Where statements are admitted pursuant to the domestic violence statute, does defendant still have a right to confront that witness?

Author: LegalEase Solutions

QUESTIONS PRESENTED

  1. a. Where statements are admitted pursuant to the domestic violence statute, does defendant still have a right to confront that witness?
  2.  If that witness does not show up for trial, can her statements still be admitted if we do not have an opportunity to cross-examine her?
  3. Case law supporting the argument that a defendant is not obligated at all to provide any discovery materials to the prosecutor in a misdemeanor case.​

 

SUMMARY

  1. The right to confront a witness is a constitutional guaranteed right to a defendant. MCL § 768.27c does not take away any privilege conferred by law. The right to confront the witness is denied only if the absence of the witness is caused by any act of the defendant. Though the statements made by to law enforcement officers are admissible in domestic violence cases, the prosecution can make use of the testimonial statement of a witness only if the defendant had a prior opportunity to cross examine that witness or he gets a chance to cross examine the witness at trial.
  1. The Administrative Order No. 1999-3 of Michigan Supreme Court has made it clear that MCR 6.201 does not apply to misdemeanor cases.

 

RESEARCH FINDINGS

  1. Right to confront the witness and opportunity to cross examine her.

“A defendant has a constitutionally guaranteed right to present a defense, which includes the right to call witnesses.” People v Yost, 278 Mich App 341, 379; 749 NW2d 753, 779 (2008).

“In MCL 768.27c, the Legislature determined that under certain circumstances, statements made to law enforcement officers are admissible in domestic violence cases.” People v Meissner, 294 Mich. App 438, 445; 812 NW2d 37, 42 (2011). But, “[n]othing in this section shall be construed to abrogate any privilege conferred by law.” MCL § 768.27c.

Further, “[c]ertain testimony offered pursuant to MCL 768.27c may be subject to challenge based on the Confrontation Clause.”  Meissner, supra at 446 n2; 812 NW2d 37(2011).

It is settled law that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v Washington, 541 US 36, 53-54; 124 S Ct 1354, 1365; 158 L Ed 2d 177 (2004).

The US Supreme Court explains the testimonial and non testimonial statements as:

[S]tatements are non testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 813-14, 126 S. Ct. 2266, 2268-69, 165 L. Ed. 2d 224 (2006).

“MRE 804(b)(6) provides an exception to the hearsay rule for a statement by a declarant made unavailable by the opponent.” People v Jones, 270 Mich App 208, 212; 714 NW2d 362, 366 (2006). “A witness is considered unavailable if he or she is ‘absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance … by process or other reasonable means, and in a criminal case, due diligence is shown.’” Yost, supra at 370; 749 NW2d 753 (quoting MRE 804(a)(5)).

“‘If … the witness is only unavailable to testify because the defendant has killed or intimidated her, then the defendant has forfeited his right to confront that witness.’” Jones, supra at 214-15; 714 NW2d 362 (quoting United States v. Cromer, 389 F.3d 662, 679 (C.A.6, 2004)).

In the instant case, the defendant is entitled to confront the witness. The statement of the witness made pursuant to MCL § 768.27c can be admitted only if the defendant gets a chance to cross examine the witness. The only situation where the defendant loses his right to confront the witness is where he has killed or intimidated her.

  1. Case law supporting the argument that a defendant is not obligated to provide any discovery materials in a misdemeanor case.​

“‘There is no general constitutional right to discovery in a criminal case….’” People v Stanaway, 446 Mich 643, 664; 521 NW2d 557, 568 (1994) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977)).

Further, “[i]n clarifying what is subject to discovery under Michigan’s criminal discovery rule, … Supreme Court held that either the subject of the discovery must be set forth in the rule or the party seeking discovery must show good cause why the trial court should order the requested discovery.” People v Greenfield, 271 Mich App 442, 448; 722 NW2d 254, 257 (2006).

The law on the application of MCR 2.601 to misdemeanor cases is settled – “[w]e recognize that, in Administrative Order No. 1999-3, our Supreme Court made clear that, contrary to a statement in Sheldon, MCR 6.201 applies only to felony cases … we reiterate for the bench and bar that MCR 6.201 does not apply to misdemeanor cases.” Id. at 450 n6; 722 NW2d 254, 258 (2006).

Relevant Administrative Order

ADMINISTRATIVE ORDER NO.1999-3

Discovery in Misdemeanor Cases

On order of the Court, in the case of People v Sheldon, 234 Mich App 68; 592 NW2d 121 (1999) (COA Docket No. 204254), the Court of Appeals ruled that MCR 6.201, which provides for discovery in criminal felony cases, also applies to criminal misdemeanor cases. That ruling was premised on an erroneous interpretation of our Administrative Order No. 1994-10. By virtue of this Administrative Order, we wish to inform the bench and bar that MCR 6.201 applies only to criminal felony cases. Administrative Order No. 1994-10 does not enlarge the scope of applicability of MCR 6.201. See MCR 6.001(A) and (B).

 

CONCLUSION

The right to confront a witness is a constitutional guaranteed right to a defendant. The statements of a witness under MCL § 768.27c can be admitted only if the defendant is provided with an opportunity to cross examine the witness. Further, MCR 6.201 (the rule relating to discovery) is not applicable in misdemeanor cases.