EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 16, 2010

Domestic Disturbance: Court Of Appeals Of Michigan Case Reveals DV Exception To Character Evidence Proscription In Michigan

Like its federal counterpart, Michigan Rule of Evidence 404(b) provides in relevant part that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion....

That said, some states have a domestic violence exception under which the prosecution can present evidence of prior domestic violence to prove the defendant propensity to commit such acts and his likely conformity with that propensity at the time of the crime charged. And, as the recent opinion of the Court of Appeals of Michigan in People v. Branion, 2010 WL 3564746 (Mich.App. 2010), makes clear, Michigan has such an exception.

In Branion,

On September 22, 2008, defendant and his wife of 16 years, the victim in this case, were separated. That evening as the victim sat alone and watched television in her bedroom, defendant stood outside her open window and squirted lighter fluid through the screen. Defendant ignited his lighter and set the window, windowsill and curtains ablaze. The victim's roommate, and owner of the home, put out the fire and he and the victim escaped to a neighbor's house across the street to telephone the authorities. From this location, the victim saw defendant running away from her residence. Before trial, the prosecutor sought to admit evidence of seven prior instances of domestic abuse between defendant and the victim, one of which involved defendant attempting to set the victim on fire with lighter fluid.

The trial court admitted this evidence pursuant to, inter alia, MCL 768.27b, which provides in relevant part that

in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.

After Branion was convicted of assault with intent to murder and arson, he appealed, claiming, inter alia, that the trial court should have deemed the subject evidence inadmissible because it failed the balancing test set forth by Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence

The Court of Appeals of Michigan disagreed, finding that

The focus behind MRE 403 is whether the evidence was unfairly prejudicial, because the prosecutor's evidence, and all relevant evidence, for that matter, is inherently prejudicial to some extent...."This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock."...

Here, the prior acts of domestic abuse were highly probative for the prosecution to show defendant's character for assaulting the victim and his propensity to commit acts of violence against her window....

The evidence was prejudicial, but there was no danger that marginally probative evidence would be given undue weight or that it was inequitable for the prosecution to use it....The evidence also did not inject extraneous considerations into trial.



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