At the CDRC, we regularly receive questions from defense attorneys around the state. In this column, we will reprint our answers to common or interesting questions (with any identifying case details omitted or modified) that might be helpful to a wider audience.

This week we address a common objection raised by prosecutors during Ginther hearings regarding the admission of police reports.

Question: I’m a veteran trial attorney, but new to appeals. I’m preparing for my first Ginther hearing (other than as a witness), after the Court of Appeals granted a motion for remand to support my argument that trial counsel was ineffective in failing to impeach the complainant using her original description of the perpetrator to police. As an offer of proof, I attached the original incident report that outlined the complainant’s first statement to police describing the man who robbed her, which was inconsistent with her testimony describing the perpetrator at trial, which also perfectly described my client. The prosecutor has said that she intends to object if I try to introduce the incident report as an exhibit without calling the complainant and the officer who drafted the report, claiming that the report is ‘double hearsay’ and cannot be used to impeach the complainant unless she is given an opportunity to address the statement, per MRE 613(b). Is this correct?

Prosecutors frequently argue that police reports, interview transcripts, and other documents needed to establish ineffective assistance of counsel are inadmissible at a Ginther hearing because they would not have been admissible at trial. But the Michigan Supreme Court has explained on numerous occasions why this is incorrect. The procedural and evidentiary rules at trial and at post-conviction hearings “are significantly different because their purposes are significantly different.”¹ “The purpose of a trial is to determine the guilt or innocence of the defendant,” whereas “[t]he purpose of a post-conviction hearing for a new trial is, as its name suggests, an action to determine whether there should be such a trial.”² 

To prevail on a claim of ineffective assistance of counsel at a Ginther hearing, the defendant must prove that his attorney’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his or her defense.³ While practically every ruling on an ineffective assistance of counsel claim will involve factual questions, deficient performance and prejudice are questions of constitutional law.⁴ 

The complainant’s prior inconsistent statement is akin to the res gestae of your ineffective assistance of counsel claim. At a Ginther hearing, you are not using it to impeach the complainant, but to establish ineffective assistance of counsel, so MRE 613(b) is inapplicable.

The deficient performance prong of a Strickland claim examines “counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”⁵ To satisfy this element, you need to show that trial counsel had or should have had access to the original incident report, and that, given the course of the trial and the other evidence available, a reasonably skilled attorney would have used the report to impeach the complainant’s description of the perpetrator when she testified at trial. The first step in making this showing is to have counsel review the report and acknowledge that it was in the discovery packet he was provided. The report is not hearsay in this context because the truthfulness of the complainant’s description of the perpetrator has no bearing on whether objectively reasonable counsel would have used the report to impeach the complainant at trial. What is relevant is that trial counsel had the report available at trial, that counsel could have used it to impeach the complainant’s testimony, and that an objectively reasonable attorney would have used the report as a tool to impeach the complainant. As a result, a motion for a new trial “may be argued on the basis of affidavits, which, of course, would not be possible at trial.”⁶

The prosecutor’s contention that prejudice requires you to essentially conduct a mock trial during the Ginther hearing by cross examining the complainant using the report is also incorrect because “prejudice is an objective test.”⁷ The “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.”⁸ As such, it does not require that appellate counsel provide a performative example of how objectively reasonable counsel would have cross examined the complainant. It requires only that the defendant “articulate how the [evidence] would be of significant use to defendant’s case or how his pretrial discovery of this information would have affected the outcome of his case,” and “explain how this alleged error affected the outcome of his case.”⁹

That said, many trial court judges share the prosecutor’s mistaken understanding of how prejudice must be established and the evidentiary rules applicable during a Ginther hearing. Because these are complicated issues, it is a good idea to be prepared to explain what you are—and are not—required to prove to support an ineffective assistance of counsel claim and to have precedent refuting the prosecutor’s likely objections in your back pocket. Because such efforts are not always successful, as a fall back, it is also a good idea to be prepared to invoke the direction provided in the Court of Appeals’ remand order, and request an opportunity to make a record in accordance with that order, even if the trial court holds the proofs you are presenting are not admissible at a Ginther hearing because they would not have been admissible at trial.

Research & Training Attorney, CDRC

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