Admissibility of investigative subpoena testimony; MRE 801(d)(1)(A)

In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals order (see attached to the court’s order) that ruled the investigative subpoena testimony of two witnesses was properly admitted under MRE 801, and remanded the case to the Court of Appeals for reconsideration of this issue. The court held that the “Court of Appeals erred in its analysis of MRE 801(d)(1)(A) by considering whether the witnesses were unavailable, rather than whether their prior statements were inconsistent. The unavailability of a witness is relevant for admission under MRE 804, not MRE 801.” The court denied leave to appeal in all other respects.