The Michigan Court of Appeals is publishing Shuler v. Sutton (February 10, 2004, No. 239291). That decision describes the relationship of MRE 609 (use of convictions to impeach) and MRE 410 (inadmissibility of no contest pleas) (excerpt):
The trial court erred, however, in deciding that MRE 609 and MRE 410 conflict. MRE 410 excludes evidence of a plea of no contest, while MRE 609 permits use of certain convictions for impeachment purposes, regardless whether the specific conviction followed a guilty plea, a no-contest plea, or a not-guilty plea. Although no published opinion of this Court or our Supreme Court addresses the intersection of these two rules, we agree with the federal courts of appeal that have determined, after construing federal rules that are nearly identical in all relevant respects, that a conviction that ordinarily could be used for impeachment purposes is not excluded from that use because the conviction resulted from a plea of no contest. See Brewer v City of Napa, 210 F3d 1093, 1096 (CA 9, 2000), citing United States v Williams, 642 F 2d 136, 138-140 (CA 5, 1981); United States v Lipscomb, 702 F2d 1049, 1070 (DC Cir, 1983). As these courts noted, FRE 609 does not distinguish between convictions arising from guilty pleas and those arising from no-contest or not-guilty pleas. Brewer, supra at 1096. Similarly, MRE 609 does not contain such a distinction.
A plea of no contest “admits ‘every essential element of the offense [that is] well pleaded in the charge.’” Williams, supra at 138, quoting Lott v United States, 367 US 421, 426; 81 S Ct 1563, 1567; 6 L Ed 2d 940 (1961). Although a no-contest plea cannot be used as an admission, it nevertheless forms the basis of a conviction that can be used to impeach, just as a conviction following a not-guilty plea and trial can be used to impeach credibility. Williams, supra at 139. Therefore, the fact that Dr. Sutton’s conviction of attempted perjury resulted from a plea of no contest bears no relevance in the analysis whether the conviction can be used to impeach his credibility.
Moreover, because this conviction indisputably falls within the class of crimes that “contain[] an element of dishonesty or false statement” that are available for impeachment use pursuant to MRE 609(a)(1), the trial court may not engage in the balancing test of MRE 609(b) or MRE 403 to exclude the conviction because of its prejudicial effect. People v Allen, 429 Mich 558, 593-594, 594 n 16; 420 NW2d 499 (1988) (stating that “[s]ince we find that as a matter of law prior convictions of crimes involving dishonesty or false statement are more probative than prejudicial, it obviously cannot be argued that the probative value is ‘substantially outweighed’ by prejudice.”). Accordingly, the trial court lacked the discretion to prohibit MPMLC from impeaching Dr. Sutton with his conviction of attempted perjury, although MPMLC could not have done so by indicating that Dr. Sutton pleaded no contest to that crime.
Despite the trial court’s improper exclusion of this evidence, we need not reverse because failure to do so would not be inconsistent with substantial justice. MCR 2.613. Through Dr. Sutton’s testimony, the jury learned that Dr. Sutton pleaded guilty to CSC charges and that he later testified that he did not commit those crimes. Although the jury did not learn that he was convicted of attempted perjury, the readily apparent inconsistencies in his testimony could have conveyed his lack of credibility to the jury with equal force.