5.3Hearsay Exceptions1
Hearsay evidence may be admissible if it comes within an established exception. See MRE 802. There are many exceptions to the hearsay rule. This section only discusses the most common exceptions.
Hearsay statements that are admissible pursuant to a hearsay exception may still be inadmissible during trial if admission would violate the defendant’s right to confrontation. US Const, Am VI; Const 1963, art 1, § 20. See also Crawford v Washington, 541 US 36, 68 (2004) (holding that the Confrontation Clause bars the admission of testimonial statements of an unavailable witness unless the defendant had a prior opportunity for cross-examination).2 “By its straightforward terms, the Confrontation Clause directs inquiry into two questions: (1) Does the person in controversy comprise a ‘witness against’ the accused under the Confrontation Clause; and (2) if so, has the accused been afforded an opportunity to ‘confront’ that witness under the Confrontation Clause?” People v Fackelman, 489 Mich 515, 562 (2011). “[T]he rules of evidence do not trump the Confrontation Clause.” Id. at 545. In Fackelman, the Michigan Supreme Court concluded that “the rules of evidence cannot override the Sixth Amendment and cannot be used to admit evidence that would otherwise implicate the Sixth Amendment.” Id. Accordingly, “a defendant’s constitutional right of confrontation may be violated when a trial witness’s testimony introduces the substance of an out-of-court, testimonial statement by an unavailable witness.” People v Washington, ___ Mich ___, ___ (2024). Specifically, “the Confrontation Clause is violated when a witness’s testimony at trial introduces an out-of-court statement of an unavailable witness if the witness’s testimony leads to a clear and logical inference that the out-of-court declarant made a testimonial statement.” Id. at ___ (“In such a situation, the defendant is not able to cross-examine the veracity of the out-of-court statement, and the defendant is thereby denied his constitutional right to confront the witness.”).
The Confrontation Clause is not violated by admission of every out-of-court, testimonial statement. Washington, ___ Mich at ___, fn 8. Indeed, “even if the statement is testimonial, ‘the Confrontation Clause applies only to statements used as substantive evidence.’” Washington, ___ Mich at ___, quoting Fackelman, 489 Mich at 528.
Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. People v McPherson, 263 Mich App 124, 133 (2004). Thus, the admission of an unavailable witness’s former testimonial statement is not barred by Crawford if the statement is admitted to impeach a witness. McPherson, 263 Mich App at 133-135. See also People v Chambers, 277 Mich App 1, 11 (2007), where the trial court properly admitted a police officer’s testimony regarding a confidential informant’s out-of-court identification of the defendant because the testimony was offered to explain how and why the defendant was arrested, not to prove the truth of the informant’s tip. But see People v Henry (After Remand), 305 Mich App 127, 154 (2014), where the trial court’s admission of the detective’s testimony regarding the confidential informant’s out of court statements was improper because the detective’s testimony “was not limited to show why [the detective] proceeded in a certain direction with his investigation,” and was instead used to “establish or prove past events potentially relevant to later criminal prosecution[.]” Id. (quotations, alterations, and citation omitted).
“Testifying officers may provide context for their investigation or explain ‘background’ facts.” Washington, ___ Mich at ___, n 8 (quotation marks and citation omitted). “Such out-of-court statements are not offered for the truth of the matter asserted therein, but instead for another purpose: to explain the officer’s actions. These statements often provide necessary context where a defendant challenges the adequacy of an investigation. But absent such claims, there is a questionable need for presenting out-of-court statements because the additional context is often unnecessary, and such statements can be highly prejudicial. Statements exceeding the limited need to explain an officer’s actions can violate the Sixth Amendment—where a nontestifying witness specifically links a defendant to the crime, testimony becomes inadmissible hearsay.” Id. (quotation marks and citation omitted).
Offering testimony to establish chain of custody is not an exception to the Confrontation Clause. Id. at ___. Indeed, “it is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.” Id. at ___ (cleaned up). In Washington, the “[d]efendant drove across the border from Michigan into Canada without paying the toll,” and a Canadian customs agent “arrested defendant and brought him back to the American side of the bridge” where an American customs agent “took custody of defendant and a bulletproof vest.” Id. at ___. Subsequently, the “[d]efendant was charged with being a violent felon in possession of body armor.” Id. at ___. The American officer testified that he and the Canadian officer met on the American side of the bridge and, based on communications between them, the American officer took custody of defendant and took possession of the body armor at the same time. Id. at ___. The American officer “acknowledged that defendant was not wearing the vest when he took defendant into custody and that he had no direct knowledge as to whether defendant ever possessed the vest.” Id. at ___. “[R]egardless of whether the statement was offered merely to establish the chain of custody or to establish that defendant possessed the bulletproof vest as an element of the charged offense, the statement would need to be offered for the truth of the matter asserted, i.e., that defendant actually possessed the bulletproof vest.” Id. at ___ (The Canadian officer’s “statement that defendant possessed the bulletproof vest was substantive proof that he was guilty of being a violent felon in possession of body armor.”). “The clear and logical inference from [the American officer’s] testimony is that during their ‘communications,’ [the Canadian officer] made an out-of-court statement regarding his belief that defendant possessed the body armor.” Id. at ___ (holding that the statement was testimonial, that it was erroneously admitted, and that its admission violated the defendant’s constitutional right of confrontation).
“Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” Williams v Illinois, 567 US 50, 58 (2012) (plurality opinion) (opinion by Alito, J.). Thus, the Confrontation Clause was not implicated in the following colloquy between the prosecutor and an expert witness from the police laboratory:
“‘Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [the victim] to a male DNA profile that had been identified as having originated from [the defendant]?
“‘A Yes, there was.’” Williams, 567 US at 71-72.
The Williams Court concluded that the emphasized language did not constitute a statement that was asserted “for the purpose of proving the truth of the matter asserted–i.e., that the matching DNA profile was ‘found in semen from the vaginal swabs.’ Rather, that fact was a mere premise of the prosecutor’s question, and [the expert witness] simply assumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles. There is no reason to think that the trier of fact took [the expert’s] answer as substantive evidence to establish where the DNA profiles came from.” Williams, 567 US at 72. In addition, assuming the laboratory report of the DNA profile had been referenced to prove the truth of the matter asserted, the report did not violate the defendant’s confrontation right because it was not prepared for the purpose of identifying the defendant as the perpetrator, but only for the purpose of “catch[ing] a dangerous rapist who was still at large, not to obtain evidence for use against [the defendant], who was neither in custody nor under suspicion at that time.” Id. at 84. No one at the laboratory could have known that the profile it produced would inculpate anyone whose DNA profile was in the law enforcement database: “Under these circumstances, there was no ‘prospect of fabrication’ and no incentive to produce anything other than a scientifically sound and reliable profile.” Id. at 84-85, quoting Michigan v Bryant, 562 US 344, 361 (2011). For both of these reasons, the United States Supreme Court concluded that there was no Confrontation Clause violation. Williams, 567 US at 86.
Committee Tip:
As with many areas of evidence law, the purpose for admission can drive the question of admissibility under the Confrontation Clause.
The right of confrontation does not apply during a preliminary examination. People v Olney, 327 Mich App 319, 331 (2019) (finding that in addition to misunderstanding the law, which alone required reversal, “the circuit court abused its discretion when it granted defendant’s motion to quash on the basis that defendant’s right of confrontation was violated” during his preliminary examination even though the testimony at the examination would have likely violated the Confrontation Clause and been inadmissible at trial).
“[A] machine is not a witness in the constitutional sense and . . . data automatically generated by a machine are accordingly nontestimonial in nature.” People v Dinardo, 290 Mich App 280, 290-291 (2010). “A printout of machine-generated information, as opposed to a printout of information entered into a machine by a person, does not constitute hearsay because a machine is not a person and therefore not a declarant capable of making a statement.” Id. at 291. In Dinardo, the Court of Appeals approved the admissibility of an officer’s DI-177 report “[b]ecause the DataMaster breath-test results, printed on the DataMaster ticket, were self-explanatory data produced entirely by a machine and not the out-of-court statements of a witness[.]” Id.
See Section 3.5(D)(3) and Section 5.3(D)(4) for information on forfeiture by wrongdoing, and Section 3.5(F) for information on the “language conduit” rule.
B.Rule 803 Exceptions3
Generally, MRE 803 does not require a declarant to be unavailable before the evidence will be admitted. However, under Crawford v Washington, 541 US 36 (2004),4 any testimonial hearsay that is offered at trial can only be admitted upon a showing that the declarant is unavailable and was previously subject to cross-examination.
“A statement describing or explaining an event or condition made while or immediately after the declarant perceived it” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” MRE 803(1).
The Michigan Supreme Court requires three conditions to be satisfied before evidence may be admitted under the present sense impression exception. People v Hendrickson, 459 Mich 229, 235-236 (1998). In Hendrickson, the Court stated:
“The admission of hearsay evidence as a present sense impression requires satisfaction of three conditions: (1) the statement must provide an explanation or description of the perceived event, (2) the declarant must personally perceive the event, and (3) the explanation or description must be ‘substantially contemporaneous’ with the event.” Hendrickson, 459 Mich at 236.
A slight lapse in time between the event and the description may still satisfy the substantially contemporaneous requirement. Hendrickson, 459 Mich at 236. In Hendrickson, the victim called 911 and explained that she had just been beaten by her husband. Id. at 232. The Court concluded that her phone call satisfied the substantially contemporaneous requirement because the victim’s statement “was that the beating had just taken place” and “the defendant was in the process of leaving the house as the victim spoke.” Id. at 237. See also People v Chelmicki, 305 Mich App 58, 63 (2014) (the victim’s police statement was admissible as a present sense impression where the “statement provided a description of the events that took place inside the apartment, . . . the victim perceived the event personally, . . . [and] the statement was made at a time ‘substantially contemporaneous’ with the event, as the evidence showed, at most, a lapse of 15 minutes between the time police entered the apartment and the time the victim wrote the statement”).
Corroboration (independent evidence of the event) is required. Hendrickson, 459 Mich at 237-238, 238 n 4 (“strict corroboration requiring a percipient witness, such as a neighbor or police officer” is not required; corroboration “will suffice if it assures the reliability of the statement”). In Hendrickson, the prosecution sought to introduce photographs of the victim’s injuries as independent evidence of the beating. Id. at 233. The Court concluded that the photographs provided sufficient corroborating evidence of the event because the “photographs show[ed] the victim’s injuries [and] were taken near the time the beating [was] alleged to have occurred. In addition, the injuries depicted in the photographs were consistent with the type of injuries sustained after a beating.” Id. at 239. “[T]he photographs provide credible independent evidence of the assault, permitting the admission of the victim’s statement as a present sense impression.” Id.
“A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” MRE 803(2).
“To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion.” People v Skippergosh, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). In Skippergosh, the Court of Appeals concluded that “[t]he trial court did not abuse its discretion by admitting the hearsay testimony of [a witness] to prove a prior act of domestic violence under MCL 768.27b.” Skippergosh, ___ Mich App at ___. “First, the statements unquestionably arose out of a startling condition, namely, an assault.” Id. at ___. “Second, there [was] evidence that the statements were made before there was time to contrive and misrepresent.” Id. at ___ (noting that “testimony indicated that [the victim] was actively bleeding when she made the statements” and “appeared to be ‘scared’ at the time”). “Third, and finally, the statements made by [the witness] related to the circumstances of the startling occasion, as they noted the perpetrator of the assault.” Id. at ___. “Thus, all three elements of the excited-utterance exception were satisfied, and the trial court did not abuse its discretion by ruling that MRE 803(2) allowed admission of [the victim’s] hearsay statements.” Skippergosh, ___ Mich App at ___.
“[I]t is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus of the excited utterance rule. The question is not strictly one of time, but of the possibility for conscious reflection.” People v Smith, 456 Mich 543, 551 (1998). Although the time between the event and the statement is an important factor to consider, it is not dispositive, and the court should determine if there is a good reason for a delay. Id. Some plausible reasons include shock, unconsciousness, or pain. Id. at 551-552. “Unlike MRE 803(1), the present sense impression exception, which requires that the ‘statement describing or explaining an event or condition [be] made while the declarant was perceiving the event or condition, or immediately thereafter,’ there is no express time limit for excited utterances.” Smith, 456 Mich at 551 (alteration in original). In Smith, the victim was sexually assaulted and made a statement about the assault ten hours after it occurred. Id. at 548-549. The Court concluded that the statement was admissible as an excited utterance because the victim’s uncharacteristic actions during the time between the event and the statement “describe[d] a continuing level of stress arising from the assault that precluded any possibility of fabrication.” Id. at 552-553.
Admission of an excited utterance under MRE 803(2) “does not require that a startling event or condition be established solely with evidence independent of an out-of-court statement before the out-of-court statement may be admitted. Rather, MRE 1101(b)(1) and MRE 104(a) instruct that when a trial court makes a determination under MRE 803(2) about the existence of a startling event or condition, the court may consider the out-of-court statement itself in concluding whether the startling event or condition has been established.” People v Barrett, 480 Mich 125, 139 (2008).
The trial court did not abuse its discretion by admitting several statements made by the complainant as excited utterances. People v Green, 313 Mich App 526, 536 (2015). First, the two incidents of sexual contact between the defendant and the complainant constituted startling events despite the fact that “neither physical coercion nor violence was alleged in either occurrence” because “both occurred in the context of defendant’s investigating [the complainant] for child abuse and neglect,” and testimony established that the complainant was “very upset and crying during both conversations.” Id. The first statements “were made within a few minutes of defendant’s leaving the apartment, so there was no time to contrive and misrepresent his actions,” and the second statements “were made within hours of defendant leaving the apartment, so there was little time to contrive and misrepresent his actions.” Id. at 536-537. Finally, the statements “were clearly related to the circumstances surrounding defendant’s actions, which were the startling events.” Id. at 536.
3.Then-Existing Mental, Emotional, or Physical Condition
“A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of declarant’s will” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” MRE 803(3).
a.State of Mind
Before a statement may be admitted under MRE 803(3), the court must conclude that the declarant’s state of mind is relevant to the case. Int’l Union UAW v Dorsey (On Remand), 273 Mich App 26, 36 (2006). For example, a “victim’s state of mind is usually only relevant in homicide cases when self-defense, suicide, or accidental death are raised as defenses to the crime.” People v Smelley, 285 Mich App 314, 325 (2009), vacated in part on other grounds 485 Mich 1019 (2010).5 In Smelley, the Court concluded that the trial court abused its discretion in admitting statements that purported to show the victim’s state of mind before he was killed because the victim’s “state of mind was not a significant issue in this case and did not relate to any element of the crime charged or any asserted defense.” Smelley, 285 Mich App at 325 (the defendant did not assert self-defense, suicide, or accidental death as a defense, but contended he was not the person who murdered the victim).
Where the declarant states that he or she is afraid, the statement may be admissible to show the declarant’s state of mind. In re Utrera, 281 Mich App 1, 18-19 (2008). In Utrera, the respondent appealed the trial court’s order terminating her parental rights and argued that hearsay testimony was improperly admitted. Id. at 14. The Michigan Court of Appeals affirmed the trial court’s decision to admit statements the child declarant made to her therapist and to a guardianship investigator regarding the fear the child felt towards her mother because these hearsay statements were relevant and pertained to the declarant’s then-existing mental or emotional condition. Id. at 18-19.
In People v Propp (On Remand), 340 Mich App 652, 667 (2022), the Michigan Court of Appeals held that “all of the victim’s statements regarding defendant’s pattern of stalking, threats, and domestic violence were admissible as evidence concerning the victim’s state of mind—and her fear of defendant—under MRE 803(3).” The Court further observed that the “statements were also admissible for several valid nonhearsay purposes, including the effect that they might have had in motivating defendant to kill the victim.” Id. at 667. Accordingly, the Court concluded that “the statements of the victim-wife [were] admissible to show the effect they had on the defendant-husband.” Id.
b.Physical Condition
A declarant’s statement that he or she is in pain from an accident may be admissible under MRE 803(3). Duke v American Olean Tile Co, 155 Mich App 555, 571 (1986). However, statements that describe the circumstances of the accident are not admissible under this rule. Id. Similarly, statements about the declarant’s symptoms may be admissible, but for purposes of MRE 803(3), it is irrelevant where the trauma occurred. Cooley v Ford Motor Co, 175 Mich App 199, 203-204 (1988).
4.Statements Made for Purposes of Medical Treatment or Diagnosis
A statement that “is made for—and is reasonably necessary to—medical treatment or diagnosis in connection treatment” and “describes medical history, past or present symptoms or sensations, their inception, or their general cause” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” MRE 803(4).
“In order to be admitted under MRE 803(4), a statement must be made for purposes of medical treatment or diagnosis in connection with treatment, and must describe medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source of the injury. Traditionally, further supporting rationale for MRE 803(4) is the existence of (1) the self-interested motivation to speak the truth to treating physicians in order to receive proper medical care, and (2) the reasonable necessity of the statement to the diagnosis and treatment of the patient.” People v Meeboer (After Remand), 439 Mich 310, 322 (1992). “‘Particularly in cases of sexual assault, in which the injuries might be latent . . . a victim’s complete history and a recitation of the totality of the circumstances of the assault are properly considered to be statements made for medical treatment.’” People v Johnson, 315 Mich App 163, 193 (2016), quoting People v Mahone, 294 Mich App 208, 215 (2011). But see People v Shaw, 315 Mich App 668, 675 (2016) (holding that the victim’s statements to a pediatrician regarding alleged sexual abuse were not admissible under MRE 803(4) where the pediatrician’s examination “did not occur until seven years after the last alleged instance of abuse, thereby minimizing the likelihood that the complainant required treatment,” and “the complainant did not seek out [the pediatrician] for gynecological services[; r]ather, she was specifically referred to [the pediatrician] by the police in conjunction with the police investigation into the allegations of abuse by defendant”).
Generally, statements of identification are not admissible under MRE 803(4) because “the identity of an assailant cannot be fairly characterized as the ‘general cause’ of an injury.” People v LaLone, 432 Mich 103, 111-113 (1989). In LaLone, the statement of identification was not admissible because it was not necessary to the declarant’s medical diagnosis or treatment, and the statement was not sufficiently reliable because it was made to a psychologist, not a physician. Id. at 113-114. However, the Meeboer Court determined that statements of identification from a child-declarant alleging sexual abuse are “necessary to adequate medical diagnosis and treatment.” Meeboer, 439 Mich at 322. Identification statements from a child allow the medical health care provider to (1) assess and treat any sexually transmitted diseases or potential pregnancy, (2) structure an appropriate examination in relation to the declarant’s pain, (3) prescribe any necessary psychological treatment, and (4) know whether the child will be returning to an abusive home or will be given an opportunity to heal from the trauma. Id. at 328-329.
Where the declarant is a child, the court should “consider the totality of the circumstances surrounding the declaration of the out-of-court statement.” Meeboer, 439 Mich at 324. Further, considering certain factors may be helpful in determining the trustworthiness of the child’s statement. See Meeboer, 439 Mich at 324-325, for a list of 10 factors the court may consider to determine the trustworthiness of a child’s statement.
A record that “is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately,” “was made or adopted by the witness when the matter was fresh in the witness’s memory,” and “accurately reflects the witness’s knowledge” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” MRE 803(5). “If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.” Id.
In order to admit evidence pursuant to MRE 803(5), the following foundational requirements must be met:
“‘(1) The document must pertain to matters about which the declarant once had knowledge;
(2) The declarant must now have an insufficient recollection as to such matters; [and]
(3) The document must be shown to have been made by the declarant or, if made by one other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant’s knowledge when the matters were fresh in his memory.’” People v Daniels, 192 Mich App 658, 667-668 (1992), quoting People v J D Williams (After Remand), 117 Mich App 505, 508-509 (1982).
See also People v Dinardo, 290 Mich App 280, 288 (2010), where the Court of Appeals concluded that a DI-177 breath-test report is a hearsay document that may be admitted as a recorded recollection under MRE 803(5) if it satisfies the requirements in Daniels, 192 Mich App at 667-668. In Dinardo, the defendant was arrested for drunk driving and was tested for alcohol using a DataMaster machine. Dinardo, 290 Mich App at 283. The officer testified that he wrote the results of the alcohol test on a DI-177 report at the time of the test, that he no longer recalled the specific results of the test, and that he did not have a copy of the original DataMaster ticket.6 Id. at 283-284. The Court concluded that “the DI-177 report plainly satisfies all three requirements for admissibility [under MRE 803(5)]. [The officer] saw the DataMaster ticket and therefore had personal knowledge of the breath-test results at the time he recorded them onto the DI-177 report. Furthermore, [the officer] indicated that he no longer [had] any independent recollection of the specific results printed on the DataMaster ticket. Lastly, it is undisputed that [the officer] personally prepared the DI-177 report.” Dinardo, 290 Mich App at 293. Therefore, the officer was permitted to read the contents of the report into evidence at trial. Id. at 294.
“MRE 803(5) does not require a showing that the witness was totally unable to recall the memorandum’s contents, but only that the witness ‘now has insufficient recollection to enable him to testify fully and accurately.’” People v Missias, 106 Mich App 549, 554 (1981).
The trial court did not abuse its discretion in admitting the victim’s statement, written down for police shortly after they responded to an incident of domestic violence, when, at trial, the victim “recalled certain events after reading [her written statement], but otherwise testified that the statement did not refresh her recollection.” People v Chelmicki, 305 Mich App 58, 62 (2014). The statement was admissible under MRE 803(5) because the statement “pertained to a matter about which the declarant had sufficient personal knowledge, she demonstrated an inability to sufficiently recall those matters at trial, and the police statement was made by the victim while the matter was still fresh in her memory.” Chelmicki, 305 Mich App at 64.
“Where it appears likely that the contents of a deposition will be read to the jury, the court should encourage the parties to prepare concise, written summaries of the depositions for reading at trial in lieu of the full deposition. Where a summary is prepared, the opposing party shall have the opportunity to object to its contents. Copies of the summaries should be provided to the jurors before they are read.” MCR 2.513(F).
Committee Tip:
Recorded recollection, sometimes called past recollection recorded, is one of just a few evidence rules that prescribe a limited format of admissibility. The document may be read to the jury by the proponent but not physically introduced. Introducing the document is left to the opposing party.
6.Records of Regularly Conducted Activity
“A record of an act, transaction, occurrence, event, condition, opinion, or diagnosis” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” if:
“(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with a rule prescribed by the Supreme Court or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” MRE 803(6).
The Michigan Supreme Court summarized the business records hearsay exception as follows:
“In order to ensure the same high degree of accuracy and reliability upon which the traditional, but narrowly construed business records exception was founded, the current rules also recognize that trustworthiness is the principal justification giving rise to the exception. Thus, . . . MRE 803(6) provide[s] that trustworthiness is presumed, subject to rebuttal, when the party offering the evidence establishes the requisite foundation. Even though proffered evidence may meet the literal requirements of the rule, however, the presumption of trustworthiness is rebutted where the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Solomon v Shuell, 435 Mich 104, 125-126 (1990) (quotation marks and citation omitted).
If a party makes a timely objection, the court must determine whether the proffered evidence lacks trustworthiness, and if so lacking, refuse to admit the evidence under MRE 803(6). Solomon, 435 Mich at 126. “[T]rustworthiness is . . . an express condition of admissibility.” Id. at 128. In Solomon (a wrongful death action), the defendant-police officers offered four police reports into evidence detailing a shooting that resulted in the death of the decedent. Id. at 108. The Michigan Supreme Court held that the circumstances under which the reports were generated clearly indicated a lack of trustworthiness because the defendants had an obvious motive to misrepresent the facts (they were under investigation for the death). Id. at 126-127.
“MRE 803(6) gives the trial court discretion to consider whether any particular circumstances undercut the indicia of trustworthiness that is generally presumed to apply to business records.” People v Fontenot, ___ Mich ___, ___ (2022). “[N]owhere in MRE 803(6) is there any limitation on the meaning of ‘trustworthiness’ or specification of how or why a record might lack trustworthiness.” Fontenot, ___ Mich at ___ (quotation marks and citation omitted). “[T]rustworthiness is, under MRE 803(6) an express condition of admissibility.” Fontenont, ___ Mich at ___ (cleaned up). “The lack of a direct employer-employee relationship, without more, does not indicate a lack of trustworthiness.” Id. at ___ (holding that the trial court “erred by determining that the MRE 803(6) exception did not apply because the DataMaster technician was employed by a contractor rather than directly by the state of Michigan” and remanding so “the trial court may consider further arguments on the issue of trustworthiness”).
“The hearsay exception in MRE 803(6) is based on the inherent trustworthiness of business records. That trustworthiness is undermined when the records are prepared in anticipation of litigation.” People v McDaniel, 469 Mich 409, 414 (2003) (concluding that a police laboratory report that had been used at trial to identify a seized substance was inadmissible hearsay under MRE 803(6) due to the source of the information, or the methods or circumstances of preparation of the report, which indicated a lack of trustworthiness). However, fingerprint cards may be admissible under MRE 803(6) as long as they are not prepared in anticipation of litigation. People v Jambor (On Remand), 273 Mich App 477, 483-484 (2007). In Jambor, the Court concluded that fingerprint cards were admissible under MRE 803(6) because an adversarial relationship did not exist between the defendant and law enforcement at the time the fingerprint cards were prepared. Jambor, 273 Mich App at 483-484. “[T]he fingerprint cards were prepared during the normal course of investigating a crime scene.” Id. at 483.
Pursuant to MRE 805 (hearsay within hearsay), the proponent of the evidence must “establish an appropriate foundation for each independent hearsay statement to fall within a hearsay exception[.]” Solomon, 435 Mich at 129.
Under certain circumstances, records of regularly conducted activity may be self-authenticating. See MRE 902(11).
Committee Tip:
Note that in the first five hearsay exceptions under MRE 803, trustworthiness is implicit and is the governing principle. In MRE 803(6), trustworthiness is expressly mentioned and the lack thereof can violate use of the exception. See also MRE 803(7).
“Evidence that a matter is not included in a record described in” MRE 803(6) is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” if:
“(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.” MRE 803(7).
MRE 803(7) permits admission of evidence that there were no recorded reports of an allegation of sexual assault because such evidence is “of a kind of which a memorandum, report, record, or data compilation [is] regularly made and preserved, . . . [and] evidence that no report was ever made was admissible to prove the nonoccurence or nonexistence of the matter[.]” People v Marshall, 497 Mich 1023, 1023 (2015) (first alteration in original) (quotation marks and citation omitted).
“A record or statement of a public office” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” if it sets out:
“(A) the office’s activities; or
(B) a matter observed while under a legal duty to report, but not including:
(i) in a criminal case, a matter observed by law-enforcement personnel; and
(ii) information to which the limitations in MCL 257.624 apply.” MRE 803(8).7
“[T]he principle justification for excepting public records from the hearsay rule is trustworthiness, which is generally ensured when records are prepared under circumstances providing an official duty to observe and report.”Solomon v Shuell, 435 Mich 104, 131 (1990). Where documents are prepared in anticipation of litigation or the preparer or source of information has a motive to misrepresent the information, they are not admissible under MRE 803(8) because they lack trustworthiness. Solomon, 435 Mich at 131-132. Pursuant to MRE 805 (hearsay within hearsay), the proponent of the evidence must “establish an appropriate foundation for each independent hearsay statement to fall within a hearsay exception[.]” Solomon, 435 Mich at 129.
In Solomon (a wrongful death action), the defendant-police officers offered four police reports into evidence detailing a shooting that resulted in the death of the decedent. Solomon, 435 Mich at 108. The Michigan Supreme Court held that the circumstances under which the reports were generated clearly indicated a lack of trustworthiness because the defendants had an obvious motive to misrepresent the facts (they were under investigation for the death). Id. at 132-133.
Police reports may be admissible under MRE 803(8), as long as they are not prepared in a setting that is adversarial to the defendant. People v McDaniel, 469 Mich 409, 413 (2003). In McDaniel (a drug case), a police laboratory report was inadmissible under MRE 803(8) because it was adversarial; “[i]t was destined to establish the identity of the substance—an element of the crime for which defendant was charged[.]” McDaniel, 469 Mich at 413.
Under certain circumstances, public records may be self-authenticating. See MRE 902(1)-(4).
9.Judgment of a Previous Conviction
“Evidence of a final judgment of conviction” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” if:
“(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea unless allowed by MRE 410;[8]
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.” MRE 803(22).
“The pendency of an appeal may be shown but does not affect admissibility.” Id.
C.Rule 803A Exception: Child’s Statement9 About Sexual Act10
In criminal and delinquency proceedings only,11 MRE 803A(a), a child’s “statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding if:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without indication of manufacture;
(3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance;
(4) the statement is introduced through the testimony of someone other than the declarant; and
(5) the proponent of the statement makes known to the adverse party the intent to offer it and its particulars sufficiently before the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.” MRE 803A(b).
“If the declarant made more than one corroborative statement about the incident, only the first is admissible under [MRE 803A].” Id.
Committee Tip:
Notice that this is one of the few rules of evidence requiring advance notice for its use as a hearsay exception. Moreover, the rule has multiple necessary “elements,” the absence of which will relegate the request for admission unsatisfied.
Spontaneity. Generally, in order for a statement to be spontaneous under MRE 803A, “the declarant-victim [must] initiate the subject of sexual abuse.” People v Gursky, 486 Mich 596, 613 (2010). Statements subject to analysis under MRE 803A fall into three groups: (1) purely impulsive statements (those that “come out of nowhere” or “out of the blue”); (2) non sequitur statements (those made as a result of prompt, plan, or questioning, but “are in some manner atypical, unexpected, or do not logically follow from the prompt”); and (3) statements made in answer to open-ended and nonleading questions but “include answers or information outside the scope of the questions” (these are the most likely to be nonspontaneous and require extra scrutiny). Gursky, 486 Mich at 610-612. To find spontaneity in statements falling into the third category of possible spontaneous statements, “the child must broach the subject of sexual abuse, and any questioning or prompts from adults must be nonleading and open-ended[.]” Id. at 614.
The Michigan Supreme Court emphasized that this holding does not automatically preclude a statement’s admissibility under MRE 803A simply because the statement was made as a result of adult questioning. Gursky, 486 Mich at 614. “When questioning is involved, trial courts must look specifically at the questions posed in order to determine whether the questioning shaped, prompted, suggested, or otherwise implied the answers.” Id. at 615. In Gursky, the facts of the case showed that (1) the victim did not initiate the subject of sexual abuse; (2) the victim “did not come forth with her statements on her own initiative, and thus that the statements were not necessarily products of her creation”; and (3) the adult questioning the victim “specifically suggested defendant’s name to [the victim.]” Id. at 616-617. Therefore, the Court concluded that the victim’s statements were not spontaneous and, thus, inadmissible under MRE 803A. Gursky, 486 Mich at 617.
The Gursky Court went on to stress that spontaneity is not the only factor a court must look at in order to determine the admissibility of a statement pursuant to MRE 803A; even after finding that a statement is spontaneous, the trial court “must nevertheless also conduct the separate analyses necessary to determine whether the statement meets the other independent requirements of MRE 803A.” Gursky, 486 Mich at 615-616.
Multiple corroborative statements. “MRE 803A . . . permits only the first corroborative statement as to each incident that included a sexual act performed with or on the declarant by the defendant. Though the [rule] does not define the term incident, it is commonly understood to mean an occurrence or event, or a distinct piece of action, as in a story.” People v Douglas, 496 Mich 557, 575 (2014) (quotation marks and citation omitted). Consequently, a child-victim’s disclosure to a forensic interviewer of a sexual act that is inadmissible under MRE 803A because it was not the child’s first corroborative statement “does not become admissible under MRE 803A simply because her first disclosure of [a separate] incident followed shortly after it.” Douglas, 496 Mich at 576, 582-583 (also holding that the evidence was inadmissible under the residual hearsay exception (MRE 807),12 and ultimately concluding that the evidentiary errors required reversal and a new trial).
However, a statement that is inadmissible under MRE 803A because it is a subsequent corroborative statement, is not precluded from being admitted via another hearsay exception. People v Katt, 468 Mich 272, 294-297 (2003) (holding the statement was admissible under the residual hearsay exception).
D.Rule 804 Exceptions13
Hearsay exceptions that apply only when the declarant is unavailable are set forth in MRE 804(b). A declarant is not unavailable as a witness “if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.” MRE 804(a). The plain language of MRE 804(a) “mandates that the court consider whether the conduct of the proponent of the statement was for the purpose of causing the declarant to be unavailable.” People v Lopez, 501 Mich 1044, 1044 (2018) (although the trial court “found that the witness was unavailable because he felt threatened by the prosecutor,” it “did not consider whether the prosecutor intended to cause the declarant to refuse to testify when engaging in that conduct”).
“The trial court did not abuse its discretion by declaring [two child-witnesses] to be unavailable” where the witnesses’ father refused to allow them to testify after they were threatened. People v Garay, 320 Mich App 29, 36-37 (2017), rev’d and vacated in part on other grounds 506 Mich 936 (2020).14 Although this situation “is not expressly addressed under MRE 804(a), . . . it is of the same character as other situations outlined in the rule.” Garay, 320 Mich App at 36. The testimony about the dangerous character of the witnesses’ neighborhood, a Facebook threat against one of the witnesses, and the fact that the father’s refusal to allow them to testify was out of fear for their safety showed “that the reason for the refusal to testify was self-preservation.” Id. at 37. “While the better practice would have been to make a record of their unavailability by examining each [witness] as to any threats received and the factors that influenced their refusal to testify, the trial court’s decision to declare [the witnesses] unavailable was within the range of reasonable and principled outcomes.” Id.
A witness who abruptly leaves the courthouse before testifying may be unavailable for purposes of MRE 804(a)(2). People v Adams, 233 Mich App 652, 658-659 (1999). See also People v Wood, 307 Mich App 485, 517-518 (2014), vacated in part on other grounds 498 Mich 914 (2015),15 where the trial court properly found that the witness was unavailable based on “‘then existing physical . . . illness or infirmity’” because the witness was under a “doctor’s order confining her to ‘bed rest as a result of complications associated with her pregnancy’”; People v Garland, 286 Mich App 1, 7 (2009), where the trial court properly found that the victim was unavailable as defined in MRE 804(a)(4), where “the victim was experiencing a high-risk pregnancy, that she lived in Virginia, and that she was unable to fly or travel to Michigan to testify[.]”
“The language of MRE 804(a)(4) includes within its list of individuals who are unavailable those witnesses who are mentally infirm at the time they are called to give testimony.” People v Duncan, 494 Mich 713, 730 (2013). “[W]hen a child attempts to testify but, because of her youth, is unable to do so because she lacks the mental ability to overcome her distress, the child has a ‘then existing . . . mental . . . infirmity’ within the meaning of MRE 804(a)(4) and is therefore unavailable as a witness.” Duncan, 494 Mich at 717. In Duncan, 494 Mich at 730, the four-year-old criminal sexual conduct victim “was unable to testify because she could not overcome her significant emotional distress, a result of the unique limitations of her youth and, therefore, she was mentally infirm at the time of her trial testimony.” “As could be expected from a young child, especially in the context of alleged criminal sexual conduct, [the child-victim] simply did not have the mental maturity to overcome her debilitating emotions while on the stand.” Id. at 728. Accordingly, the lower courts erred by concluding that the child-victim was not unavailable under MRE 804(a)(4). Duncan, 494 Mich at 729-730.
Committee Tip:
Unavailability under MRE 804(a) is a prerequisite to use of the hearsay exception under MRE 804(b). Observe, however, that absence and unavailability are not necessarily to be equated. Only in MRE 804(a)(5) is absence required.
Former testimony that “was given as a witness at a trial or hearing whether given during the current proceeding or a different one” and “is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, or cross, or redirect examination” is “not excluded by the rule against hearsay if the declarant is unavailable as a witness[.]” MRE 804(b)(1)(A)-(B).
Former testimony must meet two requirements to be admissible under MRE 804(b)(1): (1) the proffered testimony must have been made at “another hearing,” and (2) the party against whom the testimony is offered must have had an opportunity and similar motive to develop the testimony. People v Farquharson, 274 Mich App 268, 272, 275 (2007). In Farquharson, the Court concluded that an investigative subpoena hearing is similar to a grand jury proceeding and thus, constitutes “another hearing” under MRE 804(b)(1). Farquharson, 274 Mich App at 272-275. “Whether a party had a similar motive to develop the testimony depends on the similarity of the issues for which the testimony is presented at each proceeding.” Id. at 275. The Court adopted a nonexhaustive list of factors that courts should use in determining whether a similar motive exists under MRE 804(b)(1):
“(1) whether the party opposing the testimony ‘had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue’;
(2) the nature of the two proceedings—both what is at stake and the applicable burdens of proof; and
(3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and the available but forgone opportunities).” Farquharson, 274 Mich App at 278.
The “defendant had ‘an opportunity and similar motive to develop the testimony’ at [his] preliminary examination” where (1) the testimony was presented at the preliminary examination for the same reason it was presented at the trial (to show the defendant conspired to shoot at certain gang members and that he shot a particular person), (2) the defendant had the same motive to cross-examine the witnesses at both proceedings (to show that their testimony lacked credibility or was not accurate), and (3) the defendant actually did cross-examine the witnesses with regard to their credibility at the preliminary examination. People v Garay, 320 Mich App 29, 37-38 (2017), rev’d and vacated in part on other grounds 506 Mich 936 (2020).16
A trial court does not violate MRE 804(b)(1) by “allowing the reading of [a witness’s] preliminary examination testimony at trial” where the witness is properly deemed unavailable at trial and where “[the] defendant enjoyed a prior, similar opportunity to cross-examine [the witness.]” People v Wood, 307 Mich App 485, 516 (2014), vacated in part on other grounds 498 Mich 914 (2015).17 See also Garay, 320 Mich App at 39 (holding the trial court properly admitted the preliminary examination testimony of the witnesses under MRE 804(b)(1) and that the admission of the preliminary examination testimony did not violate the defendant’s right of confrontation where the witnesses were unavailable for trial and the defendant cross-examined them at the preliminary examination).
“A witness’s testimony given in a lawful deposition during the same or another proceeding, if the party against whom the testimony is now offered had—or in a civil case, a predecessor in interest had—an opportunity and similar motive to develop the testimony by direct, or cross, or redirect examination” is “not excluded by the rule against hearsay if the declarant is unavailable as a witness[.]” MRE 804(b)(2).
For MRE 804(b)(2) only, “‘unavailability of a witness’ also includes situations in which:
(A) the witness is more than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the witness's absence was procured by the party offering the deposition; or
(B) on motion and notice, exceptional circumstances make it desirable—in the interests of justice and with due regard to the importance of presenting witnesses’ testimony orally in open court—to allow the deposition to be used.” Id.
“In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances” is “not excluded by the rule against hearsay if the declarant is unavailable as a witness[.]” MRE 804(b)(3). MRE 804(b)(3) permits the admissibility of statements made by a declarant at a time when the declarant believed his or her death was imminent. The rule does not require that the declarant actually die in order for the statements to be admissible; the declarant needs only to have believed that his or her death was imminent. People v Orr, 275 Mich App 587, 594-596 (2007).
“A declarant’s age alone does not preclude the admission of a dying declaration.” People v Stamper, 480 Mich 1, 5 (2007). In Stamper, the declarant was a four-year-old child who stated that he was dead and identified the defendant as the person who inflicted his fatal injuries. Id. at 3. The Court affirmed admission of the child’s statement, rejecting the defendant’s argument that a four-year-old could not be aware of impending death. Id. at 5.
Committee Tip:
The rule does not demand the declarant to say anything in particular, e.g., “I know I am dying,” to establish the belief of imminent death. Surrounding circumstances can supply the relevant context.
4.Statement Against Proprietary or Penal Interest
When a declarant is unavailable as a witness, the rule against hearsay will not exclude “[a] statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) must be supported by corroborating circumstances that clearly indicate its trustworthiness, if it tends to expose the declarant to criminal liability.” MRE 804(b)(4).
a.Proprietary Interest
A declarant’s statement that he shared ownership of a strip of land with the plaintiffs was admissible as a statement against proprietary interest. Sackett v Atyeo, 217 Mich App 676, 684 (1996). In Sackett, the defendants purchased a home owned by the declarant and his wife who had always maintained a shared driveway with their neighbors, the plaintiffs. Id. at 677-679. Based on a survey conducted before the defendants bought the property that said they owned the entire driveway, the defendants erected a fence along their property line, which encompassed the driveway. Id. at 679-680. The plaintiffs filed an action to quiet title to half of the driveway and based their suit on the theory of acquiescence. Id. at 680. The plaintiff-husband testified that the former owner (who had subsequently died) told him that no matter what the survey indicated, the plaintiffs owned half of the driveway. Id. at 678, 684. The Court concluded that the statement was admissible under MRE 804(b)(4)18 because the declarant’s “statement was contrary to his proprietary interest in his property because the statement was a statement against his ownership interest in a portion of his property. A reasonable person would not make such a statement unless he believed it to be true.” Sackett, 217 Mich App at 684.
Statements made against a declarant’s proprietary interest are not required to be supported by corroborating evidence. Davidson v Bugbee, 227 Mich App 264, 267 (1997). The Court stated:
“By enacting [MRE 804(b)(4)19], the Supreme Court specifically provided that statements against criminal interests that are offered to exculpate the accused must be supported by corroborating evidence. The Court did not apply any such restriction on the admission of statements against proprietary interests in a civil case, regardless of the circumstances under which the statement was made.” Davidson, 227 Mich App at 267 (emphasis added).
b.Penal Interest
Providing a hearsay exception for statements against penal interests is premised “on the assumption that people do not generally make statements about themselves that are damaging unless they are true.” People v Washington, 468 Mich 667, 671 (2003). Where the statement is testimonial,20 the Confrontation Clause is implicated. Crawford v Washington, 541 US 36 (2004). However, the admissibility of a nontestimonial statement is governed solely by MRE 804(b)(4)21 because it does not implicate the Confrontation Clause. People v Taylor, 482 Mich 368, 374 (2008).
“Whether to admit or exclude a statement against a witness’s penal interest offered under [MRE 804(b)(4)22] is determined by considering ‘(1) whether the declarant was unavailable, (2) whether the statement was against penal interest, (3) whether a reasonable person in the declarant’s position would have believed the statement to be true, and (4) whether corroborating circumstances clearly indicated the trustworthiness of the statement.’” People v Steanhouse, 313 Mich App 1, 23 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017),23 quoting People v Barrera, 451 Mich 261, 268 (1996). Trial courts must consider the relationship between MRE 804(b)(4)24 and a defendant’s constitutional due process right to present exculpatory evidence when exercising discretion to admit evidence under MRE 804(b)(4).25 Steanhouse, 313 Mich App at 23.
“A statement against a declarant’s penal interest is ‘not limited to direct confessions,’ ‘need not by itself prove the declarant guilty,’ and ‘need not have been incriminating on its face, as long as it was self-incriminating when viewed in context.’” Steanhouse, 313 Mich App at 23, quoting Barrera, 451 Mich at 270-271.
A statement that one intends to commit a crime is inadmissible under MRE 804(b)(4).26 People v Brownridge, 225 Mich App 291, 303-304 (1997), rev’d in part on other grounds 459 Mich 456 (1999).27 In Brownridge, the statements were made before the alleged offense was committed, and thus, were not against the declarant’s penal interest. Brownridge, 225 Mich App at 304.28 “The declaration must be against one’s pecuniary interest at the time the statement is made or it fails to qualify as an exception to the hearsay rule.” Id. (quotation marks and citation omitted).
The trial court properly concluded that the declarant’s statement to the police that he was present during the crime was not a statement against penal interest where the declarant made the admission after a detective informed him that the defendant blamed him for planning and committing the crime and the detective claimed to know the declarant was present at the scene. Steanhouse, 313 Mich App at 23. Further, the declarant’s admission to being present at the scene of the crime was in the context of “an extensive explanation of the way in which defendant planned and executed the [crime.]” Id. (emphasis added). The Court concluded that in context, the declarant’s statement did not subject him to liability to the extent that a reasonable person would not have made the statement unless believing it to be true; rather, it appeared the statement was made “in order to emphasize that he was merely present during the offense and had no role in its commission.” Id. at 24. Moreover, the Court noted that “the mere fact that the declarant invoked his Fifth Amendment right not to testify does not make the statement against penal interest.” Id. (quotation marks and citation omitted).
Inculpatory statements. “[W]here . . . the declarant’s inculpation of an accomplice is made in the context of a narrative of events, at the declarant’s initiative without any prompting or inquiry, that as a whole is clearly against the declarant’s penal interest and as such is reliable, the whole statement—including portions that inculpate another—is admissible as substantive evidence at trial pursuant to [MRE 804(b)(4)29].” People v Poole, 444 Mich 151, 161 (1993), overruled in part on other grounds by Taylor, 482 Mich 368.30
In Taylor, the declarant made two nontestimonial statements during two separate telephone calls: the first statement implicated himself, the defendant, and another individual named King; the second statement only implicated King. Taylor, 482 Mich at 379-380. The Taylor Court concluded that the two statements were admissible as statements against penal interest because they were “a pattern of impugning communications volunteered spontaneously and without reservation to a friend, not delivered to police, and without any apparent secondary motivation other than the desire to maintain the benefits of the relationship’s confidence and trust—and according to the record, to brag”; this constituted a narrative of events as required by Poole and [MRE 804(b)(4)].31 Taylor, 482 Mich at 380 (quotation marks and citation omitted).
The declarant’s inculpatory statement was inadmissible because “there were no corroborating circumstances clearly indicating the trustworthiness of the statement” and the “statement was not crucial to defendant’s theory of defense because it clearly implicated defendant in the [crime].” Steanhouse, 313 Mich App at 24.32 Specifically, the totality of the circumstances did not demonstrate that the statement was trustworthy because the statement was not spontaneous and was only provided to the police after the detective reiterated that the defendant implicated the declarant in the crime and that the detective knew the declarant was present; the statement was inconsistent with statements previously made by the declarant and the statement was made four months after the crime while the declarant was in custody for a separate offense. Id. at 26-27.
Exculpatory statements. If a statement “tends to expose the declarant to criminal liability,” it “must be supported by corroborating circumstances that clearly indicate its trustworthiness.” MRE 804(b)(4)(B). The court has discretion whether to admit an exculpatory statement under MRE 804(b)(4),33 and “[i]n exercising its discretion, the trial court must conscientiously consider the relationship between [MRE 804(b)(4)34] and a defendant’s constitutional due process right to present exculpatory evidence.” Barrera, 451 Mich at 269.35 According to the Michigan Supreme Court:
“[T]he defendant’s constitutional right to present exculpatory evidence in his defense and the rationale and purpose underlying [MRE 804(b)(4)36] of ensuring the admission of reliable evidence must reach a balance. We believe they may be viewed as having an inverse relationship: the more crucial the statement is to the defendant’s theory of defense, the less corroboration a court may constitutionally require for its admission. In contrast, the more remote or tangential a statement is to the defense theory, the more likely other factors can be interjected to weigh against admission of the statement.” Barrera, 451 Mich at 279-280 (citations omitted).
In order to determine whether the declarant’s exculpatory statement was actually against his or her penal interest, “the statement [must] be probative of an element of a crime in a trial against the declarant, and . . . a reasonable person in the declarant’s position would have realized the statement’s incriminating element.” Barrera, 451 Mich at 272. In Barrera, the declarant stated that he was not promised anything in return for his statement and was advised of his Miranda37 rights before giving the statement. Id. at 280-281. The Court concluded that any reasonable person in the declarant’s position “would have realized that any admissions by him could implicate him in a crime.” Id. at 281.
In order to determine if the statement was sufficiently corroborated by other evidence, the Barrera Court adopted the totality of the circumstances test enumerated in Poole, 444 Mich at 165. The Poole Court stated:
“The presence of the following factors would favor admission of such a statement: whether the statement was (1) voluntarily given, (2) made contemporaneously with the events referenced, (3) made to family, friends, colleagues, or confederates—that is, to someone to whom the declarant would likely speak the truth, and (4) uttered spontaneously at the initiation of the declarant and without prompting or inquiry by the listener.
On the other hand, the presence of the following factors would favor a finding of inadmissibility: whether the statement (1) was made to law enforcement officers or at the prompting or inquiry of the listener, (2) minimizes the role or responsibility of the declarant or shifts blame to the accomplice, (3) was made to avenge the declarant or to curry favor, and (4) whether the declarant had a motive to lie or distort the truth.” Poole, 444 Mich at 165.38
The Barrera Court further indicated that an additional three-factor inquiry must be made when a statement is made to the authorities while the declarant is in custody. Barrera, 451 Mich at 276.
“[F]irst consider the relationship between the confessing party and the exculpated party and whether it was likely that the confessor was fabricating his story for the benefit of a friend. Thus, if the two involved parties do not have a close relationship, one important corroborating circumstance exists. The second factor is whether the confessor made a voluntary statement after being advised of his Miranda39 rights. The third is whether there is any evidence that the statement was made in order to curry favor with authorities.” Barrera, 451 Mich at 275 (quotation marks, alterations, and citations omitted).
In Barrera, the Michigan Supreme Court found that the statement in question was critical to the defendant’s defense theory, and “his constitutional right to present [the exculpatory evidence] limited the threshold of corroborating circumstances that the court could require of [the declarant’s] statement.” Barrera, 451 Mich at 289. Additionally, the Court found that applying the three-factor analysis for custodial statements “further corroborated the trustworthiness of [the declarant’s] statement.” Id. Specifically, the declarant did not have a close relationship with the defendant, the declarant made a voluntary statement after being given his Miranda rights, and there was no evidence that he gave the statement to curry favor with the authorities. Id. at 289-290.
Cautionary instruction. Where the statement against interest involves accomplice testimony, the trial court has discretion whether to give a cautionary instruction40 on accomplice testimony. People v Young, 472 Mich 130, 135 (2005). The court may give the instruction no matter who calls the witness. People v Heikkinen, 250 Mich App 322, 331 (2002). In Heikkinen (an aggravated assault case), the defendant’s son testified that the defendant acted in self-defense. Id. at 324. The trial court instructed the jury under M Crim JI 5.5 (witness is a disputed accomplice) and M Crim JI 5.6 (accomplice testimony). Heikkinen, 250 Mich App at 325-326. The Court concluded that these instructions may be warranted in cases where the defendant offers potential exculpatory accomplice testimony; the instructions are not limited to inculpatory accomplice testimony. Id. at 327-337. The instructions were appropriate in Heikkinen because, under the facts of the case, the son’s testimony was “inevitably suspect[.]” Id. at 337-338.
A cautionary instruction should not be given regarding accomplice testimony when the testimony is from a codefendant in a joint trial, and the codefendant would be prejudiced by the instruction. See People v Reed, 453 Mich 685, 687 (1996). In Reed, the codefendant in a joint trial took the stand in his own defense; the defendant’s attorney failed to request a cautionary instruction on accomplice testimony, and the trial court did not issue an instruction sua sponte. Id. at 686-690. The Michigan Supreme Court concluded that giving such an instruction would have constituted an error requiring reversal because it would have asked the jury to view the codefendant’s testimony suspiciously, thereby prejudicing his defense. Id. at 693-694.
5.Statement By Declarant Made Unavailable By Opponent
“A statement offered against a party that wrongfully caused—or encouraged—the declarant’s unavailability as a witness, and did so intending that result” is “not excluded by the rule against hearsay if the declarant is unavailable as a witness[.]” MRE 804(b)(6).
“MRE 804(b)(6) is ‘a codification of the common-law equitable doctrine of forfeiture by wrongdoing,’ and ‘[u]nder the doctrine, a defendant forfeits his or her constitutional right of confrontation if a witness’s absence results from wrongdoing procured by the defendant[.]’” People v McDade, 301 Mich App 343, 354 (2013), quoting People v Jones, 270 Mich App 208, 212 (2006) (citations omitted; alterations in original). “[E]vidence offered under the forfeiture exception will very regularly be testimonial and subject to Sixth Amendment scrutiny. As forfeiture by wrongdoing is the only recognized exception to the Sixth Amendment’s guarantee of the right to cross-examine adverse witnesses, the constitutional question will often go hand-in-hand with the evidentiary question[.]” People v Burns, 494 Mich 104, 113-114 (2013).
“MRE 804(b)(6) incorporates a specific intent requirement. For the rule to apply, a defendant must have engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Burns, 494 Mich at 113 (quotation marks and citation omitted) (emphasis added). See also McDade, 301 Mich App at 354-355 (holding that the trial court’s admission of an unavailable witness’ recorded interview did not violate the defendant’s right of confrontation where the defendant forfeited that right by wrongdoing when he conveyed a note to the witness that contained “language that could be construed as threatening” and that “reflect[ed] an effort specifically designed to prevent [the witness] from testifying”; i.e., to make the witness unavailable). Because “the plain language of [MRE 804(b)(6)] . . . incorporates [a] specific intent requirement[,] . . . evidence properly admitted under MRE 804(b)(6) will likely also not be barred by the constitutional requirement imposed by the Sixth Amendment.” Burns, 494 Mich at 114, 114-115 n 35. In Burns, it was “alleged that during the alleged [sexual] abuse defendant instructed [the child-victim] ‘not to tell’ anyone and warned her that if she told, she would ‘get in trouble.’” Id. at 115. Those threats, “made contemporaneously with the abuse but before any report or investigation, require a finding that defendant intended to . . . procure the unavailability of [the child-victim] as a witness.” Id. (quotation marks and citation omitted). The Supreme Court “interpret[ed] the specific intent requirement of MRE 804(b)(6)—to procure the unavailability of the declarant as a witness—as requiring the prosecution to show that defendant acted with, at least in part, the particular purpose to cause [the child-victim’s] unavailability, rather than mere knowledge that the wrongdoing may cause the witness’s unavailability.” Burns, 494 Mich at 117. Accordingly, the trial court abused its discretion by admitting the hearsay statements of the child-victim under MRE 804(b)(6), because “the prosecutor failed to establish by a preponderance of the evidence that defendant’s conduct both was intended to, and did, cause [the child-victim’s] unavailability.” Burns, 494 Mich at 120.
See also People v Roscoe, 303 Mich App 633, 641 (2014), where the trial court abused its discretion in “fail[ing] to make a factual finding that defendant had the requisite specific intent” to render the witness unavailable to testify. “Although there was evidence from which to infer that defendant killed the victim because [the defendant] was caught trying to steal . . ., this does not support an inference that defendant specifically intended to kill the victim to prevent him from testifying at trial, particularly given that there were no pending charges against defendant.” Id. In Roscoe, “the victim was hit in the head before the breaking and entering had been reported, and there was no evidence that the victim said that he was going to call the police.” Id. “[W]ithout specific findings by the trial court regarding intent, defendant’s action[s] were as consistent with the inference that his intention was that the breaking and entering he was committing go undiscovered as they were with an inference that he specifically intended to prevent the victim from testifying.” Id. Accordingly, it was error to admit the victim’s statement that identified the defendant as the attacker. Id. at 642. However, because there was “ample other evidence from which [the] jury could conclude, beyond a reasonable doubt, that defendant killed the victim,” the error was not outcome determinative, and reversal of the defendant’s convictions was not warranted. Id. at 642-643.
Committee Tip:
Resist the temptation to simply blame the accused for the abuse of the witness involved with the threats. Attention to detail here, accompanied by a slow, methodical approach, better serves the analytical record for review.
See Section 3.5(D)(3) for discussion of the forfeiture by wrongdoing doctrine in context of the Confrontation Clause.
E.Residual Exception41
Even if a hearsay statement is not admissible under an exception in MRE 803 or MRE 804, the statement may be admitted under the following conditions:
“(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will serve the purposes of these rules and the interests of justice.” MRE 807(a).42
“The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant’s name and address—so that the party has a fair opportunity to meet it.” MRE 807(b).
The residual exception is designed to be used as a safety valve in the hearsay rules and allows “evidence to be admitted that is not specifically covered by any of the categorical hearsay exceptions under circumstances dictated by the rules.” People v Katt, 468 Mich 272, 281 (2003).43 The Katt Court rejected the near miss theory, which precludes the admission of evidence under a residual hearsay exception when the evidence “was inadmissible under, but related to, a categorical exception.” Id. at 282-286. In determining equivalent trustworthiness, the court must look at the totality of the circumstances. Id. at 290-291. Although no complete list of factors exist for making this determination, the court should consider anything relevant to the statement’s reliability except for “corroborative evidence . . . in criminal cases if the declarant does not testify at trial.” Id. at 291-292 (using this evidence is forbidden by the Confrontation Clause). Some factors relevant to the trustworthiness of a statement include:
“(1) the spontaneity of the statements, (2) the consistency of the statements, (3) lack of motive to fabricate or lack of bias, (4) the reason the declarant cannot testify, (5) the voluntariness of the statements, i.e., whether they were made in response to leading questions or made under undue influence, (6) personal knowledge of the declarant about the matter on which he [or she] spoke, (7) to whom the statements were made . . . , and (8) the time frame within which the statements were made.” People v Steanhouse, 313 Mich App 1, 26 (2015), aff’d in part and rev’d in part on other grounds 500 Mich 453 (2017)44 (quotation marks and citation omitted; alteration in original).
F.Statements Narrating, Describing, or Explaining the Infliction or Threat of Physical Injury in Domestic Violence Case45
MCL 768.27c is a substantive rule of evidence that allows admission of certain statements in domestic violence cases. See People v Meissner, 294 Mich App 438, 445 (2011). A declarant’s statement may be admitted under MCL 768.27c if all of the following circumstances exist:
“(a) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(b) The action in which the evidence is offered under [MCL 768.27c] is an offense involving domestic violence.
(c) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of a statement made more than 5 years before the filing of the current action or proceeding is inadmissible under this section.
(d) The statement was made under circumstances that would indicate the statement’s trustworthiness.
(e) The statement was made to a law enforcement officer.” MCL 768.27c(1).
MCL 768.27c(1)(a) “places a factual limitation on the admissibility of statements,” and MCL 768.27c(1)(c) “places a temporal limitation on admissibility.” Meissner, 294 Mich App at 446. Together, these provisions “indicate that a hearsay statement can be admissible if the declarant made the statement at or near the time the declarant suffered an injury or was threatened with injury.” Id. at 447. In Meissner, the victim gave a verbal statement and prepared a written statement for the police that she had been threatened by the defendant (1) on previous occasions, (2) that morning at her home, and (3) again that same day, via text message, after telling the defendant she had contacted the police. Id. at 443. The Court of Appeals found that “[t]he [trial] court could . . . determine that [the victim’s] statements met the requirements of [MCL 768.27a](1)(a) because the statements described text messages that threatened physical injury, and met the requirements of [MCL 768.27c](1)(c) because [the victim] made the statements at or very near the time she received one or more of the threatening text messages.” Meissner, 294 Mich App at 447.
For purposes of MCL 768.27c(1)(d), “circumstances relevant to the issue of trustworthiness include, but are not limited to, all of the following:
(a) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
(b) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
(c) Whether the statement is corroborated by evidence other than statements that are admissible only under this section.” MCL 768.27c(2).
MCL 768.27c(2) expressly states that the court is not limited to the listed factors when determining “circumstances relevant to the issue of trustworthiness”; the listed factors are merely “a nonexclusive list of possible circumstances that may demonstrate trustworthiness.” Meissner, 294 Mich App at 449.
The reference in MCL 768.27c(2)(a) to statements made in contemplation of “pending or anticipated litigation” “pertains to litigation in which the declarant could gain a property, financial, or similar advantage, such as divorce, child custody, or tort litigation.” Meissner, 294 Mich App at 450. In cases where the declarant is an alleged victim of domestic violence, that provision “does not pertain to the victim’s report of the charged offense.” Id.
MCL 768.27c(3) requires the prosecuting attorney to disclose evidence he or she intends to offer under the statute, “including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown.”
“MCL 768.27c contains no requirement that the complainant-declarant be unavailable in order to admit evidence of a statement that otherwise satisfies the statutory requirements.” People v Olney, 327 Mich App 319, 326-328 (2019) (concluding that when ruling on defendant’s motion to quash bind-over, the “circuit court erred as a matter of law in holding that there is an ‘unavailability’ requirement under MCL 768.27c,” thereby “impos[ing] an additional condition not found in the plain and unambiguous language of MCL 768.27c”). “[I]mposing an unavailability requirement would essentially nullify the statute.” Olney, 327 Mich App at 327.
“MCL 768.27c . . . appl[ies] to preliminary examinations.” People v Olney (On Remand), 333 Mich App 575, 582 (2020). “[T]he plain language of MCL 768.27c(6) unambiguously applies at trials and evidentiary hearings. The preliminary examination is a type of evidentiary hearing, and thus, the statute applies at that stage.” Olney, 333 Mich App at 585, 587 (noting that MCR 6.110(D)(2) does not “conclud[e] that preliminary examinations are wholly distinct from evidentiary hearings”; MCR 6.110(D)(2) “addresses the necessity for a separate evidentiary hearing to decide questions concerning the admissibility of evidence,” and “[t]hat does not mean that preliminary examinations are not a type of evidentiary hearing”). Additionally, because “MCL 766.11b(1)[46] addresses the foundational and authentication requirements for certain reports and records at the preliminary examination,” and “MCL 768.27c does not contain any reference to admission of records or other documents,” but “addresses statements pertaining to physical injury or domestic violence,” “[t]he omission of MCL 768.27c from MCL 766.11b(1) does not support [an] attempt to preclude hearsay statements pertaining to domestic violence from admission at the preliminary examination.” Olney, 333 Mich App at 586-587.
G.Statutory Exceptions for Hearsay at the Preliminary Examination47
“The rules of evidence apply at the preliminary examination except that the following are not excluded by the rule against hearsay and shall be admissible at the preliminary examination without requiring the testimony of the author of the report, keeper of the records, or any additional foundation or authentication:
(a) A report of the results of properly performed drug analysis field testing to establish that the substance tested is a controlled substance.
(b) A certified copy of any written or electronic order, judgment, decree, docket entry, register of actions, or other record of any court or governmental agency of this state.
(c) A report other than a law enforcement report that is made or kept in the ordinary course of business.
(d) Except for the police investigative report, a report prepared by a law enforcement officer or other public agency. Reports permitted under this subdivision include, but are not limited to, a report of the findings of a technician of the division of the department of state police concerned with forensic science, a laboratory report, a medical report, a report of an arson investigator, and an autopsy report.” MCL 766.11b(1).
MCL 766.11b irreconcilably conflicts with MCR 6.110(C) (providing that the Michigan Rules of Evidence apply at preliminary examinations) because it permits the admission of evidence that would be excluded under the Michigan Rules of Evidence. People v Parker, 319 Mich App 664, 667 (2017). “MCL 766.11b is an enactment of a substantive rule of evidence, not a procedural one. Accordingly, the specific hearsay exception in MCL 766.11b takes precedence over the general incorporation of the Michigan Rules of Evidence found in MCR 6.110(C).” Parker, 319 Mich App at 674 (holding that “[t]he district court properly admitted the laboratory report [of the defendant’s blood draw at his preliminary examination on a charge of operating while intoxicated] pursuant to the statutory hearsay exception in MCL 766.11b,” and “[t]he circuit court abused its discretion by remanding defendant’s case to the district court for continuation of the preliminary examination”).
“The magistrate shall allow the prosecuting attorney or the defense to subpoena and call a witness from whom hearsay testimony was introduced under this section on a satisfactory showing to the magistrate that live testimony will be relevant to the magistrate’s decision whether there is probable cause to believe that a felony has been committed and probable cause to believe that the defendant committed the felony.” MCL 766.11b(2).
H.Hearsay as Basis to Form an Expert’s Opinion
Where “the facts and data underlying [an expert’s] testimony were fundamentally presented in testimony, documents, and photographs admitted during [a] five-day trial,” the trial court did not err when it permitted the expert to rely on hearsay to formulate a diagnosis where no hearsay exception applied. People v Alexander, ___ Mich App ___, ___ (2024) (holding that when “no hearsay exception applied, an expert is allowed to recount and rely on hearsay if it was used as a basis to form an opinion”). In Alexander, the prosecution’s expert witness “testified that prior to performing her evaluations of [the minor child], she examined the minor child’s medical records, which included a number of photographs of [the minor child’s] injuries and the results of [the minor child’s] x-ray report, in addition to information provided by the forensic interviewer.” Id. at ___. The expert witness also interviewed a codefendant and the defendant’s minor children. Id. at ___. “While [the expert witness] opined that [the minor child’s] injuries indicated that the minor child was exposed to at least two distinct physical assaults and at least two psychological maltreatments, warranting a diagnosis of ‘medical torture,’ she [explained that] her diagnosis was a consequence of her review of the medical records admitted in evidence, which included photographs of the ligature marks on [the minor child’s] extremities and an x-ray of the minor child’s ankles.” Id. at ___. Accordingly, the expert witness “was permitted to advance testimony concerning the alleged abuse of [the minor child] as her opinion was made on the basis of admitted evidence detailing physical findings and [the minor child’s] medical history, in addition to the minor child’s statements.” Id. at ___. “It is well-settled that an expert witness may rely on hearsay evidence when the witness formulates an opinion.” Id. at ___ (quotation marks and citation omitted).