____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

____________________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 17, 2001
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v No. 116315
 

NETO ALAN LAYHER,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

WEAVER, J.
 

Defendant appeals the judgment of the Court of Appeals
 

affirming his conviction for one count of first-degree
 

criminal sexual conduct, MCL 750.520b(1)(b)(ii), and two
 

counts of second-degree criminal sexual conduct, MCL
 

750.520c(1)(b)(ii).1 We granted leave limited to whether the
 

1The trial court sentenced defendant to twenty to forty


years imprisonment for the first-degree CSC conviction and to


concurrent terms of eight to fifteen years imprisonment for


each second-degree CSC conviction.
 
trial court erred so as to require reversal in allowing the
 

prosecutor to cross-examine a defense witness concerning a
 

prior charge for which he was acquitted. 


We conclude that the overly broad holding of People v
 

Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), which states
 

“no inquiry may be made regarding prior arrests or charges
 

against” a witness that did not result in a conviction, is
 

inconsistent with precedent and with the approach to the
 

admission of evidence that we have followed since the adoption
 

of the Michigan Rules of Evidence.2 We hold, consistent with
 

existing precedent and the Michigan Rules of Evidence, that a
 

trial court may allow inquiry into prior arrests or charges
 

for the purpose of establishing witness bias where, in its
 

sound discretion, the trial court determines that the
 

admission of evidence is consistent with the safeguards of the
 

Michigan Rules of Evidence.
 

We conclude that evidence of the witness’ prior arrest
 

without conviction to show the witness’ bias was admissible
 

under MRE 402 and MRE 403. The judgment of the Court of
 

Appeals is affirmed and the defendant’s conviction is upheld.
 

I
 

Defendant, Neto Layher, was convicted by jury over his
 

general denial of three counts of criminal sexual conduct
 

2The Michigan Rules of Evidence were adopted by this


Court on January 5, 1978. 402 Mich lxxxviii.
 

2
 
involving his minor niece, the complainant. During trial, all
 

witnesses were sequestered.
 

In the summer of 1996, complainant was fifteen and
 

staying with her grandmother, defendant’s mother.
 

Complainant, who is mentally slow, testified at trial that
 

three incidents occurred sometime before July 5, 1996. During
 

the first incident, defendant rubbed complainant’s breasts and
 

genitals, first over and then under her clothes, while she was
 

sleeping in her grandmother’s bedroom. Complainant testified
 

that she did not tell anyone because she was scared. The
 

second incident happened when she was sleeping on the floor in
 

her grandmother’s room while her grandmother and complainant’s
 

sibling slept in the bed nearby. Defendant woke her by
 

touching her over her clothes in the same manner as before.
 

He left the room and then returned again, this time touching
 

her under her clothes as before. Defendant asked her if she
 

would tell. Again, she testified that she said she would not
 

because she was scared. The third incident occurred when
 

complainant was lying on her grandmother’s bed. No one else
 

was in the room. She testified that defendant gave her five
 

dollars because she was not going to tell and then took the
 

money back. Defendant again began rubbing complainant under
 

her clothes. During this incident, complainant testified that
 

defendant penetrated her vagina with his finger.
 

3
 
Complainant and her siblings had, throughout their lives,
 

been moved from the home of one family member to the next. As
 

a result, none of the witnesses were able to testify with
 

specificity regarding when the children were at one home or
 

another. For example, complainant’s grandmother testified
 

that the children were not with her at the beginning of the
 

summer of 1996, but, rather, were with her at the end of the
 

summer. The grandmother’s testimony was inconsistent with
 

that of all the other witnesses.
 

Sometime after the incidents described above, complainant
 

and her two siblings went to live with Karen Byrd, the
 

girlfriend of another uncle. Complainant and Ms. Byrd
 

testified that complainant told Ms. Byrd of the incidents.
 

Ms. Byrd then contacted the authorities. Soon after the
 

authorities became involved, complainant and her siblings were
 

moved from Ms. Byrd’s home to the home of Christine (Layher)
 

Walton, an aunt. 


While the children were staying with Ms. Walton, Robert
 

(Bob) Ganger, who was working for defense counsel, was sent by
 

defense counsel to investigate the case. Mr. Ganger testified
 

that he was sent in response to a call defense counsel
 

received saying that Ms. Walton and complainant wanted to talk
 

to an attorney. It was not specified who made that call.
 

Mr. Ganger first visited with Ms. Walton and then with Ms.
 

Walton and complainant on two additional visits. Mr. Ganger
 

4
 
became the lead defense witness as a result of these
 

conversations. 


As a result of the conflict in testimony between Mr.
 

Ganger and complainant, the prosecution sought to introduce
 

the fact that Mr. Ganger had been tried and acquitted on the
 

charge of criminal sexual conduct involving a child under the
 

age of thirteen. The prosecution reasoned:
 

My position is that is certainly relevant in


this case to show bias. Bias is very important for


the jury to hear. And this particular


charge . . . is necessary for the jury to hear


about because of this particular case and the fact


that Neto Layher is charged with a criminal sexual


conduct.
 

I certainly think that that shows bias that


he’s going to try to assist another person who has


been charged with the same thing he’s been charged


with, and obviously I would believe he would think


wrongly accused of.
 

The trial court allowed the cross-examination to proceed. The
 

Court of Appeals affirmed3

 the trial court’s ruling on this
 

evidentiary matter. We granted leave to appeal, limited to
 

whether the trial court abused its discretion by allowing
 

introduction of this evidence of Mr. Ganger’s prior arrest and
 

acquittal.
 

II
 

A
 

We review evidentiary decisions for abuse of discretion.
 

3

238 Mich App 573; 607 NW2d 91 (1999).
 

5 
 

People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998); People
 

v Bahoda; 448 Mich 261, 289; 531 NW2d 659 (1995). The trial
 

court’s decision on close evidentiary questions cannot “by
 

definition” be an abuse of discretion. People v Golochowicz,
 

413 Mich 298, 322; 319 NW2d 518 (1982). However, where
 

decisions regarding the admission of evidence involve
 

preliminary questions of law such as whether a rule of
 

evidence or statute precludes admissibility, our review is de
 

novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607
 

(1999).
 

Logical relevance is the foundation for admissibility.
 

People v VanderVliet, 444 Mich 52, 60; 508 NW2d 114 (1993).
 

Logical relevance is defined by MRE 402 and MRE 401. MRE 402
 

provides:
 

All relevant evidence is admissible, except as


otherwise provided by the Constitution of the


United States, the Constitution of the State of


Michigan, these rules, or other rules adopted by


the Supreme Court. Evidence which is not relevant
 

is not admissible.
 

As defined by MRE 401, “relevant evidence” is evidence that
 

has “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.” 


B
 

The prosecutor introduced evidence of Mr. Ganger’s past
 

arrest and acquittal of criminal sexual conduct involving a
 

6
 
child less than thirteen to create an inference of bias on the
 

part of Mr. Ganger in favor of defendant. Bias is a commonlaw evidentiary term used “to describe the relationship
 

between a party and a witness . . . in favor of or against a
 

party. Bias may be induced by a witness’ like, dislike, or
 

fear of a party, or by the witness’ self-interest.” United
 

States v Abel, 469 US 45, 52; 105 S Ct 465; 83 L Ed 2d 450
 

(1984). 


In Abel, the United States Supreme Court addressed the
 

issue of bias in the context of the Federal Rules of Evidence
 

(on which the MRE are modeled). The defendant and a defense
 

witness in that case belonged to the Aryan Brotherhood, a
 

secret prison gang that encouraged members to commit perjury,
 

theft, and murder to protect each other. The Abel Court
 

concluded that evidence showing a witness’ membership in the
 

gang was sufficiently probative of bias to warrant its
 

admission. The Court first noted that the FRE govern the
 

admissibility of such evidence, but that, while the rules
 

address impeachment of a witness by character evidence and
 

conduct (FRE 608), by evidence of a criminal conviction (FRE
 

609), and by showing of religious beliefs or opinion (FRE
 

610), they do not expressly address impeachment for bias. Id.
 

at 49. The Court concluded that possible bias of a witness is
 

a permissible basis of impeachment under the FRE despite the
 

omission of any express treatment of impeachment for bias.
 

7
 
After reiterating the nature and admissibility of relevant
 

evidence under FRE 401 and FRE 402, the Court stated at p 51:
 

A successful showing of bias on the part of a


witness would have a tendency to make the facts to


which he testified less probable in the eyes of the


jury than it would be without such testimony.
 

* * *
 

We think the lesson to be drawn from all of
 

this is that it is permissible to impeach a witness


by showing his bias under the Federal Rules of


Evidence just as it was permissible to do so before


their adoption. . . .
 

The Court explained the meaning of “bias” as follows:
 

Bias is a term used in the “common law of
 

evidence” to describe the relationship between a


party and a witness which might lead the witness to


slant, unconsciously or otherwise, his testimony in


favor of or against a party. Bias may be induced


by a witness’ like, dislike, or fear of a party, or


by the witness’ self-interest. Proof of bias is
 

almost always relevant because the jury, as finder


of fact and weigher of credibility, has
 

historically been entitled to assess all evidence


which might bear on the accuracy and truth of a


witness’ testimony. [Id. at 52.]
 

Addressing first the relevance inquiry of FRE 401, the
 

Court concluded that evidence of the defendant’s and defense
 

witness’ membership in the Aryan Brotherhood “supported the
 

inference that [the witness’] testimony was slanted or perhaps
 

fabricated in [the defendant’s] favor. A witness’ and a
 

party’s common membership in an organization, even without
 

proof that the witness or party has personally adopted its
 

tenets, is certainly probative of bias.” Id. Having found
 

the evidence relevant, the Court then addressed whether the
 

8
 
prejudicial effect of this evidence substantially outweighed
 

its probative value under FRE 403. The Court noted that the
 

trial court had taken reasonable precautions (not permitting
 

the impeachment witness to mention the gang by name, and
 

giving a limiting instruction concerning the use of the
 

testimony) and concluded that these precautions ensured that
 

“the admission of this highly probative evidence did not
 

unduly prejudice the respondent.” Id. at 55. The Court
 

accordingly found no abuse of discretion in the trial court’s
 

decision to admit the impeaching testimony.
 

We agree with the Abel Court that evidence of bias is
 

“almost always relevant.” We have consistently reaffirmed our
 

observation in People v MacCullough, 281 Mich 15, 26; 274 NW
 

693 (1937), that “The interest or bias of a witness has never
 

been regarded as irrelevant.” Indeed, as we note below, MRE
 

611(b) states that “[a] witness may be cross-examined on any
 

matter relevant to any issue in the case, including
 

credibility.” 


C
 

Regarding the admissibility of evidence concerning Mr.
 

Ganger’s prior arrest and acquittal, the trial court reasoned:
 

This is cross-examination. The Prosecutor is
 

entitled to elicit information to support any claim


that she may have that he’s biased. She certainly


could argue on the one hand that the witness would


be biased because he is employed, I would assume,


by you and your client. She could also and
 

apparently seeks to do so, argue that as a result
 

9
 
 

of him being accused and acquitted of a crime which


he claims he did not do of a very similar nature,


that he is therefore biased in the Defendant’s
 

favor and presumably would color his testimony to


help the Defendant, another person who he may


believe would also be wrongly accused of the same


crime.
 

We agree with the trial court that the evidence of Mr.
 

Ganger’s prior arrest and acquittal is logically relevant
 

under MRE 401. As noted in Abel, supra at 52, “[p]roof of
 

bias is almost always relevant because the jury, as finder of
 

fact and weigher of credibility, has historically been
 

entitled to assess all evidence that might bear on the
 

accuracy and truth of a witness’ testimony.” Further, the
 

trial court has wide discretion regarding admissibility of
 

bias during cross-examination under MRE 611.4 Wischmeyer v
 

Shanz, 449 Mich 469, 475; 536 NW2d 760 (1995). Mr. Ganger’s
 

prior arrest for, and acquittal of, a charge involving the
 

sexual abuse of a child supports the inference that Mr. Ganger
 

would color his testimony in favor of defendant. 


Nevertheless, logically relevant evidence may be excluded
 

as “otherwise provided by the Constitution of the United
 

States, the Constitution of the State of Michigan, these
 

4

MRE 611 provides in pertinent part:
 

(b) Scope of cross-examination. A witness may


be cross-examined on any matter relevant to any


issue in the case, including credibility. The
 

judge may limit cross-examination with respect to


matters not testified to on direct examination.
 

10
 
rules, or other rules adopted by the Supreme Court.” MRE
 

402.5 We must therefore consider whether, despite its logical
 

relevance, the evidence of Mr. Ganger’s prior arrest and
 

acquittal should have been excluded.
 

III 


On appeal, defendant argues that the evidence should be
 

excluded pursuant to the “rule” of People v Falkner, as well
 

as by analysis under MRE 403 and MRE 609. 


A
 

First, Defendant argues that the admission of a witness’
 

prior arrest without conviction violates the holding in
 

Falkner. In 1973, Falkner held that
 

in the examination or cross-examination of any


witness, no inquiry may be made regarding prior


arrests or charges against such witness which did


not result in conviction . . . . [Id. at 695.][6]
 

5As to whether Falkner is a “rule adopted by the Supreme


Court” within the meaning of MRE 402, we need not decide, in


the context of this case, whether that phrase applies to


evidentiary “rules” established by decisions of this Court


that predate the adoption of the MRE. As the United States
 

Supreme Court in Abel assumed that the “rule” concerning


impeachment for bias existed before the adoption of the FRE


and continued to exist thereafter, we assume, for the purposes


of this case, that the Falkner “rule” similarly continued to


exist after the adoption of the MRE. Abel, supra at 51-52.
 

6People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973),


relied on Falkner to hold the impeachment of a criminal


defendant with evidence that he was previously charged with


the same offense for which he stood trial warranted a new
 

trial. Rappuhn stated that Falkner “speaks to the impeachment


of any witness by use of an arrest record.” Rappuhn at 271.
 

In People v Sanders, 394 Mich 439, 440; 231 NW2d 639 (1975),


this Court characterized Falkner as prohibiting the
 

11
 
 

This Court has not addressed whether Falkner precludes the use
 

of evidence of a prior arrest or charge without conviction
 

where offered for the purpose of showing witness bias. 


The Court of Appeals acknowledged that Falkner’s holding
 

was “phrased broadly,” but created an exception that would
 

allow evidence of a prior arrest that did not result in a
 

conviction where it “is not used to directly impeach the
 

witness but to bring out the witness’ bias or interest in the
 

outcome of the case.” 238 Mich App at 578, quoting People v
 

Hogan, 105 Mich App 473, 483; 307 NW2d 72 (1981). The panel
 

relied on Court of Appeals cases that it characterized as
 

limiting Falkner’s prohibition of the use of prior arrests for
 

the purpose of impeaching a witness’ credibility generally.
 

Hogan, supra, and People v Bostic, 110 Mich App 747; 313 NW2d
 

98 (1981). 


Falkner speaks generally about the impeachment and
 

discrediting of witnesses by use of prior arrests.7 However,
 

as we have observed above, Falkner did not address the wellimpeachment of a witness’ credibility “by reference to an


arrest which does not result in conviction.” 


7Specifically, Falkner dealt with the impeachment of two
 

defense alibi witnesses with evidence of their prior


convictions for receiving stolen property. In the course of
 

conducting this proper impeachment, the prosecutor also


questioned the witnesses, without objection from the
 

defendant, regarding the fact that these convictions
 

represented reductions from the charged offense of unarmed


robbery. 389 Mich 686-687.
 

12
 
established authority holding that cross-examination of a
 

witness regarding bias is “always relevant.” MacCullough,
 

supra. Because Falkner’s holding did not exclude impeachment
 

regarding a witness’ bias, we conclude that an express
 

limitation of Falkner is warranted and reasonable. As
 

explained in Davis v Alaska, 415 US 308, 316; 94 S Ct 1105; 39
 

L Ed 2d 347 (1974), quoting 3A Wigmore, Evidence (Chadbourn
 

rev), § 940, p 775:
 

A more particular attack on the witness’


credibility is effected by means of crossexamination directed toward revealing possible


biases, prejudices, or ulterior motives of the


witness as they may relate directly to issues or


personalities in the case at hand. The partiality


of a witness is “always relevant as discrediting


the witness and affecting the weight of his
 

testimony.” 


Falkner’s arguably absolute prohibition of the introduction of
 

prior arrests without conviction conflicts with this Court’s
 

traditionally liberal view of cross-examination regarding
 

witness bias. Wilson v Stilwill, 411 Mich 587, 599; 309 NW2d
 

898 (1981)(“There is ‘a general canon that on crossexamination the range of evidence that may be elicited for any
 

purpose of discrediting is to be very liberal,’” quoting 3A
 

Wigmore, Evidence (Chadbourn rev), § 944, p 778 (emphasis in
 

original); Hayes v Coleman, 338 Mich 371, 381; 61 NW2d 634
 

(1953)(“It is always permissible upon the cross-examination of
 

an adverse witness to draw from him any fact or circumstance
 

13
 
that may tend to show his relations with, feelings toward,
 

bias or prejudice for or against, either party, or that may
 

disclose a motive to injure the one party or to befriend or
 

favor the other”). 


A proponent’s attempt to discredit a witness’ testimony
 

by showing that the witness may be biased in favor of, or
 

against, a party or witness, is highly relevant, particularly
 

in cases like the present, where that witness is effectively
 

the sole source of evidence that contradicts the accuser.
 

Denying the factfinder this type of evidence undermines the
 

truth-seeking process. 


We therefore hold that evidence of bias arising from past
 

arrest without conviction is admissible if relevant, as long
 

as its probative value is not substantially outweighed by the
 

danger of unfair prejudice. MRE 403. Because prejudicial
 

inferences may also be drawn from evidence of past arrests,
 

“we instruct the bench and bar to employ the evidentiary
 

safeguards already present” in the Michigan Rules of Evidence
 

in determining the admissibility of a past arrest that did not
 

result in conviction. VanderVliet, supra at 74.
 

B
 

We next apply this holding to the case before us. In
 

doing so we address the defendant’s argument that the
 

admission of the evidence violated MRE 403. MRE 403 provides:
 

14
 
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.
 

Mr. Ganger’s testimony on direct examination about his
 

conversations with complainant and her aunt, Ms. Walton,
 

contradicted the complainant’s, and was offered by the defense
 

to discredit complainant’s accusations. Most significantly,
 

Mr. Ganger testified that the complainant told him that the
 

defendant had not sexually assaulted her and that she had been
 

threatened by the prosecution with perjury if she refused to
 

testify. 


As a result of these and other contradictions, the
 

prosecutor offered and was allowed by the trial court to
 

pursue the following line of questioning on cross-examination
 

of Mr. Ganger to impeach him:
 

Q. Mr. Ganger, isn’t it true that in 1992 you


were charged with criminal sexual conduct first


degree against a child under the age of 13?
 

A. Yes, I was.
 

Q. And you were tried for that, correct?
 

A. Yes, I was.
 

Q. And you were acquitted, is that correct?
 

A. Yes, I was.
 

Q. And you were aware when you went to speak


to Olivia and Christine that Mr. Layher was charged


with criminal sexual conduct in the first degree?
 

15
 
The prosecution’s stated purpose for the admission of this
 

evidence was to establish bias that may have affected both Mr.
 

Ganger’s manner of investigating the case and his testimony at
 

trial. 


The defendant contends that evidence of Mr. Granger’s
 

prior arrest and acquittal on charges of criminal sexual
 

conduct against a child had “nothing to do” with the case
 

against defendant. We disagree. Mr. Ganger, like defendant,
 

denied that he was guilty of the charges. Conceivably, being
 

wrongly accused of the same charge pending against defendant,
 

Mr. Ganger would perhaps be overly vigilant in researching the
 

case and consciously or unconsciously slant his testimony at
 

trial. Furthermore, the fact of Mr. Ganger’s acquittal on the
 

charge lessens the prejudicial effect. We hold that the trial
 

court did not abuse its discretion in determining that the
 

probative value of Mr. Ganger’s past arrest and acquittal on
 

the same charge pending against defendant was not
 

substantially outweighed by the danger of unfair prejudice.
 

MRE 403. 


C
 

Finally, the defense argues that admission of Mr.
 

Ganger’s prior arrest and acquittal violated MRE 609. We
 

disagree. MRE 609 provides for the impeachment of witnesses
 

by evidence of convictions of crimes containing elements of
 

dishonesty or false statement or crimes containing an element
 

16
 
of theft with certain conditions. MRE 609 only applies to the
 

use of past convictions; it does not address the use of past
 

arrests that do not result in convictions for the purpose of
 

showing a witness’ bias. We therefore reject and need not
 

further address the defense argument that MRE 609 precluded
 

admission of past arrests that do not result in conviction.
 

IV 


For the reasons stated, the judgment of the Court of
 

Appeals and the defendant’s conviction are affirmed. 


CORRIGAN, C.J., and TAYLOR, YOUNG, and MARKMAN, JJ.,
 

concurred with WEAVER, J.
 

17
 
S T A T E O F M I C H I G A N
 

SUPREME COURT
 

PEOPLE OF THE STATE OF MICHIGAN, 

v 

Plaintiff-Appellee, 

No. 116315 

NETO ALAN LAYHER, 

Defendant-Appellant. 

___________________________________ 

KELLY, J. (dissenting). 

I agree with the majority that, in appropriate 

circumstances, trial courts may admit evidence of a prior
 

arrest not resulting in conviction for the purpose of
 

establishing witness bias. I agree, also, that neither People
 

v Falkner1 nor MRE 609 bars this evidence, and that an
 

analysis of whether it is admissible is governed by MRE 401
 

and MRE 403.
 

I write separately because I believe this Court should
 

give further guidance about when prior arrests are admissible
 

1389 Mich 682; 209 NW2d 193 (1973).
 
to show bias. I would require that, before evidence of prior
 

arrests is admitted, there must be a showing that a
 

particularized bias exists. Also, there must be a reasonable
 

degree of probability that the earlier arrest caused the
 

witness to be biased. Such a holding would assist trial judges
 

in analyzing whether to admit evidence of prior arrests to
 

show bias and protect against abusive use of arrests on crossexamination.
 

Moreover, I disagree with the majority's conclusion that
 

the trial judge did not abuse his discretion in admitting
 

evidence of Mr. Ganger's past arrest. I would conclude that
 

the trial judge's failure to weigh the challenged evidence's
 

probative value against its danger of prejudice constitutes an
 

abuse of discretion. Because it appears that the error in this
 

case resulted in a miscarriage of justice, I would reverse the
 

Court of Appeals decision. Accordingly, I respectfully
 

dissent.
 

I. The Admissibility of Past Arrests


to Show Witness Bias
 

As the majority recites, evidence of a past arrest may be
 

admitted, in appropriate circumstances, to show witness' bias.
 

And, as United States v Abel states,2

 proof of bias is often
 

relevant because "the jury, as finder of fact and weigher of
 

2469 US 45, 52; 105 S Ct 465; 83 L Ed 2d 450 (1984).
 

2
 
credibility, has historically been entitled to assess all
 

evidence which may bear on the accuracy and truth of a
 

witness' testimony." 


However, the decision to allow evidence of past arrests
 

that did not result in convictions is an ominous one.3 First,
 

there is a seemingly endless series of circumstances under
 

which bias could be inferred. See 3A Wigmore, Evidence
 

(Chadbourn rev), § 949, p 784. Also, as the majority admits,
 

prejudicial inferences may be drawn from this type of
 

evidence. See slip op at 16. Thus, the decision to admit past
 

arrests should be undertaken with great caution.
 

More importantly, admitting evidence of one's past
 

arrests may have the regrettable effect of deterring witnesses
 

from testifying.4 This would represent as significant a
 

hindrance to the truth-seeking process as would a rule
 

precluding bias evidence altogether.
 

For these reasons, I find inadequate the majority's
 

simple instruction that the bench and bar should "employ the
 

evidentiary safeguards already present" in the Michigan Rules
 

3See Carolina v State, 839 P2d 663, 666 (Ok Crim App,


1992), noting the multiple concerns associated with using


prior arrests to show bias.
 

4See State v Taylor, 498 SW2d 614, 619 (Mo App, 1973)


(McMillian, J., concurring); cf. State v Cadena, 9 Ariz App


369, 371-372; 452 P2d 534 (1969), acknowledging that the


potential effect of introducing a witness' prior bad acts is


that it may discourage witnesses from testifying. 


3
 
 

of Evidence when analyzing the admissibility of past arrests
 

to show witness bias. Slip op at 16. Let it be clear that I
 

agree that MRE 4015 and MRE 4036 are the guiding principles to
 

be used to determine the admissibility of prior arrests to
 

show bias. However, considering the significant concerns
 

associated with admitting them, further direction is
 

warranted. 


I would require that, before trial judges admit evidence
 

of earlier arrests to show bias, they find the existence of a
 

particularized bias.7
 

I would require, also, that trial judges find that a
 

reasonable degree of probability exists that the evidence of
 

the earlier arrest caused the witness to be biased. As the
 

court in Smith observed, "[i]n those cases in which courts
 

5

"'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."
 

6"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."
 

7An example of particularized bias arises where, for


example the accusation against the defense witness "grew out


of the same episode which led to the charge for which the


defendant is standing trial." See Commonwealth v Smith, 26


Mass App 673, 678, n 1; 532 NE2d 57 (1988). See also State v
 

Lewis, 328 So 2d 75, 79 (La, 1976), stating that the witness'


bias is admissible where it is "direct or personal, rather


than indirect or general in nature."
 

4
 
 

 

have countenanced examination about prior arrests or pending
 

charges to suggest bias on the part of the witness, there has
 

generally been a link between the witness's entanglement with
 

law enforcement and the main case on trial." Id. at 676. The
 

court in Carolina stated that "there must be a nexus between
 

the arrest of the witness and the conclusion of bias . . . ."
 

Carolina, supra at 666.8
 

These two directives would provide needed assistance to
 

trial judges called upon to make the difficult determination
 

whether to admit evidence of past arrests. More specifically,
 

it would help trial judges determine the probative value of
 

the proffered evidence and whether that value is substantially
 

outweighed by the danger of unfair prejudice. It would also
 

lessen the occurrence of unrelated collateral attacks on
 

witnesses, while keeping the focus of trials on the truthseeking process.9
 

8See, e.g., State v Moynahan, 164 Conn 560, 600-602; 325


A2d 199 (1973), holding that there was no error where the


prosecutor inquired about a witness' prior arrest. The arrest
 

stemmed from the same investigation and involved the same type


of criminal behavior and the same informer as that pertaining


to the defendant's trial.
 

9This opinion should not be construed as advocating a


heightened standard for admitting prior arrests to show bias.


The directives articulated above are not meant to be
 

interpreted as inconsistent with MRE 403. Rather, they are


given to (1) protect against misuse of this subject of crossexamination, and (2) provide an enlightened basis for the


trial court's determination of relevance and its decision
 

(continued...)
 

5
 
These directives would be especially helpful where, as
 

here, a witness' prior arrest is unrelated to the factual
 

circumstances that gave rise to the trial at which he is
 

testifying. I do not deny the possibility that evidence of an
 

earlier arrest may be properly admitted in this scenario.10
 

However, if the evidence creates merely a remote inference of
 

bias, it should be excluded. Compare Dardi, supra at 336,
 

with Gaston v State, 451 NE2d 360, 365 (Ind App, 1983). 


9

(...continued)


whether to exclude evidence under MRE 403. In the analogous


context of MRE 404(b) evidence, this Court has given


directives for similar reasons. See People v VanderVliet, 444
 

Mich 52, 74, 89, n 51; 508 NW2d 114 (1993); People v Crawford,


458 Mich 376, 388; 582 NW2d 785 (1998), stressing that the


relationship between the proffered MRE 404(b) evidence and the


ultimate fact sought to be proven must be "closely


scrutinized." In Crawford, we gave this directive in
 

recognition of the fact that determining the admissibility of


other acts evidence is often difficult. See also People v
 

Sabin (After Remand), 463 Mich 43, 63; 614 NW2d 888 (2000),


clarifying the degree of similarity required in order to admit


evidence based on the theory of common plan, scheme, or


system, under MRE 404(b).
 

10See, e.g., State v Sweeney, 443 So 2d 522, 529-530 (La,


1983), where the prosecutor properly inquired into the prior


arrest of the witness. The witness' prior arrest had been


made by the same officers who arrested and testified against


the defendant; United States v Dardi, 330 F2d 316, 336 (CA 2,


1964), noting that where a prior arrest may have embittered a


witness so as to motivate her testimony in a particular


manner, the evidence would be relevant; Waters v State, 360 So


2d 358, 365-366 (Ala Crim App, 1978), there was no error where


the prosecutor cross-examined a defense witness about an


incident where she was arrested together with defendant, even


though the arrest was for a crime unrelated to that
 

prosecution.
 

6
 
In Dardi, a witness, Brann, testified for the government.
 

Thereafter, the defense called McCollom, who testified that
 

Brann's reputation for veracity in Switzerland was "just as
 

poor as it could possibly be." Id at 336. On crossexamination, the prosecution asked McCollom whether there was
 

an outstanding warrant against McCollom in Switzerland for
 

embezzling $50,000. That question fairly probed the likelihood
 

that McCollom harbored a bias against Brann, because Brann had
 

revealed information that led to the embezzlement charge. In
 

Gaston there was a prosecution for dealing in a controlled
 

substance. A cross-examination of the defendant's alibi
 

witness, Cruse, regarding Cruse's prior arrest for marijuana
 

possession was found to be improper. The Court reasoned that
 

there was no nexus connecting the fact of the arrest and the
 

conclusion of bias.11
 

This case is of the type that presents the greatest
 

challenge to determining the admissibility of prior arrests.
 

I believe that the steps I have articulated would greatly
 

assist trial judges.
 

11See also Lewis, supra at 79-80, holding that crossexamination of a defense witness directed at whether his
 

brother had been arrested for an unrelated offense was too
 

remote and, thus, improper. The Court explained that any bias


that may have resulted from the witness' arrest was "too


remote" and involved "too collateral issue" an beto 

admissible on a bias theory. 

7 
II. The Trial Court's Abuse Of Discretion 


The majority holds that "the trial court did not abuse
 

its discretion in determining that the probative value of Mr.
 

Ganger's past arrest and acquittal on the same charge pending
 

against defendant was not substantially outweighed by the
 

danger of unfair prejudice." Slip op at 18. I disagree.
 

This court reviews evidentiary decisions for an abuse of
 

discretion. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659
 

(1995). The term "discretion" involves "'the idea of choice,
 

of an exercise of the will, of a determination made between
 

competing considerations.'" People v Talley, 410 Mich 378,
 

387; 301 NW2d 809 (1981),12 quoting People v Williams, 386 Mich
 

565, 573; 194 NW2d 337 (1972).
 

Here, the trial court, over defense objection,13 admitted
 

evidence of Mr. Ganger's prior arrest. It articulated its
 

rationale as follows:
 

All right. Well, the Court would rule that the


evidence is relevant and it's probative and the
 

12Partially overruled on other grounds People v Kaufman,


457 Mich 266, 276; 577 NW2d 466 (1998)
 

13In objecting, defense counsel argued that no exception


to the Michigan Rules of Evidence supported the admission of


the challenged evidence. He urged that the evidence served


merely to suggest to the jury that Mr. Ganger was "a bum."


Furthermore, defense counsel argued that the evidence should


not come in until there was a showing that "[Mr. Ganger has]


actually got some bias . . . ." Thus, the objection preserved


the issue whether the prior arrest was admissible under MRE


403. The prosecutor has not argued otherwise.
 

8
 
issue is whether or not the witness---whether a
 

witness, as in all witnesses' testimony, is whether


the witnesses' testimony is credible and should be


believed.
 

This is cross-examination. The Prosecutor is
 

entitled to elicit information to support any claim


that she may have that he's biased. She certainly


could argue on the one hand that the witness would


be biased because he is employed, I would assume,


by you and your client. She could also and
 

apparently seeks to do so, argue that as a result


of him being accused and acquitted of a crime which


he claims he did not do of a very similar nature,


that he is therefore biased in the Defendant's
 

favor and presumably would color his testimony to


help the Defendant, another person who he may


believe would be also wrongly accused of the same


crime.
 

It's not being offered under [MRE] 609. It's
 

not being offered to impeach his credibility


because he was convicted of a crime. It's being


offered to show bias for a very specific purpose


which the Court would rule is a legitimate purpose


and it is relevant and it is material and it is
 

probative and I will allow it. 


My review of the record below persuades me that the trial
 

judge failed to conduct any type of MRE 403 balancing
 

analysis.14 Although the trial judge discussed the challenged
 

evidence's probative value and relevance, there is no
 

14By explicitly weighing the MRE 403 factors, trial courts


maintain the appearance of justice by showing the parties that


the dictates of the law were recognized and followed. It also
 

facilitates appellate review. See United States v Johnson, 820


F2d 1065, 1069 (CA 9, 1987); United States v Robinson, 544 F2d
 

611, 616 (CA 2, 1976), aff'd en banc on rehearing 560 F2d 507


(CA 2, 1977), stating that Federal Rule of Evidence 403 (after


which MRE 403 is modeled), was designed principally to promote


correct factual determinations in individual cases and actual
 

and perceived fairness in the judicial process.
 

9
 
indication that he considered its prejudicial effect.15
 

Consequentially, there is nothing in the record supporting the
 

conclusion that the trial judge weighed the danger of unfair
 

prejudice associated with the challenged evidence against its
 

probative value.16
 

Therefore, I find erroneous the majority's conclusion
 

that the probative value of Mr. Ganger's past arrest and
 

acquittal was not substantially outweighed by the danger of
 

unfair prejudice. The record establishes that the trial court
 

never made a determination to that effect.17 Thus, I would hold
 

15I do not suggest that trial judges must state magic


words in order for their MRE 403 analyses to survive appellate


scrutiny. However, there should be some indication on the


record that the trial judge conducted the proper inquiry.


Compare, State v Micko, 393 NW2d 741, 745 (ND, 1986), finding


error where the record revealed that the trial judge failed to


make the essential balancing required of him under North


Dakota Rule of Evidence 403; with United States v
 

Merriweather, 78 F3d 1070, 1079, n 1 (CA 6, 1996), reluctantly


finding no error requiring reversal where the record supported


the conclusion that the district court implicitly held that


the balance under FRE 403 favored admission; however, the


court reiterated that district courts should make an express


determination under FRE 403.
 

16Furthermore, there is no indication that the trial court


took any reasonable precautions to lessen the prejudicial


effect of the evidence. Cf. Abel, supra at 55, where the


district court admitted evidence that a witness belonged to a


gang that required its members to commit perjury; however, the


court prevented testimony regarding the name of the gang to


minimize potential prejudice.
 

17The majority asserts that the fact of Mr. Ganger's


acquittal on the charge lessens the prejudicial effect.


However, there is no indication from the record that the trial


(continued...)
 

10
 
that the trial court's failure to do so constitutes an abuse
 

of discretion. See generally Talley, supra at 387; see also
 

United States v Robinson, 174 US App DC 224, 229; 530 F2d 1076
 

(1976), stating that it is preferable that district courts
 

perform the FRE 403 balancing analysis expressly.
 

III. The Error Requires Reversal.
 

My determination that the trial court abused its
 

discretion would not end the matter. Rather, this Court can
 

reverse because of the error only if defendant establishes
 

that it is more probable than not that the error resulted in
 

a miscarriage of justice. MCL 769.26. In my view, defendant
 

has sustained his burden.
 

Here, the only evidence of defendant's guilt was the
 

testimony of the complainant. Thus, Ganger's credibility was
 

key. Had the jury believed Ganger's testimony that the
 

complainant stated on two separate occasions that defendant
 

did not sexually touch her, defendant would likely have been
 

acquitted. The effect of the evidence that defendant's star
 

witness had been charged with molesting a young child cannot
 

17(...continued)


court relied on this fact in admitting the challenged


evidence. Thus, I find this fact inapposite. See also Old
 

Chief v United States, 519 US 172, 182, n 6; 117 S Ct 644; 136


L Ed 2d 574 (1997), stating that, when reviewing trial courts'


decisions to admit evidence of prior bad acts, "[i]t is


important that a reviewing court evaluate the trial court's


decision from its perspective when it had to rule and not


indulge in review by hindsight."
 

11
 
be underestimated. Hence, it affirmatively appears more
 

probable than not that the error was outcome determinative.
 

IV. Conclusion
 

Evidence of a witness' past arrests may be admitted to
 

establish bias if, in its sound discretion, the trial court
 

determines that admission is consistent with the safeguards of
 

the Michigan Rules of Evidence. However, to ensure against
 

abuse of this rule, I would require a finding that a
 

particularized bias exists, and that it is reasonably probable
 

that the past arrest caused witness bias.
 

Here, the trial court's failure to analyze the challenged
 

evidence's prejudicial effect and to compare that to its
 

probative value was an abuse of discretion. Because it
 

affirmatively appears that the error in this case resulted in
 

a miscarriage of justice, I would reverse the Court of Appeals
 

decision to affirm defendant's convictions.
 

CAVANAGH, J., concurred with KELLY, J.
 

12