COA 376370 PEOPLE OF MI V MATTHEW RYAN RADEMACHER Opinion - Authored - Published 8/19/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
FOR PUBLICATION
August 19, 2026
1:48 PM
v No. 376370
Ionia Circuit Court
MATTHEW RYAN RADEMACHER, LC No. 2021-018204-FC
Defendant-Appellant.
Before: BOONSTRA, P.J., and YOUNG and KOROBKIN, JJ.
KOROBKIN, J.
This interlocutory appeal presents a question of first impression: whether a witness’s
testimony from a Ginther1 hearing is admissible at a new trial when the testifying witness becomes
unavailable. Defendant, Matthew Ryan Rademacher, contests the trial court’s order denying his
motion in limine to admit the Ginther-hearing testimony of two expert witnesses, Dr. Werner Spitz
and Dr. Francisco Diaz, at his upcoming new trial; defendant contends that it is admissible as the
former testimony of unavailable witnesses under MRE 804(b)(1). We do not foreclose the
possibility that Ginther-hearing testimony can be admissible at a new trial under the appropriate
circumstances, but admissibility under MRE 804(b)(1) is a fact-specific inquiry. For the reasons
stated in this opinion, and on the facts presented, we conclude that the trial court did not abuse its
discretion by denying defendant’s motion. We therefore affirm.
I. BACKGROUND AND FACTS
A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), and first-
degree child abuse, MCL 750.136b(2), for the death of his girlfriend’s two-year-old child while in
defendant’s care. The trial court sentenced defendant to serve life imprisonment without parole
for the felony-murder conviction and 15 to 25 years’ imprisonment for the child-abuse conviction.
Defendant moved for a new trial on the basis that defense counsel rendered ineffective assistance
by failing to investigate and attempt to secure suitable expert assistance in preparing and presenting
1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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a defense. See People v Ackley, 497 Mich 381, 397-398; 870 NW2d 858 (2015). The
prosecution’s theory at trial was that defendant caused the fatal injury on the morning of the child’s
death and hinged heavily on the testimony of the medical examiner. The defense’s theory was that
the child died as the result of the cumulative effect of multiple earlier injuries, but this theory was
unsupported by an expert witness at trial.
Defendant’s witnesses at the Ginther hearing that followed included Dr. Spitz and Dr. Diaz,
both of whom were qualified as experts in forensic pathology, and both of whose testimony
supported the defense’s theory. The prosecution chose not to cross-examine Dr. Spitz but did
cross-examine Dr. Diaz. The trial court ultimately granted defendant a new trial.
About one year later, defendant filed a motion in limine to admit, at the new trial, the
Ginther-hearing testimony of Dr. Spitz and Dr. Diaz. Defendant relied on MRE 804(b)(1), the
“former testimony” exception to the rule against hearsay for a declarant who is “unavailable as a
witness.” First, defendant asserted that both experts were unavailable: Dr. Spitz had died, and Dr.
Diaz was prohibited by his employer from testifying at trials in which children were the victims
of the charged crime(s). Second, defendant argued that the prosecution had an opportunity and
similar motive at the Ginther hearing to develop the experts’ testimony through cross-examination.
The prosecution conceded that Dr. Spitz was unavailable but did not agree that Dr. Diaz was
unavailable. And regardless of their availability, the prosecution argued, these experts’ testimony
was inadmissible because the prosecution did not have an opportunity and similar motive, as
required under MRE 804(b)(1)(B), to develop their testimony through cross-examination at the
Ginther hearing.
The trial court denied defendant’s motion. The court accepted the prosecution’s concession
that Dr. Spitz was unavailable, but the court found that it was premature to declare Dr. Diaz
unavailable because none of the relevant events listed in MRE 804(a), to qualify a witness as
unavailable, had occurred. Most pertinent here, Dr. Diaz had not persistently refused to testify
despite a court order to do so, see MRE 804(a)(2), nor was he absent from trial despite defendant’s
due diligence to procure his attendance by process or other reasonable means, see MRE 804(a)(5).
The trial court also found that the prosecution did not have “an opportunity and similar motive” to
develop the experts’ testimony as required by MRE 804(b)(1)(B). The court observed that the
purpose of defendant’s Ginther hearing was to show that defense counsel “was ineffective when
he failed to present rebuttal expert testimony during the trial and that an expert existed who would
have testified consistent with the defense’s theory had trial counsel acted in a diligent and effective
manner.” Therefore, the court concluded, “the motive and testimony elicited by defense counsel
at a Ginther hearing cannot be said to be similar in motive as testimony at a trial.” The trial court
also explained that expert “[t]estimony on the facts and circumstances specific to this case were
limited on several occasions . . . during the Ginther hearing,” and noted numerous instances in
which the court had, in ruling on objections from the prosecution, limited the case-specific
testimony that Dr. Spitz and Dr. Diaz could give.

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Defendant now appeals.2
II. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s decision on a motion in limine.
People v Hawkins, 349 Mich App 271, 275; 27 NW3d 641 (2023). “Preliminary questions of law,
including whether a rule of evidence precludes the admission of evidence, are reviewed de novo.”
People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). “An abuse of discretion occurs when
a decision falls outside the range of reasonable and principled outcomes, and a trial court
necessarily abuses its discretion when it makes an error of law.” People v Zitka, 325 Mich App
38, 43–44; 922 NW2d 696 (2018) (cleaned up).
III. ANALYSIS
We conclude that the trial court did not abuse its discretion by denying defendant’s motion
in limine.
Hearsay—“a statement that[] the declarant does not make while testifying at the current
trial or hearing[] and [that] a party offers in evidence to prove the truth of the matter asserted in
the statement,” MRE 801(c)—is generally inadmissible at trial under the rules of evidence. MRE
802. MRE 804(b) provides exceptions from that general prohibition that apply when the declarant
is “unavailable as a witness” as that term is defined in MRE 804(a). One such exception, MRE
804(b)(1), is for former testimony. Under MRE 804(b)(1)(B), the rule against hearsay does not
apply when a “declarant is unavailable as a witness,” the declarant’s statement “was given as a
witness at a trial or hearing whether given during the current proceeding or a different one,” and
the testimony is “now offered against a party who had . . . an opportunity and similar motive to
develop it by direct, or cross, or redirect examination.”
Whether a party had a “similar motive” to develop testimony at a prior hearing is a “fact
specific inquiry.” People v Farquharson, 274 Mich App 268, 278; 731 NW2d 797 (2007). It
“depends on the similarity of the issues for which the testimony was presented at each proceeding.”
Id. at 275. This Court has adopted the following nonexhaustive list of factors for a trial court to
examine:
(1) whether the party opposing the testimony had at a prior proceeding an interest
of substantially similar intensity to prove (or disprove) the same side of a
substantially similar issue; (2) the nature of the two proceedings—both what is at
stake and the applicable burden of proof; and (3) whether the party opposing the
testimony in fact undertook to cross-examine the witness (both the employed and
2 This Court initially denied defendant’s application for leave to appeal. People v Rademacher,
unpublished order of the Court of Appeals, entered October 29, 2025 (Docket No. 376370).
Defendant then sought leave to appeal from our Supreme Court, which, in lieu of granting leave,
remanded the case to us for consideration as on leave granted. People v Rademacher, 31 NW3d
123 (Mich, 2026).

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available but forgone opportunities). [Id. at 278 (quotation marks and citation
omitted).]
In our case, the parties’ disagreement on appeal principally concerns whether the
prosecution had a similar motive to develop Dr. Spitz’s and Dr. Diaz’s testimony through cross-
examination at defendant’s Ginther hearing as it would have at defendant’s trial.3 We must
therefore examine the similarity of the issues for which the testimony was presented at the Ginther
hearing with the issues for which it would be presented at trial, keeping in mind the nonexhaustive
list of factors adopted in Farquharson and that our inquiry is fact-specific. Id. at 275, 278.
As a general matter, there can be a “similarity of the issues” at a Ginther hearing and at a
subsequent new trial, even though the issues are not identical. See id. at 275. The purpose and
function of a Ginther hearing is to create a factual record for a defendant’s ineffective-assistance-
of-counsel claim, which if successful would lead to a new trial. See People v Ginther, 390 Mich
436, 443-444; 212 NW2d 922 (1973); People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). At
the Ginther hearing, the issues are, broadly speaking: (1) whether counsel’s performance was
deficient—that is, did it fall below an objective standard of reasonableness; and (2) whether the
deficiency was prejudicial to the defendant—that is, but for counsel’s deficient performance,
whether there is a reasonable probability that the outcome would have been different. See People
v Fyda, 288 Mich App 446, 450; 793 NW2d 712 (2010); People v Yeager, 511 Mich 478, 487;
999 NW2d 490 (2023). It is not uncommon for some of the evidence relevant to this Ginther
inquiry to overlap with the evidence that must be considered at a new trial. For instance, if the
alleged deficiency by trial counsel was an objectively unreasonable failure to get testimony
admitted that would have been favorable to the accused, then at the Ginther hearing the defendant
might present that testimony in order to prove that it is, in fact, so favorable that its absence at the
first trial likely had a prejudicial effect. Thus, there can be a “similarity of the issues,”
Farquharson, 274 Mich App at 275, insofar as the evidence presented at the Ginther hearing to
show a reasonable probability of a different outcome may also be the evidence that will be
presented at the new trial in an effort to actually achieve that different outcome.
Along the same lines, the “interests” and “stakes” involved at a Ginther hearing and those
at a subsequent new trial are not identical, but as a general matter they tend to be similar and
overlapping. See id. at 278. If a defendant is successful at a Ginther hearing, then the defendant’s
conviction is vacated, a new trial is required, and the prosecution would bear (again) the burden of
proving the defendant’s guilt beyond a reasonable doubt. The prosecution necessarily has a high
interest in avoiding that outcome, just as the prosecution has a high interest in obtaining a
3 The parties do not dispute that Dr. Spitz is an unavailable witness given his death. See MRE
804(a)(4) (stating that a declarant is considered unavailable as a witness if he “cannot be present
or testify at the trial . . . because of death”). There is disagreement, however, regarding whether
Dr. Diaz is an unavailable witness. But in light of our conclusion, explained in this opinion, that
the “similar motive” requirement of MRE 804(b)(1)(B) is not satisfied under the facts of this case,
we need not resolve whether the trial court erred in concluding that it was premature to deem Dr.
Diaz an unavailable witness. We therefore proceed under the assumption that Dr. Diaz was
unavailable without deciding that question.

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conviction were retrial to occur. Consequently, at the Ginther hearing, the prosecution may have
“an interest of substantially similar intensity” to combat evidence offered by the defendant, id., so
as not to be placed in the position of having to prove the defendant’s guilt at a new trial. Again,
for instance, if a defendant presents testimony at the Ginther hearing that counsel failed to secure
at trial, the prosecution has an interest in discrediting that testimony to show that it would not have
made a difference at trial. And the intensity of the prosecution’s interest in doing so flows from
the prosecution’s significant interest in not having to retry the defendant. In other words, the stakes
are comparable at both proceedings: if the defendant prevails at the Ginther hearing, the
prosecution will be forced to try the case again. And, as discussed above, the same evidence may
be in play, for similar (but not identical) reasons, at both proceedings.
It is true that “the applicable burden of proof,” id., is not the same at the two proceedings.
But that is hardly dispositive, as this Court has affirmed the admission of preliminary-examination
testimony at trial under MRE 804(b)(1) even though “the burden of proof was lower at the
preliminary examination.” People v Garay, 320 Mich App 29, 37-38; 903 NW2d 883 (2017),
rev’d in part on other grounds 506 Mich 936 (2020). Indeed, it is much lower: the burden at a
preliminary examination is only to show probable cause, in contrast to the burden at trial, proof
beyond a reasonable doubt. And the stakes are also different; a probable cause finding leads only
to a bindover for trial, whereas proof of guilt results in conviction and the potential for
imprisonment. But they are similar enough that preliminary-examination testimony has frequently
been held admissible at trial under MRE 804(b)(1). See People v Meredith, 459 Mich 62, 67; 586
NW2d 538 (1998); People v Adams, 233 Mich App 652, 659; 592 NW2d 794 (1999).
We make these observations to emphasize that there may well be circumstances in which
former testimony from a Ginther hearing would be admissible at a new trial under MRE 804(b)(1).4
But the above analysis discusses the applicability of MRE 804(b)(1) to Ginther hearings only in
the abstract. Farquharson instructs that we must make a fact-specific inquiry regarding whether
the prosecution had a “similar motive” to develop the witnesses’ testimony during the Ginther
hearing in the particular case before us. Farquharson, 274 Mich App at 278. And, upon full
review, under the facts of this case, we conclude that the trial court did not abuse its discretion in
finding that the “similar motive” requirement was not met.
Three considerations drive our analysis. First, at the Ginther hearing, the trial court
restricted the expert testimony in ways that, in turn, limited the prosecution’s motive to develop
the testimony through cross-examination. For example, defense counsel asked Dr. Spitz to
4 Although we were unable to locate a Michigan case in which this issue has arisen, we note that
the Supreme Court of Pennsylvania held that testimony from that state’s equivalent of a Ginther
hearing was not precluded from being introduced at trial under that state’s equivalent of MRE 804.
Commonwealth v Chmiel, 558 Pa 478, 499-501; 738 A2d 406 (1999). “Decisions from other
jurisdictions are not precedentially binding, but they may be considered for their persuasive value.”
People v Lillis, ___ Mich App ___, ___ n 3; ___ NW3d ___ (2026) (Docket No. 372637); slip op
at 5 n 3. The circumstances of Chmiel were somewhat different, as it was the prosecution that
sought to introduce the testimony, and the Court ultimately held that the testimony was
inadmissible for other reasons not relevant here. See Chmiel, 558 Pa at 508-511.

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“explain to the Court, after reviewing the documentation, if [he] ha[d] an opinion if this is a short-
fall trauma, a medium, or a high . . . .” The prosecution objected that the question was outside the
scope of a Ginther hearing, and the trial court sustained the objection, stating that “the manner and
cause of death in this case . . . is outside the scope of what this hearing is about,” and instructed
the parties to limit their questions to whether defendant’s trial counsel undertook adequate
consultation with experts. See Ackley, 497 Mich at 397-398. At another point, defense counsel
asked Dr. Spitz how much blood would typically be found in a subdural hematoma significant
enough to cause a child’s death, and Dr. Spitz answered, “Well, certainly a lot more than in this
case.” This elicited another objection from the prosecution on grounds that Dr. Spitz was getting
into case-specific testimony. The trial court sustained this objection as well, indicating that Dr.
Spitz’s answer was not “within the confines of what the purpose of [the] hearing is.” The
prosecution did not cross-examine Dr. Spitz.
For purposes of the appeal presently before us, it is unnecessary for this Court to decide
whether these limitations that the trial court placed on the scope of the Ginther hearing were, at
the time, correct or otherwise within its discretion. Rather, we identify them because they
demonstrate a corresponding limitation on the prosecution’s motive to cross-examine. It is clear
from our review of the record that given the limitations on the scope of the Ginther hearing
imposed by the trial court, the scope of the expert testimony at that hearing was substantially more
limited than what the scope of expert testimony would be at trial. Consequently, as part of our
fact-specific inquiry, Farquharson, 274 Mich App at 278, this limitation on the scope of the
Ginther hearing weighs significantly against a finding that the prosecution had a similar motive to
develop the former testimony at the Ginther hearing as it would have at a new trial.
Our second consideration pertains to the limited information the prosecution had available
to conduct a meaningful cross-examination of defendant’s experts. Our court rules contain special
requirements for disclosure of information about expert witnesses that may be called at trial,
requirements that do not apply to lay witnesses. Specifically, MCR 6.201(A)(3) requires that a
party, upon request, disclose “the curriculum vitae of any expert the party may call at trial and
either a report by the expert or a written description of the substance of the proposed testimony of
the expert, the expert’s opinion, and the underlying basis of that opinion.” MCR 6.201(A)(3)
(emphasis added). The court rules and our caselaw are silent on whether these or any similar
disclosure requirements apply for experts that may be called to testify at a Ginther hearing. In any
event, it appears that most of this information was not sought or disclosed prior to the Ginther
hearing in this case.5
As with the trial court’s rulings limiting the scope of the Ginther hearing, it is unnecessary
for us to comment on whether MCR 6.201(A)(3)-type disclosures are required or advisable for
Ginther hearings as they are for trials. Rather, the fact that the prosecution in this case did not
have them necessarily affects our fact-specific inquiry, Farquharson, 274 Mich App at 278,
regarding whether the prosecution had a similar motive to develop the former testimony at the
Ginther hearing as they would have at a new trial. MCR 6.201(A)(3) reflects a reality about
5 The prosecution has represented to this Court that only Dr. Diaz’s curriculum vitae was disclosed
in advance. This was confirmed by defense counsel at oral argument.

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experts that does not apply to lay witnesses: “Effective cross-examination of an expert witness
requires advance preparation,” and “effective rebuttal requires advance knowledge of the line of
testimony of the other side.” Roe v Cherry-Burrell Corp, 28 Mich App 42, 47; 184 NW2d 350
(1970) (quotation marks and citation omitted). Because the prosecution did not have that “advance
knowledge” that it would have had at trial, its motive to develop the testimony of Dr. Spitz and
Dr. Diaz through cross-examination was substantially reduced.
Our third consideration is likewise specific to expert witnesses and “what is at stake” when
former testimony is admitted or excluded. Farquharson, 274 Mich App at 278. The rule against
hearsay “is a concrete expression of the common-law preference for in-court oral testimony subject
to cross-examination.” Shields v Reddo, 432 Mich 761, 783; 443 NW2d 145 (1989). As explained
by the legendary Judge Henry Friendly of the United States Court of Appeals for the Second
Circuit:
While the use of previous testimony is a well-established exception to this rule, it
is an exception based on the necessity of using the prior testimony when the
alternative is loss of that testimony entirely. When the ordinary witness is
unavailable, his unique knowledge of the facts will be lost unless the use of his
prior testimony is allowed. But the expert witness generally has no knowledge of
the facts of the case. Instead, he is called upon to express a professional opinion
upon the facts as they are presented to him, often expressing his opinions in the
form of answers to hypothetical questions. Thus, even if one particular expert is
unavailable, there is no need to use his previous testimony to prevent the loss of
evidence, because there will usually be other experts available to give similar
testimony orally. [Carter-Wallace, Inc v Otte, 474 F2d 529, 536 (CA 2, 1972)
(citation omitted).]
To put things in terms of the Farquharson factors, the “stakes” of excluding the former
testimony of a lay witness in a criminal case are particularly high, because the testimony is
irreplaceable. An expert’s testimony, by contrast, by its very nature ought to be subject to
replication by some other qualified expert.6 Indeed, if no other expert can provide the relevant
testimony, one might call into question how reliable the testimony was in the first place. See MRE
702. Consequently, although there is no rule categorically excluding experts from MRE 804(b)’s
former-testimony exception and we do not advocate for one,7 Judge Friendly’s observations are
6 We do not foreclose the possibility that, in an unusual case, it could be shown that an expert’s
testimony was so unique or specialized that no other expert’s testimony can be procured. See
Carter-Wallace, 474 F2d at 536-537. There is no indication of that being the case here, however.
7 We note that at least one jurisdiction, Louisiana, excludes experts entirely from the former-
testimony exception under its rules of evidence. La Stat Ann-Code Evid Art 804(B)(1); Southern
Message Serv, Inc v Commercial Union Ins Co; 647 So 2d 398, 403; 26,311-CA (La App 2 Cir
12/7/94) (“The former testimony of an unavailable expert witness is not admissible as an exception
to the hearsay rule.”).

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relevant to our fact-specific inquiry, Farquharson, 274 Mich App at 278, and we find that they
weigh against admission here.
IV. CONCLUSION
For the reasons stated, the trial court did not abuse its discretion by denying defendant’s
motion in limine to admit the Ginther-hearing testimony of his expert witnesses at his upcoming
new trial. We agree with the trial court that, under the facts of this case, the prosecution did not
have a similar motive to develop the former testimony by cross-examination as required by MRE
804(b)(1)(B).8 Accordingly, the trial court’s order is affirmed.
/s/ Daniel S. Korobkin
/s/ Mark T. Boonstra
/s/ Adrienne N. Young
8 As previously noted, because we conclude that the trial court did not abuse its discretion by
denying defendant’s motion under MRE 804(b)(1), it is unnecessary for us to review the trial
court’s determination that it was premature to declare Dr. Diaz “unavailable” under MRE 804(a).

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