Gustin argued that the child's testimony is tainted, because her older sister, Alexis Somers, asked her questions about what the young girl remembered about the event, instead of an expert who specializes in child interviews. This was done, Gustin argued, at the direction of Utah County Attorney's Office prosecutors.
"It was just almost unheard of," Gustin said of Somer's, a witness for the prosecution, interviewing another witness. "It's outrageous ... And it's at the direction of law enforcement, which is the most disturbing thing."
Deputy Utah County Attorney Chad Grunander agreed that it "would have been better" if Somers never interviewed her younger sister who she has since adopted but he argued that Somers never suggested answers for her younger sister to give to investigators, and there was no evidence that Ada's testimony was swayed in any way. Grunander also added that the questioning from Somers occurred before charges were filed against MacNeill in 2012.
Judge Derek Pullan did not rule on the issue, but asked that Somers and the two investigators take the stand first during the trial, so they could be questioned under oath about how Ada was questioned, and why she was not interviewed by a professional.
"I do believe it's troubling that an investigator in the case instructed a witness to interview a child," Pullan said.
Pullan ruled on Tuesday that testimony from two federal prison inmates and a Utah County jail inmate would be allowed at trial, though he ordered that prosecutors should inform defense attorneys of any deals or plea agreements that were extended to the inmates in exchange for testimony. Defense attorneys had argued that the inmates' testimony was unreliable, and that the inmates had been dishonest with law enforcement in the past, but Pullan said the jury can decide the reliability of the witnesses.
MacNeill, 57, was charged in August 2012 with murder, a first-degree felony, and obstruction of justice, a second-degree felony.
According to court documents, MacNeill was having an affair at the time of his wife's death and devised a plan to kill her in order to continue the affair.
On the day his wife was found in the tub, MacNeill called 911, but allegedly lied to the dispatcher about performing resuscitation and lied to police about events surrounding her death in an effort to hinder, delay or prevent any investigation, according to the charges.
After an autopsy in 2007, the 50-year-old woman's manner of death was ruled "natural," the result of chronic hypertension and myocarditis. However, after a review in 2010, the manner of death was changed to "undetermined," and attributed to heart disease and drug toxicity.
MacNeill's attorneys also asked Tuesday for the obstruction of justice charge to be dismissed, saying that the statute of limitations had exceeded for the crime. They argue in their motion that the charge can only be prosecuted within four years of the alleged crime which means prosecutors should have filed charges by April 11, 2007.
However, prosecutors were able to file the charge against MacNeill because the four-year period of limitation does not run against a defendant while he is out-of-state. But MacNeill's attorneys argued that while MacNeill was incarcerated during much of those four years in a federal prison in Texas for fraudulently obtaining government documents for his alleged mistress, he was a Utah resident who was taken to another state unwillingly by the government, and therefore, should still be considered a Utah resident during those four years. However, Pullan shot down that motion Tuesday.
Jury selection is set to begin next Tuesday , with testimony expected to start next Thursday.