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Monday, July 15, 2013
By Michael Nichols
Categories: Michael J. Nichols
The Michigan Supreme Court ruled that a witness called by the prosecution may not comment on the credibility of other witnesses. The court held that it was not an error by the trial judge (referred to as the trial court) to allow statements by a police officer to the accused citizen during an interrogation. However, it was reversible error not to redact comments by the officer about the credibility of the complaining witness in response to some of the statements by the accused - who was a suspect undergoing questioning when the exchange occurred.
The case is "People v Musser," says Lansing Drunk Driving Attorney Mike Nichols. The language of the court opinion is even broader beyond the issue of witness vouching. Nichols says, "the court held that a statement during an interview of the accused is hearsay and must be offered for a proper purpose or else it must be redacted. Further, even if the statement by the officer is admitted, the jury should be instructed about its hearsay nature." The court ruled:
At this juncture, we find it unnecessary to adopt a bright-line rule requiring the automatic redaction of such statements. Instead, applying our rules of evidence, we hold that if such out-of-court statements are not offered for the truth of the matter asserted, the statements may be admissible to the extent that the proponent of the evidence establishes that they are relevant for their proffered purpose as defined by MRE 401. Further, even if relevant, the statements may be excluded under MRE 403. Finally, upon request, the statements must be restricted to their proper scope and the jury instructed accordingly.
The case is important because officers try to convince the jury that a witness is credible if that witness's credibility is important to getting a conviction. Nichols, whose East Lansing practice focuses on DUI and DUID defense adds: "I recently had an officer testify at trial that he did not believe my client, nor that he believed another prosecution witness who testified in a manner that was hurtful to the prosecution's case. This case will help in that appeal.
Nichols is a member of the council of the criminal law section of the state bar of Michigan, the American Academy of Forensic Science, the National College for DUI Defense (state delegate) and he is a founder of the Michigan Association of OWI Attorneys. He is also an adjunct professor of forensic evidence and DUI Law and Practice at Thomas M Cooley Law School.