Evidence Benchbook– Revised Edition Cover and Acknowledgments Title Page By The Honorable J. Richardson Johnson Circuit Court Judge Ninth Judicial Circuit Kalamazoo, Michigan Revised by Ms. Danielle Stackpole, J.D. Research Attorney Michigan Judicial Institute MICHIGAN JUDICIAL INSTITUTE © 2021 Michigan Supreme Court • The Honorable Bridget Mary McCormack, Chief Justice • The Honorable Elizabeth T. Clement, MJI Supervising Justice • The Honorable Brian K. Zahra, the Honorable David F. Viviano, the Honorable Richard H. Bernstein, the Honorable Megan K. Cavanagh, and the Honorable Elizabeth M. Welch, Justices • The Honorable Thomas P. Boyd, State Court Administrator • The Honorable Milton L. Mack, Jr., State Court Administrator Emeritus • Ms. Cami M. Pendell, Supreme Court General Counsel • Mr. Larry S. Royster, Supreme Court Clerk and Chief of Staff Michigan Judicial Institute Staff • Dawn F. McCarty, Director • Alessa Boes, Research Attorney Specialist • Amanda Clark, Judicial Education Analyst • Anne M. DeMarco, Program Assistant • Craig Dillon, Instructional Design and Content Developer • Rachael Drenovsky, Learning Center Coordinator • Amy Feinauer, Program Assistant • Phoenix Hummel, Research Attorney •Heather Leidi, Administrative Specialist • Sarah Roth, Publications Manager • Danielle Stackpole, Research Attorney • Peter C. Stathakis, Program Manager • Cathy Weitzel, Training & Development Specialist This original edition was initially published in 2010, and the text has been revised, reordered, and updated through August 18, 2021. This benchbook is not intended to be an authoritative statement by the Justices of the Michigan Supreme Court regarding any of the substantive issues discussed. ii Note on Precedential Value “A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this court rule.” MCR 7.215(J)(1). Several cases in this book have been reversed, vacated, or overruled in part and/or to the extent that they contained a specific holding on one issue or another. Generally, trial courts are bound by decisions of the Court of Appeals “until another panel of the Court of Appeals or [the Supreme] Court rules otherwise[.]” In re Hague, 412 Mich 532, 552 (1982). While a case that has been fully reversed, vacated, or overruled is no longer binding precedent, it is less clear when an opinion is not reversed, vacated, or overruled in its entirety. Some cases state that “an overruled proposition in a case is no reason to ignore all other holdings in the case.” People v Carson, 220 Mich App 662, 672 (1996). See also Stein v Home-Owners Ins Co, 303 Mich App 382, 389 (2013) (distinguishing between reversals in their entirety and reversals in part); Graham v Foster, 500 Mich 23, 31 n 4 (2017) (because the Supreme Court vacated a portion of the Court of Appeals decision, “that portion of the Court of Appeals’ opinion [had] no precedential effect and the trial court [was] not bound by its reasoning”). But see Dunn v Detroit Inter-Ins Exch, 254 Mich App 256, 262 (2002), citing MCR 7.215(J)(1) and stating that “a prior Court of Appeals decision that has been reversed on other grounds has no precedential value. [W]here the Supreme Court reverses a Court of Appeals decision on one issue and does not specifically address a second issue in the case, no rule of law remains from the Court of Appeals decision.” See also People v James, 326 Mich App 98 (2018) (citing Dunn and MCR 7.215(J)(1) and stating that the decision, “People v Crear, 242 Mich App 158, 165-166 (2000), overruled in part on other grounds by People v Miller, 482 Mich 540 (2008), . [was] not binding”). Note that Stein specifically distinguished its holding from the Dunn holding because the precedent discussed in Dunn involved a reversal in its entirety while the precedent discussed in Stein involved a reversal in part. The Michigan Judicial Institute endeavors to present accurate, binding precedent when discussing substantive legal issues. Because it is unclear how subsequent case history may affect the precedential value of a particular opinion, trial courts should proceed with caution when relying on cases that have negative subsequent history. The analysis presented in a case that is not binding may still be persuasive. See generally, Dunn, 254 Mich App at 264-266. iii Acknowledgments The original content of this benchbook was a chapter in the former Michigan Circuit Court Benchbook, originally written by former Judge J. Richardson Johnson. The benchbook was revised in 2009 and divided into three separate benchbooks: Civil Proceedings, Criminal Proceedings, and Evidence. Work on the 2010 edition of the Evidence Benchbook was completed by MJI staff and overseen by an Editorial Advisory Committee. Similarly, MJI Research Attorney Danielle Stackpole revised the 2021 revision and facilitated an Editorial Advisory Committee, while MJI Publications Manager Sarah Roth served as editor. Amy Feinauer, MJI Program Assistant, also assisted in the publication of this benchbook. MJI gratefully acknowledges the time, helpful advice, and expertise contributed by the Committee members, who are as follows: • The Honorable Michael C. Brown 1st District Court • The Honorable Joseph Farah 7th Circuit Court • The Honorable Christopher Ninomiya 41st Circuit Court • The Honorable Kristina Robinson Garrett 36th District Court • The Honorable Michael Servitto 16th Circuit Court • The Honorable Anna Rose Talaska Gogebic County Probate Court The Michigan Judicial Institute (MJI) was created in 1977 by the Michigan Supreme Court. MJI is responsible for providing a comprehensive continuing education program for judicial branch employees; assisting judicial associations and external organizations to plan and conduct training events; providing complete and up-to-date legal reference materials for judges, quasi-judicial hearing officers, and others; maintaining a reference library for use by judicial branch employees; and conducting tours of and other public outreach activities for the Michigan Supreme Court Learning Center. MJI welcomes comments and suggestions. Please send them to: Michigan Judicial Institute, PO Box 30048, Lansing, MI 48909, or call (517) 373–7171. iv Using This Benchbook This benchbook is intended for all Michigan judges. The purpose of this benchbook is to provide a single source to address evidentiary issues that may arise while the judge is on the bench. The benchbook is designed to be a ready reference, not an academic discussion. In that context, one of the most difficult challenges is organizing the text so that the user can readily find any topic as it arises. This book has underlying themes that may assist the user to understand the overarching concepts around which the book is organized. This book is based upon the following concepts: • The focus is on process rather than substantive law although substantive law is discussed when important or necessary to decision making and the process as a whole. • The text covers the routine issues that a judge may face and non-routine issues that require particular care when they arise. • The text is designed to encourage best practices rather than minimal compliance. • The text is intended to include the authority the judge needs to have at his or her fingertips to make a decision. • The text is designed to be read aloud or incorporated in a written decision. With these concepts in mind, the text is organized as follows: • The format generally follows the sequence of the Michigan Rules of Evidence. • The format generally follows the typical sequence in which issues arise during the course of a case. • At the beginning of each chapter is a table of contents that lists what is covered in the chapter. • Sections in each chapter are identified by the word or phrase typically used to identify the topic (a keyword concept). v • The discussion of each topic is designed to move from the general to the specific without undue elaboration. • If the court is required to consider particular factors when making a decision, every effort has been made to identify the necessary elements. • Every effort has been made to cite the relevant Michigan law using either the seminal case or the best current authority for a body of law. United States Supreme Court decisions are cited when Michigan courts are bound by that authority and they are the original source. There are references to federal decisions or decisions from other states when no applicable Michigan authority could be located. • Every effort has been made to cite the source for each statement (if no authority is cited for a proposition, then the statement is the author’s opinion or part of a committee tip). • If a proceeding or rule of evidence is based upon a statute, reference to that authority is given in the text. • If a model or standard jury instruction addresses an issue, it is referenced in the text. Statements in this benchbook represent the professional judgment of the author and are not intended to be authoritative statements by the Justices of the Michigan Supreme Court. vi Table of Contents Cover and Acknowledgments Title Page ........................................................................................................... i Michigan Supreme Court .................................................................................. ii Michigan