People v. VanderVliet

Cavanagh, C.J.

(dissenting). I write separately because this Court has adopted, developed, applied, and relied on Michigan’s own other acts eviden-tiary rule since 1858, 1 and Michigan has its own statutory basis for the rule. Announcement of a new "clarified standard” is not necessary.

i

Under the federal rule, other acts evidence is admissible if the evidence is logically relevant, FRE 401, and probative of an issue other than propensity, FRE 404. The federal rule also requires enough evidence for the judge to find that the jury could reasonably conclude by a preponderance of the evidence that the other act occurred, FRE 104(b). The judge then must weigh the probative value against potential undue prejudice as required by FRE 403. If requested, the judge also must give a limiting instruction to the jury, FRE 105.

The Michigan rule, though using language different from the federal rule, encompasses nearly *98 identical requirements. 2 In Michigan, all questions involving the admissibility of other acts evidence require the judge to apply MRE 401 and 402, as enforced through MRE 104(b), 403, and 404.

The factors outlined in People v Golochowicz, 413 Mich 298, 309 ; 319 NW2d 518 (1982), serve only to restate the existing evidentiary rules. The first factor, which requires substantial evidence that the defendant committed the other act, is enforced through MRE 402 and 104(b). The second factor, which requires the other act to have a special quality relevant to the charged offense and the purpose for admitting the evidence, is required by the language of MRE 404(b) and the corresponding statute. 3 The third factor simply is a restatement of the MRE 401 and 404 relevancy requirements, and the fourth factor is a restatement of the MRE 403 balancing test.

The difficulty in applying the evidentiary rules is that the relevance and special quality requirements will vary, depending on the purpose for admitting the evidence. Golochowicz and earlier cases explain the general evidentiary rules and how to apply them when deciding whether to admit other acts evidence. But, the precedential value of each case is limited to interpretations of the general rules, and to their application to cases involving the same purpose for admitting the evidence.

Golochowicz is an identity case under MRE 404(b). Thus, other than to examine interpretation of the general rules, and to examine application of the relevancy and similarity requirements to an *99 identity case, Golochowicz will not apply. 4 Because this case is not an identity case, application of Golochowicz is limited. The general test is applicable, however, and there are cases interpreting the individual purposes for admitting the evidence in this case.

A

The majority explains that the federal rule, through FRE 104(b), requires the judge to decide whether the jury reasonably could find that the other act occurred by a preponderance of the evidence. 5 Ante at 68, n 20. Then the majority states that Michigan wrongly adopted a "substantial evidence” requirement because there is no basis or language in Rule 404(r) or the corresponding statute. Id. at 66-68. The majority fails to recognize, however, that Michigan has a corresponding Rule 104(b), and thus may have the same requirement as the federal rule.

Both jurisdictions require evidence that the defendant committed the other act. But this Court has not interpreted MRE 104(b) and has not defined "substantial evidence” in the context of other acts evidence. The term has been defined in another context, however. 6

*100 In Soto v Director of Dep’t of Social Services, 73 Mich App 263, 271 ; 251 NW2d 292 (1977), the Court explained that substantial evidence " 'means evidence which a reasoning mind would accept as sufficient to support a conclusion. "It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” of the evidence.’ ” 7 The rule does not require the judge or the jury to evaluate or weigh conflicting evidence. Thus, "substantial evidence” as defined in Soto is less restrictive than the federal standard.

Another possible interpretation is that Michigan’s standard is the same as the federal standard described in Huddleston v United States, 485 US 681, 687 ; 108 S Ct 1496 ; 99 L Ed 2d 771 (1988). See ante at 68, n 20. 8 To reach that conclusion, we must examine the origin of the term "substantial evidence” as used in other acts evidence cases. In Golochowicz at 309 , we merely accepted the Court of Appeals adoption of the four safeguards in People v Wilkins, 82 Mich App 260 ; 266 NW2d 781 (1978). 9 The Court of Appeals in Wilkins stated that "there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced.” Id. at 267 . The Court cited People v Davis, 343 Mich 348 ; 72 NW2d 269 (1955), and McCormick, Evidence (2d ed), § 190, to support the use of the "substantial evidence” requirement. Id.

In Davis , we stated that "we are in agreement with defense counsel that such acts if admitted *101 may bear on intent only if the jury is first convinced that they had been perpetrated by the accused,” and that the jury is the sole judge of the witnesses’ credibility. Id. at 365 . McCormick used the phrase "substantial evidence,” to differentiate between a substantial evidence rule and a clear and convincing evidence rule. McCormick did not define substantial evidence, but merely cited People v Albertson, 23 Cal 2d 550, 557-581; 145 P2d 7 (1944). McCormick, § 190 at 452, n 51. Albertson also does not provide a clear definition of "substantial evidence,” but does provide several examples of standards upon which other courts have relied. 10 The theories range from "more than a mere suspicion” to "clear and convincing” evidence requirements.

Although we used the term "convince” in Davis , the Wilkins Court intuitively recognized that a clear and convincing evidence requirement is too *102 restrictive, and thus adopted McCormick’s phrase, "substantial evidence.” For Davis, Wilkins, and McCormick to be read consistently, "substantial evidence” must mean something more than a mere suspicion, 11 but less than clear and convincing evidence. The Huddleston interpretation presents a standard that falls in the middle of the range. 12

If the majority agrees with the Soto definition of "substantial evidence,” then the federal standard for enforcing Rule 104(b) is more restrictive. If the majority agrees that the Huddleston interpretation of Rule 104(b) is consistent with the term "substantial evidence” as used in McCormick and Davis , then the standards for enforcing Rule 104(b) are the same under the federal and Michigan rules.

B

The requirement that the other act be similar or have a special quality related to the charged act also is required by the federal rule. The majority explained that "[t]he need for other acts to be similar to one another . . . derives from the requirements of logical relevance . . . .” Ante at 79, n 34. Because logical relevance must be determined before admitting the other acts testimony, the similarity or special quality requirement applies to both the federal and the Michigan rules. 13

*103 I agree with the majority’s statement that there is a "mistaken assumption that all other acts needed to be similar.” Ante at 79, n 34. The requirement is that the other act is similar or has a special quality relating to the charged act. 14 The majority provides several examples that further illustrate the similarity or special quality requirement. Similarly, several Michigan cases have interpreted the requirement as applied to the specific purpose for admitting the evidence.

c

The majority also discusses whether Rule 404(b) is exclusionary or inclusionary. Although it seems that "exclusionary” is the logical characterization, 15 I believe the distinction is one without a difference, 16 and only causes confusion. The judge must consider the evidence and apply the eviden-tiary rules to decide whether to admit it. Facts are facts, and evidence is evidence, The facts and evidence do not suddenly change on the basis that the rule is exclusionary or inclusionary. The evi-dentiary rules must be applied to the facts and evidence, and whether the rule is inclusionary or exclusionary does not alter the facts, the evidence, *104 the rules, or the manner in which the rules are applied.

Furthermore, all other acts evidence has the underlying inference that the defendant is a bad person. Thus, as a general rule, the evidence should be excluded. But, if the evidence also is introduced for another purpose, the intermediate inference, 17 and it meets the evidentiary safeguards, the evidence should be admitted. 18 In cases where it is a close call whether to admit the evidence, Michigan precedent suggests that the court should err in favor of exclusion. The reason for excluding "similar bad-acts evidence for substantive purposes is the desire to avoid the danger of conviction based upon a defendant’s history of other misconduct rather than upon the evidence of his conduct in the case . . . .” Golochowicz at 308 .

ii

Michigan’s evidentiary rules concerning other acts testimony are capable of clear explanation, and the standards for enforcing the Michigan rules are closely similar to, if not the same as, the federal standards. The Michigan Rules of Evidence and the cases interpreting them are not based on federal law. The comment to the proposed Michigan Rules of Evidence explains that "MRE 404(b) is consistent with prior Michigan law. People v Smith, 388 Mich 93 ; 200 NW2d 196 (1972); People v Spillman, 63 Mich App 256 ; 234 NW2d 475 *105 (1975); MCL 768.27; MSA 28.1050.” 19 In re Proposed Michigan Rules of Evidence, 399 Mich 951 , 974 (1977). The statute was created in conjunction with People v Rice, 206 Mich 644 ; 173 NW 495 (1919), which "was — languagewise and otherwise— the forerunner of that which was enacted as part of the” statute. Smith at 96.

Nonetheless, the majority announces that because the rule is confusing, a new rule is to be employed. 20 But the factors of the Michigan rule that have created confusion also are required by the federal rule. The "majority of the Court can overrule a precedent for a good reason, a bad reason, or no reason at all.” People v Cetlinski, 435 Mich 742, 768 ; 460 NW2d 534 (1990) (opinion of Levin, J.). But precedent should not be lightly discarded. This Court should "give respect to precedent and not overrule or modify it unless some substantial reason is given for doing so.” Wood v Detroit Edison Co, 409 Mich 279, 297 ; 294 NW2d 571 (1980) (opinion of Moody, J.).

If the majority is overruling precedent to clarify the law, it "might be a persuasive reason ... if *106 the majority’s decision eliminated or reduced confusion instead of replacing one form of possible confusion with another.” Cetlinski at 768 .1 believe this Court would better serve our purpose by looking to the federal cases that interpret the rule only for assistance in clarifying and providing guidance on the current rule, rather than asking trial courts to start using anew a rule that is not clearly distinguished from the current rule.

The first case in which this Court adopted an other acts evidence rule is People v Jenness, 5 Mich 305 (1858).

Michigan does not require a limiting instruction.

MCL 768.27; MSA 28.1050. Although the Michigan Legislature has enacted this procedural rule, the Court promulgated procedure controls.

I disagree with the majority’s holding that Golochowicz is a "bright-line approach to other acts evidence [that] is inadequate in assessing relevance under Rule 404(b).” Ante at 73-74.

The majority admits that relevance is required "as enforced through Rule 104(b).” Ante at 74. (Emphasis added.) The majority apparently adopts the federal interpretation of Rule 104(b) as applied to other acts evidence. That interpretation requires the trial judge to " 'simply examine[ ] all the evidence in the case and decide[ ] whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.’ ” Id. at 69, n 20.

"Substantial evidence” was defined for purposes of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., but the other acts evidentiary rule predates that definition. Therefore, that definition is not controlling in this case.

Quoting Ginsburg v Richardson, 463 F2d 1146, 1148 (CA 3, 1971), cert den 402 US 976 (1971).

As the majority points out, because the Michigan Rules of Evidence generally parallel the Federal Rules of Evidence, it is helpful to refer to interpretation of the federal rules where this Court has not interpreted Michigan’s rules.

Justice Boyxe reiterated the same four factors in People v Engelman, 434 Mich 204 ; 453 NW2d 656 (1990).

The court explained:

To thus emphasize the degree of proof required, varying terms have been used for guidance of the trial court. "The evidence which can be so used of other crimes presupposes that the other crime is prima facie established by competent proof.” "To render such evidence admissible, it must be shown that it substantially establishes the defendant’s guilt as to such other crime ... or, in other words, it must be shown with reasonable certainty that the accused committed the other crime. . . .” ". . . The degree of proof required in this class of testimony is held on excellent authority to be positive or substantial, but not 'beyond a reasonable doubt.’ ” "Before evidence of the commission of other crimes by accused is admitted, the trial court should satisfy itself that the evidence substantially establishes the other crimes, clear and convincing proof, and the making out of at least a prima facie case, being required; evidence of a vague and uncertain character, offered for the purpose of showing that the accused has been guilty of similar offenses, should not be admitted under any pretense whatever, nor is mere suspicion, or proof of a suspicious circumstance, sufficient. So, before guilty intent may be inferred from other similar crimes, they must be established by evidence which is legal and competent and plain, clear and conclusive . . . .” [Id. at 580. Citations omitted.]

One possible standard, as discussed above, is that "substantial evidence” means more than a scintilla of evidence, but less than a preponderance of the evidence. That theory, however, conflicts with Davis and, arguably, McCormick’s use of the term "substantial evidence.”

The Huddleston interpretation also is consistent with MRE 104(b), which requires "evidence sufficient to support a finding of the fulfillment of the [other act].”

Justice Boyle, writing for the majority in Engelman at 218, n 19 , explained that "the 'special quality or circumstance,’ of the second requirement supplies the 'link,’ Golochowicz at 310 , between the *103 charged and uncharged offenses and ensures that the evidence of the separate offense is probative of some fact other than the defendant’s character.”

The other acts evidence statute also states "any like acts or other acts.” MCL 768.27; MSA 28.1050.

Both MRE and FRE 401 and 402 state that all relevant evidence is admissible, except as otherwise provided by the constitution or court rules. Thus, if evidence is excluded because of Rule 404, the rule is exclusionary. Other acts testimony may be admissible, notwithstanding Rule 404. Any evidence that attempts to prove the character of the defendant is excluded. Thus, while evidence must pass muster under Rules 401 and 403, the evidence also must satisfy Rule 404(b) or be excluded.

Admittedly, there might be a philosophical difference, but that does not effect the legal and logical analysis required to determine when to admit other acts evidence.

See Engelman, supra.

The majority admits that MRE 404(b) " 'is a nonexclusive list of examples of situations in which the general rule excluding character evidence, MRE 404(a), is not offended because the evidence is probative of some fact other than the defendant’s criminal propensity.’ ” Ante at 66. (Emphasis added.) The majority failed to realize, however, that the safeguards assist in determining whether the general rule is offended and whether the evidence is admitted to show something other than the defendant’s criminal propensity.

The text of the statute reads:

In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.

The apparent motive in adopting the new rule is to extirpate the existing safeguards planted by this Court years ago. A full analysis and comparison of the two rules, however, suggests that the federal rule really is the same, if not more restrictive than Michigan’s rule. Thus, in my view, the majority accomplishes nothing more than adding to the already confused state of this jurisprudentially significant issue.