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Univ. of South Carolina School of Law

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Sunday, December 14, 2008

Motor City Mistake: Judge's Cutting Short Of Pre-Trial Examination Renders Former Testimony Exception Unavailable

According to an article in the Detroit News, "[a] mistake by 36th District Court Judge Miriam Martin-Clark led to charges being thrown out against an auto mechanic accused of beating a man with a lead pipe in an argument over a $17,500 real estate deal gone bad, according to the Michigan Court of Appeals."  And the article is right.

In People v. Al-Lahham, 2008 WL 5158897 (Mich.App. 2008), the prosecution charged Mohamed Al-Lahham with assaulting Marlon Ozier with intent to commit murder.  Subsequently, during a pre-trial examination of Ozier, defense counsel began to explore inconsistencies between Ozier's statements to the police and his testimony at the examination, resulting in the following exchange:

     "THE COURT: Okay. We're closing this out, Mr. Cripps [defendant's counsel]. I assume you're done.

     MR. CRIPPS: No, I'm not done.

     THE COURT: Well, you are, you are. I'm not allowing you anymore questions. The Court gave you fair warning, five minutes. It's now after five minutes, so the Court is not allowing anymore questions by you of this witness.

     MR. CRIPPS: I object to that, but you're the Court, you're cutting me off.

     THE COURT: You cannot object. I'm cutting you off. It is now 1:21. This Court is not supposed to take the staff through the lunch break and we have done that and we have allowed you a great latitude to question this witness. You're cut off. You're cut off. Mr. Burton [the prosecutor], if you have anything brief you may ask it, otherwise I'm going to excuse this witness. This is ridiculous."

At this point, defendant's counsel explained that he had only been cross-examining Ozier for twenty minutes and asked to adjourn for lunch and continue the cross-examination afterwards, but the court refused.  The court noted that the standard for a preliminary hearing was different than that for a trial and that the testimony and evidence defendant's attorney's wanted to present went to questions of fact that would "be determined by the next-at the next stage of the proceeding...."

But this testimony would not be forthcoming because Ozier was murdered before trial, and Al-Lahham wasn't a suspect in his killing.  But the prosecution wanted to admit Ozier's testimony from the pre-trial hearing pursuant to Michigan Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay, which in relevant part renders admissible:

     "[t]estimony given as a witness at another hearing of the same... proceeding, if the party against whom the testimony is now offered...had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

The trial court, however, found Ozier's testimony to be inadmissible, and the Michigan Court of Appeals affirmed.  It did not do so, however, on the ground that the former testimony exception was inapplicable.  Indeed, the court noted that "[i]n the present case, there is no doubt that Ozier is unavailable and that defendant's counsel did in fact have some opportunity to cross examine Ozier." 

The court, however, found that this conclusion did "not end the inquiry." Instead, it found that admission of Ozier's testimony would violate the Confrontation Clause because

     "[t]he Confrontation Clause does not require that the defendant be afforded only some opportunity to cross-examine the witnesses against him; rather, it requires that the defendant be afforded the opportunity to effectively cross-examine the witnesses against him."

I agree with this Confrontation Clause conclusion by the court, but I disagree with its hearsay ruling.  Just as the Confrontation Clause requires the opportunity to effectively cross-examine and not merely some opportunity to cross-examine, the former testimony exception requires a full and fair opportunity to develop testimony, not just some opportunity to do so. See, e.g., People v. Harris, 2001 WL 1004367 (Mich.App. 2001).

In the end, though, the evidentiary result was the same, and because it left the Wayne County Prosecutor's office without enough evidence to convict Al-Lahham, they dropped the case against him."

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/12/former-testimon.html

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