Proving or Disputing Strangulation in a Michigan Domestic Violence Case

To prove assault by strangulation in Michigan, the prosecutor must prove a battery, that the touching was intended and against the complainant's will, and that the battery was committed by strangulation or suffocation.^[2] The statute defines that last term as intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.^[1] Visible injury is not part of the definition, and the model jury instruction says it does not matter whether the touching caused an injury.^[2]

If you are in danger or need medical help, call 911. The National Domestic Violence Hotline is free, confidential and available 24 hours a day at 1-800-799-7233, or by texting START to 88788.^[6]

This page is about evidence: what each side uses to prove or dispute the charge. The offense itself, and how it differs from other assault charges, is covered in Assault by strangulation under MCL 750.84.

What exactly has to be proved?

Assault by strangulation or suffocation is one of two alternatives in MCL 750.84. The other is assault with intent to do great bodily harm less than murder. The strangulation alternative does not require proof of intent to do great bodily harm.^[3]

Element in the model instruction	What it means for the evidence
The defendant committed a battery on the complainant.[2]	There has to be proof of a physical touching, not only a threat.
The touching was intended by the defendant, that is, not accidental, and was against the complainant's will. It does not matter whether the touching caused an injury.[2]	Accident and consent to the contact are the points in play; injury is not.
The battery was committed by strangulation or suffocation, meaning intentionally impeding normal circulation of the blood or breathing by applying pressure on the throat or neck or by blocking the nose or mouth.[2]	A dispute may center here: whether breathing or circulation was impeded, and whether that was intentional.

Two things the definition covers are sometimes overlooked. It includes blocking the nose or mouth, not only pressure on the neck. And it reaches circulation of the blood as well as breathing.^[1]

Why the classification matters

Ordinary domestic assault does not require an injury, and aggravated domestic assault requires a serious or aggravated injury.^[7][8] Strangulation is charged under a different statute and is a felony punishable by imprisonment for not more than 10 years or a fine of not more than $5,000, or both.^[3] It is a Class D crime against a person under the sentencing guidelines.^[9] The statute also allows other charges arising out of the same conduct.^[10] Sentencing is covered in Felony sentencing guidelines, and the path of a felony case in The felony case timeline.

What the Michigan sources do and do not say about proof

It is worth being plain about the state of the published Michigan guidance. The Michigan Judicial Institute's Domestic Violence Benchbook gives the statutory definition of strangulation, but it has no section on how strangulation is proved, on forensic examination protocols, or on expert testimony about strangulation specifically.^[1][5] The one passage that touches the subject is about a homicide: in People v Shipp, the portions of an autopsy report containing the medical examiner's conclusion and opinion that death ensued after attempted strangulation were improperly admitted under the public-records hearsay exception, while the examiner's recorded observations about the body were admissible.^[5]

So this page does not describe medical signs of strangulation or say what an examination will or will not show. Those are medical questions, and in court they are addressed through witnesses under the general rules below.

The evidence typically offered

Testimony of the people who were there

The complaining witness's account of what happened, including whether he or she could breathe, is direct evidence on the third element. So is the testimony of the accused, if the accused chooses to testify, and of anyone else present. Every defendant has the absolute right not to testify.^[11]

Statements made at the time

What was said to a 911 operator, to an officer or to a nurse may be admitted if it fits a hearsay exception. An excited utterance is a statement relating to a startling event made while the speaker was under the stress of excitement that it caused.^[12] MCL 768.27c covers a statement to a law enforcement officer that describes the infliction or threat of physical injury, if its conditions are met.^[13] See 911 calls as evidence and Statements to police under MCL 768.27c.

Photographs and video

A photograph is admitted on testimony from a person familiar with what it shows that it accurately reflects it.^[14] Photographs are not excluded simply because a witness can describe the same thing, and they may be used to corroborate a witness's testimony.^[15] Body camera video, where it exists, shows how the people involved looked and sounded shortly afterward; see Body camera footage.

Medical records

Hospital records can be admitted as records of a regularly conducted activity.^[16] What the patient told the staff is a separate layer: a statement made for, and reasonably necessary to, medical treatment that describes symptoms, their inception, or their general cause fits a hearsay exception, and a statement recorded inside a record must fit an exception of its own.^[17][18] The details are in Photographs and medical records.

Expert and medical witnesses

Either side may call a physician, nurse or other qualified witness. Under Rule 702, expert testimony is admissible if the party offering it demonstrates that it is more likely than not that the expert's knowledge will help the trier of fact, the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and the opinion reflects a reliable application of those principles and methods to the facts of the case.^[4]

Three further rules shape that testimony:

• The basis must be in evidence. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed, and those facts or data must be in evidence or, in the court's discretion, be admitted later.^[19]
• The judge also weighs unfair prejudice. If the testimony meets Rule 702, the court must next determine whether its probative value is substantially outweighed by the danger of unfair prejudice.^[20]
• Examination findings versus history. In People v Alexander, a child-abuse case, the Court of Appeals said that where a medical diagnosis can be drawn from a physical examination, as opposed to a complainant's self-reporting, an expert may testify that a particular injury was not accidentally self-inflicted.^[21] The benchbook cites no decision applying that reasoning to an adult strangulation complaint.

An expert who testifies about how people affected by intimate partner violence commonly behave is under separate limits: such a witness may not say the complainant is truthful or that the defendant is guilty.^[22] See Expert witnesses on domestic violence.

How a strangulation allegation is disputed

The prosecutor must prove each element beyond a reasonable doubt, and the defendant is not required to prove innocence or to do anything.^[23] Within that framework, the points that can be disputed include the following.

• Whether it happened as described. This is a credibility question for the jury. Any party may attack a witness's credibility, and earlier statements that differ from the testimony can be used for that purpose.^[24][25]
• Whether breathing or circulation was impeded. Contact with the neck or face that did not impede normal breathing or circulation of the blood does not meet the statutory definition, though it may still be a battery.^[1][26]
• Intent. The definition requires that the impeding be intentional, and the instruction requires that the touching was intended, not accidental.^[1][2] See Accident and lack of intent.
• Self-defense. If a person acts in lawful self-defense, the actions are justified and the person is not guilty.^[27] Once there is some evidence of self-defense, the prosecutor must prove beyond a reasonable doubt that the defendant did not act in self-defense.^[28] A person may use only the degree of force that seems necessary at the time.^[29] See Self-defense law in Michigan.
• The weight of the physical evidence. Jurors are told that a reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence.^[30] Both the presence and the absence of physical findings are argued under that instruction.

Lesser offenses

A jury may be told about a less serious offense only within limits. A requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser offense and a rational view of the evidence supports it.^[31] Which lesser offense, if any, fits a strangulation charge is not answered by the sources this guide relies on. Domestic assault, for example, has a relationship element that the strangulation instruction does not have.^[32][2] Whether a lesser instruction is given is decided by the trial judge on the evidence in the case.

What people get wrong

"No marks, no strangulation charge." The instruction says it does not matter whether the touching caused an injury.^[2]

"It is only a felony if the person passed out or the accused meant to do great bodily harm." The strangulation alternative in MCL 750.84 stands on its own and does not require proof of intent to do great bodily harm.^[3]

"A hand on the neck is automatically strangulation." The definition requires intentionally impeding normal breathing or circulation of the blood.^[1]

"A medical report settles it either way." A record is evidence, not a verdict. Opinions in it are subject to the hearsay rules, and live medical testimony is subject to Rule 702.^[5][4]