People of Michigan v. Erica Lynne Kosinski, 332560

Background

Defendant Erica Kosinski and complainant Kevin Clark, former partners, share a child and were in an active custody dispute when Clark discovered multiple hidden recording/GPS devices in the child’s clothing during parenting time.
One device (a voice-activated audio recorder) yielded ~80 short audio files dated to a visit when Clark had the child; the officer could not clearly identify voices or content.
At a family-court custody hearing, Kosinski admitted she had directed a tailor to place a recorder in the child’s jacket; that transcript was later given to police and used to charge her with eavesdropping (MCL 750.539c).
At the criminal trial the custody hearing testimony was admitted as substantive evidence; Kosinski testified she had put a different recorder on the child and claimed she acted out of fear the child was being abused (duress/necessity theory).
The trial court refused a duress jury instruction; the jury convicted Kosinski of eavesdropping and she was sentenced to one year probation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence to convict of eavesdropping	Prosecution: circumstantial evidence (hidden devices, defendant’s prior admission, audio files) permits inference defendant willfully recorded private conversations without consent	Kosinski: recordings didn’t show discernible private conversation and device attribution was inconsistent	Held: Evidence sufficient; jury could infer device recorded private conversations and defendant placed device
Refusal to give duress instruction	Prosecution: duress not supported by evidence because concealing a recorder could not avert present, imminent harm	Kosinski: she feared child abuse and placed device to prevent harm; entitled to duress instruction	Held: No error—elements of duress not met (act did not avoid present, imminent harm), so instruction properly denied
Alleged perjured testimony and prosecutor misconduct	Kosinski: Clark falsely testified about his plea in child-protective proceedings and prosecutor emphasized it, affecting fairness	Prosecution: Clark’s testimony was his belief; prosecutor’s argument was a reasonable inference from evidence	Held: No reversible error—no showing prosecution knowingly used perjury or reasonable likelihood the statements affected verdict
Admission of prior custody testimony (Fifth Amendment claim)	Kosinski: her custody hearing testimony was incriminating and should have been excluded because she was not advised of Fifth Amendment rights	Prosecution: testimony was voluntary and Kosinski did not invoke privilege; prior testimony admissible as party admission	Held: No error—the Fifth Amendment privilege must be invoked; prior testimony was not compelled and was admissible
Alleged ineffective assistance of counsel	Kosinski: counsel failed to develop duress defense, object to evidence admission, challenge perjury, and preserve other issues	Prosecution: counsel made reasonable strategic choices; many objections would be futile	Held: No ineffective assistance shown—defense failures either would not have changed outcome or were strategic/futile

Key Cases Cited

People v. Robinson, 475 Mich 1 (review standard for sufficiency of the evidence)
People v. Stone, 463 Mich 558 (definition of "private conversation" expectation)
People v. Lee, 243 Mich App 163 (circumstantial evidence and inferences)
People v. Henderson, 306 Mich App 1 (jury instructions: include defenses supported by evidence)
People v. Ramsdell, 230 Mich App 386 (duress requires present, imminent threat)
People v. Schrauben, 314 Mich App 181 (due process and knowing use of perjured testimony)
People v. Smith, 498 Mich 466 (prosecutor’s duty re: false testimony; effect on fairness)
People v. Seals, 285 Mich App 1 (admissibility of prior testimony and compulsion analysis)
People v. Watson, 245 Mich App 572 (permissible prosecutor argument: reasonable inferences)