When Harmless Error Is Not Harmless: Michigan Supreme Court Limits Reliance on Juror-Instruction Presumptions Where Exclusion of Core Defense Testimony and Instructional Ambiguity Converge

Introduction

In People of Michigan v. Natalie Christina Nelson (No. 166297, decided March 28, 2025), the Michigan Supreme Court reversed the Court of Appeals and remanded for a new trial after concluding that the trial court’s exclusion of critical self-defense testimony on direct examination—later mentioned nonresponsively during recross—was not harmless under People v Lukity (460 Mich 484 (1999)). Writing for the majority, Justice Bernstein held that the convergence of two circumstances rendered the error “more probably than not” outcome-determinative within the meaning of MCL 769.26: (1) the excluded statement was central to the defendant’s self-defense theory and (2) the court’s instructions created a substantial likelihood that jurors were confused about whether they could consider evidence that had once been excluded but later surfaced without objection.

The case arose from a domestic altercation in which Nelson said her boyfriend, Aaron Lewis, assaulted and strangled her and threatened to kill her. Charged with felonious assault, felony-firearm, and domestic violence, Nelson advanced a self-defense theory. The trial court sustained a hearsay objection when she sought on direct to recount Lewis’s threat. The same threat emerged, unobjected to, during Nelson’s fifth recross in a nonresponsive answer. The Court of Appeals acknowledged the evidentiary error but deemed it harmless. The Michigan Supreme Court disagreed, emphasizing the special importance of direct examination for presenting a coherent defense narrative in a credibility contest and the risk of juror confusion under the instructions given.

Summary of the Opinion

The Court reaffirmed Lukity’s harmless-error framework for preserved, nonconstitutional errors under MCL 769.26 and declined to revisit Lukity’s standard.
It held the trial court erred by excluding the defendant’s testimony about Lewis’s threat as “hearsay” because it was offered to show its effect on her state of mind, not for its truth (see MRE 801(c); People v Lee, 391 Mich 618 (1974)).
Although the threat was later stated during a recross-examination exchange, the majority concluded the error remained outcome-determinative:
- The threat was central to the self-defense theory, particularly to justify Nelson’s continued possession of a firearm after the physical assault.
- Direct examination is uniquely important for presenting a complete defense narrative in a credibility contest; allowing the statement only in a nonresponsive recross answer deprived Nelson of that opportunity and shaped closing arguments.
- The jury instructions—both “do not consider excluded/stricken evidence” and “consider all evidence”—likely created confusion about whether the once-excluded testimony could be considered.
The Court reversed the Court of Appeals and remanded for a new trial.

Analysis

1. Precedents and Authorities Cited

MCL 769.26 and People v Lukity (460 Mich 484 (1999))

MCL 769.26 presumes preserved, nonconstitutional error is harmless unless it “affirmatively appear[s]” that the error resulted in a miscarriage of justice. Lukity interprets this as a “more probable than not” outcome-determinative standard. The Nelson majority applied, rather than revised, Lukity. The key move was analytical: the Court demonstrated how, in context, the trial error altered the defense’s ability to present its theory and likely confused jurors on what they could consider, thus satisfying Lukity’s demanding threshold.

Hearsay and Its Non-Hearsay Uses: MRE 801(c) and People v Lee (391 Mich 618 (1974))

The prosecution conceded, and the Court agreed, that the threat was admissible to show its effect on Nelson’s state of mind (fear), not for the truth of any factual proposition asserted by Lewis. People v Lee squarely supports this non-hearsay use. Nelson therefore reinforces Lee’s familiar principle: threats offered to show their impact on a defendant’s perceptions and reactions are not hearsay.

One-on-One Credibility Contests: People v Douglas (496 Mich 557 (2014)); People v Gursky (486 Mich 596 (2010))

The Court invoked Douglas and Gursky for the proposition that in “one-on-one credibility contests,” evidentiary rulings can “tip the scales.” Nelson extends that insight to harmless-error analysis: the improper exclusion of central defense evidence at the critical moment (direct) can distort a defendant’s credibility and cripple narrative coherence, increasing the likelihood of prejudice.

Self-Defense and Contextual Evidence: People v Dupree (486 Mich 693 (2010)); MCL 780.972

Dupree recognizes that justifiable self-defense depends on intentional acts justified by circumstances. The majority explained that, while the jury was instructed on nondeadly force, the threat evidence contextualized why Nelson believed continued harm was plausible and imminent at the time she retrieved and maintained possession of the firearm. The prosecution’s own closing argued she had “no need” for the gun; the threatened killing, coupled with physical assaults, bore directly on whether continued possession was defensive rather than intimidatory.

Instructional Presumptions and Their Limits: People v Unger (278 Mich App 210 (2008)); People v Zitka (335 Mich App 324 (2020)); People v Uribe (508 Mich 898 (2021)); People v Terry (489 Mich 907 (2011))

The Court of Appeals relied on the presumption that jurors follow instructions (Unger; Zitka). The Supreme Court emphasized that such presumptions “cure most errors,” not all. Uribe and Terry acknowledge categories of error where instructions cannot erase prejudice. Here, the trial court told jurors to disregard excluded/stricken evidence and also to consider all evidence. Because the same statement was excluded at one point and later admitted without clarifying guidance, the majority found a substantial likelihood of confusion that undermined the presumption.

Concurring Perspective: Lukity versus Strickland

Justice Cavanagh concurred, noting a potential doctrinal tension between Lukity’s “more probable than not” standard for preserved, nonconstitutional error and Strickland v Washington’s “reasonable probability” prejudice standard for ineffective assistance claims (466 US 668 (1984); see also People v Trakhtenberg, 493 Mich 38 (2012); People v Grant, 470 Mich 477 (2004)). The concurring opinion flags the counterintuitive incentive for defendants to leave errors unpreserved to benefit from the lower “reasonable probability” threshold. The Court, however, found it unnecessary to revisit Lukity in this case.

Dissent’s Position and Supporting Authorities

Justice Zahra (joined by Chief Justice Clement) agreed the evidentiary ruling was erroneous but argued harmlessness:

The threat came in on recross unobjected to, so the jury did hear it.
More compelling support for self-defense arose from Nelson’s testimony of a physical assault; if the jury rejected that, it would not credit the verbal threat.
The dissent characterized the threat as “conditional,” questioning imminence under MCL 780.972(2).
The dissent saw no record evidence of juror confusion and noted jurors could (and did, on another point) submit questions under MCR 2.513(N)(2).
Nelson received a fair trial, not a perfect one (People v Miller, 482 Mich 540 (2008)); counsel could have argued the threat in closing once it was in evidence.
Self-defense may have failed because the jury viewed Nelson as the initial aggressor (see People v Riddle, 467 Mich 116 (2002)).

2. The Court’s Legal Reasoning

The majority’s Lukity analysis turns on three interlocking propositions:

Centrality of the Evidence to the Defense Theory.
The excluded statement—“I will kill you”—was not a side detail; it was the linchpin for why Nelson retrieved and continued to possess the firearm after the hands-on assault. The prosecution’s theory (that the gun was for intimidation) was significantly undermined if a recent death threat was part of the immediate context. Depriving the defense of that proof on direct impaired the defense narrative in a case that boiled down to whom to believe.
Why Direct Examination Matters.
Direct is where a defendant can present a coherent theory, sequence the facts, and tie them to legal standards. The Court expressly recognized a practical trial reality: a nonresponsive mention on a fifth recross, without follow-up and in the shadow of prior sustained objections, is not equivalent to presenting the point cleanly and persuasively on direct. That difference bears on prejudice in a credibility contest (Douglas; Gursky).
Instructional Ambiguity and Juror Confusion.
The trial court told the jury both to ignore excluded/stricken evidence and to consider “all of the evidence regardless of which party presented it.” Because the same statement was explicitly excluded on direct and later surfaced on recross without any clarifying ruling, the Court found it “likely” jurors did not know whether they could consider it. In such circumstances, the general presumption that jurors follow instructions cannot do the work of curing prejudice, particularly where the error already reshaped how both parties tried and argued the case.

Synthesizing these elements, the Court concluded that the misstep “more probably than not” affected the verdict, meeting Lukity’s threshold even without revisiting the standard itself.

3. Impact and Forward-Looking Implications

a) Trial Practice and Evidentiary Rulings

Effect-on-the-listener statements are admissible non-hearsay. Trial judges should resist hearsay objections to threats offered to prove the defendant’s state of mind (Lee; MRE 801(c)).
Direct examination remains paramount for core defense theories. Erroneous exclusion on direct can be prejudicial even if the same evidence later slips in on cross, especially in credibility contests.
Curative instruction must be specific when evidence status changes. If previously excluded testimony is later admitted (or vice versa), courts should clarify for jurors what they may consider to avoid the precise confusion that led to reversal here.
Closing-argument constraints are real. Where a court has sustained objections and admonished parties not to refer to certain statements, defense counsel may reasonably refrain from highlighting them in summation; trial courts should give explicit permission once admissibility changes.

b) Appellate Harmless-Error Review

“Later admission” does not automatically cure prejudice. Appellate courts should scrutinize the timing, context, and manner of admission. A nonresponsive recross mention is qualitatively different from a full direct-exam presentation supporting a cohesive defense narrative.
Instructional ambiguity can undermine the “jurors follow instructions” presumption. When instructions tug in opposite directions (ignore excluded evidence vs consider all evidence), courts must assess whether jurors likely understood what to do with once-excluded-now-admitted testimony.
Lukity remains the standard, but Nelson refines its application. Nelson offers a concrete illustration of how contextual trial realities can satisfy the “more probable than not” outcome-determinative test.

c) Substantive Self-Defense Litigation (MCL 780.972)

Context matters. Evidence of threats can bear on whether continued possession or display of a firearm was defensive rather than intimidatory, even under a nondeadly-force instruction, by illuminating perceived imminence and escalation.
Conditional threats. The dissent’s “conditional-threshold” critique signals a point of trial-level contest: parties should be prepared to argue whether a given threat demonstrates imminence or only future contingent harm.

d) The Lukity/Strickland Tension Remains Live

Justice Cavanagh’s concurrence revives concerns from People v Parsley (Larsen, J., concurring) that Michigan law may perversely incentivize defendants to forgo preservation given the lower “reasonable probability” prejudice standard under Strickland. While the Court did not address the issue here, practitioners should track future cases: the Court could eventually harmonize or clarify these regimes, or the Legislature could intervene.

Complex Concepts, Simplified

Hearsay vs. non-hearsay “effect on the listener”: A threat is not hearsay when offered to show its impact on the hearer’s state of mind (fear), not to prove the threatener would actually carry out the threat.
Preserved, nonconstitutional error (MCL 769.26): If a defense lawyer objected at trial and the error is not constitutional in nature, a conviction is reversed only if it is more probable than not that the error affected the outcome (Lukity).
Credibility contest: A case that boils down to “who do you believe?” Small evidentiary rulings can loom large because they affect how believable each side appears.
Nondeadly vs. deadly force (MCL 780.972): Nondeadly force requires an honest and reasonable belief of the need to defend against the imminent unlawful use of force. Deadly force has higher requirements (e.g., preventing imminent death or great bodily harm). Here, the jury was instructed on nondeadly force, but the threat still mattered to context and perception.
Instructional presumptions and their limits: Courts usually assume jurors follow instructions. But conflicting or ambiguous instructions about what evidence is in or out can defeat that presumption.
Direct vs. recross-examination: Direct is where the defense lays out its entire story. If key testimony is blocked there and only later appears in a limited or messy way, the defense may be severely prejudiced.

Conclusion

People v. Nelson does not rewrite Michigan’s harmless-error law; it operationalizes Lukity with a practical, trial-sensitive lens. The decision establishes that:

Excluding core self-defense testimony on direct examination can be outcome-determinative even if the same content later emerges during recross in a nonresponsive answer.
General presumptions that jurors follow instructions cannot cure prejudice where instructions likely sow confusion about whether once-excluded evidence may be considered.
In credibility contests, depriving the defendant of a coherent direct-exam narrative on a central issue may tip the scales, satisfying Lukity’s “more probable than not” test.

For trial courts, Nelson counsels careful rulings on “effect on the listener” evidence and explicit clarifying instructions when the evidentiary status of a statement changes mid-trial. For advocates, it highlights the importance of creating a record that shows how an error reshaped the defense narrative and closing arguments. For appellate courts, it provides a textured example of how Lukity should be applied when error and instructional ambiguity converge. And for the broader law, the concurrence spotlights an unresolved tension between Lukity’s prejudice standard and Strickland’s, a question that may return in a future case.

Principal opinions: Majority by Justice Bernstein (joined by Justices Cavanagh, Welch, Bolden); concurrence by Justice Cavanagh; dissent by Justice Zahra (joined by Chief Justice Clement). Justice Thomas did not participate.