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At the onset of this article, the Law Offices of Michael L. Steinberg, and Mike Steinberg personally do not condone violence in any sort. If your relationship has gotten to the point were there it has gravitated toward frequent angry outburst, it is time for the participants to individually and as a partnership, to seek professional intervention.
Having said the above, it is the goal of this article to present the difficult evidentiary issues that come up in these type of cases. I am attaching an Outline of a presentation that I presented to the Criminal Defense Attorneys of Michigan for their Spring 2016 conference.
https://drive.google.com/open?id=0B5HKlk0toVhMTW9MRzdyLUl4SU0
In summarizing the above link, issues that are presented in these type of cases are what is an excited utterance (for the layperson one made spontaneously without time to contemplate them), the right of confrontation and what we can do if the witness does not show.
A basic tenet of these cases is that the person was in a dating or was in a dating situation, lived in the same household or had a child in common. One of the pitfalls that I see lawyers doing is assuming that there was a dating situation. Many times the arresting officer just assumes there was a relationship simply because they were together at the time in question. That is a very broad assumption that must be attacked. Also in cases where the witness chooses not to come to court, how can you establish the relationship.
Witness available
The excited utterance exception is only applicable IF the complaining witness is available. That means he or she is coming to court and is willing to testify. As I have presented in the attached outline above, there are great limitations as to what excitement really entails. Simply because someone reports information in an excited or hysterical matter does not mean it is an excited utterance. I have seen many lawyers gloss right past this very important aspect. If one has time to contemplate or sort out what they are saying, even if presented with anxiety or an elevated voice, it loses the aspect of excitement as defined by the law.
As a practical matter, these statements are very suspect by there nature. Falls under the theme of People say the most damning things simply because they are very tense when reporting. A good lawyer, such as Mike Steinberg, handles that adeptly during jury selection.
Another avenue that the government will try to use medical records to establish the detail of the case. While it may be admissible to say X sustained injury because Y struck X, the Michigan Supreme Court has held that extra detail is not admissible for the purpose of medical treatment. Mike Steinberg always recommends that we agree for the production of medical records when the prosecution seeks their admission or pursuant to case law and court rule pursue them ourselves. Why? They are chock full of ammo for cross examination (1) the statement made to medical professionals may be different than in the field. Had time to think. You can impeach with any evidence. (2) The blessed tox report. Complainant has a BAC of .21. Even though blood drawn for hospital treatment is not overly accurate (they do not want to kill you when they treat you with pain killers) it is still indicia of intoxication. Same argument for drugs on board.
(3) Subpoena the chart notes. Was Complainant combative? Did he/she appear non responsive (4) Medical history prescribed drugs, disorders both physical and mental, etc.
Witnesses unavailable
Sadly many judges get it wrong when a complaining witness does not come to court to testify for a trial. Perhaps grafting their own belief that failure to appear is part of some domestic violence syndrome. Mike Steinberg is of the learned opinion, as demonstrated in the attached goggle drive document, that these courts get it wrong. Time and time again, the 6th Amendment guarantee of confrontation of witnesses and evidence against the accused, has been upheld by the United States Supreme Court in domestic violence cases. Many of cases cited in the attached in the above Google drive document, were domestic violence cases. In assessing the Confrontation, we have to determine whether the proposed evidence is testimonial or non-testimonial. Clearly reporting that Johnny hit me in the head may be non-testimonial because it is information to get the police to come to the house. But if the 911 operator goes into greater detail of the event, it then becomes testimonial information and thus excluded under the Confrontation Clause. Asking for information in a question and answer format is investigatory and thus testimonial
In the material attached above, some courts have wrongfully said that when the accused leaves the residence but is still at large, that there is an Ongoing Emergency, a noted exception to confrontation. A Michigan Supreme Court case was reviewed by the United States Supreme Court in Michigan v Bryant-See google document attached. In Bryant, the Court found that purely private disputes fall under this exception and simply because someone is at large does not invoke it either.
What do you do if somehow the court lets evidence in (the complainant’s statements) and there is no witness. Well, there is a nice rule of evidence called MRE 806. It allows for any evidence that would have been admissible had the declarant testified. So those medical records spoken about earlier, come into play. If the complainant was under the influence, had been combative, had given a different version of the events, etc ALL come in to discredit.
There are statutes that permit the government to bring in other acts of domestic violence. For example, MCL 768.27b allows the same. But it has limitations such as not going back more than 10 years. The Supreme Court in People v Watkins, 491 Mich 450; 818 NW2d 296 (2012), listed several considerations which may lead a court to exclude evidence proposed under MCL 768.27a on grounds that it was inadmissible under MRE 403. The non-exhaustive list, which may be illustrative for analysis of MCL 768.27b evidence, included: “(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximityof the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony.” Id. at 487-88. So one of the significant holdings is in assessing the proposed evidence, the trial court must assess the availability of evidence in the current case before admitting evidence of other cases. Otherwise, undue prejudice would occur.
The other section is MCL 768.27c. That statute permits the use of narrative statements in a domestic violence statement. Several appellate courts have ruled that Section 27c is subject to the Confrontation Clause. That means the statements do not come in unless the declarant is available. Last, there are limitations due to bias and motive of the declarant along with statements being consistent with the evidence acquired by the police.
As you can see, hiring a lawyer, such as Mike Steinberg is essential in these cases. One who knows the intricate evidentiary issues presented and is not willing to just lay down. The implications of these convictions are horrendous. While a first offense, can be diverted under MCL 786.4a, it still can be used for charging purposes for future domestic violence offenses.
Hopefully, this comprehensive guide has been helpful
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