In People v Duncan, __ Mich __ (#146295, 7/30/2013) the Michigan Supreme Court held that while hearsay is generally inadmissible, the Michigan Rules of Evidence permit certain prior out-of-court statements to be admitted into evidence when a witness is unavailable. MRE 804(a) enumerates five situations when a witness is unavailable, including when the witness is unable to testify because of a then existing physical or mental illness or infirmity. When a child attempts to testify but, because of her youth, is unable to do so because she lacks the mental ability to overcome her distress, the child has a “then existing . . . mental . . . infirmity” within the meaning of MRE 804(a)(4) and is therefore unavailable as a witness.
The child’s prior preliminary examination testimony thereby may be admissible if it further satisfies the requirements of MRE 804(b)(1) and does not violate the defendants’ rights under the Confrontation Clause.
The child’s prior preliminary examination testimony thereby may be admissible if it further satisfies the requirements of MRE 804(b)(1) and does not violate the defendants’ rights under the Confrontation Clause.
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