In People v. Burns, the Michigan Supreme Court granted the prosecution’s application for leave to appeal based on the Court of Appeals’ reversal of a criminal conviction due to evidentiary issues. The case originated in the Bay County Circuit Court. The opinion was released on June 18, 2013.
Bible School Instructor Reports Sexual Abuse On Behalf of Child
The background is that a Bible school instructor filed a police report based on statements made to her by a 4-year-old girl that indicated she had been sexually abused by her father. The father immediately moved out of the family home. He was then arrested a month later and had no additional contact with his daughter.
After the disclosure to the teacher, the child was interviewed by a forensic interviewer and sexual assault examiner. In each of these interviews, she said her father had sexual contact with her. However, a medical examination did not reveal any evidence to support the allegations.
The child did not testify at the preliminary examination; but the defendant was bound over to circuit court anyway. The trial court allowed the teacher to testify about the child’s statements concerning the abuse before the she testified. After the teacher testified, the prosecutor tried four times to elicit testimony from the child. However, the child was unwilling to testify.
In response, the court held a hearing to find another basis for admitting the teacher’s testimony since MRE 803A required the child to testify. The court agreed with the prosecutor’s assertion that the defendant caused the child to be unavailable to testify through his wrongdoing. Therefore, the testimony was admitted under MRE 804(b)(6). The ruling was based on a video recording of the session with the forensic interviewer. The child was asked if her father said anything during the alleged abuse and she replied that he told her not to tell anybody or she would get in trouble. In other words, this statement was found to be sufficient for the court to rule forfeiture by wrongdoing—as the right to hearsay exclusion can be forfeited if the defendant engaged in wrongdoing.
The court listed the reasons that the child was unavailable to testify as follows, “because, among other things, of her infirmity, her youth, to be able to testify here in court and the fear, frankly, that she has of testifying here in court.” In addition, the court concluded that the defendant forfeited his confrontation right. Notably, there was no other evidence admitted besides the hearsay testimony.
The defendant was convicted by jury of first-degree criminal sexual conduct (CSC). The Court of Appeals reversed the conviction after concluding that the circuit court erred in its analysis of the forfeiture-by-wrongdoing issue. In addition, the prosecutor failed to show by a preponderance of the evidence that the father had the specific intent to render the child unavailable, and that his wrongdoing actually caused the unavailability.
The Supreme Court stated that in relation to its application to the Sixth Amendment, the forfeiture doctrine requires a specific intent that the wrongdoing would cause the witness’s unavailability to testify. Additionally, the Court asserted that MRE 804(b)(6) includes a specific intent requirement. So a defendant must engage in or encourage wrongdoing that was intended to, and caused, a witness’s unavailability.
In the instant case, the Court found that the timing of the alleged wrongdoing was relevant in determining that the record does not support the assertion that the defendant had the required specific intent. The statements were made before the alleged abuse was reported. The Supreme Court reasoned that, absent a better finding from the trial court, the defendant’s statements to the child could just as easily infer that the father intended for the abuse to remain. In other words, the Supreme Court could not find on the record sufficient support for a conclusion that the father intended to prevent the child from testifying. The Court noted that there is a difference between a defendant reasonably foreseeing that wrongdoing might render a witness unavailable and intending to procure such unavailability. In other words, the prosecution is required to show that a defendant acted at least in part with a specific purpose to cause unavailability as opposed to simply having knowledge that it might cause unavailability.
Furthermore, the Court pointed out that the trial court did not list the defendant’s wrongdoing as one of the reasons why the child was unable to testify. Moreover, the evidence tended to support that the wrongdoing did not cause the child’s inability to testify. Even though the father told the child not to tell anyone, she told others anyway. Additionally, the Court agreed with the Court of Appeals that the admission of the testimony was indeed an outcome determinative error—as there were no third-party witnesses, physical evidence, testimony from the child, or other evidence.
In conclusion, the Court found admission of the hearsay statements under MRE 804(b)(6) was an abuse of discretion that was outcome determinative. Therefore, the Court affirmed the ruling of the Court of Appeals and remanded the case to the trial court for a new trial.
Dealing with issues relate to the testimony of young children is a uniquely challenging experience for criminal defense attorneys. If you have been accused of criminal sexual conduct, or other forms of child abuse, the dedicated criminal defense lawyers at The Kronzek Firm PLC, can help. We have extensive training and experience in this area.