It is a common scenario for Michigan criminal defense attorneysâa witness is available for testimony in the preliminary examination to be held in a district court. The attorney has to make a recommendation as to whether to hold the examination or waive it. Most effective trial attorneys would hold the exam in most cases where the anticipation is that the case will eventually go to trial. However, there are times in which holding the examination can be a problem later on. Generally, I donât dwell on this point because attorneys waive far too many preliminary examinations. These lawyers often lack the motivation to put up an aggressive defense for the client. People v Duncan illustrates the downside of holding a preliminary examination.
The backstory generally goes like this: a person is arrested and charged with a felony. There is a witness prepared to testify who may not be available to testify months later. Most commonly this would be a child, a hostile witness who may reconcile with the client and not be so hostile later, a person who may be leaving the state, or a person who is sick or dying. Typically, a judge in a preliminary examination will not allow extensive questioning of a witness, so the cross examination of the witness will not be as thorough or as effective as it would be at trial. This is because this proceeding is a probable cause hearing, and the judge is only concerned about whether there is enough evidence to send the case up to the trial court.
Sometimes the defense tries to delve deeper but judge wonât allow it
When the preliminary examination is held, there is a transcript of the testimony available to the court and counsel at trial. When a witness is unavailable at trial, a motion will be made by one of the attorneys to simply read the transcript to the jury. From a criminal defendantâs point of view, this can be very bad. In my career, I have read many preliminary examination transcripts where the critical testimony implicating the client lasted 15 minutes or less, with minimal cross by the defense attorney. Sometimes, the defense tries to delve deeper but the judge wonât allow it. Also, a preliminary examination is generally held within 14 days of the arraignment, which means that only a minimal investigation by the defense has occurred (if any). So, the defense attorney may not be prepared to conduct a thorough cross-examination.
When the case is up for trial, and the witness is declared unavailable by the court, the defense may have a serious problem. You cannot cross-examine a transcript. The defense is left with whatever cross-examination was conducted in the lower court, adequate or not. So, conducting a preliminary examination always has some risk associated with it.
In People v. Duncan, the Michigan Supreme Court held that when a child is overcome by distress, then the child has an existing mental infirmity as described under MRE 804(a)(4) and is unavailable as a witness. The case originated in the Macomb Circuit Court.
Defendant Stanley Duncan was charged with five counts of first-degree criminal sexual assault (CSC I) and four counts of CSC 2. His wife Vita Duncan was charged with two counts of CSC 1, two counts of CSC 2, and operating a daycare facility without a license.
A 3-year-old girl was the sole complainant against Vita and one of three against Stanley. Each defendant held a preliminary examination in which the child testified. Both were bound over and a joint trial was scheduled. During the trial, the child was called to the stand while visibly upset and could not answer the courtâs questions related to the difference between being truthful, lying, and what a promise is. The court found the child not competent to testify under MRE 601. In turn, the prosecutor requested the court to declare the child unavailable under MRE 804(a) and moved to admit her testimony from the preliminary exam under MRE 804(b)(1). However, the court denied this, stating the child was not unavailable.
The trial court granted a stay of the proceedings, and the prosecution pursued emergency leave to appeal via the Court of Appeals. The appellate history includes various proceedings involving the trial court, the Court of Appeals, and the Michigan Supreme Court. Eventually, the Court of Appeals affirmed the trial judgeâs ruling that the child was not unavailable, and therefore the prosecution could not simply use the transcript from the preliminary examinations.
Next, the Supreme Court granted leave to appeal. The issue was limited to whether the child was unavailable for purposes of MRE 804(a). The court vacated as dicta the parts of both the lower courtsâ judgment and opinion that addressed whether the admission of the childâs preliminary examination testimony would violate the defendantsâ Confrontation Clause rights.
The Court focused on a then existing mental infirmity under MRE 804(a)(4). Infirmity is a state of being weak or feeble in body or health, especially due to age. Mental infirmity is weakness or feebleness of the mind, which may be caused by a personâs age. So the phrase âthen existingâ confines the scope of a witnessâs availability under MRE 804(a)(4) for assessment. Additionally, the fact that the child was competent and available at two preliminary examinations did not affect the finding whether she was mentally capable or infirm during trial. Considering the ruleâs plain language and the childâs limitations due to her youth, she had a then existing mental infirmity since she was not able to cope with her emotional distress and testify at trial. Therefore, she was unavailable under MRE 804(a)(4).
With this ruling, the trial may proceed. If the child proves to be unavailable at that time, the transcript will be read unless there is some other reason why the trial court will not allow it. If this happens, the defendants will be concerned if they find that the transcript does not provide them with an adequate cross examination.
As Michigan criminal defense attorneys, we understand that most preliminary examinations should be conducted in cases where a case may be going to trial. However, there are various exceptions to the rule, which must be carefully considered.