Dismissal due to an essential prosecution witness’s failure to appear; Motion for adjournment; People v Jackson; MCR 2.503(C)(2)

The court held that when the prosecution seeks an adjournment on the scheduled trial date due to an essential witness’s absence and does not offer “any evidence of diligence, the trial court does not abuse its discretion in denying that request—particularly when the request follows a series of prior adjournments.” Thus, it affirmed the trial court’s dismissal of the case without prejudice. There had been a series of prior adjournments for various reasons. The witness in question here was a police witness, N. The court noted that in Jackson, the Michigan Supreme “Court found that where a witness has been subpoenaed, has a record of responsiveness, and has given no indication of an absence, the trial court abuses its discretion in denying a continuance because there is little more a prosecutor could do.” The court determined that those circumstances were not present here. The prosecution identified N “as a key witness in its case, but did not argue to the trial court that [N] was served with a subpoena. Even if the trial court should have known that [N] was subpoenaed, the prosecution did not argue that a subpoena alone made up diligent efforts to produce the witness and warranted an adjournment. The prosecution did not offer any evidence of due diligence, stating only that a surgery was good cause. But the prosecution’s sole rationale—that the witness was scheduled for surgery—undermines any claim that it acted with diligence. The cause of [N’s] absence seemingly would have been known well in advance of the day of a surgical procedure. Further, the context of the request is important here: the prosecution’s request for an adjournment came after already lengthy pretrial delays, including time it had previously requested to locate witnesses—delays that afforded ample opportunity to exercise diligence with all witnesses.” The court concluded the trial court did not abuse its discretion in denying the adjournment request.