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________________________________ Michigan Supreme Court Lansing, Michigan 48909

Chie f Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman FILED NOVEMBER 19, 2002

LESLIE WAKNIN, Plaintiff-Appellant,

v No. 120299 RICHARD CHAMBERLAIN, Defendant-Appellee.

PER CURIAM Defendant was convicted of assault and battery. Plaintiff, the victim, then brought t his ci vil suit against defendant for assault andbattery, in part on the basis of the same act that resulted in defendant’s conviction. The trial court, relying on Wh eelock vEyl , 393 Mich 74, 79; 223 NW2d 276 (1974), held that evidence of defendant’s conviction could not be introduced in this civil case. The jury thereafter ret urned a verdict of no cause of action. The trial court, relying on its earlier decision and MRE 403 , denied plaintiff’s motion for a new trial. The Court of Appeals,relying on MRE 403, affirmed. Unpublished opinion per curiam, issued Oct ober 12, 2001 (Docket No. 224042). Because we conclude tha t evidence of defendant’s conviction should not have been excluded in this subsequent civil case on the basis of either Wheelock or MRE 403, we reverse the judgment of the Court of Appeals andremand the case to the trial court for a new trial. I Defendant was convicted of assault and battery for an incident that occurred on May 6, 1996. Subsequently, plaintiff, the victim of the incident that gave r ise to defendant’s conviction, brought this civil suit against defendant, seeking damages for a series of assaults that allegedly occurred in July of 1995, as well as the alleged assault and battery o f May 6, 1996, that resulted in defendant’s conviction. Defendant moved to exclude evidence of his prior conviction, and the trial court granted this motion, concluding that Wheelock bars the admission of a defendant’s conviction for purposes of establishing civil liability. 1 Following a trial, the jury returned a verdict of

1 D efe ndant also moved to preclude plaintiff from presenting any witnesses because plaintiff had been directed ina pretrial order to file wi th the co urt a list of witnesses, but he failed to do so. As a result, the trial court on ly a llowed plaintiff to present the witnesses that plaintiff had listed in his answer to aninterrogatory asking plaintiff who he was going to call as witnesses. Because plaintiff failed to list, as a potential witness, the police 2no cause of action. Plaintiff then filed a motion for a new trial, arguing that the trial cou rt had erred in excluding evidence of defend ant’s conviction. The trial court denied plaintiff’s motion, concluding that not only was evidence of t he con viction inadmissible under Wheelock , but it was also inadmissible under MRE 40 3 because it would have been more prejudicial than probative. The Court of Appeals affirmed the order of the trial court. T he Court d id not address the merits of the rule announced in Wheelock , but instead based its decision on MRE 4 03. It concluded that the trial court had not abused its discretionin holding that the probative value of evidence of defendant’s conviction was outweighed by its prejudicial effect. 2 II

off icer who apparently was involved in the criminal ass aul t andbattery charge against d efendant, the officer was not allowed to testify. We agree with the Court of Appeals that the trial court did not abuse its discretion when it precluded this officer’s testimony. The trial court may , pursuant to MCR2.401(I)(2), preclude any witnesses not named ina witness list from testifying. In this case, plaintiff concedes that he did not fil e a wit ness list and offers no reason for failing to do so.

2 The Court of Appeal s also concluded that the trial court did not er r in holding that defendant’s criminal conviction was not admissible for the purpose of impeachment because, pur suant to MRE 609(a), only crimes containing an element of dishonesty, false statement, or t heft are admi ssi ble to impeach a witness, and an assault and battery conviction does not involve any of these elements. 3We review for an abuse of discretion a trial court’s decisionwhether to admit evidence. People v Lukity , 460 Mich 484, 488; 596 NW2d 607 (199 9). To the extent that this inquiry requir es examination of the meaning of the Michigan Rules of Evidence, we address such a question in the same

manner as the examinationof the meaning of a court rule or a statute, which are questions of law that we review de novo. Id .; Cam Constr v Lake Edgewood Condominium Ass ’n , 465 Mich 549, 553; 640 NW2d 256 (2002). III This Court in Wheelock, supra at 79, stated that “a criminal conviction after trial, or plea, or payment of a fine is not admissible as substantive evidence of conduct at issue ina civil case ari sing out of the same occurrence.” After Wheelock was decided, the Mic hi gan Rules of Evidence were adopted. An analysis of these rules, as discussed below, leads us to conclude that the rule announced in Wheelock , at l east as i t pertains to the use of a conviction in a subsequent civil case, did not survive their adoption. This Court has previously determined that a ru le announced in an opinionby this Court did not survive the adoption of the MichiganRules of Evidence. See People v Kreiner , 415 Mich 372, 377; 329 NW2d 716 (1982)(holding that the “tender years” exception did not survive the adoption of the Michigan Rules

4of Evidence). “In Kreiner , this Court essentially held that the Michigan Rules of Evidence constituted a codification of the rules of evidence that superseded the common-law rules.” People v Starr , 457 Mich 490, 502, n 12; 577 NW2d 673 (1998). MRE 101 provides that “[t]hese rules govern proceedings inth e co urts of this state to the extent and with the exceptions stated in Rule 1101.” None of the exceptions set forthin rule 1101 are applicable here. One of the rules that governcourt proceedings in this state is MRE 4 02. MRE 402 provides that “[a]ll relevant evidence is admissible, except

as otherwise provided by the Constitution of the Un ited States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court.” MRE 401 defines relevant evidence as that “having any tendency to make the existence of any fact that is of consequence to the determinationof the action more probab le o r less probable than it would be without the evidence.” Inthis case, the fact that defendant had beenconvicted of assault and battery for the same conduct that plaintiff is

now seeking civil damages for certainly “would have a tendency to make the existence of any fact that is of consequence . .

. more probable or less probable than it would be without the evidence.” Accordingly, defendant’s conviction is relevant evidence, and thus admissible, unless otherwise precluded by

5the Michigan or federal constitution, the rules of evidence, or other rules adopted by the Supreme Court. Inour judgment, the trial court abused its discretion in finding that defendant’s conviction was more prejudicial than probative. MRE 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” (Emphasis added.) Evidence is not inadmissible simply because it is prejudicial. Clearly, in every case, each party attempts to introduce evidence that causes prejudice to the other party. In People v Mills , 450 Mich 61, 75-76; 537 NW2d 909 (1995), we stated: All evidence offered by the parties is "prejudicial" to some extent, but the fear of prejudice does not generally render the evidence inadmissible. It is only when the probative value is substantially outweighed by the danger of unfair prejudice that evidence is excluded. “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. . . . Its m ajor function is limited to excluding matter of scant or cumulative probative force, dragged in by t he h eels for the sake of its prejudicial eff ec t. . . . It is not designed to permit the court to ‘even out’ the weight of the evidence, to mitigate a crime, or to make a contest where there is little or none.” [ United States v McRae , 593 F2d 700, 707 (CA 5, 1979).] [3]

3 Similarly, in People v Crawford , 458 Mich 376, 398; 582 NW2d 785 (199 8), we stated: “Rule 403 does not prohibit prejudicia l evidence; only evidence that is unfairly so. Evidence is u nfairly prejudicial when there exists a danger that mar ginally probative evidence will be given undue or preemptive weight by the jury.” 6Inthis case, the trial court concluded that “the prejudicial effect would clearly outweigh any probative value.” The Court of Appeals agreed with this conclusion wit hou t conducting its own analysis. The lower courts here appear to have focused exclusively onthe word “prejudice” and overlooked the word “unfair.” As we have repeatedly stated, only evidence whose probative value is substantially outweighed by its unfair prejudice is inadmissible. The trial court here stated: [C]learly the prejudi ci al effect [of defendant’s conviction] would be tremendous. Essentially, school would be out. Plaintiff wants to just prove h is civil case by introducing the conviction that was secured in district court, and obviously that would be a bombshell a gai nst a defendant in a civil case who had the jury find out And, in People v Vasher , 449 Mich 494, 501; 537 NW2d 168 (1995), we stated: Inthis context, prejudice means more than simply damage to the opponent's cause. A pa rty's cas e is always damaged by evidence that the f act s are contrary to his contentions, but that cannot be grounds for exclusion . Wha t is meant here is an undue tendency to move the tribunal to decide onan improper basis, commonly, though not always, an emotional one. Evidence presents the danger of unfair prejudice when it threatens the fundamental goals of MRE 403: accur acy and fairness. Gold, Federal Rule of Evidence 403: Observations onthe nature of unfa i rly prejudicial evidence , 58 Wash L R 497 (1983). The perceived danger here is that the jury would decide that this evidence is more p ro bative of a fact than it actually is.

7that a different jury in a criminal case had convicted him of an assault. Althoughwe agree with the lower courts that the admission of defendant’s conviction would be prejudicial, we do not agree that this prejudicial effect would be unfair . Defendant’s conviction is not merely marginally probative evidence, and thus there is no da nger that marginally probative evi dence will be given undue weight by the jury. Rather, that defendant was found guilty beyond a reasonable doubt—a standardof proof granting him protection greater than the preponderance of the evidence standard in th e civil case—is highly probative evidence. Where a civil case arises from the same incident that resulted in a criminal conviction, the admiss ion of evidence of the criminal conviction during the civil case is prejudicial for precisely the same reason it is p robative. That fact does not, without more, ren de r admission of evidence of a criminal conviction unfair, i.e., substantially more prejudicial than probative. Defendant had

anopportun ity and an incentive to defend himself in the criminal proceeding. For these reasons, we conclude that the trial court abused its discre tion i n precluding evidence of defendant’s conviction on the basis that its probative value

was substantially outweighed by t he danger of unfair prejudice. We express no opinion regarding whe ther pleas of nolo

8contendere are admissible as substantive evidence in subsequent civil proceedings. IV The trial court abused its discreti on in barring the admission of evidence of defendant’s conviction by a jury on the basis that the introduction of this evidence would violate MRE 403. To the extent that Wheelock is inconsistent with the subsequentl y en acted Rules of Evidence, it did not survive their adoption. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the trial court for a new trial. Maura D. Corrigan Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman CAVANAGH, J. I would not dispose of this case by opinion per curiam, but would grant leave to appeal. Michael F. Cavanagh

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