HB-5403, As Passed House, March 8, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5403

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,~~ 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.

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 (16) and

(17).

(e) ~~(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 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.

(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.

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.

(8) 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. 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.

(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 or a fine of

not more than $500.00, or both.