HB-5402, As Passed House, March 8, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5402

     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) "Custodian of the videorecorded statement" means the

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) "Nonoffending parent or legal guardian" means a natural

parent, stepparent, adoptive parent, or legally appointed or

designated guardian of a witness who is not alleged to have

committed a violation of the laws of this state, another state, the

United States, or a court order that is connected in any manner to

a witness's videorecorded statement.

(d) (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 (18) and

(19).

(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:

     (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 must 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 must 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 must 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 must be filed with the court and shall must 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 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.

     (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) 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.

     (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.

     (10) If authorized by the prosecuting attorney in the county

in which the videorecorded statement was taken and with the consent

of a minor witness's nonoffending parent or legal guardian, a

videorecorded statement may be used for purposes of training the

custodians of the videorecorded statement in that county, or for

purposes of training persons in another county that would meet the

definition of custodian of the videorecorded statement had the

videorecorded statement been taken in that other 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. The consent required under this subsection must be

obtained through the execution of a written, fully informed, time-

limited, and revocable release of information. An individual

participating in training under this subsection is also required to

execute a nondisclosure agreement to protect witness

confidentiality.

     (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.

     (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.

     (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.

     (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) 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) 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 both of

the following:

     (a) 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, the courtroom shall must 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 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.

     (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) 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) 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), the court shall order 1 or more

of the following:

     (a) All persons not necessary to the proceeding shall must 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, the courtroom shall must 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 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 questioner's stand or podium shall must be used for all

questioning of all witnesses by all parties and shall must be

located in front of the witness stand.

     (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), and (17), the court shall

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.

     (19) For purposes of the videorecorded deposition under

subsection (18), 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 permit the defendant to hear the

testimony of the witness and to consult with his or her attorney.

     (20) This section is in addition to other protections or

procedures afforded to a witness by law or court rule.

     (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.