Michigan Compiled Laws
Mich. Comp. Laws § 768.26 (2026)
Evidence; use of former testimony; deposition for defendant.
✓ current as of July 2026
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THE CODE OF CRIMINAL PROCEDURE
Act 175 of 1927
768.26 Evidence; use of former testimony; deposition for defendant.
Sec. 26.
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 can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.
History: 1927, Act 175, Eff. Sept. 5, 1927 ;-- CL 1929, 17319 ;-- CL 1948, 768.26
Notes of Decisions
Cited in 73
cases (3 in the last 5 years), 1950–2026 · leading case: People v. Dye, 427 N.W.2d 501 (Mich. 1988).
People v. Dye, 427 N.W.2d 501 (Mich. 1988). “The prosecution sought to introduce transcripts of their prior testimony to be read into evidence under MCL 768.26; MSA 28.1049 and MRE 804(b)(1).”
People of Michigan v. Floyd Ray Pennington, 917 N.W.2d 720 (Mich. Ct. App. 2018). “The Court noted that MCL 768.26 bars the admission of preliminary examination testimony unless the witness cannot be produced at trial or has become mentally incapacitated since the preliminary examination.”
People v. Garcia, 247 N.W.2d 547 (Mich. 1976). “In Ramsey , this Court considered MCLA 768.26; MSA 28.1049, and held that: "[A]s an absolute rule it is reversible error for the trial court sitting without a jury to refer to the transcript of testimony taken at the preliminary examination except under the exceptions provided…”
People v. Bean, 580 N.W.2d 390 (Mich. 1998). “§ 768.26; M.S.A. § 28.1049.] The constitutional principle identified in Dye is also reflected in the Michigan Rules of Evidence.”
People v. Whalen, 342 N.W.2d 917 (Mich. Ct. App. 1983). “Such preliminary examination testimony is clearly admissible pursuant to either MCL 768.26; MSA 28.1049, or MRE 804(a)(1), 804(b)(1).”
People v. Starr, 280 N.W.2d 519 (Mich. Ct. App. 1979). “She stated that "he is out-of-town, his whereabouts are unknown" and that she "didn't know * * * when he would be coming back".”
People v. Meredith, 586 N.W.2d 538 (Mich. 1998). “[MCL 768.26; MSA 28.1049.] [10] US Const, Am VI; Const 1963, art 1, § 20.”
People v. Missouri, 299 N.W.2d 346 (Mich. Ct. App. 1980). “Admission of such evidence is governed generally by People v Martin #2, 21 Mich App 667, 671 ; 176 NW2d 470 (1970), lv den 384 Mich 820 (1971): "Under the appropriate circumstances, Michigan criminal procedure permits the introduction of prior recorded testimony (MCLA § 768.26…”
People v. Pullins, 378 N.W.2d 502 (Mich. Ct. App. 1985). “MCL 768.26; MSA 28.1049; People v Starr, 89 Mich App 342, 345 ; 280 NW2d 519 (1979).”
People v. Castaneda, 265 N.W.2d 367 (Mich. Ct. App. 1978). “MCLA 768.26; MSA 28.1049 clearly permits testimony of a witness at a preliminary examination to be read at the trial.”
People v. Pickett, 63 N.W.2d 681 (Mich. 1954). “In taking this position the prosecutor relied upon the provisions of CL 1948, §768.26 (Stat Ann §28.1049), which reads: “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…”
People v. Havey, 160 N.W.2d 629 (Mich. Ct. App. 1968). “Was the testimony of Curtis Koontz, taken upon preliminary examination, properly admitted into evidence under CL 1948, § 768.26 (Stat Ann 1954 Rev §28.1049), where the witness was not available by reason of death? The trial court allowed the prosecution to put in evidence…”
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