People v. Jemison

• Decision Date: 22 June 2020
• Docket Number: Docket No. 157812,Calendar No. 3
• Citation: 505 Mich. 352,952 N.W.2d 394
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Larome JEMISON, Defendant-Appellant.
• Court: Michigan Supreme Court

505 Mich. 352

952 N.W.2d 394

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Arthur Larome JEMISON, Defendant-Appellant.

Docket No. 157812

Calendar No. 3

Supreme Court of Michigan.

Argued March 5, 2020

Decided June 22, 2020

Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Amy M. Somers, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Kristin E. LaVoy) for defendant.

Richard D. Friedman in support of defendant, Amicus Curiae.

Michigan Innocence Clinic (by David A. Moran, Imran J. Syed, and Megan Richardson ) for Julie Baumer, Amici Curiae

BEFORE THE ENTIRE BENCH (except Viviano, J.)

McCormack, C.J.

The Sixth Amendment of the United States Constitution and Article I, § 20 of the Michigan Constitution guarantee criminal defendants the right to confront the witnesses against them. In this case, we consider whether a forensic analyst's two-way, interactive video testimony violated the defendant's Confrontation Clause rights.

The Court of Appeals held that the video testimony satisfied the constitutional requirements of face-to-face confrontation. But the Court relied only on precedent that predated the United States Supreme Court's decision in Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which transformed the Court's approach to confrontation rights. See People v. Pesquera , 244 Mich. App. 305, 309, 625 N.W.2d 407 (2001), citing Maryland v. Craig , 497 U.S. 836, 845-846, 851, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (holding that the Confrontation Clause did not categorically prohibit child witnesses from testifying outside the defendant's physical presence by one-way closed circuit television where reliability was otherwise supported).

For almost 25 years before Crawford , reliability was the touchstone of the Court's Confrontation Clause doctrine. In Ohio v. Roberts , 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the Court held that the Confrontation Clause is satisfied even if a hearsay declarant is not present for cross-examination at trial as long as the statement bears adequate "indicia of reliability." Citing Roberts , the Court held in Craig that a defendant's right to confront a child witness may be satisfied absent a face-to-face encounter when necessary to advance an important public policy and when the testimony is reliable enough. Craig , 497 U.S. at 850, 110 S.Ct. 3157, citing Roberts , 448 U.S. at 64, 100 S.Ct. 2531. But in Crawford , the Court overruled Roberts and shifted from a reliability focus to a bright-line rule requiring a face-to-face encounter for testimonial evidence. Crawford , 541 U.S. at 61-63, 68-69, 124 S.Ct. 1354.

Crawford did not specifically overrule Craig , but it took out its legs. To reconcile Craig and Crawford , we read Craig ’s holding according to its narrow facts.¹

Crawford requires face-to-face cross-examination for testimonial evidence unless a witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford , 541 U.S. at 68, 124 S.Ct. 1354. Here, admitting the prosecution witness's video testimony over the defendant's objection violated the defendant's state and federal constitutional rights to confrontation. We reverse the judgment of the Court of Appeals and remand the case to that Court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In September 1996, the victim was raped and robbed while waiting in a parked car for an acquaintance. Later that day, she filed a police report and went to a hospital for a forensic examination and the collection of evidence known as a "rape kit." She did not know her assailant's identity.

The rape kit was not analyzed until 2015.² The samples were sent to Sorensen Laboratory in Utah for serological processing and further DNA testing. Sorensen analyst Derek Cutler concluded that the vaginal swab from the rape kit contained a mixture of DNA profiles from at least two contributors, at least one of which was male and suitable for comparison. Sorenson forwarded the report to the Michigan State Police (MSP) Forensic Science Division, which analyzed and compared the sample to DNA data stored in the Combined DNA Index System (CODIS) database. The MSP identified an association between the defendant's DNA and the male donor identified by the Sorensen report. The defendant was charged with two counts of first-degree criminal sexual conduct, MCL 750.520b.

Over the defendant's objection, the circuit court granted the prosecution's pretrial motion to allow Cutler to testify by video. Before a different judge who presided over the trial, the defendant renewed his objection to Cutler's video testimony. But the trial court allowed it.

Cutler testified that it is "normal within the scientific community to have multiple people do work on these [rape] kits" and acknowledged that he "did not actually see the rape kit." Instead, he "[went] off the notes that [we]re done by other serologists and technicians who are competent in their testing."³ He analyzed those other serologists’ notes and concluded that there were at least two contributors to the DNA on the vaginal swab—an unknown male donor and a second donor whose DNA was present at such a low level that it was not suitable for comparison. Catherine Maggert, the MSP analyst who used Cutler's report for her analysis, testified that when she compared that report's unknown male donor to the CODIS database, there was an association linking the defendant to the unknown male donor.

The jury convicted the defendant of one count of first-degree criminal sexual conduct and acquitted him of the other count. He was sentenced to serve 22 to 40 years in prison. He appealed, in part arguing that he was denied his right of confrontation when the trial court allowed Cutler's video testimony, rather than requiring his presence in the courtroom. The Court of Appeals affirmed. People v. Jemison , unpublished per curiam opinion of the Court of Appeals, issued April 12, 2018 (Docket No. 334024), 2018 WL 1783089. The panel relied on Pesquera , an opinion predating Crawford , in which the Court of Appeals held that a defendant's confrontation rights were adequately protected when a trial court allowed videotaped deposition testimony from child witnesses accusing the defendant of criminal sexual conduct. Pesquera , 244 Mich. App. at 309, 625 N.W.2d 407. Pesquera relied on Craig for this holding. Citing Pesquera , the panel stated that the Confrontation Clause requires the following:

(1) a face-to-face-meeting of the defendant and the witnesses against him at trial; (2) the witnesses should be competent to testify and their testimony is to be given under oath or affirmation, thereby impressing upon them the seriousness of the matter; (3) the witnesses are subject to cross-examination; and (4) the trier of fact is afforded the opportunity to observe the witnesses’ demeanor. [ Jemison , unpub. op. at 5, citing Pesquera , 244 Mich. App. at 309, 625 N.W.2d 407, which in turn cited Craig , 497 U.S. at 846, 851, 110 S.Ct. 3157.]

Working within this analytic framework, the panel noted that although the defendant "was not able to confront the witness in the traditional sense" when the expert testified using two-way, interactive video, the defendant was able to "observe the expert's responses and reactions in real time and [the defendant] took advantage of the opportunity to do so through cross-examination." Jemison , unpub. op. at 6. The court further noted that "[t]he jury was able to observe the expert as he responded." Id. The panel concluded that "[b]ecause the testimony met three of the Confrontation Clause criteria, and the trial court appropriately dispensed with the face-to-face requirement, defendant's right to confrontation was not violated." Id.

The panel also held that the trial court abused its discretion by allowing the witness's two-way, interactive video testimony over the defendant's objection because MCR 6.006(C) requires the parties to consent to the use of videoconferencing technology for trial testimony, but it found that error harmless. Id. at 5, 7.

The defendant filed an application for leave to appeal in this Court. We granted it and asked the parties to address "whether permitting an expert witness to testify by two-way interactive video, over the defendant's objection, denied the defendant his constitutional right to confront witnesses and, if so, whether this error was harmless." People v. Jemison , 503 Mich. 936, 936-937, 921 N.W.2d 335 (2019).⁴

II. STANDARD OF REVIEW

Whether a defendant was denied his right to confront a witness is a constitutional question that we review de novo. People v. Bruner , 501 Mich. 220, 226, 912 N.W.2d 514 (2018). When we review a question de novo, we review the legal issue independently without deference to the lower court. Id.

III. ANALYSIS

The Sixth Amendment of the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." See also Const. 1963, art. 1, § 20. Before Crawford , the United States Supreme Court's Confrontation Clause jurisprudence was built around the reliability of the challenged evidence. In Roberts , the Court held that the Confrontation Clause was not a barrier for admission if the challenged testimony bore adequate "indicia of reliability." Roberts , 448 U.S. at 66, 100 S.Ct. 2531. Crawford overruled Roberts and transformed the Court's approach to the Confrontation Clause from a case-by-case reliability-balancing test to a categorical rule for protected evidence.

Craig was decided before Crawford and therefore under the Roberts reliability framework. In Craig , the Court held that a defendant's right to confront a child witness may be satisfied by one-way video testimony instead of a physical, face-to-face confrontation, if the testimony is reliable....