In The News

In The News

Saturday, October 14, 2017

Michigan’s Rules of Evidence Limiting Use of “Character” are Strengthened by the Supreme Court

By Michael Nichols
Categories: Michael J. Nichols

It is a maxim of our justice system in Michigan that “we try facts – not people.” However, the Michigan Supreme Court wrestled for 2 years with a proposal to give prosecutors broader ability to introduce so-called “character” evidence. “It is a tricky proposition,” says Michigan criminal litigation attorney Mike Nichols. “The question is to what degree do we allow exceptions to the prohibition against putting someone’s character on trial.”

The rule is Michigan Rule of Evidence 404b (MRE 404b). The rule generally prohibits the use of character evidence. It says: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” However, that is just the first sentence.

The rule goes on to say “It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.”

The issue in the proposed revision to the rule was the subpart (2), which requires the prosecutor to provide reasonable notice before trial if the prosecutor intended to use such evidence. That is important because if you are on trial for an alleged crime, going to trial for an alleged crime or trying to decide whether to accept a plea offer, knowing whether the prosecutor is going to put your character on trial and, in what way is critical.

The prosecutors supported a relaxed standard that would have expressly allowed oral notice and allowing it “during trial.” Nichols says “the dynamic you find as a case gets closer to trial is that police investigators will often go fishing for any evidence to increase their chances of winning a case.” The investigation will sometimes yield a dramatic trial moment with a “surprise” witness.

In the context of a drunk driving case, that can mean anything from a police officer who arrested a citizen previously for suspicion of drunk driving to a citizen who claims to have seen the person drive erratically in a fashion similar to the basic driving that lead to a stop and the arrest for which the citizen is presently on trial. Nichols says “I even had a fairly well-known defense attorney turn up on a witness list, because he reported my client’s erratic driving a few years prior.”

The revision approved by the Michigan Supreme Court on October 11, 2017, now requires prosecutors to provide written notice 14 days before trial. The rule still contains a clause that excuses a breach of the timeline for good cause – but the rule is now stronger as opposed to the other direction.

Nichols served on several Michigan Bar committees that worked to help the Supreme Court make a decision based on all the necessary input, including that from the Michigan Judges Association. He serves on the Criminal Defense Attorneys of Michigan (CDAM) Rules and Laws Committee and also served on the State Bar of Michigan Criminal Law Section governing council. He says “what was impressive here is that the State Bar initially came out in support of a prior version of this change that had the opposite effect: it would have made it much easier to introduce “character” evidence. The efforts by some of us on the council for the criminal law section were dogged and we eventually got this turned around. The rule is much better for the people of Michigan who are ensnared in the state’s legal system.”

For attorneys who are on the cutting edge and are committed to results, call the Nichols Law Firm at 517 432 9000.

#criminallaw #michiganrulesofevidence #characterevidence #michigansupremecourt #criminaldefenseattorneysofmichigan


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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.