As a Defendant in a Michigan Criminal Sexual Conduct (CSC) case, the rules concerning what evidence you're entitled to come from the United States Constitution, Michigan Constitution, Michigan Court Rules, Michigan statutes, and the Court decisions (or "case law") interpreting all of the above.
At Prain Law, PLLC, we specifically concentrate on defending those accused of Criminal Sexual Conduct charges, and have won jury verdicts of NOT GUILTY of CSC again and again in cases that many other attorneys might think are impossible to win. One key component to our consistent success is obtaining evidence in your defense.
In order for you and your criminal defense attorney to be able to defend against CSC charges, there obviously needs to be a procedure as part of the Court process that allows you to obtain certain documents and other information about the Prosecution's case against you - who is claiming what, what are they basing that on, what if anything are they using to attempt to back it up, etc.
You have a Constitutional right not just to an attorney (or legal "counsel"), but to the effective assistance of counsel. In order for your attorney to most effectively defend you, they obviously need to know what the case is about and what its components are. You also have a Constitutional right to a fair trial, to confront and cross-examine the witnesses against you, and to present a complete defense.
In order to exercise those fundamental rights, you also have a right to access to evidence. Of course, an experienced Criminal Sexual Conduct Defense Attorney will likely develop and present your own evidence independent of the government's case against you. But before that can happen, you need to understand what they plan to use against you.
The law recognizes this need, and the process by which the Court oversees and enforces your right to obtain this information is called "discovery," because it is how you "discover" this information in the first place. The Defense activates this process by filing a "Demand" or "Request" for discovery, and the government has a certain time period to respond and provide it.
You should also note that the word "discovery" is used in Court to describe not just the process, but also the actual documents and information produced through that process (i.e., "Your Honor, the case is still in the discovery phase right now, and the Defense has served a Demand for Discovery", or "Your Honor, we're received certain discovery so far, but not all of it yet.").
As you'll learn, discovery is actually a "two-way street" - just as your attorney should serve a Demand for Discovery, the Prosecution may serve one on your attorney as well, and the Defense will be responsible for providing discovery to the Prosecution, if there is any to provide, under law.
Now that you understand some basics, let's look at some of the sources of the rules governing the discovery process and what each side has to give to the other...
THE MICHIGAN COURT RULES
The Michigan Court Rules, (or "MCR" for short) are rules of Court procedure put in place by the Michigan Supreme Court whereby a proposed Rule is drafted and is either adopted or rejected after a "notice and comment" period.
MCR 6.201 has long been the main Rule governing discovery in felony cases (and has recently been expanded to misdemeanors, although it applies slightly different). Three of the four "Degrees" of Criminal Sexual Conduct in Michigan are felonies: First Degree Criminal Sexual Conduct (MCL 750.520b), Second Degree Criminal Sexual Conduct (MCL 750.520c); and Third Degree Criminal Sexual Conduct (MCL 750.520d).
The last, Fourth Degree Criminal Sexual Conduct (MCL 750.520e) is referred to as a "misdemeanor," but because it is punishable by State Prison time of up to 2 years, it is procedurally treated as a felony.
Thus, in a CSC case, MCR 6.201 applies, and the first section of the Rule, part "(A)"says what both the Prosecution and Defense must provide each other when a proper Demand or Request is made:
(A) Mandatory Disclosure. In addition to disclosures required by provisions of law other than MCL 767.94a, a party upon request must provide all other parties:
- the names and addresses of all lay and expert witnesses whom the party may call at trial; in the alternative, a party may provide the name of the witness and make the witness available to the other party for interview; the witness list may be amended without leave of the court no later than 28 days before trial;
- any written or recorded statement, including electronically recorded statements, pertaining to the case by a lay witness whom the party may call at trial, except that a defendant is not obliged to provide the defendant’s own statement;
- the curriculum vitae of an expert the party may call at trial and either a report by the expert or a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion;
- any criminal record that the party may use at trial to impeach a witness;
- a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial; and
- a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request. A party may request a hearing regarding any question of costs of reproduction, including the cost of providing copies of electronically recorded statements. On good cause shown, the court may order that a party be given the opportunity to test without destruction any tangible physical evidence.
You may have noticed that that MCR mentions a statute from the Michigan Legislature, MCL 767.94a, Disclosure of certain material or information by defendant to prosecuting attorney; compliance; motion for good cause. If you click and read that statute, you'll see that it was passed in 1994 and gives a list of things the Defense must provide the Prosecution not later than 10 days prior to trial (if the Prosecution requests it). In many CSC cases, the Prosecution makes a Request for Discovery under both the above MCR 6.201(A) and MCL 767.94a, although there is overlap between the two.
Part (B) of MCR 6.201 contains a list of specific things that the Prosecution must provide to the Defense. This part of the Rule is a "one-way street," since they are not things the Defense provides to the Prosecution (since they don't create or have them):
(B) Discovery of Information Known to the Prosecuting Attorney. Upon request, the prosecuting attorney must provide each defendant:
- any exculpatory information or evidence known to the prosecuting attorney;
- any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation;
- any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case, even if that person is not a prospective witness at trial;
- any affidavit, warrant, and return pertaining to a search or seizure in connection with the case; and
- any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.
RELATED: Police Bodycam evidence in Criminal Sexual Conduct cases.
Of course, there are always standard things like Police Reports and witness statements (both written and recorded) which are typical in all types of cases. But there are also some types of discovery that are fairly unique to Criminal Sexual Conduct cases, including things related to forensic interviews, Sexual Assault Nurse Examiner or SANE Examiner Reports and related evidence from a so-called Rape Kit, DNA evidence (Lab Reports and underlying data), and so on.
THINGS NOT IN THE COURT RULE
If you've read the above language from MCR 6.201(A) and (B), you might be thinking "What if something I need to defend my case or put on a defense isn't included in the list of what evidence I'm allowed to receive under the Court Rules?" There is another part of the Rule that may help, MCR 6.201(I):
(I) Modification. On good cause shown, the court may order a modification of the requirements and prohibitions of this rule.
In other words, one thing this means is that if either the Defense or Prosecution can come to the Court with a good reason why they need either the other side or some third-party to provide something that doesn't appear in the lists above from MCR 6.201(A) or (B), then they can ask the Court (most likely in a "Motion") to issue an Order that it be provided.
For example, if you're accused of Criminal Sexual Conduct in the workplace, you might need records from the business to show things like who was working on a certain date, or disciplinary or other information about the person accusing you, etc. Those things aren't necessarily covered by (A) and (B), above, and aren't necessarily in the possession of Police or Prosecutors. Therefore, your defense attorney may file a Discovery Motion asking the Court to issue a Subpoena or Order directing the business to provide the requested records.
It is not uncommon for attorneys, Judges and others to believe that if either side wants something not covered by the lists in (A) and (B), the attorney can simply issue a Subpoena on their own for the materials (such as in the "workplace" example above). However, we are aware of an Unpublished Michigan Court of Appeals Opinion in the case of People v. Ring (Case No. 298074) which states that a Subpoena is not a "tool" for obtaining discovery - rather, the party seeking the items must bring a Motion before the Court and ask the Judge to issue either an Order or Subpoena.
"STANAWAY" MOTIONS (FOR COUNSELING AND OTHER PRIVILEGED RECORDS AND MATERIALS)
Keeping with the idea above, you might wonder, "What if the accuser in my Criminal Sexual Conduct case has a medical or psychological issue that will help to prove my innocence by showing lack of credibility or something else important? Can we get their medical or psychological records?"
As you may know, medical, psychological, and many other types of relationships and the documents and records they generate are "privileged" under law, meaning the holder of the information is under a legal duty not to reveal the information to anyone without proper authorization from the client or patient. But what if the privilege conflicts with your rights?
The same Rule we've been referring to actually has a section addressing this, and it comes from a Michigan Supreme Court ruling in the case of People v. Stanaway and People v. Caruso, 446 Mich 643 (1994).
Under MCR 6.201(C), Prohibited Discovery (in pertinent part), it acknowledges the nature of privileges and that there is no "right" to discover privileged material, but then goes on to state:
(2) If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records.
- (a) If the privilege is absolute, and the privilege holder refuses to waive the privilege to permit an in camera inspection, the trial court shall suppress or strike the privilege holder’s testimony.
- (b) If the court is satisfied, following an in camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel. If the privilege is absolute and the privilege holder refuses to waive the privilege to permit disclosure, the trial court shall suppress or strike the privilege holder’s testimony.
- (c) Regardless of whether the court determines that the records should be made available to the defense, the court shall make findings sufficient to facilitate meaningful appellate review.. . .
Thus, the Defense can bring a Motion seeking even privileged information which can be granted by the Judge if certain conditions are met. Click here to learn more about how a Defendant accused of Criminal Sexual Conduct may be able to obtain medical or psychological records of the accuser in their defense.
"BRADY MATERIAL"
"Brady material" is the common phrase referring to a special duty a Prosecutor has which comes from the US Constitution, independent of the Michigan Court Rules. It comes from the 1963 US Supreme Court case of Brady v. Maryland holding that the Prosecution has an affirmative duty to (even without a Discovery Demand or Request from the Defense) to disclose information favorable to the Defense. This means favorable evidence that is material as to the issue of guilt at trial and with regard to punishment in the event of a conviction (i.e., such as "mitigating" circumstances).
The spirit of Brady is actually embodied in one of the paragraphs in the Court Rule above, MCR 6.201(B)(1): "any exculpatory information or evidence known to the prosecuting attorney."
Over the years, other US Supreme Court and State appellate Court cases have helped to further define what things qualify as "Brady material, for example, where the Prosecution has certain types of agreements with a witness they intend to call against the Defendant, which is embodied in paragraph (B)(5) in the Court Rule above: "any plea agreement, grant of immunity, or other agreement for testimony in connection with the case."
Importantly, in the US Supreme Court case of Kyles v. Whitley, the Court clarified that the Prosecution has to actively seek out this information from law enforcement - meaning they cannot rely on the argument "It wasn't actually in our file at the Prosecutor's Office, so we didn't have a duty to provide it."
When there is a failure to disclose Brady material, there are a range of possible sanctions and remedies, including dismissal of criminal charges and reversal of a criminal conviction.