Michigan Supreme Court Holds Improper Hearsay Evidence, Ineffective Assistance of Counsel Require New Trial
On July 11th, 2014, the Michigan Supreme Court held in a criminal case that the trial court abused its discretion by improperly admitting in evidence during trial statements made by the alleged child victim during a forensic interview that did not comply with the tender years exception to the hearsay rule under MRE 803A. The Court also held defense counsel's assistance during trial was ineffective because defense counsel failed to object to inadmissible vouching testimony.
In People v Douglas, Docket No. 145646, the Michigan Supreme Court addressed an appeal that centered around whether the trial court committed legal error when it did not admit the alleged victim's first corroborative statements about abuse to her mother, but rather admitted the alleged victim's subsequent corroborative statements about abuse from a forensic interview. The Court also addressed defense counsel's trial performance.
From the opinion's syllabus:
Jeffery Alan Douglas was convicted of first-degree criminal sexual conduct (victim under the age of 13) and second-degree criminal sexual conduct (victim under the age of 13) following a jury trial in Lenawee Circuit Court, Margaret M. S. Noe, J. The charges arose from statements by his daughter, KD, that defendant had made her touch his penis on one occasion and perform fellatio on him on a separate occasion. Defendant appealed, challenging the admission of certain testimony and claiming ineffective assistance of counsel. The Court of Appeals, DONOFRIO, P.J., and STEPHENS, J. (RONAYNE KRAUSE, J., concurring), held that defendant was denied the effective assistance of counsel during both the pretrial and trial proceedings and that the cumulative effect of the trial errors denied him a fair trial. The Court of Appeals vacated defendant’s convictions and sentences and remanded the case to the trial court for reinstatement of a plea offer made by the prosecution before trial. The Court of Appeals ordered that if defendant refused to accept the plea offer, he was entitled to a new trial. 296 Mich App 186 (2012). The Supreme Court granted the prosecution’s application for leave to appeal. 493 Mich 876 (2012).
In an opinion by Justice MCCORMACK, joined by Chief Justice YOUNG and Justices KELLY and ZAHRA, the Supreme Court held:
A new trial was warranted in light of errors by both the trial court and defense counsel at trial, but the Court of Appeals erred by concluding that the prosecution’s prior plea offer had to be reinstated.
1. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible except as provided by the Michigan Rules of Evidence. The rules provide several categorical exceptions to the general bar on the admission of hearsay. Under MRE 803A, a statement describing an incident that included a sexual act performed with or on the declarant by the defendant is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding if certain criteria are met. However, if the declarant made more than one corroborative statement about the incident, only the first is admissible under MRE 803A. During the trial, defendant objected to the admission of statements made by KD during a forensic interview. The statements came into evidence through a video recording of that interview and the testimony of Jennifer Wheeler, the person who conducted the interview. KD’s disclosure of the alleged fellatio during the forensic interview was not her first corroborative statement regarding that incident because KD had already disclosed that incident to her mother. Accordingly, MRE 803A did not permit the admission of KD’s disclosure of the alleged fellatio during the forensic interview. MRE 803(24) permits the admission of a hearsay statement not covered by any other exception if the statement demonstrates circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, is relevant to a material fact, is the most probative evidence of that fact reasonably available, and serves the interests of justice by its admission. KD’s statement to Wheeler during the forensic interview was not the most probative evidence of the alleged fellatio reasonably available. Rather, the best evidence of KD’s out-of- court disclosure of the alleged fellatio was the statement made to her mother before the forensic interview. To conclude otherwise would contravene the express preference in MRE 803A for first corroborative statements. In addition, the disclosure during the forensic interview lacked alternative indicia of trustworthiness. The trial court, therefore, abused its discretion by admitting KD’s statements made during the forensic interview regarding the alleged fellatio. In a trial in which the evidence essentially presents a one-on-one credibility contest between the victim and the defendant, hearsay evidence may tip the scales against the defendant and result in harmful error. This might be even more likely when the hearsay statement was made by a young child. This case involved a pure credibility contest, and Wheeler’s testimony and the video recording of the forensic interview were not harmlessly cumulative. Instead, this hearsay evidence added clarity, detail, and legitimacy to KD’s in-court testimony and more probably than not tipped the scales against defendant such that the reliability of the verdict against him was undermined and a new trial was warranted.
2. It is improper for a witness to comment or provide an opinion on the credibility of another person while testifying at trial. Several witnesses in this case, including Wheeler, violated this well-established principle, but defense counsel failed to object. To be constitutionally effective, counsel’s performance must meet an objective standard of reasonableness. There was no sound strategy in counsel’s failure to object to the vouching testimony. Given the centrality of KD’s credibility to the prosecution’s case, the lack of evidence beyond her allegations, and the nature of the testimony offered by the witnesses in question, it is reasonably probable that but for the deficiencies in counsel’s performance, the outcome of the trial would have been different. Defendant, therefore, was also entitled to a new trial on the basis of counsel’s ineffective assistance at trial . . . .