Criminal Case Questions: No-show Witnesses; Hearsay Phone Records

March 9, 2021 - Categories: Legal Articles, Michigan

Question Presented

  1. Is there a method and or obligation for the state to assist the defense in issuing subpoena to a witness if the witness is hostile towards the defense?
  2. If a subpoena is issued to a witness and they fail to appear, can trial be postponed until the witness appears?
  • What hearsay rules are applicable to laboratory reports, phone records, IP addresses, text messages pulled from phones of victims, 3rd party witnesses, and defendant records.
    1. Does the business- rule exception apply?
    2. Will a certification statement from the company suffice?
    3. Does Defendant have the right to cross-examine a person who produced/wrote reports to establish authentication of documents?

Short Answer

  1. Yes, under MCL § 775.15, you may force a court to issue a subpoena utilizing the powers of the state if you can make the premia facia case that the witness is material and favorable to the defense.
  2. Yes, under MCR § 2.506, trial may be stayed at the discretion of the court and a show cause order may be issued and or you may motion to strike all testimony of the witness who fails to appear.
  • Multiple rules are applicable concerning the categories listed. My analysis focuses solelyonMRE 901 and 803.
    1. The business-rule exception does not apply to laboratory reports, but does to phone records, records of who owns a particular IP address.
    2. Depending on what the evidence is, it may if purely challenged un MRE 901, but if it’s a laboratory report, someone must testify.
    3. The Michigan Supreme Court has made clear that a laboratory report prepared by a non-testifying analyst “is, without question, hearsay.” People v. McDaniel, 469 Mich. 409, 412 (2003).

Discussion

  1. Is there a method and or obligation for the state to assist the defense in issuing subpoena to a witness if the witness is hostile towards the defense?

There is a method, but not an obligation for the Court to assist the defense in issuing a subpoena to a witness if the witness can be defined as a “material witness.” The Compulsory Process Clause of the sixth Amendment guarantees every criminal defendant the right to present witnesses in their defense. Washington v. Texas, 388 U.S. 14, 17-18 (1967). This right however is not absolute; defense must show that the witness’ testimony would be both material and favorable to the defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982). The related statues do not define the term “material.” Blacks Law Dictionary defines “material” as “[h]aving some logical connection with the consequential facts[.]” Thus, a “material witness” is a person (whose testimony is desired) that can testify about matters having some logical connection with the consequential facts. People v. Gusman, No. 290372, 2010 WL 1576691, at *7 (Mich. Ct. App. Apr. 20, 2010). The procedure of utilizing such powers of the State in requiring a witness to attended is codified in statute.

MCL § 775.15 controls the procurement of a material witness. It states, “[i]f any person accused of any crime or misdemeanor, and about to be tried therefor in any court of record in this state, shall make it appear to the satisfaction of the judge presiding over the court wherein such trial is to be had, by his own oath, or otherwise, that there is a material witness in his favor within the jurisdiction of the court, without whose testimony he cannot safely proceed to a trial, giving the name and place of residence of such witness, and that such accused person is poor and has not and cannot obtain the means to procure the attendance of such witness at the place of trial, the judge in his discretion may, at a time when the prosecuting officer of the county is present, make an order that a subpoena be issued from such court for such witness in his favor, and that it be served by the proper officer of the court. And it shall be the duty of such officer to serve such subpoena, and of the witness or witnesses named therein to attend the trial, and the officer serving such subpoena shall be paid therefore, and the witness therein named shall be paid for attending such trial, in the same manner as if such witness or witnesses had been subpoenaed in behalf of the people.” The decision of whether compulsory process is used to obtain witnesses requested by defendant is a decision which is committed to discretion of the trial court. People v. Williams, 887 N.W.2d 662 (Mich. Ct. App. 2971). Therefore, if it is clear the witness will not show, then a motion should be entered for compulsory attendance.

 

  1. If a subpoena is issued to a witness and they fail to appear, can trial be postponed until the witness appears?

Michigan Court Rule 2.506 give the Court great discretion is whether or not a trial may continue without a witness. Specifically MCR 2.506(F)(1)-(6) states “If a party or an officer, director, or managing agent of a party fails to attend or produce documents or other tangible evidence pursuant to a subpoena or an order to attend without having served written objections, the court may: (1) stay further proceedings until the order is obeyed; (2) tax costs to the other party or parties to the action; (3) strike all or a party of the pleadings of that party; (4) refuse to allow that party to support or oppose designated claims and defenses; (5) dismiss the action or any part of it; or (6) enter judgment by default against that party.” This leaves open many options to the defense. The best way forward if a witness does not show is to enter a motion to strike all testimony given by the witness and, in the alternative, motion to show cause, thereby causing a stay trial until witness shows. (see also MCL 2.506(H)(1)-(5)).

  • What hearsay rules are applicable to laboratory reports, phone records, IP addresses, text messages pulled from phones of victims, 3rd party witnesses, and defendant records.
  1. Laboratory

The Michigan Supreme Court has made clear that a laboratory report prepared by a non-testifying analyst “is, without question, hearsay.” People v. McDaniel, 469 Mich. 409, 412 (2003). Under the Michigan Rules of Evidence, the only way to allow such reports is through Rule 803 and or 804. If the laboratory reports at issue are adversarial and are intended to establish an element of the charges against defendant, the reports are not admissible as business records under MRE 803(6). Id. at 413-414.

  1. Phone Records

The requirement of authentication of identification as condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in questions is what its proponent claims. MRE 901(a). Records produced pursuant to subpoenas are authenticated under MRE 901(a). Once authenticated, the question then turns to whether they are hearsay.

Michigan Rules of Evidence 803 apply to phone records. MRE 803(6) state, “[a] memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” Therefore, the business rule exception would apply only if the custodian or other qualified witness offers testimony that the phone records met the exception. See People v. Andrews, No. 259834, 2006 WL 1751868 at *1 (Mich. Ct. App. June 27, 2006).

iii. IP Addresses

Michigan Rule of Evidence 901(a) is the proper threshold of whether IP addresses may be admitted as evidence. MRE 901(a) states, “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” As seen in Andrews, this burden can be upheld by prosecutors when they present the messages, showing it contained defendant’s identifying information as the sender.

  1. Text Messages from Victim

Whether or not text messages from the victim’s phone is admissible is a close question, depending on what is said in the messages and what is attempted to be provided by the messages; nevertheless, the hearsay exceptions of MRE 803 will be analyzed as to whether they are admissible. In People v. Moorer, 262 Mich. App. 64, 73 (2004), the Court rejected the notion that a victim’s hearsay statements reiterating the defendants threats were admissible under MRE 803(3), reasoning that the out of court statements “related to past events and are specifically excluded under MRE 803(3) as statements of ‘memory or belief to prove the fact remembered or believed..’” Further, as discussed supra, the prosecution must overcome the requirements of MRE 901(a).

  1. Third-Party Witness

Again, the admissibility of a third-party witness turns completely on what the witness is testifying to and what the prosecution wishes to prove. In People v. Malone, 445 Mich. 369 (1994), the Supreme Court held that statements of identification are not hearsay when identifier is subject to cross-examination.

  1. Defendants Records

Finally, this question depends on what the record is. If you are referring to public record, then yes, this evidence would be allowed under an exception to hearsay. MRE 803(8).

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