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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v NETO ALAN LAYHER,
Defendant-Appellant.
____________________________________ BEFORE THE ENTIRE BENCH
WEAVER, J.


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 17, 2001


No.

116315


Defendant appeals the judgment of the Court of Appeals
affirming criminal counts his sexual of conviction conduct, for MCL one count of first-degree
and two
MCL


750.520b(1)(b)(ii), sexual

second-degree

criminal

conduct,

750.520c(1)(b)(ii).1

We granted leave limited to whether the


The 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.


1

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


The Michigan Rules of Evidence were adopted by this
Court on January 5, 1978. 402 Mich lxxxviii.
2


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
The


that she did not tell anyone because she was scared.

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. would tell. Defendant asked her if she


Again, she testified that she said she would not
The third incident occurred when
No one else


because she was scared.

complainant was lying on her grandmother's bed. 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. 4
Mr. Ganger


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,
However, where
evidence whether a involve
rule of


413 Mich 298, 322; 319 NW2d 518 (1982). decisions preliminary regarding questions the of admission law such of as

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. 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
MRE 402


6


child less than thirteen to create an inference of bias on the
part of Mr. Ganger in favor of defendant. law evidentiary term used "to describe Bias is a common 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
United


fear of a party, or by the witness' self-interest."

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
Indeed, as we note below, MRE


been regarded as irrelevant."

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 to assess of credibility, evidence has historically might bear on been
the


entitled

all

that

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 Shanz, 449 Mich 469, 475; 536 NW2d 760 (1995). Wischmeyer v
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]


As 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.
People 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

6

5

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
The panel


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

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 well

impeachment of a witness' credibility "by reference to an
arrest which does not result in conviction."
Specifically, 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

7

established authority holding that cross-examination of a
witness regarding bias is "always relevant." supra. MacCullough,


Because Falkner's holding did not exclude impeachment
a witness' of Falkner bias, is we conclude and that an express
As


regarding limitation

warranted

reasonable.

explained in Davis v Alaska, 415 US 308, 316; 94 S Ct 1105; 39
L Ed 2d 347 (1974), quoting 3A Wigmore, Evidence rev),

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