Bill Text: MI HB4327 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Civil procedure; evidence; testimony of a vulnerable adult; allow to be presented by videotape or closed-circuit television under certain circumstances. Amends sec. 2163a of 1961 PA 236 (MCL 600.2163a).
Spectrum: Partisan Bill (Democrat 25-0)
Status: (Introduced - Dead) 2011-03-01 - Printed Bill Filed 02/25/2011 [HB4327 Detail]
Download: Michigan-2011-HB4327-Introduced.html
HOUSE BILL No. 4327
February 24, 2011, Introduced by Reps. Brunner, Smiley, Santana, Darany, Bauer, Slavens, Geiss, Townsend, Liss, Barnett, Tlaib, Hovey-Wright, Brown, Oakes, Rutledge, Cavanagh, Dillon, Segal, Haugh, Switalski, Durhal, Meadows, McCann and Lipton 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 2002 PA
604.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2163a. (1) As used in this section:
(a) "Custodian of the videorecorded statement" means the
family independence agency, 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 (17) and
(18).
(d) "Vulnerable adult" means 1 or more of the following:
(i) An adult as defined in section 11(b) of the social welfare
act, 1979 PA 218, MCL 400.11.
(ii) An adult as defined in section 3(1)(b) of the adult foster
care facility licensing act, 1979 PA 218, MCL 400.703.
(e) (d)
"Witness" means an
alleged victim of an offense listed
under
subsection (2) who is either 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) 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 or more of the
following:
(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 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 before the normally scheduled
date for the defendant's preliminary examination. 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 or only a
portion of the videorecording; and shall show a time clock that is
running during the taking of the videorecorded statement.
(6) A videorecorded statement may be considered in court
proceedings only for 1 or more of the following:
(a) It may be admitted as evidence at all pretrial
proceedings, except that it may not 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.
(7) A videorecorded deposition may be considered in court
proceedings only as provided by law.
(8) (7)
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, or as
otherwise provided by law; and, if appropriate for the witness's
developmental level or mental acuity, shall 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.
(9) (8)
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.
(10) (9)
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.
(11) (10)
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.
(12) (11)
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.
(13) (12)
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.
(14) (13)
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 (14) (15) are
necessary to protect the welfare of the witness, the court shall
order those special arrangements. In determining whether it is
necessary to protect the welfare of the witness, the court shall
consider all of the following:
(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.
(15) (14)
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 (13) (14), the court shall order both
of the following:
(a) All persons not necessary to the proceeding shall 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 be made available.
(b) In order to protect the witness from directly viewing the
defendant, 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. The defendant's position
shall be located so as to allow the defendant to hear and see the
witness and be able to communicate with his or her attorney.
(16) (15)
If upon the motion of a party made
before trial the
court finds on the record that the special arrangements specified
in
subsection (16) (17) are necessary to protect the welfare of the
witness, the court shall order those special arrangements. In
determining whether it is necessary to protect the welfare of the
witness, the court shall consider all of the following:
(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) (16)
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 (15) (16), the court shall order 1 or
more of the following:
(a) 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 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, 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. The defendant's position
shall be the same for all witnesses and shall 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 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.
(18) (17)
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), (14) (15), and (16) (17), the
court shall order that a videorecorded deposition of a witness
shall be taken to be admitted at a court proceeding instead of the
witness's live testimony.
(19) (18)
For purposes of the videorecorded
deposition under
subsection
(17) (18), the witness's examination and cross-
examination shall proceed in the same manner as if the witness
testified at the court proceeding for which the videorecorded
deposition
is to be used. , and the court shall order that the
witness,
during his or her testimony, shall not be confronted by
the
defendant but The court shall permit the defendant to hear the
testimony of the witness and to consult with his or her attorney.
(20) (19)
This section is in addition to
other protections or
procedures afforded to a witness by law or court rule.
(21) (20)
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.
