M Civ JI 4.01: Credibility of Witnesses
M Civ JI 4.02: Witness Need Not Be Believed [Recommend No Instruction]
M Civ JI 4.03: Inherently Improbably Testimony [Recommend No Instruction]
M Civ JI 4.04: Witness Willfully False [Recommend No Instruction]
M Civ JI 4.05: Party Competent as a Witness [Recommend No Instruction]
M Civ JI 4.06: Witness Who Has Been Interviewed by an Attorney
M Civ JI 4.07: Weighing Conflicting Evidence—Number of Witnesses
M Civ JI 4.08: One Witness against a Number [Recommend No Instruction]
M Civ JI 4.09: Credibility of Special Categories of Witnesses and Weight of Evidence [Recommend No Instruction]
M Civ JI 4.10: Weighing Expert Testimony [Recommend No Instruction]
M Civ JI 4.11: Consideration of Deposition Evidence
M Civ JI 4.12: Hospital and Business Records [Recommend No Instruction]
You are the judges of the facts in this case, and you must determine which witnesses to believe and what weight to give to their testimony. In doing so you may consider each witness’s ability and opportunity to observe, his or her memory, manner while testifying, any interest, bias or prejudice, and the reasonableness of the testimony considered in the light of all the evidence.
Comment
Instructions including the credibility factors in this instruction have been approved in numerous cases by the Michigan Supreme Court. See, e.g., Hitchcock v Davis, 87 Mich 629; 49 NW 912 (1891); Lovely v Grand Rapids & I R Co, 137 Mich 653; 100 NW 894 (1904); Foley v Detroit & M R Co, 193 Mich 233; 159 NW 500 (1916); Vinton v Plainfield Twp, 208 Mich 179; 175 NW 403 (1919).
History
Comment
The committee recommends that no instruction that the “witness need not be believed” be given. An instruction of this type is not necessary where M Civ JI 4.01 is given, as that instruction adequately covers credibility factors.
The Michigan Supreme Court has held that it is for the jury to determine whether to believe the testimony of a witness, even though it is uncontradicted, where other circumstances or parts of his or her testimony are inconsistent with his or her story. Preuschoff v B Stroh Brewing Co, 132 Mich 107; 92 NW 945 (1903); Michigan Pipe Co v Michigan Fire & Marine Insurance Co, 92 Mich 482; 52 NW 1070 (1892). Counsel can adequately cover the subject in argument.
History
Comment
The committee recommends that no “inherently improbable testimony” instruction be given. An instruction of this type is not necessary where M Civ JI 4.01 is given, as that instruction adequately covers credibility factors.
The trial judge may point out inherently improbable testimony if he or she chooses to comment upon the evidence. Cook v Vineyard, 291 Mich 375; 289 NW 181 (1939). Whether or not this is done is, of course, within the discretion of the trial judge.
However, a specific instruction on this point is argumentative and invades the province of the jury. Counsel can adequately cover the subject in argument.
History
Comment
The committee recommends that no instruction on the “willfully false witness” be given. An instruction of this type is not necessary where M Civ JI 4.01 is given, as that instruction adequately covers credibility factors.
The Michigan Supreme Court has approved an instruction that if the jury finds that a witness has willfully sworn falsely as to a material fact, and the jury should be of the opinion that such false swearing rendered the witness incredible as a whole, they have a right to disregard his or her entire testimony. O’Rourke v O’Rourke, 43 Mich 58; 4 NW 531 (1880). One case held it is error to refuse such an instruction where the evidence supports it. Ketchum v Fillingham, 162 Mich 704; 127 NW 702 (1910).
The instruction, however, has been criticized on the basis that questions concerning credibility of witnesses are the sole province of the jury; if the instruction is given, the jury should also be instructed that no rule of law prevents their giving credit to parts of a witness’s testimony they believe to be true. Hillman v Schwenk, 68 Mich 293; 36 NW 77 (1888); see also Jewell v Kelley, 155 Mich 301; 118 NW 987 (1909).
History
Comment
The committee recommends that no instruction on the “party competent as a witness” be given.
M Civ JI 4.01 informs the jury that they may consider any interest or bias a witness has in determining his or her credibility. It will cover the interest of a party witness, and the committee recommends that no separate instruction on this subject be given. A separate instruction may place undue emphasis upon particular aspects of the evidence.
An instruction which mentioned the interest of an individual party by name or otherwise was disapproved in Seitz v Starks, 144 Mich 448; 108 NW 354 (1906).
History
It has been brought out that a lawyer *(or a representative of a lawyer) has talked with a witness. There is nothing wrong with a lawyer *(or a representative of a lawyer) talking with a witness for the purpose of learning what the witness knows about the case and what testimony the witness will give.
Note on Use
*The words in parentheses should be used if appropriate.Comment
This instruction is unnecessary unless the fact of an interview has been mentioned during the trial. The Court may wish to give this instruction at the time this fact is brought out.This instruction was approved in Socha v Passino , 405 Mich 458 (1979).
History
M Civ JI 4.06 was SJI 2.06.
Amended January 1993, September 2007.
Although you may consider the number of witnesses testifying on one side or the other when you weigh the evidence as to a particular fact, the number of witnesses alone should not persuade you if the testimony of the lesser number of witnesses is more convincing.
Comment
An instruction that weight of the evidence does not mean the number of witnesses was approved in Strand v Chicago & W M R Co, 67 Mich 380; 34 NW 712 (1887), and American Seed Co v Cole, 174 Mich 42; 140 NW 622 (1913). However, any instruction on this subject should make it clear that the ultimate decision is for the jury. King v Ann Arbor R Co, 137 Mich 487; 100 NW 783 (1904); Spalding v Lowe, 56 Mich 366; 23 NW 46 (1885). Therefore, this instruction should be given in conjunction with M Civ JI 4.01.
History
M Civ JI 4.07 is a revision of SJI 2.07.
Amended April 1981.
Comment
The committee recommends that no “one witness against a number” instruction be given.
The Michigan Supreme Court has held that it is error to point out cases where one witness was to be believed against many. Butler v Detroit, Y & AA R Co, 138 Mich 206; 101 NW 232 (1904); Harrison v Green, 157 Mich 690; 122 NW 205 (1909); Lendberg v Brotherton Iron Mining Co, 75 Mich 84; 42 NW 675 (1889). Such instructions have been criticized as suggesting that the trial Court believed one side’s witnesses over the other.
This type of charge is unwarranted where M Civ JI 4.01 and 4.07 are given.
History
Comment
The committee recommends that no instructions on the credibility of special categories of witnesses be given. Such a charge has not been the usual practice and it would seem that these special categories of witnesses, e.g., eyewitnesses, employees, etc., would be adequately covered under M Civ JI 4.01. Counsel can cover such matters more properly in argument.
History
M Civ JI 4.09 was SJI 2.09.
Comment
The committee recommends that no instruction on “weighing expert testimony” be given.
To the extent that matters affecting the weighing of expert testimony are not covered by M Civ JI 4.01, the matter can be left to argument of counsel.
History
During the trial, you heard testimony from a deposition. A deposition is the sworn testimony of a party or witness taken before trial. All parties and their lawyers had the right to be present and to ask questions.
You are to give this evidence the same consideration as you would have given it had the [ witness / witnesses ] testified in open court.
Comment
The Court may wish to give this instruction at the time a deposition is read or shown to the jury, see MCR 2.516(B)(2), and to explain why the deposition is admissible, see MCR 2.308(A).Instructions that deposition evidence should be given the same fair consideration as testimony produced in open court have been approved. Coburn v Moline, EM & W R Co, 243 Ill 448; 90 NE 741 (1909); Pyle v McNealy , 227 Mo App 1035; 62 SW2d 921 (1933); see also 3 Callaghan's Michigan Pleading & Practice (2d ed) § 35.104.
History
M Civ JI 4.11 was SJI 2.11.
Amended January 1988, September 2007.
Comment
The committee recommends that no instruction be given concerning hospital and business records. An instruction on this subject is not necessary and would place undue emphasis upon particular portions of the evidence.
In Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976), the Michigan Supreme Court, quoting with approval SJI 2.12 (now M Civ JI 4.12), held that the trial judge properly refused to give a requested instruction that the jury may consider as evidence matter contained in a hospital record and absence of an entry in that record.
History