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.
YOUNG, J. (concurring).
I begin by saying that I agree with the majority, which affirms the trial court’s exclusion
of the Ginther hearing testimony in this case without closing the door to the admission of Ginther
hearing testimony at a future trial. I write separately to emphasize some observations highlighted
by counsel at oral argument and to encourage the Michigan Supreme Court to consider whether a
different test may be warranted for determining when unavailable witness testimony may be
admitted at trial.
First, appellate counsel noted, as the majority does, that the prosecutor objected to the scope
of Dr. Spitz’s testimony. That objection was sustained, thereby narrowing the scope of questioning
and affecting this Court’s “similar motive” analysis. Second, and as the majority also
acknowledges, the prosecutor did not receive but also did not request advanced summaries of the
expert testimony to prepare for the Ginther hearing. That, too, affected this Court’s “similar
motive” analysis. In other words, rather than treating foregone opportunities as a strike against
the party opposing admission, they instead serve as evidence of a different motive at the hearings.
That seems to be in keeping with our (limited) case law.
In People v Farquharson, 274 Mich App 268; 731 NW2d 797 (2007), our Court adopted
the “fact-specific inquiry” from United States v DiNapoli, 8 F3d 909 (CA 2, 1993) to assess
whether the individual opposing the admission of testimony had a “similar motive” to examine the
witness-in-question at the earlier hearing. Farquharson, 274 Mich App at 278. In DiNapoli, 8
F3d at 914, the Second Circuit addressed foregone opportunities by the prosecutor:

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Though the availability of substantial ways of challenging testimony that were not
pursued by an examiner is pertinent to the “similar motive” inquiry, especially
when such techniques appear far more promising compared to the cross-
examination undertaken, the unused methods are only one factor to be considered.
“. . . both what was undertaken and what was available but forgone—will be relevant
though not conclusive on the ultimate issue of similarity of motive.” Id. at 915. And again, when
the foregone “techniques appear far more promising” than those employed, this is an observation
that favors exclusion. Id. at 914.
By interpreting MRE 804 in this way, we have, as Judge Pratt of the Second Circuit
predicted, given prosecutors a great deal of power. As this case demonstrates, the similar-motive
assessment requires the circuit judge to identify the interest of the prosecutor and the “intensity”
of that interest. Id. at 916 (Pratt, J., dissenting). Often, the best evidence of that intensity is, in
Judge Pratt’s words, “the prosecutor’s post hoc, self-serving, un-cross-examined statements as to
his own motives.” Id. Consequently, as this case demonstrates and as Judge Pratt predicted,
“whether [] testimony may be presented at trial by a defendant [is] entirely in the prosecutor’s
control, a result that seems at odds with the main objective of going to trial—permitting the jury,
not the prosecutor, to determine what is the truth.” Id. at 917. Nevertheless, this Court faithfully
applied the test this Court adopted and, as the majority acknowledges, expert testimony is unique
in ways that, regardless of a prosecutor’s actions or intent, may favor exclusion.
I write separately to say, aside from everything stated above, there exists a different way
of assessing whether the testimony of unavailable witnesses may be admitted. See, e.g., Wahl v
State, 441 P3d 424, 428-429 (Alas, 2019) (highlighting the differences between the Second
Circuit’s approach and the Sixth Circuit’s approach and adopting the latter). I leave it to our
Supreme Court to consider that approach or any alternatives to it.
/s/ Adrienne N. Young

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