People v. Marcy
People v. Marcy
Opinion of the Court
The Wayne County Prosequtor appeals by leave of this Court from the denial by Wayne County Circuit Judge Richard D. Dunn of
Delaware sought the assistance of the courts of Michigan under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, enacted in Michigan as MCL 767.91-767.95; MSA 28.1023(191)-28.1023(195), and in Delaware as title 11, Del Code §§ 3521-3526. The part of the act which is material to this case is MCL 767.92; MSA 28.1023(192), which provides in part:
"(1) A judge of a court of record in a state which by law has provided, for commanding persons within that state to attend and testify in this state may certify under seal of his court that for purposes of a criminal prosecution in his court or a grand jury investigation in his state, a person in this state is required as a material witness for a specified number of days.
"(2) Upon presentation of a certificate issued pursuant to subsection (1) to a judge of a court of record in a county where such witness is found, the judge shall fix a time and place for a hearing and make an order directing the witness to appear at the hearing. At such hearing the certificate shall be prima facie evidence of all the facts stated therein.
"(3) The judge shall issue a summons with a copy of the certificate attached directing the witness to attend and testify in the court where the criminal prosecution is pending or a grand jury is investigating if he determines at the hearing that:
"(a) The witness is material and necessary to the prosecution or investigation.
"(b) The attendance and testifying in the prosecution or investigation will not cause undue hardship to the witness.
"(c) The laws of the state where the prosecution or investigation is being held and the laws of any other state through which the witness may be required to pass by ordinary course of travel protect the witness from arrest and service of civil or criminal process.”
The events which precipitated the conflict out of which this appeal arises began with the murder of Sarita Ann Hughes in Milford, Delaware, on August 31, 1976.
On July 20, 1977, Marcy was a guest lecturer at a polygraph training course in Chicago attended
Upon returning to Delaware, Bisbee informed his superiors of the events in Chicago. Eventually, the Delaware Attorney General’s office contacted Marcy, asking him to reveal any information in his possession regarding the murder of Sarita Hughes. When Marcy refused on grounds of privilege, Delaware instituted proceedings under the uniform act.
In his answer in opposition to the petition filed by Delaware, Marcy alleged, inter alia, that any information in his possession regarding the Hughes case was privileged either under the statutory Michigan polygrapher privilege or the attorney-client privilege, or both. Petitioner, on the other hand, argued that the polygrapher privilege did not apply to Delaware proceedings and that applicability of the attorney-client privilege was a question for a Delaware court, not for the Michigan court. In ruling on the petition following argument of counsel, the court below said:
"I am satisfied that any evidence that could be given*404 by Mr. Marcy to a court in Delaware would be inadmissible. I am satisfied that he’s entitled to the privilege accorded to him by the Michigan Statute. And I think that if I ordered him to go to Delaware, it would be a useless act despite the request of the attorney general from the state of Delaware, because anything he could testify to there certainly is protected by the privilege, he’s not going to relent and waive privilege, I’m sure of that. He’s already indicated to that. And I think that it would just be an idle waste of time on both the part of this Court and the part of the Delaware court. I understand the problems of the grand jury in Delaware and I understand the problem of the attorney general, but it doesn’t áppear to me that Mr. Marcy could give them any material testimony because of the privilege.”
It is clear that the lower court based its decision in part on the privilege established by MCL 338.1728; MSA 18.186(28), which provides in part:
"Any communications, oral or written, furnished by a professional man or client to a licensed examiner, or any information secured in connection with an assignment for a client, shall be deemed privileged with the same authority and dignity as are other privileged communications recognized by the courts of this state.”
The court’s comment that anything Marcy could testify to in Delaware would be privileged leads us to believe that the court also found that the attorney-client privilege applied to the polygraph examination. We think that the court’s decision was correct under either analysis, and affirm.
The prosecutor urges upon us the view that it is Delaware law, not Michigan law, which governs and that the determination whether the information in Marcy’s possession is privileged is not for Michigan courts to make.
Preliminarily, we note that other courts have held that because the uniform act authorizes a drastic infringement upon the liberty of the witness, it must be strictly construed to prevent injustice. See People v McCartney, 38 NY2d 618; 381 NYS2d 855; 345 NE2d 326 (1976), In re Grothe, 59 Ill App 2d 1; 208 NE2d 581 (1965).
Beginning our analysis of the case before us, we note that the polygraph examination, during the course of which Marcy obtained the allegedly privileged information, was conducted in Michigan by a Michigan-licensed polygrapher at the request of an attorney in the course of providing legal advice and assistance to a client. We think that this is a situation which clearly falls within the letter and spirit of the polygrapher privilege statute. That statute represents a declaration by the Legislature of the policy of the State of Michigan, a policy which the courts of this state have a duty to enforce. We are of the opinion that the aforementioned policy would be ill served by permitting the Attorney General of Delaware to use the powers of a Michigan court to force an unwilling witness to appear before a grand jury which will then use its powers to require the policy of the State of Michigan to be violated.
In addition, we are of the opinion that the communications between Mr. Hughes and Mr. Marcy are protected by the attorney-client privilege, which is part of the common law of both Michigan and Delaware, see Lindsay v Lipson, 367 Mich 1; 116 NW2d 60 (1962), People v Hilliker, 29 Mich App 543; 185 NW2d 831 (1971), Texaco, Inc v Phoenix Steel Corp, 264 A2d 523 (Del Ch, 1970).
Accordingly, we affirm the order of the court below denying the petition of the State of Delaware. Because of our disposition of this issue, we do not reach the question raised in cross-appellant’s brief. No costs, a public question being involved.
The facts set forth herein are taken from the affidavits filed in the court below. For purposes of this appeal, uncontroverted allegations in the affidavits are taken as true.
The time, place and circumstances of the polygraph examination were stipulated to by the parties, pursuant to the order of this Court granting leave to appeal.
We reject out of hand the argument that the Michigan court may not look behind the certificate of the Delaware court and may not
We assume that Marcy would be subject to a contempt charge if he refused to testify when ordered to do so by a Delaware court. We note that if he does testify, he could conceivably lose his polygrapher’s license as a result, although the compulsion of his testimony may excuse the disclosure. MCL 338.1728; MSA 18.186(28). To place
Courts of this state are authorized to take judicial notice of the law of foreign jurisdictions, MCL 600.2114a; MSA 27A.2114(1).
Reference
- Full Case Name
- IN THE MATTER OF THE PETITION OF THE STATE OF DELAWARE (PEOPLE v. MARCY)
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- 15 cases
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- Published