Hearsay and the Right to Confront Your Accuser in Michigan Domestic Violence Cases

Two separate rules decide whether a jury may hear what someone said outside the courtroom. The hearsay rule is a rule of evidence: an out-of-court statement offered to prove the truth of what it asserts is not admissible unless an exception applies.^[1] The Confrontation Clause is a constitutional right: a testimonial statement of a witness who does not testify may be used against a criminal defendant only if the witness is unavailable and the defendant had a prior opportunity for cross-examination.^[3]

A statement has to pass both. Out-of-court statements are not exempt from confrontation merely because they come within a hearsay exception.^[2] This matters in domestic violence cases more than most, because the complaining witness is sometimes unavailable to testify and the prosecution may then turn to earlier statements.^[7]

Step one: is the statement hearsay, and does an exception apply?

A "statement" is a person's oral assertion, written assertion, or nonverbal conduct intended as an assertion.^[8] It is hearsay if the person did not make it while testifying at the current trial or hearing and a party offers it to prove the truth of the matter asserted.^[1]

Some statements are outside the definition. A statement offered against a party that the party made is not hearsay, so a defendant's own words, including threats, can be repeated by the person who heard them.^[9][10] A statement offered for a reason other than its truth, such as to show why police responded, is not barred by the hearsay rule either.^[11]

For statements that are hearsay, these are the routes covered in this guide:

Route	What it covers	Guide
Present sense impression	A statement describing an event, made while or immediately after perceiving it.[12]	911 calls as evidence
Excited utterance	A statement relating to a startling event, made while under the stress of excitement that it caused.[13]	911 calls as evidence
Statement to a law enforcement officer under MCL 768.27c	A statement describing the infliction or threat of physical injury on the person making it, if five statutory conditions are met.[14][15]	Statements to police under MCL 768.27c
Statement for medical treatment	A statement made for, and reasonably necessary to, medical treatment or diagnosis.[16]	Photographs and medical records
Recorded recollection	A record a witness made or adopted when the matter was fresh, used when the witness can no longer recall well enough to testify.[17]	Recanting a statement
Former testimony	Testimony from an earlier hearing, if the witness is unavailable and was subject to cross-examination.[18]	The preliminary examination
Forfeiture by wrongdoing	A statement offered against a party that wrongfully caused or encouraged the witness's unavailability, intending that result.[5]	This page, below

Police reports are a common point of confusion. The public-records exception does not cover, in a criminal case, a matter observed by law-enforcement personnel, so the report itself is generally not the vehicle for getting an officer's observations before the jury.^[19] And a statement recorded inside another record must fit an exception of its own.^[20]

Step two: is the statement testimonial?

The Confrontation Clause analysis starts with Crawford v Washington, decided in 2004: where testimonial evidence is at issue, the Sixth Amendment demands unavailability and a prior opportunity for cross-examination.^[3]

The Michigan Supreme Court's definition, restated in People v Washington in 2024, is that a statement is testimonial if it was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.^[21]

The emergency line: Davis and Hammon

For statements made during police questioning, the U.S. Supreme Court set out the test in Davis v Washington in 2006. Statements are nontestimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and the primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.^[4]

The Court decided two domestic violence cases together, and they came out differently:^[22][23]

• In Davis, statements to a 911 operator were nontestimonial because they described events as they were actually happening in an ongoing emergency.^[22]
• In Hammon v Indiana, statements to police at the scene were testimonial because they were made during an investigation of past criminal conduct and there was no ongoing emergency; the officer had heard no arguments or crashing and saw no one throw or break anything.^[23]

How Michigan courts have applied it

In People v Walker, the complainant did not appear for trial. The Court of Appeals held that the content of her 911 call was nontestimonial, because the operator's questions were directed at resolving the present emergency. Her statement written down by a neighbor and her statements to police at the scene were more akin to the statements in Hammon.^[24]

An emergency can extend beyond the person who was hurt. In Michigan v Bryant, the Supreme Court found an ongoing emergency where an armed shooter, whose motive and location were unknown, had mortally wounded the victim within a few blocks and a few minutes of the location where police found the victim. The Court declined to decide precisely when an emergency ends.^[25] In Davis the Court said that a conversation which begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements once that purpose has been achieved, and that trial courts should redact or exclude the portions that have become testimonial.^[26]

Step three: if it is testimonial, the two conditions

A testimonial statement of a witness who does not testify can still be used if the witness is unavailable and the defendant had a prior opportunity to cross-examine.^[3]

Unavailable has a defined meaning. A witness is unavailable if, among other things, the witness refuses to testify about the subject matter despite a court order, testifies to not remembering the subject matter, or is absent and the party offering the statement could not procure attendance. For a witness who is absent, the party offering the statement in a criminal case must also show due diligence.^[27] In People v Adams, a complainant who abruptly left the courthouse before testifying, after threats by people connected with the defendant, was held unavailable.^[28]

Prior opportunity to cross-examine most often means the preliminary examination in a felony case. Former testimony is admissible at trial under both the evidence rules and the Confrontation Clause as long as the witness is unavailable for trial and was subject to cross-examination during the prior testimony.^[18] The rules of evidence apply at a preliminary examination, and both sides may cross-examine witnesses there.^[29] The preliminary examination is part of the felony process: the district court handles felonies through the preliminary examination and misdemeanors from start to finish.^[30] Where no earlier hearing with cross-examination took place, this route is not available.

When the witness does testify at trial and can be cross-examined, the Confrontation Clause places no constraints on the use of the witness's earlier testimonial statements.^[31] The live questions then are the hearsay rules and how earlier statements may be used against the witness's testimony. An unsworn earlier statement that conflicts with the testimony is generally usable only to judge credibility, while one given under penalty of perjury at a hearing may be used as proof of the facts.^[32][33]

Forfeiture by wrongdoing

The confrontation right can be lost through the defendant's own conduct. The U.S. Supreme Court acknowledged in Davis that domestic violence is "notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial," and said that constitutional guarantees still cannot be set aside for that reason.^[34] The answer the law gives is forfeiture.

Michigan's rule allows a statement to be offered against a party that wrongfully caused, or encouraged, the witness's unavailability and did so intending that result.^[5] Under People v Burns, the prosecution must show by a preponderance of the evidence, meaning more likely than not, that:^[35]

1. the defendant engaged in or encouraged wrongdoing;^[35]
2. the wrongdoing was intended to procure the witness's unavailability;^[35]
3. the wrongdoing did procure the unavailability.^[35]

Intent is the element that limits the doctrine. Under Giles v California, forfeiture applies only when the witness's unavailability results from wrongful conduct designed by the defendant for the purpose of preventing the witness's testimony.^[36] It is not enough that the defendant's conduct happened to leave the witness unavailable. The Giles Court added that earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to that inquiry.^[37]

When hearsay is properly admitted because the defendant's wrongdoing procured the witness's unavailability, the confrontation right is waived as well.^[6]

Conduct toward a witness can change what evidence comes in. If a party wrongfully causes or encourages a witness's unavailability, intending that result, the witness's earlier statements may be offered against that party, and a defendant's threat against a witness is generally admissible in its own right as conduct that can demonstrate consciousness of guilt.^[5][10] See Witness tampering and pressuring a victim not to testify and Violating a no-contact order.

What people get wrong

"If the accuser does not show up, the case is over." Not necessarily. Nontestimonial statements such as an emergency 911 call are not barred by the Confrontation Clause, and former testimony can be used if its conditions are met.^[22][18] See When the victim does not come to court.

"A hearsay exception is all the prosecutor needs." Evidence that falls within a hearsay exception may still be inadmissible if it violates the Confrontation Clause.^[38]

"A witness can avoid the whole thing by refusing to testify." A witness who refuses to testify despite a court order is treated as unavailable, which opens the door to former testimony.^[39] A subpoenaed witness who does not come to court can be held in contempt.^[40] See Can a victim refuse to testify?

"The right to confront means the right to question the accuser before trial." Depositions and other civil discovery proceedings may not be taken for purposes of discovery in criminal cases.^[41] Cross-examination happens at the preliminary examination in a felony case, or at trial.