COURT FOR THE COUNTY OF 
| Chapter 20: In Limine Evidentiary Motions |
20-1 Irrelevant and Prejudicial Evidence
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. Relevant evidence is admissible unless otherwise provided; irrelevant evidence is not admissible. MRE 402.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403.
In determining whether evidence is relevant, the trial court must first determine whether it is "material," or "in issue." People v Mills, 450 Mich 61 (1995). Second, the court must assess the probative force, or whether it makes a fact of consequence more or less probable. The less probative the evidence is, the more likely the trial court should be to sustain an objection to its admissibility. People v Beckley, 434 Mich 691 (1990). Relevant evidence should be excluded if its probative value is outweighed by the danger of unfair prejudice, People v Oliphant, 399 Mich App 472 (1976), confusion of the issues, or the potential for misleading the jury, People v Brownridge, 459 Mich 456 (1999).
When determining the admissibility of photographs, the court must apply a balancing test: the probative value must outweigh the prejudicial effect of arousing the sympathies of the jury. People v Eddington, 387 Mich 551 (1972); People v Mills, 450 Mich 61 (1995). Where the photographs are neither substantially necessary nor instructive to show material facts or conditions (as where the defendant does not deny the brutality of the killing but only his participation in the crime), and there appears to be no other reason than to excite passion, the photographs should be excluded. People v Falkner, 389 Mich 682 (1973); People v Wallach, 110 Mich App 37 (1981) vac'd on other grds 417 Mich 937 (1983), on remand 143 Mich App 537 (1985). See also People v Engleman, 434 Mich 204 (1990).
Neither the fact of taking a polygraph examination, nor the results of one, are admissible at trial, primarily because polygraph evidence is not reliable. People v Barbara, 400 Mich 352 (1977); People v Frechette, 380 Mich 64 (1968). This applies to defendants and all other witnesses. People v Rocha, 110 Mich App 1 (1981) [prosecutor's questioning which elicited the fact that the victim had taken a polygraph was reversible error]; People v Smith, 211 Mich App 233 (1995). See also US v Scheffer, 523 US 303; 118 SCt 1261; 140 LEd2d 413 (1998) [rule barring polygraph evidence at court martial did not violate Sixth Amendment right to present a defense].
20-2 Evidence of Prior Convictions or Bad Acts
Under MRE 609, evidence that a witness has been convicted of a crime is not admissible unless: 1) the crime contained an element of dishonesty or false statement, or 2) the crime contained an element of theft and a) the crime was punishable by imprisonment in excess of one year, and b) the evidence has significant probative value which outweighs its prejudicial effect. For purposes of the probative value determination, the court must consider the age of the conviction and how indicative it is of veracity. To determine prejudice, the court must consider its similarity to the charged offense and the effect on the decisional process if the defendant decides not to testify. People v Allen, 429 Mich 558 (1988). Impeachment by prior misdemeanor convictions is permissible only if the convictions contain elements of dishonesty or false statement. People v Allen, supra. For witnesses other than the accused, the trial court does not have to balance probative value versus prejudicial effect; the court need only determine whether the prior offense, due to its nature and age, is sufficiently probative of veracity. People v Dixon, 175 Mich App 472 (1989). Several cases have held similar or identical prior convictions inadmissible for impeachment. People v Baldwin, 405 Mich 550 (1979); People v Bennett, 85 Mich App 68 (1978); People v Johnson (On Remand), 170 Mich App 808 (1988).
20-3 Privileged Communications 20-3-a Husband-Wife
The "confidential communications" privilege applies to any confidential communications made during the marital relationship, regardless of whether the parties are married at the time of trial. People v Sykes, 117 Mich App 117 (1982); Blau v US, 430 US 332; 71 SCt 301; 95 LEd2d 306 (1951); MCL 600.2162; MSA 27A.2162. It applies even if the couple is estranged at the time of the communication, as long as they are legally married. People v Vermeulen, 432 Mich 32 (1989).
The "spousal privilege" prohibits the testimony of one spouse concerning the other without the consent of the other, as long as they are married at the time of trial. People v Sykes, supra; MCL 600.2162; MSA 27A.2162. The spousal privilege applies to a common law marriage which is validly contracted in another state. People v Schmidt, 228 Mich App 463 (1998).
There is an exception to the spousal privilege rule for crimes against the spouse. People v Butler, 430 Mich 434 (1988); People v Warren, 228 Mich App 336 (1998), lv grt'd 460 Mich 851 (1999).
An attorney may not be questioned concerning confidential communications with his/her client. MCL 767.5a(2); MSA 28.945. The attorney-client privilege is violated by prosecutorial questions requiring the attorney to assert the privilege, which leads the jury to infer that damaging information is being withheld from them. People v Paasche, 207 Mich App 698 (1994). The privilege is not violated by defense counsel's act of turning over evidentiary items to the police. People v Nash, 418 Mich 196 (1983).
The physician-patient privilege bars the use of confidential communications and privileged information, MCL 767.5a(2); MCL 600.2157, including its use for rebutting a claim of insanity, People v Plummer, 37 Mich App 657 (1979) or to show the testimonial incompetence of a witness. People v Lapsley, 26 Mich App 424 (1970). An optometrist is not a physician. People v Baker, 94 Mich App 365 (1979). There is an "accident" exception, MCL 257.625a(6); MSA 9.2325(1)(6), making results of the chemical analysis of a blood sample taken from the driver of a vehicle involved in an accident, for medical treatment, admissible in a criminal prosecution. Conversations between a patient and psychologist, MCL 330.1750; MSA 14.800(1750), and between a patient and therapist (social worker) Jaffee v Remond 518 US 1; 116 SCt 1923; 135 LEd2d 337 (1996) are privileged.
Defendant's release of medical information for purposes of an independent psychiatric examination for insanity waives any psychologist-patient privilege. People v Sullivan, 231 Mich App 510 (1998), aff'd 461 Mich 986 (2000).
There are also a clergy-church member privilege, MCL 767.5a; MSA 28.945, a reporter-source privilege, MCL 767.5a; MSA 28.945(1), a teacher-student privilege, MCL 600.2165; MSA 27A.2165, and a probation officer-probationer privilege, MCL 791.229; MSA 28.2299. There is no parent-child privilege. People v Amos, 163 Mich App 50 (1987).
20.1.a Motion to Preclude Photographic Evidence [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
The Defendant, 
, by 
attorney, moves this Court to preclude the admission of
all the photographs of the deceased, pursuant to MRE 403 and the following:
1. The prosecution intends to introduce 
photographs of the deceased. Copies of these photographs
are available for the court to view.
2. The issue in the upcoming trial is not how 
died, but rather that 
has been
incorrectly identified as the person who killed 
.
3. 
has offered and continues to offer to stipulate to the facts of the cause of 
death.
4. As a result, the probative value of the photographs is slight.
5. Evidence must not only be relevant, but material to the issues at hand. If evidence is offered "to help prove a proposition which is not a matter in issue, the evidence is immaterial." McCormick, Evidence (4th ed.), S 185, p. 773.
6. Even if this Court finds that the proffered photographs are marginally relevant, their prejudicial impact far outweighs their probative value. MRE 403.
7. The photographs show the numerous stab wounds that 
suffered, in explicit detail. They are extremely
gruesome.
8. Because the photographs do not prove any disputed issues in the case and because they are extremely prejudicial, they must be precluded. MRE 401, 403.
For these reasons 
requests: (1) that this motion to preclude the admission of the
photographs be granted, or (2) in the alternative, that this court hold an evidentiary hearing at which this evidence can
be presented prior to trial in the context in which the prosecution intends to offer it so that this Court can make a pre-trial determination regarding the admissibility of the photographs.
Respectfully submitted,
Attorney for Defendant
20.1.b Motion to Preclude Mention of the Polygraph Examination given to Defendant [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
Defendant.
/
The Defendant, 
, by 
attorney, moves this Court to enter an order precluding
the prosecution from mentioning, eliciting or referring to the fact that 
was given 
polygraph examinations.
This motion is based on the following:
1. 
was given 
polygraph examinations.
2. Neither the fact that a polygraph examination was given nor its results are admissible in Michigan. People v Barbara, 400 Mich 352, 364 (1977); People v Frechette, 380 Mich 64, 68 (1968).
For these reasons, 
requests that this Court grant 
motion to preclude any
mention of the polygraph examinations.
Respectfully submitted,
__________________
Attorney For Defendant
20.2.a Motion to Preclude Evidence of Bad Acts [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiffs,
vs No. 
Hon. 
John Doe,
Defendant.
____________________________________/
The Defendant, John Doe, by his attorney, moves this Court to preclude the admission into evidence at trial of a videotape of the Defendant taken at the police station after he was arrested, and to preclude any reference to threats Mr. Doe made after his arrest. In support of this motion, Mr. Doe states as follows:
1. On September 1, 1999, John Doe was arrested for assault and battery.
2. Mr. Doe was arrested at his home, 1000 Maple Street.
3. After arresting Mr. Doe, County Deputy Sheriff Richard Roe took him into custody and drove him to the Wayne County Sheriff's Department.
4. On the night of September 1, 1999, Mr. Doe had been drinking, and was intoxicated at the time of his arrest.
5. Following his arrest, Mr. Doe was highly agitated and upset; he had just been arrested and incarcerated because of his ex-wife's false allegations.
6. Mr. Doe was more excited and agitated after the police arrived, arrested him and jailed him than he had been earlier in the night, when the assault and battery allegedly occurred.
7. During the drive from the Defendant's house to the Sheriff's Department, the Defendant, angry and intoxicated, said "I'm gonna shoot her ass."
8. The comments and threats made by Mr. Doe while in police custody are not relevant because they do not bear at all on the events that occurred earlier in the night. Mr. Doe is not alleged to have tried at any time to shoot Ms. Doe or to have threatened Ms. Doe's life. The comments he made after his arrest were in direct response to being arrested, handcuffed and taken into custody and were future threats. They were not related to the events earlier in the night, and do not make it more or less likely that he committed the alleged assault and battery. Consequently, they are irrelevant according to MRE 401.
9. Because the statements made by Mr. Doe are not relevant to whether he committed the assault and battery, they should be excluded according to MRE 402.
10. Additionally, MRE 404(a) forbids the inference that because the statements are threats to Mr. Doe's life and safety made while Mr. Doe was angry and making verbal threats in light of his arrest, it is more likely he committed the assault and battery earlier in the evening.
11. Because introduction of the statements Mr. Doe made would be highly prejudicial, even if those statements have some probative value, they should be excluded according to MRE 403.
12. After his arrest, Mr. Doe was taken to the jail, where he was booked and then incarcerated while awaiting arraignment. During booking, Mr. Doe was videotaped.
13. Mr. Doe was still drunk when being booked.
14. During booking, Mr. Doe was on one side of a thick, plexiglass window, and the booking officer was on the other side.
15. The videotape of Mr. Doe lasts about 20 minutes and shows him being cooperative and responsive to the booking officer, Deputy Sheriff Smith, while being questioned, when Mr. Doe could understand and hear the questions.
16. The videotape also shows that Mr. Doe had problems understanding and hearing Deputy Smith's questions.
17. The quality of the videotape is poor, and both Mr. Doe's and Deputy Smith's comments are difficult to understand.
18. During questioning, Deputy Smith said to Mr. Doe "you hit a loved one, huh?"
19. Mr. Doe responded, "yeah . . . huh . . . I guess."
20. Mr. Doe is not alleged to have hit or struck Ms. Doe on September 1, 1999, the only allegation is that he kicked her that night.
21. At the end of his booking, Mr. Doe also makes one comment directed towards the complaining witness, Ms. Doe, saying "you guys can come back again, because the bitch is [muffled]."
22. The contents of the videotape of Mr. Doe taken after his arrest are not relevant because they do not bear at all on the events that occurred earlier in the night. The videotape shows Mr. Doe being angry about the arrest and making one comment that may be construed as a threat about what he might do in the future. It does not shed light on the determination of whether he committed an assault and battery.
23. The videotape has no relevance to whether Mr. Doe committed an assault and battery on Ms. Doe earlier that night, and so is not relevant according to MRE 401.
24. Mr. Doe's response to Deputy Smith's question, "you hit a loved one, huh?," is not relevant because Mr. Doe is alleged to have kicked Ms. Doe, not to have hit her or struck her in any other manner; any questions, answers or comments about hitting have no bearing on whether or not Mr. Doe kicked Ms. Doe.
25. Because the videotape is not relevant, it should be excluded according to MRE 402.
26. Even if the videotape is determined to be relevant, it should be excluded according to MRE 403 because its probative value is extremely limited and is far outweighed by the danger of unfair prejudice to Mr. Doe. The videotape shows Mr. Doe angry, agitated and drunk, making an inflammatory comment which might likely prejudice the jury and imply that because he was angry and agitated post-arrest, it is therefore more likely that he committed the assault and battery, which is an impermissible inference according to MRE 404(a).
27. In addition, because of the compromised quality of the audio on the videotape, some of the statements are indecipherable, and may confuse or mislead the jury, presenting a real danger of unfair prejudice to Mr. Doe that far outweighs the videotape's limited probative value, and for this reason should be excluded according to MRE 403.
For these reasons, John Doe respectfully moves that this Court enter an order precluding the introduction into evidence of the videotape made on September 1, 1999, and precluding any reference to Mr. Doe's post-arrest threats made either to the arresting officers or to the booking officer.
Respectfully submitted,
___________________
Attorney for Defendant
20.2.b Motion to Preclude Evidence of 911 Call [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
The Defendant, John Doe, by his attorney, moves this Court to preclude the admission into evidence the contents of a phone call made by Jane Doe, the complaining witness, to a 911 operator on the night of September 1, 1999. In support of this motion, Mr. Doe states as follows:
1. On September 1, 1999, John Doe was arrested for assault and battery.
2. Deputy Sheriff Richard Roe arrested Mr. Doe at his home at 1000 Maple Street.
3. Officer Roe went to Mr. Doe's home in response to a call placed to a 911 operator by the complaining witness, Jane Doe.
4. The statements made by Ms. Doe to the 911 operator are inadmissible hearsay, do not fall within any of the hearsay exceptions of MRE 803, and should be excluded according to MRE 802.
5. Even if the tape recordings are determined not to be inadmissible hearsay, they should be precluded from admission into evidence because they are not relevant, MRE 401, 402.
6. Ms. Doe's call to a 911 operator contains no allegations that Mr. Doe kicked her, the act for which he has been charged, so it sheds no light on whether or not Mr. Doe committed the alleged assault and battery and thus is not relevant as proof of the crimes of assault and battery according to MRE 401.
7. Because the 911 tape is not relevant, it should be excluded according to MRE 402.
8. Even if the tape recording is determined to be relevant, it should be excluded according to MRE 403 because its probative value is far outweighed by the danger of unfair prejudice to John Doe.
For these reasons, John Doe respectfully requests that this Court preclude the admission into evidence of the 911 tape recording.
Respectfully submitted,
__________________
Attorney for Defendant
20.2.b.1 Memorandum of Law in Support of Motion [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
John Doe,
Defendant.
/
The tape recording of Ms. Doe's call to a 911 operator should be excluded because it is inadmissible hearsay according to MRE 802, and because none of Ms. Doe's statements fall within any of the hearsay exceptions enumerated in MRE 803.
In particular, the statements are not present sense impressions as defined by MRE 803(1). For hearsay to be admissible per MRE 803(1) it must satisfy four conditions: "(1) the statement must provide an explanation or description of the perceived event, (2) the declarant must personally perceive the event, and (3) the explanation or description must be 'substantially contemporaneous' with the event," and (4) there must be evidence independent of the statements that establish the underlying event by a preponderance of the evidence. People v Hendrickson, 459 Mich 229, 235-236 (1998).
Only Ms. Doe's initial comment to the 911 operator, "my ex-husband beat me up," refers to the incident she must be perceiving for the statement to qualify as a present sense impression, and most of the content of the recording is not related to the alleged assault and battery. Thus, the tape does not meet the first requirement.
Additionally, there is no indication that the call was "substantially contemporaneous" with the alleged assault and battery. Ms. Doe's phone call was made after the alleged assault and battery occurred, as evidenced by her description of the events while talking to the 911 operator [911 operator: "where is he now?" Ms. Doe: "He's sitting on the couch . . . . He just got up." 911 operator: "Where is he going?"; Ms. Doe: "He's right down the hall, he's going to the bedroom." 911 operator: "What's he doing now?" Ms. Doe: "He's putting on his pants." The phone call itself lasts nearly five minutes, with no suggestion that an assault and battery is ongoing during the course of the call. While there is arguing between Ms. Doe and Mr. Doe, Ms. Doe appears to be either the instigator or an able participant in the arguments, and the 911 operator even had to tell Ms. Doe to stop arguing with Mr. Doe. Further, the phone call contains no information about how recent the alleged assault and battery is, and it is possible that the alleged act about which Ms. Doe comments happened hours earlier. Because there is no indication of the lapse of time between the event and the phone call, the contemporaneity requirement is not met, and the tape recordings are thus not present sense impressions.
Additionally, if Ms. Doe does not testify, there is no foundation for the tape's admissibility because there is insufficient corroboration to prove that the underlying event occurred. People v Hendrickson, 459 Mich 229, 237-238 (1998). Because the only evidence the state can provide that Mr. Doe committed the assault and battery are Ms. Doe's hearsay statements, either to the 911 operator or to the arresting officers, there is no corroboration to permit the admission of her statements. The statements themselves cannot lay the foundation for the underlying event. The state must have other proof, either direct or circumstantial, that the underlying event, here the alleged assault and battery, took place. Id. There are no photographs of Ms. Doe's injuries and there are no other witnesses. The arresting officers did not observe any injuries on Ms. Doe. (See Exhibit A, Incident Report). The only evidence of the underlying event is Ms. Doe's hearsay statements. In fact, Ms. Doe's statements to the 911 operator that she was cut with glass by Mr. Doe, that he had a gun, and that she needed medical treatment were all contradicted by the evidence at the scene. The arresting officers noted that Ms. Doe had no visible injuries, there is no reference to recovery of or sight of any weapons, and Ms. Doe received no medical treatment. Not only are the statements uncorroborated, but they are contradicted by the physical evidence and police reports. (See Exhibit A.) The statements must be excluded because they do not meet the requirements of a present sense impression.
Ms. Doe's statements are not excited utterances as defined by MRE 803(2) because, again, there is no independent evidence of an underlying startling event. As with present sense impressions, for statements to qualify as excited utterances there must be independent corroboration of the underlying event. People v Burton, 433 Mich 268, 294 (1989). For the reasons above, the statements must be excluded as excited utterances because there is no independent evidence (beyond the hearsay statements themselves) that the alleged underlying event occurred.
Further, because nearly all of Ms. Doe's comments on the 911 phone call are responses to questions asked of her by the 911 operator, her comments significantly lack the spontaneity required to qualify as excited utterances. Holtz v LJ Beal & Son, Inc, 339 Mich 235, 240 (1954) [the fact that a statement sought to be offered as an excited utterance follows a question is "a factor entitled to consideration, especially where it appears that the claimed exception to the hearsay rule was in fact a deliberate and considered answer to such question;"] People v Petrella, 124 Mich App 745, 760 (1983) [fact that statement is made in response to a specific question militates against admission of statement as an excited utterance]. Ms. Doe's comments to the 911 operator were almost all in response to specific questions she was asked (for example, the conversation begins: 911 operator: "Did he assault you?," Ms. Doe: "yes," 911 operator: "do you need treatment," Ms. Doe: "yes," 911 operator: "does he have a weapon?," Ms. Doe: "yes, he has a gun," 911 operator: "where is he now?," Ms. Doe: "he's on the couch.") Ms. Doe's comments are deliberate and thoughtful responses to specific questions and they lack spontaneity. Consequently, they do not meet the requirements of MRE 803(2).
There is an additional risk that introduction of the tape recording during trial will violate Mr. Doe's right to confront his accuser, should Ms. Doe not testify at trial, thereby denying Mr. Doe his right to fully cross-examine her. US Const Am VI, Const 1963, art 1, § 20. Ms. Doe's comments on the tape recording demand cross-examination on the content of her statements, her bias, and her credibility. For example, Ms. Doe states that Mr. Doe injured her with broken glass, but she had no visible injuries; Ms. Doe stated that Mr. Doe had a gun, but no gun was recovered from the scene. On the tape Mr. Doe tells Ms. Doe that he will not help her anymore, a powerful incentive for Ms. Doe to retaliate given her long history of drug use and distribution. Ms. Doe faces her own domestic violence case later this month for a violent attack with a gun committed against Mr. Doe on August 1, 1999, a powerful motivation for falsely accusing Mr. Doe of assaulting her. Finally, according to her arrest report from the August 1, 1999 assault on Mr. Doe, Ms. Doe is addicted to prescription medicines, including Vicodin, a drug that may cause mental clouding, impairment of mental performance, fear, psychic dependence and mood changes. (See Exhibit B, Physicians Desk Reference, 1999.) The admission of this tape without the opportunity to cross-examine Ms. Doe would offend Mr. Doe's right to confront his accuser under the state and federal constitutions.
Further, the tape recording should be excluded because it is not relevant according to MRE 401. The tape recording of Ms. Doe's call to a 911 operator has no bearing on whether or not Mr. Doe committed the alleged assault and battery, and thus it is not relevant as proof of the crimes of assault and battery according to MRE 401, and should be excluded according to MRE 402.
The tape recording of Ms. Doe's call contains brief allegations by Ms. Doe followed by an extended
conversation between Ms. Doe and the 911 operator, full of false allegations by Ms. Doe in response to the operator's
questions, thus making it no more likely that Mr. Doe did or did not commit the alleged assault and battery. The
allegations that Ms. Doe makes to the 911 operator are uncorroborated by the physical evidence and the findings of the
responding officers. Ms. Doe claimed she was cut with broken glass, that Mr. Doe had a gun, and that Mr. Doe was
going to kill her. In fact, Ms. Doe had no visible injuries, no cuts, no lacerations and no bleeding; the responding
officers found no gun, and no other weapons; and Mr. Doe was arrested only for assault and battery, he was never
charged with making threats against 
or anyone else. The contents of the tape recording shed no light on the
determination of whether Mr. Doe committed the only act he is charged with, kicking Ms. Doe as she was on the couch,
and should be excluded according to MRE 401.
Given the nature of an emergency phone call, with the voice of a concerned 911 operator and comments by the complaining witness supposedly at or near the time of the alleged assault and battery, the tape recording is likely to elicit an emotional response from the jurors that is unconnected to the factual determination of whether Mr. Doe committed the alleged acts. Introduction of the tape recording during trial would prejudice Mr. Doe far more than it would assist the jurors in making the only determination they are asked to make, whether Mr. Doe kicked Ms. Doe on the couch on September 1, 1999. Thus, the tape should be excluded according to MRE 403 because its probative value is far outweighed by the danger of unfair prejudice to Mr. Doe.
Mr. Doe therefore asks that this Court preclude the introduction into evidence the contents of a phone call made by Jane Doe, the complaining witness, to a 911 operator on the night of September 1, 1999.
Respectfully submitted,
___________________
Attorney for Defendant
20.2.c Motion to Preclude Cross-Examination of Defendant as to Prior Convictions or Bad Acts [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiffs,
vs No. 
Hon. 
,
Defendant.
/
The Defendant, 
, by 
counsel, moves this Court to preclude any cross-examination of 
pertaining to 
criminal record for the following reasons:
1. On 
, 
was arrested for and charged with 
.
2. 
has 
prior criminal convictions.
3. 
convictions consist of 
4. None of these crimes contained an element of dishonesty or false statement. MRE 609(a)(1).
5. Although one of these convictions contains an element of theft, and it was punishable by imprisonment of
more than one year, this conviction, from 
, is so remote in time and so unrelated to the current charge
as to reduce its probative value to nothing. MRE 609(a)(2)(A), (b).
6. The prejudicial impact on the jury, however, would be significant.
7. 
does contain an element of dishonesty, but was not punishable by imprisonment of up to
one year and is thus inadmissable. MRE 609(a)(2).
8. Approximately 
have passed since 
last conviction, rendering the use of the
convictions inadmissible under MRE 608(c).
For these reasons, 
respectfully moves that this Court enter an order barring the
prosecution from cross-examining 
with 
criminal convictions, or making reference to 
criminal record at any point during the trial.
Respectfully submitted,
__________________________________
Attorney for Defendant
20.2.d. Motion to Cross-Examine Prosecution Witness as to Prior Bad Acts [Download: WP | Word | PDF]
COURT FOR THE 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiffs,
vs No. 
Hon. 
John Doe,
Defendant.
/
The Defendant, John Doe, by his counsel, moves this Court for an order permitting cross-examination of the complaining witness, Ms. Doe, with her prior criminal convictions and the facts of her pending domestic violence case, or, in the event she does not testify, permitting proof of her criminal history by other means. In support of this motion, Mr. Doe states as follows:
1. On September 1, 1999, Mr. John Doe was arrested for and charged with assault and battery.
2. The complaining witness in the case is Mr. Doe's ex-wife, Jane Doe.
3. The Prosecutor has indicated that she intends to call Ms. Doe as a witness.
4. Ms. Doe has an extensive criminal history. See Exhibit A, attached.
5. In 1990, she was arrested for two counts of selling dangerous drugs and convicted of two counts of selling cocaine.
6. In 1995, she was charged with felony larceny and was convicted of misdemeanor larceny.
7. In 1997, she was charged with retail fraud and was convicted of receiving and concealing stolen property.
8. In 1998, Ms. Doe was charged with domestic assault, for kicking and punching Mr. Doe and punching a file cabinet, pushing over a television and a VCR. See Incident Report, Exhibit B attached.
9. Ms. Doe's criminal convictions may be used pursuant to MRE 404(b).
10. Ms. Doe's prior convictions for receiving and concealing stolen property in 1997 and larceny in 1995 contain elements of dishonesty and false statement. MRE 609(a)(1).
11. Ms. Doe's convictions for drug sales are extremely probative in this case, since Ms. Doe's addiction to drugs is an ongoing issue in the relationship between Mr. Doe and Ms. Doe.(1) Ms. Doe's admitted drug addiction is relevant to her credibility.
12. Ms. Doe's description of the alleged assault and battery by Mr. Doe, both in court and to the police, should be weighed with the added information that she was under the influence of drugs when she called the police.
13. It is an essential element of defendant's defense that he did not in fact assault Ms. Doe, but that her dependency on drugs clouded her judgment and undermines her credibility as a witness. People v Atkins, 397 Mich 163 (1976).
14. Ms. Doe's reputation for having a drug addiction is admissible under MRE 405(a). Moreover, the specific instance of Ms. Doe's overdose on Fernal III pills (Police Report #5678, August 15, 1999, attached) is admissible under MRE 405(b).
15. Ms. Doe's convictions for selling drugs are also admissible as proof of specific instances of her conduct and dependency on drugs. MRE 405(b).
16. The Court should allow evidence of Ms. Doe's criminal history because that history and her pending charges make it more likely that she has fabricated these charges to deflect attention from her own case by making the victim of her assault the perpetrator.
17. Ms. Doe's pending charges also make it more likely that she has fabricated this charge to give herself some leverage over Mr. Doe, who is the complaining witness in her trial for domestic assault. These convictions are therefore admissible under MRE 404(b).
18. The facts of the open domestic violence case against Ms. Doe, charging her with physically assaulting Mr. Doe multiple times, should be admissible on cross-examination or otherwise introduced as evidence because it shows Ms. Doe's motive to lie. MRE 404(b)(2); People v Whitty, 96 Mich App 403 (1980). Davis v Alaska, 415 US 308 (1974).
19. Finally, the open domestic violence case against Ms. Doe is probative of Mr. Doe's lack of intent to assault Ms. Doe. In that case, according to the police report, Mr. Doe did not fight back when Ms. Doe assaulted him multiple times. This makes it more likely that Mr. Doe did not intend to assault Ms. Doe in the instant case.
For the foregoing reasons, John Doe requests that this Court enter an order allowing him to cross-examine Ms. Doe regarding her criminal history and pending criminal charge.
Respectfully submitted,
Attorney for Defendant
20.3.a Motion to Preclude the Introduction of Privileged Evidence [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant,
__________________________________/
The Defendant, 
, by 
attorney, moves this Court to order the prosecution not
to elicit directly or by inference any testimony which is privileged, pursuant to MRE 501 and the following:
1. The prosecution intends to introduce evidence of 
.
2. This evidence is inadmissible due to the attorney/client privilege. MCL 767.5a(2); MSA 28.945(1).
3. This evidence is inadmissible because of the privilege between members of the clergy and members of their respective churches. MCL 767.5a(2); MSA 28.945(2).
4. This evidence is inadmissible because of the physician/patient privilege. MCL 767.5a; MSA 28.945(1); (2); MCL 600.2157; MSA 27A.2157.
5. This evidence is inadmissible because of the reporter privilege and there is no reason to believe that the exception for "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted" exists in this case. MCL 767.5a(1); MSA 28.945(1).
6. This evidence is inadmissible because of the husband/wife privilege. MCL 600.2162; MSA 27A.2162.
7. Because 
has not waived the 
the prosecution must be prohibited
from introducing 
For these reasons, 
requests that 
motion be granted and that the prosecution
be directed not to elicit or refer to in any way 
Respectfully submitted,
__________________________
Attorney for Defendant
1. 1 Mr. Doe has stated that Ms. Doe has an addiction to pills (Police Report #1234, September 1, 1999). Ms. Doe herself stated that she is addicted to pills, specifically Vicodin (Police Report #1234, Narrative Report, Suspect's Statement) upon her arrest. Vicodin is a narcotic that has side effects of anxiety, decreased mental and physical performance, exaggerated feeling of depression, fear, mental clouding, and mood changes. Physicians' Desk Reference Generics, Fourth Edition, 1998, p. 21-22.