Email / Text Admissibility — Texts Properly Admitted for Impeachment Purposes Only, Pursuant to Rule 613(a)

I. ADMISSION OF TEXT MESSAGE EVIDENCE

People v. Webb, 2014 Mich. App. LEXIS 1916 (Mich. Ct. App. Oct. 16, 2014):

Defendant first argues that the trial court erred in admitting evidence regarding his stepdaughter's text messages. A trial court's decision to admit or deny evidence is reviewed for an abuse of discretion. People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001).

While questioning defendant's stepdaughter, the prosecutor asked her about text messages she sent to her uncle in 2011 indicating that her stepfather had done some things to her. She testified that her stepfather had never sexually abused her, and that the text messages referred to her biological father. However, her text messages contradicted this testimony, and the prosecutor [*3]  sought to introduce them as impeachment evidence. Defense counsel initially objected to the content of the messages as hearsay, but later withdrew his objection if the messages were being offered only for impeachment. The trial court ruled that the text messages were admissible, stipulating that they were to be used for the purpose of assisting the jury in assessing the witness's credibility.

Defendant argues that the court failed to limit the jury's use of the text messages to the narrow purpose of assessing his stepdaughter's credibility and improperly allowed the messages to be used as substantive evidence. The text messages contradicted defendant's stepdaughter's testimony that defendant had never touched her inappropriately or forced her to engage in inappropriate behavior with the complainant.

We conclude that the trial court was within its discretion in admitting the text messages for a limited purpose. An extrinsic prior inconsistent statement made by a witness is admissible if "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." [*4]  MRE 613. In this case, the witness had the opportunity to explain or deny her text messages, and both parties had the opportunity to question her about the statements. Therefore, there was no error in admitting the text messages into evidence.

Defendant's corresponding argument that the court improperly admitted the text messages as substantive rather than impeachment evidence also lacks merit. Defendant's stepdaughter's credibility was reasonably called into question by a text message she sent to her uncle indicating that defendant hadn't touched her since she was a very young child, which contradicted her testimony that defendant had never behaved inappropriately towards her or required her to do inappropriate things with complainant. The trial court reasonably determined that the text messages were admissible to aid the jury in assessing defendant's stepdaughter's credibility. The court did not err by admitting the text messages for this narrow purpose, and defendant has not presented any evidence that the messages were improperly used by the jury.

Defendant also argues that the trial court erred by allowing the jury to receive a transcript of the impeachment text messages. Even if giving [*5]  a transcript to the jury was error, we conclude that the error would not require reversal. An error is not a ground for reversal unless, based on all the evidence, "it is more probable than not that the error was outcome determinative." People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999). In this case, there was sufficient evidence to convict defendant without the transcript of the text messages. The stepdaughter's testimony had informed the jury of the credibility issue raised by the text messages, and complainant's testimony established the elements of the charged crimes. Moreover, the testimony of other male relatives corresponded to complainant's testimony. Accordingly, any error in admitting a transcript of the text messages does not require reversal.

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