The missing witness instruction.

In People v Mathis, Unpub Per Curiam (#305687, 3/14/2013) the Court of Appeals held that the trial court abused its discretion by denying the defendant’s request to read the missing witness jury instruction, CJI2d 5.12, and that the prosecutor did not exercise due diligence in its attempts to locate an endorsed res gestae witness.  Defendant's conviction was reversed and a new trial ordered.

To establish that it exercised “due diligence,” the prosecution is required to prove that it attempted to do everything reasonable in order to obtain an endorsed witness’s presence at trial. People v Eccles, 260 Mich App 379, 389 (2004); see also People v Bean, 457 Mich 677, 684 (1998).

A res gestae witness is someone who has “witness[ed] some event in the continuum of the criminal transaction and [whose] testimony would . . . have aided in developing a full disclosure of the facts at trial.” People v Long, 246 Mich App 582, 585 (2001).  A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at trial. Eccles, 260 Mich App at 388. In fact, the prosecution is required to produce a listed witness at trial even if the prosecution was not actually required to endorse the witness in the first instance. See People v Wolford, 189 Mich App 478, 483-484 (1991).  A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence.” Eccles, 260 Mich App at 388. “Due diligence” is the attempt to do everything reasonable to obtain the presence of a witness, not everything possible. Id. at 391; see also People v Cummings, 171 Mich App 577, 585 (1988). If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness’s testimony would have been unfavorable to the prosecution’s case. Eccles, 260 Mich App at 388; see also CJI2d 5.12. A prosecutor’s efforts to secure a witness must be reasonable based on “the facts and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it.” Bean, 457 Mich at 684.