Chapter 2: Admissibility and Relevancy
A.Preliminary Question Concerning Admissibility
“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” MRE 104(a).
B.Who Decides Specific Admissibility Questions
“Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under [MRE 1004] or [MRE 1005]. But in a jury trial, the jury determines — in accordance with [MRE 104(b)] — any issue about whether: (a) an asserted writing, recording, or photograph ever existed; (b) another one produced at the trial or hearing is the original; or (c) other evidence of content accurately reflects the content.” MRE 1008.
2.Other Evidence
When the evidence is of a kind other than the “contents of writings, recordings, or photographs” as addressed by MRE 1008, some preliminary questions are for the judge and some questions are for the jury. People v Vega, 413 Mich 773, 778-779 (1982), superseded by statute on other grounds as stated in People v Barrett, 480 Mich 125 (2008). “[P]reliminary questions of conditional relevance envisioned by [MRE] 104(b) [(relevancy depends upon the fulfillment of a condition of fact)] are those which present no . . . danger of prejudice to the defendant. They are questions of probative force rather than evidentiary policy. They involve questions as to the fulfillment of factual conditions which the jury must answer,” unlike MRE 1008, which provides such questions are ordinarily for the court to decide when the evidence involves the contents of writings, recordings, or photographs. Vega, 480 Mich at 778-779 (quotation marks and citation omitted; emphasis added). “The standard for screening evidence under [MRE 104](b) is quite low.” Howard v Kowalski, 296 Mich App 664, 682 (2012), rev’d in part 495 Mich 982 (2014).1 “[A]s long as some rational jury could resolve the issue in favor of admissibility, the court must let the jury weigh the disputed facts. Specifically, the court must allow the jurors to assess the credibility of the evidence presented by the parties.” Howard, 296 Mich App at 683.
C.Stay Pending Appeal Following Admissibility Decision
“The mechanics of interlocutory appeals are entirely the product of court rules promulgated by [the Michigan Supreme] Court pursuant to [its] constitutional imperative to ‘establish, modify, amend and simplify the practice and procedure in all courts of this state.’” People v Scott, ___ Mich ___, ___ (2024), quoting Const 1963, art 6, § 5.
“Where the court makes a decision on the admissibility of evidence and the prosecutor or the defendant files an interlocutory application for leave to appeal seeking to reverse that decision, the court shall stay proceedings pending resolution of the application in the Court of Appeals, unless the court makes findings that the evidence is clearly cumulative or that an appeal is frivolous because legal precedent is clearly against the party’s position. If the application for leave to appeal is filed by the prosecutor and the defendant is incarcerated, the defendant may request that the court reconsider whether pretrial release is appropriate.” MCR 6.126.
“While an automatic stay does not necessarily prevent a court from commencing trial when an interlocutory appeal is pending and the question on review is collateral to the trial,” failure to adhere to the automatic stay during an interlocutory appeal is a procedural error. Scott, ___ Mich at ___. According to Scott, “Interlocutory appeals, in contrast to appeals from final orders, do not divest a trial court of subject-matter jurisdiction over a case. A trial court is divested of subject-matter jurisdiction upon entry of a final order. Until that time, the trial court retains general subject-matter jurisdiction over the case while an interlocutory appeal is pending.” Id. at ___. Any error by the trial court that arises during or from the interlocutory appeal is subject to appellate review after a final order is entered. Id. at ___. See also People v Robinson, ___ Mich App ___, ___ (2024).
A stay of proceedings only applies to “proceedings related to the disputed order and not to other issues,” and “a trial court’s decision in regard to which aspects of the case are and are not involved in the appeal depends on the nature of the appeal.” Scott, ___ Mich at ___ (quotation marks and citation omitted). “This decision will require familiarity with the facts of the case and experience in maintaining a trial court docket.” Id. at ___. Accordingly, “the trial court’s decision on this issue is reviewed for an abuse of discretion and will not be disturbed unless that decision falls outside the range of principled outcomes.” Id. at ___ (quotation marks and citation omitted).
In Scott, the defendant applied in the Michigan Supreme Court “for leave to appeal a Court of Appeals judgment that remanded the case to the trial court for further proceedings.” Id. at ___ (Court of Appeals reversed the trial court’s decision that evidence of previous sexual assaults was inadmissible against defendant at trial). “Under those circumstances, an automatic stay of the remand proceedings was in place that barred the trial court from addressing aspects of that interlocutory appeal.” Id. at ___, citing MCR 7.305(C)(6)(a). While the defendant’s application was pending, “the trial court conducted a trial that clearly involved aspects of defendant’s pending interlocutory appeal.” Scott, ___ Mich at ___. “During trial, the very evidence that was disputed in the interlocutory appeal was admitted.” Id. at ___ (explaining that “the Court of Appeals’ decision to initially grant the prosecution’s application for leave to appeal [was] itself a solid indicator that the disputed evidence was not collateral and was indeed significant to the case”). “Admitting into evidence at trial arguably prejudicial testimony that remained in dispute on appeal is not only highly irregular; it was also unreasonable and outside the range of principled outcomes.” Id. at ___. Although “the trial court abused its discretion by holding a trial that included this evidence under these circumstances,” the Scott Court held that it was “a procedural error” that could “be remedied through subsequent appellate review after a final judgment [was] entered.” Id. at ___.