Admission of former testimony
In criminal cases, a defendant has a number of rights including the right to “confront the witnesses against them.”
What this means in real life terms is the right to be present in the courtroom when the witnesses testify and then to ask them questions during what is called “cross-examination.” Hearsay evidence is normally not allowed.
It sounds simple enough and typically, witnesses against a defendant testify when called upon. However, there are times when things might not go as planned. Consider the following.
Under Michigan law in a felony case, both the People and the defendant have the right to what is called a “preliminary examination.” This is a hearing in the district court to determine if there is enough evidence to have the case set for a trial in the circuit court.
The witnesses testify and if the judge finds there has been a sufficient showing the case is then sent to circuit court for further proceedings.
If there is to be a trial the witnesses must testify again. Normally this is not an issue but occasionally a witness who previously testified can’t because they are “unavailable.”
What happens then?
The answer is found in both a statute and a Michigan Rule of Evidence, which provide that when this occurs the former testimony of the witness at the preliminary examination can be admitted and read into evidence if the court is satisfied the proofs have established that the legal test for unavailability has been met.
This can be shown when a witness refuses to testify despite an order of the court, there is a lack of memory, the witness can’t be present because of death or then existing physical or mental illness or infirmity, or is absent from the hearing and the party calling the witness has been unable to procure the witness’s attendance by process and there is proof of due diligence to produce the witness.
Additionally a witness is unavailable when it is shown that the defendant engaged in or encouraged the witness to not appear.
These situations do not happen often. However, when they do the law in this area has provided an answer, which is fair to both sides.
Our system of justice would have it no other way.