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Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, October 16, 2011

Don't Be Tardy: Western District Of Michigan Finds State Court Properly Deemed Witness For Prosecution "Unavailable"

Federal Rule of Evidence 804(a)(5) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

Meanwhile, Michigan Rule of Evidence 804(a) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown. (emphasis added)

So, when are attempts to procure a declarant's attendance reasonable but not an exercise in due dilligence? That question was not answered by the United States District Court for the Western District of Michigan in its recent opinion in Smith v. McQuiggin, 2011 WL 4824492 (W.D.Mich. 2011), but it does point us toward a partial answer.

In McQuiggin, Keith Elroy Smith, a Michigan state prisoner in the custody of the Michigan Department of Corrections, filed a petition for writ of habeas corpus under  28 U.S.C. ยง 2254. A magistrate judge recommended that the habeas petition be denied and dismissed with prejudice, and that a certificate of appealablity be denied. The Western District of Michigan thereafter agreed.

One of the grounds upon which Smith habeas relief was the introduction of the former testimony of Richard Gentry, an eyewitness, at Smith's trial for first-degree premeditated murder and related crimes. Gentry did not testify at trial, but the trial court deemed him unavailable and allowed for the admission of Gentry's testimony during a preliminary examination pursuant to Michigan Rule of Evidence 804(b)(1).

In his appeal in the Michigan state court system, Smith claimed that the prosecutor failed to meet its due diligence obligation because its attempts to locate Gentry were "tardy and incomplete." In support of his argument, Smith cited to, inter alia, People v. James, 481 N.W.2d 715 (Mich.App. 1992), in which the Court of Appeals of Michigan found that the prosecutor's efforts were tardy because it had no contacts with the witness over three and one-half years between the time of the preliminary examination and the time of trial. The court, however, found this citation inapposite, noting that there was only a three month gap between Gentry's preliminary examination and Smith's trial and that the evidence indicated that Gentry planned to testify at Smith's trial until the day of trial.

In later ruling against Smith, the Western District of Michigan simply held that "[i[t is unnecessary to reiterate here the well-reasoned opinion of the Michigan Court of Appeals."

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/10/804b1-smith-v-mcquigginslip-copy-2011-wl-4824492wdmich2011.html

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