Interlocutory appeal; Motion in limine; Former testimony of unavailable witnesses; MRE 804(b)(1); “Unavailable” witness; MRE 804(a); Opportunity & similar motive to develop testimony; People v Farquharson; Ineffective assistance of counsel; People v Ginther; Failure to obtain expert assistance; People v Ackley; Expert-witness disclosures; MCR 6.201(A)(3)

In an issue of first impression, the court held that the trial court did not abuse its discretion by denying defendant’s motion to admit two experts’ Ginther-hearing testimony at his new trial under MRE 804(b)(1). He was convicted of felony murder and first-degree child abuse, but the trial court granted him a new trial after a Ginther hearing where two forensic-pathology experts supported the defense theory that the child died from “the cumulative effect of multiple earlier injuries.” Before retrial, defendant moved to admit the experts’ prior testimony, arguing one expert had died and the other was unavailable. The trial court denied the motion, finding the prosecution lacked “an opportunity and similar motive” to develop the testimony at the Ginther hearing. On appeal, the court did “not foreclose the possibility” that Ginther-hearing testimony may be admissible at a later trial, but emphasized that admissibility under MRE 804(b)(1) is “a fact-specific inquiry.” It held that the similar-motive requirement was not met here for three reasons. First, the trial court in the Ginther hearing restricted case-specific expert testimony, making the hearing’s scope “substantially more limited than what the scope of expert testimony would be at trial.” Second, the prosecution lacked the expert disclosures it would have received for trial, and “effective cross-examination of an expert witness requires advance preparation.” Third, the excluded testimony was expert testimony, not lay testimony, and an expert’s opinion “ought to be subject to replication by some other qualified expert.” Because the prosecution did not have a similar motive to develop the former testimony through cross-examination, the court affirmed.