November 14, 2013, Introduced by Reps. Leonard and Walsh and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 4, 7, 11a, 11b, and 13 of chapter VI (MCL
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. 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.
(e) Testimony from a victim if requested by the prosecuting
attorney and if the victim is present. For purposes of this
subdivision, "victim" means that term as defined in section 31 of
the William Van Regenmorter crime victim's rights act, 1985 PA 87,
MCL 780.781.
(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.
(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 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 these means is admissible in any subsequent trial or
hearing as provided by the Michigan rules of evidence. The
testimony may include hearsay testimony as provided in section 11b
of this chapter.
Sec. 11b. (1) The rules of evidence apply at the preliminary
examination except that the following are not excluded by the rule
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)
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 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, duly authenticated by a
representative of the court or agency.
(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, an autopsy report, and a report of a loss
prevention officer.
(2) (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 cognizable by the
district
court. 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 does not take effect
unless Senate Bill No. ____ or House Bill No. ____ (request no.
04030'13) of the 97th Legislature is enacted into law.