3.9 Impeachment of Witness—Bias, Character, Prior Convictions, Prior Statements
A. Ways to Impeach a Witness
Subject to any conditions described in the applicable rules of evidence, there are four classic ways to impeach a witness:
• Interest or bias, 1 see MRE 611(c) ;
• Character for truthfulness or untruthfulness 2 — MRE 608(a) (reputation or opinion evidence), and MRE 608(b) (evidence of specific instances of conduct);
• Evidence of a criminal conviction, 3 MRE 609 ; and
A statement contained in a published treatise, periodical, or pamphlet is only admissible to impeach an expert witness on cross-examination if “the publication is on a subject of history, medicine, or other science or art” and “is established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.” MRE 707 . A statement from a qualified publication “may be read into evidence but must not be received as an exhibit.” Id .
Committee Tip:
MRE 707 is a rule of allowance and limitation as to the format of the evidence.
B. Collateral Matters
“It is a well-settled rule that a witness may not be impeached by contradiction on matters which are purely collateral. What is a collateral matter depends upon the issue in the case. . . . The purpose of the [collateral matters] doctrine is closely related to the goals of the prejudice rule, MRE 403 , and generally the same factors which are employed to determine whether evidence is inadmissible under 403 are used to determine whether extrinsic evidence should be allowed for impeachment purposes.” Cook v Rontal, 109 Mich App 220, 229 (1981) (citations omitted).
“[T]here are three kinds of facts that are not considered to be collateral. The first consists of facts directly relevant to the substantive issues in the case. The second consists of facts showing bias, interest, conviction of crime and want of capacity or opportunity for knowledge. The third consists of any part of the witness’s account of the background and circumstances of a material transaction which as a matter of human experience he would not have been mistaken about if his story were true.” People v Guy , 121 Mich App 592, 604-605 (1982).
Generally, the court has broad discretion to allow questioning designed to show bias, prejudice, or interest on the part of a witness. Detroit/Wayne Co Stadium Auth v Drinkwater, Taylor & Merrill, Inc , 267 Mich App 625, 653 (2005). The Michigan Supreme Court explained witness 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.’” People v Layher , 464 Mich 756, 763 (2001), quoting United States v Abel , 469 US 45, 52 (1984).
There is no specific rule of evidence that covers this form of impeachment, but MRE 401 (relevancy) and MRE 611 (mode of examining witnesses) seem applicable. Interest or bias is always relevant to a witness’s credibility and MRE 611(c) states that “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Layher , 464 Mich at 764. “[I]t is always permissible upon cross-examination of an adverse witness to pursue facts that may bear on a witness’s bias.” Detroit/Wayne Co Stadium Auth , 267 Mich App at 653.
Committee Tip:
While not contained in a particular rule, bias is strong evidence. Indeed, it is noted in MRE 408 and MRE 411 as a reason to allow otherwise inadmissible evidence to be properly used.
“[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.” Layher , 464 Mich at 758. In Layher (a case involving criminal sexual conduct), the defendant’s lead witness had been previously arrested for and acquitted of criminal sexual conduct charges. Id. at 760. The Court concluded that evidence of the witness’s prior arrest was relevant because its admission “supports the inference that [the witness] would color his testimony in favor of defendant.” Id. at 765.
“Evidence of a person’s character or character trait is not admissible to prove that the person acted in accordance with the character or trait.” MRE 404(a)(1) . 5 However, MRE 404(a)(3) permits a witness’s credibility to be attacked or supported through reputation testimony, opinion testimony, or inquiry into specific instances of conduct, as permitted by MRE 608 , which states:
“(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under [ MRE 609 ], extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.”
It is error for a court to allow character testimony that goes “beyond [the witness’s] reputation for truthfulness and encompasse[s] [the witness’s] overall ‘integrity.’” Ykimoff v W A Foote Mem Hosp , 285 Mich App 80, 102 (2009) (finding, however, that the error was harmless).
Where a party attacks a witness’s credibility, but not the witness’s character for truthfulness, the opposing party may not present evidence to bolster the witness’s truthful character. People v Lukity , 460 Mich 484, 490-491 (1999). In Lukity , the defense counsel asserted during his opening statement that the complainant had emotional problems which affected her ability to describe the alleged sexual assaults. Id . at 490. Before the complainant testified, the trial court allowed the prosecution to present testimony from several other witnesses as to the complainant’s truthful character. Id. at 488-489. The Michigan Supreme Court concluded that the defendant’s opening statement did not implicate MRE 608(a) , and the trial court abused its discretion in admitting evidence of the complainant’s truthful character where her truthful character had never been attacked. Lukity , 460 Mich at 491.
Where a witness was not called as a character witness and did not testify on direct examination about the plaintiff’s truthfulness or untruthfulness, the defendant was not permitted to cross-examine the witness about specific instances of the plaintiff’s conduct for the purpose of impeaching the plaintiff. Guerrero v Smith , 280 Mich App 647, 655 (2008). In Guerrero , the plaintiff testified about his limited marijuana use, and thereafter, defense counsel cross-examined one of the plaintiff’s witnesses in an effort to impeach the plaintiff’s testimony regarding his marijuana use. Id . at 654. The Michigan Court of Appeals concluded that the witness’s testimony should not have been admitted because it did not satisfy the technical requirements of MRE 608(b)(2) . Guerrero , 280 Mich App at 654. The Court stated:
“Before specific instances concerning another witness’s character for truthfulness or untruthfulness may be inquired into on cross-examination, the witness subject to cross-examination must already have testified on direct examination regarding the other witness’s character for truthfulness or untruthfulness.” Guerrero , 280 Mich App at 654-655.
E. Prior Criminal Conviction
Under MRE 609 , a witness’s character for truthfulness may be attacked on cross-examination by evidence of a criminal conviction only if it has been elicited from the witness or established by public record and the following conditions are met:
“(1) the crime contained an element of dishonesty or false statement; or
(2) the crime contained an element of theft; and
(A) in the convicting jurisdiction, the crime was punishable by imprisonment for more than one year or by death; and
(B) the court determines that the evidence has significant probative value on character for truthfulness and — if the witness is the defendant in a criminal trial — that the probative value outweighs any prejudicial effect.” MRE 609(a) .
Crimes involving elements of dishonesty or false statement. Evidence of a witness’s prior criminal conviction is automatically admissible if it contains an element of dishonesty or false statement. People v Allen , 429 Mich 558, 605 (1988). See also People v Snyder (After Remand) , 301 Mich App 99, 105 (2013).
Crimes involving elements of theft. Evidence of a witness’s prior conviction of a crime containing an element of theft “may be admissible if certain conditions are met.” Snyder (After Remand) , 301 Mich App at 105. See also MRE 609(a)(2) . “Which conditions need be met are in part a function of whether the witness is the defendant.” Snyder (After Remand) , 301 Mich App at 105. “As a first step, regardless of whether the witness is the defendant, the court is required to determine that the proffered prior theft crime conviction has ‘significant probative value on the issue of credibility[.]’” Snyder (After Remand) , 301 Mich App at 105, quoting MRE 609(a)(2)(B) .
Determining probative value and prejudicial effect. If the witness is the defendant in a criminal trial, the court must also decide whether “the probative value outweighs any prejudicial effect.” MRE 609(a)(2)(B) . “In determining probative value, the court must consider only the age of the conviction and the degree to which it indicates character for truthfulness.” MRE 609(b) . “[I]n general, theft crimes are minimally probative on the issue of credibility, or, at most, are moderately probative of veracity.” Snyder (After Remand) , 301 Mich App at 106 (cleaned up) (holding that a two-year-old prior conviction did not have significant probative value of credibility 6 ).
“Regarding the age of the conviction, as a general matter, the older a conviction, the less probative it is.” Snyder (After Remand) , 301 Mich App at 106. Evidence of a conviction is not admissible under MRE 609 “if more than ten years have passed since the date of the conviction or of the witness’s release from the confinement for it, whichever is later.” MRE 609(c) .
When considering prejudicial effect, “the court must consider only the conviction’s similarity to the charged offense and the possible effects on the decisional process if admitting the evidence causes the defendant to elect not to testify.” MRE 609(b) . As the similarity of charges and the importance of the defendant’s testimony to the decisional process increases, so does the prejudicial effect. Allen , 429 Mich at 606.
“The court must articulate, on the record, the analysis of each factor.” MRE 609(b) .
“[I]t is error to cross-examine a defendant about the duration and details of prior prison sentences to test his credibility.” People v Lindberg , 162 Mich App 226, 234 (1987). The rationale for this rule is that only a defendant’s prior conduct is relevant to his credibility, not the punishment for the conduct. Id .
“[T]here can be no error until a defendant testifies and the prior-conviction impeachment evidence is actually introduced[.]” People v McDonald , 303 Mich App 424, 431, 439 (2013) (“[b]y choosing not to testify defendant waived his argument that the trial court erred when it ruled that a prior conviction would be admissible for impeachment purposes should he take the stand and testify”). However, when a defendant waives the opportunity to testify due to defense counsel’s incorrect advice that a prior conviction could be used as impeachment evidence, such conduct could constitute ineffective assistance of counsel. See People v Perkins , 141 Mich App 186, 191 (1985).
Evidence of a defendant’s prior criminal conviction can be introduced in a subsequent civil case based on the same conduct as long as it does not violate MRE 403 . Waknin v Chamberlain , 467 Mich 329, 333-335 (2002). “Where a civil case arises from the same incident that resulted in a criminal conviction, the admission of evidence of the criminal conviction during the civil case is prejudicial for precisely the same reason it is probative. That fact does not, without more, render admission of evidence of a criminal conviction unfair , i.e., substantially more prejudicial than probative.” Id. at 336 (finding the trial court improperly excluded evidence of a prior conviction as being prejudicial without also weighing whether the prejudice was unfair).
Committee Tip
The heavy lifting here is classifying the prior conviction as either one containing an element of dishonesty or false statement, or instead, an element of theft. The latter requires additional consideration for admission under MRE 609(a)(2) .
2. Notice of Intent to Impeach Defendant
The burden is not on the prosecutor in all cases to initiate a ruling regarding the use of a defendant’s prior convictions before the defendant testifies. People v Nelson , 234 Mich App 454, 463 (1999). However, a request for a prior ruling is the prudent course, especially if admitting the prior conviction is discretionary. See MRE 609(b) .
3. Jury Instructions
Civil. M Civ JI 5.03 , Impeachment by Prior Conviction of Crime.
Criminal. M Crim JI 3.4 , Defendant—Impeachment by Prior Conviction.
4. Standard of Review
The decision whether to allow impeachment by evidence of a prior conviction is within the trial court’s sound discretion and will not be reversed absent abuse of that discretion. People v Coleman , 210 Mich App 1, 6 (1995). However, “[t]he erroneous admission of evidence of a prior conviction is harmless error where reasonable jurors would find the defendant guilty beyond a reasonable doubt even if evidence of the prior conviction had been suppressed.” Id . at 7.
F. Prior Statements
While examining a witness about their prior statement, the examining party is not required to show or disclose the contents of the witness’s prior statement, unless requested by an adverse party’s attorney or the witness. MRE 613(a) .
For information regarding the use of depositions or interrogatories at trial, see Section 3.12 .
1. Prior Consistent Statements
“As a general rule, neither party in a criminal trial is permitted to bolster a witness’ testimony by seeking the admission of a prior consistent statement made by that witness.” People v Lewis , 160 Mich App 20, 29 (1987). However, the statement is not considered hearsay and may be admissible where the statement “is consistent with the [witness’s] testimony and is offered to rebut an express or implied charge that the [witness] recently fabricated it or acted from a recent improper influence or motive in so testifying[.]” MRE 801(d)(1)(B) . “A prior consistent statement is admissible to rehabilitate the witness following impeachment by a prior inconsistent statement or . . . when there is a question as to whether the prior inconsistent statement was made.” Palmer v Hastings Mut Ins Co , 119 Mich App 271, 273-274 (1982) (internal citations omitted).
Four elements must be established before admitting a prior consistent statement: “(1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.” People v Jones , 240 Mich App 704, 707, 712 (2000) (the motive mentioned in elements (2) and (4) must be the same motive) (quotation marks and citation omitted). Consistent statements made after the motive to fabricate arises constitute inadmissible hearsay. People v McCray , 245 Mich App 631, 642 (2001).
Prior consistent statements may be admitted through a third-party if the requirements of MRE 801(d)(1)(B) are met. See Jones , 240 Mich App at 706-707; People v Mahone , 294 Mich App 208, 214 (2011) (the victim’s statement to her coworker, made before the victim would have had a motive to falsify, was properly admitted through the coworker’s testimony).
Committee Tip:
Challenges that the court must consider usually arise under the third prong of Jones.
2. Prior Inconsistent Statements
“When a witness claims not to remember making a prior inconsistent statement, he may be impeached by extrinsic evidence of that statement. The purpose of extrinsic impeachment evidence is to prove that a witness made a prior inconsistent statement—not to prove the contents of the statement.” People v Jenkins , 450 Mich 249, 256 (1995). However, where the substance of the prior inconsistent statement goes to a central issue in the case, admission of the statement is improper because it violates MRE 801 ( hearsay rule). People v Stanaway , 446 Mich 643, 692-693 (1994). “[P]rior unsworn statements of a witness are mere hearsay and are generally inadmissible as substantive evidence.” People v Lundy , 467 Mich 254, 257 (2002). Accordingly, prior inconsistent statements cannot be admitted to prove the truth of the matter asserted unless a recognized hearsay exception applies. People v Steanhouse , 313 Mich App 1, 29 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017) 7 . ”Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.” MRE 613(b) . However, MRE 613(b) “does not apply to an opposing party’s statement under [ MRE 801(d)(2) ].” MRE 613(b) .
Generally, evidence of a prior inconsistent statement of the witness may be used to impeach a witness, even if it tends to directly inculpate the defendant. People v Kilbourn , 454 Mich 677, 682 (1997). However, a prior inconsistent statement should not be admitted when “(1) the substance of the statement purportedly used to impeach the credibility of the witness is relevant to the central issue of the case, and (2) there is no other testimony from the witness for which his credibility was relevant to the case.” Id . at 683 (noting that this analysis is very narrow, and concluding that the facts did not support a finding of inadmissibility “because there was other relevant testimony from the witness for which his credibility was relevant”).
When seeking to admit a prior inconsistent statement, a proper foundation for the statement must be laid. Barnett v Hidalgo , 478 Mich 151, 165 (2007). To introduce impeachment testimony, the witness to be impeached must be asked whether he or she made the first statement, then asked whether he or she made the later, inconsistent statement. Id . at 165.
b. Constitutional Considerations
Even where a defendant’s prior inconsistent statement was elicited in violation of the Sixth Amendment, admission of the statement is generally permitted when it is offered as impeachment testimony. Kansas v Ventris , 556 US 586, 594 (2009). In Ventris , 556 US at 588-589, the defendant was charged with murder and aggravated robbery, testifying at trial that his codefendant committed the crimes. The prosecution attempted to present testimony from an informant, planted in the defendant’s jail cell by police officers, that the defendant admitted to robbing and shooting the victim. Id at 589 . The United States Supreme Court disagreed with the Kansas Supreme Court’s conclusion that the informant’s testimony was inadmissible for any reason, including impeachment, instead concluding:
“Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of ‘the traditional truth-testing devices of the adversary process,’ is a high price to pay for vindication of the right to counsel at the prior stage.
On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah [ 8 ] would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment.” Ventris , 556 US at 593, quoting Harris v New York , 401 US 222, 225 (1971) (citation omitted).
In medical malpractice cases, when an expert’s trial testimony is not consistent with statements appearing in the expert’s affidavit of merit, the affidavit of merit constitutes a prior inconsistent statement and is admissible at trial for impeachment purposes. Barnett v Hidalgo , 478 Mich 151, 164-167 (2007).
Where a witness’s “police statement implicating defendant in [a crime] was admissible only to impeach [the witness’s] trial testimony, the prosecution’s use of the statement as substantive evidence of defendant’s guilt, and the trial court’s instruction[ that the jury could consider prior inconsistent statements as substantive evidence], constituted plain er ror.” People v Steanhouse , 313 Mich App 1, 29-30 (2015) , aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017) 9 (nevertheless concluding that “in light of the extensive evidence admitted at trial linking defendant to the [crime], . . . these errors did not prejudice defendant”).
The trial court erred in admitting a hearsay statement as impeachment testimony where “the content of the [hearsay] statement . . . was [not] needed to impeach [the declarant’s] testimony that he did not make such a statement,” and “there was no other testimony from [the witness] that made his credibility relevant to the case.” People v Shaw , 315 Mich App 668, 685 (2016). The declarant was the complainant’s brother, whose testimony “had little, if any, probative value,” and “[a] review of the [declarant’s] testimony leaves little doubt that the prosecution’s purpose in calling him as a witness was to have him describe the incident later described by [the officer who offered the impeachment testimony].” Id. at 682-683. The complainant’s brother was asked on direct examination if he remembered telling the police about a fight between his mother and the defendant. Id. at 682. The complainant denied remembering the fight and stated that he did not remember telling the police about it. Id. The prosecution then called an officer as an impeachment witness who described the altercation between the defendant and the complainant’s mother that the complainant’s brother allegedly reported to the officer. Id. at 683. The Court held that “the prosecutor improperly used an elicited denial as a springboard for introducing substantive evidence under the guise of rebutting the denial,” and the impeachment testimony should not have been admitted. Id. at 685 (quotation marks and citation omitted). Further, the Court found that the content of the statement offered as impeachment evidence also violated MRE 404(b) and MRE 403 . Shaw , 315 Mich App at 688.
d. Impeachment of Hearsay Declarants
“When a hearsay statement — or a statement described in [ MRE 801(d)(2)(C) , MRE 801(d)(2)(D) , or MRE 801(d)(2)(E) ] — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if declarant had testified as a witness.” MRE 806 . Evidence of the declarant’s inconsistent statement or conduct may be admitted, “regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.” Id . However, “[i]f the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.” Id .
Evidence that may be admissible under MRE 806 “is still subject to the balancing test under MRE 403 [.]” People v Blackston , 481 Mich 451, 461 (2008).
G. Evidence of Defendant’s Silence
“[T]he use for impeachment purposes of a defendant’s prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant’s constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution.” People v Cetlinski , 435 Mich 742, 746-747 (1990). However, if a defendant’s silence is attributable to invocation of the Fifth Amendment privilege against self-incrimination or to reliance on Miranda 10 warnings, admission of evidence of that silence is error. People v McReavy , 436 Mich 197, 201 (1990). “The evidentiary issue should be analyzed as a party admission under MRE 801(d)(2)(A) .” McReavy , 436 Mich at 201.
A prosecutor may not “seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.” Doyle v Ohio , 426 US 610, 611 (1976). “[U]se of the defendant’s post-arrest silence in this manner violates due process,” and is commonly referred to as a “ Doyle error.” Id .; McReavy , 436 Mich at 202 n 2. However, an arrested defendant’s post- Miranda silence may be used against the defendant if he or she “testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Doyle , 426 US at 619 n 11. See also People v Boyd , 470 Mich 363, 374 (2004).
“[A] defendant’s post-arrest, post- Miranda silence cannot be used to impeach a defendant’s exculpatory testimony, or as direct evidence of defendant’s guilt in the prosecutor’s case-in-chief[.]” People v Shafier , 483 Mich 205, 213-214 (2009) (citation omitted). This is because “‘there is no way to know after the fact whether [the defendant’s post-arrest, post- Miranda silence] was due to the exercise of constitutional rights or to guilty knowledge.’” Id . at 214, quoting McReavy , 436 Mich at 218. The “defendant’s rights under Doyle were violated when the trial court erroneously allowed the prosecution to use defendant’s post-arrest, post- Miranda silence against him.” People v Borgne , 483 Mich 178, 181 (2009) (but finding “that the error did not amount to plain error affecting defendant’s substantial rights”), aff’d 485 Mich 868 (2009). “[I]n some circumstances a single reference to a defendant’s silence may not amount to a violation of Doyle if the reference is so minimal that ‘silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference[.]’” Shafier , 483 Mich at 214-215, quoting Greer v Miller , 483 US 756, 764-765 (1987).
3 See Section 3.9(E) . Note that impeachment by contradiction is governed by MRE 404(b) as other acts evidence where the prosecution attempts to admit the defendant’s prior conviction to impeach by contradiction a witness ’ testimony. People v Wilder , 502 Mich 57, 63-64 (2018). See Section 2.4 for more information on admission of other-acts evidence.
5 See Section 2.3 on character evidence.
6 Typically, where the defendant is the witness, courts must also determine whether the probative value of the evidence outweighs its prejudicial effect. See MRE 609(A)(2)(b) . However, if “a prior conviction is not significantly probative of credibility, the prejudicial-effect inquiry is unnecessary because the prior conviction has already failed to meet one of the rule’s requirements.” Snyder (After Remand) , 301 Mich App at 109-110 (concluding that the prejudicial effect inquiry was unnecessary because “evidence of defendant’s prior larceny conviction [was] not of significant probative value on the issue of his credibility”).
7 For more information on the precedential value of an opinion with negative subsequent history, see our note .
8 Massiah v United States , 377 US 201, 206 (1964), guarantees a defendant’s Sixth Amendment right to counsel during interrogation by law enforcement officers or their agents.
9 For more information on the precedential value of an opinion with negative subsequent history, see our note .
10 Miranda v Arizona , 384 US 436 (1966). See Section 3.13 for discussion of self-incrimination.
