Mens Rea: The right to present a defense Where does it begin, where does it end?

By Michael J. Nichols

Last month, I discussed the fact that so many judges seem to scowl on the defendant’s efforts to present his defense. I cited one example in which a trial court excluded one defense expert’s opinion because it was “confusing” then allowed only part of another defense expert’s opinion. She seemed apologetic to the prosecutor when she stated “well the defendant has to be able to present some defense.”  She emphasized the word “some” as if the concept of the defendant presenting evidence and a theory to the jury was as remote as aliens landing in Roswell, New Mexico.

Fortunately, the right to present a defense is one area of the law where the state appellate courts have protected the constitutional concepts of the right to a fair trial for the accused citizen. I addressed the Michigan Supreme Court’s ruling to deny leave in People v Yost, 483 Mich 856 (2009) and Justice Markman’s concurring opinion in which he held that the defendant has the right to present a meaningful defense. The 2nd part of this series will further analyze the specifics of the right to present a defense for the accused citizen.

In denying leave in Yost, the Supreme Court upheld the Court of Appeals opinion, which contains an excellent analysis of the boundaries of the right to present a defense. The Court held:

“A defendant has a constitutionally guaranteed right to present a defense, which includes the right to call witnesses. US Const, Am VI; Const 1963, art 1, § 20; see also People v Hayes, 421 Mich. 271, 278-279, 364 N.W.2d 635 (1984) (noting that an accused has the right to present his or her own witnesses to establish a defense). But this right is not absolute: the accused must still comply with ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” Id. at 279, 364 N.W.2d 635, quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

The trial court in Yost prevented the defense from calling an expert toxicologist because  defense counsel violated the court’s scheduling order in disclosing the expert’s name after the deadline. The expert was a replacement for the initial toxicologist, who retired.

After reading, Yost, my take is that the boundary is a situation in which the prosecution is prejudiced by an egregious violation and without a remedy.

Think about that for a moment. What instances cause such prejudice to a prosecution that are incurable when the court always has the remedy of allowing the prosecution leeway in rebuttal to allow experts, lay witnesses and other investigators to deal with late-minute or last-minute trial surprises? When analyzing the Chambers, Yost and Merritt opinions, it comes down to analyzing all of the boundaries together: the nature of the violation and what caused it, the type of prejudice if any to the other side, what if any remedy is available to the aggrieved party and whether there is any other alternative for the trial court to rectify the violation other than exclusion of the witness or the evidence.

There are also statutory provisions that create boundaries for the right to present a defense. MCL 768.20, for example requires the defendant to disclose the intent to present an alibi and provide as many specifics as possible about the alibi witnesses within 15 days of the circuit court arraignment but no later than 10 days before trial. The penalty is exclusion of the witness(s) under MCLA 768.21.  There are other examples such as the insanity defense (MCL 768.20a).

The Merritt opinion, which is cited in Yost, was an alibi case. In Merritt, the Supreme Court held it was permissible for the trial court to allow the defendant to testify that he was not at the scene of the crime when the crime occurred.  MCL 768.21 is a statute that allows the trial court discretion to enforce for a violation of the alibi notice rule, Merritt at 79. The test for the trial court is whether the intrusion into the accused citizen’s 6th Amendment right to compel witnesses to testify is outweighed by the orderly administration of justice and the risk of false testimony, Merritt at 82-83.

Who determines if testimony is false? Does the judge become a human lie detector by virtue of donning the black robe?

If the accused wants to argue that he was not present when the crime occurred, is she absolutely required to identify the alibi witness and advise the prosecution of that witness’s identity and contact information? The Code of Criminal Procedure requires it but caselaw says that the accused cannot be precluded from arguing that “I wasn’t there.” What if the accused wishes to argue that the prosecution did not prove beyond a reasonable doubt that he was there when the crime was committed? When you step back and think about it, the “alibi” defense or “lack of presence” is not that far removed from the lack of identification defense.

The Criminal Defense Attorneys of Michigan recently held its annual fall conference. The focus was the right to present a defense. I often consider the “domino effect” of trial judges making rulings based on what they hear from other trial judges. The interpretation of the law starts to take on a life of its own based on what judges hear from each other at conferences: “you wouldn’t believe what this defendant wanted to argue about the opinion of the toxicologist.” I wonder how those conversations have evolved since the National Academy of Science issued its stunning report in February, 2009 about the lack of quality and reliable science in the nation’s forensic science labs?  In any event, the judge is not allowed to preclude a defense witness from testifying simply because the judge disagrees with the opinion or testimony.

Michael J. Nichols, of The Nichols Law Firm PLLC, focuses his practice exclusively on complex OWI/OWID cases and other select criminal and other litigation matters. He is the author of the “Michigan OWI Handbook” published by West, chairs the Ingham County Bar Association Criminal Law section and is a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, The Criminal Defense Attorneys of Michigan and the State Bar and Ingham County Bar Association’s Criminal Law Sections.