confrontation clause in Michigan

2025“The threshold question for any Confrontation Clause challenge, therefore, is whether the proffered evidence is testimonial.” Bruner, 501 Mich at 227 . “ ‘Testimony’ is ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id., quoting Crawford, 541 US at 51 . “[T]he Sixth Amendment bars the admission of testimonial statements by a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” People v Dendel (On Second Remand), 289 Mich App 445, 453 ; 797 NW2d 645 (201

2020See Crawford, 541 US at 54 (“The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.”). 8 In a footnote in its supplemental brief, the prosecution suggests that Cutler’s testimony could be considered to be nontestimonial because of the plurality decision in Williams v Illinois, 567 US 50 ; 132 S Ct 2221 ; 183 L Ed 2d 89 (2012).

2020Craig’s language that “the face-to-face confrontation requirement is not absolute” and that the preference for face-to-face confrontations “must occasionally give way to considerations of public policy and the necessities of the case,” Craig, 497 US at 849-850 , citing Mattox, 156 US at 243 ; see also Jemison, unpub op at 5 (quotation marks and citations omitted), envisions the possibility of open-ended exceptions to the confrontation requirement that has since been rejected in Crawford.

2007But dying declarations, made under certain circumstances, were admissible at common law, and that common law was not repudiated by our constitution in the clause referred to, but adopted and cherished.” [State v Houser, 26 Mo 431, 438 (1858)]; accord, [Mattox v United States, 156 US 237, 243-244 ; 15 S Ct 337 ; 39 L Ed 409 (1895)] (“from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility.”) Thus, if, as Crawford teaches, the confrontation clause “is most naturally read as a reference to the right of con

2018See Garland, 286 Mich App at 7 (“Former testimony is admissible at trial under both MRE 804(b)(1) and the confrontation clause as long as the witness is unavailable for trial and was subject to cross-examination during the prior testimony.”).

2018See Garland, 286 Mich App at 7 (“Former testimony is admissible at trial under both MRE 804(b)(1) and the confrontation clause as long as the witness is unavailable for trial and was subject to cross-examination during the prior testimony.”).

2016Regarding defendant’s claim of a Confrontation Clause violation, “[t]he United States Supreme Court has recognized that while a preliminary examination ‘is ordinarily a less searching exploration into the merits of a case than a trial,’ the Confrontation Clause can be satisfied if a defendant’s cross-examination of the witness at the prelim[inary examination] was -4- not significantly limited in scope or nature and the witness was actually unavailable at trial.” Sardy, ___ Mich App at ___; slip op at 6, quoting California v Green, 399 US 149, 166 ; 90 S Ct 1930 ; 26 L Ed 2d 489 (1970).

2016Regarding defendant’s claim of a Confrontation Clause violation, “[t]he United States Supreme Court has recognized that while a preliminary examination ‘is ordinarily a less searching exploration into the merits of a case than a trial,’ the Confrontation Clause can be satisfied if a defendant’s cross-examination of the witness at the prelim[inary examination] was -4- not significantly limited in scope or nature and the witness was actually unavailable at trial.” Sardy, ___ Mich App at ___; slip op at 6, quoting California v Green, 399 US 149, 166 ; 90 S Ct 1930 ; 26 L Ed 2d 489 (1970).

1988DUE DILIGENCE The Supreme Court of the United States in Barber v Page, 390 US 719, 725 ; 88 S Ct 1318 ; 20 L Ed 2d 255 (1968), held that a witness is "unavailable” for the purpose of an exception to the confrontation requirement if "the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” 4 In Michigan, MCL 768.26; MSA 28.1049 provides:_ Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony, c

1988DUE DILIGENCE The Supreme Court of the United States in Barber v Page, 390 US 719, 725 ; 88 S Ct 1318 ; 20 L Ed 2d 255 (1968), held that a witness is "unavailable” for the purpose of an exception to the confrontation requirement if "the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” 4 In Michigan, MCL 768.26; MSA 28.1049 provides:_ Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony, c

2026A pretrial statement is testimonial -3- if the declarant should reasonably have expected the statement to be used in a prosecutorial manner and if the statement was made under circumstances that would cause an objective witness reasonably to believe that the statement would be available for use at a later trial. [Id. at 453.] “However, the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted.” Chambers, 277 Mich App at 10-11 . “[A] statement offered to show the effect of the out-of-court statement

2026A pretrial statement is testimonial -3- if the declarant should reasonably have expected the statement to be used in a prosecutorial manner and if the statement was made under circumstances that would cause an objective witness reasonably to believe that the statement would be available for use at a later trial. [Id. at 453.] “However, the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted.” Chambers, 277 Mich App at 10-11 . “[A] statement offered to show the effect of the out-of-court statement

2018We ordered oral argument on the application, instructing the parties to address whether the admission of Webb's preliminary-examination testimony at Bruner's joint trial with Lawson violated Bruner's constitutional right to confrontation, despite the trial court's redaction of that testimony and limiting instruction to the jury, see Gray v. Maryland , 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) ; Bruton v. United States , 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) ; and, if there was a Confrontation Clause violation, whether the error of admitting the testimony was harmles

2018We ordered oral argument on the application, instructing the parties to address whether the admission of Webb's preliminary-examination testimony at Bruner's joint trial with Lawson violated Bruner's constitutional right to confrontation, despite the trial court's redaction of that testimony and limiting instruction to the jury, see Gray v. Maryland , 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) ; Bruton v. United States , 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) ; and, if there was a Confrontation Clause violation, whether the error of admitting the testimony was harmles

2026Regarding a Confrontation Clause challenge, “a reviewing court must conduct a thorough examination of the record in order to evaluate whether it is clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the error.” Shepherd, 472 Mich at 348 (quotation marks and citation omitted).

2026Regarding a Confrontation Clause challenge, “a reviewing court must conduct a thorough examination of the record in order to evaluate whether it is clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the error.” Shepherd, 472 Mich at 348 (quotation marks and citation omitted).

2000We reaffirmed only recently that “[w]hile a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as ‘unintended and too extreme.’ ” [Citations omitted.] The Court further stated: *174 We noted [in Ohio v Roberts, 448 US 56 ; 100 S Ct 2531 ; 65 L Ed 2d 597 (1980)] that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Ibid.

2000We reaffirmed only recently that “[w]hile a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as ‘unintended and too extreme.’ ” [Citations omitted.] The Court further stated: *174 We noted [in Ohio v Roberts, 448 US 56 ; 100 S Ct 2531 ; 65 L Ed 2d 597 (1980)] that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Ibid.

1986Chapman v California, 386 US 18 ; 87 S Ct 824 ; 17 L Ed 2d 705 (1967). [1] *125 In the context of a Confrontation Clause violation, consisting of improper limitation of cross-examination of a prosecution witness for bias, the United States Supreme Court recently reaffirmed its rejection of automatic reversal for error of constitutional magnitude and reviewed some of the factors a reviewing court should consider in determining whether a constitutional error can be considered harmless: The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realiz

1986Chapman v California, 386 US 18 ; 87 S Ct 824 ; 17 L Ed 2d 705 (1967). [1] *125 In the context of a Confrontation Clause violation, consisting of improper limitation of cross-examination of a prosecution witness for bias, the United States Supreme Court recently reaffirmed its rejection of automatic reversal for error of constitutional magnitude and reviewed some of the factors a reviewing court should consider in determining whether a constitutional error can be considered harmless: The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realiz

2017See Richardson v Marsh, 481 US 200, 206-208 ; 107 S Ct 1702 ; 95 L Ed 2d 176 (1987); Bruton v United States, 391 US 123, 135-136 ; 88 S Ct 1620 ; 20 L Ed 2d 476 (1968); People v Frazier (After Remand), 446 Mich 539, 544-550 ; 521 NW2d 291 (1994); People v Banks, 438 Mich 408, 414-421 ; 475 NW2d 769 (1991).

2017See Richardson v Marsh, 481 US 200, 206-208 ; 107 S Ct 1702 ; 95 L Ed 2d 176 (1987); Bruton v United States, 391 US 123, 135-136 ; 88 S Ct 1620 ; 20 L Ed 2d 476 (1968); People v Frazier (After Remand), 446 Mich 539, 544-550 ; 521 NW2d 291 (1994); People v Banks, 438 Mich 408, 414-421 ; 475 NW2d 769 (1991).

2018We ordered oral argument on the application, instructing the parties to address whether the admission of Webb's preliminary-examination testimony at Bruner's joint trial with Lawson violated Bruner's constitutional right to confrontation, despite the trial court's redaction of that testimony and limiting instruction to the jury, see Gray v. Maryland , 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) ; Bruton v. United States , 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) ; and, if there was a Confrontation Clause violation, whether the error of admitting the testimony was harmles

2018We ordered oral argument on the application, instructing the parties to address whether the admission of Webb's preliminary-examination testimony at Bruner's joint trial with Lawson violated Bruner's constitutional right to confrontation, despite the trial court's redaction of that testimony and limiting instruction to the jury, see Gray v. Maryland , 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) ; Bruton v. United States , 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) ; and, if there was a Confrontation Clause violation, whether the error of admitting the testimony was harmles

2024This Court rejected the defendant’s argument that the testimony violated the Confrontation Clause, noting that “the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 10-11 , citing People v McPherson, 263 Mich App 124, 133 ; 687 NW2d 370 (2004); Crawford, 540 US at 59 n 9.

2024This Court rejected the defendant’s argument that the testimony violated the Confrontation Clause, noting that “the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 10-11 , citing People v McPherson, 263 Mich App 124, 133 ; 687 NW2d 370 (2004); Crawford, 540 US at 59 n 9.

2016Assuming without deciding that the author’s statements in the report were indeed testimonial because these out-of-court statements “would be available for use at a later trial,” Id. at 52 ; see also Davis v Washington, 547 US 813, 822 ; 126 S Ct 2266 ; 165 L Ed 2d 224 (2006); People v Garland, 286 Mich App 1, 10 ; 777 NW2d 732 (2009), defendant fails to show how this potential Confrontation Clause violation could have affected the outcome of trial.

2016Assuming without deciding that the author’s statements in the report were indeed testimonial because these out-of-court statements “would be available for use at a later trial,” Id. at 52 ; see also Davis v Washington, 547 US 813, 822 ; 126 S Ct 2266 ; 165 L Ed 2d 224 (2006); People v Garland, 286 Mich App 1, 10 ; 777 NW2d 732 (2009), defendant fails to show how this potential Confrontation Clause violation could have affected the outcome of trial.

2017People v Carines, 460 Mich 750, 763-764 ; 597 NW2d 130 (1999); Henry (After Remand), 305 Mich App at 152 .

2016A defendant fails to preserve a Confrontation Clause issue for appellate review if “he did not object on the same basis in the trial court.” People v Henry (After Remand), 305 Mich App 127, 152 ; 854 NW2d 114 (2014).

2018Bean, 457 Mich at 682 .

2016In support of his argument defendant relies upon the holdings of People v Dye, 431 Mich 58 ; 427 NW2d 501 (1988), Bean, 457 Mich 677 , and People v James (After Remand), 192 Mich App 568 ; 481 NW2d 715 (1992), but those cases are not helpful to a resolution of this case because each involved either a confrontation clause issue, or the admission of a preliminary exam transcript under MRE 804.

2022A. Yes, sir. [Emphasis added.] Our Confrontation Clause analysis of this testimony requires two inquiries: was Lavers “(1) . . . 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 ; 802 NW2d 552 (2011).

2022A. Yes, sir. [Emphasis added.] Our Confrontation Clause analysis of this testimony requires two inquiries: was Lavers “(1) . . . 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 ; 802 NW2d 552 (2011).

2017People v Benton, 294 Mich App 191, 202 ; 817 NW2d 599 (2011).

2017People v Benton, 294 Mich App 191, 202 ; 817 NW2d 599 (2011).