7.15​Alternative Procedures to Obtain Testimony of Victim

A.​Victims and Witnesses (Regardless of Age or Disability)

A trial court is given broad authority to employ special procedures to protect any victim or witness while testifying:

“The court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1)    make those procedures effective for determining the truth; (2)    avoid wasting time; and (3)    protect witnesses from harassment or undue embarrassment.” MRE 611(a).

Under MRE 611(a), “‘a trial court, in certain circumstances, may prohibit a defendant who is exercising his [or her] right to self-representation from personally questioning the victim.’” People v Daniels, 311 Mich App 257, 268 (2015) (citation omitted). “MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses-particularly children who have accused the defendant of committing sexual assault[; t]he court must balance the criminal defendant’s right to self-representation with ‘the State’s important interest in protecting child sexual abuse victims from further trauma.’” Daniels, 311 Mich App at 269 (citation omitted).

B.​Pro tections for Child or Developmentally Disabled Witnesses

1.​Scope

MCL 712A.17b provides the court with alternatives to traditional testimony when a witness is an alleged victim of an offense specified in MCL 712A.17b(2) and is either under 16 years of age, or is 16 years of age or older and has a developmental disability.⁶⁸ MCL 712A.17b(1)(e); MCL 712A.17b(2). The procedures in MCL 712A.17b are in addition to other protections or procedures afforded to a witness by law or court rule. MCL 712A.17b(18).⁶⁹ The alternative procedures listed in MCL 712A.17b may be used for a proceeding brought under MCL 712A.2(a)(1) in which the alleged offense, if committed by an adult, would be any of the following felonies:

•​child abuse, MCL 750.136b;

•​sexually abusive activity involving children, MCL 750.145c;

•​first-degree criminal sexual conduct, MCL 750.520b;

•​second-degree criminal sexual conduct, MCL 750.520c;

•​third-degree criminal sexual conduct, MCL 750.520d;

•​fourth-degree criminal sexual conduct, MCL 750.520e; and

•​assault with intent to commit criminal sexual conduct, MCL 750.520g. MCL 712A.17b(2)(a).

2.​Types of Alternative Procedures⁷⁰

a.​Dolls or Mannequins

“If pertinent, the witness shall be permitted the use of dolls or mannequins, including, but not limited to, anatomically correct dolls or mannequins, to assist the witness in testifying on direct and cross-examination.” MCL 712A.17b(3). See also MCR 3.923(E) (allowing the use of anatomical dolls as authorized by MCL 712A.17b).

b.​Support Person

“A witness who is called upon to testify shall be permitted to have a support person sit with, accompany, or be in close proximity to the witness during his or her testimony.” MCL 712A.17b(4). See also MCR 3.923(E) (allowing the use of a support person as authorized by MCL 712A.17b). A notice of intent to use this procedure must be filed with the court and served on all parties.⁷¹ MCR 3.922(F)(1)(a).

However, “a fully abled adult witness may not be accompanied by a . . . support person while testifying” and “[e]ven assuming a trial court had the inherent authority to allow such a procedure, [the Court of Appeals] would not approve its use if the basis for it was simply that doing so would allow the witness to be ‘more comfortable’” or because “this is something she wants.’” People v Shorter, 324 Mich App 529, 540, 542 (2018) (holding that “the trial court erred by granting the prosecution’s motion to allow the complaining witness to testify while accompanied by a support dog and its handler”).

Where there was no evidence of nonverbal communication between the victim and her father, the trial court did not err in allowing the seven-year-old sexual assault victim to sit on her father’s lap while testifying. People v Rockey, 237 Mich App 74, 78 (1999) (permitted under MCL 600.2163a, which is substantially similar to MCL 712A.17b).

c.​Use of Support Dog

“The court must . . . permit a witness who is called upon to testify to have a courtroom support dog^[72] and handler sit with, or be in close proximity to, the witness during his or her testimony.” MCL 600.2163a(4).^[73] “A notice of intent to use a . . . courtroom support dog is only required if the . . . courtroom support dog is to be utilized during trial and is not required for the use of a . . . courtroom support dog during any other courtroom proceeding.” MCL 600.2163a(5). “A notice of intent . . . must be filed with the court and must be served upon all parties to the proceeding,” and “[t]he notice must name the . . . courtroom support dog . . . and give notice to all parties that the witness may request that the named . . . courtroom support dog sit with the witness when the witness is called upon to testify during trial.” Id.

“A court must rule on a motion objecting to the use of a named . . . courtroom support dog before the date when the witness desires to use the . . . courtroom support dog.” MCL 600.2163a(5). “[I]t is within the trial court’s inherent authority to control its courtroom and the proceedings before it to allow a witness to testify while accompanied by a support animal.” People v Johnson (Jordan), 315 Mich App 163, 176, 178 (2016), citing MCL 768.29; MRE 611(a).⁷⁴ A trial court is not required to make findings of good cause or necessity before allowing the use of a support animal. Johnson (Jordan), 315 Mich App at 187. However, “as a practical matter it will be the better practice for a trial court to make some findings regarding [the] decision to use or not use a support animal,” and “the court should consider the facts and circumstances of each individual witness to determine whether the use of the support animal will be useful to the expeditious and effective ascertainment of the truth.” Id. at 187, 189.

The use of a support dog to accompany a young victim of sexual abuse and another young witness (the victim’s brother) when they testified “did not implicate the Confrontation Clause because it did not deny [the] defendant a face-to-face confrontation with his accuser[.]” Johnson (Jordan), 315 Mich App at 187 (noting that “the victim and the victim’s brother testified on the witness stand without obstruction, . . . the presence of the dog did not affect the witnesses’ competency to testify[ or] . . . the oath or affirmation given to the witnesses, the witnesses were still subject to cross-examination, and the trier of fact was still afforded the unfettered opportunity to observe the witnesses’ demeanor”).

Following Johnson, another panel of the Court of Appeals concluded that “Johnson’s holding was tied to the facts presented, i.e., the use of a support animal during a child’s testimony” and that “there is a fundamental difference between allowing a support animal to accompany a child witness, as in Johnson, and allowing the animal to accompany a fully abled adult witness[.]” People v Shorter, 324 Mich App 529, 538 (2018).

d.​Rearranging the Courtroom/Using a Questioner’s Stand or Podium

Before adjudication, a party may make a motion to rearrange the courtroom and/or used a questioner’s stand or podium to protect the welfare of a witness. MCL 712A.17b(14); MCL 712A.17b(15). Id. In determining whether it is necessary to rearrange the courtroom or use a questioner’s stand or podium to protect the welfare of the witness, the court must consider the following:

“(a) The age of the witness.

(b) The nature of the offense or offenses.” MCL 712A.17b(14).

If the court determines on the record that it is necessary to protect the welfare of the witness, the court must order one or both of the following:

“(a) In order to protect the witness from directly viewing the respondent, the courtroom shall be arranged so that the respondent is seated as far from the witness stand as is reasonable and not directly in front of the witness stand. The respondent’s position shall be located so as to allow the respondent to hear and see all witnesses and be able to communicate with his or her attorney.

(b) A questioner’s stand or podium shall be used for all questioning of all witnesses by all parties, and shall be located in front of the witness stand.” MCL 712A.17b(15).

e.​Videotaped Depositions or Closed-Circuit Television

The court must order a videorecorded deposition of a witness to be admitted at the adjudication stage of the proceedings instead of live testimony if, on motion of a party or in the court’s discretion, the court finds on the record that the witness “is or will be psychologically or emotionally unable to testify at a court proceeding even with the benefit of the protections afforded the witness in [MCL 712A.17b](3), [MCL 712A.17b](4), or [MCL 712A.17b](15)[.]” MCL 712A.17b(16). The court must find that the witness would be unable to testify truthfully and understandably in the juvenile’s presence, not that the witness would stand mute when questioned. People v Pesquera, 244 Mich App 305, 311 (2001) (permitted under MCL 600.2163a, which is substantially similar to MCL 712A.17b).

If the court allows the use a videorecorded deposition in place of live testimony, the deposition must comply with the following requirements:

•​the examination and cross-examination of the witness must proceed in the same manner as if the witness testified at the adjudication stage; and

•​the court must order that the witness, during his or her testimony, not be confronted by the respondent, but the respondent must be permitted to hear the testimony of the witness and to consult with his or her attorney. MCL 712A.17b(17).

In order to preserve a juvenile’s Sixth Amendment right to confrontation, the court must hear evidence and make particularized, case-specific findings that the procedure is necessary to protect the welfare of a child witness who seeks to testify. Pesquera, 244 Mich App at 309-310.⁷⁵

      “The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify[.]” Maryland v Craig, 497 US 836, 855-856 (1990) (quotation marks and citations omitted).⁷⁶ 

See also In re Vanidestine, 186 Mich App 205, 209-212 (1990) (applying Craig to juvenile delinquency case).⁷⁷

“In allowing [a forensic analyst’s] two-way, interactive video testimony [at trial] over the defendant’s objection, the trial court violated the defendant’s Confrontation Clause rights.” People v Jemison, 505 Mich 352, 366-367 (2020) (remanded to “determin[e] whether that violation was harmless beyond a reasonable doubt”). Where the witness was “neither the victim nor a child,” and it was undisputed that the “evidence was testimonial,” “[t]he defendant had a right to face-to-face cross-examination; [the witness] was available, and the defendant did not have a prior chance to cross-examine him.” Id. at 365-366. Thus, “[t]he defendant’s state and federal constitutional rights to confrontation were violated by the admission of [the witness’s] two-way, interactive video testimony.” Id. at 366. “[E]xpert witnesses called by the prosecution are witnesses against the defendant,” and “[t]he prosecution must produce” witnesses against the defendant. Id. at 364 (further holding “expense is not a justification for a constitutional shortcut”).

C.​Notice of Intent to Use Alternative Procedure

MCR 3.922(F) sets out the notice requirements for use of an alternative procedure to obtain testimony of a victim:

“(1) Within 21 days after the parties have been given notice of the date of trial, but no later than 7 days before the trial date, the proponent must file with the court, and serve all parties, written notice of the intent to:

(a) use a support person, including the identity of the support person, the relationship to the witness, and the anticipated location of the support person during the hearing.

(b) request special arrangements for a closed courtroom or for restricting the view of the respondent/defendant from the witness or other special arrangements allowed under law and ordered by the court.

(c) use a videotaped deposition as permitted by law.

* * *

(2) Within 7 days after receipt or notice, but no later than 2 days before the trial date, the nonproponent parties must provide written notice to the court of an intent to offer rebuttal testimony or evidence in opposition to the request and must include the identity of the witnesses to be called.

(3) The court may shorten the time periods provided in [MCR 3.922(F)] if good cause is shown.”