6.12Defendant’s Right of Confrontation

“[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial.”¹ Ohio v Clark, 576 US 237, 245 (2015). “‘Where no such primary purpose exists, the admissibility of a statement is the concern of [the applicable] rules of evidence, not the Confrontation Clause.’” Id., quoting Michigan v Bryant, 562 US 344, 359 (2011).² 

“[F]or testimonial evidence, [the face-to-face] requirement [of the Confrontation Clause] may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness.”³ People v Jemison, 505 Mich 352, 365-366 (2020) (deciding that Crawford v Washington⁴ applied to the witness testimony at issue and that Maryland v Craig,⁵ as it was applied in cases involving child victims, did not except adult expert witnesses from complying with the face-to-face requirement of the Confrontation Clause).

A.Balancing the Rape-Shield Statute Against Defendant’s Right of Confrontation

Under US Const, Am VI and Const 1963, art 1, § 20, a defendant in a criminal case has a right to confront the witnesses against him or her. “When applying the rape-shield statute, trial courts must balance the rights of the victim and the defendant in each case.” People v Benton, 294 Mich App 191, 198 (2011). In “recognizing that application of the statute’s evidentiary exclusion might in some instances violate a defendant’s Sixth Amendment right to confrontation, our Supreme Court has indicated that such evidence may be admissible when offered for [a] narrow purpose[.]” People v Powell, 201 Mich App 516, 519 (1993) (evidence admissible “for the narrow purpose of showing a victim’s bias or motive for filing a false claim”).

“The determination of admissibility is entrusted to the sound discretion of the trial court. In exercising its discretion, the trial court should be mindful of the significant legislative purposes underlying the rape-shield statute and should always favor exclusion of evidence of a complainant’s sexual conduct where its exclusion would not unconstitutionally abridge the defendant’s right to confrontation.” People v Hackett, 421 Mich 338, 349 (1984).

In Hackett, the Michigan Supreme Court also noted:

“We recognize that in certain limited situations, such evidence may not only be relevant, but its admission may be required to preserve a defendant’s constitutional right to confrontation. For example, where the defendant proffers evidence of a complainant’s prior sexual conduct for the narrow purpose of showing the complaining witness’ bias, this would almost always be material and should be admitted. Moreover in certain circumstances, evidence of a complainant’s sexual conduct may also be probative of a complainant’s ulterior motive for making a false charge. Additionally, the defendant should be permitted to show that the complainant has made false accusations of rape in the past.” Hackett, 421 Mich at 348 (citations omitted).

1.No Violation of Right to Confrontation When Evidence Sought Was Not Relevant to Defense

The defendant argued that he was denied his right to confrontation when the trial court prevented him from inquiring into “(1) the identities of other boys [to whom] the victims sent naked photographs, and (2) whether the victims had similar sexual contact with other boys.” People v Gaines, 306 Mich App 289, 315 (2014). Although evidence showing that the victims sent naked photographs to others was arguably relevant to the defendant’s defense against the accosting charge—the defendant claimed that the victims were the first to suggest sending the defendant naked photographs—“the identities of the other alleged recipients would not have had any significant tendency to make the defense more or less probable,” and thus, the trial court did not err by precluding inquiry into the recipients’ identities. Id. at 316, 318.

Additionally, “evidence of the other instances of sexual contact [was not] admissible [even though] the victims were not just testifying as victims in their own cases, but were testifying as witnesses in the other cases[.]” Gaines, 306 Mich App at 317-318. The Court held that regardless of whether the victims were testifying in their own cases or as witnesses in other cases, the victims remained “victims” under MCL 750.520a(s) because they still alleged that they were “‘subjected to criminal sexual conduct[.]’” Gaines, 306 Mich App at 317-318, quoting MCL 750.520a(s).

Finally, even though accosting is not protected by MCL 750.520j, the other instances of sexual contact were inadmissible in the accosting prosecutions because “[w]hether the victims had sexual contact with others was not relevant to his defense to th[e accosting] charges.” Gaines, 306 Mich App at 318. Accordingly, the defendant was not denied his constitutional right to confrontation by the exclusion of the evidence, because the “[d]efendant had no right of confrontation with regard to irrelevant issues.” Id.

2.No Violation of Right to Confrontation When Prejudicial Nature of Evidence Outweighs Probative Value

The defendant was convicted of three counts of CSC-I arising out of incidents involving an eight-year-old boy. People v Arenda, 416 Mich 1, 5, 6 (1982). The defendant argued that evidence of the victim’s sexual conduct with others “was relevant and admissible to explain the witness’s ability to describe vividly and accurately the sexual acts that allegedly occurred.” Id. at 6. The defendant further claimed that evidence of the victim’s sexual conduct with others would “dispel any inference that this ability resulted from experiences with defendant.” Id. at 11. The trial court ruled that the evidence was inadmissible under the rape-shield statute. Id. at 6, 7. The Supreme Court balanced the potential prejudicial nature of this evidence against its probative value and found that application of the rape-shield statute to preclude admission of the evidence did not infringe on the defendant’s right to confrontation. Id. at 12-13. The Court noted that other means were available by which the defendant could cross-examine the complainant as to his ability to describe the alleged conduct. Id. at 13, 14.

3.Limitations on Cross-Examination

A defendant’s right of cross-examination does not entitle the defendant to cross-examine a witness on irrelevant issues. People v Gaines, 306 Mich App 289, 316 (2014). But “[a] limitation on cross-examination that prevents a defendant from placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred constitutes denial of the constitutional right of confrontation.” People v Kelly, 231 Mich App 627, 644 (1998).

B.Statements Made to SANEs

“[I]n order to determine whether a sexual abuse victim’s statements to a SANE [Sexual Assault Nurse Examiner] are testimonial, the reviewing court must consider the totality of the circumstances of the victim’s statements and decide whether the circumstances objectively indicated that the statements would be available for use in a later prosecution or that the primary purpose of the SANE’s questioning was to establish past events potentially relevant to a later prosecution rather than to meet an ongoing emergency.” People v Spangler, 285 Mich App 136, 154 (2009). The Court set out the following nonexhaustive list of factual indicia to assist in deciding whether a victim’s statements are testimonial:

“(1) the reason for the victim’s presentation to the SANE, e.g., to be checked for injuries or for signs of abuse;

(2) the length of time between the abuse and the presentation;

(3) what, if any, preliminary questions were asked of the victim or the victim’s representative, or what preliminary conversations took place, before the official interview or examination;

(4) where the interview or examination took place, e.g., a hospital emergency room, another location in the hospital, or an off-site location;

(5) the manner in which the interview or examination was conducted;

(6) whether the SANE conducted a medical examination and, if so, the extent of the examination and whether the SANE provided or recommended any medical treatment;

(7) whether the SANE took photographs or collected any other evidence;

(8) whether the victim’s statements were offered spontaneously, or in response to particular questions, and at what point during the interview or examination the statements were made;

(9) whether the SANE completed a forensic form during or after the interview or examination;

(10) whether the victim or the victim’s representative signed release or authorization forms, or was privy to any portion of the forensic form, before or during the interview or examination;

(11) whether individuals other than the victim and the SANE were involved in the interview or examination and, if so, the level of their involvement;

(12) if and when law enforcement became involved in the case, how they became involved, and the level of their involvement; and

(13) how SANEs are used by the particular hospital or facility where the interview or examination took place.” Id. at 155-156.