## Facts

- David Burns was accused of sexually abusing his four-year-old daughter, CB.
- CB disclosed alleged abuse to a Bible school teacher, who reported it to police.
- Burns moved out shortly after the disclosure and was arrested; he had no further contact with CB after the arrest.
- CB participated in two interviews (a forensic interview and an examination by a sexual-assault nurse examiner) in which she described sexual conduct; a medical exam found no evidence of intercourse.
- At trial, the court allowed the teacher to recount CB’s out-of-court statements describing sexual acts.
- The prosecution attempted multiple times to have CB testify, but she refused, left the witness chair, hid, and expressed fear of the courtroom and jury.
- The trial court found CB unavailable and admitted her hearsay statements under MRE 804(b)(6) (forfeiture by wrongdoing), reasoning that Burns caused unavailability by allegedly telling CB not to tell anyone.
- Burns was convicted; the Court of Appeals reversed and ordered a new trial.

## Issues

1. Whether MRE 804(b)(6) permits admission of an unavailable child declarant’s hearsay statements when the defendant allegedly told the child not to disclose abuse, absent proof the defendant specifically intended to prevent trial testimony.
2. Whether the prosecution proved, by a preponderance of the evidence, that the defendant’s wrongdoing actually caused the child’s unavailability as a witness.

## Decision

- The Michigan Supreme Court affirmed the Court of Appeals and reversed Burns’s convictions.
- The Court held the prosecution failed to show that Burns specifically intended to procure CB’s unavailability as a witness.
- The Court held the prosecution also failed to show that Burns’s conduct in fact caused CB’s unavailability at trial.
- Because admission of the hearsay rested on forfeiture by wrongdoing and the requirements were not met, admitting the hearsay was error requiring a new trial.

## Legal Principles

- MRE 804(b)(6) applies only if the party “engaged or acquiesced in wrongdoing” that was intended to, and did, procure the declarant’s unavailability as a witness.
- Forfeiture by wrongdoing requires proof of:
  - Specific intent to prevent the witness from testifying; and
  - Actual causation linking the wrongdoing to the witness’s unavailability.

- A general admonition such as “don’t tell,” without evidence it was aimed at preventing courtroom testimony and without proof it caused unavailability, is insufficient for MRE 804(b)(6).
- A child witness’s fear, refusal to answer, or inability to testify—without a showing that the defendant intentionally caused that condition—does not establish forfeiture by wrongdoing.

## Conclusion

The Michigan Supreme Court held that forfeiture by wrongdoing under MRE 804(b)(6) demands proof that the defendant specifically intended to make the witness unavailable and that the misconduct actually caused the unavailability; because the prosecution did not meet those requirements, the child’s hearsay statements were improperly admitted and the convictions were reversed for a new trial.


People v. Burns, 494 Mich. 104, 832 N.W.2d 738 (Mich. 2013)