In People v. Sardy, No. 319227, the Michigan Court of Appeals held that when a party fails to object to a child-witness’s unsworn testimony and allows the testimony to be fully developed, that party waives the swearing of the witness. MRE 603 and MCL 600.1434 require that a witness prior to testifying declare that he or she will testify truthfully. Further, Michigan Model Criminal Jury Instruction 5.9 provides that for a witness who is a young child, a promise to tell the truth satisfies the oath requirement. However, the primary question addressed by the Court of Appeals in Sardy was how to treat a failure of the prosecution to attain a promise or affirmation to tell the truth from a testifying child-victim.
Defendant was convicted of multiple sexually abusive conduct charges related to acts done to his daughter. Upon appeal, Defendant argued, among other things, that his rights under the Confrontation Clause were violated because the prosecutor failed to have the child-victim declare at the preliminary examination—from which the victim’s testimony was admitted at trial—by oath or affirmation that she would testify truthfully. As Defendant did not provide an articulated legal justification for why this failure was an error, the Court of Appeals rejected a structural-error approach in favor of a waiver approach. The Court reasoned that Michigan Supreme Court precedent provides that a waiver occurs when a party fails to object at the time to a witness testifying without being sworn in and a structural-error approach is inconsistent with case law.
The Court of Appeals acknowledged, however, that a waiver analysis here is inconsistent with People v. Carter, a recent Michigan Supreme Court case. In Carter, the Supreme Court held that a waiver is an intentional relinquishment of a known right, while a forfeiture is a mere failure to make a timely assertion of a right that does not extinguish the error. As defense counsel here unintentionally failed to timely assert the right, this is arguably a forfeiture under Carter—making the error appropriate for review upon appeal. Nevertheless, the Court of Appeals rejected a forfeiture approach but held that even applying the Carter rationale, no plain error resulted from failing to acquire the pre-testimony promise or affirmation. The Court affirmed Defendant’s conviction, but remanded to address a sentencing matter under People v. Lockridge. Judge Stephens concurred, arguing that Carter controlled and that the failure to object constituted a forfeiture, not a waiver.