1.7Order of Proof

A.Generally

The trial court has discretion to determine the order of proof and the sequence in which issues are tried. MRE 611(a); MCR 2.513(G).

B.Conditional Admission of Evidence

MRE 104(b) permits the admission of evidence conditioned upon subsequent proof of relevancy.¹

C.Rebuttal Evidence

“Rebuttal evidence is admissible to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same.” People v Figgures, 451 Mich 390, 399 (1996) (internal citation and quotation omitted).

1.Criminal Case

“[A] prosecutor may not divide the evidence on which the people propose to rest their case, saving some for rebuttal.” People v Losey, 413 Mich 346, 351 (1982).

“[T]he test of whether rebuttal evidence was properly admitted is . . . whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant,” and “depends on what proofs the defendant introduced and not on merely what the defendant testified about on cross-examination.” People v Figgures, 451 Mich 390, 399 (1996). “As long as evidence is responsive to material presented by the defense, it is properly classified as rebuttal, even if it overlaps evidence admitted in the prosecutor’s case in chief.” Id.

2.Civil Case

“The scope of rebuttal in civil cases is within the sound discretion of the trial court.” Taylor v Blue Cross/Blue Shield of Mich, 205 Mich App 644, 655 (1994). “‘[A] party may not introduce evidence competent as part of [its] case in chief during rebuttal unless permitted to do so by the court.’” Lima Twp v Bateson, 302 Mich App 483, 502 (2013) (the trial court abused its discretion when it refused to allow the testimony of a rebuttal witness where the testimony could have contradicted the opposing party’s evidence), quoting Winiemko v Valenti, 203 Mich App 411, 418-419 (1994).

D.Reopening Proofs

Generally, whether to reopen proofs for a party rests within the sound discretion of the trial judge. Bonner v Ames, 356 Mich 537, 541 (1959); People v Collier, 168 Mich App 687, 694 (1988). Relevant in ruling on a motion to reopen proofs in a civil case is “(1) the timing of the motion, (2) whether the adverse party would be surprised, deceived, or disadvantaged by reopening the proofs, and (3) whether there would be inconvenience to the court, parties, or counsel.” Mich Citizens for Water Conservation v Nestle Waters North America Inc, 269 Mich App 25, 50-51 (2005), rev’d in part on other grounds 479 Mich 280 (2007).² In a criminal case, the relevant consideration is “whether any undue advantage would be taken by the moving party and whether there is any showing of surprise or prejudice to the nonmoving party.” Collier, 168 Mich App at 694-695; see also People v Herndon, 246 Mich App 371, 420 (2001).