February 27, 2018, Introduced by Rep. Barrett and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending section 2163a (MCL 600.2163a), as amended by 2012 PA
170.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2163a. (1) As used in this section:
(a) "Courtroom support dog" means a dog that has been trained
and evaluated as a support dog pursuant to the Assistance Dogs
International Standards for guide or service work and that is
repurposed and appropriate for providing emotional support to
children and adults within the court or legal system or that has
performed the duties of a courtroom support dog prior to the
effective date of the amendatory act that added this definition.
(b) (a)
"Custodian of the
videorecorded statement" means the
department of health and human services, investigating law
enforcement agency, prosecuting attorney, or department of attorney
general or another person designated under the county protocols
established as required by section 8 of the child protection law,
1975 PA 238, MCL 722.628.
(c) (b)
"Developmental
disability" means that term as defined
in section 100a of the mental health code, 1974 PA 258, MCL
330.1100a, except that, for the purposes of implementing this
section, developmental disability includes only a condition that is
attributable to a mental impairment or to a combination of mental
and physical impairments and does not include a condition
attributable to a physical impairment unaccompanied by a mental
impairment.
(d) (c)
"Videorecorded statement"
means a witness's statement
taken by a custodian of the videorecorded statement as provided in
subsection
(5). (7). Videorecorded statement does not include a
videorecorded
deposition taken as provided in subsections (18) (20)
and
(19).(21).
(e) (d)
"Vulnerable adult" means
that term as defined in
section 145m of the Michigan penal code, 1931 PA 328, MCL 750.145m.
(f) (e)
"Witness" means an
alleged victim of an offense listed
under subsection (2) who is any of the following:
(i) A person under 16 years of age.
(ii) A person 16 years of age or older with a developmental
disability.
(iii) A vulnerable adult.
(2) This section only applies to the following:
(a)
For purposes of subsection (1)(e)(i) (1)(f)(i) and
(ii),
prosecutions and proceedings under section 136b, 145c, 520b to
520e, or 520g of the Michigan penal code, 1931 PA 328, MCL
750.136b,
750.145c, 750.520b to 750.520e, and 750.520g. , or under
former
section 136 or 136a of the Michigan penal code, 1931 PA 328.
(b)
For purposes of subsection (1)(e)(iii), (1)(f)(iii), 1
or
more of the following matters:
(i) Prosecutions and proceedings under section 110a, 145n,
145o, 145p, 174, or 174a of the Michigan penal code, 1931 PA 328,
MCL 750.110a, 750.145n, 750.145o, 750.145p, 750.174, and 750.174a.
(ii) Prosecutions and proceedings for an assaultive crime as
that term is defined in section 9a of chapter X of the code of
criminal procedure, 1927 PA 175, MCL 770.9a.
(3)
If pertinent, the court must
permit the witness shall be
permitted
the to use of dolls or mannequins, including, but
not
limited to, anatomically correct dolls or mannequins, to assist the
witness in testifying on direct and cross-examination.
(4)
A The court must permit a witness who is called upon to
testify
shall be permitted to have a support person sit with,
accompany, or be in close proximity to the witness during his or
her
testimony. A notice of intent to use a support person shall
name
the support person, identify the relationship the support
person
has with the witness, and give notice to all parties to the
proceeding
that the witness may request that the named support
person
sit with the witness when the witness is called upon to
testify
during any stage of the proceeding. The notice of intent to
use
a named support person shall be filed with the court and shall
be
served upon all parties to the proceeding. The court shall rule
on
a motion objecting to the use of a named support person before
the
date at which the witness desires to use the support person.The
court must also permit a witness who is called upon to testify to
have a courtroom support dog and handler sit with, or be in close
proximity to, the witness during his or her testimony.
(5) A notice of intent to use a support person or courtroom
support dog is only required if the support person or courtroom
support dog is to be utilized during trial and is not required for
the use of a support person or courtroom support dog during any
other courtroom proceeding. A notice of intent under this
subsection must be filed with the court and must be served upon all
parties to the proceeding. The notice must name the support person
or courtroom support dog, identify the relationship the support
person has with the witness, if applicable, and give notice to all
parties that the witness may request that the named support person
or courtroom support dog sit with the witness when the witness is
called upon to testify during trial. A court must rule on a motion
objecting to the use of a named support person or courtroom support
dog before the date when the witness desires to use the support
person or courtroom support dog.
(6) An agency that supplies a courtroom support dog under this
section conveys all responsibility for the courtroom support dog to
the participating prosecutor's office or government entity in
charge of the local courtroom support dog program during the period
of time the participating prosecutor's office or government entity
in charge of the local program is utilizing the courtroom support
dog.
(7) (5)
A custodian of the videorecorded
statement may take a
witness's videorecorded statement before the normally scheduled
date for the defendant's preliminary examination. The videorecorded
statement
shall must state the date and time that the statement was
taken;
shall must identify the persons present in the room and
state whether they were present for the entire videorecording or
only
a portion of the videorecording; and shall must show
a time
clock that is running during the taking of the videorecorded
statement.
(8) (6)
A videorecorded statement may be
considered in court
proceedings only for 1 or more of the following purposes:
(a) It may be admitted as evidence at all pretrial
proceedings,
except that it may not cannot
be introduced at the
preliminary examination instead of the live testimony of the
witness.
(b) It may be admitted for impeachment purposes.
(c) It may be considered by the court in determining the
sentence.
(d) It may be used as a factual basis for a no contest plea or
to supplement a guilty plea.
(9) (7)
A videorecorded deposition may be
considered in court
proceedings only as provided by law.
(10) (8)
In a videorecorded statement, the
questioning of the
witness
should be full and complete; shall must be in accordance
with the forensic interview protocol implemented as required by
section 8 of the child protection law, 1975 PA 238, MCL 722.628, or
as otherwise provided by law; and, if appropriate for the witness's
developmental
level or mental acuity, shall must
include, but is
not limited to, all of the following areas:
(a) The time and date of the alleged offense or offenses.
(b) The location and area of the alleged offense or offenses.
(c) The relationship, if any, between the witness and the
accused.
(d) The details of the offense or offenses.
(e) The names of any other persons known to the witness who
may have personal knowledge of the alleged offense or offenses.
(11) (9)
A custodian of the videorecorded
statement may
release or consent to the release or use of a videorecorded
statement or copies of a videorecorded statement to a law
enforcement agency, an agency authorized to prosecute the criminal
case to which the videorecorded statement relates, or an entity
that is part of county protocols established under section 8 of the
child protection law, 1975 PA 238, MCL 722.628, or as otherwise
provided by law. The defendant and, if represented, his or her
attorney has the right to view and hear a videorecorded statement
before the defendant's preliminary examination. Upon request, the
prosecuting attorney shall provide the defendant and, if
represented, his or her attorney with reasonable access and means
to view and hear the videorecorded statement at a reasonable time
before the defendant's pretrial or trial of the case. In
preparation for a court proceeding and under protective conditions,
including, but not limited to, a prohibition on the copying,
release, display, or circulation of the videorecorded statement,
the court may order that a copy of the videorecorded statement be
given to the defense.
(12) (10)
If authorized by the prosecuting
attorney in the
county in which the videorecorded statement was taken, a
videorecorded statement may be used for purposes of training the
custodians of the videorecorded statement in that county on the
forensic interview protocol implemented as required by section 8 of
the child protection law, 1975 PA 238, MCL 722.628, or as otherwise
provided by law.
(13) (11)
Except as provided in this section,
an individual,
including, but not limited to, a custodian of the videorecorded
statement, the witness, or the witness's parent, guardian, guardian
ad litem, or attorney, shall not release or consent to release a
videorecorded statement or a copy of a videorecorded statement.
(14) (12)
A videorecorded statement that
becomes part of the
court record is subject to a protective order of the court for the
purpose of protecting the privacy of the witness.
(15) (13)
A videorecorded statement shall must not
be copied
or reproduced in any manner except as provided in this section. A
videorecorded statement is exempt from disclosure under the freedom
of information act, 1976 PA 442, MCL 15.231 to 15.246, is not
subject to release under another statute, and is not subject to
disclosure under the Michigan court rules governing discovery. This
section does not prohibit the production or release of a transcript
of a videorecorded statement.
(16) (14)
If, upon the motion of a party made
before the
preliminary examination, the court finds on the record that the
special
arrangements specified in subsection (15) (17) are
necessary
to protect the welfare of the witness, the court shall
must order those special arrangements. In determining whether it is
necessary
to protect the welfare of the witness, the court shall
must consider all of the following factors:
(a) The age of the witness.
(b) The nature of the offense or offenses.
(c) The desire of the witness or the witness's family or
guardian to have the testimony taken in a room closed to the
public.
(d) The physical condition of the witness.
(17) (15)
If the court determines on the
record that it is
necessary to protect the welfare of the witness and grants the
motion
made under subsection (14), (16),
the court shall must order
both of the following:
(a)
All That all persons not necessary to the proceeding shall
must be excluded during the witness's testimony from the courtroom
where the preliminary examination is held. Upon request by any
person and the payment of the appropriate fees, a transcript of the
witness's
testimony shall must be made available.
(b)
In order to protect the witness from directly viewing the
defendant,
That the courtroom shall be arranged so that the
defendant is seated as far from the witness stand as is reasonable
and not directly in front of the witness stand in order to protect
the witness from directly viewing the defendant. The defendant's
position
shall must be located so as to allow the defendant to hear
and see the witness and be able to communicate with his or her
attorney.
(18) (16)
If upon the motion of a party made
before trial the
court finds on the record that the special arrangements specified
in
subsection (17) (19) are necessary to protect the welfare of the
witness,
the court shall must order those special arrangements. In
determining whether it is necessary to protect the welfare of the
witness,
the court shall must consider all of the following
factors:
(a) The age of the witness.
(b) The nature of the offense or offenses.
(c) The desire of the witness or the witness's family or
guardian to have the testimony taken in a room closed to the
public.
(d) The physical condition of the witness.
(19) (17)
If the court determines on the
record that it is
necessary to protect the welfare of the witness and grants the
motion
made under subsection (16), (18),
the court shall must order
1 or more of the following:
(a)
All That all persons not necessary to the proceeding shall
be excluded during the witness's testimony from the courtroom where
the
trial is held. The witness's testimony shall must be
broadcast
by closed-circuit television to the public in another location out
of sight of the witness.
(b)
In order to protect the witness from directly viewing the
defendant,
That the courtroom shall be arranged so that the
defendant is seated as far from the witness stand as is reasonable
and not directly in front of the witness stand in order to protect
the witness from directly viewing the defendant. The defendant's
position
shall must be the same for all witnesses and shall must be
located so as to allow the defendant to hear and see all witnesses
and be able to communicate with his or her attorney.
(c)
A That a questioner's stand or podium shall be used
for
all
questioning of all witnesses by all parties and shall must be
located in front of the witness stand.
(20) (18)
If, upon the motion of a party or
in the court's
discretion, the court finds on the record that the witness is or
will be psychologically or emotionally unable to testify at a court
proceeding even with the benefit of the protections afforded the
witness
in subsections (3), (4), (15), (17),
and (17), (19), the
court
shall must order that the witness may testify outside the
physical presence of the defendant by closed circuit television or
other electronic means that allows the witness to be observed by
the trier of fact and the defendant when questioned by the parties.
(21) (19)
For purposes of the videorecorded
deposition under
subsection
(18), (20), the witness's examination and cross-
examination
shall must proceed in the same manner as if the witness
testified at the court proceeding for which the videorecorded
deposition
is to be used. The court shall must
permit the defendant
to hear the testimony of the witness and to consult with his or her
attorney.
(22) (20)
This section is in addition to
other protections or
procedures afforded to a witness by law or court rule.
(23) (21)
A person who intentionally releases
a videorecorded
statement in violation of this section is guilty of a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of
not more than $500.00, or both.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.