DISTRICT COURT UPDATE
Summons Article, July, 2006
written by
Hon. M. Randall Jurrens

    New legislation affecting the admissibility of evidence in domestic violence prosecutions is the subject of this month’s update.

    Although Michigan’s supreme court has the exclusive power to determine rules of practice and procedure in our state courts, there is a recognized distinction between procedural rules of evidence and evidentiary rules of substantive law; allowing the legislature to enact evidentiary rules where there is “clear legislative policy reflecting considerations other than judicial dispatch of litigation”.  Const 1963, Art 6, §5; MRE 101; McDougall v Schanz, 461 Mich 15 (1999).   

    Presumably acting within this framework, the legislature recently added to the Code of Criminal Procedure a new MCL 768.27b permitting admission of prior acts of domestic violence in trials and evidentiary hearings involving domestic violence. 

    Until now, “prior acts” evidence was generally inadmissible, subject to exceptions recognized by MRE 404(b) (statutorily paralleled by MCL 768.27, to prove motive, intent, scheme, etc.) and MCL 768.27a (involving sex offenses against minors).

    Now, MCL 768.27b makes evidence of the defendant’s prior acts of domestic violence admissible “for any purpose for which it is relevant”.   

    However, the legislature did condition admissibility on (a) the prior act occurring within the preceding 10 years, unless the court determines admission of earlier acts to be in the interest of justice, (b) the prosecutor disclosing the evidence to the defendant not less than 15 days before trial, or at such later time allowed by the court for good cause, and (c) the evidence not being otherwise excluded under MRE 403 (i.e. probative value outweighed by unfair prejudice).

    The legislature also created a new exception to the hearsay rule (MRE 801 et seq.) by adding MCL 768.27c authorizing admission of domestic violence victims’ out-of-court statements to police officers. 

    Use of this exception is conditioned on the statement being (a) made at or near the time of the incident (but, in any event, made not more than 5 years before the current proceeding), (b) made under circumstances that indicate trustworthiness (with the legislature suggesting relevant factors for consideration in determining trustworthiness), and (c)  disclosed to the defendant not less than 15 days before trial, or at such later time allowed by the court for good cause. 

    Whatever its merit, this legislative modification of the hearsay rule will certainly face scrutiny in light of the U.S. Supreme Court’s recent application of the Confrontation Clause in Crawford v Washington, 541 US 36 (2004) (i.e. “testimonial” hearsay is not admissible against a criminal defendant unless the declarant is unavailable to testify at trial and the defendant had the prior opportunity to cross-examine the declarant).

    So, arguably, at least until appellate court guidance is received, these new legislative evidentiary rules have both simplified and complicated prosecutions of domestic violence.

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