Bill Text: MI HB5272 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Children; protection; videorecorded statements; allow to be used in child protective services hearings, increase fines for improper release of, and require to retain for certain period of time. Amends sec. 17b, ch. XIIA of 1939 PA 288 (MCL 712A.17b). TIE BAR WITH: HB 5270'14, HB 5271'14
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2014-06-05 - Referred To Committee On Judiciary [HB5272 Detail]
Download: Michigan-2013-HB5272-Introduced.html
HOUSE BILL No. 5272
January 30, 2014, Introduced by Reps. Hooker, Robinson, Goike, Somerville, McMillin, Yonker, Lauwers, Price, Schor, Kosowski, Abed and Cavanagh and referred to the Committee on Judiciary.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending section 17b of chapter XIIA (MCL 712A.17b), as amended
by 2002 PA 625.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIA
Sec. 17b. (1) As used in this section:
(a) "Custodian of the videorecorded statement" means the
family
independence agency, department
of 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.
(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.
(c) "Videorecorded statement" means a witness's statement
taken by a custodian of the videorecorded statement as provided in
subsection (5). Videorecorded statement does not include a
videorecorded deposition taken as provided in subsections (16) and
(17).
(d) "Witness" means an alleged victim of an offense listed
under subsection (2) who is either of the following:
(i) A person under 16 years of age.
(ii) A person 16 years of age or older with a developmental
disability.
(2)
This section only applies to either 1 or more of the
following:
(a) A proceeding brought under section 2(a)(1) of this chapter
in which the alleged offense, if committed by an adult, would be a
felony 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) A proceeding brought under section 2(b) of this chapter.
(c) A proceeding brought under section 7(6) of the child
protection law, 1975 PA 238, MCL 722.627.
(3) If pertinent, the witness shall be permitted the 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 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.
(5) A custodian of the videorecorded statement may take a
witness's videorecorded statement. The videorecorded statement
shall be admitted at all proceedings except the adjudication stage
instead of the live testimony of the witness. The videorecorded
statement shall state the date and time that the statement was
taken; shall identify the persons present in the room and state
whether
they were present for the entire videorecording video
recording
or only a portion of the videorecording;
video recording;
and shall show a time clock that is running during the taking of
the statement.
(6) In a videorecorded statement, the questioning of the
witness should be full and complete; shall 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; and, if
appropriate for the witness's developmental level, shall include,
but need not be 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
respondent.
(d) The details of the offense or offenses.
(e) The names of other persons known to the witness who may
have personal knowledge of the offense or offenses.
(7) 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. Each respondent and, if
represented, his or her attorney has the right to view and hear the
videorecorded statement at a reasonable time before it is offered
into evidence. 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. The order may
specify who shall view the videorecorded statement, indicate the
time by which the videorecorded statement is required to be
returned, and state a reason for the release of the videorecorded
statement.
(8) 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.
(9) 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.
(10) 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.
(11) A videorecorded statement shall 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.
(12) Except as otherwise provided in subsection (15), if, upon
the motion of a party or in the court's discretion, the court finds
on the record that psychological harm to the witness would occur if
the witness were to testify in the presence of the respondent at a
court proceeding or in a videorecorded deposition taken as provided
in subsection (13), the court shall order that the witness during
his or her testimony be shielded from viewing the respondent in
such a manner as to enable the respondent to consult with his or
her attorney and to see and hear the testimony of the witness
without the witness being able to see the respondent.
(13) In a proceeding brought under section 2(b) of this
chapter, if, upon the motion of a party or in the court's
discretion, the court finds on the record that psychological harm
to the witness would occur if the witness were to testify at the
adjudication stage, the court shall order to be taken a
videorecorded deposition of a witness that shall be admitted into
evidence at the adjudication stage instead of the live testimony of
the witness. The examination and cross-examination of the witness
in the videorecorded deposition shall proceed in the same manner as
permitted at the adjudication stage.
(14) In a proceeding brought under section 2(a)(1) of this
chapter in which the alleged offense, if committed by an adult,
would be a felony 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, if, upon the motion
of a party made before the adjudication stage, the court finds on
the record that the special arrangements specified in subsection
(15) are necessary to protect the welfare of the witness, the court
shall order 1 or both of those special arrangements. In determining
whether it is necessary to protect the welfare of the witness, the
court shall consider both of the following:
(a) The age of the witness.
(b) The nature of the offense or offenses.
(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), the court shall order 1 or both
of the following:
(a) In order to protect the witness from directly viewing the
respondent, the courtroom shall be arranged so that the respondent
is seated as far from the witness stand as is reasonable and not
directly in front of the witness stand. The respondent's position
shall be located so as to allow the respondent to hear and see all
witnesses and be able to communicate with his or her attorney.
(b) A questioner's stand or podium shall be used for all
questioning of all witnesses by all parties, and shall be located
in front of the witness stand.
(16) In a proceeding brought under section 2(a)(1) of this
chapter in which the alleged offense, if committed by an adult,
would be a felony 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, 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), and (15), the court shall order that a videorecorded
deposition of a witness shall be taken to be admitted at the
adjudication stage instead of the witness's live testimony.
(17) For purposes of the videorecorded deposition under
subsection (16), the witness's examination and cross-examination
shall proceed in the same manner as if the witness testified at the
adjudication stage, and the court shall order that the witness,
during his or her testimony, shall not be confronted by the
respondent but shall permit the respondent to hear the testimony of
the witness and to consult with his or her attorney.
(18) This section is in addition to other protections or
procedures afforded to a witness by law or court rule.
(19) 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 1 year or a
fine
of not more than $500.00, $1,000.00,
or both.
(20) The court shall retain a videorecorded statement made
under this section for not less than 1 year after final resolution
of the case, including, but not limited to, all appellate
proceedings. A videorecorded statement made under this section
shall be stored in accordance with the county protocols established
under section 8 of the child protection law, 1975 PA 238, MCL
722.628.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 5271 (request no.
03679'13).
(b) Senate Bill No.____ or House Bill No. 5270 (request no.
03680'13).
