May 21, 2001



99-10                                        



Amendment of Rules 404,
803, 804 and 902 of the 
Michigan Rules of Evidence
______________________________


          On order of the Court, notice of the proposed changes
and an opportunity for comment in writing and at a public hearing
having been provided, and consideration having been given to the
comments received, the following amendments of Rules 404, 803,
804 and 902 of the Michigan Rules of Evidence are adopted, to be
effective September 1, 2001.  The amendments were recommended by
the Advisory Committee on the Rules of Evidence.


          [The language is amended as indicated below.]

ICLE Editor's Note:


[Italicized, bracketed text] indicates text that has been
deleted.

Bold text  indicates new text.




Rule 404  Character Evidence Not Admissible To Prove Conduct;
Exceptions; Other Crimes

(a)  Character evidence generally.  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, except:

     (1)  Character of accused.  Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut
the same; or if evidence of a trait of character of the
alleged victim of the crime is offered by the accused and
admitted under subdivision (a)(2), evidence of a trait of
character for aggression of the accused offered by the
prosecution;

     (2)  Character of alleged victim of homicide
[of a crime other than a sexual conduct crime]. When
self-defense is an issue in a charge of homicide,
[E]evidence of a [pertinent] trait of
character for aggression of the []alleged
victim of the crime[, other than in a prosecution for criminal
sexual conduct,] offered by an accused, or evidence
offered by the prosecution to rebut the same, or evidence of
a character trait of peacefulness of the alleged victim
offered by the prosecution in a charge of homicide
[case] to rebut evidence that the alleged victim
was the first aggressor;

     (3)  Character of alleged victim of sexual conduct
crime.  In a prosecution for criminal sexual conduct, evidence of
the alleged victim's past sexual conduct with the
defendant and evidence of specific instances of sexual activity
showing the source or origin of semen, pregnancy, or disease;

     (4)  Character of witness.  [No Change.]

(b)  Other crimes, wrongs, or acts.  [No Change.]

Staff Comment:  The September 1, 2001 amendment of
subrule (a)(1) allows the prosecution to introduce evidence of
the defendant's aggressive character if the defendant has
introduced similar evidence about the alleged victim to support a
self-defense theory.  This change is similar to an amendment to
FRE 404(a)(1) that became effective on December 1, 2000.

The September 1, 2001 amendment of subrule (a)(2)
limits the accused's use of evidence of the alleged victim's
character to a character trait for aggression in a homicide case
in which self-defense is an issue.  These limitations mark
differences between the Michigan and Federal versions of subrule
(a)(2).

The September 1, 2001 amendments of subrules (a)(2)
and (3) substituted "alleged victim" for "victim".  The change
conforms MRE 404(a) to FRE 404(a) as amended effective December
1, 2000.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.




Rule 803  Hearsay Exceptions; Availability of Declarant
Immaterial

     The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:

(1)-(5) [Unchanged.]

(6)  Records of regularly conducted activity.  A memorandum,
report, record, or data compilation, in any form, of acts,
transactions, occurrences, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of
a regularly conducted business activity, and if it was the
regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by
the testimony of the custodian or other qualified witness, or
by certification that complies with a rule promulgated by the
supreme court or a statute permitting certification, unless
the source of information or the method or circumstances of
preparation indicate lack of trustworthiness.  The term
"business" as used in this paragraph includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.

(7)-(24) [Unchanged.]

Staff Comment:  The September 1, 2001 amendment of
MRE 803(6) allows properly authenticated records to be introduced
into evidence without requiring the records' custodian to appear
and testify to their authenticity.  See also MRE 902(11), which
was added at the same time.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.



Rule 804  Hearsay Exceptions; Declarant Unavailable

(a)  [Unchanged.]

(b)  Hearsay exceptions.  The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:

     (1)-(5)  [Unchanged.]

     (6)     Statement by declarant made unavailable by
opponent.  A statement offered against a party that has engaged
in or encouraged wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.

          [] (7[6])      [Unchanged.]


Staff Comment:  MRE 804(b)(6) was added effective
September 1, 2001.  It is almost identical to FRE 804(b)(6),
which was added to the federal rules effective 12/01/97.  The new
subrule creates a hearsay exception for prior statements by a
witness who has become unavailable due to wrongful acts committed
or encouraged by the party against whom the statement is to be
introduced.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.



Rule 902  Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:

(1)-(10) [Unchanged.]

(11)    Certified records of regularly conducted
activity.  The original or a duplicate of a record, whether
domestic or foreign, of regularly conducted business activity
that would be admissible under rule 803(6), if accompanied by a
written declaration under oath by its custodian or other
qualified person certifying that -

     (A)  The record was made at or near the time of the
occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters;

     (B)    The record was kept in the course of the regularly
conducted business activity; and

     (C)    It was the regular practice of the business
activity to make the record.

  A party intending to offer a record into evidence under this
paragraph must provide written notice of that intention to all
adverse parties, and must make the record and declaration
available for inspection sufficiently in advance of their offer
into evidence to provide an adverse party with a fair opportunity
to challenge them.


Staff Comment:  MRE 902(11) was added effective September
1, 2001.  Together with a concurrently adopted amendment
of MRE 803(6), it allows a written certification of business
records to substitute for a court appearance and testimony by the
records' custodian.  The advance notice provision provides the
opposing party a fair opportunity to challenge the certification.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.


          Cavanagh and Kelly, JJ., dissent in part and state as
follows:

          We would amend MRE 404(a)(2) as recommended by the
Advisory Committee majority, making the rule applicable to all
cases in which self-defense is an issue, not just to homicide
cases.