HB-4796, As Passed Senate, December 13, 2006

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4796

     A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending sections 1, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16,

and 17 of chapter VI (MCL 766.1, 766.4, 766.5, 766.6, 766.7, 766.8,

766.9, 766.10, 766.11, 766.13, 766.14, 766.15, 766.16, and 766.17),

section 4 as amended by 1994 PA 167, section 9 as amended by 1988

PA 106, and section 14 as amended by 1998 PA 520.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER VI

     Sec. 1. The state and accused  shall be  are entitled to a

prompt examination and  probable cause determination by the

examining magistrate in all  criminal causes and it is hereby made

the duty of all courts and public officers having duties to perform

in connection with such examination, to bring them to a final

determination without delay except as it may be necessary to secure

to the accused a fair and impartial examination  felony cases.

     Sec. 4. (1) Except as provided in section 4 of chapter XIIA of

Act No. 288 of the Public Acts of 1939, being section 712A.4 of the

Michigan Compiled Laws  1939 PA 288, MCL 712A.4, the magistrate

before whom any person is arraigned on a charge of having committed

a felony shall set a day for a  preliminary examination  probable

cause hearing not exceeding 14 days after the arraignment. At the

preliminary examination  probable cause hearing, a magistrate shall

examine  the complainant and the witnesses in support of the

prosecution  , on  under oath and, except as provided in section

2167 of the revised judicature act of 1961,  Act No. 236 of the

Public Acts of 1961, being section 600.2167 of the Michigan

Compiled Laws  1961 PA 236, MCL 600.2167, in the presence of the

accused, in regard to the offense charged  and in regard to any

other matters connected with the charge that the magistrate

considers pertinent for the exclusive purpose of determining

whether there is probable cause to believe that a charged felony

was committed and that there is probable cause to believe that the

defendant committed the charged felony. The probable cause hearing

shall not be used for purposes of discovery.

     (2) If 1 or more defendants have been charged with a felony

arising out of the same transaction, the probable cause hearings

for all the defendants who have been arrested on those charges

shall be consolidated, and only 1 joint probable cause hearing

shall be held. Upon motion of 1 or more of the defendants, the

consolidated probable cause hearing may be severed if the

defendant's attorney cannot attend a probable cause hearing within

14 days after the arraignment or for other good cause shown.

     (3) If the probable cause hearing is for a felony for which

the maximum possible penalty is imprisonment for life or any term

of years, the rules of evidence apply at the probable cause

hearing.

     (4) If the probable cause hearing is for an assaultive felony,

the prosecuting attorney may present the testimony of the victim or

victims of the felony to establish probable cause to believe that a

charged felony was committed and that there is probable cause to

believe that the defendant committed the charged felony. The rules

of evidence apply to the testimony of each victim. If the victim

testifies at the probable cause hearing, regardless of whether the

declarant is available as a witness, credible hearsay from a law

enforcement officer involved in the investigation is admissible and

the court shall allow the prosecuting attorney to present credible

hearsay testimony from that law enforcement officer to establish

probable cause to believe that a charged felony was committed and

that there is probable cause to believe that the defendant

committed that felony. Other than the credible hearsay testimony of

a law enforcement officer involved in the investigation, the rules

of evidence apply to the testimony of each witness. If the victim

does not testify at the probable cause hearing, the rules of

evidence apply to all witnesses.

     (5) In all other cases, regardless of whether the declarant or

victim is available as a witness, credible hearsay from a law

enforcement officer involved in the investigation is admissible and

the court shall allow the prosecuting attorney to present credible

hearsay testimony from that law enforcement officer to establish

probable cause to believe that a charged felony was committed and

that there is probable cause to believe that the defendant

committed the charged felony. Other than the credible hearsay

testimony of a law enforcement officer involved in the

investigation, the rules of evidence apply to the testimony of each

witness.

     (6) As used in this section:

     (a) "Assaultive felony" means a felony offense against a

person in violation of section 81, 81a, 81c, 81d, 82, 84, 86, 87,

88, 90b, 397, 411h, 411i, 520c, 520d, 520e, 520g, 530, or 543a to

543z of the Michigan penal code, 1931 PA 328, MCL 750.81, 750.81a,

750.81c, 750.81d, 750.82, 750.84, 750.86, 750.87, 750.88, 750.90b,

750.397, 750.411h, 750.411i, 750.520c, 750.520d, 750.520e,

750.520g, 750.530, and 750.543a to 750.543z.

     (b) "Credible hearsay" includes all relevant and material

evidence, including oral and written reports, that must be received

and relied on to the extent of its probative value, regardless of

whether the evidence is otherwise admissible under the Michigan

rules of evidence.

     Sec. 5. If  it appears that a felony has been committed and

that  the court determines there is probable cause to believe that

the accused  is guilty thereof  committed the charged felony, and

if the offense is bailable by the magistrate and the accused offers

sufficient bail,  it  that bail shall be  taken  accepted and the

prisoner discharged until trial. If sufficient bail is not offered

or the offense is not bailable by the magistrate, the accused shall

be committed to jail for trial. This section shall not prevent the

magistrate from releasing the accused on his or her own

recognizance  where  if authorized by law.

     Sec. 6. Any magistrate to whom complaint is made, or before

whom any prisoner is brought, may associate with  himself 1 or

more other magistrates of the same county, and they may together

execute the powers and duties conferred  upon such magistrates

respectively by this chapter, but no fees shall be taxed for  such

those other associates.

     Sec. 7. A magistrate may adjourn a  preliminary examination

probable cause hearing for a felony to a place in the county as the

magistrate  deems  determines is necessary. The accused may in the

meantime be committed either to the county jail or to the custody

of the officer by whom he or she was arrested or to any other

officer  ; or, unless he or she is charged with treason or murder,

he may be admitted to bail. An adjournment, continuance, or delay

of a preliminary examination  probable cause hearing shall not be

granted  by a magistrate except for good cause shown or by

agreement of the parties.  A magistrate shall not adjourn,

continue, or delay the examination of any cause by the consent of

the prosecution and accused unless in his discretion it shall

clearly appear by a sufficient showing to the magistrate to be

entered upon the record that the reasons for such consent are

founded upon strict necessity and that the examination of the cause

cannot then be had, or a manifest injustice will be done. An

action on the part of the magistrate in adjourning or continuing

any case, shall  adjournment or continuance does not cause the

magistrate to lose jurisdiction of the case.

     Sec. 8. The person accused may be committed as provided in

the preceding section 7, by the verbal order of the magistrate, or

by a warrant  under his hand  issued by the magistrate, stating

that  he  the accused is committed for  such further examination

on a day to be named in the warrant.  ; and on the day therein

specified, he may be brought  The accused shall appear before the

magistrate  by his verbal order to the same officer by or to whose

custody he was committed, or by an order in writing to a different

officer  as ordered or as specified in the warrant.

     Sec. 9. (1) Upon the motion of any party, the  examining

magistrate may close to members of the general public the

preliminary examination  probable cause hearing of a person charged

with criminal sexual conduct in any degree, assault with intent to

commit criminal sexual conduct, sodomy, gross indecency, or any

other offense involving sexual misconduct if all of the following

conditions are met:

     (a) The magistrate determines that the need for protection of

a victim, a witness, or the defendant outweighs the public's right

of access to the  examination  probable cause hearing.

     (b) The denial of access to the  examination  probable cause

hearing is narrowly tailored to accommodate the interest being

protected.

     (c) The magistrate states on the record the specific reasons

for his or her decision to close the  examination  probable cause

hearing to members of the general public.

     (2) In determining whether closure of the  preliminary

examination  probable cause hearing is necessary to protect a

victim or witness, the magistrate shall consider all of the

following:

     (a) The psychological condition of the victim or witness.

     (b) The nature of the offense charged against the defendant.

     (c) The desire of the victim or witness to have the

examination  probable cause hearing closed to the public.

     (3) The magistrate may close a  preliminary examination

probable cause hearing to protect the right of a party to a fair

trial only if both of the following apply:

     (a) There is a substantial probability that the party's right

to a fair trial will be prejudiced by publicity that closure would

prevent.

     (b) Reasonable alternatives to closure cannot adequately

protect the party's right to a fair trial.

     Sec. 10.  The  Consistent with the William Van Regenmorter

crime victim's rights act, 1985 PA 87, MCL 780.751 to 780.834, the

magistrate while conducting  such examination  a probable cause

hearing may exclude from the place of the  examination  probable

cause hearing all the witnesses who have not been examined.  ; and

he  The magistrate may also, if requested or if he  sees  or she

determines that there is cause,  direct the  require any witnesses

whether for or against the prisoner, to be kept separate so that

they cannot converse with each other until they shall have been

examined.  And such  The magistrate may  in his discretion, also

exclude from the place of examination any  or all minors during

the  examination  probable cause hearing of  such  those witnesses.

     Sec. 11. (1) Witnesses may be compelled to appear before the

magistrate by subpoenas issued by the  magistrate, or by an officer

of the court authorized to issue subpoenas  court, in the same

manner,  and with the same effect, and subject to the same

penalties for disobedience  , or for refusing to be sworn or to

testify, as in cases of trials in the circuit court.

     (2) Unless otherwise provided by law, the evidence given by

the witnesses examined in a municipal court shall be taken down in

shorthand by a county stenographer where one has been appointed

under the provision of a local act of the legislature or by the

county board of commissioners of the county in which the

examination  probable cause hearing is held, or the magistrate, for

cause shown, may appoint some other suitable stenographer at the

request of the prosecuting attorney of the county and with the

consent of the respondent or the respondent's attorney, to act as

official stenographer pro tempore for the court  of the magistrate

to take down in shorthand the testimony  of an examination

presented at the probable cause hearing.  A  An appointed

stenographer  so appointed shall take the constitutional oath as

the official stenographer and  shall be  is entitled to  the

following fees:  a fee of $6.00 for each day and $3.00 for each

half day while  so employed  in  as the official stenographer

taking down the testimony, and 10 cents per folio for  typewriting

word processing the testimony taken down in shorthand, or other

compensation and fees as  shall be fixed by the county board of

commissioners  appointing  that appointed the stenographer. The

fees may be allowed and paid out of the treasury of the county in

which the testimony is taken.  It shall not be necessary for a  A

witness  or witnesses whose testimony is taken in shorthand by the

stenographer is not required to sign the testimony. Except as

provided in section 15 of this chapter, the testimony  so taken

under this subsection  , shall be  typewritten  word processed,

certified, received, and filed in the court to which the accused is

held for trial.

     (3) Testimony taken by a stenographer appointed  pursuant to

under subsection (2) or taken by shorthand or recorded by a court

stenographer or district court recorder as provided by law, when

transcribed,  shall be considered  is prima facie evidence of the

testimony of the witness or witnesses at the  examination  probable

cause hearing.

     Sec. 13. If  it shall appear to the magistrate determines at

the conclusion of the  preliminary examination  probable cause

hearing either that an offense has not been committed or that there

is not probable cause for charging the defendant  therewith  with

that offense,  he  the magistrate shall discharge  such  the

defendant. If  it shall appear to the magistrate determines at the

conclusion of the  preliminary examination  probable cause hearing

that a felony has been committed and there is probable cause for

charging the defendant  therewith  with that felony, the magistrate

shall  forthwith  promptly bind the defendant to appear before the

circuit court of  such  that county  , or other court having

jurisdiction of the cause, for trial.

     Sec. 14. (1) If the court determines at the conclusion of the

preliminary examination  probable cause hearing of a person charged

with a felony that the offense charged is not a felony or that an

included offense that is not a felony has been committed, the

accused shall not be dismissed but the magistrate shall proceed in

the same manner as if the accused had initially been charged with

an offense that is not a felony.

     (2) If at the conclusion of the  preliminary examination

probable cause hearing of a juvenile the magistrate finds that  a

specified juvenile violation did not occur or that there is not

probable cause to believe that the juvenile committed  the  a

specified juvenile violation, but that there is probable cause to

believe that some other offense occurred and that the juvenile

committed that other offense, the magistrate shall transfer the

case to the family division of circuit court of the county where

the offense is alleged to have been committed.

     (3) A transfer under subsection (2) does not prevent the

family division of circuit court from waiving jurisdiction over the

juvenile under section 4 of chapter XIIA of 1939 PA 288, MCL

712A.4.

     (4) As used in this section, "specified juvenile violation"

means any of the following:

     (a) A violation of section 72, 83, 86, 89, 91, 316, 317, 349,

520b, 529, 529a, or 531 of the Michigan penal code, 1931 PA 328,

MCL 750.72, 750.83, 750.89, 750.91, 750.316, 750.317, 750.349,

750.520b, 750.529, 750.529a, and 750.531.

     (b) A violation of section 84 or 110a(2) of the Michigan penal

code, 1931 PA 328, MCL 750.84 and 750.110a, if the juvenile is

armed with a dangerous weapon. As used in this subdivision,

"dangerous weapon" means 1 or more of the following:

     (i) A loaded or unloaded firearm, whether operable or

inoperable.

     (ii) A knife, stabbing instrument, brass knuckles, blackjack,

club, or other object specifically designed or customarily carried

or possessed for use as a weapon.

     (iii) An object that is likely to cause death or bodily injury

when used as a weapon and that is used as a weapon or carried or

possessed for use as a weapon.

     (iv) An object or device that is used or fashioned in a manner

to lead a person to believe the object or device is an object or

device described in subparagraphs (i) to (iii).

     (c) A violation of section 186a of the Michigan penal code,

1931 PA 328, MCL 750.186a, regarding escape or attempted escape

from a juvenile facility, but only if the juvenile facility from

which the individual escaped or attempted to escape was 1 of the

following:

     (i) A high-security or medium-security facility operated by the

family independence agency or a county juvenile agency.

     (ii) A high-security facility operated by a private agency

under contract with the family independence agency or a county

juvenile agency.

     (d) A violation of section 7401(2)(a)(i) or 7403(2)(a)(i) of

the public health code, 1978 PA 368, MCL 333.7401 and 333.7403.

     (e) An attempt to commit a violation described in subdivisions

(a) to (d).

     (f) Conspiracy to commit a violation described in subdivisions

(a) to (d).

     (g) Solicitation to commit a violation described in

subdivisions (a) to (d).

     (h) Any lesser included offense of a violation described in

subdivisions (a) to (g) if the individual is charged with a

violation described in subdivisions (a) to (g).

     (i) Any other violation arising out of the same transaction as

a violation described in subdivisions (a) to (g) if the individual

is charged with a violation described in subdivisions (a) to (g).

     Sec. 15. (1) Except as provided in subsection (2) or (3), all

examinations  probable cause hearings and recognizances taken by a

magistrate  pursuant to  under this chapter shall be immediately

certified and returned by the magistrate to the clerk of the court

before which the party charged is bound to appear. If that

magistrate refuses or neglects to return the  same  certified

hearing or recognizance, the magistrate may be compelled

immediately by order of the court, and in case of disobedience may

be proceeded against as for a contempt by an order to show cause or

a bench warrant.

     (2) A written transcript of the testimony of a  preliminary

examination  probable cause hearing need not be prepared or filed

except upon written demand of the prosecuting attorney, defense

attorney, or defendant if the defendant is not represented by an

attorney, or as ordered  sua sponte by the trial court. A written

demand to prepare and file a written transcript is timely made if

filed within 2 weeks following the arraignment on the information

or indictment. A copy of a demand to prepare and file a written

transcript shall be filed with the trial court, all attorneys of

record, and the court  which  that held the  preliminary

examination  probable cause hearing. Upon  sua sponte order of the

trial court or timely written demand of an attorney, a written

transcript of the  preliminary examination  probable cause hearing

or a portion  thereof  of that transcript shall be prepared and

filed with the trial court.

     (3) If a written demand is not timely made as provided in

subsection (2), a written transcript need not be prepared or filed

except upon motion of an attorney or a defendant who is not

represented by an attorney, upon cause shown, and when granting of

the motion would not delay the start of the trial. When the start

of the trial would otherwise be delayed, upon good cause shown to

the trial court, in lieu of preparation of the transcript or a

portion  thereof  of that transcript, the trial court may direct

that the defense and prosecution  shall have an opportunity before

trial to listen to any electronically recorded testimony, a copy of

the recording tape or disc, or a stenographer's notes being read

back.

     Sec. 16. If the person recognized according to the provisions

of this chapter  shall  does not appear before the magistrate at

the time appointed for his or her further  examination  hearing,

the magistrate shall record the default, and shall certify the

recognizance, with the record of  such  that default, to the court

to which the accused might otherwise have been held for trial.  ,

and the like proceedings  The failure to appear shall be  had

thereon as upon the  treated as a breach of the condition of a

recognizance  for appearance  to appear before  such  that court.

     Sec. 17.  Whenever no  If sufficient bail is  offered  not

provided, and the prisoner is committed to jail, the magistrate

before whom the  examination  hearing was had, shall certify upon

the mittimus issued by him or her, the sum for which bail was

required. , and if  If the prisoner  shall offer sufficient  offers

bail  for such sum  in the amount specified to the clerk of the

court  wherein  in which the prisoner was committed for trial,  it

that bail shall be  taken  accepted by  said  the clerk and the

prisoner shall be discharged.

     Enacting section 1. This amendatory act takes effect January

1, 2008 and applies to probable cause hearings commenced on or

after that date. A preliminary examination commenced before January

1, 2008 shall be continued until completion under the law in effect

on the date that the preliminary examination began.

     Enacting section 2. This amendatory act does not take effect

unless House Bill No. 4800 of the 93rd Legislature is enacted into

law.