August 11, 2004




ADM File No. 2001-51

Proposed Amendment of 
Rule 404 of the 
Michigan Rules of Evidence
                      

     On order of the Court, the proposed amendment of Rule 404 of the Michigan
Rules of Evidence having been published for comment at 469 Mich 1203-1205 (Part 1,
2003), and an opportunity having been provided for comment in writing and at a public
hearing, the Court declines to modify the rule of evidence.  The administrative file is
closed without further action. 

     Justices Kelly, Taylor, and Young concur, and Chief Justice Corrigan, and
Justices Weaver and Markman dissent in statements below. 
     
     Kelly, J. (concurring).  I agree with the majority of my colleagues that the proposed
amendment is attractive because, as we know, victims of domestic violence are frequently
reluctant to testify against abusive partners.  However, I am unwilling to modify MRE 404
for only one class of crime victims.  Also, like Justice Young, I am not convinced that the
principles undergirding the rule as currently written are faulty.  I too remain open to be
convinced of the wisdom of alternative approaches.
     
     Taylor, J. (concurring).  I concur with the Court's decision not to amend MRE
404(b) to adopt a domestic violence exception.  
     
     There is currently great enthusiasm for prosecution of "domestic violence" offenders. 
As is customary at a time of such zeal, reformers want the courts to gut traditional
evidentiary protections so as to facilitate prosecutions.  While I am as horrified by the
specter of domestic abuse as any, I do not feel it, or any other imaginable domestic peril,
justifies the wholesale dumping of our traditional defendant protection rules.  The rules at
issue often are not popular rules, and to champion them, especially when the blood is up to
jettison them to accomplish so much good, is to invite misunderstanding, but this is what
judges have always been required to do.  In refusing to dismantle these canons established
bit by bit over hundreds of years, even for a worthy cause, the majority integrates itself into
that tradition. 
     
     Young, J. (concurring).  I join in Justice Taylor's statement and write separately
to make a few additional points.
          
     I recognize that there is a growing body of literature suggesting that victims are
frequently reluctant to testify against abusive domestic partners.  I also recognize the
frustration that this kind of reluctance presents to prosecutors and all who seek to protect 
such victims. However, rules of evidence are stubborn things, characteristically
frustrating to those who are committed to the idea that more expeditious trial processes
would lead to convictions of those they believe to be guilty of crimes.  

     Although I respect the sincere ardor of the proponents urging amendment of this
rule, I do not believe that they have made a compelling case that the rule should be
modified to accommodate this narrow class of crime victims.  Surely all victims would be
equally desirous of having the propensity of the defendant to commit bad acts made
known to the trier of fact to lighten the burden of having to prove that the defendant
committed the charged offense.  Further, I am unconvinced that domestic abuse
perpetrators, as a class, have a higher recidivism rate than many other classes of
perpetrators, such as rapists or child molesters. While the Congress has recently adopted
crime-specific exceptions to the general prohibition against propensity evidence, see FRE
413 and 414, I am unconvinced that the principles undergirding MRE 404 ought to be
undercut by specific classes of criminality.  However, I remain open to be convinced of
the wisdom of alternative approaches as we gather broader-based empirical data on
criminal recidivism rates and experience under the revised federal rules. 

     I have argued at length elsewhere[1] that the rules of evidence are the product of
centuries of refinement—judgments about the kind of evidence that is best designed to
preserve and protect the judiciary's ability to provide a fair trial.  While this Court should
always be willing to reexamine these rules, I believe it should move cautiously in
abandoning such bedrock principles as those that animate MRE 404.  As interpreted by
this Court, MRE 404 provides a number of reasonable exceptions whereby evidence of
prior bad acts may properly be introduced against a criminal defendant.  Consequently,
until we conclude that a defendant's guilt should be decided as much on past conduct as
on current charged conduct, I believe that MRE 404 serves a vital purpose protecting the
interests of all concerned in the pursuit of justice. 

     Corrigan, C.J. (dissenting). I respectfully dissent from the majority's decision to
close this administrative file without taking further action.  We opened this file to
consider whether to allow evidence of prior acts of domestic violence to be admitted in
domestic violence prosecutions.  Our current rule, MRE 404(b), bars admission of
evidence of prior bad acts to prove a defendant's character and action in conformity with
that character.  I recognize that this rule has ancient origins, but a trend has begun to
emerge in some states treating evidence of prior acts of domestic violence as an
exception to the general ban on propensity evidence.  Domestic violence cases present
unique challenges and obstacles to successful prosecutions.  Therefore, before closing
this administrative file, we should carefully consider the ramifications of failing to amend
MRE 404 and draw guidance from the experiences of other states.
     
     Domestic violence is a growing problem both in Michigan and nationwide.  In
Michigan, the growing scourge of domestic violence is reflected in part by the number of
petitions for personal protection orders that were filed last year.  Statewide there were
47,858 filings for PPOs in 2003.  In Wayne County alone there were 14,285 filings,
representing sixteen percent of the total filings and twenty-eight percent of the combined
civil, domestic, and miscellaneous family filings in that circuit.  Also, Wayne County
judges last year heard more than 18,000 motions on personal protection cases.
     
     The unique nature of domestic violence, and its troubling emergence as a growing
problem, is summarized in a recent law review article, Kovach, Prosecutorial use of
other acts of domestic violence for propensity purposes: A brief look at its past, present
and future, 2003 U Ill L R 1115, 1116-1117:
     
               Domestic violence is a criminal justice and public policy epidemic
     of enormous proportions.  There has only recently been reliable data on the
     prevalence of domestic violence in the United States.  One out of every five
     U.S. women has been physically assaulted by an intimate partner.  One
     survey analyzing data gathered from 1993 through 1998 found that women
     experienced about 900,000 violent offenses at the hands of an intimate in
     1998, down from a staggering 1.1 million in 1993.  During the same time
     period, only about half the domestic violence against women was reported
     to the police.  Even when domestic violence cases enter the criminal justice
     system, prosecution of domestic violence is difficult because, among other
     reasons, there is typically a lack of documented physical evidence or
     witnesses; the victim is often noncooperative; and there is jury bias against
     victims of domestic violence.  As a result, many prosecutors' offices have
     changed their strategy, so that a domestic violence case is not centered on
     the victim's testimony but rather consists of other evidence.  One form of
     this "other evidence" can be the defendant's other domestic violence acts,
     which, if admitted, often have a dispositive effect on the outcome of the
     case.  For instance, evidence of the defendant's other acts of domestic
     violence could serve to corroborate the victim's testimony, the physical
     evidence, or another witness's testimony.  [Citations omitted.]

     The cyclical nature of this crime is important to note.  Domestic violence
defendants have a high rate of recidivism and, over time, domestic violence often
becomes more frequent and severe.  Id., p 1131.  Forty-seven percent of those who beat
their spouses do so at least three times a year.  Thirty-two percent of victims are
victimized again within six months of the initial episode.  Also, domestic violence often
goes unreported and may lead to more serious crimes, including murder.  See the
attached February 5, 2004, letter from the Honorable Amy Krause, Chair of the Michigan
Domestic Violence Prevention and Treatment Board, and citations therein.  

     Moreover, the difficulty in proving domestic violence makes the problem that
much worse:

               Domestic violence cases contain unique factors that frequently
     hinder successful prosecutions.  Often, the victim does not want the case to
     proceed, or the victim may refuse to testify for the prosecution, or may even
     testify on behalf of the defendant.  The victim's reluctance may be due to a
     number of factors such as intimidation by the defendant, including threats
     of retaliation, susceptibility to the batterer's promises to cease abuse,
     cultural or family pressures, or uncertainty whether she will be believed or
     that her batterer will be held accountable.  Domestic violence often occurs
     behind closed doors or away from witnesses who could testify on the
     prosecution's behalf.  Victims of domestic violence may suffer from
     Battered Women's Syndrome or from Post Traumatic Stress Disorder as a
     result of the frequent abuse, which often causes victims to be unable to
     remember violent events.  Finally, juror and judicial bias against domestic
     violence victims often hinders prosecution.  [Kovach, supra, p 1126
     (citations omitted).]

     To overcome these unique hurdles, two states—California and Alaska—have
authorized admission of evidence of prior acts of domestic violence for propensity
purposes.  Other states, such as Kansas, Minnesota, and Colorado, have expanded the
availability of non-propensity theories for admitting evidence of prior acts of domestic
violence.  The experiences in these states offer guidance on whether and how we should
amend our own rules.

     Since 1997, California Evidence Code (CEC) § 1109 has provided for admission
of evidence of other acts of domestic violence for propensity purposes where the
defendant is charged with domestic violence.  The trial court has discretion, however, to
exclude such evidence if its probative value is substantially outweighed by undue
prejudice.  CEC § 352.  See Kovach, supra, pp 1132-1134.

     The Alaska legislature took a similar step in 1997.  Alaska Rule of Evidence
404(b)(4) provides that in "a prosecution for a crime involving domestic violence . . .
evidence of other crimes involving domestic violence by the defendant against the same
or another person . . . is admissible."  "The public policy considerations behind this
evidence rule include the lack of witnesses in domestic violence cases and thus the need
for corroboration, frequent victim reluctance to testify due to fear of the defendant, and
the cyclical nature of domestic violence: the ongoing pattern of abuse escalates in
frequency and severity over time."  Kovach, supra, p 1141.

     Like California, Alaska provides procedural safeguards in the use of propensity
evidence.  In addition to the required balancing of probative value and prejudice, the
other acts evidence must be less than ten years old, it must be similar to the charged
offense, and it must have been committed upon persons similar to the victim in the
charged case.  ARE 404(b)(2); Kovach, supra, p 1141.

     Both the California and Alaska rules have withstood constitutional challenge. 
California courts have rejected both due process and equal protection challenges to CEC
§ 1109.  See People v Hoover, 77 Cal App 4th 1020 (2000); People v Jennings, 81 Cal
App 4th 1301 (2000); Kovach, supra, pp 1134-1136.  Alaska courts have similarly held
that ARE 404(b)(4) does not violate the due process or equal protection clauses.  See
Fuzzard v Alaska, 13 P3d 1163, 1167 (Alas App, 2000).  In rejecting a due process
challenge to the Alaska rule, a central consideration was that the trial court retains
discretion to exclude evidence that is more prejudicial than probative.  Id.; Allen v
Alaska, 945 P2d 1233 (Alas App, 1997) (involving a due process challenge to a different
provision); Kovach, supra, p 1142.  Also, the Alaska Court of Appeals in Fuzzard
rejected an equal protection challenge to the use of propensity evidence "in light of the
state's interest in addressing proof problems posed by domestic violence."  Kovach,
supra, p 1142.

     Finally, Colorado, Minnesota, and Kansas have expanded the nonpropensity
theories under which evidence of other acts of domestic violence may be admitted. 
Kovach, supra, pp 1143-1148.  Minnesota's statute has been interpreted to allow
evidence of the history of the relationship between the victim and the defendant to
explain the context in which the charged assault occurred.  Id. at 1147.

     I believe that our Court should more fully consider the experiences in these other
states before closing our administrative file on this subject.  This Court has already
published for comment two proposed amendments to MRE 404 that would allow
evidence of other acts of domestic violence for propensity purposes.  Our first proposal
synthesized the Alaska, California, and Minnesota rules, and would have provided:

               In the prosecution of an offense involving domestic violence or
     interference with a report of an offense involving domestic violence,
     evidence of other acts involving domestic violence by the defendant against
     the same or another person or interference with a report of an offense
     involving domestic violence is admissible, unless found inadmissible under
     MRE 403.  For purposes of this subrule, "domestic violence" has the
     meaning given in MCL 400.1501, and an "offense involving domestic
     violence" includes, but is not limited to, those crimes proscribed by MCL
     750.81(2) and MCL 750.81a(2).  [469 Mich 1204-1205.]

     The second proposal that we published would have provided: "In the prosecution
of an offense involving domestic violence, evidence of other acts of domestic violence is
admissible and may be considered for its bearing on any matter to which it is relevant." 
469 Mich 1205.  This language was based on Rules 413 and 414 of the Federal Rules of
Evidence, which allow propensity evidence to be admitted in federal sexual assault cases.
     
     The majority has now decided to close this file, apparently concluding that it does
not favor either of the two published proposals.  I would suggest, however, that in light
of the growing problem of domestic violence both in Michigan and nationwide, we
should at the very least consider other possible alternatives before closing this file.  For
example, we could consider adding more procedural safeguards to the proposed rules
similar to the safeguards that exist in other states.  Specifically, we could (1) require
notice of the proposed admission of other acts evidence, (2) require a degree of similarity
between the other acts and the charged offense, or (3) require that the prior act have
occurred no more than ten years before the charged offense.  These safeguards, along
with the requirement in our first proposal that the court balance the probative value and
prejudice, would conform our rule to those that have withstood constitutional challenge
in other states.
     
     In the alternative, if these safeguards would not alleviate the majority's concerns
regarding the use of propensity evidence, we could consider the less drastic alternative of
simply expanding the nonpropensity theories under which evidence of prior acts of
domestic violence may be admitted.  The approaches followed in Minnesota, Colorado,
and Kansas are worthy of our consideration.  For example, as the Minnesota experience
suggests, a reasonable theory of relevance may exist that does not constitute a propensity
theory, but which at the same time does not fit neatly within the framework of our
existing rule.  A juror might not understand how a discrete act of domestic violence
occurred without knowing the history of the relationship between the victim and the
defendant.  Thus, evidence of prior acts of domestic violence may be probative on
nonpropensity grounds if it provides a contextual explanation for how or why an
individual act of abuse occurred.
     
     For these reasons, I would not close this administrative file, but would publish
additional proposals and invite comments from the public, both in writing and at a public
hearing.  The unique and troubling difficulties in proving domestic violence cases
warrant our careful consideration.
     
     Weaver, J. (dissenting).  I respectfully dissent from the order closing the
administrative file and declining to modify MRE 404 to allow evidence of prior acts of
domestic violence in domestic-violence cases.  Various proposals concerning this issue have
been before the Court for over a year, since June 2003.  For the many and persuasive reasons
that Chief Justice Corrigan states in her dissent for not closing the file, I would adopt
proposal A, as published for public comment on July 16, 2003.
     
     Proposal A, which is a synthesis of provisions from other states, including Rule
404(b)(4) of the Alaska Rules of Evidence, Section 404(b) of the Minnesota Rules of
Evidence, and Section 1109 of the California Evidence Code, would modify MRE 404(b)
as follows: 
     
               [The present language of Rule 404 would be amended as indicated
     below by underlining for new text and strikeovers for text that would be
     deleted.]

          Rule 404  Character Evidence Not Admissible To Prove Conduct;
     Exceptions; Other Crimes
               
               (a)   [Unchanged.]
               
               (b)  Other crimes, wrongs, or acts. 
               
                    (1)  [Unchanged.]
               
                    (2)     In the prosecution of an offense involving
     domestic violence or interference with a report of an offense involving
     domestic violence, evidence of other acts involving domestic violence by the
     defendant against the same or another person or interference with a report of
     an offense involving domestic violence is admissible, unless found
     inadmissible under MRE 403.  For purposes of this subrule, "domestic
     violence" has the meaning given in MCL 400.1501,  and an "offense
     involving domestic violence"  includes, but is not limited to, those crimes
     proscribed by MCL 750.81(2) and 750.81a(2).
               
                    [(2)] (3)  [Renumbered but otherwise
     unchanged.]

     Markman, J. (dissenting). I concur with the dissenting statement of Chief Justice
Corrigan.  I too would not yet close this administrative file and would continue our
consideration of this matter.  The proposed amendments to MRE 404(b),  or some variation,
in my judgment, have the potential to strengthen the truth-seeking function of the criminal
justice process with regard to domestic violence prosecutions without undermining
constitutional protections for defendants.  In these regards, I offer the following thoughts:
                
     (1) Domestic violence cases are different in terms of their ongoing character, the
position of control of abusers over their victims and the reluctance of victims to testify, the
potential for the intimidation of victims by their abusers and the incidence of recantations
by victims, the lack of neutral witnesses, the ambiguities of what differentiate consensual
and nonconsensual relationships between the victim and the abuser, and the demonstrated
propensity toward recidivism on the part of abusers.[1] As a result, the public interest in 
admitting all relevant evidence that will assist the fact-finder in ascertaining the truth of 
criminal charges becomes correspondingly greater.[2]

          
     (2) Similar rules have proved workable and effective in a growing number of states, while
analogous rules in criminal prosecutions for sexual assault have proved workable and effective
both in other states and in the federal justice system.[3]

          
     (3) Nothing in the proposed amendment would undermine current
protections in Michigan rules afforded defendants in domestic
violence cases concerning hearsay evidence, irrelevant evidence,
and prejudicial evidence.  Further, defendants would have the same
right to respond to evidence of past misconduct, including the
assistance of counsel, cross-examination, and the opportunity for
rebuttal.  They would, of course, have to be convicted of the
charged offense by a unanimous jury on the basis of guilt beyond a
reasonable doubt.[4]


     (4) Additionally, like Chief Justice Corrigan, I would also
favor the additional protections of pretrial notice of propensity
evidence, limitations on the age of such evidence, and threshold
requirements of similarity in nature between the past and the
present conduct, and between the victims of the past and the
present conduct.  In addition, I would favor limitations on the use
of evidence drawn from personal protection orders granted absent a
hearing. 
            
     (5) The proposed amendment addresses the problem of domestic
violence more honestly than the present system in which exceptions
to the rule against character evidence are often stretched
excessively in order to permit the introduction of clearly relevant
evidence of past misconduct.[5] Such stretching of the rules comes 
eventually to affect not only the law pertaining to domestic violence 
prosecutions, but the law pertaining to all criminal prosecutions, 
and  inevitably  results in a wider range of variation in the manner 
in which different defendants are treated in the courtroom. 
            
     (6) A reasonable juror, I believe, would have an interest in
knowing the full relevant history of misconduct by a defendant in
a domestic violence case, not because such history would be
dispositive of the charged case, but because such history might be
helpful in placing the charged case within an appropriate context. 
The current irrebuttable presumption against this juror having
access to such evidence is inconsistent with the premise of the
jury system, in which the ordinary citizen brings his common sense
and judgment to bear on the credibility of witnesses and the
disputed facts of a criminal case.[6]

     (7) A reasonable juror might also understandably desire access
to evidence relevant to a criminal defendant's "dispositions and
inclinations, about the presence or absence of effective
inhibitions against engaging in serious violence or other
criminality, about his willingness to hazard the practical risks of
criminal conduct, and about the probability or improbability that
he has been falsely or mistakenly implicated."[7] Such a juror would also 
recognize—and be so instructed by the trial court—that the defendant must 
ultimately be proved guilty beyond a reasonable doubt of the charged offense.
          
     (8) The starting  principle of our criminal justice system
should be that, consistent with the constitution and due process of
law, a complete picture of the available evidence will be presented
to the jury.[8] Because the proposed reform has operated well elsewhere, and
because the majority has not  demonstrated why a juror should be
deprived of 
evidence that might assist him in rendering a better-informed
decision concerning the truth of a serious criminal charge, I would
not yet close this file and would continue our consideration of
this matter.[9]

See Attachment.


Concur by Young
1. People v Katt, 468 Mich 272, 297-301 (2003) (YOUNG, J., dissenting).

Dissent by Markman
1. Concerning Justice YOUNG's view that there is no evidence of greater levels 
of recidivism among domestic violence offenders than any other criminal offenders, 
see, for example, Hotatling and Buzawa (2003) "Foregoing Criminal Justice 
Assistance: The Non-Reporting of New Incidents of Abuse in a Court Sample of 
Domestic Violence Victims." Final Report to the National Institute of Justice, 
Washington DC: National Institute of Justice (half of all domestic violence 
victims were revictimized within a year); Sandra Adams (1999), "Serial 
Batterers." Probation Research Bulletin. Boston, MA: Massachusetts Office of 
the Commissioner of Probation (91% of domestic violence offenders who were 
under restraining orders in Massachusetts had victimized different victims); 
New York State Unified Court System, October 24, 2001 ("recidivism rate for 
domestic violence crimes two and a half times that of crimes between 
strangers.")
2. The general rule in criminal cases is well settled, that the commission of other, 
though similar offenses, by the defendant, can not be proved for the purpose of 
showing that he was more likely to have committed the offense for which he is on 
trial . . . . But the courts in several of the States have shown a disposition to 
relax the rule in cases where the offense consists of illicit intercourse between 
the sexes . . . . 
* * * 
	We think there is much good sense in these decisions, and that a crime 
consisting of illicit sexual intercourse, like the present [incest case], involves 
different principles in this respect, and should be governed by different rules from 
those which apply to offenses generally, or perhaps to any other class of offenses.
[People v Jenness, 5 Mich 305, 319-321 (1858) (CHRISTIANCY, J., for the Court).]
3. The courts in these states have consistently held such rules to be constitutional.  
See, e.g., People v Jennings, 81 Cal App 4th 1301, 1309-1313 (2000), and the cases 
cited therein.
4. Contrary to the assertion of Justice YOUNG, the purpose of the proposed amendment
is not to create "more expeditious trial processes . . . . "  Rather, by allowing 
the fact-finder to consider more, rather than less, relevant evidence, it is to 
create a more "thorough" and a more "accurate" trial process.
5. Cf. IA Wigmore, Evidence, § 62.2, pp 1334-1336: 

	[T]here is a strong tendency in prosecutions for sex offenses to admit 
evidence of the accused's sexual proclivities.  Do such decisions show that 
the general rule against the use of propensity evidence against an accused 
is not honored in sex offense prosecutions?  We think so.
* * * 
. . . [J]urisdictions that do not expressly recognize a lustful disposition 
exception may effectively recognize such an exception by expansively interpreting 
in prosecutions for sex offenses various well-established exceptions to the 
character evidence rule.
6. [W]here a witness has testified to a fact or transaction which, standing alone 
and entirely unconnected with anything which led to or brought it about, would 
appear in any degree unnatural or improbable in itself, without reference to the 
facts preceding and inducing the principal transaction, and which, if proved, would 
render it more natural or probable; such previous facts are not only admissible and 
relevant, but they constitute a necessary part of such principal transaction—a link
in the chain of testimony, without which it would be impossible for the jury 
properly to appreciate the testimony in reference to such principal transaction.  
And such previous facts should therefore be elicited by the examination of the 
party producing the witness.  Any other rule, in such a case, would be grossly 
unfair towards the witness; render a trial a process for suppressing, rather than 
eliciting, the truth, and defeat the very objects for which courts of justice 
are instituted.
* * * 
To permit the evidence, therefore, of an isolated transaction, which could only be 
made to appear probable by exhibiting the antecedent facts which induced it, and yet 
to exclude from the investigation all such antecedent facts, would be to set at 
defiance the order of nature, and the laws of truth which God has stamped upon the 
human mind.  
[Jenness, n 2 supra, pp 323-324.]
7. Karp, Evidence of propensity and probability in sex offense cases and other 
cases, 70 Chi-Kent L Rev 15, 26-27 (1994).
8. Without this evidence [of past misconduct in a criminal incest case,] the 
jury could not properly appreciate [the witness's] evidence in relation to the 
particular transaction in question, nor render a verdict not based upon a partial, 
and, to some extent, a false, estimate of the evidence.  We think, therefore, this 
evidence was properly admitted.  
It tended to explain what might otherwise have appeared improbable or unnatural 
. . . .
9. The allegedly momentary "zeal," by which Justice TAYLOR explains the position 
of the dissenters in favor of supplying the jury with some context for assessing a 
type of criminal conduct particularly in need of context, was apparently too much 
even for Justice CHRISTIANCY and this Court to  withstand in 1858.  See ns 2, 6, 
and 8.  
    Further, in setting forth the historical pedigree of their positions, both 
Justice TAYLOR ("hundreds of years") and Justice YOUNG ("centuries") considerably 
overstate matters. For a more balanced statement of what prevailed throughout much 
of the nineteenth century in the United States, see, generally, Karp, n 7 supra, 
pp 26-35; Jenness, n 2 supra.