Sunday, July 18, 2010
A Bit Preliminary: Court Of Appeals Of Michigan Deals Preliminary Examination Testimony Admissible Under Former Testimony Exception
Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
A defendant is charged with murder. At the preliminary examination, he cross-examines an alleged eyewitness to that murder. At trial, the eyewitness invokes her Fifth Amendment privilege against self-incrimination and refuses to testify. Should her testimony at the preliminary examination be admissible under Michigan Rule of Evidence 804(b)(1)? According to the recent opinion of the Court of Appeals of Michigan in People v. Hadley, 2010 WL 2757143 (Mich.App. 2010), the answer is "yes." I disagree.
In People v. Hadley, 2010 WL 25757143 (Mich.App. 2010), William Hadley was charged with murder and
[a]t the preliminary examination, [Misty Mae] Hafley testified that on January 3, 2009, she and defendant were at the home of Georjean Hadley and her husband, with their children and several adult friends. Throughout the evening, defendant, Hafley and the other adults liberally consumed alcohol. After the children were asleep in a back bedroom of the home, an argument arose between defendant and Georjean in another room. When Hafley emerged from the children's room, she positioned herself between defendant and Georjean in an attempt to intercede in what had escalated into a physical altercation. During this confrontation, defendant shot Georjean with a handgun, killing her. Hafley hid the gun within the home at defendant's request. The police arrested both defendant and Hafley. During three subsequent interviews with police, Hafley provided different versions of the events of that night. Hafley admitted at the preliminary examination that all of these versions were false. After two days in jail, Hafley was released when she told police that defendant shot Georjean.
Thereafter, the trial court appointed counsel to Hafley, and
Hafley asserted her Fifth Amendment right to silence. As a result, the prosecutor sought to introduce Hafley's preliminary examination testimony at trial based on her unavailability. Defendant's counsel objected, asserting that his motivation for cross-examining Hafley had changed since the preliminary examination in light of...new evidence....Defense counsel indicated that his trial strategy had altered and that his focus was now on proving Hafley's culpability rather than merely impeaching her credibility. As such, defense counsel argued that her prior testimony was rendered inadmissible. The trial court conducted an evidentiary hearing, and...precluded the use of Hafley's preliminary examination testimony at trial.
In its ensuing appeal, the government claimed that Hafley's former testimony was admissible under Michigan Rule of Evidence 804(b)(1). The Court of Appeals of Michigan responded that in People v. Farguharson, it set forth a "nonexhaustive list of factors in determining whether the prosecution had a similar motive to examine a witness at a prior proceeding":
(1) whether the party opposing the testimony "had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue"; (2) the nature of the two proceedings-both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities) .
Applying these factors, the court found that
Defendant's primary motivation at the preliminary examination was to impugn or call into question Hafley's credibility. Although defense counsel now contends that his motivation has changed from undermining Hafley's credibility to demonstrating her culpability, this constitutes a distinction without a difference. At trial, defendant will only be able to suggest Hafley's culpability by impeaching her credibility. There are no witnesses testifying that Hafley fired the fatal shot. Defense counsel impliedly acknowledged this when he stated that proving Hafley fired the gun "would allow the jury to fully understand why she's lying to cover her butt," and when he argued that showing Hafley's culpability would reveal her motive for lying and serve to seriously undermine her credibility. Consequently, the focus of defense counsel's cross-examination of Hafley has not altered....Therefore, we reverse the trial court's ruling precluding the admission of Hafley's preliminary examination testimony at trial.
Huh? Okay, I acknowledge that under the third factor, defense counsel cross-examined Hafley. But how, under the first factor, could the court find that Hadley had a substantially similar intensity to disprove Hafley's testimony at the preliminary examination as he would have had at trial? And how, under the second factor, could the court have found that the stakes were similar at the preliminary examination and at trial. At the preliminary examination, Hadley was merely doing a dry run of what he would eventually at trial. There was no applicable burden of proof and no danger that he would be convicted or lose his freedom at the preliminary examination. Knowing that Hafley admittedly had provided three prior false accounts of the subject crime, he easily could have held off on fully cross-examination during the preliminary examination so that Hafley was unprepared for a more intense cross-examination at trial.
I realize that there is a split on this issue. See Preliminary Hearings, 74 GEO. L. J. 647, 652 n.199 (1986)
A defendant may be able to argue that the motive for cross-examining a government witness differs in the preliminary examination because a defendant may not want to reveal his or her defense to the prosecution at this early stage. See United States ex rel. Haywood v. Wolff, 658 F.2d 455, 463 (7th Cir.) (test for determining whether preliminary examination testimony of deceased witness violates defendant's constitutional right of confrontation is whether cross-examination at preliminary examination provided sufficient indicia of reliability to evaluate truth of testimony when considered in conjunction with other evidence presented at trial), cert. denied, 454 U.S. 1088 (1981). But cf. Mechler v. Procunier, 754 F.2d 1294, 1300 (5th Cir. 1985) (when defendant was present and actively represented by counsel at preliminary examination, admission of unavailable government trial witnesses' preliminary examination testimony did not violate sixth amendment confrontation clause).
But, given the factor employed by the Court of Appeals of Michigan, I don't see how it reached the result that it reached.