____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

________________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

Chie f 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 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 this civil suit against
 

defendant for assault and battery, in part on the basis of the
 

same act that resulted in defendant’s conviction. The trial
 

court, relying on Wheelock v Eyl, 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
 

returned 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 Unpublished opinion per curiam,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 October 12, 2001 (Docket No. 224042). Because we
 

conclude that 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 and remand 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 rise 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 of 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 Defendant also moved to preclude plaintiff from


presenting any witnesses because plaintiff had been directed


in a pretrial order to file with the court a list of


witnesses, but he failed to do so. As a result, the trial


court only allowed plaintiff to present the witnesses that


plaintiff had listed in his answer to an interrogatory asking


plaintiff who he was going to call as witnesses. Because
 

plaintiff failed to list, as a potential witness, the police
 

2
 
 

no cause of action. Plaintiff then filed a motion for a new
 

trial, arguing that the trial court had erred in excluding
 

evidence of defendant’s conviction. The trial court denied
 

plaintiff’s motion, concluding that not only was evidence of
 

the conviction inadmissible under Wheelock, but it was also
 

inadmissible under MRE 403 because it would have been more
 

prejudicial than probative.
 

The Court of Appeals affirmed the order of the trial
 

court. The Court did not address the merits of the rule
 

announced in Wheelock, but instead based its decision on MRE
 

403. It concluded that the trial court had not abused its
 

discretion in holding that the probative value of evidence of
 

defendant’s conviction was outweighed by its prejudicial
 

effect.2
 

II
 

officer who apparently was involved in the criminal assault


and battery charge against defendant, 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


MCR 2.401(I)(2), preclude any witnesses not named in a witness


list from testifying. In this case, plaintiff concedes that


he did not file a witness list and offers no reason for
 

failing to do so. 


2

 The Court of Appeals also concluded that the trial
 

court did not err in holding that defendant’s criminal


conviction was not admissible for the purpose of impeachment


because, pursuant to MRE 609(a), only crimes containing an


element of dishonesty, false statement, or theft are
 

admissible to impeach a witness, and an assault and battery


conviction does not involve any of these elements.
 

3
 
We review for an abuse of discretion a trial court’s
 

decision whether to admit evidence. People v Lukity, 460 Mich
 

484, 488; 596 NW2d 607 (1999). To the extent that this
 

inquiry requires examination of the meaning of the Michigan
 

Rules of Evidence, we address such a question in the same
 

manner as the examination of 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
 

in a civil case arising out of the same occurrence.” After
 

Wheelock was decided, the Michigan Rules of Evidence were
 

adopted. An analysis of these rules, as discussed below,
 

leads us to conclude that the rule announced in Wheelock, at
 

least as it pertains to the use of a conviction in a
 

subsequent civil case, did not survive their adoption. This
 

Court has previously determined that a rule announced in an
 

opinion by this Court did not survive the adoption of the
 

Michigan Rules 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
 

4
 
of 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
 

in the courts of this state to the extent and with the
 

exceptions stated in Rule 1101.” None of the exceptions set
 

forth in rule 1101 are applicable here. One of the rules that
 

govern court proceedings in this state is MRE 402. MRE 402
 

provides that “[a]ll 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.” MRE 401
 

defines relevant evidence as that “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.” 


In this case, the fact that defendant had been convicted
 

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
 

5
 
the Michigan or federal constitution, the rules of evidence,
 

or other rules adopted by the Supreme Court. 


In our 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 major function is limited to excluding matter


of scant or cumulative probative force, dragged in


by the heels for the sake of its prejudicial


effect. . . . 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 (1998), we stated: “Rule 403 does not prohibit


prejudicial evidence; only evidence that is unfairly so.


Evidence is unfairly prejudicial when there exists a danger


that marginally probative evidence will be given undue or


preemptive weight by the jury.”
 

6
 
In this case, the trial court concluded that “the
 

prejudicial effect would clearly outweigh any probative
 

value.” The Court of Appeals agreed with this conclusion
 

without conducting its own analysis. The lower courts here
 

appear to have focused exclusively on the 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 prejudicial effect [of


defendant’s conviction] would be tremendous.
 

Essentially, school would be out. Plaintiff wants
 

to just prove his civil case by introducing the


conviction that was secured in district court, and


obviously that would be a bombshell against 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:
 

In this context, prejudice means more than


simply damage to the opponent's cause. A party's


case is always damaged by evidence that the facts


are contrary to his contentions, but that cannot be


grounds for exclusion. What is meant here is an
 

undue tendency to move the tribunal to decide on an


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: accuracy and fairness. Gold, Federal
 

Rule of Evidence 403: Observations on the nature of
 

unfairly prejudicial evidence, 58 Wash L R 497


(1983). The perceived danger here is that the jury


would decide that this evidence is more probative


of a fact than it actually is.
 

7
 
that a different jury in a criminal case had


convicted him of an assault.
 

Although we 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 danger that marginally
 

probative evidence will be given undue weight by the jury.
 

Rather, that defendant was found guilty beyond a reasonable
 

doubt—a standard of proof granting him protection greater than
 

the preponderance of the evidence standard in the civil
 

case—is highly probative evidence. Where a civil case arises
 

from the same incident that resulted in a criminal conviction,
 

the admission of evidence of the criminal conviction during
 

the civil case is prejudicial for precisely the same reason it
 

is probative. That fact does not, without more, render
 

admission of evidence of a criminal conviction unfair, i.e.,
 

substantially more prejudicial than probative. Defendant had
 

an opportunity and an incentive to defend himself in the
 

criminal proceeding. For these reasons, we conclude that the
 

trial court abused its discretion in precluding evidence of
 

defendant’s conviction on the basis that its probative value
 

was substantially outweighed by the danger of unfair
 

prejudice.
 

We express no opinion regarding whether pleas of nolo
 

8
 
contendere are admissible as substantive evidence in
 

subsequent civil proceedings.
 

IV
 

The trial court abused its discretion 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
 

subsequently enacted 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
 

9