EvidenceProf Blog

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

Tuesday, December 24, 2013

The Big C: Michigan Court Finds Declarant's Cancer Rendered Her "Unavailable" Under Rule 804(a)(4)

Similar to its federal counterpartMichigan Rule of Evidence 804(b)(1) provides an exception to the rule againsat hearsay for

Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another 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. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record. This paragraph is subject to the limitations set forth in Articles 49 and 50.

And, similar to its federal counterpartMichigan Rule of Evidence 804(b)(1) only allows for the admission of such former testimony if the declarant is "unavailable." A declarant is "unavailable," if, inter alia, he "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity...." Michigan Rule of Evidence 804(a)(4). So, what exactly does it tale to satisfy Rule 804(a)(4)? Let's take a look at People v. Conner, 2013 WL 6690493 (Mich.App. 2013).

In Conner, Leon Conner was charged with carjacking, robbery, and unlawfully driving away an automobile. After he was convicted, Conner appealed, claiming, inter alia, that the trial court erred by deeming a declarant "unavailable," allowing for the admission of her former testimony under Michigan Rule of Evidence 804(b)(1). According to the Court of Appeals of Michigan,

At trial, the prosecutor noted that one of the complaining witnesses called the day before and said she would be absent. The prosecutor stated that the witness, who lived in Ohio, was fighting her own cancer, attending to a very ill patient, and assisting her daughter, who had recently been diagnosed with leukemia. The trial court accepted these statements and concluded that the witness was unavailable.  

The record shows that the witness had been diagnosed with cancer prior to trial and was undergoing chemotherapy. It is reasonable to believe that traveling from Canton, Ohio to Detroit, Michigan to undergo a second round of testimony and cross-examination would be detrimental to her health. A witness who was in the process of chemotherapy and other cancer treatments is exactly what was contemplated by MRE 804(a)(4). Additionally, the prosecution served the witness with a subpoena in Ohio. A victim advocate working with the prosecutor had also been in contact with the witness and arranged for a hotel room in Detroit. And the prosecution could not have taken additional steps to secure the witness given the short notice. Under these circumstances the trial court could properly conclude that the witness was unavailable....Consequently, it did not abuse its discretion when it admitted this testimony.



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