3.5 Criminal Defendant’s Right of Confrontation
A criminal defendant has the right to confront the witnesses against them. US Const, Am VI ; Const 1963, art 1, § 20 ; MCL 763.1 . The Confrontation Clause of the Sixth Amendment is made applicable to the states through the Fourteenth Amendment. Pointer v Texas , 380 US 400, 403 (1965); People v Sammons , 191 Mich App 351, 356 (1991). The Confrontation Clause implicates two broad categories of cases: those involving the admission of out-of-court statements and those involving restrictions imposed by law or the trial court on the scope of cross-examination. Delaware v Fensterer , 474 US 15, 18 (1985). “By its straightforward terms, the Confrontation Clause directs inquiry into two questions: (1) Does the person in controversy compromise a ‘witness against’ the accused under the Confrontation Clause; and (2) if so, has the accused been afforded an opportunity to ‘confront’ that witness under the Confrontation Clause?” People v Fackelman , 489 Mich 515, 562 (2011).
The protections of the Confrontation Clause extend to pretrial entrapment hearings, Sammons , 191 Mich App at 362, and pretrial suppression hearings, People v Levine , 231 Mich App 213, 223 (1998), vacated on other grounds 461 Mich 172 (1999). 2 However, the protections do not apply at the preliminary examination. People v Olney , 327 Mich App 319, 330-331 (2019).
“A primary interest secured by the Confrontation Clause is the right of cross-examination.” People v Brown , ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “The right of confrontation insures that the witness testifies under oath at trial, is available for cross-examination, and allows the jury to observe the demeanor of the witness.” Id . at ___ (cleaned up) (observing that “[c]ross-examination is a valuable right of the accused to expose falsehoods and bring out the truth.”) “An inability to understand a witness may interfere with a defendant’s right to cross-examine a witness,” such as an inadequate translation. Id . at ___. However, the Confrontation Clause guarantees only that a defendant has the opportunity for effective cross-examination; a defendant is not guaranteed an ideal cross-examination. United States v Owens , 484 US 554, 559 (1988) (holding a defendant’s right to confrontation is satisfied when the defendant has the opportunity to explore matters such as a witness’s poor eyesight, bias, and bad memory). Indeed, “the right of cross-examination is not unfettered; it does not include a right to cross-examine witnesses about irrelevant issues and may bend to other legitimate interests of trial procedure or societal expectations.” Brown , ___ Mich App at ___.
“[A] defendant’s right to confront a witness in the context of the witness’s assertion of her Fifth Amendment right does not arise unless there was substantial evidence put before the jury in the form of testimony or its functional equivalent.” People v Clark , 330 Mich App 392, 395 (2019). Where “[t]he prosecutor never got the opportunity to ask [the witness] a question, . . . her assertion of a privilege was not associated with any questions that could serve as the functional equivalent of testimony.” Id . at 429. Additionally, the prosecutor’s indication during his opening statement that the witness would testify and implicate defendant in a murder did not amount to the functional equivalent of testimony “because the opening statement was separated in time from [the witness’s] assertion of the privilege, because defense counsel responded to the prosecutor’s summary in her opening statement, and because the trial court instructed the jury that the parties’ opening statements were not evidence[.]” Id . at 429-430 (“[i]n the absence of evidence that the prosecutor knew that [the witness] would assert her privilege in front of the jury, defendant [could not] establish a plain evidentiary error”).
The right of the accused to confront witnesses is a crucial element of the trial process and serves to protect the defendant’s right to a fair trial. US Const, Am VI ; Const 1963, art 1, § 20 . Accordingly, “[e]vidence directly implying the substance of a testimonial, out-of-court statement made by an unavailable witness and offered to prove its truth is inadmissible[.]” People v Washington , 344 Mich App 318, 333 (2022). “A witness may feel quite differently when he has to repeat his story looking at the man [or woman] whom he will harm greatly by distorting or mistaking the facts.” Coy v Iowa , 487 US 1012, 1019 (1988) (quotation marks and citation omitted). In Coy , the defendant’s right of confrontation was violated where a screen was placed between him and the complaining witnesses. Id . at 1020. In People v Sammons , 191 Mich App 351, 356, 366 (1991), the defendant’s right of confrontation was violated when the trial court permitted a police informant to testify at an entrapment hearing while wearing a mask, and without disclosing his true identity, “[b]ecause the masking . . . precluded the trial judge from adequately observing the witness’ demeanor while testifying.”
“The purpose of the Confrontation Clause is to provide for a face-to-face confrontation between a defendant and his accusers at trial.” People v Serges , ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “This confrontation is an important right of the defendant because it enables the trier of fact to judge the witnesses’ demeanors.” Id . at ___ (quotation marks and citation omitted) (observing that the Confrontation Clause protects a criminal defendant’s “right physically to face those who testify against him”). “The Supreme Court’s decision in Coy , 487 US at 1020-1022, does not mandate a conclusion that mask wearing during a pandemic violates the Confrontation Clause.” Serges , ___ Mich App at ___. In Serges , “for safety reasons, the trial court gave defendant a choice between wearing a mask or sitting at a distance from his trial counsel,” and “[d]efendant chose to wear a mask.” Id . at ___, ___. Further, “the record indicate[d] that the witnesses removed their masks when they were on the stand and testifying,” and “[w]hen defense counsel cross-examined the witnesses, he also removed his mask.” Id . at ___, ___. “Defendant insist[ed] that, because he had to wear a mask, the witnesses were allowed to provide testimony without viewing him.” Id . at ___. However, “[n]othing blocked the witnesses’ view of defendant during trial in this case nor interfered with his view of the witnesses testifying. While defendant’s nose and mouth were covered by a cloth mask, his eyes and upper face were visible.” Id . at ___. “A cloth mask covering only part of defendant’s face is not the same as a barrier to view. Defendant remained physically in the room with the witnesses, they could see him, he could see them, and they underwent cross-examination by his unmasked counsel.” Id . at ___ (rejecting defendant’s contention that “the ‘face-to-face’ confrontation guarantee cannot be fulfilled when a defendant is required to wear a mask”).
Indeed, “face-to-face confrontation is not an indispensable element of the Confrontation Clause”—“[t]he right may be satisfied without face-to-face confrontation when denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” People v Brown , ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). In Brown , the defendant contended that his Confrontation Clause rights were violated when a witness “was permitted to testify while wearing a face mask” because “the mask interfered with the jury’s ability to assess [the witness’s] credibility by covering part of his face and the mask made [the witness’s] testimony difficult to understand.” Id . at ___. However, the Court of Appeals concluded that “the face mask worn by [the witness] did not completely cover his face and apparently did not impair a viewing of [the witness’s] expressions or the ability to assess his credibility.” Id . at ___. Moreover, “the trial court took measures, including directing [the witness] to speak into the microphone and apparently shutting off the ventilation system, to improve the clarity of [the witness’s] testimony for the parties and the jurors listening to the testimony.” Id . at ___ (noting that “[a]fter these measures were taken, there were no complaints of a continued inability to hear or understand [the witness’s] answers to the questions posed”). Further, “defense counsel was not limited in his questioning” on cross-examination and “was allowed to cover questions and topics raised during direct examination.” Id . at ___. Therefore, the Brown Court held that the defendant failed to demonstrate “that any error in his ability to hear some of [the witness’s] answers affected the outcome of the lower court proceedings because there is no indication that defendant missed and was unable to respond to [the witness’s] testimony in a manner that impaired his ability to cross-examine him.” Id . at ___ (acknowledging another jurisdiction’s statement that “protecting people against COVID-19 transmission was an important public policy interest,” and noting that the witness in Brown “expressed his desire to continue wearing the mask in light of COVID-19”).
“In allowing [a forensic analyst’s] two-way, interactive video testimony [at trial] over the defendant’s objection, the trial court violated the defendant’s Confrontation Clause rights.” People v Jemison (Jemison I) , 505 Mich 352, 366-367 (2020) (remanded to “determin[e] whether that violation was harmless beyond a reasonable doubt”). Where it was undisputed that the “evidence was testimonial,” “[t]he defendant had a right to face-to-face cross-examination; [the witness] was available, and the defendant did not have a prior chance to cross-examine him.” Id . at 366. Thus, “[t]he defendant’s state and federal constitutional rights to confrontation were violated by the admission of [the witness’s] two-way, interactive video testimony.” Id . “[E]xpert witnesses called by the prosecution are witnesses against the defendant,” and “[t]he prosecution must produce” witnesses against the defendant. Id . at 364 (further holding “expense is not a justification for a constitutional shortcut”). On remand, the Court of Appeals determined that the error was harmless and affirmed the conviction. See People v Jemison (On Remand) (Jemison II) , unpublished per curiam opinion of the Court of Appeals, issued December 17, 2020 (Docket No. 334024), p 8.
However, the right to confront witnesses is not absolute and may succumb to other compelling interests. People v Kasben , 158 Mich App 252, 255 (1987). For example, “the prohibitions [on questions regarding a victim’s previous sexual conduct] in the rape-shield law will not deny a defendant’s right of confrontation in the overwhelming majority of cases[.]” People v Arenda , 416 Mich 1, 13 (1982).
“[T]he Confrontation Clause does not prohibit the use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.” Maryland v Craig , 497 US 836, 857 (1990). In Maryland , the Court recognized an “important state interest in preventing trauma to child witnesses in child abuse cases,” holding that the defendant’s right of confrontation was not violated in a child sexual abuse case where the child victim testified outside the defendant’s physical presence via one-way closed-circuit television. Id . at 856-857 (“where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause’s truth-seeking goal”). While not provided face-to-face, testimony given under oath that is subject to full cross-examination and is observed by the judge, jury, and defendant in real time, is in harmony with the Confrontation Clause. Id . at 857. 3
In People v Rose , 289 Mich App 499, 516 (2010), the trial court did not violate the defendant’s right to confrontation by permitting the child victim to testify with a witness screen, where the trial court found that the victim feared the defendant, that the witness screen was necessary to protect the child’s welfare, that there was a high probability that testifying face-to-face with the defendant would cause psychological damage to the victim, and that having to testify face-to-face with the defendant may cause the victim to abstain from testifying altogether. Additionally, “aside from [the victim’s] inability to see [the defendant], the use of the witness screen preserved the other elements of the confrontation right and, therefore, adequately ensured the reliability of the truth-seeking process.” Id . at 516-517.
“In order to warrant the use of a procedure that limits a defendant’s right to confront his accusers face to face, the trial court must first determine that the procedure is necessary to further an important state interest. The trial court must then hear evidence and determine whether the use of the procedure is necessary to protect the witness. In order to find that the procedure is necessary, the court must find that the witness would be traumatized by the presence of the defendant and that the emotional distress would be more than de minimis .” Rose , 289 Mich App at 516 (internal citations omitted).
For more information on the use of two-way interactive video technology in certain proceedings or special protections for certain victims and witnesses, see Section 3.5(G) .
C. Removal of Defendant from Courtroom Due to Conduct
The Confrontation Clause guarantees the right of the defendant to be present at trial. Illinois v Allen , 397 US 337, 338 (1970). See also MCL 768.3 . However, “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.” Allen , 397 US at 343. “Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id . Ordinarily, the defendant must be warned before he or she is removed from the courtroom, but a defendant may be removed without a warning when his or her behavior is aggressive and violent. People v Staffney , 187 Mich App 660, 664-665 (1990). See also People v Buie (On Remand) , 298 Mich App 50, 59 (2012) (“[a]lthough [the defendant] had a . . . history of acting out and disrupting [prior] proceedings,” his removal from the courtroom following a single interruption of voir dire was not justified where he was also not “continually warned by the court to modify his behavior to avoid removal”).
A defendant may waive his or her constitutional and statutory right to be present during trial. People v Kammeraad , 307 Mich App 98, 117-118 (2014) (finding “defendant did not waive his right to be present for trial through a voluntary relinquishment of the right when he asked to be removed from the courtroom” because “the record [did] not reflect that defendant was ever specifically informed of his constitutional right to be present”; notwithstanding, “defendant lost his right to be present because of his disorderly and disruptive behavior”).
D. Unavailable Witness
The Confrontation Clause bars the admission of testimonial statements of an unavailable witness unless the defendant had a prior opportunity for cross-examination. Crawford v Washington , 541 US 36, 68 (2004). 4 “However, the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted.” People v Chambers , 277 Mich App 1, 10-11 (2007) (“a statement offered to show the effect of the out-of-court statement on the hearer does not violate the Confrontation Clause”).
1. Constitutional Unavailability
“A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing, and
(A) the statement’s proponent has not been able, by process or other reasonable means, to procure:
(i) the declarant’s attendance, in the case of a hearsay exception under [ MRE 804(b)(1) ] or [ MRE 804(b)(6) ]; or
(ii) the declarant’s attendance or testimony, in the case of a hearsay exception under [ MRE 804(b)(2) ], [ MRE 804(b)(3) ], or [ MRE 804(b)(4) ]; and
(B) in a criminal case, the proponent shows due diligence.” MRE 804(a) .
However, MRE 804(a) “does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.” Id .
“[A] declarant who appears at trial but claims memory loss is ‘available’ for purposes of the Confrontation Clause, even though [Michigan’s] hearsay rules provide that a declarant is unavailable when the declarant [‘testifies to not remembering the subject matter,’] MRE 804(a)(3) .” People v Sardy (On Remand) , 318 Mich App 558, 565 (2017). 5 Accordingly, “the Confrontation Clause does not place any constraints on the use of a prior testimonial statement, and . . . the Clause does not bar the admission of a prior testimonial statement ‘so long as the declarant is present at trial to defend or explain it.’” Id . at 563, quoting Crawford v Washington , 541 US 36, 59 n 9 (2004). In Sardy (On Remand), 318 Mich App at 565-566, a Confrontational Clause violation occurred where “[a] lthough defendant was able to cross-examine the victim at the preliminary examination, defendant was not given the opportunity to cross-examine her at trial relative to the CSC-II charges, . . . [and t]he jury was not presented with cross-examination testimony regarding the fact that the victim could no longer recall or remember the substance of the claims she had made at the time of the preliminary examination”; thus defendant was deprived “of the opportunity to potentially undermine entirely the charges of CSC-II.”
2. Testimonial and Nontestimonial Statements
“A statement is testimonial if it was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” People v Washington , ___ Mich ___, ___ (2024) (cleaned up). Importantly, “the standard requires courts to consider the foreseeability—based on the context at the time the statement was made—of whether the statement would later be used at trial.” Id . at ___. The United States Supreme Court has declined to delineate a comprehensive definition of “testimonial,” but has provided the following examples of testimonial and nontestimonial statements :
• formal police interrogations,
• plea allocutions, and
• casual remarks to acquaintances,
• off-hand, overheard remarks,
• statements in furtherance of a conspiracy,
• statements unwittingly made to informants, and
• business records. Crawford v Washington , 541 US 36, 51-52, 56-58 (2004).
Following Crawford , the Court clarified the definition of “testimonial statement” in Davis v Washington , 547 US 813 (2006). The Court held that whether hearsay evidence constitutes a “testimonial statement” requires a court to conduct an objective examination of the circumstances under which the statement was obtained. Davis , 547 US at 826. “Statements are nontestimonal when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency .” Id . at 822 (emphasis added). “They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id . (emphasis added). In Davis , the Court concluded that statements made to a 911 operator were nontestimonial because they described events “as they were actually happening,” in an “ongoing emergency.” Id . at 827. But in the companion case of Hammon v Indiana , the Court concluded that statements made to the police at a crime scene were testimonial because they were made during the course of an investigation of past criminal conduct and there was no ongoing emergency. Id . at 826-832.
Subsequently, the United States Supreme Court expounded on the “primary purpose test” noting “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v Bryant , 562 US 344, 358 (2011). “One additional factor is the informality of the situation and the interrogation.” Ohio v Clark , 576 US 237, 245 (2015) (quotation marks and citation omitted). However, the Michigan Supreme Court “has soundly rejected application of the ‘primary purpose’ test outside of an emergency context.” Washington , ___ Mich at ___ (noting that “while Davis employed a primary purpose inquiry to determine whether statements made to the police in the very specific context of an ongoing emergency were testimonial, Davis did not mandate that this was the exclusive test to be applied generally in Confrontation Clause cases”) (cleaned up). Indeed, “nothing in Davis replaced the controlling standard in Crawford to determine whether a statement is ‘testimonial’ when made outside of an emergency context.” Washington , ___ Mich at ___, n 5. See People v Fackelman , 489 Mich 515, 558-559 (2011) (although the primary purpose test “obviously makes sense in the context for which it was specifically designed, emergency circumstances in which there is often ambiguity concerning the objectives or purposes of the declarant’s utterances[,] . . . [i]t is utterly unclear how a court would apply the ‘primary purpose’ test outside the Davis context to a case in which no emergency is alleged”).
To determine whether statements made by a victim of sexual abuse to a Sexual Assault Nurse Examiner (SANE) are testimonial or nontestimonial in nature, the court “must consider the totality of the circumstances of the victim’s statements and decide whether the circumstances objectively indicated that the statements would be available for use in a later prosecution or that the primary purpose of the SANE’s questioning was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency.” People v Spangler , 285 Mich App 136, 154 (2009). The Spangler Court set forth a nonexhaustive list of factual indicia helpful to making an admissibility determination under the Confrontation Clause. See id . at 155-156. See also People v Garland , 286 Mich App 1, 11 (2009), discussed in Section 3.5(D)(2)(b) , finding that statements made to a SANE were nontestimonial under the facts of the case.
a. Examples of Testimonial Statements
Report and affidavit of laboratory analyst. An unsworn forensic laboratory report in which a laboratory analyst certified that he had tested the defendant’s blood-alcohol concentration (BAC), and that the BAC was well above the threshold for the crime of aggravated driving while intoxicated, was created solely for an evidentiary purpose and was therefore testimonial. Bullcoming v New Mexico , 564 US 647, 651-652, 663-664 (2011). Accordingly, “[t]he [defendant’s] right [was] to be confronted with the analyst who made the certification, unless that analyst [was] unavailable at trial, and the [defendant] had an opportunity, pretrial, to cross-examine that particular scientist”; the in-court “surrogate testimony” of a scientist who did not sign the report or perform or observe the test was not sufficient to satisfy the requirements of the Confrontation Clause. Id. at 652, 661-662. See also Melendez-Diaz v Massachusetts , 557 US 305, 307-308, 311, 329 (2009) (the affidavits of state laboratory analysts stating that material seized by police and connected to the defendant was a certain quantity of drugs constituted testimonial hearsay and could not be admitted as evidence unless the analysts who authored the affidavits testified at trial or the defendant had the opportunity to previously cross-examine them regarding the affidavits); People v Payne , 285 Mich App 181, 196, 198 (2009) (the admission of a nontestifying DNA analyst’s laboratory reports violated the defendant’s Sixth Amendment right to confrontation because the witnesses who actually testified concerning the laboratory reports “had not personally conducted the testing, had not personally examined the evidence collected from the victims, and had not personally reached any of the scientific conclusions contained in the reports”; the laboratory reports constituted testimonial hearsay absent a showing that the DNA analyst was unavailable to testify and that the defendant had a prior opportunity for cross-examination). 6
Codefendant’s confession. A nontestifying codefendant’s formal, Mirandized confession to authorities is testimonial. Samia v United States , 599 US ___, ___ (2023). In Samia , the United States Supreme Court held that “altering a nontestifying codefendant’s confession not to name the defendant, coupled with a limiting instruction, was enough to permit the introduction of such confessions at least as an evidentiary matter.” Id . at ___. Accordingly, the introduction of a nontestifying codefendant’s “altered confession” — which “did not directly inculpate the defendant” — “coupled with a limiting instruction did not violate the Confrontation Clause.” Id . at ___.
Autopsy report. A statutorily-mandated autopsy report prepared by two nontestifying medical examiners was testimonial, and its admission violated the defendant’s Sixth Amendment right to confrontation. People v Lewis , 490 Mich 921 (2011) (however, “the admission of the report was not outcome determinative”).
Medical report of psychiatrist. A non-testifying psychiatrist’s out-of-court medical report that “memorialized defendant’s medical history and the events that led to his admittance to the hospital, provided [an] all-important diagnosis, and outlined a plan for treatment” constituted a testimonial statement that was used as substantive evidence of the defendant’s sanity in violation of his Sixth Amendment right of confrontation. People v Fackelman , 489 Mich 515, 518-519, 532, 564 (2011). In Fackelman , two testifying expert witnesses disagreed as to whether the defendant was legally insane at the time of the crimes, which was the sole issue at trial. Id . at 521, 538. The defendant’s expert witness testified that in making his determination that the defendant was legally insane, he relied in part on a report prepared by a hospital psychiatrist regarding the defendant’s psychiatric condition two days after the incident; however, the report was neither authenticated nor admitted as evidence, and the defendant did not elicit testimony regarding the psychiatrist’s diagnosis. Id . at 536-541. On cross-examination, the prosecutor revealed the hospital psychiatrist’s diagnosis of “‘major depression, single episode, . . . severe, without psychosis’”; the prosecutor subsequently referred to the report in his examination of the prosecution’s expert witness, who testified that she agreed with the diagnosis. Id . at 522-523.
The Michigan Supreme Court held that the report, which was made following the defendant’s arrest and “expressly focused on defendant’s alleged crime and the charges pending against him,” constituted testimonial evidence because it “was ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Fackelman , 489 Mich at 532, 533, quoting Crawford v Washington , 541 US 36, 52 (2004). Moreover, “the prosecutor’s improper introduction and repeated use of [the] diagnosis that defendant was not, in fact, experiencing psychosis fully rendered the [psychiatrist] a witness against defendant.” Fackelman , 489 Mich at 530. Because the diagnosis “provided a tiebreaking expert opinion” by “the only expert unaffiliated with either party . . . [and] the only doctor who had personal knowledge concerning [the] dispositive issue,” its use at trial constituted plain error requiring reversal of the defendant’s convictions. Id . at 538, 564.
Expert forensic report. The admission of expert testimony based on a report prepared by non-testifying forensic analysts violated the defendant’s Sixth Amendment right to confrontation because “the testing . . was performed in anticipation of a criminal trial, after the medical examiner’s original findings had been challenged.” People v Dendel (On Second Remand) , 289 Mich App 445, 468 (2010). Specifically, “[t]he medical examiner did not merely delegate to the . . . laboratory an ordinary duty imposed by law: he sought from the lab specific information to investigate the possibility of criminal activity. Under th[o]se circumstances, any statements made in relation to th[e] investigation took on a testimonial character.” Id . 7
Evidence implicitly introducing unavailable witness’s testimonial statement. “[A] defendant’s constitutional right of confrontation may be violated when a trial witness’s testimony introduces the substance of an out-of-court, testimonial statement by an unavailable witness.” People v Washington , ___ Mich ___, ___ (2024). In Washington , the “[d]efendant drove across the border from Michigan into Canada without paying the toll,” and a Canadian customs agent “arrested defendant and brought him back to the American side of the bridge” where an American customs agent “took custody of defendant and a bulletproof vest.” Id . at ___. Subsequently, the “[d]efendant was charged with being a violent felon in possession of body armor.” Id . at ___. The American officer testified that he and the Canadian officer met on the American side of the bridge and, based on communications between them, the American officer took custody of defendant and took possession of the body armor at the same time. Id . at ___. The American officer “acknowledged that defendant was not wearing the vest when he took defendant into custody and that he had no direct knowledge as to whether defendant ever possessed the vest.” Id . at ___.
The Washington Court “conclud[ed] that [the Canadian Officer’s statement] was testimonial.” Id . at ___ (“The context in which [the Canadian officer] made his statement would lead a reasonable person in his position to believe the statement would be available for use at a later trial.”) The Canadian officer’s out-of-court statement was “that defendant possessed the bulletproof vest when [the Canadian officer] encountered him.” Id . at ___. “[A]n important factor is that the statement was made to . . . a law enforcement officer.” Id . at ___. “Another important factor suggesting that a reasonable person in [the Canadian officer’s] position would believe his statement would be available for use at a later trial is that [the Canadian officer] made the statement while turning custody of defendant over to [the American officer] after having arrested defendant for engaging in criminal activity.” Id . at ___. “And, because there was no ongoing emergency, even if [the Canadian officer] subjectively intended for his statement to be used for a different, non-trial purpose, that does not bear on whether a reasonable person in his position would have foreseen that his statement would be available for use at a later trial.” Id . at ___. Accordingly, the Washington Court held that the defendant’s constitutional right of confrontation was violated “because [the American officer’s] testimony clearly implied that [the Canadian officer] made a testimonial statement asserting that defendant possessed a bulletproof vest.” Id . at ___.
Victim’s statements to neighbor and police officer. A crime victim’s statements to a neighbor and a police officer were improperly admitted because they constituted testimonial statements for purposes of the Confrontation Clause and the defendant had not had an opportunity to cross-examine the victim. People v Walker , 273 Mich App 56, 64 (2006). In Walker , after the defendant beat the victim and threatened to kill her, the victim jumped from a second-story balcony and ran to a neighbor’s house, where the neighbor called 911. Id . at 59-60. The victim made statements to the neighbor, who wrote out the statements and gave them to the police. Id . at 60. The victim did not appear for trial, but her statements were admitted under the excited utterance exception to the hearsay rule. 8 Id . Like the United States Supreme Court in Davis v Washington , 547 US 813 (2006), the Walker Court determined that the content of the 911 call was nontestimonial evidence properly admitted at trial because the operator’s questioning “was directed at eliciting further information to resolve the present emergency and to ensure that the victim, the neighbor, and others potentially at risk . . . would be protected from harm while police assistance was secured.” Walker , 273 Mich App at 64.
The Walker Court further concluded that “[u]nlike those in the 911 call, the victim’s statement recorded in writing by her neighbor and [her] statements to the police at the scene [we]re more akin to the statements in [ Hammon v Indiana , 547 US 813 (2006), a companion case to Davis ], which the Davis Court found inadmissible under the Confrontation Clause.” Walker , 273 Mich App at 64. The Court explained:
“As in Hammon , in which the police questioned the domestic assault victim separately from her husband and obtained her signed affidavit of the circumstances of the assault, the police questioning in this case first occurred in the neighbor’s home, and there is no indication of a continuing danger. Rather, the victim’s statement recorded by the neighbor and [her] oral statements to the police recounted how potentially criminal past events began and progressed. Although portions of these statements could be viewed as necessary for the police to assess the present emergency, and, thus, nontestimonial in character, we conclude that, on the record before us, these statements are generally testimonial under the standards set forth in Davis . ‘Objectively viewed, the primary, if not indeed the sole, purpose of [this] interrogation was to investigate a possible crime—which is, of course, precisely what the officer[s] should have done.’ Accordingly, the victim’s written statement and her oral statements to the police are inadmissible.” Walker , 273 Mich App at 65 (citations omitted; fifth and sixth alterations in original), quoting Davis , 547 US at 830.
Serologist’s notes and laboratory reports. A nontestifying serologist’s notes and laboratory report are testimonial statements under Crawford . People v Lonsby , 268 Mich App 375, 378 (2005). In Lonsby , a crime laboratory serologist, who did not analyze the physical evidence, testified regarding analysis that was performed by another serologist. Id . at 380-381. The testimony included theories on why the nontestifying serologist conducted certain tests, as well as her notes regarding the tests. Id . In Crawford , “the Court stated that pretrial statements are testimonial if the declarant would reasonably expect that the statement will be used in a prosecutorial manner and if the statement is made ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]’” Lonsby , 268 Mich App at 377-378, 391-393 (alteration in original), quoting Crawford , 541 US at 51-52 (finding that because the serologist would clearly expect that her notes and laboratory report would be used for prosecutorial purposes, the information satisfied Crawford ’s definition of a testimonial statement ).
b. Examples of Nontestimonial Statements
Child’s statements to a teacher. Statements by a preschool student to his teacher identifying the defendant as the person who caused his injuries were not testimonial because they were “clearly . . . not made with the primary purpose of creating evidence for [the defendant’s] prosecution.” Ohio v Clark , 576 US 237, 246 (2015). Thus, their admission during trial, even though the child was not available for cross-examination, did not violate the Confrontation Clause. Id. The Court explained that statements to individuals who are not law enforcement officers, such as teachers, “are much less likely to be testimonial than statements to law enforcement officers,” further noting that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause” Id. at 246, 247-248 (“declin[ing] to adopt a categorical rule excluding [statements to persons other than law enforcement officers] from the Sixth Amendment’s reach”). The Court further noted that the statements were made “in the context of an ongoing emergency involving suspected child abuse,” and “the immediate concern was to protect a vulnerable child who needed help.” Id. at 246-247. There was “no indication that the primary purpose of the conversation was to gather evidence for [the defendant’s] prosecution,” and “[a]t no point did the teachers inform [the child who made the statements] that his answers would be used to arrest or punish his abuser.” Id. at 247. Finally, the child who made the statements “never hinted that he intended his statements to be used by the police or prosecutors.” Id. 9
Match of a DNA sample to a database profile. The Confrontation Clause was not violated by a forensic specialist’s testimony “that a DNA profile produced by an outside laboratory, [using semen from vaginal swabs taken from the victim,] . . . matched a profile produced by the state police lab using a sample of [the] petitioner’s blood[;] . . . that [the outside laboratory] provided the police with a DNA profile[; and that] . . . notations on documents admitted as business records[ indicated] that, according to the records, vaginal swabs taken from the victim were sent to and received back from [the outside laboratory].” Williams v Illinois , 567 US 50, 56-58 (2012) (plurality opinion) (opinion by Alito, J.). Noting that, “[u]nder settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true,” the Williams plurality concluded that “[o]ut-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” Id . at 57-58. The forensic expert’s testimony did not run afoul of the Confrontation Clause where she “did not testify to the truth of any other matter concerning [the outside laboratory,] . . . made no other reference to the [outside laboratory’s] report, which was not admitted into evidence and was not seen by the trier of fact, . . . did [not] . . . testify to anything that was done at the [outside] lab, and she did not vouch for the quality of [its] work.” Id . at 71. 10
In addition, the Williams plurality expressed the view that, “even if the report produced by [the outside laboratory] had been admitted into evidence, there would have been no Confrontation Clause violation,” because the report “was produced before any suspect was identified, . . . [and] was sought not for the purpose of obtaining evidence to be used against [the] petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose.” Williams , 567 US at 58.
Statements prior to death. Pre-death statements made by a gunshot victim to police officers identifying and describing his shooter and the location of the shooting were nontestimonial and their admission at the defendant’s trial did not violate the Confrontation Clause because “the circumstances of the interaction between [the victim] and the police objectively indicate that the ‘primary purpose of the interrogation’ was ‘to enable police assistance to meet an ongoing emergency.’” Michigan v Bryant , 562 US 344, 348-349, 378 (2011), quoting Davis v Washington , 547 US 813, 822 (2006). In Bryant , the Court found that “there was an ongoing emergency . . . where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded [the victim] within a few blocks and a few minutes of the location where the police found [the victim].” Bryant , 562 US at 374 (declining to “decide precisely when [an] emergency end[s]”). The Court additionally found that the primary purpose of the interrogation was to enable police assistance to meet the ongoing emergency where the questions the police asked the victim were precisely the type of questions necessary to allow them to assess the situation, the threat to their own safety, and possible danger to the victim and the public. Id . at 374-378.
A decedent’s statements identifying his assailant to the police during the hectic minutes shortly after the fatal shooting took place were admissible as nontestimonial statements under Crawford v Washington , 541 US 36 (2004). People v Taylor , 275 Mich App 177, 181-182 (2007).
A victim’s statements to friends, coworkers, and the defendant’s relatives in the weeks before her death were not testimonial statements and their admission did not violate the defendant’s right of confrontation. People v Bauder , 269 Mich App 174, 180-187 (2005), abrogated on other grounds by People v Burns , 494 Mich 104, 112 (2013). 11
DataMaster Logs. Admitting DataMaster logs reflecting that a particular DataMaster machine was tested by an operator who verified its accuracy and certified that it was in proper working order without calling the operator to testify about his tests would not violate a defendant’s right to confrontation because the DataMaster logs are nontestimonial. People v Fontenot , 333 Mich App 528, 536 (2020), vacated in part on other grounds ___ Mich ___ (2022). 12 Specifically, the “logs were created before defendant’s breath test to prove the accuracy of the DataMaster machine; they were not created for the purpose of prosecuting defendant specifically.” Id . at 535. “Furthermore, the DataMaster logs were created as part of the Michigan State Police’s normal administrative function of assuring that the DataMaster machine produces accurate results,” and the machine “would have been checked for proper functioning even if defendant had not been tested with it.” Id . at 535-536. Accordingly, the logs reflecting the test results were nontestimonial where the primary purpose of the test “was to comply with administrative regulations and to ensure [the machine’s] reliability for future tests—not to prosecute defendant specifically.” Id . at 536 (citation omitted).
Proof of mailing . A certificate generated by the Michigan Department of State (DOS) “to certify that it had mailed a notice of driver suspension to a group of suspended drivers” was not testimonial because “the creation of a certificate of mailing, which is necessarily generated before the commission of any crime, is a function of the legislatively authorized administrative role of the DOS independent from any investigatory or prosecutorial purpose”; therefore, it could be admitted, for the purpose of proving the notice element of the charged offense, driving while license revoked or suspended, MCL 257.904(1) , “without violating the Confrontation Clause.” People v Nunley , 491 Mich 686, 689-690 (2012).
Conversation with a family member. A witness’s testimony “about private conversations that she had with her sister,” which “left the impression that [her sister, who was unavailable to testify due to asserting the Fifth Amendment,] admitted that she alone killed the victim or that some man other than defendant was involved” were not testimonial in nature of their context. People v Clark , 330 Mich App 392, 432-433 (2019).
Datamaster breath-test results. The admission of Datamaster breath-test results did not violate the defendant’s constitutional right of confrontation, because “the original Datamaster ticket, showing the breath-test procedures and defendant’s specific alcohol level, [did not] amount[] to testimonial hearsay within the meaning of Crawford [, 541 US at 36].” People v Dinardo , 290 Mich App 280, 290 (2010). The Court held that “while the Datamaster ticket showed facts relevant to the ultimate issue of defendant’s guilt, the ticket was neither a testimonial statement nor hearsay because it was not the statement of a witness or a declarant.” Id . at 294. “Instead, the Datamaster ticket was generated by a machine, following an entirely automated process that did not rely on any human input, data entry, or interpretation.” Id . The Court directed that “[b]ecause the Datamaster ticket was not a testimonial hearsay statement, [the police officer who administered the test] will be permitted to testify regarding the breath-test results [on remand].” Id . Further, the Court directed that “because the contemporaneously prepared [written report] constitutes a recorded recollection pursuant to MRE 803(5) , [the officer] will be permitted to read its contents into evidence at trial [on remand].” Dinardo , 290 Mich App at 294. 13
Statements to a SANE. Statements made by a sexual abuse victim to a SANE were nontestimonial because “under the totality of the circumstances of the complainant’s statements, an objective witness would reasonably believe that the statements made to the nurse objectively indicated that the primary purpose of the questions or the examination was to meet an ongoing emergency,” and “the circumstances did not reasonably indicate to the victim that her statements to the nurse would later be used in a prosecutorial manner against defendant.” People v Garland , 286 Mich App 1, 11 (2009). Specifically, because the victim did not have any outwardly visible signs of physical trauma, “the victim's statements to the nurse were reasonably necessary for her treatment and diagnosis[.]” Id .
Ongoing emergency. The lengthy sequence of events following a 73-year-old victim’s rape and robbery qualified as an ongoing emergency during which the statements made by the victim (who died before trial) constituted nontestimonial evidence. People v Jordan , 275 Mich App 659, 661-663 (2007). In Jordan , immediately after the early morning assault, the victim ran out of her house in her nightgown yelling for help. Id . at 661. The owner/operator of a nearby service station responded to the victim’s screams and called 911. Id . The police arrived 45 minutes later and although the victim told the service station owner/operator that she had been raped, she failed to tell the police about the rape when she was initially questioned. Id . The victim’s friend arrived at the scene after the police left, but the victim did not mention the rape. Id . After learning of the rape by talking with the service station owner/operator, the friend took the victim to the police station where she told the police about the rape. Id . at 661-662. “Because all statements by the victim were necessary to resolving the ongoing emergency, the statements were nontestimonial.” Id . at 664-665.
3. Forfeiture By Wrongdoing
MRE 804(b)(6) sets forth the forfeiture-by-wrongdoing doctrine:
“A statement offered against a party that wrongfully caused—or encouraged—the declarant ’s unavailability as a witness , and did so intending that result.”
While the doctrine provides a basis for a hearsay exception, 14 it also is an exception to the right to confrontation; “the constitutional question will often go hand-in-hand with the evidentiary question[.]” People v Burns , 494 Mich 104, 111, 114 (2013). “Insofar as it applies to the Sixth Amendment[‘s Confrontation Clause], . . . the forfeiture doctrine requires that the defendant must have specifically intended that his wrongdoing would render the witness unavailable to testify.” Id . at 111. The plain language of MRE 804(b)(6) incorporates this specific intent requirement. Burns , 494 Mich at 114.
The doctrine of forfeiture by wrongdoing does not apply to every case in which a defendant’s wrongful act has caused a witness to be unavailable to testify at trial; rather, “the prosecution must show by a preponderance of the evidence that: (1) the defendant engaged in or encouraged wrongdoing; (2) the wrongdoing was intended to procure the declarant’s unavailability; and (3) the wrongdoing did procure the unavailability.” Burns , 494 Mich at 115 (2013) (holding that evidence that “during the alleged [sexual] abuse defendant instructed [the child-victim] ‘not to tell’ anyone and warned her that if she told, she would ‘get in trouble’” did not “satisf[y] the causation element of MRE 804(b)(6) ”). 15 See also People v Roscoe , 303 Mich App 633, 640-641 (2014) (“[t]he trial court’s admission of the victim’s . . . statement [identifying the defendant as his assailant] violated both the rules of evidence and defendant’s right to confront the witness because the trial court failed to make a factual finding that defendant had the requisite specific intent” to procure the witness’s unavailability; however, “because the erroneous admission of the evidence was not outcome determinative[ in light of ample other evidence of the defendant’s guilt], reversal [was] not warranted”).
“[T]he trial court did not abuse its discretion by admitting [a witness’s] prior statements under the forfeiture-by-wrongdoing rule in MRE 804(b)(6) ,” where there was “evidence of defendants’ . . . attempts to pressure [the witness], including: (1) visits from [co-defendant’s] relatives, (2) shooting the windows of [the witness’s] home, and (3) assaults and intimidation of [the witness] in jail at the direction of [co-defendant] and [defendant].” People v Caddell , 332 Mich App 27, 68 (2020). Additionally, defendants’ “wrongdoing with regard to [the witness] occurred during the investigation and prosecution of the case, which allowed a strong inference of intent to cause [the witness’s] unavailability.” Id .
Because the forfeiture-by-wrongdoing doctrine “applies . . . when the defendant, or an intermediary , engage[] in conduct specifically designed to prevent a witness from testifying,” the trial court’s admission of an unavailable witness’s recorded interviews did not violate the defendant’s right of confrontation where the defendant conveyed to the witness a note containing “language that could be construed as threatening” and that “reflect[ed] an effort specifically designed to prevent [the witness] from testifying”). People v McDade , 301 Mich App 343, 354-355 (2013) (emphasis added).
The decision to admit statements under the forfeiture-by-wrongdoing rule is reviewed for an abuse of discretion, while the trial court’s factual findings are reviewed for clear error. Caddell , 332 Mich App at 66.
An unavailable witness’s former testimonial statement may be admitted to impeach a witness without violating the Confrontation Clause according to Crawford v Washington , 541 US 36 (2004). People v McPherson , 263 Mich App 124, 134 (2004). For example, in Tennessee v Street , 471 US 409, 411 (1985), the defendant testified in his own defense, claiming that his confession was coerced and was derived from an accomplice’s testimony. The prosecution was allowed to introduce the accomplice’s testimony at trial, and the defendant argued that his right of confrontation was violated because he did not have the opportunity to cross-examine the accomplice. Id. at 410-412. However, the United States Supreme Court held that introduction of the accomplice’s confession “for the legitimate, nonhearsay purpose of rebutting [the defendant’s] testimony that his own confession was a coerced ‘copy’ of [the accomplice’s] statement” did not violate the defendant’s right of confrontation. Id . at 417. Similarly, in McPherson , 263 Mich App at 131, 134, the defendant argued that the admission of an accomplice’s statement that implicated the defendant (the testimony was elicited by the prosecutor from the defendant on cross-examination) violated his right of confrontation. The Court concluded that because the prosecutor’s question was intended to impeach the defendant’s statement that the accomplice was the gunman, its admission did not violate the defendant’s right of confrontation. Id . at 134.
The case of Hemphill v New York , 595 US ___, ___ (2022), considered “whether the admission of [a] plea allocution under New York’s rule in People v Reid [, 19 N. Y. 3d 382 (2012),] violated [defendant’s] Sixth Amendment right to confront the witnesses against him.” “In Reid , New York’s highest court held that a criminal defendant could open the door to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was reasonably necessary to correct a misleading impression made by the defense’s evidence or argument.” Hemphill , 595 US at ___ (cleaned up). The defendant in Hemphill “pursued a third-party culpability defense by blaming [another individual] for the shooting” that defendant was charged with. Id . at ___. Due to unavailability, the State was allowed to introduce a transcript of the other individual’s plea allocution to a separate charge pursuant to Reid upon a finding by the trial court that defendant had opened the door to the evidence and “the evidence was reasonably necessary to correct a misleading impression made by the defense’s evidence and argument.” Hemphill , 595 US at ___ (cleaned up).
Notably, the Court’s analysis in Hemphill focused on a New York rule established in the Reid case, which is not binding precedent in Michigan. The Hemphill Court acknowledged “that the Sixth Amendment leaves States with flexibility to adopt reasonable procedural rules governing the exercise of a defendant’s right to confrontation,” but it concluded that the door-opening principle established in Reid was “a substantive principle of evidence that dictates what material is relevant and admissible in a case.” Hemphill , 595 US at ___. Because the Reid “principle requires a trial court to determine whether one party’s evidence and arguments, in the context of the full record, have created a ‘misleading impression’ that requires correction with additional material from the other side,” it violates Crawford and the “purpose of the Confrontation Clause [to] bar judges from substituting their own determinations of reliability for the method the Constitution guarantees.” Hemphill , 595 US at ___. “The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by the trial court.” Id . at ___ (concluding that “[t]he trial court’s admission of unconfronted testimonial hearsay [(under the Reid rule)] over [defendant’s] objection, on the view that it was reasonably necessary to correct [defendant’s] misleading argument, violated that fundamental guarantee”). 16
E. Joint Trial Issues
1. Scope of Testimony
A Bruton error is an error of constitutional magnitude subject to harmless error analysis; it does not require automatic reversal of a defendant’s conviction. People v Pipes , 475 Mich 267, 276-277 (2006). Where a Bruton error is unpreserved, it is subject to review for “‘plain error that affected substantial rights.’” Pipes , 475 Mich at 278, quoting People v Carines , 460 Mich 750, 774 (1999). Under this standard, even where a nontestifying codefendant’s statement was improperly admitted at a joint trial, the other codefendant’s self-incriminating statement may be properly admitted against that codefendant and may be considered to determine whether the error was harmless. Pipes , 475 Mich at 280.
2. Curing Defects
“Joint trials with a single jury present a special problem” because “[s]ome evidence may be admissible as to one defendant but violate a codefendant’s confrontation right” if the evidence is testimonial. People v Bruner , 501 Mich 220, 227 (2018). “When that is the case, a court must either exclude the testimony or take measures to eliminate the confrontation problem.” Id . “What measures are sufficient depends on the context and content of the evidence.” Id . “If, for example, a witness’s testimony can be redacted to eliminate reference to the codefendant’s existence, that witness will not have borne testimony against the codefendant in any Sixth Amendment sense.” Id . at 227-228. However, merely redacting the codefendant’s name and replacing it with a blank, the term “deleted,” or some other symbol still points too directly at a jointly tried codefendant and violates the Confrontation Clause. Gray v Maryland , 523 US 185, 192 (1998); Bruner , 501 Mich at 228 n 2.
Sometimes the court can avoid a Sixth Amendment violation “by instructing the jury to consider testimony against one defendant, but not the other.” Bruner , 501 Mich at 228. “Since [courts] presume juries follow their instructions, the result of a limiting instruction can often be as effective as excluding or redacting the testimony.” Id . “But other times evidence is too compelling for a jury to ignore even with a limiting instruction.” Id . “[L]imiting instructions are categorically inadequate to protect against evidence that a nontestifying defendant confessed and implicated a codefendant in that confession.” Id . “In such a case, the confrontation problem persists as if no instruction had been given at all.” Id .
In Bruner , “the admission at a joint trial with a single jury of an unavailable witness’s prior testimony about a codefendant’s confession violated the defendant’s constitutional right to confrontation, notwithstanding the redaction of the defendant’s name and the reading of a limiting instruction to the jury.” Bruner , 501 Mich at 223. “The defendant had no opportunity to cross-examine the witness, and because of the substance of the witness’s testimony—the codefendant’s confession that implicated the defendant—was so powerfully incriminating, the limiting instruction and redaction were ineffective to cure the Confrontation Clause violation.” Id . (reversing the judgment of the Court of Appeals and remanding for consideration of whether the prosecution established that the error was harmless beyond a reasonable doubt).
The Confrontation Clause “does not provide a freestanding guarantee against the risk of potential prejudice that may arise inferentially in a joint trial.” Samia v United States , 599 US ___, ___ (2023). In Samia , the Court concluded that the Confrontation Clause does not bar “the admission of a nontestifying codefendant’s confession where (1) the confession has been modified to avoid directly identifying the nonconfessing codefendant and (2) the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing codefendant.” Id . at ___. The United States Supreme Court “precedents distinguish between confessions that directly implicate a defendant and those that do so indirectly.” Id . at ___. Accordingly, “the Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.“ Id . at ___ (noting it would not have been feasible to further modify the nontestifying codefendant’s confession to make it appear that he had acted alone).
Committee Tip:
Bruner issues are often complex and demanding of intricate analysis. If possible, they are best determined before trial. The court should address these issues in that fashion if practical.
F. Interpreters and the Language Conduit Rule
Under the “language conduit” rule, “an interpreter is considered an agent of the declarant, not an additional declarant, and the interpreter’s statements are regarded as the statements of the declarant without creating an additional layer of hearsay ”; thus, where a defendant has a full opportunity to cross-examine the declarant, he or she has no additional constitutional right to confront the interpreter. People v Jackson , 292 Mich App 583, 595-597 (2011). In Jackson , 292 Mich App at 587, 593-594, a hospitalized shooting victim was questioned by a police officer. Because the victim was unable to speak at the time of the interview, he answered the questions by either squeezing the hand of an attending nurse (to indicate “yes”) or not (to indicate “no”). Id . at 593-594. The Court stated that the following factors should be examined when determining whether statements made through an interpreter are admissible under the language conduit rule:
“(1) whether actions taken after the conversation were consistent with the statements translated, (2) the interpreter’s qualifications and language skill, (3) whether the interpreter had any motive to mislead or distort, and (4) which party supplied the interpreter.” Jackson , 292 Mich App at 596.
Concluding that none of these factors militated against application of the language conduit rule, the Court held that although the victim’s nonverbal answers qualified as testimonial statements, the defendant did not have a constitutional right to confront the nurse, “because what she was reporting were the statements actually made by [the victim].” Jackson , 292 Mich App at 596-597. Because he “had a full opportunity to cross-examine” the victim, the defendant’s Confrontation Clause rights were satisfied. Id. at 597.
G. Taking Testimony by Use of Audio and Video Technology
1. Use of Videoconferencing Technology in Certain Proceedings
Except as otherwise provided in MCR 2.407 , the use of videoconferencing in criminal proceedings is governed by MCR 6.006 . MCR 6.006(A)(1) . “The use of telephonic, voice, videoconferencing, or two-way interactive video technology, must be in accordance with any requirements and guidelines established by the State Court Administrative Office, and all proceedings at which such technology is used must be recorded verbatim by the court. MCR 6.006(D) .
A court may allow the use of videoconferencing technology by any participant in any criminal proceeding, at the request of any participant, or sua sponte. MCR 6.006(A)(2) . The court must “consider constitutional requirements, in addition to the factors contained in MCR 2.407 ,” “[w]hen determining whether to utilize videoconferencing technology.” MCR 6.006(A)(3) . See also M Crim JI 5.16 , which addresses witness testimony introduced via video rather than in-person:
“The next witness, [ identify witness ], will testify by videoconferencing technology. You are to judge the witness’s testimony by the same standards as any other witness, and you should give the witness’s testimony the same consideration you would have given it had the witness testified in person. If you cannot hear something that is said or if you have any difficulty observing the witness on the videoconferencing screen, please raise your hand immediately.”
MCR 6.006 “does not supersede a participant’s ability to participate by telephonic means under MCR 2.402 .” MCR 6.006(A)(4) .
Cases cognizable in the circuit court. Videoconferencing may be used in circuit court to conduct any non-evidentiary or trial proceeding. MCR 6.006(B)(1) . The use of videoconferencing is the preferred mode for:
“(a) initial arraignments on the information;
(b) pretrial conferences;
(c) motions pursuant to MCR 2.119 ; and
It is presumed that parties, witnesses, and other participants will appear in-person for all other proceedings. MCR 6.006(B)(3) . The use of videoconferencing may not be used in bench or jury trials, or any proceeding where the testimony of witnesses or evidence may be presented, “except in the discretion of the court after all parties have had notice and an opportunity to be heard on the use of videoconferencing technology.” MCR 6.006(B)(4) .
MCR 6.006 does not prevent “a defendant who otherwise has the right to appear in person, from demanding to physically appear in person for any proceeding.” MCR 6.006(B)(5) . The presiding judge and any attorney of record for the participant must appear in person with the participant if “there is a demand to appear in person, or a participant is found to be unable to adequately use the technology, to hear or understand or be heard or understood[.]” Id .
Cases cognizable in district and municipal courts. Videoconferencing is the “preferred mode for conducting arraignments and probable cause conferences for in-custody defendants.” MCR 6.006(C)(1) . It is presumed that parties, witnesses, and other participants will appear in-persona for all other criminal proceedings. MCR 6.006(C)(2) .
“Notwithstanding any other provision of these rules and subject to constitutional rights, the use of videoconferencing technology shall not be used in evidentiary hearings, bench trials or jury trials, or any criminal proceeding wherein the testimony of witnesses or presentation of evidence may occur, except in the discretion of the court.” MCR 6.006(C)(3) . District courts may use videoconferencing to take testimony from any witness in a preliminary examination if the defendant is either present in the courtroom or has waived the right to be present, notwithstanding anything herein to the contrary. MCR 6.006(C)(4) .
The following cases address the use of two-way interactive video technology before MCR 6.006(E) was added to the court rule and prior to complete replacement of MCR 6.006(A)-(C) . See ADM File No. 2020-08, effective September 1, 2022. It is unclear if any of the Courts’ analyses would be impacted by the addition of the new subrule and rewording of MCR 6.006(A)-(C) .
“In allowing [a forensic analyst’s] two-way, interactive video testimony [at trial] over the defendant’s objection, the trial court violated the defendant’s Confrontation Clause rights” and MCR 6.006(C) . People v Jemison (Jemison I) , 505 Mich 352, 366-367 n 9 (2020) (vacating the Court of Appeals analysis that “the MCR 6.006(C) error [was] interchangeable with a Confrontation Clause violation” and remanding to “determin[e] whether [the Confrontation Clause] violation was harmless beyond a reasonable doubt”). On remand, the Court of Appeals determined that the error was harmless and affirmed the conviction. See People v Jemison (On Remand) (Jemison II) , unpublished per curiam opinion of the Court of Appeals, issued December 17, 2020 (Docket No. 334024), p 8.
Where the defendant failed to object on the record to the use of two-way interactive video technology to present the testimony of an examining physician and a DNA expert, and where defense counsel stated that she would leave the issue of the admission of the video testimony to the trial court’s discretion, the defendant waived his constitutional right of confrontation and “consent[ed]” to the use of the video technology within the meaning of MCR 6.006(C)(2) . 19 People v Buie , 491 Mich 294, 297-298, 316, 318-319 (2012). For additional information on waiver, see Section 3.5(I) .
Turning to MCR 6.006(C) , the Buie Court concluded that the defendant “consent[ed]” to the video testimony within the meaning of MCR 6.006(C)(2) and that the trial court did not abuse its discretion in finding that “good cause” was shown for the use of video technology. Buie , 491 Mich at 318-320. “[I]f either the defendant or [defense] counsel objects, the ‘party’ cannot be said to have consented[ under MCR 6.006(C)(2) ; h]owever, as with the Confrontation Clause, for the defendant’s objection to be valid, it must be made on the record.” Buie , 491 Mich at 319. Additionally, contrary to the defendant’s argument, the Court held that “the use of ‘good cause’ in MCR 6.006(C) [does not] import[] the constitutional standard from [ Maryland v Craig , 497 US 836, 845-846, 850-852 (1990),] for dispensing with confrontation, to wit, that the ‘cause’ be ‘necessary to further an important public policy’ or ‘state interest’”; rather, video testimony may be admitted under MCR 6.006(C) if there is “a satisfactory, sound or valid reason,” and “there is no need to identify a corresponding state interest[.]” Buie , 491 Mich at 319 (quotation marks and citation omitted). Because “both parties apparently consented to the use of video testimony, the trial court did not [abuse its discretion] by concluding that convenience, cost, and efficiency were sound reasons for using video testimony.” Id . at 320.
A trial court’s decision to admit video testimony under MCR 6.006(C) is reviewed for an abuse of discretion. Buie , 491 Mich at 319-320.
2. Expert Testimony
MCL 600.2164a(1) specifically permits the use of video communication equipment for the purpose of presenting expert testimony at trial. If the court determines “that expert testimony will assist the trier of fact and that a witness is qualified to give the expert testimony,” and if all the parties consent, the court may allow a qualified expert witness “to be sworn and testify at trial by video communication equipment that permits all the individuals appearing or participating to hear and speak to each other in the court, chambers, or other suitable place.” Id . 20
“In allowing [a forensic analyst’s] two-way, interactive video testimony [at trial] over the defendant’s objection, the trial court violated the defendant’s Confrontation Clause rights.” People v Jemison (Jemison I) , 505 Mich 352, 366-367 (2020) (remanded to “determin[e] whether that violation was harmless beyond a reasonable doubt”). On remand, the Court of Appeals determined that the error was harmless and affirmed the conviction. See People v Jemison (On Remand) (Jemison II) , unpublished per curiam opinion of the Court of Appeals, issued December 17, 2020 (Docket No. 334024), p 8.
3. Special Protections for Certain Victim-Witnesses 21
MCL 600.2163a affords certain victim- witnesses special protections in prosecutions and proceedings involving specified offenses. MCL 600.2163a(1)(g). 22 These special protections include the use of videorecorded statements or closed-circuit television in presenting the victim-witness’s testimony. See MCL 600.2163a(8) ; MCL 600.2163a(20) . 23
In prosecutions of adult offenders, a videorecorded statement may be used in court only for one or more of the following purposes:
“(a) It may be admitted as evidence at all pretrial proceedings, except that it cannot be introduced at the preliminary examination instead of the live testimony of the witness.
(b) It may be admitted for impeachment purposes.
(c) It may be considered by the court in determining the sentence.
(d) It may be used as a factual basis for a no contest plea or to supplement a guilty plea.” MCL 600.2163a(8) . 24
“A videorecorded deposition may be considered in court proceedings only as provided by law.” MCL 600.2163a(9) .
“If, upon the motion of a party or in the court’s discretion, the court finds on the record that the witness is or will be psychologically or emotionally unable to testify at a court proceeding even with the benefit of the protections afforded the witness in subsections [ MCL 600.2163a](3) , [ MCL 600.2163a](4) , [ MCL 600.2163a](17) , and [ MCL 600.2163a](19) , [ 25 ] the court must order that the witness may testify outside the physical presence of the defendant by closed circuit television or other electronic means that allows the witness to be observed by the trier of fact and the defendant when questioned by the parties.” MCL 600.2163a(20) . See also MCL 712A.17b(16) , which contains substantially similar language and is applicable during the adjudication stage of a juvenile proceeding.
H. Use of Support Person or Support Animal
“The court must permit a witness who is called upon to testify to have a support person sit with, accompany, or be in close proximity to the witness during his or her testimony.” MCL 600.2163a(4) . Note that the definition of witness is limited to certain child witnesses, witnesses with a developmental disability , and vulnerable adults . See MCL 600.2163a(1)(g) . “The court must also permit a witness who is called upon to testify to have a courtroom support dog and handler sit with, or be in close proximity to, the witness during his or her testimony.” Id .
“A notice of intent to use a support person or courtroom support dog is only required if the support person or courtroom support dog is to be utilized during trial and is not required for the use of a support person or courtroom support dog during any other courtroom proceeding.” MCL 600.2163a(5) . “A notice of intent . . . must be filed with the court and must be served upon all parties to the proceeding,” and “[t]he notice must name the support person or courtroom support dog, identify the relationship the support person has with the witness, if applicable, and give notice to all parties that the witness may request that the named support person or courtroom support dog sit with the witness when the witness is called upon to testify during trial.” Id .
“A court must rule on a motion objecting to the use of a named support person or courtroom support dog before the date when the witness desires to use the support person or courtroom support dog.” MCL 600.2163a(5) . “[I]t is within the trial court’s inherent authority to control its courtroom and the proceedings before it to allow a witness to testify accompanied by a support animal.” People v Johnson , 315 Mich App 163, 178 (2016 ), citing MCL 768.29 ; MRE 611(a) . 26 A trial court is not required to make findings of good cause or necessity before allowing the use of a support animal. Johnson , 315 Mich App at 187. However, “as a practical matter it will be the better practice for a trial court to make some findings regarding a decision to use or not use a support animal,” and “the court should consider the facts and circumstances of each individual witness to determine whether the use of the support animal will be useful to the expeditious and effective ascertainment of the truth.” Id . at 187, 189.
The use of a support dog to accompany a young victim of sexual abuse and another young witness (the victim’s brother) when they testified “did not implicate the Confrontation Clause because it did not deny defendant a face-to-face confrontation with his accuser[.]” Johnson , 315 Mich App at 187 (noting that “the victim and the victim’s brother testified on the witness stand without obstruction, . . . the presence of the dog did not affect the witnesses’ competency to testify[ or] . . . the oath or affirmation given to the witnesses, the witnesses were still subject to cross-examination, and the trier of fact was still afforded the unfettered opportunity to observe the witnesses’ demeanor”).
“[A] fully abled adult witness may not be accompanied by a support animal or support person while testifying.” People v Shorter , 324 Mich App 529, 542 (2018). 27 “[T]here is a fundamental difference between allowing a support animal to accompany a child witness, as in Johnson , and allowing the animal to accompany a fully abled adult witness[.]” Id . at 538.
“The Confrontation Clauses of our state and federal constitutions provide that in all criminal prosecutions, the accused has the right to be confronted with the witnesses against him.” People v Buie , 491 Mich 294, 304 (2012). However, “[t]here is no doubt that the right of confrontation may be waived and that waiver may be accomplished by counsel.” Id. at 306.
In Buie , the defendant failed to object on the record to the use of two-way interactive video technology 28 to present the testimony of an examining physician and a DNA expert, and defense counsel stated that she would leave the issue of the admission of the video testimony to the trial court’s discretion. Buie , 491 Mich at 297-298, 316. The Michigan Supreme Court held that, under these circumstances, the defendant had waived his right of confrontation under the state and federal constitutions. Id. at 297, 310-318. “[W]here the decision constitutes reasonable trial strategy, which is presumed, the right of confrontation may be waived by defense counsel as long as the defendant does not object on the record.” Id . at 313. Although defense counsel stated at trial that the defendant “‘wanted to question the veracity of these proceedings,’” that statement did not constitute an objection because (1) it was not phrased as an objection, (2) the defendant effectively acquiesced to the use of two-way interactive technology when his counsel stated that she would leave it to the court’s discretion whether to use the technology, (3) the defendant made no complaints on the record when the court proceeded to explain how the technology worked, (4) the first remote witness testified via two-way interactive technology without further complaint, and (5) there was no complaint made before the testimony of the second remote witness. Id . at 316-317. 29
Committee Tip:
It may be advisable for the court to formalize counsel’s unknown position by asking “are you objecting or aren’t you?”
J. Standard of Review
Whether a defendant has been denied his or her right to confrontation is a constitutional question reviewed de novo on appeal. People v Beasley , 239 Mich App 548, 557 (2000). “[T]he trial court’s factual findings [are reviewed] for clear error.” People v Buie , 491 Mich 294, 304 (2012). Preserved Confrontation Clause violations are subject to harmless-error analysis. See Delaware v Van Arsdall , 475 US 673, 682 (1986). Unpreserved Confrontation Clause violations are subject to review for “‘plain error that affected substantial rights.’” People v Pipes , 475 Mich 267, 278 (2006), quoting People v Carines , 460 Mich 750, 774 (1999).
Committee Tip:
Care should be taken to ensure counsel articulates the basis for any objection: i.e , confrontation violation, rules of evidence, or under the court rules.
1 For a discussion of confrontation issues in the context of hearsay exceptions, see Section 5.3(A) .
2 For more information on the precedential value of an opinion with negative subsequent history, see our note .
3 See People v Jemison (Jemison I) , 505 Mich 352, 365 (2020), noting that Craig was decided prior to Crawford v Washington , 541 US 36 (2004), and although Crawford did not overrule Craig , the Court indicated it “will apply Craig only to the specific facts it decided: a child victim may testify against the accused by means of one-way video (or a similar Craig -type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection.”
4 Crawford overruled, in part, Ohio v Roberts , 448 US 56 (1980), which permitted admission of an unavailable witness’s statement against a criminal defendant if the statement bore “adequate ‘indicia of reliability’” and fell within either a “firmly rooted hearsay exception” or showed “particularized guarantees of trustworthiness.” Roberts , 448 US at 66. Crawford is not retroactive. Whorton v Bockting , 549 US 406, 409 (2007).
5 For information on unavailable witness, see Section 3.5(D) .
6 MCR 6.202 governs the admissibility of forensic laboratory reports and certificates. See Section 4.9 for more information on forensic laboratory reports and certificates.
7 MCR 6.202 governs the admissibility of forensic laboratory reports and certificates. See Section 4.9 for more information on forensic laboratory reports and certificates.
8 For information on the excited utterance exception to the hearsay rule, see Section 5.3(B) .
9 See Section 3.6 for discussion of child witnesses.
10 MCR 6.202 governs the admissibility of forensic laboratory reports and certificates. See Section 4.9 for more information on forensic laboratory reports and certificates.
11 For more information on the precedential value of an opinion with negative subsequent history, see our note .
12 For more information on the precedential value of an opinion with negative subsequent history, see our note .
13 MCR 6.202 governs the admissibility of forensic laboratory reports and certificates. See Section 4.9 for more information on forensic laboratory reports and certificates.
14 See Chapter 5 for more information on hearsay.
15 “Although not required by [the] court rules, . . . trial courts [should] make findings of fact on the record for each of the three elements required by MRE 804(b)(6) .” Burns , 494 Mich App at 118 n 42.
16 The Court further dismissed the State’s assertion “that the Reid rule is necessary to safeguard the truth-finding function of courts because it prevents the selective and misleading introduction of evidence,” noting that “[e]ven as it has recognized and reaffirmed the vital truth-seeking function of a trial, the Court has not allowed such considerations to override the rights the Constitution confers upon criminal defendants,” nor has the Court “held that defendants can ‘open the door’ to violations of constitutional requirements merely by making evidence relevant to contradict their defense.” Hemphill , 595 US at ___.
17 The provision previously found in MRE 804(b)(3) now appears in MRE 804(b)(4) . See ADM File No. 2021-10, effective January 1, 2024.
18 The provision previously found in MRE 804(b)(3) now appears in MRE 804(b)(4) . See ADM File No. 2021-10, effective January 1, 2024.
19 Effective January 1, 2017, ADM File No. 2013-18 amended MCR 6.006(C) to refer to “videoconferencing technology” rather than “two-way interactive video technology[.]” Effective September 1, 2022, ADM File No. 2020-08 replaced the language of former MCR 6.006(C) .
20 See Section 4.1(C) for additional discussion of expert testimony via video communication equipment.
21 See Section 3.6 for discussion of child witnesses. For additional discussion of special protections for certain victims and witnesses, see the Michigan Judicial Institute’s Sexual Assault Benchbook , Chapter 5.
22 Section 17b of the Juvenile Code, MCL 712A.17b , affords similar protections, but does not apply to vulnerable adults. See MCL 712A.17b(1)(e) .
24 In juvenile proceedings, a videorecorded statement “shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(5) .
25 These subsections allow, under limited circumstances, the use of dolls or mannequins, the presence of a support person, the presence of a courtroom support dog (and the dog’s handler), the exclusion of all unnecessary persons from the courtroom, and the placement of the defendant as far from the witness stand as is reasonable. MCL 712A.17b contains similar provisions.
26 The Johnson case was decided before 2018 PA 282, which amended MCL 600.2163a(4) to include the use of a courtroom support dog.
27 The Shorter case was decided before 2018 PA 282, which amended MCL 600.2163a(4) to include the use of a courtroom support dog.
28 Effective January 1, 2017, ADM File No. 2013-18 amended MCR 6.006(C) to refer to “videoconferencing technology” rather than “two-way interactive video technology[.]” Effective September 1, 2022, ADM File No. 2020-08 replaced the language of former MCR 6.006(C) .
29 The Buie Court additionally held that, under these circumstances, the defendant “consent[ed]” to the use of the video technology within the meaning of MCR 6.006(C)(2) . Buie , 491 Mich at 318-320. Effective September 1, 2022, ADM File No. 2020-08 replaced the language of MCR 6.006
