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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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It’s the thought that counts—or, for the Michigan Supreme Court, the intent. The court has ordered an MOAA to hear arguments on whether intent matters in an evidence dispute over an unavailable witness. In <em><a href="http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/154566_47_01.pdf" target="_blank" rel="noreferrer noopener">People v. Lopez, No. 327208</a></em>, the Court of Appeals found that the prosecutor threatened the defendant’s key witness. The prosecutor in that case told the witness that giving testimony during trial that differed from previous sworn testimony would result in a charge of perjury and life imprisonment. So, a week before trial, the witness invoked his Fifth Amendment privilege, saying he was no longer willing to testify. The prosecutor then filed a motion to declare Hoskins “unavailable” as a witness and to admit his prior testimony pursuant to MRE 804(b)(1).

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MRE 804(b)(1) provides an exception to the rule against hearsay. The hearsay rule excludes a witness’s prior testimony, but an exception allows the testimony if it: 1) was under oath, 2) was subject to cross-examination by the opposing party, and 3) the witness is unavailable to testify because he has invoked a privilege.&nbsp; However, a witness is not “unavailable” if his refusal to testify is a result of wrong-doing by the party seeking to admit the statement. In this case, Lopez contended that the witness was not “unavailable” because the prosecutor threatened the witness with life in prison.

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Finding that the witness’s unavailability was the result of the prosecution’s threat, the Court of Appeals vacated Lopez’s guilty verdict and remanded for a new trial. The MSC has now ordered arguments on “whether prior testimony is admissible under MRE 804(b)(1) where the proponent of the statement has caused the declarant to be unavailable under MRE 804(a), regardless of any intent by the proponent to cause unavailability.” If intent does matter, the court asks, “[W]hat standards should apply when determining whether the proponent’s actions were intended to cause the declarant to be unavailable[?]”

The MSC is requiring briefs from each party to determine whether to take up this issue. You can read more about this case on our blog <a href="https://www.wnj.com/updates/coa-prosecution-may-not-inform-a-defense-witness-of-the-possibility-of-prosecution-for-perjury" target="_blank" rel="noreferrer noopener">here</a>.

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Madelaine C. Lane

Labor and Employment

MSC to hear MOAA on whether “intent to threaten” matters when threat made witness “unavailable”

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MSC to hear MOAA on whether “intent to threaten” matters when threat made witness “unavailable”

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