A few months ago, the Michigan Supreme Court ruled in the case of People v. Fackelman that the defendant was denied his Constitutional right of confrontation. In this case, the jury heard in-court testimony from both a doctor hired by the defense and a doctor hired by the prosecution about whether the defendant was legally insane at the time of his crime. However, the prosecutor in the case continued to tell the jury about a third doctor, who examined the defendant immediately after the crime and who happened to agree with the prosecutor that the defendant was not legally insane.
The majority of the Michigan Supreme Court Justices agreed that the prosecutor’s constant alluding to this doctor denied the defendant’s right of confrontation that he is granted in the United States Constitution and the Constitution of the State of Michigan. Essentially, the jury was hearing the absent doctor’s official opinion and diagnosis and likely used those as part of their decision-making. As all good criminal defense lawyers should know, defendants have the right to cross-examine witnesses used against them.
Third doctor could made a difference in the ruling
The Justices wrote that having that third doctor could have been the tie-breaker between both the doctors who testified in court. Also, that doctor was the only one who had the chance to examine the defendant and did so immediately following the crime; admittedly, any jury would give great weight to such a doctor’s opinion. As expert criminal defense attorneys experienced in trial work, we know that a tough and effective cross-examination of an adverse witness is vital to our client’s chances at trial. During actual testimony, much of the communication is non-verbal, and juries intuitively use non-verbal cues to gauge a witness’s credibility. On top of that, witnesses often express opinions in expert reports that don’t withstand the challenge of a good cross-examination. Had that doctor testified in the courtroom, the jury could have chosen to believe—or not believe—his testimony.
The Michigan Supreme Court made the correct decision in the Fackelman case. Our system is built on the concept that a criminal defendant is innocent until proven guilty. Procedural safeguards are put in place to protect criminal defendants from unfair trials. When these are followed, we are all protected from abuses of the system. They must be followed. We are glad to see the Michigan Supreme Court stand up for the Constitutions of the United States and the State of Michigan.