Admission of the prosecution witness’s preliminary exam testimony; Unavailability of a witness; MRE 804(a)(1) & (b)(1); People v. Meredith; Principle that the admission of former testimony tested by cross-examination generally comports with the requirements of the Confrontation Clause; People v. Garland; MRE 804(a); Prosecutorial intimidation of witnesses; People v. Pena; People v. McIntosh; Webb v. Texas; State v. Feaster (NJ); MRE 804(a)(5); Waknin v. Chamberlain; Paris Meadows, LLC v. City of Kentwood; “Unavailability” defined; Whether the prosecutor “procured” the witness’s unavailability by virtue of the threats; “Procurement” defined

The court held that because the prosecution’s threat procured its witness-H’s unavailability, the trial court erred by admitting his recorded testimony. Thus, it vacated defendant-Lopez’s convictions of first-degree premediated murder, conspiracy, and several weapons-related charges and sentences, and remanded for a new trial at the prosecution’s discretion. Minutes after H agreed to testify at Lopez’s trial, the prosecutor threatened him that deviation from his preliminary exam testimony would result in prosecution for perjury and life imprisonment on conviction. He invoked his Fifth Amendment privilege, and his preliminary exam testimony was presented to the jury. Lopez contended that H could not be deemed unavailable because the prosecutor procured his absence by threatening him. He presented two closely interrelated arguments: that the prosecutor behaved wrongly in “threatening” H with a perjury prosecution, and that the prosecutor “procured” H’s unavailability by virtue of the threats. Lopez contended that as a result, the prosecutor was precluded from relying on MRE 804(1) to support the introduction of H’s former testimony. The Supreme Court has forcefully condemned prosecutorial intimidation of witnesses (Pena) and so has the court (McIntosh). “No principled basis exists for distinguishing between the intimidation of defense witnesses and the silencing of prosecution witnesses.” The prosecutor lacked any reasonable basis to suspect that H would lie on the witness stand. The prosecutor himself did not hear H say, “I’ve got you covered, bro;” rather the prosecutor quoted some unknown person who allegedly heard the statement. This hearsay did not provide a sufficient basis for suspecting that perjury was in the offing, or for issuing a perjury warning. The definition of “unavailability” in MRE 804(5) precludes a court from finding a witness unavailable if the witness’s absence is “due to” either “the procurement” or the “wrongdoing” of the proponent of the testimony. The court’s decision rested on the trial court’s finding that the perjury warning issued by the prosecutor procured H’s unavailability. The trial court recognized that H refused to testify due to the prosecutor’s threat, but failed to connect its finding with the rule’s command that “procurement” of a witness’s absence nullifies the witness’s unavailability. Because the prosecutor improperly silenced H, the trial court was required to exclude H’s preliminary exam testimony in the first instance, or to strike it from the record thereafter. The trial court “violated Lopez’s fundamental right to a fair trial, abusing its evidentiary discretion. This error was far from harmless.” Aside from H’s testimony, the evidence against Lopez was thin at best.