10.3Interplay Between Civil Action and Criminal/Juvenile Proceeding

A.Outcome of Case Does Not Bar Filing of Subsequent Case

Res judicata. “The difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata. Helvering v Mitchell, 303 US 391, 397 (1938) (finding that because the standard of proof is lower in civil cases than in criminal cases, an acquittal on criminal charges does not bar a subsequent civil suit based on the same conduct).

Double jeopardy. “[A] private party [is not precluded] from filing a civil suit seeking damages for conduct that previously was the subject of criminal prosecution and punishment[; t]he protections of the Double Jeopardy Clause are not triggered by litigation between private parties.” United States v Halper, 490 US 435, 451 (1989), overruled on other grounds by Hudson v United States, 522 US 93 (1997).

Cross-over collateral estoppel. “Although in most cases parties seek to apply collateral estoppel in the context of two civil proceedings, our Supreme Court has recognized ‘the application of collateral estoppel in the civil-to-criminal context.’” People v Ali, 328 Mich App 538, 542 (2019), quoting People v Zitka, 325 Mich App 38, 44-45 (2018). However, “the Supreme Court has cautioned against its use.” Ali, 328 Mich App at 542 (finding as “persuasive dictum . . . [t]he concerns outlined in [People v] Gates[, 434 Mich 146 (1990),] . . . [that] counsel against giving factual findings made by a court in a child protective proceeding ‘cross-over’ collateral estoppel effect in a criminal proceeding,” and accordingly, “under the rationale in Gates, it is improper for a court in a criminal case to give preclusive effect to findings in a child protective proceeding.”).¹ But see Yates v United States, 354 US 298, 335 (1957), overruled on other grounds by Burks v United States, 437 US 1 (1978) (“doctrine of collateral estoppel [was] not made inapplicable by the fact that this [was] a criminal case, where the prior proceedings were civil in nature”).

B.Expungement of Conviction or Adjudication Does Not Impact Civil Action²

If a juvenile or defendant successfully moves to set aside his or her adjudication or conviction, it does not affect the crime victim’s right to “prosecute or defend a civil action for damages.” MCL 712A.18e(11)(c); MCL 780.622(5).

Similarly, a crime victim’s right to “prosecute or defend a civil action for damages” is not affected when an adjudication is automatically set aside as provided in MCL 712A.18t(1)—that is, when an adjudication is set aside without requiring a juvenile or a defendant to file an application. MCL 712A.18t(3)(c).

C.Usage of Judgment or Order in Subsequent Case

“A copy of any order, judgment or decree, of any court of record in this state, duly authenticated by the certificate of the judge, clerk or register of such court, under the seal thereof, shall be admissible in evidence in any court in this state, and shall be prima facie evidence of the jurisdiction of said court over the parties to such proceedings and of all facts recited therein, and of the regularity of all proceedings prior to, and including the making of such order, judgment or decree.” MCL 600.2106.

If requested, a victim is also entitled to “a certified copy of the order of an adjudicative hearing for purposes of obtaining relief pursuant to . . . [MCL 600.2913 (recovering civil damages from the juvenile’s parent)³].” MCL 780.799.

1.Use of Defendant’s Conviction or Plea in Subsequent Case

Evidence of a defendant’s prior criminal conviction is relevant under MRE 401 and may be admissible under MRE 402 in a subsequent civil case based on the same conduct as long as it is not “precluded by the Michigan or federal constitution, the rules of evidence, or other rules adopted by the Supreme Court.” Waknin v Chamberlain, 467 Mich 329, 333 (2002) (“the fact that [the] defendant had been convicted of assault and battery for the same conduct that [the victim] [sought subsequent] civil damages for” was relevant and admissible).

In addition, all evidence, including the evidence of a defendant’s prior criminal conviction in a subsequent civil case based on the same conduct must not violate MRE 403 (i.e. its admission must not be unfairly prejudicial). Waknin, 467 Mich at 333‐336 (concluding that the “trial court abused its discretion in precluding evidence of [the] defendant’s conviction on the basis that its probative value was substantially outweighed by the danger of unfair prejudice[]”). Specifically,

“Where a civil case arises from the same incident that resulted in a criminal conviction, the admission of evidence of the criminal conviction during the civil case is prejudicial for precisely the same reason it is probative. That fact does not, without more, render admission of evidence of a criminal conviction unfair, i.e., substantially more prejudicial than probative.” Waknin, 467 Mich at 336.

A judgment of conviction of a felony or certain misdemeanors may be admissible as substantive evidence of conduct at issue in a subsequent civil case. See MRE 803(22), which lists specific exceptions to the exclusion of evidence under the hearsay rule (regardless of declarant availability):

“Evidence of a final judgment of conviction [is not excluded by the hearsay rule] if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea unless allowed by MRE 410;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.” MRE 803(22).

Note: By its terms, MRE 803(22) is limited to convictions and does not extend the hearsay exception to judgments of acquittal.

MRE 803(22) must be read in conjunction with MRE 410, which limits the use of pleas and plea‐related statements. According to MRE 410(a), the following evidence is not admissible in a civil or criminal case against the defendant who made the plea or participated in the plea discussions:

“(1) a guilty plea that was later withdrawn or vacated;

(2) a nolo contendere plea—except that, to the extent that evidence of a guilty plea would be admissible, evidence of a nolo contendere plea to a criminal charge may be admitted in a civil proceeding to defend against a claim asserted by the person who entered the plea;

(3) a statement made during a proceeding on either of those pleas under MCR 6.302^[4] or MCR 6.310,⁵ a comparable state procedure, or Fed R Crim P 11; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn or vacated guilty plea.”⁶ MRE 410(a).

However, statements described in MRE 410(a)(3) and MRE 410(a)(4) may be admissible “in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together[.]”MRE 410(b)(1).

2.Use of Evidence From Juvenile Delinquency Case in Subsequent Case

MCL 712A.23 restricts the use of evidence from juvenile delinquency cases in subsequent proceedings:

“Evidence regarding the disposition of a juvenile under [the Juvenile Code] and evidence obtained in a dispositional proceeding under [the Juvenile Code] shall not be used against that juvenile for any purpose in any judicial proceeding except in a subsequent case against that juvenile under [the Juvenile Code]. This section does not apply to a criminal conviction under [the Juvenile Code].” MCL 712A.23.

The conviction of a juvenile in a designated proceeding has “the same effect and liabilities as if it had been obtained in a court of general criminal jurisdiction.” MCL 712A.2d(7). Accordingly, the prohibition contained in MCL 712A.23 does not apply to evidence obtained at trial in a designated proceeding or to a conviction in such a proceeding.