People v. Burns, 494 Mich. 104

Background

Four-year-old child (CB) told a bible-school teacher she had been sexually abused by her father, David Burns; teacher reported to police the next day.
CB was interviewed by a forensic interviewer and a sexual-assault nurse examiner and disclosed abuse; no physical evidence of intercourse was found.
At trial the bible-school teacher (Gonzales) gave conditional testimony about CB’s out-of-court statements before CB was called; prosecutors unsuccessfully attempted to get CB to testify four times (child became fearful and refused to answer).
Trial court admitted the teacher’s testimony under Michigan’s forfeiture-by-wrongdoing rule (MRE 804(b)(6)), finding defendant had told CB “not to tell” and thereby rendered her unavailable; court also admitted other hearsay from interviews; defendant convicted of first-degree CSC.
Court of Appeals reversed, holding prosecutor failed to prove by a preponderance that defendant specifically intended to cause CB’s unavailability and that his conduct did cause it; Michigan Supreme Court granted leave.
Michigan Supreme Court affirmed the Court of Appeals: MRE 804(b)(6) requires proof that defendant engaged in wrongdoing that was specifically intended to, and did, procure the declarant’s unavailability; prosecution failed to meet both intent and causation elements and the erroneous admission was outcome determinative.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether MRE 804(b)(6) permits admission of CB’s out-of-court statements because Burns’s conduct forfeited confrontation	Burns’s contemporaneous "not to tell" warnings show he engaged in wrongdoing intended to make CB unavailable and thus forfeited hearsay exclusion	Burns argued his statements were contemporaneous directions to keep abuse secret (to avoid discovery), not targeted efforts to procure CB’s unavailability at trial; no post-report efforts to silence her	MRE 804(b)(6) requires proof the defendant acted with specific intent to procure the witness’s unavailability and that the wrongdoing in fact caused it; prosecution failed to prove both elements
Whether the trial court’s factual findings supported forfeiture (intent)	The trial court implicitly found intent from the record and should be affirmed	The record lacks an explicit finding of intent and does not compel one; timing and lack of post-report contact undermine inference of intent	Trial court abused its discretion by admitting hearsay because it made no express finding of specific intent and the record does not compel such a finding
Whether Burns’s conduct caused CB’s unavailability (causation)	CB’s fear stemmed from defendant’s influence (his “not to tell” instruction)	CB disclosed the abuse to multiple adults and defendant had no contact with her after report; trial court attributed unavailability to age, infirmity, and fear, not defendant’s wrongdoing	Prosecution failed to show by a preponderance that Burns’s conduct caused CB’s unavailability; trial court’s reasons for unavailability did not include defendant’s wrongdoing
Prejudice: whether erroneous admission was outcome determinative	Admitted hearsay was corroborated and did not render trial unfair	Without CB’s testimony the prosecution had little other evidence; admission was prejudicial	Admission was outcome determinative; conviction reversed and case remanded for new trial

Key Cases Cited

Giles v. California, 554 U.S. 353 (2008) (forfeiture-by-wrongdoing under the Sixth Amendment requires showing defendant specifically intended to make witness unavailable)
Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay implicates Sixth Amendment confrontation right)
People v. Jones, 270 Mich. App. 208 (2006) (Michigan appellate adoption of three-element test for MRE 804(b)(6) — wrongdoing, intent to procure unavailability, and causation)
People v. Bauder, 269 Mich. App. 174 (2005) (discussed MRE 804(b)(6) but did not require specific-intent showing; later distinguished in light of Giles)