DISTRICT  COURT  UPDATE

The Michigan Supreme Court recently struck down a 30-year old rule regarding cautionary instructions on accomplice testimony. 

In People v McCoy, 392 Mich 231 (1974), voicing concern over dangers inherent in testimony of accomplices (“due to the effect of fear, threats, hostility, motives, or hope of leniency”), the Supreme Court had deemed it reversible error “to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request”.  And the Supreme Court’s pronouncement had, most recently, been implemented through adoption and use of CJI2d 5.4 – 5.6.

However, in People v Young, ___ Mich ___ (2005) (2005 WL 736660), the current court found no basis for the McCoy rule, concluding (1) it subverts the discretion historically afforded trial courts; (2) it violates MCL 768.29 (providing that failure to instruct on a point of law is not grounds for relief from a verdict unless the instruction is requested by the accused); (3) it is contrary to MCR 2.516(C) (requiring a party assign instruction error on the record before the jury retires); and (4) it contravenes MCL 769.26 (insulating verdicts from challenge on grounds of jury misdirection unless the error results in a miscarriage of justice).  Rather, in dispatching the “unfounded” rule “invented” by the McCoy court, the Young court observed that,

[f]undamentally, it is the province of the jury to assess the credibility of witnesses.   In making that assessment, the jury should decide whether witnesses harbor any bias or prejudice. [ citations omitted ]  And it is the role of defense counsel, through cross-examination of prosecution witnesses and closing argument, to expose potential credibility problems for the jury to consider.

Of course, trial courts may still exercise their recognized discretion in giving cautionary accomplice instructions; but, under the [ new ] [ resurrected ] Young rule, reversal is no longer automatic should a court elect to not specifically instruct a jury to consider an accomplice’s testimony more cautiously than that of an ordinary witness.  Rather, should the court so choose, it appears sufficient to instruct generally (see CJI2d 3.6(C)(3)(e)) that, in determining the credibility of witnesses (implicitly including accomplices), the jury may consider whether the witness has any “bias, prejudice, or personal interest in how th[e] case is decided”.

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