Pursuant to a report that the defendant had sexually assaulted his son, an investigation was commenced and a forensic interview of the victim was conducted by members of the CARE project, in People v Tesen, No. 275401, 2007 Mich. App. Lexis 11663, (Mich. 2007). Assistant Prosecuting Attorney Daniel Rose, a member of CARE, interviewed the victim but did not videotape or record the interview. However, five other members of the team observed the interview, with one taking notes. CARE and state protocols require that a forensic interview is videotaped. Rose later authorized charging the defendant for various counts of first degree criminal sexual conduct, distributing obscene material to a minor, third degree child abuse and truancy. Then Rose was assigned to prosecute the case.

Before the preliminary examination, the defendant moved to have Rose disqualified from the case. The defense argued because Rose was the lead interviewer, he was thus a necessary witness and he may be called to testify. His testimony would speak directly to contested facts upon which the basis of the defendant’s charges rest. Moreover, it would not be detrimental to the prosecution’s case to replace Rose. The prosecution responded that Rose was not a necessary witness because there were five other CARE members who witnessed most, if not all, of the interview who could be called to testify.

At an evidentiary hearing, the district court denied the defendant’s motion to disqualify Rose, stating that although it was “dangerous” for a prosecutor to also be the lead interviewer in an investigation, because others were present throughout the entire interview there was not enough of a conflict to disqualify Rose. The defense then filed a motion in circuit court to disqualify Rose.

During a circuit court hearing, the defense asserted Rose took a lead role in the interview not during the course of trial preparation, but rather, in the investigation before any charges had been filed. The defense claimed that it would be unfair if Rose continued to prosecute the case, specifically because the defense would be unable to cross examine the interviewer concerning their qualifications and what, if any, protocol was followed during the interview. The judge granted the motion to disqualify Rose from prosecuting the case because Rose conducted the interview, it was not videotaped, and Rose made initial contact in the case.

Rose appealed and the case was heard in the Court of Appeals of Michigan on remand from the Supreme Court of Michigan. Rose claimed the circuit court erred due to procedural matters, the Court of Appeals denied review of these claims 1 . The Court of Appeals then turned to Rose’s claim that other witnesses could testify about the interview, and that the defense did not show a “compelling and legitimate need” to call Rose as a material witness at trial. The Court first discussed the role of the prosecutor, asserting the prosecutor is an advocate and that traditionally law enforcement compiles the evidence that the prosecutor then evaluates in order to determine whether to prosecute the crime. The Court further discussed how the criminal justice system is undermined when these roles become confused, citing United States v Birdman, 602 F.2d 547 (CA 3, 1979): “(1) the risk that a prosecutor would not be a fully objective witness, (2) the prosecutor’s position may artificially enhance his credibility, (3) jurors might fail to differentiate between the prosecutor’s testimony and argument, and treat the latter as evidence, and (4) public confidence in the administration of justice could be undermined.”

The Court noted that the party seeking disqualification must show the attorney is a necessary witness. The Court established previously the attorney is not a necessary witness if their testimony can be obtained from other witnesses. Rose contended that he is not a necessary witness because there were five other people who witnessed the interview. The defense argues, on the other hand, that the individuals who witnessed the interview cannot testify to Rose’s qualifications as an interviewer, any training he has received for forensic interviewing, how many forensic interviews he has conducted, or how he developed the questions and tactics he used during the interview. The Court acknowledged the concerns that the defense raised are relevant noting that the techniques and standards for interviewing child victims are very specific and detailed. In addition, the techniques utilized are relevant for the trier of fact in weighing the credibility of witnesses. Rose’s personal knowledge and experience could not be revealed thorough the testimony of the other individuals. Moreover, the Court held that the defense stated in their motion in the circuit court that they anticipated calling Rose as a witness. Additionally, Rose never showed it would be a burden to the prosecution for a different attorney to prosecute the case. Lastly, the Court noted that the circuit court was probably trying to prevent a mistrial if it became evident that Rose was a necessary witness. For these reasons, The Court of Appeals affirmed the circuit court’s disqualification of Rose.

The case will be appealed by the State.

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1. People v Tesen, No. 275401, 2007 Mich. App. Lexis 11663, 8 (Mich. 2007).