Old Chief: The solution you didn’t know you needed in aggravated stalking cases

Criminal Defense Newsletter | August 2026

We all know the holding of Old Chief 1 even if we have forgotten from where that holding came from. Old Chief is why we stipulate that our client has a conviction for a felony in every case with a charge of possession of a firearm by a felon. It is time to apply the Old Chief logic to personal protection orders (PPOs) when clients are charged with aggravated stalking.

Stalking, in simple terms, requires that a person harass another on more than one occasion.2 Stalking becomes aggravated if, among other options, “[a]t least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice of that restraining order.”3 The prosecution generally proves this attendant circumstance by introducing a certified copy of a PPO.

Unfortunately, PPOs have more information in them than is relevant to this element. In fact, PPOs are conveniently structured in two sections.4 The first section contains the trial court’s factual findings in support of granting the PPO. The second section prohibits the respondent from engaging in certain actions. The prosecution is clearly entitled to introduce the second section. It’s time to stop letting them introduce the first section.

Relevance

The fundamental legal basis to exclude the factual findings in a PPO is that they are not relevant, and irrelevant evidence is never admissible.5 The prosecution is generally entitled to introduce any evidence that is relevant, i.e., probative of a fact that is of consequence to the charges.6  Since the violation of a restraining order is an element of aggravated stalking, the conduct prohibited by the PPO is of consequence to that charge, and the second section of a PPO is certainly probative of that fact. But the factual findings made by the court when it granted the PPO are not probative of the conduct prohibited by the PPO. Accordingly, the findings are not relevant for this purpose.

Prior acts

Although the findings are not probative of the conduct prohibited by the PPO, a court’s finding that the defendant previously engaged in conduct constituting stalking or engaged in conduct harmful to the complainant does make it more likely that the defendant again engaged in such conduct. This is, of course, a propensity inference subject to MRE 404(b). Thus, unless the prosecution can offer a non-propensity purpose for admitting the factual findings, they are subject to exclusion under MRE 404(b).

Hearsay, confrontation, judicial testimony, unfair prejudice

Even if the prosecution has a non-propensity purpose for admitting the factual findings or assertions within the first section of a PPO, it cannot do so through the PPO for several related reasons. First, a finding of fact is hearsay—it’s an out-of-court statement made for the truth of the matter asserted.7 Second, since it does not get much more solemn than a judge’s factual findings that are required to authorize a restraint on liberty, these statements likely implicate the Confrontation Clause and would require cross-examination of the issuing judge.8 

In counties with only one or two circuit court judges, the judge issuing the PPO may also be presiding over the aggravated stalking trial. This would then run into MRE 605 and the prohibition on a presiding judge testifying as a witness at trial. Just like hearsay can be “testimonial” under the Confrontation Clause,9 hearsay from a judge would make the judge a testifying witness at trial.

Third, the factual findings are unfairly prejudicial and inadmissible under MRE 403. MRE 403 permits excluding relevant evidence if “there is a danger that the evidence will be given undue or preemptive weight by the jury.”10   This is a core concern behind the prohibition on propensity evidence, and it is arguably a greater concern here. If the jury sees the first section of a PPO, they will see that the judge who issued the PPO found the complainant’s allegations to be credible and that there was a reasonable probability the defendant would continue to threaten, harass, or pose some other risk to the complainant.11   Jurors look to judges for guidance. Just like a prosecutor’s closing argument vouching for the credibility of a witness is prejudicial because it encourages the jury to rely on the prestige of the prosecutor’s office, encouraging jurors to rely on the findings of a judge creates a significant probability that the jury will place undue weight on this evidence.12 This is especially true if the issuing judge is also the judge presiding at trial.

Moreover, if the evidence does not run afoul of MRE 404(b), the prosecution can introduce it without the harmful effect of coming from a judge through the complainant. The complainant can presumably testify about the prior acts that led to the PPO being issued.13 This would avoid the unfair prejudice while likely being more probative for the prosecution’s purpose than the court’s generalized findings.

The solution

Old Chief provides the best solution to this problem: stipulate that there was a valid PPO and to the conduct prohibited by that PPO. Old Chief precludes the prosecution from admitting the name of a prior felony conviction because it has minimal probative value to the material fact of whether there was a prior felony conviction. Similarly, it would be error to admit the reasons for a PPO when all that is material is the conduct that is prohibited. All the reasons provided by the Supreme Court for this rule in Old Chief apply at least as equally in this circumstance.14 Alternatively, move to exclude the findings (and issuing judge’s identity, if the same judge is presiding at trial) by having them redacted from the PPO.

The factual findings within a PPO that are admitted to support a charge of aggravated stalking tells the jury that a judge previously found this defendant to be a danger to the very same person alleged to be the victim of the charge. We need to stop letting the prosecution present this extremely harmful evidence to the jury.

Endnotes
1 Old Chief v United States, 519 US 172 (1997).
2 MCL 750.411h(1)(e).
3 MCL 750.411i(2)(a).
4 To see an example, check out the form orders published by the State Court Administrative Office for domestic relationship PPOs and nondomestic relationship PPOs.
5 MRE 402.
6 People v Boshell, 337 Mich App 322, 331 (2021).
7 A PPO is not a public record under that exception to the rule against hearsay at MRE 803(8). This exception is limited to records that report “objective data observed and reported by these officials.” Bradbury v Ford Motor Co, 419 Mich 550, 554 (1984). Unlike the corresponding rule under the federal rules of evidence, the exception does not permit admission of “factual findings resulting from an investigation made pursuant to authority granted by law.” Id. (quotation marks and citation omitted). 
8 People v Nunley, 491 Mich 686, 698 (2012) (discussing the definition of a testimonial statement).
9 Id.
10 People v Blackston, 481 Mich 451, 462 (2008).
11 MCL 600.2950(4); SCAO Form CC 380, Rev. 8/25 ¶ 4.
12 See People v Bahoda, 448 Mich 262, 277 n 26 (1995) (discussing prosecutorial vouching).
13 Blackston, 481 Mich at 462 (considering “whether the fact can be proved in another manner without as many harmful collateral effects”).
14 Old Chief, 519 US at 185-191.

Drew O. Walbeck
Wolf Law PLLC

Drew Walbeck is a MAACS roster attorney with a practice exclusively in criminal appeals, postconviction motions for relief from judgment, and the occasional federal habeas petition. Drew has lectured on challenging the presentence report and participated in panel discussions of motions for relief from judgment. Drew leverages his prior experience as a research attorney with the Michigan Court of Appeals to craft briefs that make it more difficult for the judges and their staff to decide against him. Drew is always happy to discuss all things criminal law, but he especially enjoys strategizing the downfall of SORA.