Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  October 10, 2014                                                                  Robert P. Young, Jr.,
                                                                                               Chief Justice

  148654                                                                             Michael F. Cavanagh
                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
                                                                                          Brian K. Zahra
                                                                                  Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                      David F. Viviano,
            Plaintiff-Appellee,                                                                     Justices


  v                                                       SC: 148654
                                                          COA: 309755
                                                          St. Clair CC: 11-002935-FH
  JONATHAN EARL JEFFERSON,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 5, 2013
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

           VIVIANO, J. (dissenting).

         I respectfully dissent from the Court’s order denying defendant’s application for
  leave to appeal.

         In this case arising from defendant’s convictions of being a felon in possession of
  a firearm and felony-firearm, the trial court ruled that the prosecution was permitted to
  impeach defendant with limited questions about his 16-year-old prior conviction for
  armed robbery. The Court of Appeals majority affirmed that decision. But I agree with
  the Court of Appeals dissent that evidence of defendant’s prior conviction was not
  properly admitted for impeachment purposes under MRE 609.

         This Court has recognized the “danger . . . that a jury will misuse prior conviction
  evidence by focusing on the defendant’s general bad character, rather than solely on his
  character for truthtelling.” 1 For this reason, MRE 609 provides a general rule that
  excludes evidence of prior convictions. 2 There are, however, two exceptions: (1) when
  “the crime contained an element of dishonesty or false statement” 3 or (2) when “the

  1
      People v Allen, 429 Mich 558, 569 (1988).
  2
   MRE 609(a) (stating that “evidence that the witness has been convicted of a crime shall
  not be admitted unless” the conditions of Subrules (a)(1) or (a)(2) are met) (emphasis
  added); see Allen, 429 Mich at 605 (explaining that unless a prior conviction falls within
  one of the two exceptions, “it is to be excluded from evidence without further
  consideration”).
  3
      MRE 609(a)(1).
                                                                                             2

crime contained an element of theft” and was “punishable by imprisonment in excess of
one year or death . . . .” 4

        Under the first exception, evidence of a crime that contained an element of
dishonesty or false statement is admissible “without further consideration.” 5 There is no
need for further inquiry because, for the purpose of assessing truthfulness, such crimes
are deemed “directly probative of a witness’ truthfulness and can be understood as
reflecting upon veracity by jurors without the mediation of their deciding that the
defendant has a bad general character.” 6

       The second exception, for theft crimes, does however require the court to engage
in further consideration. Unlike crimes for which false statement or dishonesty is an
element, theft crimes are not “inherently more probative than prejudicial” on the issue of
credibility. 7 But because they “ ‘are universally regarded as conduct which reflects
adversely on a man’s honesty and integrity,’ ” theft crimes are considered to be “more
probative of veracity than other crimes.” 8 Thus, a trial court must exercise its discretion
and assess each theft crime on a case-by-case basis. 9

       Under the exception for theft crimes, the court is first required to determine
whether the evidence “has significant probative value on the issue of credibility . . . .” 10
In determining probative value, “the court shall consider only the age of the conviction
and the degree to which a conviction of the crime is indicative of veracity,” and the court
must articulate its analysis for each factor on the record. 11 If the court determines that the
prior conviction is not significantly probative of credibility, then the analysis should
cease and the evidence should be found inadmissible. 12

4
    MRE 609(a)(2)(A).
5
    Allen, 429 Mich at 605.
6
    Id. at 593-594.
7
    Id. at 594 n 16.
8
    Id. at 595, quoting Gordon v United States, 127 US App DC 343, 347 (1967).
9
    Allen, 429 Mich at 596, 606 n 33.
10
     MRE 609(a)(2)(B) (emphasis added).
11
     MRE 609(b).
12
     People v Snyder (After Remand), 301 Mich App 99, 109-111 (2013).
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        If the prior conviction is significantly probative of credibility and “the witness is
the defendant in a criminal trial,” a further step is required. 13 The trial court must then
engage in a balancing test, and the conviction may only be admitted if “the probative
value of the evidence outweighs its prejudicial effect.” 14 In determining the prejudicial
effect, “the court shall consider only the conviction’s similarity to the charged offense
and the possible effects on the decisional process if admitting the evidence causes the
defendant to elect not to testify,” again articulating its analysis for each factor on the
record. 15

        After reciting the requirements of MRE 609, the trial court ruled from the bench
that the evidence was admissible, stating as follows:

                 In this case we have a crime that is one that contains the element of
         theft, armed robbery. We have an issue before this court that turns solely
         upon the credibility of witnesses [who] are testifying here. This is his claim
         both not only an alibi witness by his direct testimony that he did not deliver
         this weapon to Ms. Jackson [sic], it has significant probative value. While
         it may have some prejudicial effect, that effect cannot measure up to the



13
     MRE 609(a)(2)(B); see Snyder, 301 Mich App at 106.
14
   MRE 609(a)(2)(B); see Allen, 429 Mich at 606-608 (clarifying the balancing test for
theft crimes under the amended version of MRE 609 promulgated in Allen). I note that
this balancing test shifts the burden and creates a higher bar to admissibility than the
generally applicable balancing test of MRE 403, under which relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . .” (Emphasis added.) MRE 403 has been interpreted as placing the burden
on the party opposing the admission of otherwise relevant evidence to convince the court
that the evidence must be excluded because its prejudicial danger outweighs its probative
worth “ ‘by a wide margin.’ ” People v Crawford, 458 Mich 376, 410 n 13 (1998)
(BOYLE, J. dissenting), quoting Imwinkelried & Margolin, The Case for the Admissibility
of Defense Testimony About Customary Political Practices in Official Corruption
Prosecutions, 29 Am Crim L Rev 1, 29-30 (1991). Conversely, under MRE
609(a)(2)(B), the burden is on the proponent of impeachment evidence to convince the
court that the evidence must be admitted because it has significant probative value that is
not outweighed by its prejudicial effect—not even by a narrow margin. See Crawford,
458 Mich at 411-412; see also People v Taylor, 422 Mich 407, 419 n 5 (1985).
15
     MRE 609(b).
                                                                                              4

        importance of testing his veracity in determining whether or not he’s
        testifying truthfully or not.

                It is in that sense what this defense is about. He chose to testify
        knowing that this is an offense for which he could be impeached. I believe
        that it’s appropriate to impeach him on it.

        Although the trial court mentioned “significant probative value,” “veracity,”
“prejudicial effect,” and the fact that defendant chose to testify, like the Court of Appeals
partial dissent, I believe that the trial court failed to analyze the appropriate factors as
required by MRE 609(b). 16

        Regarding probative value, notably lacking from the trial court’s analysis is
consideration of the age of the conviction or why evidence of defendant’s 16-year-old
armed robbery conviction was so “indicative of veracity” 17 as to rise to the level of
“significant probative value.” 18 Instead, the trial court found that the conviction was
admissible because this case “turn[ed] solely upon the credibility of [the] witnesses . . . .”
But the fact that credibility is of crucial importance in a case does not compel a finding
that the particular theft conviction at issue was indicative of veracity. Indeed, in adopting
the current version of MRE 609, this Court specifically rejected reliance “on the need or
lack thereof for evaluating the defendants’ credibility” as a factor when evaluating the
admissibility of evidence under MRE 609. 19 The trial court erred not only by failing to
properly address the required probative value factors, but also by relying on a factor that
this Court has eliminated from consideration. Further, given the prosecution’s failure to

16
   People v Jefferson, unpublished opinion per curiam of the Court of Appeals, issued
December 5, 2013 (Docket No. 309755) (SHAPIRO, J., concurring in part and dissenting
in part), pp 2-3.
17
     MRE 609(b).
18
   MRE 609(a)(2)(B) (emphasis added); see Snyder, 301 Mich App at 106 (“[O]ur courts
have held that, in general, ‘[t]heft crimes are minimally probative on the issue of
credibility,’ or, at most, are ‘moderately probative of veracity . . . .’ ”) (citations omitted)
(second alteration in original). Indeed, this Court has stated that although robbery
contains an element of theft, it is primarily an assaultive crime and has an even “lower
probative value on the issue of credibility than . . . other theft crimes.” Allen, 429 Mich
at 611.
19
   Allen, 429 Mich at 602; see id. (“It is our view that it is the effect on the decisional
process if the defendant does not testify which must predominate and so the contradicting
‘credibility contest’ factor must therefore be eliminated.”).
                                                                                            5

provide any grounds on which to conclude otherwise, I would hold that the armed
robbery conviction lacked significant probative value and was inadmissible. 20 Absent a
showing of significant probative value, there was no need to determine the prejudicial
effect. 21

        Regardless, even assuming that there were grounds on which to determine that the
armed robbery conviction had the requisite probative value, the trial court further erred
by failing to properly assess the crime’s prejudicial effect. As the Court Appeals partial
dissent correctly pointed out, “ ‘the possible effects on the decisional process if admitting
the evidence causes the defendant to elect not to testify’ ” was not at issue because
defendant had already testified. 22 But the trial court failed to even mention, let alone
articulate, its analysis of “the conviction’s similarity to the charged offense,” as MRE
609(b) requires.

        Finally, I agree with the Court of Appeals partial dissent that the error in admitting
the evidence was not harmless. 23 Because “whether defendant possessed a firearm was
purely a question of witness credibility,” 24 I believe that “the danger that [the] evidence
admitted to impeach the defendant-as-witness was used by the jury in evaluating
defendant-as-defendant” 25 was too high and that it is more probable than not that the
reliability of the verdict was undermined. 26




20
     See footnote 14 of this dissenting statement; see also Snyder, 301 Mich App at 109.
21
     See Snyder, 301 Mich App at 109-111.
22
  Jefferson, unpub op at 3 (SHAPIRO, J., concurring in part and dissenting in part),
quoting MRE 609(b).
23
     Id. at 3-4, citing Snyder, 301 Mich App at 112-113.
24
     Jefferson, unpub op at 4.
25
     Allen, 429 Mich at 567.
26
     See People v Lukity, 460 Mich 484, 495 (1999).
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For these reasons, I would reverse and remand for a new trial.

CAVANAGH and MCCORMACK, JJ., join the statement of VIVIANO, J.




                  I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
            foregoing is a true and complete copy of the order entered at the direction of the Court.
                  October 10, 2014
d1007
                                                                      Clerk
