People v. Allen, Nos. 70740

• Court: Supreme Court of Michigan
• Writing for the Court: BRICKLEY; Weinstein; Similarly; Swainson; Burger's; GRIFFIN; RILEY; BOYLE; RILEY; Acquittal Rate
• Citation: 429 Mich. 558,420 N.W.2d 499
• Parties: , 56 USLW 2482 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Anthony ALLEN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James BROOKS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Lee GRAY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jackie Hagan SMITH, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allen PEDRIN, Defendant-Appellant.
• Decision Date: 08 March 1988
• Docket Number: Nos. 70740,71633,72346,72753 and 73297

Page 499

420 N.W.2d 499 429 Mich. 558, 56 USLW 2482 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Mark Anthony ALLEN, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
James BROOKS, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Dennis Lee GRAY, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Jackie Hagan SMITH, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Jeffrey Allen PEDRIN, Defendant-Appellant. Nos. 70740, 71633, 72346, 72753 and 73297. Supreme Court of Michigan. Argued Oct. 7, 1986.
Decided Jan. 19, 1988.
As Amended Feb. 16, 1988.
Rehearing Denied March 8, 1988.

[429 Mich. 562]

Page 502

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, Jeffrey Caminsky, Asst. Pros. Atty., Detroit, for the People in Allen and Gray.

Bell and Hudson, P.C. by Glen R. Warn, Detroit, for Mark Anthony Allen.

L. Brooks Patterson, Pros. Atty., Oakland Co., Robert C. Williams, Chief Appellate Counsel by Richard H. Browne, Asst. Pros. Atty., Pontiac, for the People in Brooks.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for James Brooks.

Derrick A. Carter, Asst. Defender, State Appellate Defender's Office, Detroit, for Dennis Lee Gray.

John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, [429 Mich. 563] Rosemary A. Gordon, Asst. Pros. Atty., Detroit, for the People in Smith.

F. Michael Schuck, Asst. Defender, Detroit, for Jackie Hagan Smith.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James P. Hoy, Pros. Atty., Thomas C. Johnson, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys., Appellate Service, Lansing, for the People in Pedrin.

Rolf E. Berg, Asst. Defender, State Appellate Defender's Office, Detroit, for Jeffrey Allen Pedrin.

BRICKLEY, Justice.

These cases were consolidated in order to resolve differing interpretations of the application of MRE 609(a) to the practice of impeaching criminal defendants by prior conviction.

We find that MRE 609(a), as presently constituted, leads to an interpretation that encourages the use of "bad man" evidence without a commensurate gain in the evaluation of a witness' testimony. More specifically, the central element in the exercise of discretion in this area, i.e., the extent to which the prior conviction is probative of credibility, has been greatly de-emphasized. The lower courts have focused instead on other issues such as the need for credibility evidence. The resulting difficulty in interpreting this important rule of evidence more often acts to the detriment of the defendant's right to testify than to the service of the jury's ability to evaluate a witness' credibility.

The approach of the dissenting opinions, in our [429 Mich. 564] view, does not clarify the present confusion and, in one respect, adds a standard that creates an irreconcilable conflict in the application of MRE 609.

In order to resolve the cases before us, we therefore set forth a more specific procedure for the exercise of discretion under the present MRE 609(a) which we think more fully comports with its original intent. We also take this opportunity to promulgate an amendment to MRE 609(a)

Page 503

which will apply to all cases tried after March 1, 1988. (See appendix A.) It provides for bright-line rules that recognize and exclude certain prior convictions which are inherently more prejudicial than probative and allows admission of those convictions which are inherently more probative than prejudicial. For those crimes that fall in between, because their relationship to credibility is less clear, the amendment adopts the same standard for the exercise of judicial discretion as is set forth herein for the resolution of these cases and for cases yet to be resolved under MRE 609(a) prior to its amendment. I

The facts of these cases are succinctly set forth in the opinion of Chief Justice Riley.

II

The use of prior convictions to impeach a witness-accused has long been controversial. This controversy is apparent in the debates surrounding the adoption of Michigan Rule of Evidence 609, ¹ as [429 Mich. 565] well as the relevant federal rule. ² The question has been the source of more scholarly commentaries than can be cited here. ³ What underlies this controversy is the clash between the fundamental principle defined in MRE 404 that character evidence (including prior conviction evidence) may not be admitted to prove that a defendant acted in conformity therewith and the practice of permitting[429 Mich. 566] the admission of prior conviction evidence as contained in MRE 609 for purposes of impeaching a witness-accused's credibility when he testifies in his own behalf. ⁴

A

There can be little doubt that an individual with a substantial criminal history is more likely to have committed a crime than

Page 504

is an individual free of past criminal activity. Nevertheless, in our system of jurisprudence, we try cases, rather than persons, and thus a jury may look only to the evidence of the events in question, not defendants' prior acts in reaching its verdict. ⁵ See United [429 Mich. 567] States v. Mitchell, 2 U.S. (2 Dall.) 348, 357, 1 L.Ed. 410 (1795). ⁶

However, when a defendant testifies, he takes on a second role, that of a witness. And the question of the reliability of a witness' testimony, though a collateral issue, may play an important role in a jury's decision. We therefore permit the introduction of evidence to prove that a witness is not worthy of belief. For example, the witness' ability to perceive or understand events may be questioned. (MRE 601.) Similarly, the witness' testimony may be disallowed if he has no personal knowledge of the events about which he testifies. (MRE 602.) In addition, the witness' reputation for dishonesty may be introduced or specific instances of conduct demonstrating a lack of veracity elicited on cross-examination. (MRE 608.) These methods of impeachment may be used against all witnesses, and their use against a witness-accused have not been challenged. However, when a defendant takes on the role of witness, the rule permitting impeachment of witnesses by prior conviction presents a special problem, i.e., the danger that evidence admitted to impeach the defendant-as-witness will be used by the jury in evaluating defendant-as-defendant. ⁷

[429 Mich. 568] A jury should not be allowed to consider the defendant's guilt of the crime before it on the basis of evidence of his propensity for crime. Finding a person guilty of a crime is not a pleasant or easy assignment for a representative group of twelve people. It is much easier to conclude that a person is bad than that he did something bad. Hence the appetite for more knowledge of the defendant's background and the slippery slope toward general "bad man" evidence. ⁸

[429 Mich. 569]

Page 505

This appetite presents three types of impropriety. First, that jurors may determine that although defendant's guilt in the case before them is in doubt, he is a bad man and should therefore be punished. Second, the character evidence may lead the jury to lower the burden of proof against the defendant, since, even if the guilty verdict is incorrect, no "innocent" man will be forced to endure punishment. Third, the jury may determine that on the basis of his prior actions, the defendant has a propensity to commit crimes, and therefore he probably is guilty of the crime with which he is charged. Beaver & Marques, A proposal to modify the rule on criminal conviction impeachment, 58 Temple L Q 585, 592-593 (1985). All three of these dimensions suggest a likelihood that innocent persons may be convicted.

The danger then is that a jury will misuse prior conviction evidence by focusing on the defendant's general bad character, rather than solely on his character for truthtelling.

B

Judge Weinstein has described the basis for MRE 609 admissions as follows:

"The theory that all convictions are relevant to credibility depends on a two-fold assumption: (1) that a person with a criminal past has a bad general character and (2) that a person with a bad [429 Mich. 570] general character is the sort of person who would disregard the obligation to testify truthfully. 3 Weinstein, Evidence, p 609 at 609-59. (Emphasis added.)

Similarly, Judge Holmes stated in Gertz v. Fitchburg R. Co., 137 Mass. 77, 78 (1884), that

"when it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which such ground affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in the particular case, and thence that he has lied in fact. The evidence has no tendency to prove that he was mistaken, but only that he has perjured himself and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit."

The same analysis was offered in the Advisory Committee notes to the first draft of federal rule 609 which permitted impeachment by all prior felony convictions:

Page 506

"A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony." 46 F.R.D. 161, 297.

Thus, jurors are not directly informed through impeachment evidence, with the exceptions described above, that a witness may not be truthful. That understanding is derived indirectly through the mediation of the belief that the witness has a "general readiness to do evil." Gertz, supra, at p. 78. In other words, for example, the commission of an assault does not involve the telling of a lie.

The dissent's reference to the diagnostic criteria [429...