SB-0454, As Passed Senate, May 31, 2012

 

 

 

 

 

 

 

 

 

 

 

HOUSE SUBSTITUTE FOR

 

SENATE BILL NO. 454

 

 

 

 

 

 

 

 

 

 

 

     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, 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 (17) (18)

 

and (18).(19).

 

     (d) "Vulnerable adult" means that term as defined in section

 

145m of the Michigan penal code, 1931 PA 328, MCL 750.145m.

 

     (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.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.

 

     (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.