*1 425 PEOPLE v WHITFIELD (Calendar 7). Argued 17, 1985 Docket No. 72630. December No. 29, May Decided 1986. by jury in Court David Whitfield was convicted the Recorder’s Detroit, O’Brien, J., first-degree John Patrick criminal P.J., Appeals, T. Burns, sexual conduct. The Court of and M. (Wahls, J., dissenting), unpub- Brennan, V. J. J. affirmed an curiam, holding opinion per any precluding lished that error in testimony expert gonorrhea may of the defendant’s be by transmitted (Docket means other than sexual contact was harmless 50012). appeals. No. The defendant opinion joined Boyle, In an Justice Chief Justice Brickley Supreme Riley, Williams and Justices and Court held: expert Refusal of the trial court to allow the defendant’s concerning gonorrhea
testify the transmission of means requiring other than sexual contact was error reversal. expert may testify 1. An witness where the trial court proffered qualified expert determines that the witness is as an skill, by knowledge, experience, training, or and education expert’s testimony will assist the trier of fact. The determi- expert nation whether a witness is an is within the discretion generally appeal of the trial court is not and reversed on absent an abuse of discretion. In this expert concerning defendant’s the transmission of clearly potential assistance to the trier of fact References 2d, 267, Am Jur Evidence 341. §§ 2d, Expert 27, 37, 38, 103,181, Am Jur Evidence §§ 185. 2d, Am Jur 471-506. Witnesses §§ "pertinent” of the Federal When is evidence of trait of accused’s character 404(a)(1) purposes admissibility under Rule Rules of Evidence. 49 ALR Fed 478. 611(b) application provision Construction and of Rule of Federal Rules of Evidence that cross-examination should be limited to subject matter of direct examination. 45 ALR 639. Fed Cross-examination of character witness for accused with reference particular acts or crimes—modem state rules. 13 ALR4th 796. Whitfield addition, expert presented. understanding the evidence training knowledge, experience, clearly qualified by might expertise testify his such transmission. While experts, great as as that of not have been *2 evidence, weight not its of the consideration affects the such a jury admissibility, the to decide. and was for expert testify permit was to to the defendant’s 2. Failure nature of the case and the of the circumstances error. Because testimony, that the error was it cannot be said of the excluded First-degree criminal beyond doubt. a reasonable harmless case, proof conduct, charged requires of sexual in this as sexual age. years person of The penetration under thirteen with a competent testify. alleged to A critical not victim was found penetration proofs component prosecution’s was ex- of the by only pert testimony transmitted sexual that given penetration, physical the activity. of The limited evidence hymen, could have a circumstance which intact was child’s There- mind of a reasonable factfinder. a doubt in the raised fore, expert testimony to his the was crucial the of defendant’s believed, and, might jury’s the verdict. theory have affected if circumstantial, strong, although prosecution’s proofs, were The compelling they the were so but it cannot be said expert testify failing permit was the defendant’s error in insignificant as to be deemed harmless. so proof retrial, by of motion in limine and offer 3. At evidence, proposed to the of defense as nature impeach- in advance of trial whether trial court must rule' inquiry by unconvicted bad acts will into the ment defendant’s permitted, a discrimi- to allow defense counsel to make be so as appro- nating and the on the use of character witnesses choice motion, questioning. ruling priate scope the trial of on the probative of the line of consider whether the value court should outweighed by prejudicial substantially its cross-examination is effect, any alleged by the defen- the likelihood that misconduct community dant would have been known and discussed knowledge of the defen- so as to affect the character witness’ reputation, that the the basis for the belief dant’s occurred, relationship temporal between misconduct charged. the court has misconduct and the offense Once questioning, the court should exercise ruled on the use of the interrogating witnesses over the mode and order of discretion Assuming questioning is held that the to ensure fair treatment. should, cautionary upon request, proper, issue the court be concerning purpose the limited instructions to the impeaching questions. penetration presented by the was 4. Evidence [May- age The a motion for a directed verdict. sufficient to survive evidence, disputed, if believed not and the the victim was penetration jury, was com- sufficient to establish that by the defendant. mitted concurring, Cavanagh, Levin, joined Justice Justice touching general repu- on the stated that unsolicited being questioned of a defendant a defense witness tation reputation for truthfulness under MRE about the defendant’s open up range automatically an unlimited 608 does not 404(a)(1) and 405. In this cross-examination under MRE allowing justification under MRE 608 for there was no prosecutor’s unsolicited testi- of the defense witness’ rebuttal mony by questioning how the defen- the witness sodomizing five-year-old alleged would affect of his cousin dant’s alleged opinion misconduct of the defendant. witness’ proper probative truthfulness or untruthfulness. The is not unresponsive judicial response to the statements witness’ jury. the statements and caution the to strike Reversed. part this case. took no in the decision of
Justice Archer Court *3 Expert Testimony First-Degree — — Criminal Sexual 1. Evidence — Error. Conduct first-degree prosecution for criminal Refusal of a trial court in a age involving person years of under thirteen sexual conduct expert concerning testimony by to admit the defendant’s gonorrhea, clearly of transmission of where the understanding potential in assistance to the trier of fact expert clearly quali- presented proffered evidence and the experience, training by knowledge, testify, was error fied (MCL 750.520b[l][a]; 28.788[2][l][a]; requiring MSA reversal 702). Scope — — 2. Evidence Character Evidence of Cross-Examina- tion, court, proof by A trial motion in limine and offer evidence, proposed defense as to nature must trial, allows, impeach- rule in advance of where time by inquiry specified ment of character witnesses into uncon- defendant, permitted, as to victed bad acts of the will be so discriminating use of allow defense counsel a choice appropriate scope questioning; character witnesses and the motion, ruling on the the trial court should consider whether v Whitfield Opinion Court probative value of the line of cross-examination is substan- effect, tially outweighed by prejudicial its the likelihood that alleged any misconduct the defendant would have been community known and discussed in the so as to affect the knowledge reputation, character witness’ of the defendant’s occurred, basis for the belief that the misconduct temporal relationship and the between the misconduct and the (MRE 403, charged 404[a], 405[a]). offense
Concurring Levin, J. — Testimony — — 3. Evidence Character Evidence Unsolicited Scope of Cross-Examination. testimony touching general reputation Unsolicited on the of a being questioned defendant a defense witness about reputation defendant’s automatically for truthfulness does not open up range cross-examination; an unlimited where such a testimony, proper judicial witness offers unsolicited re- sponse is to strike jury the witness’ statements and caution the (MRE 608). 404[a][l], 405, Kelley, Attorney Frank General, J. Louis J. Caruso, General, O’Hair, Solicitor John D. Prose- cuting Attorney, Timothy Baughman, Deputy A. Appeals, Chief, Civil and and Thomas M. Cham- Prosecuting Attorney, peo- bers, Assistant for the ple. Halpern
Sheldon for the defendant. charged J. David Whitfield was and ulti- Boyle, mately first-degree convicted of criminal sexual 28.788(2)(l)(a). 750.520b(l)(a); conduct, MCL MSA Mr. Whitfield’s first trial ended a mistrial be- agree cause the could not on a A verdict. challenged second trial resulted in the conviction appeal. Appeals in the instant A divided Court of *4 panel opinion. per affirmed the in conviction a curiam appeal agree
This followed. Because we prejudicial that error occurred in Mr. Whitfield’s trial, second we reverse the conviction. 425 op the Court
I PACTS Judge ably set out The basic facts are Wahl’s Appeals opinion: partial to the Court of dissent mother, M.], girl, lived her 3-year-old with [A. 28, 1978, M.’s M.], July and defendant. On [A. [C. up grandmother] picked visit. When observed bruises on sores taken she the child for a weekend child, grandmother bathing the her buttocks, thighs her genitalia. her The victim was and redness on hospital determined to the where doctors gonorrhea. Subsequent examination of had had the revealed both also defendant and [C. M.] disease. emergency pediatrician at At trial room that, opinion, Hospital her Children’s testified genitalia were due to a
the sexual assault. On on the child’s bruises cross-examination, indi- she injuries, caused the cated other trauma could have such as a doctor also testified that standing toilet. The fall on the while the child was infected not more than gonorrhea at least three but examination, infec- days prior and that such genita- only tion could occur contact with lia of an individual who had the disease. Chapel, Dr. Thomas Defendant was examined Hygiene dermatologist
a Clinic in rhea. The doctor testified subject imply and Director of the Social Detroit, gonor- and determined to have that a few articles on the gonorrhea may be transmitted non-sexually, proven. it but has never been not highly unlikely He indicated that it was but gonorrhea totally impossible, for to be transmitted people using two the same washcloth. Dajani, papers Dr. Adnan author of two children, gonorrhea in testified that non-venereal gonorrhea postulated transmission of never was transmitted other than sexual contact. has been but proven; he knew of no case where pre-pubertal
in a child means *5 People Whitfield 121 Opinion of the Court It was defendant’s contention at trial by physical child contracted contact and the child disease either her mother on occasions when she with slept together unclothed or bathed together, or contact a washcloth the mother had fered the contended the child suf- also used. Defendant bruising straddling when a chair or falling. object similar when trials, expert At both the defendant offered the Dr. question Samuel Lerman on the testimony gonorrhea whether can be transmitted a non- trial, At Dr. Ler- sexual manner. defendant’s first man gonorrhea testified that can be transmitted contact, although without sexual transmis- such sion is uncommon. Dr. Lerman also said that could be transmitted a wet towel or person sitting damp washcloth or one on a person just surface that an infected had sat on. At trial, defendant’s second trial court ruled that the expertise qualify Dr..Lerman lacked needed to as an expert gonorrhea. on the transmission of
ii QUALIFICATION OF EXPERT WITNESSES appeal, On appellant asserts that court trial in refusing erred to allow Dr. Lerman’s testimony and that the error cannot be considered harmless. agree. We
Michigan Rule of provides: Evidence 702 If the court recognized determines that scien- tific, technical, specialized or knowledge other will assist the trier of fact to understand the evidence issue, or to qualified determine a fact in a witness skill, expert by knowledge, experience, as an train- ing, education, may testify thereto in the form opinion of an or otherwise. 425 Mich Opinion of the Court
Under MRE the trial court determines expert the trier of will assist The trial court also determines whether fact. proffered expert by "qualified as an witness is knowledge, experience, training, skill, or educa- 104(a). 702; tion.” MRE The determination "expert” whether a witness is an .is within Barrios, court, discretion of the trial Siirila v (1976), 576, 591; 248 and the NW2d *6 appeal generally absent decision is not reversed an abuse of discretion. concerning expert this potential gonorrhea clearly of
transmission understanding assistance in the evidence. Several physicians prosecution testified, on called concerning cross-examination, direct transmission of here is gonorrhea. Thus, initial issue the trial court erred in the deci- witness, Lerman, Dr. could sion defendant’s gonor- testify not the transmission rhea. qualifications
Dr. Lerman’s are summarized Judge Wahl’s dissent: family practi- Dr. Lerman was a certified board 1977,
tioner. From 1974 to he was an assistant professor family medicine. At the time of trial private practice part- he maintained a and worked general practitioner time as a Health Detroit with the Department. practitioner family As a he gonorrhea. had treated cases of read at text, Dr. Lerman had articles, journal plus least 20 the usual regard transmis- its sion, and had attended seminars in which the subject was discussed. He had examined one three- year gonorrhea, old with and had read material on about 20 such cases. "expert” 702,
Under MRE a witness can be an Whitfield Opinion op the Court skill, training, experience, "knowledge, due to note to committee advisory The federal education.” 702, upon which of Evidence Federal Rule modeled, observes: 702 was knowl- broadly phrased. The fields of rule is limited are not may be drawn edge which merely to the "scientific” ex- and "technical” but Similarly, the knowledge. "specialized” to all tend sense, viewed, as a in a narrow but expert is not skill, "knowledge, qualified experience, person scope of Thus training or education.” within sense only experts in the strictest rule not are word, archi- e.g. physicians, physicists, and of the tects, large called group sometimes but also witnesses, or landowners such as bankers "skilled” testifying land values. 702, the Court FRE Sixth Circuit
Commenting on "a wit- proposed expert Appeals observed satisfy an required overly be ness 'should not ” United qualifications.’ test his own narrow Barker, (CA 1977) States v 1013, 1024 553 F2d omitted). (citations under MRE expert
The same
true of
witnesses
*7
trial
has
discre-
702. While the
court
considerable
determining
may
tion in
an individual
Crosby,
v
United States
713
expert,
as an
testify
(CA 5, 1983), a
should
proposed expert
F2d 1066
test
not be scrutinized
an
narrow
overly
qualifications.
clearly qualified by
Dr. Lerman was
training
testify
and
to
con-
knowledge, experience,
He had
cerning
gonorrhea.
transmission
including
one
patients
gonorrhea,
treated
child,
he
was familiar with
three-year-old
Dr.
ex-
subject.
literature
on the
While
Lerman’s
prose-
pertise might
great
not have been as
as
to
goes
such a
experts,
cutor’s
consideration
of the evidence rather
than the admissibil-
weight
124
apparently required, an professes expertise. in the parisons in which he field Com- professional his between stature and the opposing party may stature of witnesses for an made which of the the decide whether or not to a be if it jury, necessary becomes to decide conflicting opinions to believe. But only question for the trial who judge must allow the consider proffered expert’s is, opinion "whether his knowledge opinion subject matter is such that his likely will most assist the trier of fact in arriving at the truth.” [Id. at 1024. Citations omit- ted.]
Dr. Lerman’s the transmis- sion of should have been admitted un- der MRE 702.
Because of the
circumstances
this case and
excluded,
the nature
of the testimony
we cannot
say that
this error was
beyond
harmless
a reason
California,
v
Chapman
able
doubt.
18;
US
87 S
824;
Ct
L17 Ed 2d 705 (1967).1
asserts,
dispute,
The defense
and the
not
does
that the
error in this
to
right
case violated the defendant’s federal constitutional
present
right
a defense. Some cases find
this
the fundamental
required
Clause,
fairness
Mississippi,
the Due Process
Chambers v
284;
1038;
(1973).
410 US
rely
S Ct
In the context of a improper consisting limitation of cross-ex- tion, of bias, the for of witness amination a recently Supreme reaffirmed Court States United rejection of error reversal of automatic its magnitude of the reviewed some constitutional reviewing in deter- court should consider a factors mining be con- constitutional error can whether a harmless: sidered whether, assuming that inquiry
The correct of cross-examination damaging potential the the realized, might none reviewing court fully a were beyond a error harmless say that the theless an error is harm Whether such reasonable doubt. host of particular depends in a case less factors, reviewing to courts. readily all accessible importance the of the wit include These factors prosecution’s testimony the ness’ cumulative, presence or the testimony the contradicting corroborating or of absence evidence points, on material testimony of witness permit otherwise the extent cross-examination and, course, strength ted, overall Arsdall, 475 v Van prosecution’s case. [Delaware 674, —; 1431; 106 89 L Ed 2d 686-687 US S Ct (1986).] witnesses, right compel to and to offer attendance, right necessary, plain terms to
their
if
is in
defense,
right
present
present a
to
version
defendant’s
prosecution’s
may
it
of the facts as
as the
so
well
right to
decide where the truth lies. Just as an accused has the
confront the
lenging
witnesses
purpose
for the
of chal-
witnesses
right
present
testimony,
their
he has
his own
establish a defense.
Weston,
compulsory process: A uniñed
See also
Confrontation and
(1978).
cases,
theory
of evidence
Harv L R
625
for criminal
Chapman
apply
set forth in
We
harmless error standard
California,
agree
824;
(1967),
18;
we
386 US
87 S Ct
(a) person years age. That other is under 13 requires proof penetration.2 iCsc thus of sexual surprisingly, Not the child victim in this barely compe- infant, more than an was found not testify. component Thus, tent prosecutor’s proofs a critical penetration expert
on was the testimony gonorrhea only by that transmitted activity. penetration sexual The other evidence of bruising was nal within the folds of the child’s exter-
genitalia, by characterized as a sexual bruise examining physician, the to her and the child’s statement
grandmother that the defendant had hurt her bottom. The victim’s mother testified that whipped night defendant had the child the before allegedly statement, she made this and the exam- ining physician bruising testified that the was also falling consistent with off a chair or toilet. The hymen child had an intact and there was no other physical ing, tearing, ruptur- evidence, such as internal bleeding, penetration. prosecu-
or While the expert hypothesized tion’s that could be sexually seepage transmitted contact with from penis vaginal an infected and the child’s external MCL 750.5203®; MSA 28.788(1)® provides: penetration” intercourse, cunnilingus, "Sexual means sexual fellatio, intercourse, intrusion, any anal other however slight, any part person’s body any object of a or of into the genital openings required. person’s body, or anal of another but emission of semen is not Whitfield Opinion of the Court penetration, physical area, limited evidence of hymen given intact, was a the fact that a doubt in which could have raised circumstance factfinder. mind of a reasonable therefore crucial to Dr. Lerman’s might theory believed, and, have if the defense argues prosecutor jury’s verdict. affected prosecu- any harmless because that error was expert cross-examination, testified, tion’s gonorrhea rather transmitted contact
could be penetration literature and that there was than claiming transmission had oc-
that nonsexual While it is true curred.3 expert reluctantly trans-
conceded that nonsexual *10 reading possible, fair of the tran- mission was scripts a prosecu- that of both trials discloses willing discredit was much more tion’s witness viewpoint was Dr. Lerman. such a than proof, that offer of Dr. Lerman indicated defense gonorrhea testify that could be transmit- he would in means one out of four cases. ted nonsexual prosecution’s proofs, although circumstantial, The were
strong. say however that We are unable compelling they was "so were so that the error unimportant insignificant may, [it] consis- that Constitution, tent with the Federal be deemed Chapman supra California, harmless . . . .” at impossible 22. Since it is for this Court to conclude juror that not even one find reasonable doubt from the reluctant would have able to been
testimony plus witness the affirmative testimony concerning of Dr. Lerman the nonsexual prosecutor’s arguments against allowing One of the Dr. Lerman to testify the transmission that Dr. Ler knowledge primarily man’s basis for medical literature which any layman prosecution expert’s testimony could also read. Since the upon on ture, transmission was also the medical litera nonsexual based expert’s argue it is inconsistent for the state to now that their testimony was sufficient. 425 Mich Opinion of the Court gonorrhea, Mr. reverse Whit- we
transmission of conviction. field’s
hi INQUIRY BAD BY INTO UNCONVICTED IMPEACHMENT
ACTS appeal in asserts this Mr. Whitfield also wit- of a character cross-examination defense, Mr. Frank the Reverend ness for the Barnes, requiring prejudicial error re- in resulted this rule need not versal. While we questioning requires appropriate it reversal this guidelines for the use of forth
to set may arise on this issue such evidence because retrial. examination, Mr. Barnes testified direct
On all his life and that had known Mr. Whitfield he in church activi- been involved Mr. Whitfield had particularly ties, Mr. Barnes musical activities. reputa- good Mr. Whitfield had a also testified that community veracity, truth and tion in the person, as a wonderful that he was considered "as good person.”4 good boy cross-examination, On portions of Mr. Barnes’ is as follows: The relevant reputation Q. Okay. you Would know the defendant’s community? A. Yes. *11 you reputation Q. in the Could tell us what the defendant’s community is? good. A. It is Q. community speaking for the truth? Is he known in the A. Yes. Barnes, reputation Q. you, Mr. Mr. known about the Have community veracity? in for truth and
Whitfield A. Yes. Q. you to us that would be? Could relate what v Whitfield Opinion op the Court prosecution following question: asked the Barnes, opinion regarding your Reverend would you Mr. be the same had Whitfield heard that ago years some seven a sexual assault on his then cousin . . . ? Mr. Whitfield had committed
five-year-old male Defense counsel objected the basis of lack of evidence and lack of notice. The trial court over- objection question. ruled the and allowed the presenting Both the value and the wisdom of evidence have been doubted. It is thought that such evidence typically adds little of relevance to the determination of the actúal issues in a case and is likely inject extraneous ele **5Thus, ments.* a criminal trial good. People A. It is that him communicate with and that him, they speak very highly
know person, of him as a wonderful good boy good person. as a or (3d McCormick, ed), 188, 554, p Evidence observes: § Yet, any reputation, opinion evidence of character form— generally observation, specific from ceived to so with a will not be re- acts— prove person engaged that a in certain conduct or did particular occasion, specific intent on a so-called circumstantial use of character. The reason is the familiar one prejudice outweighing probative of used for this value. Character evidence purpose, typically being slight relatively while value, usually dangerous baggage prejudice, is laden with the distraction, consumption surprise. time express general Other commentators the basis for the rule of exclusion as follows: justified primarily ground proba- The rule is on the that propensity outweighed by prejudi- tive value of cial effect on a create a evidence is its jury. The introduction of such evidence is said to danger punish will defendant charged, offenses other than those convict when unsure of or at least it will guilt, because it is convinced that the Weinstein, deserving punishment. defendant is a bad man [2 Evidence, 404[04], p (quoting protec- 404-29 Note: ¶ Procedural *12 425 116 130 of Court use of from the circumstantial generally barred to the defendant commit prove bad character .6 to charged exceptions ted the crime One character general barring rule the use of particular on a occa conformance therewith prove in MRE rule” found "mercy sion is 404(a)(1), so-called an a criminal defendant which allows evidence of his charac right absolute to introduce not have committed the prove ter to that he could 404(a)(1) the introduction crime.7 MRE allows pertinent of a trait of character offered "[e]vidence accused, by prosecution an or rebut by 404(a)(1) The latter of MRE is part same.” presenting the wisdom of source the doubt about of an accused’s defense: part character evidence as character testimony, Once a defendant introduces testimony.8 can then rebut 405(a),9 present MRE the accused can only Under form reputa favorable character evidence 405(a) However, MRE testimony. permits tion rebuttal to be done either cross- privilege tions of the criminal defendant —A reevaluation of the excluding against evidence of self-incrimination and the rule crime, propensity [1964]).] 436 to commit 78 Harv L R 6 404(a) provides: MRE person’s Evidence of a character or a trait of his character is purpose proving
not admissible for the that he acted in conformity particular therewith on a occasion .... 7 right The notion that a criminal defendant should have the present testimony adopted by generally favorable character has been 404(a)(1). McCormick, jurisprudence. supra; American See n 5 FRE McCormick, Weinstein, generally supra 568-570; See n 5 at Evidence, 404[05], pp 404-41 to 404-48. ¶ 405(a) provides: all cases which evidence of character or a trait of admissible, person proof may aof is be made cross-examination, reputation. inquiry as to On reports specific allowable into of relevant instances of conduct. People v Whitfield Opinion op the Court examining character witnesses defense reports specific conduct,10 instances of presenting reputa testify witnesses who to the bad Champion, 411 tion of the defendant. *13 (1981). ques 468; 307 681 A Mich NW2d witness concerning tioned the defendant’s character for veracity may slip general truth and well into a character, on the defendant’s as Mr. discourse opening up in Barnes did the instant thus range the to of rebuttal allowed the 11 404(a)(1). A under MRE character witness for the may unwittingly furnish the founda defense thus prosecutor acquaint jury tion for the to matters which otherwise could not be admitted into evidence. gives
Even where a character witness unre- responses examination, strained on direct the trial degree court must ensure some impeachment of restraint ques- of character witnesses with concerning alleged tions other misconduct of a purpose impeachment defendant. valid of such credibility is to test the of the witness character challenging good faith, information, the witness’
10 Advisory The Federal Committee note to FRE 405 observes: proving provided by theOf three methods of character rule, specific evidence of instances of conduct is the most convincing. possesses greatest capacity At the it same time confuse, prejudice, surprise, to arouse time. to and to consume material. Once a witness’ character be admitted. reputation testimony supporting truthfulness can fulness or untruthfulness Upon cross-examination, tacked, attacked the defendant’s presented by 404(a)(1) We need not consider the extent [11] Under MRE by reputation must be limited the witness has vouched is the defendant because Mr. Barnes testified general a witness’ character evidence, reputation inquiry of the witness or of the the nature of the character about credibility in the permitted. to which for truthfulness specific community. of a witness for truthfulness acts MRE rebuttal under probative person 608(b). has been at- always for whose of truth- can be being 116 132 425 Mich op the Court danger accuracy.12 However, im- of such and admitting dangers peachment to the is similar part of the acts as a evidence of similar bad prosecution’s flaming possibility in- in chief: case diverting jury,13 prejudicing guilt from unbiased evaluation the innocence of the charged offense.14While the dan- ger presented by a character cross-examination of great presented as direct evidence witness is not as part chief,15 as potential case great sufficiently prejudice unfair require protective procedures.16_ 12 States, 469, 479; 213; 69 Ct 93 L In Michelson v United 335 US S (1948), Supreme 168 United States Court observed "while Ed the law reputation the offense signed option gives that his defendant to show as a fact incompatible with commission of reflects a life and habit charged, subjects proof credibility his to tests of de it profiting by parade partisans.” prevent him from a mere 13 (1982). Golochowicz, 298; People 518 See v 319 NW2d also n 5. See (1973). DerMartzex, 410, 413; 390 Mich NW2d *14 dangers admitting recognition In the inherent in evidence of of acts, adopted admitting Court strict standards for similar bad this 404(b) People prove identity. v Golo such evidence under MRE chowicz, Golochowicz, supra. In n 13 this Court observed: presents example why But this case the classic as to trial be
courts should applying relevancy in when the "stricter standards of [the] purpose prove identity or the ultimate doing by when the evidence is offered on the ultimate issue of knowl- edge, of the is to [evidence] charged they the accused of the criminal act than are (2d McCormick, other intent or state of mind.” Evidence ed), 190, p 452. § is, court, part, It at least in for those reasons that the trial prove identity, when similar-acts evidence is offered to should upon showing high degree similarity in insist of a the manner in which the crime in issue and the other crimes were committed. Emphasis original.] at 324-325. [Id. apply We decline to character witnesses under MRE the Golochowiczstandard to cross-examination of 404(a). dangers well-recognized by and the for need restriction are McCormick, 569-570, supra suggests: n 5 commentators. at v Whitfield op the Court retrial, in limine and offer motion At proof by of the to the náture the defense as testimony, proposed must the trial court allows, trial, time where rule advance impeachment witnesses of the character whether by inquiry specified bad acts unconvicted
into procedure permitted. This will be the defendant make a discriminat- counsel to will allow defense ing witnesses of the use of character choice questioning.17 scope appropriate the among ruling motion, the factors proba- should consider are trial court questioning is substan- line of tive value of the outweighed prejudicial tially effect under alleged miscon- the likelihood in the known and discussed duct would have been knowledge community the witness’ so as to affect reputation, basis for the of the defendant’s prosecution’s being inquired the event belief relationship temporal occurred, be- about power reopen old wounds is of the cross-examiner to This Accordingly, replete possibilities prejudice. certain general responsibility of should be observed. The to limitations trial courts vanish because reference form of insinuation or The extent and nature of the cross-examination weigh against prejudice probative does not value wrongs to other crimes or takes the innuendo rather than concrete evidence. demands re- experienced supervision. questions that less straint and prosecutors any about other hearing Some tempted may improper under could be to ask be precondition circumstances. As a to cross-examination reveal, wrongs, prosecutor should outside the in the believing jury, what his basis is for proposes he to ask The court should rumors then determine whether there is a substantial basis for cross- incidents about. examination. [Citations omitted.] recently proposed of criminal We note that rules under 6.202(3)
procedure, requires prosecutor MCR to disclose lists of *15 witnesses, statements, and memoranda sum intended marizing imposes 6.209 ments. 422A Mich 91. their written 6.205(2) Proposed their oral statements. 422A Mich 69. MCR Proposed reciprocal duty on the defense. MCR a to disclose continuing duty imposes and state to disclose witness names Mich 116 425
134 op the Court question the offense the misconduct tween charged.18 of the on the use has ruled the trial court
Once questioning, its discre- exercise the court should order of the mode and MRE 611 over under tion interrogating treatment ensure fair witnesses to including to ensure issue, efforts will be conducted direct and cross-examination questioning Assuming proper is held to form. upon request, proper, should, issue the court be concerning cautionary to the instructions questions.19 impeaching purpose of the limited iv THE OF EVIDENCE SUFFICIENCY argues was insufficient there Mr. Whitfield also penetration the defense to survive evidence disagree. directed verdict. We motion for ruling directed verdict on a motion for When judge acquittal, whether, must determine the trial light considering favorable in a most the evidence nonmoving party, trier of fact a rational to the elements of the essential could have found proven beyond doubt. a reasonable the crime were People Hampton, 354, 368; 285 NW2d 407 Mich (1979). elements In this the essential age alleged penetration of the were sexual 28.788(2)(l)(a). 750.520b(l)(a); MSA victim. MCL 750.520a(l); penetration in MCL Sexual is defined 28.788(1X1) MSA as:_ rules, ALR4th 796.
accused with tions Barnes. See We note that generally reference to the limited the trial Anno: Cross-examination particular court in this case purpose acts or crimes—Modern state of character witness gave question excellent posed instruc to Mr. *16 People v Whitfield Opinion op the Court intercourse, penetration” "Sexual means sexual fellatio, intercourse, cunnilingus, intrusion, any anal other slight, any part person’s however of of a body any object genital or of into the or anal openings person’s of body, another but emission of required. semen is not age
The
of the victim was not disputed. The
presented
prosecution,
evidence
the
if
believed
by the
was sufficient
that
jury,
pene-
establish
tration20 was committed
the defendant. The
defendant
for
regularly babysat
during
the victim
period;
the relevant
time
both the defendant
gonorrhea;
the victim had
prosecution doctors tes-
transmitted,
tified that
only
experience,
through
contact;
their
sexual
the child
had bruising,
characterized
as sexual bruises by
the examining physician,
aspect
on the "inner
majora
large
labia
folds of the external
genitalia”;
grandmother
and the child told her
Mr.
Whitfield had "hurt her
bottom.”
evidence here was sufficient
present
ques-
Mr.
guilt
tion of Whitfield’s
to the jury._
Court of
without other
despite
of the Bristol
In
the child victim’s intact
Appeals
panel:
physical
Bristol,
considered whether
evidence,
115 Mich
hymen.
App 236;
was sufficient to show
bruising
We
V
CONCLUSION alleges instances other several Mr. Whitfield Appeals The Court below. in the record error correctly no ably there was determined particu- alleged validity errors. other in these Appeals agree view that lar, the Court we permitting the err in did not "[t]he trial court *17 give opinion examining physician as to an injuries caused were the victim’s prohibited expert from is not An assault. sexual testifying MRE 704.” ultimate fact issue. to an must be overturned in this case The conviction prejudicial when which occurred error because judge Mr. allow Whitfield’s failed to the trial expert concerning testify transmis- witness Accordingly, gonorrhea. decision sion of Appeals is reversed. Court of Brickley JJ., Williams, C.J., Riley, and Boyle, J. concurred following observa- I with the J. concur Levin, opinion "wit- states that a of the Court tions. The concerning questioned charac- the defendant’s ness slip veracity may into a well ter general truth and for character, as on the defendant’s discourse opening in the instant thus Mr. Barnes did up range allowed to the of rebuttal 404(a)(1).”1 refers to MRE MRE A footnote under 608, credibility of a witness which states that supported by "may be attacked or for truthfulness reputation.” continues: The footnote evidence of specific "Upon inquiry cross-examination, about probative of truthfulness or untruthfulness acts person for or of the whose the witness 1 Ante, p 131. v Whitfield Opinion by Levin, J. permitted.” has witness vouched is The foot-
note concludes: "We need not consider the extent 404(a)(1) to which rebuttal under MRE must be limited the nature of the character presented by the defendant because Mr. Barnes general repu- testified the defendant’s community.” tation in the (1) separately
I write because the record indi- only trial the cates and not on MRE at focus was (2) 404(a)(1), Mr. Barnes’ touching unsolicited comments on the defendant’s general reputation response question to a about reputation veracity not, his law, for did a matter of as open up range an unlimited of cross-examina- 404(a)(1). tion under MRE exchange The record indicates that at first the might defense between counsel and Barnes have appeared general reputa- to concern Whitfield’s you tion: reputation Could tell "Q. us what the defendant’s community good.” in the is?” "A. It immediately inquiry But it became clear that reputation was limited to for truthfulness: Q. Is he known in community speaking *18 the truth?
[*] [*] # A. Yes.
[*] [*] [*] Q. Mr. you, repu- Have known Barnes about the tation of Mr. Whitfield in the community for truth and veracity?
A. Yes. Q. you Could relate to us what that would be? A. It is good. People him that communicate with him, and speak that know they very of him highly person, as a good good wonderful a or boy as person. part He has taken in a commu- number of nity activities. For his Thomas instance brother 116 425 Mich
138 Levin, J. on the objected point, prosecutor the At this rule, 608, this does have type that "the grounds the limits going I beyond think we are testimony. based objection the of Rule 608.” Since reputation to 608,2 MRE 608 is limited MRE and truthfulness, no under justification there was for rebuttal allowing prosecutor’s the MRE 608 for alleged sodomizing defendant’s the is alleged The misconduct cousin. five-year-old his or untruthfulness. of truthfulness probative not 506, Mitchell, 515; NW2d 402 Mich (1978). response was proper judicial The which could be additional comments strike Barnes’ general into Whitfield’s wandered having seen as reputation. the at trial opinion ignores that focus the
The was admissible was whether the cross-examination 608, MRE not it was admissible under 404(a)(1).3 under the defen- judge trial and counsel both
The framed in terms MRE 608 became even That the issue was prosecutor during attempted When clearer ask Barnes about the child, cross-examination. alleged prior a incident of sexual assault on objected, jury excused. The trial counsel and defense prosecutor question judge ask asked he was about to then what question prosecutor responded: . . his . . . was . Would and the opinion "[t]he years ago he David be the had heard seven same five-year-old a sexual assault on his then cousin Whitfield committed prosecutor say, proper on to "That Earl Jones.” The went a question. judge prosecutor Rule The then asked the to read 608B.” following prosecutor interjections. with the MRE "Specific probative of witness as did so Court, may . if instances . . ... discretion truthfulness, inquired ... be into on cross-examination witness, of another truthfulness untruthfulness to this is Mr. He as character —and that Whitfield. testified specific Mr. I can him about the character of Whitfield. ask part The thus instances of conduct on of Mr. Whitfield.” record prosecutor’s that MRE 608 was the basis of the cross-examina shows tion misconduct, regarding alleged instance of defense counsel’s ruling. objection, judge’s and the 404; record to MRE this occurred in a contains reference exchange cryptic place prosecutor judge took between verdict, it an after the had reached a but before was present. nounced. Defense counsel was not *19 Whitfield Levin, J. people coun- understood that defense dant and Although questioning 608. under MRE was sel’s strayed beyond may a discussion have Barnes reputation truthfulness, that did the witness’ pursuant open to rebuttal the door not 404(a)(1) finding by the trial 405, absent a design. judge a Absent such this response finding, proper judicial when simply objected prosecutor the unre- to strike jury. sponsive Unsoli- and caution statements reputation by touching general cited reputa- being questioned about defense witness not MRE 608 does under tion for truthfulness range up automatically open of cross- unlimited an 404(a)(1) 405. Rules under examination J., J. Levin, Cavanagh, concurred with part of this J., in the decision took no Archer, case.