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One Court of Justice Blog

Feb 2017
03
February 03, 2017

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

It’s the thought that counts—or, for the Michigan Supreme Court, the intent. The court has ordered an MOAA to hear arguments on whether intent matters in an evidence dispute over an unavailable witness. In People v. Lopez, No. 327208, the Court of Appeals found that the prosecutor threatened the defendant’s key witness. The prosecutor in that case told the witness that giving testimony during trial that differed from previous sworn testimony would result in a charge of perjury and life imprisonment. So, a week before trial, the witness invoked his Fifth Amendment privilege, saying he was no longer willing to testify. The prosecutor then filed a motion to declare Hoskins “unavailable” as a witness and to admit his prior testimony pursuant to MRE 804(b)(1).
 
 

Aug 2016
20
August 20, 2016

COA: Prosecution may not inform a defense witness of the possibility of prosecution for perjury

The Michigan Court of Appeals, in People v. Lopez, No. 327208, found that defendant Lopez’s constitutional rights were violated where the prosecutor threatened defendant’s key witness that deviating from prior testimony would result in prosecution for perjury and life imprisonment. Dennis Hoskins was the key witness in Lopez’s trial for shooting and killing Terry Johnson.  Hoskins agreed to provide evidence tying Lopez to Johnson’s murder.  Nonetheless, a week before trial, Hoskins invoked his Fifth Amendment privilege and stated that he was no longer willing to testify.  The prosecutor then filed a motion to declare Hoskins “unavailable” as a witness and to admit his preliminary examination testimony pursuant to MRE 804(b)(1).  
 

Jul 2016
28
Jul 2016
07
July 07, 2016

No fishing allowed: Defendants may not access victim’s privileged records unless they have good faith basis to believe records contain information material to defense

In People v. Davis-Christian (329924), the Court of Appeals rearticulated the proper procedure for a defendant to access a victim’s privileged records previously outlined in People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994) and MCR 6.201(C)(1) and (2).  Specifically, the court held that in order for the court to grant an in camera review of the material, the defendant must first establish, in “articulable fact”, that there is reasonable probability that the records contain information material to the defendant’s defense.  The material may only be disclosed to the defense if the court determines, after an in camera review, that the records indeed reveal this type of evidence necessary to the defense.  Here, the trial court had abused its discretion by granting in camera review of a sexual assault victim’s counseling records without first requiring the defense to establish a reasonable probability that the evidence was material to the defense. 

Jun 2016
29
June 29, 2016

COA: A child’s videotaped testimony cannot serve as substantive evidence in a parental-rights adjudication hearing

In In re J.R. Martin, Minor, Nos. 330213; 330232, the Court of Appeals held that reliance on videotaped statements, made by witnesses under the age of 16 as substantive evidence, is improper under MCL 712A.17b(5) in a parental-rights adjudication hearing.  Such videotaped statements can be used only to determine whether the person who interviewed the child witness should be able to testify at an adjudication and termination hearing.  If the videotape demonstrates that the “circumstances surrounding the giving of the statement provide adequate indicia of trustworthiness,” then the interviewer may testify at the hearing.

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