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

In this issue we address the conflict between criminal defendants’ entitlement to a witness’ statement and prosecutors’ entitlement to claim that their interviews with witnesses are privileged work product.

Question. My client was bound over for trial on an unsolved murder that occurred in 1998, after his DNA was matched to a blood sample collected at the scene of the shooting and the decedent’s girlfriend (GF) identified him as the shooter at the exam. When police interviewed GF after the shooting, she said she had not seen the perpetrator’s face, but at the exam, claimed that she knew it was my client because they went to high school together, and he still had the same dreadlocks and bushy eyebrows two years later when he shot her boyfriend.

After the exam, my client’s family gave me several photos of my client around the time of the shooting that prove he had a shaved head at the time. I provided the photos to the prosecutor in advance of trial because I planned to introduce them as exhibits to impeach GF’s identification of my client. The prosecutor began her examination of GF at trial by asking her if she realized that she had made a big mistake during the exam when they met a week earlier to prepare her testimony at trial. GF testified that she had mistakenly testified previously that my client had dreads at the time of the shooting, but after going over things with the prosecutor a few days earlier, she realized that she was thinking back to what the defendant’s hair looked like in high school, and that he was bald two years later when she saw him shoot her boyfriend. 

I moved for a mistrial based on the discovery violation, since the prosecutor only provided me GF’s original statement, claiming she had not seen the shooter, and her statement prior to the exam, identifying my client by name without describing the perpetrator’s physical features. The court denied my motion based on the prosecutor’s claim that she had nothing to disclose because GF’s recent statement had not been recorded. 

When I began my cross examination of GF by asking her if the prosecutor had told her anything about my client’s appearance in 1998 while they were meeting, the prosecutor objected and claimed their conversation was privileged. The judge adjourned for the day and directed us both to submit supplemental briefing on the issues.

Many prosecutors believe that any conversation they have with any witness is shielded from disclosure by the attorney work product doctrine and that the Court Rules and Constitution do not require the disclosure of oral statements that have not been recorded or transcribed. 

This is not the law, but even if it were any claim of privilege in the prosecutor’s conversation with GF would have been waived by the prosecutor’s question, and would likely be required to yield to your client’s right to cross examine GF about what the prosecutor told her and showed her that caused her to change her description of the shooter.

Here are some things to consider when briefing this issue.

The Court Rule and Constitution require the prosecution to disclose information

While MCR 6.201(A)(2) requires both parties to disclose its witnesses’ written or recorded statements upon request, MCR 6.201(B)(1) requires the prosecutor to disclose “any exculpatory information or evidence known to the prosecuting attorney.” Ordinarily, a witness’ assertion that the perpetrator of the charged offense had the same characteristics as the defendant would not be exculpatory. It would have been in your case though because GF’s statement to the prosecutor about the perpetrator’s hair contradicted her prior testimony and could have been used to impeach the credibility of her identification of the defendant as the shooter.¹ 

Given the significance of the discrepancy that GF apparently disclosed to the prosecutor during their meeting, MCR 6.201(B)(1) almost certainly would have required the prosecutor to disclose it to you prior to trial as long as your discovery demand requested all evidence subject to disclosure under the Rule. The prosecutor’s Brady obligations also likely required it to be disclosed even if you had not specifically requested it. 

While the court rule and Brady may have entitled your client to relief if the contradiction did not come to light until after the trial was over, they are probably not winning issues for your client if he is convicted at the conclusion of his trial because the prosecutor did disclose the information to you, albeit during the trial in order to prevent you from effectively impeaching GF using the photos you disclosed to the prosecutor. 

This is because Michigan appellate courts would be likely to ask whether it is more likely than not that the prosecutor’s untimely disclosure impacted the trial’s outcome.² It will be difficult for your client to establish that it did unless you can identify and explain how things would have played out differently if you had known that GF had changed her description of the perpetrator prior to trial. The late disclosure of the inconsistency will not prevent you from using it impeach GF and its timely disclosure would not have prevented the prosecutor from providing GF an opportunity to explain the inconsistency to the jury before you could confront her about it. For similar reasons, your client is also unlikely to be entitled to relief based on an alleged Brady violation, which requires the defense establish “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material.”³ 

To establish materiality under Brady, the defense must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”⁴ Even if you could establish that the late disclosure qualified as non-disclosure under Brady, the evidence is unlikely to be considered material because it was disclosed at trial. In People v Burger, 331 Mich App 504, 520 (2020), for example, the Court of Appeals agreed that the prosecution’s failure to disclose that its experts had changed their conclusion about the cause of the fire until the first day of trial violated Brady, but held the Brady violation did not entitle the defendant to relief because the jury heard the experts had changed their opinions and the defense was able to use this to support his defense at trial.

If you can identify things that you would have done differently prior to or during the trial if the prosecutor had timely disclosed GF’s statement before GF began to testify, you should place them on the record in your brief. If, for example, you would have urged your client to accept a plea offer that was open before the trial started (and that he is now willing to accept), retained an expert in eyewitness identification, excused different potential jurors, or given a different opening statement, the trial court will need to know this to make an informed decision about the proper remedy, and, if your client is ultimately found guilty, these facts will help establish prejudice on appeal. 

After you’ve identified and described how your client was prejudiced by the late disclosure, you should request a sanction that will help remedy the prejudice. If you would have urged your client to accept a plea offer, the remedy may be for the prosecutor to allow him to accept it now. If you would have retained an expert to address the discrepancy, you may be entitled to an adjournment so you can retain one after the prosecution rests. One remedy that seems justified and fairly modest under the circumstances would be for the court to instruct the jury that the prosecution violated its discovery obligation by failing to inform you that GF had changed her description of the perpetrator prior to trial.

Any claim of privilege the prosecutor had in her conversation with GF prior to the trial was waived by the prosecutor’s elicitation of GF’s testimony about their conversation

In People v Holtzman, 234 Mich App 166 (1999), the Court of Appeals held that a prosecutor’s contemporaneous notes describing a complaining witness’ statements during an interview are not “statements” within the meaning of MCR 6.201 unless they are a “substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded, or unless the witness signed or adopted the notes as his statement,”⁵ and a prosecutor’s “interview notes that do not meet the specific MCR 2.302 definition of ‘statement,’ in addition to being outside the reach of MCR 6.201(A)(2), are also protected by Michigan’s work-product privilege.” Although Holtzman stated explicitly that this conclusion did not relieve prosecutors of their obligations to provide defendants “any exculpatory information or evidence known to them” pursuant to MCR 6.201(B)(1) and Brady,⁶ as discussed above, the prosecutor’s violations of these obligations are unlikely to entitle your client to appellate relief because the contradictory statement was ultimately disclosed to the jury and defense at trial.

In Holtzman, the Court held that a prosecutor’s notes were not subject to disclosure because they typically “contain rough paraphrases, summaries, and highlights of the witness' comments, filtered through the attorney's own subjective impressions of the witness.”⁷ But the Court did not hold that all interviews a prosecutor conducts with a witness are privileged and confidential, as your communications with your client would be. As such, there is no basis for the prosecution to assert that her conversations with GF are privileged or outside the scope of a proper cross examination. In fact, in Delaware v Van Arsdall, 475 US 673, 676 (1986), the Supreme Court held that the trial court’s refusal to allow the defense to question a witness about his conversation with the prosecutor violated the defendant’s right to confrontation.⁸

Even if the prosecutor’s conversations with a government witness were privileged, the manner in which the prosecutor asked GF to explain her contradictory account would likely waive any claim of privilege the prosecutor would have been able to assert. “In criminal matters, ‘waiver is the intentional relinquishment or abandonment of a known right or privilege.’ The holder of any privilege ‘may waive it through conduct that would make it unfair for the holder to insist on the privilege thereafter.’ ”⁹ This includes “referring to an otherwise privileged conversation on the record or disclosing the conversation to third parties.”¹⁰  

By asking GF to testify in open court about their conversation in order to lend credibility to her explanation about why she was recanting her testimony about the perpetrator’s hair, the prosecutor disclosed the conversation to third parties and made the details of the conversation directly relevant to the credibility of GF’s identification of your client, and correspondingly, to your client’s guilt or innocence. This constitutes a waiver.¹¹ 

Your client’s right to confrontation entitles you to cross-examine GF, and potentially the prosecutor, about their communications resulting in GF’s recantation of her original description of the perpetrator

Even if the prosecutor had a legitimate claim of privilege regarding her conversation with GF and it had not been waived by her direct examination of GF at trial, your client’s right to confrontation and to present a defense entitles you to cross examine GF about how and why she changed her account of the offense from “the assailant had dreadlocks,” to “the assailant was bald.” The Sixth and Fourteenth Amendments “establish, at a minimum, that criminal defendants have the right to ... put before a jury evidence that might influence the determination of guilt.”¹² This allows the defense to not only “delve into the witness' story to test the witness' perceptions and memory, but … to impeach, i.e., discredit, the witness.”¹³ State evidentiary rules that unduly impede your ability to effectively cross examine a government witness violate the Sixth and Fourteenth Amendments.¹⁴  

Additionally, by introducing her conversation with GF into evidence at trial to support the credibility of GF’s explanation for why she changed her description of the shooter, the prosecutor has also arguably made herself a witness at trial on a critical issue. Your client’s right to present a defense and compulsory process should entitle you to call the prosecutor as a witness in order to ask her what she told and/or showed GF that led GF to change her description of the perpetrator. The prosecution’s failure to timely disclose her conversation with GF to you prior to the trial should excuse your failure to list the prosecutor as a witness for the defense.

Your client’s right to cross-examine GF or call the prosecutor to impeach GF’s identification of your client is not subject to the prosecutor’s claim of privilege. It will be up to you and your client to determine whether the prosecutor would be a helpful witness to the defense and what other remedies to pursue.

Research & Training Attorney, CDRC

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