis-demeanor involves dishonesty orfalse statement. Cf. Sting v Davis, 384Mich 608 (1971) (traffic misdemean-ors allowed to impeach driver-witnesses in automobile negligencecases).

3) Felony convictions not involvingdishonesty or false statement areadmissible in all types of cases onlyif the court determines that proba-tive value on credibility outweighsprejudicial effect. Cf. Sting v Davis,supra (no discretion in a civil case todeny cross-examination regardingthe driving record of a plaintiff-driver or a defendant-driver).

MRE 609(b) establishes a presump-tive "statute of limitations," generallyexcluding proof of convictions morethan ten years after release of thewitness from the confinement imposedfor that conviction, a rule somewhatmore precise than but generally in ac-cord with the principle of People vJackson, 391 Mich 323 (1974).

MRE 609(d), though providing forthe general inadmissibility of evidenceof juvenile adjudications, does au-thorize a court in a criminal case toadmit evidence of a juvenile adjudica-tion of a witness other than the ac-cused where such an offense would beadmissible to attack the credibility of

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an adult and the court is "satisfiedthat admission in evidence is neces-sary for a fair determination of theissue of guilt or innocence."

Although MCLA 712A.23 purportsto bar the use of a juvenile adjudica-tion "for any purpose whatever," theCourt of Appeals in a series of casessince 1971 has followed a rule similarto MRE 609(b). See, e.g., People vHawkins, 58 Mich App 69 (1975).

MRE 610, making evidence of re-ligious beliefs or opinions inadmissibleon credibility, is in accord with priorMichigan law.

MRE 611, dealing with mode andorder of interrogation and presenta-tion, has three subdivisions: (a) controlby court; (b) scope of cross-examina-tion; and (c) leading questions. Allthree are consistent with prior Mich-igan law.

The only controversial question inthe rule is that of scope of cross-examination. The Federal Rules ofEvidence retained the federal andmajority practice of limiting cross-examination to the subject matter ofthe direct examination and, of course,matters affecting the credibility of thewitness. MRE 611(b) conforms withprior Michigan law and adopts therule of broad scope, subject to limita-tion by the judge "in the interests ofjustice."

MRE 612 establishes, in some de-tail, the procedure to be followed whena writing or object is used to refresh awitness' memory. In general, it is de-signed to give an adversary access tothe item that has been used to refresh.The court may require production of awriting or object that was used to re-fresh the memory of the witness evenbefore he took the stand. Here a mat-ter of discretion, the requirement mayhave been mandatory in prior Michi-gan practice. See Miles v ClairmontTransfer Co., 35 Mich App 319 (1971).

MRE 613 deals with prior state-

ments of witnesses. MRE 613(a) re-jects prior Michigan practice, based onthe rule in "The Queen's Case," re-quiring a written statement to beshown to the witness before he iscross-examined on it. The new ruleeliminates the requirement of a priordisplay, providing only that "on re-quest the same shall be shown or dis-closed to opposing counsel."

MRE 613(b), relating to extrinsicevidence of prior inconsistent state-ments, retains the familiar foundationrequirement but in modified form: it issufficient that the witness be affordedan opportunity to explain or deny theprior statement and the opposite partyafforded an opportunity to interrogatehim thereon. The opportunity need notprecede proof of the prior statement.

MRE 614 makes explicit the time-honored power of a court to call wit-nesses and interrogate them. Thereclearly is Michigan authority for thelatter proposition, less clearly for theformer.

MRE 615 requires, with certain ex-ceptions, the exclusion of witnesses onrequest of a party. Michigan caseshave held such exclusion discretionarywith the trial court; the mandatoryexclusion under the rule is to that ex-tent inconsistent with prior Michiganlaw.

Article VIIOpinions and Expert Testimony

The six rules dealing with opinionsand expert testimony are drawn ver-batim from the Federal Rules of Evi-dence. These rules have been widelyregarded as a significant liberalizationof the rules and procedures governingsuch testimony. Viewed in the light ofprior Michigan law, however, theyrepresent somewhat less change inthis jurisdiction.

MRE 701 (opinion testimony by laywitnesses) and MRE 702 (testimonyby experts) make the threshold test for

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admissibility of opinion that of "value"or "helpfulness" or "assistance," ratherthan the more restrictive test of'necessity."

Roughly stated, under the necessityprinciple opinion by a lay witness isadmitted only if the witness needs toemploy it in order to communicateadequately with the trier of fact, andopinion by an expert is admissibleonly when needed for understandingby the trier of fact. Under the valuetest, lay opinion is admissible if it ishelpful to a clear understanding of thewitness' testimony and the testimonyof an expert is admissible if it will as-sist the trier of fact to understand theevidence.

Although the difference is to someextent one of semantics, the value testencourages significantly greater ad-missibility. The Michigan cases havetended in that direction; but to the ex-tent that there has been doubt in thecases, MRE 701 and 702 resolve it byadopting the value test.

The significant provision in MRE703, dealing with bases of opinion tes-timony by experts, is that the facts ordata on which an expert bases an opin-ion need not be admissible in evidence"if of a type reasonably relied upon byexperts in the particular field in form-ing opinions or inferences upon thesubject." Although there is some sup-porting Michigan authority for thisproposition, it appears to be inconsis-tent with the majority of Michigancases.

MRE 704 provides that opinion tes-timony is not objectionable merely be-cause it "embraces an ultimate issueto be decided by the trier of fact." Therule is consistent with prior Michiganlaw as to testimony of experts, but it isnot clear that Michigan has permittedlay opinions on ultimate issues. In anyevent, the new rule permits such opin-ions if they are otherwise admissible("helpful," among other things).

MRE 705 permits the expert to givean opinion and the reason thereforwithout prior disclosure of the un-derlying facts, these being left tocross-examination, unless the courtrequires otherwise. This accords withprior Michigan practice.

MRE 706 authorizes and providesprocedural rules governing court-appointed experts, a practice not pro-vided for in prior Michigan law. Ofprimary interest are the provisionsauthorizing the court in its discretionto disclose to the jury the fact that thecourt appointed the witness, and per-mitting the parties to call expert wit-nesses of their own choice.

Article VIIIHearsay

Article VIII of the proposed Michi-gan Rules of Evidence deals with thehearsay rule and is substantially iden-tical with Article VIII of the FederalRules of Evidence. The sole exceptionis that MRE 801(d)(1)(A), which gov-erns the admissibility of prior incon-sistent statements of witnesses, isidentical with the United States Su-preme Court version of Federal Rule801(d)(1)(A) rather than the versionsubsequently adopted by Congress.

MRE 801(a),(b) and (c) contain thedefinitial elements of the hearsay rule.The definition of hearsay in MRE801(c) is consistent with prior Michi-gan law:

'Hearsay' is a statement, other thanone made by the declarant while tes-tifying at the trial or hearing, offeredin evidence to prove the truth of thematter asserted."

MRE 801(a) defines a "statement"for purposes of the hearsay rule toexclude statements or conduct not in-tended as an assertion. Accordingly, itis consistent with the Supreme Court'srecent decision in People v Stewart,397 Mich 1, 9-10 (1976).

MRE 801(d)(1) governs the admis-

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sibility of certain prior statements ofwitnesses. MRE 801(d)(1)(A) providesthat "[a] statement is not hearsay if-.. [t]he declarant testifies at the trial

or hearing and is subject to cross-examination concerning the statementand the statement is ... inconsistentwith his testimony ... " MRE 801(d)(1)(A) differs from the counterpartFederal Rule which requires that thestatement must also have been "givenunder oath subject to the penalty ofperjury at a trial, hearing or otherproceeding, or in a deposition ..."MRE 801(d)(1)(A) is inconsistent withprior Michigan law which limits theadmissibility of prior inconsistentstatements to the purpose of impeach-ing credibility and prohibits their useas substantive evidence.

For the policy arguments supportingthese alternative rules, see the Advi-sory Committee Note and legislativehistory regarding Federal Rule 801(d)(1)(A).

MRE 801(d)(1)(B) is inconsistentwith prior Michigan law in admittingas substantive evidence (as well as forrehabilitation of credibility) prior con-sistent statements of a witness "torebut an express or implied chargeagainst him of recent fabrication orimproper influence or motive ..."Michigan courts have admitted priorconsistent statements for these pur-poses, but only on the issue of credibil-ity and not as substantive evidence.

MRE 801(d)(1)(C) is consistent withprior Michigan law in admitting thetestimony of a witness as to his ownprior identification of a person madeafter perceiving him. The only differ-ence between MRE 801(d)(1)(C) andprior Michigan law is that Michiganhas previously treated statements ofprior identification as an exception tothe hearsay rule, while MRE 801(d)(1)(C) provides that such statementsare not hearsay at all.

MRE 801(d)(2) governs the admis-sibility of certain admissions by a

party-opponent. Prior Michigan lawtreated party admissions under an ex-ception to the hearsay rule, whileMRE 801(d)(2) provides that they arenot hearsay at all. MRE 801(d)(2)(A)is consistent with prior Michigan lawin admitting statements of a partyagainst the party. Under MRE 801(d)(2)(A) a guilty plea by a partywould be admissible against him in asubsequent civil action arising out ofthe same occurrence.

To this extent MRE 801(d)(2)(A) isinconsistent with the Supreme Court'srecent decision in Wheelock v Eyl, 393Mich 74, 79 (1974), in which the Courtstated that: "A criminal convictionafter trial, or plea, or payment of afine is not admissible as substantiveevidence of conduct at issue in a civilcase arising out of the same occur-rence." Wheelock involved the admis-sibility of payment of a traffic ticket ina subsequent automobile negligencecase arising out of the same occur-rence. Certain dicta in the case havebeen criticized:

"The Michigan Supreme Court, al-though reaching the correct result onthe Wheelock facts of payment of atraffic fine, appears to have gone be-yond merely excluding guilty pleasto minor traffic violations and tohave fashioned a rule that also ex-cludes guilty pleas to more seriousviolations. This expansion of theholding to situations beyond those atissue seems unnecessary as well asunwise. The probative value of ad-missions against interest, thoughminimal when pleas to minor viola-tions are involved, is much greaterwhen the plea is to a major offense."Note, 24 Kansas L Rev 193, 202 (1975).See also Robinson, Civil and CriminalEvidence, 1975 Ann Survey of MichLaw, 22 Wayne L Rev 447, 471-72(1976).If the Supreme Court is inclined to

retain the Wheelock rule, at least as tomisdemeanors, it could do so by theaddition of a Rule 412 to the MREwhich could read as follows:

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"Evidence that a person has beenconvicted of a crime after trial, orplea or payment of a fine is not ad-missible as substantive evidence ofconduct at issue in a civil case aris-ing out of the same occurrence, un-less the crime was punishable bydeath or imprisonment in excess ofone year under the law under whichhe was convicted."

If the Court wishes to retain theWheelock rule as to all crimes, includ-ing felonies, the foregoing Rule 412could be adopted with the deletion ofthe language "unless the crime waspunishable by death or imprisonmentin excess of one year under the lawunder which he was convicted."

MRE 801(d)(2)(B) is consistent withprior Michigan law in admitting adop-tive admissions of a party. To the ex-tent MRE 801(d)(2)(B) could au-thorize admission of a noncustodialadmission by silence of an accused inthe face of an accusation, it appears toconflict with People v Bobo, 390 Mich355 (1973), which held that an ac-cused's silence cannot be admittedagainst him. See Robinson, Civil andCriminal Evidence, 1974 Ann Surveyof Mich Law, 21 Wayne L Rev 437,476-478 (1975).

Bobo, however, was decided on con-stitutional rather than evidencegrounds and thus MRE 801(d)(2)(B)would not directly conflict with Bobosince no effort has been made in theproposed Michigan rules to codifyrules excluding evidence on constitu-tional grounds.

MRE 801(d)(2)(C) is consistent withprior Michigan law in authorizingadmission of statements by a personauthorized by a party to make astatement concerning the subject.

MRE 801(d)(2)(D) authorizes ad-mission of a statement by the em-ployee or agent of a party "concerninga matter within the scope of hisagency or employment made duringthe existence of the relationship."

Prior Michigan law has been more re-strictive, requiring preliminary proofthat the employee or agent had au-thority from his principal to make thestatement involved.

MRE 801(d)(2)(E) is consistent withMichigan law in authorizing admis-sion of "a statement by a co-conspir-ator of a party during the course andin furtherance of the conspiracy."

MRE 802 simply provides that:"Hearsay is not admissible except asprovided by these rules." This rule isconsistent with current Michigan lawto the extent that hearsay is not ad-missible unless it falls within one ofthe recognized exceptions to the hear-say rule.

MRE 803 governs exceptions to thehearsay rule where the availability ofthe declarant is immaterial to admis-sibility. Most of the MRE 803 hearsayexceptions are generally consistentwith prior Michigan law. See, e.g.:

1. MRE 803(2) (Excited utterance);

2. MRE 803(3) (Then existing men-tal, emotion or physical condi-tion);

3. MRE 803(5) (Recorded recollec-tion);

4. MRE 803(9) (Records of vitalstatistics);

5. MRE 803(11) (Records of religi-ous organizations);

6. MRE 803(12) (Marriage, baptis-mal, and similar certificates);

7. MRE 803(13) (Family records);

8. MRE 803(14) (Records of docu-ments affecting an interest inproperty);

9. MRE 803(16) (Statements in an-cient documents);

10. MRE 803(17) (Market reports,commercial publications);

11. MRE 803(18) (Learned treatises);

12. MRE 803(19) (Reputation con-cerning personal or family his-tory);

13. MRE 803(20) (Reputation con-

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cerning boundaries or generalhistory); and

14. MRE 803(21) (Reputation as tocharacter).

The MRE 803 hearsay exceptionswhich depart significantly from priorMichigan law are as follows:

1. MRE 803(1) admits statementsdescribing or explaining an event orcondition made while the declarantwas perceiving the event or condition,or immediately thereafter. No priorMichigan authority specifically recog-nizes an exception for such state-ments; however, the admission of suchstatements may have been justified byMichigan courts from time to time inthe past under the so-called "res ges-tae" exception to the hearsay rule.

2. MRE 803(4) admits certainstatements made for purposes of medi-cal diagnoses or treatment, includingstatements describing medical history,past or present symptoms, etc. Whileprior Michigan law admitted decla-rations of present physical or mentalcondition (unless made to a physicianseen for purposes of litigation), priorMichigan law did not generally admitother types of statements (e.g., medicalhistories) simply because they weremade for purposes of medical diagnosisor treatment.

3. MRE 803(6) admits certain busi-ness records and MRE 803(7) permitsproof of the nonoccurence or nonexist-ence of certain matters by showing theabsence of an entry in business rec-ords. These rules are generally con-sistent with MCLA 600.2146, thebusiness records statute. The majordifference between MRE 803(6) andprior Michigan law is that underMRE 803(6) statements of opinions ordiagnoses contained in business rec-ords may also be admissible in appro-priate circumstances. Such statementshave not generally been admissibleunder prior Michigan law.

4. MRE 803(8) admits certain pub-

lic records and reports to prove mat-ters recorded therein. MRE 803(10)permits proof of the absence of a publicrecord or the nonoccurrence or nonex-istence of certain matters which wouldhave been recorded in a public record,by showing the absence of the applica-ble public record through testimony ora certificate from an authorized custo-dian of the records. These rules aregenerally consistent with prior Michi-gan law; however, MRE 803(8)(C) isinconsistent in authorizing admissionof certain evaluative reports contain-ing factual findings in civil cases andagainst the government in criminalcases "unless the sources of informa-tion or other circumstances clearly in-dicate lack of trustworthiness."

5. MRE 803(15) admits relevantstatements in documents affecting aninterest in property under certain cir-cumstances. No prior Michigan au-thority was located authorizing admis-sion or requiring exclusion of suchevidence.

6. MRE 803(22) admits evidence offelony judgments to prove "any factessential to sustain the judgment";however, in criminal cases the gov-ernment cannot offer criminal judg-ments against persons other than theaccused except as may be permittedfor impeachment. This rule is incon-sistent with the Supreme Court's re-cent decision in Wheelock v Eyl, 393Mich 74, 79 (1974), to the extent thatMRE 803(22) would authorize proof ofa felony conviction (by trial or plea) ina subsequent civil action arising out ofthe same occurrence. In Wheelock theCourt held "that a criminal convictionafter trial or plea, or payment of a fineis not admissible as substantive evi-dence of conduct at issue in a civil casearising out of the same occurrence."

7. MRE 803(23) authorizes admis-sion of certain judgments as to per-sonal, family or general history, orboundaries if the same would be prov-able by reputation evidence. No prior

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Michigan authority was located au-thorizing admission or requiring ex-clusion of such evidence.

MRE 804 governs exceptions to thehearsay rule where the unavailabilityof the declarant is a condition of ad-missibility. The various tests of un-availability under MRE 804(a) (e.g.,excused by privilege, persistent re-fusal to testify despite court order,lack of memory, death or disability,absence from jurisdiction) are gener-ally consistent with prior Michiganlaw.

The MRE 804 hearsay exceptionsare generally consistent with priorMichigan law; however, they all havesome variations:

1. MRE 804(b)(1) admits the for-mer testimony of an unavailable de-clarant if the party against whom thetestimony is presently offered (includ-ing a predecessor in interest in a civilcase) "had an opportunity and similarmotive to develop the testimony by di-rect, cross, or redirect examination."This rule is consistent with priorMichigan law except that: a) formertestimony from a different proceedingis not admissible in Michigan againstthe accused in criminal cases; andb) no Michigan authority was locatedauthorizing admission of former tes-timony against a "predecessor ininterest." Since the Michigan criminalcases excluding former testimony froma different proceeding are based uponconstitutional grounds of confronta-tion rather than evidence grounds,adoption of MRE 804(b)(1) would notnecessarily change Michigan law.

2. MRE 804(b)(2) authorizes ad-mission of statements made under be-lief of impending death (i.e., dying dec-larations). Unlike prior Michigan law,however, the statements may be ad-mitted in civil cases as well as homi-cide cases and the declarant need nothave died, so long as belief of immi-nent death existed when the state-ment was made and the declarant is

unavailable at trial.

3. MRE 804(b)(3) authorizes ad-mission of statements against interest,including statements against penalinterest as well as pecuniary andproprietary interest. Prior Michiganlaw is in accord, except that the Su-preme Court in People v Edwards, 396Mich 551 (1976) recently rejected therequirement found in MRE 804(b)(3)that: "A statement tending to exposethe declarant to criminal liability andoffered to exculpate the accused is notadmissible unless corroborating cir-cumstances clearly indicate the trust-worthiness of the statements." If thecourt wishes to retain the holding inEdwards rejecting the corroborationrequirement, it can do so easily by de-leting the foregoing sentence fromMRE 804(b)(3).

4. MRE 804(b)(4) is generally con-sistent with prior Michigan law inrecognizing a hearsay exception forstatements of personal and family his-tory by unavailable declarants. Thisexception is sometimes called the"pedigree exception." However, MRE804(b)(4) is inconsistent with priorMichigan law: a) in rejecting the re-quirement that the statements bemade when there was no motive to fal-sify (i.e., "ante litem motam"), andb) in rejecting the requirement thatthe declarant be related by blood ormarriage to the person of whose pedi-gree he speaks. MRE 804(b)(4) re-quires only "intimate association."

Both MRE 803 and MRE 804 con-tain so-called residual hearsay excep-tions. Under MRE 803(24) and 804(b)(5), hearsay statements which fallwithin none of the specific exceptionsmay nevertheless be admitted, pro-vided that they have "equivalent cir-cumstantial guarantees of trustwor-thiness" and if they meet certain otherspecific requirements, including pre-trial notice of intent to offer the evi-dence. The Senate Judiciary Commit-tee, speaking of the identical federal

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counterparts to MRE 803(24) and804(b)(5) said:

"It is intended that the residualhearsay exceptions will be used veryrarely, and only in exceptional cir-cumstances. The committee does notintend to establish a broad licensefor trial judges to admit hearsaystatements which do not fall withinone of the other exceptions con-tained in 803 and 804(b)."

MRE 805 is consistent with priorMichigan law in authorizing admis-sion of hearsay within hearsay "if eachpart of the combined statements con-forms with an exception to the hearsayrule provided in these rules."

MRE 806 permits the credibility ofa hearsay declarant to be attacked likeany other witness and specifically re-jects the requirement of prior Michi-gan law that before extrinsic evidenceof the declarant's inconsistent state-ments may be offered (even to impeachan unavailable hearsay declarant), thedeclarant must have been afforded anopportunity to deny or explain thestatement.

Article IXAuthentication and Identification

The three rules in Article IX list thetraditional means of identifying or es-tablishing the authenticity of docu-ments, telephone conversations, datacompilations, and the like. Except forminor adjustments to make the lan-guage appropriate to state circum-stance, the rules are drawn from theFederal Rules of Evidence and aregenerally consistent with prior Michi-gan law.

Rule 901 states that the require-ment of authentication or identifica-tion is satisfied "by evidence sufficientto support a finding that the matter inquestion is what its proponent claims."The rule then gives, "by way of illus-tration only, and not by way of limita-tion," examples of authentication con-forming with the requirements of the

rule, such as testimony by a witnesswith knowledge, circumstantial au-thentication, ancient documents (heretwenty years, rather than the thirtyrequired in prior Michigan law), orany method "provided by the SupremeCourt of Michigan or by a Michiganstatute." MRE 902 recognizes somewritings, mostly public, as authenticwithout extrinsic evidence. Amongthese self-authenticating items arecertain domestic and foreign publicdocuments, certified copies of publicrecords, newspapers and periodicals,trade inscriptions, acknowledged doc-uments, and the like. (It should benoted that MRE 901 and MRE 902 donot satisfy other possible objections,such as hearsay, but satisfy only therequirement of authentication as acondition precedent to admissibility.)

MRE 903 excuses the production ofa subscribing witness unless by lawthe validity of the instrument is condi-tional on the subscription.

Article XContents of Writings,

Records, and PhotographsWhat lawyers often call the "best

evidence rule" is the subject of ArticleX. The eight rules in this Article,though generally consistent with priorMichigan practice, provide bothclarification and accommodation tocontemporary modes of recording, stor-ing, and copying information.

MRE 1002 employs traditionalterms to state the basic rule:

"To prove the content of a writing,recording, or photograph, the origi-nal writing, recording, or photo-graph is required, except as other-wise provided in these rules or stat-ute."

MRE 1001, however, defining theterms used in Article X, creates theconcept of a "duplicate," which is:

"a counterpart produced by thesame impression as the original, orfrom the same matrix, or by means of

MICHIGAN STATE BAR JOURNAL JANUARY, 1977

photography, including enlarge-ments and miniatures, or by mechan-ical or electronic re-recording, or bychemical reproduction, or by otherequivalent techniques, which accu-rately reproduces the original."

Then, MRE 1003 makes duplicateadmissible

"to the same extent as an original un-less (1) a genuine question is raisedas to the authenticity of the originalor (2) in the circumstances it wouldbe unfair to admit the duplicate inlieu of the original."

This patently useful procedure hasnot heretofore been available in Mich-igan except for certain business rec-ords, and even there with substantialrestrictions. See MCLA 600.2146-8.

As in prior Michigan practice, MRE1004 excuses production of the origi-nal if the original is lost or destroyed,cannot be obtained by judicial process,is in possession of the opponent andthe opponent is on notice that the orig-inal will be needed at the hearing, orrelates to a collateral matter. If theoriginal is thus excused the proponentmay offer any other evidence of con-tents, there being no "degrees" of sec-ondary evidence recognized. PriorMichigan law was unclear on thismatter.

Baroda State Bank v Peck, 235 Mich542 (1926), is often cited as authorityfor the proposition that Michigan rec-ognizes no degrees of secondary evi-dence. In fact, however, the Barodaopinion was divided 4-4, thus affirm-ing a trial court ruling that there aredegrees of secondary evidence. MRE1004's resolution of the issue may ormay not have changed Michigan law.

By the terms of MRE 1006, certifiedor compared copies of public recordsare admissible, as in prior Michiganpractice.

Summaries of voluminous writings,recordings, and the like, which cannotbe conveniently examined in court,may be presented in the form of a

chart, summary, or calculation, underthe provisions of MRE 1006. The orig-inals or "duplicates" must be madeavailable for examination or copyingby other parties, and the judge mayorder that they be produced in court.

MRE 1007 provides yet two moreways to establish the contents of doc-uments: by the testimony or depositionof the party against whom offered orby his written admission. An extraju-dicial oral admission will not suffice.

MRE 1008 is a particularized ref-erence to functions of judge and juryin dealing with questions of fact pre-liminary to determinations of admis-sibility, more generally dealt with inMRE 104. Here, as in MRE 104, thequestion of whether the condition offact rendering secondary evidence ad-missible has been fulfilled (e.g.,whether the original has been lost) isleft to the judge. But MRE 1008leaves the "preliminary question" tothe jury when an issue is raised

"(a) whether the asserted writingever existed, or (b) whether anotherwriting ... produced at the trial isthe original, or (c) whether other evi-dence of contents correctly reflectsthe contents .... "

In all of these particulars, there isno departure from prior Michigan prac-tice.

Article XlMiscellaneous Rules

MRE 1101, derived from the Uni-form Rules of Evidence (1974) be-cause more appropriate to state prac-tice than the federal counterpart,makes the Michigan Rules of Evidenceinapplicable, as mentioned in the dis-cussion of MRE 101, supra, to pre-liminary questions of fact, grand juryproceedings, miscellaneous proceed-ings, and summary contempt proceed-ings. The rule's only departure fromthe Uniform Rule lies in omission ofan exception for preliminary examina-tions, thus making the Michigan

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Rules of Evidence applicable to pre-liminary examinations, as in priorMichigan practice. See People vWalker 385 Mich 565 (1971); People vDomin, 71 Mich App 315 (1976).

Rule 1102 authorizes citation of therules as MRE - a practice to whichany reader of this article is by now ac-customed.

CONCLUSION

As can be discerned from the forego-ing, in most instances the proposedMichigan Rules of Evidence are con-sistent with prior Michigan law. Thoseproposed rules which differ from priorMichigan law involve changes whichare logical extensions of establishedevidence principles and are consistentwith the trend of authority in theUnited States and the example set bythe Federal Rules of Evidence. Thechanges, in other words, are evolution-ary rather than revolutionary.

Current Michigan evidence lawmust be culled, often with great diffi-culty, from Supreme Court decisions(often outdated), Court of Appeals de-cisions (sometimes conflicting), stat-utes and court rules. The adoption ofthe proposed Michigan Rules of Evi-

dence will not, of course, end all prob-lems in the law of evidence. If therules are adopted, however, everyonewill start from the same source andthat source will be convenient for im-mediate reference during trial.

Michigan is fortunate to have hadthe Federal Rules of Evidence availa-ble as a model for the proposed Michi-gan evidence rules. The Federal Ruleswere the product of over thirteen yearsof study and debate by eminent judges,lawyers, law professors and membersof Congress.

Adoption of the proposed MichiganRules of Evidence by the SupremeCourt will: 1) provide Michigan judgesand lawyers with an authoritativestatement of evidence law which willbe easy to use and convenient for im-mediate reference; 2) allow Michiganjudges and lawyers to benefit from de-veloping precedents from the federalcourts and other states interpretingnearly identical rules; and 3) preventthe confusion and injustice whichcould result from one set of evidencerules for federal courts in Michiganand another set of rules for Michiganstate courts.

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