3.2Witness Disclosure
“Witness lists are an element of discovery.” Grubor Enterprises, Inc v Kortidis, 201 Mich App 625, 628 (1993).1 They serve the purpose of avoiding “‘trial by surprise.’” Id., quoting Stepp v Dep’t of Natural Resources, 157 Mich App 774, 778 (1987).
The parties must file and serve their witness lists within the time limits prescribed by the court in MCR 2.401(B)(2)(a). MCR 2.401(I)(1). The witness list must include the witness’s name, address (if known), whether the witness is an expert, and his or her field of expertise. MCR 2.401(I)(1)(a)-(b). However, only a general identification is necessary if the witness is a records custodian “whose testimony would be limited to providing the foundation for the admission of records[.]” MCR 2.401(I)(1)(a).
2.Sanction for Failure to File Witness List
“The court may order that any witness not listed in accordance with [MCR 2.401] will be prohibited from testifying at trial except upon good cause shown.” MCR 2.401(I)(2). “While it is within the trial court’s authority to bar an expert witness or dismiss an action as a sanction for the failure to timely file a witness list, the fact that such action is discretionary rather than mandatory necessitates a consideration of the circumstances of each case to determine if such a drastic sanction is appropriate.” Dean v Tucker, 182 Mich App 27, 32 (1990). Just because a witness list was not timely filed does not in and of itself justify the imposition of such a sanction. Id.
The Dean Court referred to a nonexhaustive list of factors to consider when determining an appropriate sanction for a discovery violation:
“(1) whether the violation was wilful or accidental;
(2) the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses);
(3) the prejudice to the [other party];
(4) actual notice to the [other party] of the witness and the length of time prior to trial that the [other party] received such actual notice;
(5) whether there exists a history of [the party] engaging in deliberate delay;
(6) the degree of compliance by the [party] with other provisions of the court’s order;
(7) an attempt by the [party] to timely cure the defect[;] and
(8) whether a lesser sanction would better serve the interests of justice.” Dean, 182 Mich App at 32-33.
“Trial courts should not be reluctant to allow unlisted witnesses to testify where justice so requires, particularly with regard to rebuttal witnesses.” Pastrick v Gen Tel Co of Mich, 162 Mich App 243, 245 (1987). The court may impose reasonable conditions on allowing the testimony of an undisclosed witness if there is no prejudice to the opposing party. Id. at 246 (concluding that the trial court employed reasonable conditions in allowing the prosecutor’s undisclosed rebuttal witness to testify by giving the “defendants an opportunity to interview the undisclosed witness and to secure their own expert”). The Court also noted that a reasonable condition will normally include a reasonable time frame. Id. at 246 n 1.
1.Discovery Under the Court Rule2
Upon request, a party must provide all other parties with the names and addresses of any lay or expert witnesses that may be called at trial. MCR 6.201(A)(1).3 Alternatively, the party may provide the other party with the witness’s name and make the witness available for interview. Id. “[T]he witness list may be amended without leave of the court no later than 28 days before trial[.]” Id. But see MCL 780.758(2), which prohibits documents filed with the court from disclosing the address of victims in a criminal case.
“[A]bsent an applicable exception provided for in MCR 6.201, a prosecutor is required to produce unredacted police reports under MCR 6.201(B)(2).” People v Jack, 336 Mich App 316, 326 (2021). In Jack, the prosecutor “provided a redacted police report” that omitted “addresses, phone numbers, and birthdates of several witnesses who were also included on the prosecutor’s witness list,” arguing that “MCR 6.201(A)(1) allows a prosecuting attorney to redact witness contact information from police reports otherwise discoverable under MCR 6.201(B)[.]” Jack, 336 Mich App at 320, 322. However, “MCR 6.201(A)(1) and MCR 6.201(B)(2) are two separate subrules that deal with two distinct disclosure requirements. MCR 6.201(A)(1) exclusively concerns a party’s obligation to provide a list of the names and addresses of all witnesses whom may be called at trial or, in the alternative, the party can provide the names of the witnesses and make them available for interviews. On the other hand, MCR 6.201(B)(2) concerns the prosecutor’s obligation to provide police reports and interrogation records. The information required to be disclosed under [MCR 6.201(A)(1) and MCR 6.201(B)(2)] is separate and distinct, and the prosecution must comply with the separate requirements of each section of the court rule. Jack, 336 Mich App at 325-326 (noting “the prosecutor may request a protective order under MCR 6.201(E) or pursue a modification under MCR 6.201(I)” on remand).
If a party violates the discovery rules in MCR 6.201, the court has discretion to “order the party to provide the discovery or permit the inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.” MCR 6.201(J). “To be entitled to relief under MCR 6.201(J), a defendant must demonstrate that he or she was prejudiced by the discovery violation.” People v Dickinson, 321 Mich App 1, 19 (2017) (finding the defendant did not demonstrate prejudice where she failed to seek a continuance or other remedy as permitted under MCR 6.201(J) and was able to effectively cross-examine the witness and obtain testimony favorable to her defense despite not having a second police report in advance of trial). If the court finds that an attorney willfully violated MCR 6.201 or a discovery order, it may subject the attorney to an appropriate sanction. MCR 6.201(J).
Where the prosecution’s failure to disclose a transcript of a witness’s prior statements, given pursuant to an investigative subpoena, violated MCR 6.201(A)(2) but did not implicate the defendant’s right to due process, the remedy fashioned by the trial court—precluding the prosecution from questioning the witness regarding the statements and allowing defense counsel to review the transcript before cross-examining the witness—did not constitute an abuse of discretion. People v Jackson, 292 Mich App 583, 591-592 (2011).
2.Statutory Duties of Prosecuting Attorney
A prosecutor has a statutory duty to disclose any potential witnesses, including res gestae witnesses, on the filed information. MCL 767.40a(1). “[T]he term [res gestae witness] embraces eyewitnesses to the corpus delicti of a crime. But where a person is present at the scene of an alleged crime, at the time of the alleged crime, has occasion to observe his surroundings, and sees no crime, he too must be considered a res gestae witness, whom the people are obliged by law to call as a trial witness. This is but one example of one of the parameters that define a res gestae witness: a witness whose testimony is reasonably necessary to protect the defendant against a false accusation.” People v Harrison, 44 Mich App 578, 591 (1973) (citation omitted).
If additional res gestae witnesses become known, the prosecutor must continue to disclose their names. MCL 767.40a(2). A prosecutor must send the defendant a witness list no less than 30 days before trial. MCL 767.40a(3). 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) (quotation marks and citation omitted), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017).4 Where “it [was] apparent that defendant was aware that [the potential witness] could be a res gestae witness” and “defendant implicated [the potential witness] in the [crime],” “omission [of the witness on the prosecutor’s witness list] did not prejudice defendant, or violate his right to present a defense[.]” Steanhouse, 313 Mich App at 15 (internal citations omitted). Additionally, “[b]ecause [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.
It is within the trial court’s discretion whether “to permit the prosecutor to add or delete witnesses to be called at trial” pursuant to MCL 767.40a(4). People v Callon, 256 Mich App 312, 325-326 (2003) (finding the court did not abuse its discretion “by allowing the late endorsement of a critical prosecution witness where the witness was known to the defense, had been subjected to cross-examination at the preliminary examination, . . . no continuance was requested and no unfair prejudice resulted to defendant”).
However, “the trial court’s decision to allow removal of [an endorsed witness] from the prosecution’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[.]” People v Everett, 318 Mich App 511, 520 (2017). “[T]o remove [the witness’s] name from the witness list, the prosecution was required to comply with MCL 767.40a(4).” Everett, 318 Mich App at 523-525 (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).
“[W]hen providing a defendant with the list of witnesses the prosecution ‘intends to produce’ at trial, a witness may not be ‘endorsed in the alternative’ as an ‘and/or’ witness.” Everett, 318 Mich App at 522-523 (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 prosecution”).
“However, if the prosecutor fails to call a listed witness and has failed to delete that witness from its witness list, it may nonetheless be appropriate for the trial court to read [M Crim JI 5.12].” People v Cook (On Remand), 266 Mich App 290, 293 n 4 (2005) (citation omitted). M Crim JI 5.12 instructs that the jury “may infer that [the] witness’s testimony would have been unfavorable to the prosecution’s case” where the prosecutor was responsible for the appearance of the missing witness. “[T]he propriety of reading [M Crim JI 5.12] will depend on the specific facts of that case.” People v Perez, 469 Mich 415, 420-421 (2003). Instances that would justify the instruction include those where an endorsed witness has not been properly excused or where the prosecution has not provided the defense reasonable assistance securing a witness that would have been unfavorable to the prosecution. Id. at 420.
“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 ___.
Committee Tip:
Remember to balance the claimed wrong with an appropriate remedy; they should be commensurate. Possible remedies for not disclosing or providing a witness include allowing opposing counsel to interview the witness or continuing the trial for a day.