In People v. Marshall, No. 150165, the Michigan Supreme Court vacated the opinion of the Court of Appeals and held that MRE 803(7) permits a defendant to introduce evidence that a report of sexual abuse purportedly made to a school official was never documented. The defendant was convicted of multiple counts of criminal sexual conduct. At trial, the defendant sought to introduce evidence that it was never documented that the victim reported sexual abuse to her teacher years earlier, as the victim had testified she did. The trial court did not allow the evidence. On appeal, the defendant argued that the evidence was admissible under MRE 803(7), which allows introduction of “[e]vidence that a matter is not included in the memoranda, reports, records, or data compilations . . . to prove the nonoccurrence or nonexistence of the matter” where such records are kept in the regular course of business. The Court of Appeals held in an unpublished opinion that MRE 803(7) does not apply to evidence of absence of an entire record.
The Michigan Supreme Court held that the evidence of the absence of a record of the report of sexual abuse was admissible under MRE 803(7). The MSC also held that the Court of Appeals erred in affirming the trial court’s decision that the evidence was not relevant under MRE 401, because the evidence was probative of the credibility of the victim. The MSC, however, affirmed the Court of Appeals’ holding that any error was harmless because the trial court allowed the defendant to argue that the absence of a report undermined the victim’s credibility even though it did not allow testimony about the absence of the record.
