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The Michigan Court of Appeals, in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160818_C327208_38_327208.OPN.PDF">People v. Lopez</a>, No. 327208, found that defendant Lopez’s constitutional rights were violated where the prosecutor threatened defendant’s key witness that deviating from prior testimony would result in prosecution for perjury and life imprisonment. Dennis Hoskins was the key witness in Lopez’s trial for shooting and killing Terry Johnson.  Hoskins agreed to provide evidence tying Lopez to Johnson’s murder.  Nonetheless, a week before trial, Hoskins invoked his Fifth Amendment privilege and stated that he was no longer willing to testify.  The prosecutor then filed a motion to declare Hoskins “unavailable” as a witness and to admit his preliminary examination testimony pursuant to MRE 804(b)(1).  
  
MRE 804(b)(1) excepts from the rule against hearsay a witness’s prior testimony under oath and subject to cross-examination by the opposing party if the witness is unavailable to testify because he has invoked a privilege.  However, a declarant is not unavailable as a witness if his refusal to testify is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.  Lopez contended that Hoskins could not be deemed unavailable because the prosecutor procured Hoskins’ absence by threatening him with a charge of perjury and lifetime imprisonment. 
  
The prosecution alleged that he was merely “advising” Hoskins of the possibility of prosecution.  The Court disagreed.  It found that while a prosecutor may inform a witness that false testimony may result in a perjury charge, here, Hoskins had not yet offered any testimony and whether he planned to recant his preliminary exam statement or testify falsely was unknown.  In addition, because Hoskins was represented by counsel, the prosecutor was under no obligation to warn Hoskins of a risk of committing perjury. Furthermore, based on Hoskins’ and the lawyers’ recapitulations of what occurred after Hoskins indicated his willingness to testify, the trial court determined that Hoskins invoked the Fifth Amendment because “he felt threatened.”  In sum, the Court held that the prosecution’s wrongful actions in “threatening” Hoskins with a perjury prosecution “procured” Hoskins’ unavailability.  As such, Hoskins’ could not be deemed unavailable for purposes of MRE 804(b)(1) and his preliminary examination testimony was improperly admitted as an exception to the hearsay rules.  The Court vacated Lopez’s convictions and remanded for a new trial.

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COA: Prosecution may not inform a defense witness of the possibility of prosecution for perjury

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COA: Prosecution may not inform a defense witness of the possibility of prosecution for perjury

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