Recently, the Michigan Legislature adopted MCL §768.27c, which, in Michigan domestic violence trials, allows the prosecutor to bring in to evidence of an alleged victim’s statements to police, even if that person does not appear at the trial. As noted by the Legislature, the rational of this law is that it is “common that a domestic violence victim will make a statement to a police officer or other emergency responder but later may be unwilling to testify in court against the abuser.” (See Bill Analysis) Although the Michigan Legislature certainly had good intentions regarding the implementation of this law, the application of the law runs contrary of the Constitution and is illegal. Nevertheless, the vast majority of these cases are never challenged by criminal defense attorneys, thus resulting in many convictions and pleas based on illegal and inadmissible evidence.
According to MCL 768.27c, a statement made by a declarant is deemed admissible if: “(a) [t]he statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant; (b) [t]he action in which the evidence is offered under this section is an offense involving domestic violence; (c) [t]he statement was made at or near the time of the infliction or threat of physical injury; (d) [t]he statement was made under circumstances that would indicate the statement's trustworthiness; and (e) [t]he statement was made to a law enforcement officer.”
What this boils down to is that if the victim of domestic violence chooses not to testify in court during the domestic violence trial, their hearsay statements to the police are permitted to be used. The Defendant is thus never permitted to confront the truthfulness of the statements at the trial and the jury is left to make their determination based on non-confronted allegations.
I recently won a case in which the prosecutor sought to introduce evidence of my client’s accuser’s out of court statements to police on the night of the domestic violence allegation. The facts of the case were that my client’s alcoholic brother had threatened my client. In response, my client had armed himself with a small knife in order to protect himself from his brother’s rage. And his brother in fact did try to attack my client and was stabbed with the knife in the process. When the police arrived, my client’s intoxicated brother made numerous statements to the police regarding the incident. Then, days later, he indicated the prosecutor that he would not be testifying at the trial as he had moved out of state. The prosecutor then filed notice that he intended to use the statements of the intoxicated brother against my client in regard to his domestic violence trial.
When I am retained on a domestic violence case, I always anticipate that the alleged victim will not want to take the stand. The prosecutor also will anticipate this and file a notice of their intention to use MCL 768.27c evidence against my client. Per MCL 768.27c, “[i]f the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence, 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.” Because of this, if the prosecutor waits too long, or fails to even file the required notice, a challenge must be made to suppress the statements.
However, I have experienced many courts which will allow the prosecutor to bring in the statements, even without the proper notice. Because of this, the statements must be attacked, via a motion in limine, to bar the admissibility of the statements.
The strongest argument that the out of court hearsay statements are inadmissible are that they violate the defendant’s right to confront his accuser. This Constitutional Right to Confrontation stems from the Sixth Amendment and has been discussed at length by the United States Supreme Court in Crawford v Washington. “A defendant has the right to be confronted with the witnesses against him. US Const, Am VI; Const 1963, art 1, § 20; People v Ho, 231 Mich App 178 (1998) The Sixth Amendment bars testimonial statements by a witness who does not testify at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v Washington; People v Yost, 278 Mich App 341 (2008)
Ultimately, in the case where the intoxicated brother was stabbed, the prosecutor dismissed the case on the day of trial. The reason was that I had filed my objections to the use of the brother’s testimony well in advance of the trial.
Although I have been successful at fighting the unjust use of MCL 768.27c by the prosecutor, the vast majority of domestic violence defendants in Michigan never file any objections to the use of this statute. This results in many convictions and pleas which are based on the mistaken belief that uncontroverted hearsay statements can be used at trial. As with all criminal cases, the outcome of the case depends entirely on how the case is attacked and defended. In these domestic cases, it is of extreme importance to understand the Constitutional limitations the law imposes on the prosecutor’s ability to introduce statements in violation of a person’s right to confront his accusers. Because of this, if you are in trouble and the prosecutor is threatening to introduce statements of a witness who will not testify, you need to speak with an attorney who understands the constitutional safeguards meant to protect you from illegal statutes like MCL 768.27c.
Jim Amberg is a partner at the lawfirm of Amberg & Amberg, PLLC. Jim has tried and won misdemeanor, felony, and federal jury trials and routinely handles everything from Major Narcotics Conspiracy to Murder cases. He argued and won the legally significant case of United States v Presley in the 6th Circuit Court of Appeals. Jim also has sued courts to stop the practice of illegally incarcerating minors. Jim is an active member of the Criminal Defense Attorneys of Michigan, the Michigan Association for Justice, and the National Association of Criminal Defense Lawyers. He has been named a Superlawyer by Superlawyer Magazine, a Top Lawyer by DBusiness Magazine, AV Rated by Martindale-Hubbell, and has a rating of Superb by AVVO.com.
If you have any legal questions regarding your case, please feel free to contact Jim at (248) 681-6255 or email at email@example.com.