The Michigan Supreme Court adopted amendments to the Michigan Rules of Evidence (MREs) effective January 1, 2024. According to the Staff Comment to the amending order, the amendments are designed to “restyl[e] the MREs in an effort to remain as consistent as possible with the 2011 restyling of the Federal Rules of Evidence.” ADM File No 2021-10. There are also a few notable amendments to the Federal Rules of Evidence (FREs) effective December 1, 2023, that these MRE amendments do not parallel.
MRE Amendments Effective January 1, 2024
While the MRE amendments are primarily stylistic, there are several linguistic changes that may be of interest to practitioners. In addition to the amendments of MRE 803 and MRE 804 (moving the residual hearsay exceptions in those rules into the new MRE 807) and reorganization and renumbering in MRE 804, consider the following examples of potentially noteworthy changes.
- Other crimes, wrongs, or acts. Amendments to MRE 404(b)(2), regarding permitted uses for evidence of other crimes, wrongs, or acts, remove the qualifying language “whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue.” This deletion suggests that the materiality of the other crimes, wrongs, or acts is the key and not when they occurred in relation to the conduct at issue. Interestingly, while FRE 404(b)(2) does not include the language about timing that was deleted from the MRE in these amendments, it also does not include the “[i]f it is material” caveat that is present in the Michigan rule.
- Opinions versus inferences. Amendments to MRE 701, Opinion Testimony by Lay Witnesses, remove “inferences” from the language of the rule. Now the rule just mentions “testimony in the form of opinion,” rather than “testimony in the form of opinions or inferences.” The Committee Notes on the same FRE amendment state, “The Committee deleted all reference to an ‘inference’ on the grounds that the deletion made the Rule flow better and easier to read, and because any ‘inference’ is covered by the broader term ‘opinion.’ Courts have not made substantive decisions on the basis of any distinction between an opinion and an inference.” Practitioners using the amended rule may wish to point to this language when dealing with inferences.
- Expert witnesses. Amendments to MRE 702, Testimony by Expert Witnesses, delete the “[i]f the court determines” language. The deletion appears to be merely cleanup, as the amended MRE is identical to current FRE 702. However, there are a few complications. First, note that in Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780 n46, 685 NW2d 391 (2004), the Michigan Supreme Court stated, “The trial court’s obligation under MRE 702 is even stronger than that contemplated by FRE 702 because Michigan’s rule specifically provides that the court’s determination is a precondition to admissibility.” Query whether it could be argued that this change weakens the court’s gatekeeping function. Second, amendments to FRE 702 effective December 1, 2023, make some interesting changes that these MRE amendments effective January 1, 2024, do not track (though the MSC has proposed them). See below for more discussion of the upcoming FRE amendments, as well as several proposed MRE amendments.
- Statements versus admissions. MRE 801(d)(2) is no longer titled Admission by party-opponent, but is instead titled An Opposing Party’s Statement. Similarly, MRE 1007, previously titled Testimony or Written Admission of a Party, is now titled Testimony or Statement of a Party to Prove Content. Per the Committee Notes on the 2011 amendments to FRE 801: “The term ‘admissions’ is confusing because not all statements covered by the exclusion are admissions in the colloquial sense—a statement can be within the exclusion even if it ‘admitted’ nothing and was not against the party’s interest when made. The term ‘admissions’ also raises confusion in comparison with the [MRE 804(b)(3)] exception for declarations against interest. No change in application of the exclusion is intended.” Despite these changes, the amended rules leave references to the term “admission” in MRE 707, Use of Learned Treatises for Impeachment (“the publication is established as a reliable authority by the testimony or admission of the witness”), and MRE 801(d)(2)(A)(ii) (“an admission of responsibility for a civil infraction”).
- Criteria for being unavailable. Amended MRE 804(a)(3) now provides that a declarant is unavailable as a witness if the declarant "testifies to not remembering the subject matter." Before these amendments, the rule was worded "has a lack of memory of the subject matter," which does not appear to require official testimony.
In addition to noting changes in wording like those listed above, pay attention to the numbering in the amended MREs. While the numbers of the evidentiary rules themselves have only changed in the case of the new MRE 807, the stylistic changes add or shift a lot of the subrule lettering and numbering. For example, moving the hearsay exception regarding deposition testimony up to MRE 804(b)(2) caused a number of the other subrules in 804(b) to be renumbered.
FRE Amendments Effective December 1, 2023
Amendments to several FREs become effective on December 1, 2023. Notably, the recent MRE amendments do not appear to track these further amendments. The amended FREs are as follows:
- FRE 106. Amendments to FRE 106, commonly known as the rule of completeness, remove references to “writing or recorded statement” in favor of simply “statements.” The Committee Note to the amendment indicates that this amendment is intended to make FRE 106 cover “all statements, including oral statements that have not been recorded.” The FRE amendments also add a final sentence: “The adverse party may do so over a hearsay objection.” Per the Committee Note, “Courts have been in conflict over whether completing evidence properly required for completion under [FRE 106] can be admitted over a hearsay objection. The Committee has determined that the rule of completeness, grounded in fairness, cannot fulfill its function if the party that creates a misimpression about the meaning of a proffered statement can then object on hearsay grounds and exclude a statement that would correct the misimpression.” MRE 106 as amended effective January 1, 2024, does not include either of these changes.
- FRE 615. Under the amendments, FRE 615, formerly titled Excluding Witnesses, is now titled Excluding Witnesses from the Courtroom; Preventing an Excluded Witness’s Access to Trial Testimony. The Committee Note indicates that the amended rule “clarifies that the court, in entering an order under [FRE 615], may also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony.” It indicates that the other purpose for the amendments is “to clarify that the exception from exclusion for entity representatives is limited to one designated representative per entity.” MRE 615 as amended effective January 1, 2024, does not mirror these changes.
- FRE 702. FRE 702 as amended December 1, 2023, provides that a witness who is qualified as an expert may provide opinion testimony “if the proponent demonstrates to the court that it is more likely than not” that each of the four items listed in the rule are true. The amendments also change the fourth listed item to state that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Per the Committee Note, “the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.” The Committee Note also provides:
[FRE 702(d)] has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology. Judicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.
This article from Perkins Coie provides some good insight into what these changes mean for practitioners. As discussed above, MRE 702 as amended effective January 1, 2024, tracks FRE 702(d) in its current incarnation and does not include these further amendments. Note, however, that on October 25, 2023, the Michigan Supreme Court issued an order proposing these amendments. See below for more.
Proposed MRE Amendments
On October 25, 2023, the Michigan Supreme Court issued ADM File No 2022-30 proposing several additional MRE amendments:
- MRE 702. The proposed amendments are identical to the FRE 702 amendments effective December 1, 2023.
- MRE 804. The proposed change to MRE 804(b)(4)(B) would remove the phrase "and is offered to exculpate the accused" from the rule language. Per the Staff Comment, "The proposed amendment of MRE 804 would require corroborating circumstances of trustworthiness for any statement against interest that exposes a declarant to criminal liability."
The comment period for these two proposed amendments will end on February 1, 2024. The order includes instructions for submitting a comment.