Confrontation Beyond “Similar Motive”: The Michigan Supreme Court flags distinct constitutional and evidentiary inquiries and questions diligence when cooperators go missing

Introduction

In People of the State of Michigan v. Adam Christopher Shendaj (Michigan Supreme Court, Oct. 3, 2025, No. 168219), the Court denied interlocutory review of a Court of Appeals decision that had permitted the prosecution to use a jailhouse informant’s preliminary-examination testimony at trial after that informant failed to appear. Although the Court declined to grant leave, two separate concurrences spotlighted consequential issues in Confrontation Clause doctrine and prosecutorial diligence under Michigan Rule of Evidence 804.

The case arises from allegations that, while detained on a third-degree criminal sexual conduct (CSC-III) charge, defendant Adam Christopher Shendaj asked two fellow inmates to kill his accuser. One inmate, Brandon Williams, reported the solicitation and cooperated with law enforcement, including by recording incriminating conversations while wearing a wire. Williams received favorable treatment in his own case and was released on bail after prosecutorial intercession. He testified at the preliminary examination in April 2022 but later stopped communicating with the prosecution and did not appear for the scheduled merged CSC/solicitation trial date in November 2023 or the severed solicitation trial in May 2024.

The prosecution sought to admit Williams’s preliminary-examination testimony under MRE 804(b)(1), asserting he was “unavailable” under MRE 804(a)(5). Defense counsel objected on Confrontation Clause grounds, emphasizing that the preliminary cross-examination was hampered by incomplete discovery. While counsel twice waived any challenge to the prosecution’s diligence in attempting to secure Williams’s presence, the trial court nevertheless excluded the transcript on constitutional grounds. The Court of Appeals reversed, treating the “similar motive and opportunity” requirement of MRE 804(b)(1) as resolving the confrontation question. The Michigan Supreme Court denied leave to appeal.

Two concurring writings, however, merit careful attention: (1) Justice Welch questioned whether “unavailability” was satisfied in the particular context of a cooperating, benefitted witness who later absconds, suggesting this is an important issue for future cases; and (2) Justice Bolden explained that the Court of Appeals blurred evidentiary doctrine with constitutional requirements by treating MRE 804(b)(1)’s “similar motive” test as if it answered the distinct Sixth Amendment inquiry into whether the defense previously had an adequate opportunity to cross-examine, especially in light of significant discovery disclosed only after the preliminary examination.

Summary of the Disposition

The Michigan Supreme Court denied the defendant’s application for leave to appeal the Court of Appeals’ January 6, 2025 interlocutory decision. The denial leaves in place, for this case, the Court of Appeals’ ruling that Williams’s preliminary-examination testimony is admissible under MRE 804(b)(1).

In a concurrence, Justice Welch agreed that leave should be denied but flagged whether Williams—an incentivized cooperator who received leniency—was truly “unavailable” under MRE 804(a)(5) and the Confrontation Clauses, a question complicated here by defense counsel’s express waiver of any challenge to the prosecution’s diligence. Justice Bolden, joined by Justice Bernstein, concurred in the result (denying interlocutory review) but underscored that satisfying MRE 804(b)(1) does not automatically satisfy the Sixth Amendment. The constitutional inquiry demands that the defendant had a prior adequate opportunity to cross-examine, which may not be met when crucial impeachment discovery surfaces only after the preliminary examination. Justice Bolden also emphasized that interlocutory review was unwarranted because any resulting trial judgment could be reviewed on direct appeal with a full record. Justice Hood did not participate, having served on the Court of Appeals panel.

Detailed Analysis

Factual and Procedural Background

While jailed on a CSC-III charge, Shendaj allegedly solicited two fellow inmates—Brandon Williams and Nicholas Pastorelli—to murder the complainant. Williams cooperated with law enforcement, wore a recording device, and, following prosecutorial intercession in his own case, was released on bail. He testified at the preliminary examination in April 2022. As the merged trial date approached in November 2023, the prosecution notified the court that Williams was not expected to appear and sought to admit his preliminary-examination transcript, claiming unavailability under MRE 804(a).

A detective had personally served Williams with a trial subpoena, but Williams did not appear. Defense counsel objected to admission of the prior testimony on Confrontation Clause grounds, arguing that preliminary-exam cross-examination was compromised by incomplete discovery. The trial court severed and adjourned the solicitation trial to May 2024 to allow time to locate witnesses. Shortly before that date, the prosecution again noticed Williams’s expected absence and renewed its motion to admit the transcript; the defense renewed its Confrontation Clause objection but again waived any claim of lack of due diligence. The trial court excluded the testimony on confrontation grounds.

On interlocutory appeal, the Court of Appeals reversed, holding that the defendant had a similar motive and opportunity to examine Williams at the preliminary examination, thus permitting admission under MRE 804(b)(1). The panel treated that evidentiary determination as sufficient to satisfy the Confrontation Clause. The Michigan Supreme Court denied leave but issued concurrences emphasizing two doctrinal points: diligence and unavailability for incentivized witnesses (Welch, J.), and the distinction between evidentiary rules and the independent Sixth Amendment requirement of a prior adequate opportunity to cross-examine (Bolden, J.).

Precedents Cited and Their Significance

• People v. Bean, 457 Mich 677 (1998): Establishes that unavailability under MRE 804(a)(5) requires the prosecution to make a diligent, good-faith effort to secure the witness’s presence. The standard is one of reasonableness under the circumstances, not whether more extreme measures would have succeeded. Bean, like Dye, faulted the State for failing to actively pursue known leads for out-of-state witnesses.
• People v. Dye, 431 Mich 58 (1988): Reinforces that due diligence demands proactive, timely efforts to locate witnesses, especially when there are indications of hesitancy or flight. Criticizes delays and insufficient escalation after initial efforts fail.
• Barber v. Page, 390 US 719 (1968): A foundational U.S. Supreme Court case requiring a good-faith effort to procure a witness before admitting prior testimony; failure to utilize available means (e.g., securing out-of-state attendance) undermines unavailability.
• Ohio v. Roberts, 448 US 56 (1980), abrogated by Crawford v. Washington, 541 US 36 (2004): Roberts allowed admission based on reliability; Crawford replaced that reliability inquiry with a categorical requirement: if testimonial statements are at issue, admission requires both unavailability and a prior opportunity for cross-examination.
• Crawford v. Washington, 541 US 36 (2004): Reorients Confrontation Clause doctrine around two requirements for testimonial hearsay: (1) unavailability, and (2) a prior adequate opportunity to cross-examine. It rejects reliability balancing in favor of cross-examination as the constitutionally prescribed testing mechanism.
• Davis v. Washington, 547 US 813 (2006): Further explores what counts as testimonial and reaffirms Crawford’s framework.
• People v. Farquharson, 274 Mich App 268 (2007): An MRE 804(b)(1) “similar motive and opportunity” decision in which the Confrontation Clause was expressly not at issue due to waiver. Justice Bolden emphasizes that Farquharson’s evidentiary analysis cannot substitute for the separate Sixth Amendment inquiry.
• People v. Carter, 462 Mich 206 (2000): Clarifies waiver; a party who intentionally relinquishes a known right cannot later claim error on that point. Applied here to the defense’s express waiver of any challenge to prosecutorial diligence/unavailability.

Legal Reasoning in the Concurrences

1) Justice Welch: Due diligence and “unavailability” when the witness is a benefitted cooperator

Justice Welch concurs in denying leave but questions whether the Court of Appeals (and the parties) correctly treated Williams as “unavailable.” Bean and Dye demand proactive, good-faith efforts commensurate with the facts and circumstances; the record here shows personal service of a subpoena and continued nonappearance, but it is not clear what additional steps the State undertook after the trial was adjourned specifically to locate witnesses. Welch notes that in Dye, the prosecution was faulted for not escalating its efforts once initial attempts failed.

Welch adds a crucial, forward-looking observation: Williams received leniency because of his cooperation, a fact not present in Bean or Dye. That benefit is a salient “fact or circumstance” bearing on the State’s ability and responsibility to produce the witness. Put differently, when the government has leverage over a cooperator whom it benefitted, the diligence calculus may shift—the prosecution may be expected to use its leverage and available tools to ensure the witness appears. Although defense counsel waived any challenge to the adequacy of diligence (which precluded relief here), Welch signals that Michigan courts should examine more closely, in a future case, whether diligence demands more when the missing witness is a government-incentivized cooperator.

2) Justice Bolden (joined by Justice Bernstein): The Confrontation Clause is distinct from MRE 804(b)(1)

Justice Bolden agrees with denying interlocutory review but writes to correct a doctrinal misstep by the Court of Appeals: evidentiary admissibility under MRE 804(b)(1) cannot substitute for the Sixth Amendment inquiry. Crawford requires both unavailability and a prior adequate opportunity to cross-examine. MRE 804(b)(1) speaks to unavailability and to whether a party had a prior opportunity and similar motive to develop the testimony for use at trial. However, satisfying the rule does not end the constitutional analysis because “adequate opportunity” is a constitutional guarantee, not merely a proxy for “similar motive.”

Bolden underscores why that distinction matters here: the defense’s preliminary-examination cross-examination occurred before the State produced a significant tranche of potentially impeaching material—an additional 1,200 text messages and 58 phone calls involving Williams. The record reflects some inconsistency in the exact number of items available at the preliminary examination, but all agree that the defense’s access was markedly limited compared to what was disclosed after the hearing. The trial court recognized that the late-produced material bore on credibility and could be used to impeach Williams. Bolden cautions that equating the mere fact that some cross-examination occurred with the constitutional adequacy of the opportunity collapses Crawford’s requirement into a hollow formality. The question is not simply whether defense counsel asked questions, but whether the defense had a meaningful opportunity—armed with the information necessary to probe reliability—to test the testimony.

Importantly, Bolden also clarifies waiver: defense counsel waived any challenge to prosecutorial diligence, which resolves the evidentiary unavailability question under MRE 804(a)(5) for this interlocutory posture. But that waiver does not extinguish the separate constitutional right to a prior adequate opportunity for cross-examination. Because these issues can be litigated with a complete trial record (should Williams’s transcript be used and a conviction ensue), interlocutory relief is unwarranted.

Why the Court of Appeals’ Reliance on Farquharson Was Misplaced

The Court of Appeals cited People v. Farquharson to conclude that the defense had a similar motive and opportunity to cross-examine Williams at the preliminary examination, thereby satisfying admissibility. But Farquharson explicitly stated that the Confrontation Clause was “not at issue” in that case because the defendant had waived it at the investigative-subpoena hearing. Using Farquharson’s MRE 804(b)(1) “similar motive” analysis as the constitutional test conflates evidentiary and constitutional doctrines. Under Crawford and Davis, the Sixth Amendment requires the State to show both unavailability and a prior adequate opportunity to cross-examine; “similar motive” helps answer the hearsay exception, but it is not conclusive of the constitutional adequacy of the opportunity to cross.

Impact and Forward-Looking Implications

For prosecutors

• Diligence expectations may be heightened when the missing witness is a benefitted cooperator. Justice Welch’s concurrence signals that courts may, in future cases, scrutinize whether the State used its leverage and all reasonable tools to secure such a witness’s presence, especially after personal service and nonappearance.
• Early and complete discovery is critical if the State anticipates relying on preliminary-examination testimony. If impeachment material emerges only after the preliminary examination, admission risks a confrontation challenge based on the lack of a prior adequate opportunity to cross-examine.
• Build a detailed record of diligence: dates and methods of contact; use of subpoenas and warrants; outreach to counsel, sureties, and custodians; monitoring of bond conditions; and any steps taken to escalate efforts after failed attempts. Bean and Dye emphasize the need for active, timely pursuit and escalation.

For defense counsel

• Preserve both prongs of Crawford: object to unavailability (unless strategically waived) and, independently, object that there was no prior adequate opportunity to cross-examine, especially where discovery was incomplete at the preliminary examination.
• Be cautious about waiving “due diligence”—once waived, Bean/Dye issues may be foreclosed for that stage, even if the Confrontation Clause argument on adequacy remains.
• Make a clear record of what discovery was missing at the preliminary examination and why that material matters to credibility and impeachment; this strengthens the argument that any prior cross-examination was not constitutionally adequate.

For trial courts

• Treat MRE 804(b)(1) and the Confrontation Clause as related but distinct. Even when unavailability and “similar motive” are satisfied, the constitutional adequacy of the prior opportunity to cross-examine still requires evaluation under Crawford.
• Consider whether late disclosure of substantial impeachment material undermines the adequacy of preliminary-examination cross-examination. The inquiry is contextual: volume, materiality, and timing matter.
• When a cooperator has received leniency, incorporate that into the diligence analysis; the State’s leverage and relational dynamics may affect what is “reasonable” and “good faith” under MRE 804(a)(5).

For appellate courts

• Avoid relying on Farquharson’s evidentiary test as a stand-in for the Sixth Amendment analysis. Post-Crawford, adequacy of prior cross-examination is a constitutional question that cannot be reduced to the existence of some cross-examination or “similar motive” alone.
• Interlocutory review of confrontation disputes may often be premature, as Justice Bolden notes. A full trial record can illuminate whether the transcript was actually used and the extent to which any errors were prejudicial.

Complex Concepts Simplified

• Confrontation Clause: The Sixth Amendment right of a criminal defendant to confront witnesses who give testimonial evidence against them. Admission of testimonial hearsay typically requires (1) the witness is unavailable and (2) the defendant had a prior adequate opportunity to cross-examine.
• Testimonial statements: Statements made with the primary purpose of establishing facts for prosecution are typically testimonial; prior testimony at a preliminary examination is a paradigmatic example.
• Unavailability (MRE 804(a)(5)): A witness is “unavailable” if they are absent and the proponent has been unable to procure their attendance by process or other reasonable means, despite diligent, good-faith efforts.
• Due diligence: The State’s obligation to take reasonable, proactive steps to secure a witness’s presence. What is “reasonable” depends on the case’s circumstances, including red flags of hesitancy, the State’s leverage over the witness, and the need to escalate efforts when initial attempts fail.
• MRE 804(b)(1) “former testimony” exception: Allows admission of prior testimony if the declarant is unavailable and the opposing party had a prior opportunity and similar motive to develop the testimony. This is an evidentiary rule; it does not automatically resolve the constitutional adequacy of the prior cross-examination.
• Prior adequate opportunity to cross-examine: A constitutional inquiry focusing on whether the defense had a meaningful chance to test the witness’s reliability—not merely whether counsel asked some questions. Availability of critical impeachment discovery at the time matters.
• Waiver vs. forfeiture: Waiver is the intentional relinquishment of a known right; once waived, it typically forecloses review (e.g., defense counsel’s express concession of prosecutorial diligence). Forfeiture is the failure to timely assert a right and may sometimes be reviewed for plain error.
• Interlocutory review: Appellate review before final judgment. Courts may deny interlocutory review if issues can be better addressed after a full trial record exists.

Conclusion

Although the Michigan Supreme Court denied leave in Shendaj, the concurrences surface two important clarifications that will influence future litigation. First, as Justice Welch notes, unavailability under MRE 804(a)(5) is a fact-intensive, reasonableness-based inquiry, and when the missing witness is an incentivized cooperator, the State’s leverage and relationship with the witness may demand heightened diligence to secure attendance. Second, as Justice Bolden explains, evidentiary admissibility under MRE 804(b)(1) is not synonymous with constitutional compliance. After Crawford, the Sixth Amendment independently requires that the defendant had a prior adequate opportunity to cross-examine the witness; a limited, preliminary-examination cross conducted without access to substantial impeachment discovery may not satisfy that standard.

Practically, Shendaj admonishes prosecutors to make rigorous, well-documented efforts to produce cooperators at trial and to front-load discovery when contemplating reliance on preliminary-examination transcripts. It counsels defense counsel to preserve both prongs of Crawford and to develop records demonstrating why prior cross-examination was not meaningfully informed. And it reminds trial and appellate courts to keep the evidentiary and constitutional inquiries distinct. While no new binding rule was announced, the Court’s writings provide a roadmap for future cases to refine Michigan’s application of unavailability and confrontation in the recurring, high-stakes setting of absent witnesses and jailhouse informants.

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Case details: People of the State of Michigan v. Adam Christopher Shendaj, Michigan Supreme Court No. 168219; COA No. 370866; Macomb CC No. 2022-000972-FC. Order denying leave entered October 3, 2025. Concurring statements by Justices Welch and Bolden (joined by Justice Bernstein). Justice Hood did not participate.