False Accusations of Domestic Violence in Michigan: How Credibility Is Tested in Court

When a person charged with domestic assault says the accusation is untrue, Michigan law does not require that person to prove it. The defendant is presumed innocent, and the prosecutor must prove each element of the crime beyond a reasonable doubt.^[1] Whether a witness is believed is decided by the jury, or by the judge in a bench trial, using the ordinary tools of a trial: cross-examination, earlier statements, and the evidence that does or does not back up each account.^[2][3]

This page explains those tools. It does not assume that any particular accusation is true or false, and the sources behind this guide contain no verified statistic on how often false reports occur, so none is given here. A contested case is not necessarily about a deliberate lie. Jurors are told that people see and hear things differently, and that witnesses may testify honestly but simply be wrong about what they thought they saw or remembered.^[2]

The starting point: the burden of proof

Jurors are instructed that proof beyond a reasonable doubt is proof that leaves them firmly convinced of the defendant's guilt, and that a reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence.^[6] A defendant has an absolute right not to testify, and the jury must not consider the fact that he or she did not.^[7]

The number of witnesses on each side is not the test. Jurors may be told not to decide a case based on which side presented more witnesses, but to think about each witness and each piece of evidence and whether they believe them, and then to decide whether the testimony and evidence they believe proves guilt beyond a reasonable doubt.^[8] "It's one person's word against another's" describes what the jury has to resolve; it is not a rule that decides the case for either side.

How jurors are told to judge credibility

The model instruction on credibility, which is to be given in every case, tells jurors they are free to believe all, none or part of any person's testimony.^[2] It suggests questions, including:

• Was the witness able to see or hear clearly?^[9]
• Does the witness have any bias, prejudice or personal interest in how the case is decided?^[2]
• Have there been any promises, threats, suggestions or other influences that affected how the witness testified?^[2]
• Does the witness have any special reason to tell the truth, or any special reason to lie?^[2]
• How reasonable does the testimony seem when compared with all the other evidence?^[2]

These questions apply to every witness, including police officers and a defendant who testifies.

Motive and bias

The Michigan Supreme Court has described bias as the relationship between a party and a witness that might lead the witness to slant testimony, "unconsciously or otherwise," and has said that proof of bias is almost always relevant.^[3] A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.^[3]

In a domestic case, the circumstances that are raised under this heading include a pending divorce, a dispute over custody or parenting time, a dispute over a home or money, or a new relationship. None of them shows that an account is untrue. They are facts a jury may weigh, and the same facts can cut the other way: people in the middle of a separation also experience real violence. For how family courts treat allegations, see Domestic violence and child custody.

The statute that lets a prosecutor use a complaining witness's statement to police, MCL 768.27c, builds motive into its test. The statement must have been made under circumstances that indicate trustworthiness.^[10] In judging that, the court may consider whether the statement was made in contemplation of pending or anticipated litigation in which the speaker was interested, whether the speaker has a bias or motive for fabricating, and whether the statement is corroborated by other evidence.^[11] The Court of Appeals has read "anticipated litigation" to mean cases in which the speaker could gain a property, financial or similar advantage, such as divorce, child custody or tort litigation, and not the report of the charged offense itself.^[12] See Statements to police under MCL 768.27c.

Inconsistent statements

By the time of trial a complaining witness may have described the event several times: to a 911 operator, to an officer, in a written statement, to medical staff, at a preliminary examination. Differences between those accounts are a standard subject of cross-examination.

Earlier statement	How it can be used
Unsworn statement, such as what was told to an officer	To judge how believable the witness is; generally not as substantive evidence unless a hearsay exception applies[4]
Statement under penalty of perjury at a trial, hearing or other proceeding	If the witness testifies and is cross-examined, it is not hearsay and may be used as proof of what was said[13]
Proof of the earlier statement through another witness or document	Admissible only if the witness is given an opportunity to explain or deny the statement, or if justice so requires[14]

Jurors are instructed accordingly: they may consider an inconsistent earlier statement to help decide how believable the testimony is, and, if the earlier statement was made under oath, also as evidence of the truth of what was said.^[15]

Inconsistency does not always point one way. Expert testimony may be admitted to explain why a person who has experienced abuse might minimize it, delay reporting or recant.^[16] The expert may not say that the complaining witness is truthful or that the defendant is guilty.^[17] See Recanting: when the accuser changes the story.

Corroboration, and its absence

The last credibility question in the model instruction asks how reasonable the testimony seems when compared with the other evidence.^[2] That makes the physical and recorded evidence central in a disputed case.

• Recordings. A 911 recording raises questions of authentication, hearsay and relevance, and Michigan courts have admitted 911 tapes under several hearsay exceptions.^[18] See 911 calls as evidence and Body camera footage.
• Photographs. Photographs may be used to corroborate a witness's testimony.^[19] In People v Hendrickson, photographs of injuries taken near the time of the alleged beating were enough to corroborate a 911 call.^[20]
• Messages and posts. The side offering a text message or post must produce evidence sufficient to support a finding that it is what that side claims.^[21] Michigan courts are told to be mindful of fake social media accounts, hacked accounts and deep fakes.^[22] If authenticity is genuinely disputed, that question is for the jury.^[23] See Text messages and social media evidence.

The absence of injury is not proof that nothing happened. An assault does not have to cause an actual injury.^[24]

Getting the evidence: discovery

A disputed account can only be tested against material the defense has seen. On request, the prosecutor must provide any exculpatory information or evidence known to the prosecutor, any police report and interrogation records concerning the case, and any written or recorded statements by the defendant.^[25] Those rules apply in misdemeanor cases as well.^[26] There is no right to discover privileged records such as counseling records, but a judge must review them privately if the defendant shows a good-faith belief, grounded in articulable fact, that they are reasonably likely to contain material information necessary to the defense.^[27] See Discovery in Michigan domestic violence cases.

Limits on attacking a witness

• Prior convictions. A witness's character for truthfulness may be attacked with a prior conviction only if the crime contained an element of dishonesty or false statement, or an element of theft meeting further conditions, and generally not if more than ten years have passed.^[28]
• Character for violence. The rule that allows evidence of an alleged victim's trait for aggression applies in a homicide case when self-defense is an issue.^[29]
• The defendant's own character. A defendant may offer evidence of a pertinent trait of his or her own; if it is admitted, the prosecutor may offer evidence to rebut it.^[30]
• Polygraphs. Results, and whether a test was taken, offered or refused, are inadmissible.^[31] See Polygraph tests.

When a report is knowingly false

Michigan makes it a crime to make a false report of a crime. The elements include that the report was false as to the fact that the crime was committed or as to its details, that the person knew it was false, and that the person made it intentionally.^[5] A statement that is mistaken, exaggerated in memory, or simply not proved at trial does not meet that definition. The offense and its penalties are explained in False report of domestic violence. Petitions for protection orders raise separate issues, covered in False or retaliatory PPO petitions.

What an accused person should not do

The urge to confront the other person, or to ask friends or relatives to do it, is strong, and acting on it can seriously damage the defense. If the court has set a no-contact condition, read No-contact orders explained before doing anything else. A defendant's threat against a witness is generally admissible as conduct that can demonstrate consciousness of guilt.^[32] And if a party wrongfully causes or encourages a witness's unavailability, intending that result, the witness's earlier statements may be used against that party.^[33]

The constructive steps are quieter. Write down a timeline while memory is fresh. Preserve messages, call logs, photographs and location data exactly as they are, without editing or deleting anything. Make a list of people who saw or heard the events. Give all of it to your defense lawyer, and do not send it to the other person. Further practical points are in Mistakes to avoid after a domestic violence charge.