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A Better Partnership
August 02, 2013

MSC holds that 4-year old was "unavailable" for purpose of hearsay exception

In People v. Duncan, the Michigan Supreme Court held that a minor’s testimony at a preliminary examination was admissible under MRE 804(b)(1) and 804(a)(4)—the “unavailability” exception to the hearsay rule—when she was too emotionally distressed to testify. MRE 804(b)(1) provides that former testimony is admissible hearsay if a declarant is “unavailable,” and MRE 804(a)(4) defines “unavailable” to include a “then existing . . . mental . . . infirmity.” Here, the declarant (age four) was the alleged victim of a sexual assault. At two preliminary hearings, the declarant was qualified as competent and testified regarding the assault. At trial, however, she was agitated and unable to answer the court’s questions, such as the difference between the truth and a lie, and was rendered unable to testify. The trial court excluded her prior testimony as hearsay, and the Michigan Court of Appeals affirmed.

The Michigan Supreme Court reversed. A mental infirmity is any “weakness or feebleness of the mind—one cause of which may be an individual’s age.” Further, when evaluating whether the infirmity is “then existing” under MRE 804(a)(4), “the only relevant reference point is the point at which the witness takes the stand.” Thus, it was immaterial that the declarant did not have the mental infirmity when she testified at the preliminary hearings—it was only relevant that she had the infirmity at the time of her testimony at trial. Pursuant to the plain meaning of MRE 804(a)(4) and 804(b)(1), then, “a declarant is unavailable for hearsay purposes when she is unable to overcome severe emotional trouble resulting from the limitations of her young age.” The dissent, voiced by Justice Cavanaugh, argued for a reexamination of the “unavailability” exception with child witnesses in mind.

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