HB-5154, As Passed Senate, May 8, 2014

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5154

     A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending sections 1, 4, 7, 11a, 11b, and 13 of chapter VI (MCL

766.1, 766.4, 766.7, 766.11a, 766.11b, and 766.13), section 4 as

amended by 1994 PA 167, section 11a as added by 2004 PA 20, and

section 11b as added by 2007 PA 89.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER VI

     Sec. 1. The state and accused shall be the defendant are

entitled to a prompt examination and determination by the examining

magistrate in all criminal causes and it is hereby made the duty of

all courts and public officers having duties to perform in

connection with such an examination, to bring them it to a final

determination without delay except as it may be necessary to secure

to the accused defendant a fair and impartial examination. A

district court magistrate appointed under chapter 85 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.8501 to 600.8551,

shall not preside at a preliminary examination or accept a plea of

guilty or nolo contendere to an offense or impose a sentence except

as otherwise authorized by section 8511(a), (b), or (c) of the

revised judicature act of 1961, 1961 PA 236, MCL 600.8511.

     Sec. 4. (1) Except as provided in section 4 of chapter XIIA of

Act No. 288 of the Public Acts of 1939, being section 712A.4 of the

Michigan Compiled Laws, the probate code of 1939, 1939 PA 288, MCL

712A.4, the magistrate before whom any person is arraigned on a

charge of having committed a felony shall set a day date for a

probable cause conference to be held not less than 7 days or more

than 14 days after the date of the arraignment, and a date for a

preliminary examination of not exceeding 14 less than 5 days or

more than 7 days after the arraignment. date of the probable cause

conference. The dates for the probable cause conference and

preliminary examination shall be set at the time of arraignment.

The probable cause conference shall include the following:

     (a) Discussions as to a possible plea agreement among the

prosecuting attorney, the defendant, and the attorney for the

defendant.

     (b) Discussions regarding bail and the opportunity for the

defendant to petition the magistrate for a bond modification.

     (c) Discussions regarding stipulations and procedural aspects

of the case.

     (d) Discussions regarding any other matters relevant to the

case as agreed upon by both parties.

     (2) The probable cause conference may be waived by agreement

between the prosecuting attorney and the attorney for the

defendant. The parties shall notify the court of the waiver

agreement and whether the parties will be conducting a preliminary

examination, waiving the examination, or entering a plea.

     (3) A district judge has the authority to accept a felony

plea. A district judge shall take a plea to a misdemeanor or felony

as provided by court rule if a plea agreement is reached between

the parties. Sentencing for a felony shall be conducted by a

circuit judge, who shall be assigned and whose name shall be

available to the litigants, pursuant to court rule, before the plea

is taken.

     (4) If a plea agreement is not reached and if the preliminary

examination is not waived by the defendant with the consent of the

prosecuting attorney, a preliminary examination shall be held as

scheduled unless adjourned or waived under section 7 of this

chapter. The parties, with the approval of the court, may agree to

schedule the preliminary examination earlier than 5 days after the

conference. Upon the request of the prosecuting attorney, however,

the preliminary examination shall commence immediately for the sole

purpose of taking and preserving the testimony of a victim if the

victim is present. For purposes of this subdivision, "victim" means

an individual who suffers direct or threatened physical, financial,

or emotional harm as a result of the commission of a crime. If that

testimony is insufficient to establish probable cause to believe

that the defendant committed the charged crime or crimes, the

magistrate shall adjourn the preliminary examination to the date

set at arraignment. A victim who testifies under this subdivision

shall not be called again to testify at the adjourned preliminary

examination absent a showing of good cause.

     (5) If 1 or more defendants have been charged on complaints

listing codefendants with a felony or felonies, the probable cause

conference and preliminary examination for those defendants who

have been arrested and arraigned at least 72 hours before that

conference on those charges shall be consolidated, and only 1 joint

conference or 1 joint preliminary examination shall be held unless

the prosecuting attorney consents to a severance, a defendant seeks

severance by motion and the magistrate finds severance to be

required by law, or 1 of the defendants is unavailable and does not

appear at the hearing.

     (6) At the preliminary examination, a magistrate shall examine

the complainant and the witnesses in support of the prosecution, on

oath and, except as provided in section 2167 of the revised

judicature act of 1961, Act No. 236 of the Public Acts of 1961,

being section 600.2167 of the Michigan Compiled Laws, sections 11a

and 11b of this chapter, in the presence of the accused, defendant,

in regard to concerning the offense charged and in regard to any

other matters connected with the charge that the magistrate

considers pertinent.

     Sec. 7. A magistrate may adjourn a preliminary examination for

a felony to a place in the county as the magistrate deems

determines is necessary. The accused defendant may in the meantime

be committed either to the county jail or to the custody of the

officer by whom he or she was arrested or to any other officer; or,

unless he the defendant is charged with treason or murder, he the

defendant may be admitted to bail. The defendant may waive the

preliminary examination with the consent of the prosecuting

attorney. An adjournment, continuance, or delay of a preliminary

examination shall not may be granted by a magistrate except without

the consent of the defendant or the prosecuting attorney for good

cause shown. A magistrate shall not may adjourn, continue, or delay

the examination of any cause by with the consent of the prosecution

and accused unless in his discretion it shall clearly appear by a

sufficient showing to the magistrate to be entered upon the record

that the reasons for such consent are founded upon strict necessity

and that the examination of the cause cannot then be had, or a

manifest injustice will be done. defendant and prosecuting

attorney. An action on the part of the magistrate in adjourning or

continuing any case , shall does not cause the magistrate to lose

jurisdiction of the case.

     Sec. 11a. On motion of either party, the magistrate may shall

permit the testimony of an expert witness or, upon a showing of

good cause, any witness, except the complaining witness, an alleged

eyewitness, or a law enforcement officer to whom the defendant is

alleged to have made an incriminating statement, to be conducted by

means of telephonic, voice, or video conferencing. The testimony

taken by video conferencing shall be admissible in any subsequent

trial or hearing as otherwise permitted by law.

     Sec. 11b. (1) The rules of evidence apply at the preliminary

examination except that the following are not excluded by the rule

House Bill No. 5154 as amended March 27, 2014

against hearsay and shall be admissible at the preliminary

examination without requiring the testimony of the author of the

report, keeper of the records, or any additional foundation or

authentication:

     (a) (1) Evidence A report of the results of properly performed

drug analysis field testing is admissible in a preliminary

examination solely to establish that the substance tested is a

controlled substance.

     (2) Evidence of the results of properly performed drug

analysis field testing is sufficient to establish that the

substance tested is a controlled substance for purposes of a

preliminary examination.

     (b) A <<CERTIFIED>> copy of any written or electronic order,

judgment,

decree, docket entry, register of actions, or other record of any

court or governmental agency of this state.

     (c) A report other than a law enforcement report that is made

or kept in the ordinary course of business.

     (d) Except for the police investigative report, a report

prepared by a law enforcement officer or other public agency.

Reports permitted under this subdivision include, but are not

limited to, a report of the findings of a technician of the

division of the department of state police concerned with forensic

science, a laboratory report, a medical report, a report of an

arson investigator, and an autopsy report.

     (2) The magistrate shall allow the prosecuting attorney or the

defense to subpoena and call a witness from whom hearsay testimony

was introduced under this section on a satisfactory showing to the

House Bill No. 5154 as amended May 8, 2014

magistrate that live testimony will be relevant to the magistrate's

decision whether there is probable cause to believe that a felony

has been committed and probable cause to believe that the defendant

committed the felony.

     (3) As used in this section, "controlled substance" means that

term as defined under section 7104 of the public health code, 1978

PA 368, MCL 333.7104.

     (4) This section applies to preliminary examinations that

begin on or after the effective date of the amendatory act that

added this section.

     Sec. 13. If it shall appear to the magistrate determines at

the conclusion of the preliminary examination either that an

offense a felony has not been committed or that there is not

probable cause for charging the defendant therewith, he shall with

committing a felony, the magistrate shall either discharge such the

defendant or reduce the charge to an offense that is not a felony.

If it shall appear to the magistrate determines at the conclusion

of the preliminary examination that a felony has been committed and

that there is probable cause for charging the defendant therewith,

with committing a felony, the magistrate shall forthwith bind the

defendant to appear within 14 days for arraignment before the

circuit court of such that county, or other court having

jurisdiction of the cause, for trial.the magistrate may conduct the

circuit court arraignment as provided by court rule.

     Enacting section 1. This amendatory act applies to cases in

which the defendant is arraigned in district court or municipal

court on or after <<January 1, 2015>>.

     Enacting section 2. This amendatory act does not take effect

unless House Bill No. 5155 of the 97th Legislature is enacted into

law.