Michigan's proposed court rule on confrontation

Just because you CAN do something - does that mean that you should?

The next time you are in a courtroom - look around you. Look at the video screen if there is one. Look at the table for the plaintiff. Then look at the witness stand. Close your eyes and imagine the most effective way for the accused citizen to fully confront a witness. Is it via a 2-way conference that allows the witness to appear via the TV screen? Is it via a sworn affidavit? Or is it live to be subject to scrutiny from the jury of every non-verbal cue and responsiveness to answers on direct and cross?

Of course the answer to the question as to what is most effective is easy: live testimony from the witness stand, a right that is the heart of the right of confrontation in the 6th Amendment as revitalized by the Supreme Court in the 2004 Crawford v Washington opinion.

In 2009, the United States Supreme Court ruled that confrontation means that the government bears the burden of producing the analyst for live testimony in Melendez-Diaz v Massachusetts, 129 SCt 2527. The Court then extended the confrontation protection to prohibit the use of a supervisor or surrogate witness for the actual analyst in Bullcoming v New Mexico __SCt __ (2011).

The Michigan Supreme Court responded by proposing MCR 6.202. The proposed rule creates a notice and demand system for testimony from a laboratory analyst. The proposed rule creates a "shall be admitted" system if a forensic analyst fills out a certificate stating that he or she is "qualified by education, training or experience," and "that the tests were performed under industry-approved standards and procedures" among other things.

The rule requires that the prosecutor produce a report of the analysts' "methods and findings" no later than 28 days before trial. If neither the defense attorney nor the unrepresented defendant respond or object within 14 days, then the report of the analysis shall be admitted at trial without testimony.

The Supreme Court of the United States expressly recognized that states do not offend the constitution with a notice and demand system for introducing lab reports without live testimony absent an objection from the accused. However, the opinion did not set forth what details in a notice and demand system would suffice to protect the confrontation rights of the accused.

The system under the proposed MCR 6.202 does not give the accused or his lawyer much time to effectively analyze the proper strategy. This problem will be magnified if the prosecution and/or lab do not produce meaningful information about the "methods" of the analysis as required by MCR 6.202. I can speak from personal experience when I say that it is not uncommon to disagree with the lab on what its analysts or supervisors believe to be important or relevant or even allowable documentation of the "methods" for me to review on behalf of my client.

If the accused is asked to choose to waive the right to confront the lab analyst and his attorney is worried about annoying the judge or the prosecutor, the dynamic is created for a lack of a completely fair, public trial that is carried in the full basket of rights created by the founders.

The Michigan Court of Appeals issued an opinion in January, 2011 that interpreted a slightly different court rule. In People v Buie __ NW2d __ (2011)(on remand), the court held that the court rule that allowed for testimony of witnesses via video conference violated the confrontation clause absent a state interest or public policy that justifies the use of 2-way video conference testimony even though it subverts the accused's confrontation rights. The Buie court held that cost savings, efficiency and convenience were not justifiable state interests or public policy grounds as the prosecutor conceded those points on appeal. The court held that the accused himself did not consent to the procedure either even though his lawyer did.

This column is not to suggest that there are no provisions of a notice and demand rule that could protect the confrontation right and allow for a waiver of live testimony of certain witnesses. The question is exactly how to best protect confrontation and ensure the accused agrees with the decision of the lawyers and knowingly waives live testimony. Should the rule be re-written to specify "party" as the only person who can waive the appearance of the witness?

Further, some judges require accused citizens to put such decisions on the record. Just because the SCOTUS seemed to endorse a notice and demand system does not mean that it endorsed any notice and demand system. And, it didn't mean it should be done without significant reflection and thought.

Mike Nichols is an OWI expert, adjunct law professor and author of The Michigan OWI Handbook by Thomson Reuters West Publishing.

The 2012 update of the book was just released and includes a new section on Michigan's uncertainty litigation, on which Nichols is lead counsel.

He is a member of the National College for DUI Defense and recently completed the NCDD Summer Session held at the Harvard Law School.

His office is based in East Lansing. He is available to take your call at 517.432.9000 or respond to your e-mail at mnichols @nicholslaw.net.

Published: Mon, Sep 12, 2011

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