“[A] party upon request must provide all other parties[] . . . the names and addresses of all lay and expert witnesses whom the party may call at trial; in the alternative, a party may provide the name of the witness and make the witness available to the other party for interview; the witness list may be amended without leave of the court no later than 28 days before trial.” MCR 6.201(A)(1).1 Note: While MCL 767.94a concerns disclosure of certain material or information by the defendant to the prosecuting attorney, MCR 6.201 controls discovery in criminal cases. People v Phillips, 468 Mich 583, 587-589 (2003); Administrative Order No. 1994-10, 447 Mich cxiv (1994).
“The prosecuting attorney shall attach to the filed information a list of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement officers.” MCL 767.40a(1). “The prosecuting attorney shall be under a continuing duty to disclose the names of any further res gestae witnesses as they become known.” MCL 767.40a(2).2 However, “the prosecution [does not have] an affirmative duty to present the ‘entire res gestae,’ or call at trial all of the witnesses who were present when a crime occurred.” People v Steanhouse, 313 Mich App 1, 15 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017)3 (citation omitted).
“Although the prosecutor did not include [a potential witness] as a known res gestae witness on his witness list, the . . . omission did not prejudice defendant[] . . . or violate his right to present a defense; . . . [b]ecause defendant implicated [the potential witness] in the [crime], it [was] apparent that defendant was aware that [the potential witness] could be a res gestae witness.” Steanhouse, 313 Mich App at 15 (citations omitted). “Because [the potential witness] invoked his Fifth Amendment privilege against self-incrimination and refused to testify, neither the prosecution nor the defense could call [him] as a witness;” therefore, the prosecution did not “commit[] a plain error affecting defendant’s substantial rights by failing to include [the potential witness] on the witness list as a res gestae witness, notifying the trial court of the need to inform [the potential witness] of his Fifth Amendment right against self-incrimination, and failing to call [him] as a witness.” Id. at 16 (citation omitted).
“[W]hen providing a defendant with the list of witnesses the prosecutor ‘intends to produce’ at trial, a witness may not be ‘endorsed in the alternative’ as an ‘and/or’ witness.” People v Everett, 318 Mich App 511, 522 (2017) (holding that the statute plainly requires a prosecutor to either endorse a witness that he or she intends to call under MCL 767.40a(3) or amend the witness list pursuant to MCL 767.40a(4) to add or remove a witness; the statute does not allow for an “in-between ‘alternative’ witness who may or may not be produced on the whim of the prosecutor”).
“[T]he trial court’s decision to allow removal of [an endorsed witness] from the prosecutor’s witness list without consideration of whether there was good cause to do so [as required under MCL 767.40a(4)] was an abuse of discretion[.]” Everett, 318 Mich App at 520. “[T]o remove [the witness’s] name from the witness list, the prosecutor was required to comply with MCL 767.40a(4)[,]” and the prosecutor could not avoid the requirements of MCL 767.40a(4) by labeling the witness an “alternative” witness. Everett, 318 Mich App at 524-525 (nevertheless concluding that the defendant failed to establish that he was prejudiced by the error where there was “nothing in the lower court record to suggest that the prosecutor lacked good cause for removing [the witness] from the prosecution’s witness list[]” and there was “no indication of the testimony she would have offered[]” or whether the defendant “would have benefited from” it).
“If a prosecutor endorses a witness under [MCL 767.40a(3)], the prosecutor is obliged to exercise due diligence to produce that witness at trial.” People v Brown, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “If a prosecutor fails to exercise due diligence to produce the witness, the jury should be issued a missing-witness instruction[.]” Id. at ___. “Due diligence is the attempt to do everything reasonable, not everything possible, to obtain the presence of a witness.” Id. at ___ (cleaned up). In Brown, “[o]n the last day of the prosecution’s proofs, the prosecutor stated that he had been unable to secure the attendance of . . . two witnesses, who lived together.” Id. at ___ (observing that a trial court may accept a licensed attorney’s representation to the court when it has no reason to doubt the candor of that attorney). The prosecutor represented to the court that:
“the police attempted to serve them at two different addresses on three different dates. The female witness had reported a change of address, but when the investigator attempted to serve the witnesses there, the investigator saw no cars and reported that the grass appeared overgrown. The prosecutor personally attempted to contact the female witness via the phone number provided for a previous trial eight separate times over three weeks. The phone number rang, was answered, and then was immediately hung up. The prosecutor attempted calling from different phone numbers. The prosecutor also attempted to use two jail systems to determine whether either witness was imprisoned and discovered that both had been arrested but were no longer in custody.” Id. at ___.
The Court of Appeals rejected the defendant’s argument “that the prosecutor could have sought to determine whether the female witness had a new phone number.” Id. at ___ (noting that “the prosecution was not required to do everything possible to locate the witnesses”). “Additionally, it [was] reasonable to infer that the witness continued to have the same number because the phone rang, was picked up, and then was hung up, rather than going to voicemail or simply going unanswered.” Id. at ___. Accordingly, the Brown Court held that “the trial court’s decision to decline to issue a missing-witness instruction after determining that the prosecution exercised due diligence to secure the attendance of the witnesses did not fall outside the range of principled outcomes.” Id. at ___.
The prosecutor may amend the witness list “at any time upon leave of the court and for good cause shown or by stipulation of the parties.” MCL 767.40a(4). The court’s decision whether to permit amendment of the witness list is reviewed for an abuse of discretion. People v Callon, 256 Mich App 312, 325-326 (2003) (trial court did not abuse its discretion in finding good cause to allow the prosecutor to amend its witness list where the witness – a critical witness to the prosecution’s case – was inadvertently omitted, and where there was no unfair prejudice to the defense in allowing the amendment).
C.Defendant’s Right to Present Witnesses
A fundamental element of due process is a defendant’s right to present witnesses in his or her favor. Washington v Texas, 388 US 14, 19 (1967); US Const, Am VI; Const 1963, art 1, § 20; MCL 763.1.
1.Prosecutor’s Duty to Provide Reasonable Assistance to Defendant
A prosecutor is obligated to provide reasonable assistance to locate witnesses on a defendant’s request. MCL 767.40a(5). The defendant’s request must be made in writing at least 10 days before trial or at such other time as the court directs. Id. The prosecutor may object to the request if the request is unreasonable, see id., by filing a pretrial motion requesting a hearing on the reasonableness of the request, id.
MCL 767.40a(5) does not limit its application to any certain types of witnesses. People v Koonce, 466 Mich 515, 522-523 (2002). Accordingly, the prosecutor was required to “give ‘reasonable assistance’ [to the defendant in locating an accomplice witness] without regard to the witness’ accomplice status.” Id. at 523.
2.Material Witness
If there is a material witness without whose testimony an indigent defendant cannot safely proceed to trial, the trial court may, in its discretion, order that a subpoena be issued and served on the defendant’s behalf. MCL 775.15. The material witness must be paid for attending the trial in the same manner as if he or she had been subpoenaed by the prosecution. Id.
a.Witness Outside State
To implement a defendant’s constitutional and statutory rights to compulsory process when a material witness resides outside of the state, Michigan has adopted the Uniform Act to “secure the attendance of witnesses from without a state in criminal proceedings.” People v McFall, 224 Mich App 403, 407-408 (1997); MCL 767.91 et seq. To properly invoke the procedures under the act, a defendant must “(1) designate the proposed witness’ location with a reasonable degree of certainty; (2) file a timely petition; and (3) make out a prima facie case that the witness’ testimony is material.” McFall, 224 Mich App at 409.
b.Requiring Bond
If there is a danger of losing the testimony of a material witness, the trial court may require the witness to post bond, following a hearing on the matter. MCL 767.35; MCL 765.29. If the witness does not post bond as ordered, the court must order the witness committed to jail until he or she posts bond or is discharged by the court. MCL 767.35.
c.Appointment of Expert Witness for Indigent Defendant
When considering an indigent criminal defendant’s request for expert assistance, trial courts must apply the due process analysis set forth in Ake v Oklahoma, 470 US 68 (1985). People v Kennedy, 502 Mich 206, 210, 228 (2018). “When an indigent defendant requests funds for an expert witness, they must show something more than a mere possibility of assistance from a requested expert.” People v Warner, ___ Mich ___, ___ (2024) (cleaned up). “Specifically, a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Id. at ___ (quotation marks and citation omitted). “Ake instructs that due process requires, for example, that when a defendant’s sanity will be a significant factor at trial, the State must assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at ___ (cleaned up). “In addition, the defendant should inform the court why the particular expert is necessary.” Id. (quotation marks and citation omitted). “Though the defendant is not expected to provide the court with a detailed analysis of the assistance an appointed expert might provide, a defendant’s bare assertion that an expert would be beneficial cannot, without more, entitle him or her to an expert.” Id. at ___ (cleaned up). However, a “defendant is not required to show that he is unable to present his defense without expert assistance.” Id. at ___.
Ake is the controlling law in this area and analysis under MCL 775.15 (as frequently occurred previously) is improper because “MCL 775.15 by its express terms, does not provide for the appointment of expert witnesses. It merely provides a means for subpoenaing certain witnesses and for paying their costs of attending trial.” Kennedy, 502 Mich at 222. The Kennedy opinion overrules People v Jacobsen, 448 Mich 639 (1995) and People v Tanner, 469 Mich 437 (2003), to the extent those cases did not apply Ake and hold (or suggest) that MCL 775.15 governs a request by an indigent defendant for the appointment of an expert at government expense. Kennedy, 502 Mich at 225.
A trial court must consider three relevant factors when determining whether to appoint an expert witness for an indigent defendant: (1) “the private interest that will be affected by the action of the State”; (2) “the governmental interest that will be affected if the safeguard is to be provided”; and (3) “the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Ake, 470 US at 77; see also Kennedy, 502 Mich at 215.
In addition, the Kennedy Court adopted the reasonable probability standard set forth in Moore v Kemp, 809 F2d 702 (CA 11, 1987), “as the appropriate standard for courts to apply in determining whether an indigent criminal defendant is entitled to the appointment of an expert at government expense under Ake’s due process analysis.” Kennedy, 502 Mich at 227-228. Moore provides:
“[A] defendant must demonstrate something more than a mere possibility of assistance from a requested expert; due process does not require the government automatically to provide indigent defendants with expert assistance upon demand. Rather, . . . a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. Thus, if a defendant wants an expert to assist his attorney in confronting the prosecution’s proof – by preparing counsel to cross-examine the prosecution’s experts or by providing rebuttal testimony – he must inform the court of the nature of the prosecution’s case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime. By the same token, if the defendant desires the appointment of an expert so that he can present an affirmative defense, such as insanity, he must demonstrate a substantial basis for the defense, as the defendant did in Ake. In each instance, the defendant’s showing must also include a specific description of the expert or experts desired; without this basic information, the court would be unable to grant the defendant’s motion, because the court would not know what type of expert was needed. In addition, the defendant should inform the court why the particular expert is necessary. [While] defense counsel may be unfamiliar with the specific scientific theories implicated in a case and therefore cannot be expected to provide the court with a detailed analysis of the assistance an appointed expert might provide, . . . defense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense’s case.”Moore, 809 F2d at 712.
Accordingly, “‘a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.’” Kennedy, 502 Mich at 228. Further, “when a defendant requests an expert to present an affirmative defense, a defendant must make the additional showing of a substantial basis for the defense.” People v Propp, 508 Mich 374, 381 (2021).
Caselaw examples. “[I]n a trial in which the veracity of a confession is central, it is fundamentally unfair when an indigent defendant is deprived of an adequate opportunity to present their claims fairly by being denied funding to support necessary expert assistance on false confessions.” Warner, ___ Mich at ___ (quotation marks and citation omitted). In Warner, the defendant signed an incriminating statement during a series of interrogations in which law enforcement officers employed various techniques to obtain a confession; the defendant was ultimately convicted of first-degree criminal sexual conduct for sexually assaulting his stepdaughter. Id. at ___. Before his second trial,4 the “defendant moved for funds to retain an expert witness in false confessions.” Id. at ___ (“Because a large part of the prosecution’s case was based on defendant’s confession, defendant explained that he needed the expert in false confessions to support his defense.”). “Defendant’s motion identified two potential experts [who] could testify about the attributes associated with false confessions and interviewer bias.” Id. at ___. “Specifically, [one expert] would testify about police interrogation techniques and false confessions, while [the other expert] would perform psychological testing on defendant and testify about the psychology of whether the attributes of a false confession are present.” Id. at ___ (quotation marks omitted).
The Michigan Supreme Court held that “there was a reasonable probability that defendant’s proposed expert could have assisted the jury in understanding whether the conditions for a false confession were present and, if so, how those conditions affected the interrogations.” Id. at ___. The Court in Warner noted that “without [defendant’s] expert, due process was not served, because the veracity of defendant’s confession was a significant factor at trial.” Id. at ___ (quotation marks and citation omitted). The Warner Court reasoned that “[t]he proposed expert would at least have identified circumstances and techniques tending to result in false confessions, which the jury could have found applicable to defendant’s confession.” Id. at ___. The Court observed that the defendant’s “confession was the only corroborating evidence for [his stepdaughter’s] allegations and was central to the prosecution’s case.” Id. at ___ (stating that “the elements of a false confession are beyond the understanding of the average juror”) (quotation marks and citation omitted). Accordingly, “defendant showed a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Id. at ___ (quotation marks and citation omitted) (“The question is not whether the jury could have convicted defendant had his confession been sufficiently impeached, but rather whether, viewing the evidence presented at trial as a whole, there is a sufficient probability that the trial would be rendered ‘fundamentally unfair.’”). Therefore, the trial court abused its discretion when it “denied an indigent defendant the opportunity to fund an expert witness whose testimony would be integral to fundamental issues of the trial.” Id. at ___ (remanding to trial court to determine whether defendant was indigent when he filed his motion).
“[W]hen a defendant requests an expert to present an affirmative defense, a defendant must make the additional showing of a substantial basis for the defense.” Propp, 508 Mich at 381. In Propp, the defendant was charged with open murder and requested an expert to assist him in advancing the defense that the victim’s death was an accident. Id. at 377. The Michigan Supreme Court held that the Michigan Court of Appeals erred by requiring the defendant to show a substantial basis for the defense because the defense of accident was not an affirmative defense; rather, it negated the element of intent for the charge of first-degree premeditated murder, which the prosecutor had the burden to prove. Id. at 381-383.
On remand, the Court of Appeals held that “the trial court did not commit any error entitling defendant to a new trial by denying his motion to appoint a defense expert on the subject of erotic asphyxiation” because “no additional expert testimony was necessary to explain such a simple concept to the jury—i.e., that defendant was claiming that he did not intend to kill the victim and that he must have done so accidentally while restricting her airflow (at her request) during a consensual sexual encounter.” People v Propp (On Remand), 340 Mich App 652, 661 (2022). Accordingly, the Court of Appeals determined that “it is not reasonably probable that the denial of this expert assistance resulted in a fundamentally unfair trial.” Id.
d.Funding the Appointed Expert
By failing to provide any “substantive analysis to explain why it believed that defendant’s requested sum [of $42,650] was [highly] excessive” or “explain how it arrived at the sum of $2,500,” the trial court erred in issuing its award for expert witness funding to the defendant. People v Williams, 328 Mich App 408, 417 (2019) (the matter was remanded for the trial court “to take into consideration the principles set forth in Kennedy in determining the amount of funds to reimburse defendant . . . so as to satisfy constitutional requirements,” while giving “[s]pecial attention . . . to the Kennedy Court’s adoption of the ‘reasonable probability’ standard articulated . . . in Moore”).
The Michigan Indigent Defense Commission’s Standard 3 provides, in part, that “[c]ounsel shall request the assistance of experts where it is reasonably necessary to prepare the defense and rebut the prosecution’s case[, and r]easonable requests must be funded as required by law.”5 A defendant may qualify for public funds for an expert even if he or she has retained counsel. See People v Ceasor, 507 Mich 884 (2021) (finding “counsel performed deficiently” by failing to make such a request and that defendant demonstrated prejudice because there was no victim who could provide an account, no eyewitnesses, no corroborative physical evidence, and no apparent motive to harm; in cases like this, “the expert is the case”) (quotation marks and citations omitted).
“[MIDC Standard 3] does not conflict with a trial judge’s discretion to permit the appointment of an expert witness. Rather, the standard notes that experts must be funded ‘as required by law.’ In other words, the request must be funded ‘as required by’ the very authority which [the plaintiff] accuses MIDC of disregarding.” Oakland Co v State of Michigan, 325 Mich App 247, 267 (2018) (quotation marks and citations omitted). In addition, standard 3 does not “in any way interfere with the trial court’s gatekeeping functions under MRE 702.” Oakland Co, 325 Mich App at 259.
See the Michigan Judicial Institute’s Evidence Benchbook, Chapter 4, for more information on expert witnesses, including funding.
Part B: Procedural Pretrial Motions
1 “The provisions of MCR 6.201, except for MCR 6.201(A), apply in all misdemeanor proceedings.” MCR 6.610(E)(1). “MCR 6.201(A) only applies in misdemeanor proceedings . . . if a defendant elects to request discovery pursuant to MCR 6.201(A). If a defendant requests discovery pursuant to MCR 6.201(A) and the prosecuting attorney complies, then the defendant must also comply with MCR 6.201(A).” MCR 6.610(E)(2).
2 “MCL 767.40a does not conflict with or inform MCR 6.201[.]” People v Jack, 336 Mich App 316, 319 n 2 (2021) (further finding the statute irrelevant to interpreting MCR 6.201(A) and MCR 6.201(B) as they relate to the prosecutor redacting information in a police report).
3 For more information on the precedential value of an opinion with negative subsequent history, see our note.
4 Defendant’s first conviction was vacated on unrelated grounds. People v Warner, unpublished per curiam opinion of the Court of Appeals, issued March 21, 2019 (Docket No. 340272).
5 See MIDC Minimum Standards. See Section 4.4 for discussion of the Michigan Indigent Defense Counsel Act (MIDCA), MCL 780.981 et seq.