The determination of expert witness fees/attorney fees, and the same as taxable costs.

The prevailing party in a civil suit is generally entitled to have the opposing party pay its costs. MCR 2.625(A)(1). Whether and to what extent a particular expense may be taxed as a cost is purely statutory. MCL 600.2401. See Leahy v Orion Twp, 269 Mich App 527, 530 (2006).

Expert witnesses may be paid a fee in excess of the fee paid to an ordinary witness with the trial court’s permission and that the fee paid to the expert witness may be taxed as part of the taxable costs. MCL 600.2164(1). An expert is not, however, entitled to compensation—as a witness—for every service that the expert may have provided. Mich Citizens for Water Conservation v Nestlé Waters North America, Inc, 269 Mich App 25 (2005).  An expert is entitled to compensation as a witness only for the time that the expert actually spent in court and for the time that the expert spent to prepare for his or her testimony as an expert. Id.; see also State Hwy Comm’r v Rowe, 372 Mich 341 (1964). 

The question whether a person participated in the litigation as an expert witness is a question of law that must be determined from the totality of the circumstances.  A witness can be an expert witness and be entitled to excess compensation even if the expert witness never actually testifies. See Jones v Antrim Circuit Judge, 223 Mich 141 (1923) holding that fees for expert witnesses who attended trial, but who were never called to testify, could be taxed as a cost because the witnesses were “in good faith made to attend” and would have testified as to matters of opinion had they been called.  See also Herrera v Levine, 176 Mich App 350 (1989). Whether the witness was ultimately called to testify or admitted as an expert is not dispositive; an expert may be entitled to compensation for preparation related to his or her testimony as an expert in addition to compensation for his or her time spent actually attending court. State Hwy Comm’r, supra. However, the prevailing party may not tax as a cost those fees paid to the expert for services other than time spent at trial or preparing for trial. Michigan Citizens for Water Conservation, supra.  

An expert witness is one who has “scientific, technical, or other specialized knowledge” that will “assist the trier of fact to understand the evidence or to determine a fact in issue” and who testifies “thereto in the form of an opinion or otherwise.” MRE 702. The key to qualifying for compensation as an expert is that the witness offers or will offer opinion testimony in his or her area of expertise: “The provisions of MCL 600.2164 allowing for the taxation of costs shall not be applicable to witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.” MCL 600.2164(3).  Nothing in MRE 702 or MCL 600.2164, however, precludes an expert witness from offering both fact testimony and expert opinion testimony. See United States v Lopez-Medina, 461 F3d 724, 743 (CA 6, 2006) stating that police officers may testify as both experts and fact witnesses.

Once a witness testifies as an expert by offering opinion testimony, the witness is entitled to seek compensation “in excess of the ordinary witness fees provided by law” without regard to whether the witness also offered testimony on facts. MCL 600.2164(1). Nevertheless, when exercising its discretion to award a fee in excess of the ordinary witness fee, the trial court must consider the nature and complexity of the expert’s opinion testimony in relation to his or her lay testimony when determining whether the witness’ expert fee was reasonable.  When considering the reasonableness of the expert witness’ fee, the trial court should consider the total fee in light of the time actually spent in court and the complexity of the expert’s testimony. The trial court should also have assessed the reasonableness in the light of the typical fee charged by similar experts for a similar period of trial preparation and time spent in court. Finally, the trial court must address whether and to what extent the expert’s pretrial fees were actually and reasonably incurred for preparing to testify as an expert at trial. Michigan Citizens for Water Conservation, supra.

If after examining whether and to what extent the expert’s fee is taxable as a cost under MCL 600.2164, the trial court determines that expert is entitled to his actual costs under MCR 2.403(O)(3), the trial court must also examine the reasonableness of the prevailing party’s attorney fee consistent with Smith v Khouri, 481 Mich 519 (2008). The trial court should provide sufficient information for appellate review of the award; in particular, it should identify the “fee customarily charged in the locality for similar services” and the source for that determination. Smith, supra.  See also Augustine v Allstate Ins Co, 292 Mich App 408 (2011) stating that it was insufficient for the trial court to simply find that the fee was reasonable; it must first determine the fee customarily charged in the locality for similar legal services and then adjust from there. It should also state the number of hours that it believes were reasonably spent on the litigation and should briefly address its view of the remaining factors identified in Smith, supra and how the overall fee should be adjusted considering those factors.

The requirement of a 'lawful' command/request by a police officer for Resisting & Obstructing.

In People v Nyilas, Unpub Per Curiam Opinion, (#311721, 8/13/2013) the Court of Appeals affirmed the defendant’s conviction for interfering with electronic communications, but reversed his conviction for resisting or obstructing a police officer. 

In Nyilas to the extent that police officers requested defendant to answer the phone or come to the door and talk with them, such requests were not “lawful” because defendant had no obligation to do so. “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v Jardines, __ US __; 133 S Ct 1409, 1415; 185 L Ed 2d 495 (2013) quoting Silverman v United States, 365 US 505, 511, 81 S Ct 679 (1961). In fact, The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v United States, 365 US 505, 511; 81 S Ct 679, 683; 5 L Ed 2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. [Payton v New York, 445 US 573, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980).] While an police officer, like any other private citizen, may knock at the door without a warrant and request entry, Jardines, 133 S Ct 1409 at 1415-1416, “[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Kentucky v King, ___ US ___; 131 S Ct 1849, 1862; 179 L Ed 2d 865 (2011). “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” Id. (emphasis added). 

In People v Moreno, 491 Mich 38 (2012), the defendant informed two police officers that he would not allow them to enter his residence without a warrant, and then he attempted to close the front door. Id. at 42. One of the police officers put his shoulder against the door to prevent the defendant from closing the door. Id. at 42-43. The defendant struggled with the police officers, and he was eventually charged with assaulting, resisting, or obstructing a police officer under MCL 750.81d(1). Id. at 43. The issue before the Court was whether MCL 750.81d abrogated “the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.” Id. at 41. After an analysis of the statutory language, the Court concluded that MCL 750.81d did not abrogate “the common law right to resist unlawful arrests or other unlawful invasions of private rights.” Id. at 58. Thus, “the prosecution must establish that the officers’ actions were lawful.” Id. at 52.2

The Court of Appeals thereby concluded that the police, in requesting defendant Nyilas to come to the door (before the officers obtained valid arrest and search warrants) were not making a lawful request.  The trial court thereby abused its discretion in failing to grant defendant’s motion for directed verdict. Defendant was under no legal obligation to leave the home or allow the officers to enter the home absent valid warrants to do so.   

Lifetime electronic monitoring required for all CSC 1 offenses.

In People v Brantley, __ Mich App __ (#298488, 5/17/2012) the Court of Appeals held that MCL 750.520n(1) requires the trial court to impose lifetime electronic monitoring in either of two different circumstances: (1) when any defendant is convicted of CSC-I under MCL 750.520b, and (2) when a defendant who is 17 years old or older is convicted of CSC-II under MCL 750.520c against a victim who is less than 13 years old.

Defendants convicted of CSC-I under MCL 750.520b, regardless of the age of the defendant or the age of the victim, must be ordered to submit to lifetime electronic monitoring. MCL 750.520b(2)(d); MCL 750.520n(1).  The Court of Appeals thereby held that the Legislature intended the modifying phrase “for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age” to apply only to convictions of second-degree criminal sexual conduct (CSC-II) under MCL 750.520c, and not to convictions of CSC-I under MCL 750.520b.

Admissibility of prior testimony by a child now emotionally unable to testify.

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.

Conduct designed to substantially increase the fear and anxiety of a victim.

In People v Hardy, __ Mich __ (#144327, 7/29/2013) the Michigan Supreme Court held, for purposes of the sentencing guidelines, that the plain meaning of the phrase “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” does not require that a defendant’s conduct be “similarly egregious” to “sadism, torture, or excessive brutality” for OV 7 to be scored at 50 points. The sentencing guidelines provide that a trial court can properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of conduct listed in subsection (1)(a). (sadism, torture, excessive brutality, or whether defendants engaged in conduct designed to substantially increase the fear and anxiety a victim suffered during the offense). Although the sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime when scoring OVs 1, 3, 8, 11, and 13, the Sentencing Guidelines otherwise allow a factor that is an element of the crime charged to be considered when computing an offense variable score.

Recognizing, however, that “[a]ll . . . crimes against a person involve the infliction of a certain amount of fear and anxiety”, the relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount. In making this determination, because the “conduct designed” category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue. To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant.

As noted above, evidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.

Prosecution witness rules in criminal cases

Under MCL 767.40a, the prosecution’s burden is “to give initial and continuing notice of all known res gestae witnesses, identify witnesses the prosecutor intends to produce, and provide law enforcement assistance to investigate and produce witnesses the defense requests.” People v Long, 246 Mich App 582, 585 (2001). “‘[T]he purpose of the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res gestae status.’”  People v Gadomski, 232 Mich App 24, 36 (1998), quoting People v Calhoun, 178 Mich App 517, 523 (1989). “Therefore, if the defendant knew of the res gestae witness in any event, the prosecutor’s failure to list the witness would be harmless error.” Calhoun, 178 Mich App at 523.

Defendant argues that the trial court erred by allowing the prosecutor to call as witnesses that were not listed on the information. “A trial court’s decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion.” People v Yost, 278 Mich App 341, 379 (2008). The prosecutor moved the trial court for the late endorsement of the two witnesses after trial began. Because of the late request, the prosecutor could not amend the witness list without leave of the court for good cause shown or by stipulation of the parties. MCL 767.40a(4). The trial court found good cause to permit one witness’ testimony because the prosecutor intended to call him to rebut a defense raised during defense counsel’s opening argument. Both the prosecutor and the trial court were surprised by the defense raised by counsel. A trial court has good cause to permit the late endorsement of a witness to rebut a surprise defense. See People v Kulick, 209 Mich App 258, 265 (1995), remanded for reconsideration on other grounds 449 Mich 851 (1995). Accordingly, the trial court did not abuse its discretion in finding good cause for the late endorsement of Cottrell. Yost, 278 Mich App at 379. The trial court also found good cause to allow the other witness to testify because he was available to both the prosecutor and defendant throughout the case and, therefore, should not have been a surprise to defendant. A trial court does not abuse its discretion in finding good cause to permit a witness to testify if the opposing party is not surprised by the endorsement.  See People v Callon, 256 Mich App 312, 326-327 (2003).  Were we to find error, defendant has not shown that the trial court’s ruling resulted in prejudice. Callon, 256 Mich App at 328. Defendant does not explain how he would have responded if he received earlier notice of the prosecutor’s intent to call these witnesses. Further, defense counsel refused the trial court’s offer of an adjournment to speak with the witnesses and, indeed, stated that she was familiar with what the witnesses would say. In People v Lobaito, 133 Mich App 547, 557 (1984), this Court recognized that, if counsel fails to request time to interview a witness, it tends to negate a claim of prejudice. Defendant has not established prejudice and is not entitled to relief on this ground. Callon, 256 Mich App at 328.

Hearsay statements by the interrogator that may require special attention.

“[W]here the proponent of the evidence offers an interrogator’s out-of-court statements that comment on a person’s credibility for the purpose of providing context to a defendant’s statements [(and, thus, are not offered for the truth of the matter asserted)], the interrogator’s statements are only admissible to the extent that the proponent of the evidence establishes that the interrogator’s statements are relevant to their proffered purpose. See MRE 401.” People v Musser, ___ Mich ___, ___ (2013). Despite being relevant, the statements may still be excluded under MRE 403 if “‘the danger of unfair prejudice to the defendant substantially outweighs the probative value of [the statements.]” Musser, ___ Mich at ___, quoting People v Robinson, 417 Mich 661, 666 (1983). Thus, “a trial court must . . . evaluate the probative value of the out-of-court statements in providing context to a defendant’s statements and the resulting prejudice to a defendant before the interrogator’s out-of-court statements are presented to the jury.” Musser, ___ Mich at ___. In these cases, “courts must be mindful of the problems inherent in presenting the statements to the jury, especially in child-sexual-abuse cases.” Id. at ___. “[I]f an interrogator’s out-of-court statement is determined to be admissible for the purpose of providing context to a defendant’s statements, . . . the court, upon request, ‘shall restrict the evidence to its proper scope’ [pursuant to MRE 105.]” Musser, ___ Mich at ___. To that end, the court may “requir[e] the interrogating officer to testify at trial and paraphrase the statements he or she made that provoked a relevant statement by a defendant . . . [in order] to protect a defendant’s right to a fair trial from the resulting prejudice of allowing the jury to hear the interrogator’s comments verbatim.” Id. at ___. Another option is to redact the statements.