HOUSE BILL No. 6383 September 24, 2002, Introduced by Rep. Meyer and referred to the Committee on Civil Law and the Judiciary. A bill to amend 1927 PA 175, entitled "The code of criminal procedure," by amending sections 20, 20a, 21, 21a, and 36 of chapter VIII (MCL 768.20, 768.20a, 768.21, 768.21a, and 768.36), section 20a of chapter VIII as amended by 1983 PA 42, section 21a of chapter VIII as amended by 1994 PA 56, and section 36 of chapter VIII as amended by 2002 PA 245. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 CHAPTER VIII 2 Sec. 20. (1) If a defendant in afelonyCRIMINAL case 3 proposes to offer in his OR HER defense testimony to establish an 4 alibi at the time of the alleged offense, the defendant shall at 5 the time of arraignment on the information or within 15 days 6 after that arraignment but not less than 10 days before the trial 7 of the case, or at such other time as the court directs, file and 07066'02 LTB 2 1 serve upon the prosecuting attorney a notice in writing of his OR 2 HER intention to claim that defense. IF A JUVENILE FACING TRIAL 3 FOR AN OFFENSE THAT WOULD BE A CRIME IF COMMITTED BY AN ADULT 4 PROPOSES TO OFFER IN HIS OR HER DEFENSE TESTIMONY TO ESTABLISH AN 5 ALIBI AT THE TIME OF THE ALLEGED OFFENSE, THE JUVENILE SHALL AT 6 THE TIME OF PRELIMINARY HEARING ON THE PETITION OR WITHIN 15 DAYS 7 AFTER THAT HEARING, BUT NOT LESS THAN 10 DAYS BEFORE THE TRIAL OF 8 THE CASE, OR AT SUCH OTHER TIME AS THE COURT DIRECTS, FILE AND 9 SERVE UPON THE PROSECUTING ATTORNEY A NOTICE IN WRITING OF HIS OR 10 HER INTENTION TO CLAIM THAT DEFENSE. The notice shall contain, as 11 particularly as is known to the defendant or the defendant's 12 attorney OR THE JUVENILE OR THE JUVENILE'S ATTORNEY, the names of 13 witnesses to be called in behalf of the defendant OR JUVENILE to 14 establish that defense. Thedefendant'snotice shall include 15 specific information as to the place at which theaccused16 DEFENDANT OR JUVENILE claims to have been at the time of the 17 alleged offense. 18 (2) Within 10 days after the receipt of thedefendant's19 notice REQUIRED UNDER SUBSECTION (1) but not later than 5 days 20 before the trial of the case, or at such other time as the court 21 may direct, the prosecuting attorney shall file and serve upon 22 the defendant OR JUVENILE a notice of rebuttalwhich shall23containTHAT CONTAINS, as particularly as is known to the prose- 24 cuting attorney, the names of the witnesses whom the prosecuting 25 attorney proposes to call in rebuttal to controvert the 26defendant'sALIBI defense at the trial of the case. 07066'02 3 1 (3)Both theTHE defendant, THE JUVENILE, and the 2 prosecuting attorneyshall beARE under a continuing duty to 3 disclose promptly the names of additional witnesseswhichTHAT 4 come totheTHEIR attentionof either partysubsequent to 5 filing their respective notices as provided in this section. 6 Upon motion with notice to the other party and upon a showing by 7 the moving party that the name of an additional witness was not 8 available when the notice required by subsections (1) or (2) was 9 filed and could not have been available by the exercise of due 10 diligence, the additional witness may be called by the moving 11 party to testify as a witness for the purpose of establishing or 12 rebutting an alibi defense. 13 (4) AS USED IN THIS SECTION, "JUVENILE" MEANS AN INDIVIDUAL 14 WHO IS WITHIN THE JURISDICTION OF THE FAMILY DIVISION OF THE CIR- 15 CUIT COURT UNDER SECTION 2(A)(1) OF CHAPTER XIIA OF THE PROBATE 16 CODE OF 1939, 1939 PA 288, MCL 712A.2. 17 Sec. 20a. (1) If a defendant in afelonyCRIMINAL case OR 18 A JUVENILE FACING TRIAL FOR AN OFFENSE THAT WOULD BE A CRIME IF 19 COMMITTED BY AN ADULT proposes to offer in his or her defense 20 testimony to establish his or her insanity at the time of an 21 alleged offense, the defendant OR JUVENILE shall file and serve 22 upon the court and the prosecuting attorney a notice in writing 23 of his or her intention to assert the defense of insanity not 24 less than 30 days before the date set for the trial of the case, 25 or at such other time as the court directs. 26 (2) Upon receipt of a notice of an intention to assert the 27 defense of insanity, a court shall order the defendant OR 07066'02 4 1 JUVENILE to undergo an examination relating to his or her claim 2 of insanity by personnel of the center for forensic psychiatry or 3 by other qualified personnel, as applicable, for a period not to 4 exceed 60 days from the date of the order.WhenIF the 5 defendant OR JUVENILE is to be held in jail OR DETENTION pending 6 trial, the center or the other qualified personnel may perform 7 the examination in the jail OR AT THE JUVENILE DETENTION 8 FACILITY, or may notify the sheriff to transport the defendant OR 9 JUVENILE to the center or facility used by the qualified person- 10 nel for the examination, and the sheriff shall return the 11 defendant to the jail OR THE JUVENILE TO THE JUVENILE DETENTION 12 FACILITY upon completion of the examination.WhenIF the 13 defendant OR JUVENILE is at liberty pending trial, on bail or 14 otherwise, the defendant OR JUVENILE shall make himself or her- 15 self available for the examination at the place and time estab- 16 lished by the center or the other qualified personnel. If the 17 defendant OR JUVENILE, after being notified of the place and time 18 of the examination, fails to make himself or herself available 19 for the examination, the court may, without a hearing, order his 20 or her commitment to the center. 21 (3) The defendant OR JUVENILE may, at his or her own 22 expense, or if indigent, at the expense of the county, secure an 23 independent psychiatric evaluation by a clinician of his or her 24 choice on the issue of his or her insanity at the time the 25 alleged offense was committed. The defendant OR JUVENILE shall 26 notify the prosecuting attorney at least 5 days before the day 27 scheduled for the independent evaluation that he or she intends 07066'02 5 1 to secure such an evaluation. The prosecuting attorney may 2 similarly obtain independent psychiatric evaluation. A clinician 3 secured by an indigent defendantshall beOR JUVENILE IS enti- 4 tled to receive a reasonable fee as approved by the court. 5 (4) The defendant OR JUVENILE shall fully cooperate in his 6 or her examination bypersonnel ofthe center for forensic 7psychiatryPSYCHIATRY'S PERSONNEL or by other qualified person- 8 nel, and by any other independent examiners for thedefense and9prosecutionDEFENDANT, THE JUVENILE, OR THE PROSECUTOR. If he 10 or she fails to cooperate, and that failure is established to the 11 satisfaction of the court at a hearing prior to trial, the 12 defendant OR JUVENILE shall be barred from presenting testimony 13 relating to his or her insanity at the trial of the case. 14 (5) Statements made by the defendant OR JUVENILE to 15personnel ofthe center for forensicpsychiatryPSYCHIATRY'S 16 PERSONNEL, to other qualified personnel, or to any independent 17 examiner during an examinationshallIS notbeadmissible 18orAND DOES NOT have probative value in court at the trial of 19 the case on any issues other than his or her mental illness or 20 insanity at the time of the alleged offense. 21 (6) Upon conclusion of the examination, the center for 22 forensic psychiatry,or theother qualified personnel,and23anyOR independent examiner,shall prepare a written report 24 and shall submit the report to the prosecuting attorney and 25defensecounsel FOR THE DEFENDANT OR THE JUVENILE. The report 26 shall contain ALL OF THE FOLLOWING: 07066'02 6 1 (a) The clinical findings of the center, the qualified 2 personnel, oranyindependent examiner. 3 (b) The facts, in reasonable detail, upon which the findings 4 were based. 5 (c) Theopinion of the center orCENTER'S, qualified 6personnelPERSONNEL'S,andOR the independentexaminer7 EXAMINER'S OPINION on the issue of the defendant's OR JUVENILE'S 8 insanity at the time the alleged offense was committed and 9 whether the defendant OR JUVENILE was mentally ill or mentally 10 retarded at the time the alleged offense was committed. 11 (7) Within 10 days after the receipt of the report from the 12 center for forensic psychiatry or from the qualified personnel, 13 or within 10 days after the receipt of the report of an indepen- 14 dent examiner secured by the prosecution, whichever occurs later, 15 but not later than 5 days before the trial of the case, or at 16 such other time as the court directs, the prosecuting attorney 17 shall file and serve upon the defendant OR JUVENILE a notice of 18 rebuttal of the defense of insanitywhichTHAT shall contain 19 the names of the witnesses whom the prosecuting attorney proposes 20 to call in rebuttal. 21 (8) The report of the center for forensic psychiatry,the22 qualified personnel, oranyindependent examiner may be admis- 23 sible in evidence upon the stipulation of theprosecution and24defensePARTIES. 25 (9) As used in this section:, "qualified personnel" means26either of the following: (a) Personnel07066'02 7 1 (A) "JUVENILE" MEANS AN INDIVIDUAL WHO IS WITHIN THE 2 JURISDICTION OF THE FAMILY DIVISION OF THE CIRCUIT COURT UNDER 3 SECTION 2(A)(1) OF CHAPTER XIIA OF THE PROBATE CODE OF 1939, 1939 4 PA 288, MCL 712A.2. 5 (B) "QUALIFIED PERSONNEL" MEANS PERSONNEL meeting standards 6 determined by the department ofmentalCOMMUNITY health under 7 rules promulgatedpursuant to Act No. 306 of the Public Acts of81969, being sections 24.301 to 24.315 of the Michigan Compiled9LawsUNDER THE ADMINISTRATIVE PROCEDURES ACT OF 1969, 1969 10 PA 306, MCL 24.201 TO 24.328. 11(b) Until the rules to which subdivision (a) refers,12excluding emergency rules, are in effect, personnel of the psy-13chiatric clinic of the recorder's court of the city of Detroit.14 Sec. 21. (1) If the defendant OR JUVENILE fails to file 15 and serve the written notice prescribed in section 20 or 20a OF 16 THIS CHAPTER, the court shall exclude evidence offered by the 17 defendant OR JUVENILE for the purpose of establishing an alibi or 18theinsanityof the defendantDEFENSE. If the notice given 19 by the defendant OR JUVENILE does not state, as particularly as 20 is known to the defendant or the defendant's attorney OR THE 21 JUVENILE OR THE JUVENILE'S ATTORNEY, the name of a witness to be 22 called in behalf of the defendant OR JUVENILE to establish a 23 defense specified in section 20 or 20a OF THIS CHAPTER, the court 24 shall exclude the WITNESS testimonyof a witness which is25 offered by the defendant OR JUVENILE for the purpose of estab- 26 lishing that defense. 07066'02 8 1 (2) If the prosecuting attorney fails to file and serve a 2 notice of rebuttal upon the defendant OR JUVENILE as provided in 3 section 20 or 20a OF THIS CHAPTER, the court shall exclude evi- 4 dence offered by the prosecution in rebuttal to the defendant's 5 OR JUVENILE'S evidence relevant to a defense specified in 6 section 20 or 20a OF THIS CHAPTER. If the notice given by the 7 prosecuting attorney does not state, as particularly as is known 8 to the prosecuting attorney, the WITNESS'S nameof a witnessto 9 be calledin rebuttal of the defense ofTO REBUT THE alibi or 10 insanity DEFENSE, the court shall exclude the WITNESS testimony 11of a witness which isoffered by the prosecuting attorney for 12 the purpose of rebutting that defense. 13 (3) AS USED IN THIS SECTION, "JUVENILE" MEANS AN INDIVIDUAL 14 WHO IS WITHIN THE JURISDICTION OF THE FAMILY DIVISION OF THE CIR- 15 CUIT COURT UNDER SECTION 2(A)(1) OF CHAPTER XIIA OF THE PROBATE 16 CODE OF 1939, 1939 PA 288, MCL 712A.2. 17 Sec. 21a. (1) It is an affirmative defense to a prosecution 18 for a criminal offense OR FOR AN OFFENSE COMMITTED BY A JUVENILE 19 THAT WOULD BE A CRIME IF COMMITTED BY AN ADULT that the defendant 20 OR JUVENILE was legally insane when he or she committed the acts 21 constituting the offense. An individual is legally insane if, as 22 a result of mental illness OR OF BEING MENTALLY RETARDED as THOSE 23 TERMS ARE defined in section400a of the mental health code, Act24No. 258 of the Public Acts of 1974, being section 330.1400a of25the Michigan Compiled Laws, or as a result of being mentally26retarded as defined in section 500(h) of the mental health code,27Act No. 258 of the Public Acts of 1974, being section 330.1500 of07066'02 9 1the Michigan Compiled Laws1001A OF THE MENTAL HEALTH CODE, 1974 2 PA 258, MCL 330.2001A, thatpersonINDIVIDUAL lacks substantial 3 capacity either to appreciate the nature and quality or the 4 wrongfulness of his or her conduct or to conform his or her con- 5 duct to the requirements of the law. Mental illness or being 6 mentally retarded does not otherwise constitute a defense of 7 legal insanity. 8 (2) An individual who was under the influence of voluntarily 9 consumed or injected alcohol or controlled substances at the time 10 of his or her alleged offense is not considered to have been 11 legally insane solely because of being under the influence of the 12 alcohol or controlled substances. 13 (3) The defendant OR JUVENILE has the burden of proving the 14 defense of insanity by a preponderance of the evidence. 15 (4) AS USED IN THIS SECTION, "JUVENILE" MEANS AN INDIVIDUAL 16 WHO IS WITHIN THE JURISDICTION OF THE FAMILY DIVISION OF THE CIR- 17 CUIT COURT UNDER SECTION 2(A)(1) OF CHAPTER XIIA OF THE PROBATE 18 CODE OF 1939, 1939 PA 288, MCL 712A.2. 19 Sec. 36. (1) If the defendant OR JUVENILE asserts a defense 20 of insanity in compliance with section 20a of this chapter, the 21 defendant may be found "guilty but mentally ill" OR THE JUVENILE 22 MAY BE FOUND "RESPONSIBLE BUT MENTALLY ILL" if, after trial, the 23 trier of fact finds all of the following: 24 (a) The defendant is guilty beyond a reasonable doubt of an 25 offense OR THE JUVENILE IS RESPONSIBLE FOR AN OFFENSE THAT WOULD 26 BE A CRIME IF COMMITTED BY AN ADULT. 07066'02 10 1 (b) The defendant OR JUVENILE has proven by a preponderance 2 of the evidence that he or she was mentally ill at the time of 3 the commission of that offense. 4 (c) The defendant OR JUVENILE has not established by a pre- 5 ponderance of the evidence that he or she lacked the substantial 6 capacity either to appreciate the nature and quality or the 7 wrongfulness of his or her conduct or to conform his or her con- 8 duct to the requirements of the law. 9 (2) If the defendant OR JUVENILE asserts a defense of insan- 10 ity in compliance with section 20a of this chapter and the 11 defendant OR JUVENILE waives his or her right to trial, by jury 12 or by judge, the trial judge, with the approval of the prosecut- 13 ing attorney, may accept a plea of guilty but mentally ill OR 14 RESPONSIBLE BUT MENTALLY ILL in lieu of a plea of guilty, A PLEA 15 OF RESPONSIBLE, or a plea of nolo contendere. The judge shall 16 not accept a plea of guilty but mentally ill OR RESPONSIBLE BUT 17 MENTALLY ILL until, with the defendant's OR JUVENILE'S consent, 18 the judge has examined the report or reports prepared in compli- 19 ance with section 20a of this chapter, the judge has held a hear- 20 ing on the issue of the defendant's OR JUVENILE'S mental illness 21 at which either party may present evidence, and the judge is sat- 22 isfied that the defendant OR JUVENILE has proven by a preponder- 23 ance of the evidence that the defendant OR JUVENILE was mentally 24 ill at the time of the offense to which the plea is entered. The 25 reports shall be made a part of the record of the case. 26 (3) If a defendant OR JUVENILE is found guilty but mentally 27 ill OR RESPONSIBLE BUT MENTALLY ILL or enters a plea to that 07066'02 11 1 effectwhichTHAT is accepted by the court, the court shall 2 impose any sentence that could be imposed by law upon a defendant 3 who is convicted of the same offense OR UPON A JUVENILE FOUND 4 RESPONSIBLE FOR THE SAME OFFENSE. IF THE JUVENILE IS COMMITTED 5 TO THE CUSTODY OF THE FAMILY INDEPENDENCE AGENCY OR TO A JUVENILE 6 FACILITY, THE JUVENILE SHALL UNDERGO FURTHER EVALUATION AND BE 7 GIVEN SUCH TREATMENT AS IS PSYCHIATRICALLY INDICATED FOR THE 8 JUVENILE'S MENTAL ILLNESS OR RETARDATION. If the defendant is 9 committed to the custody of the department of corrections, the 10 defendant shall undergo further evaluation and be given such 11 treatment as is psychiatrically indicated for his or her mental 12 illness or retardation. Treatment may be provided by the depart- 13 ment of corrections or by the department of community health as 14 provided by law. Sections 1004 and 1006 of the mental health 15 code, 1974 PA 258, MCL 330.2004 and 330.2006, apply to the dis- 16 charge of the defendant from a facility of the department of com- 17 munity health to which the defendant has been admitted and to the 18 return of the defendant to the department of corrections for the 19 balance of the defendant's sentence. When a treating facility 20 designated by either the department of corrections or the depart- 21 ment of community health discharges the defendant before the 22 expiration of the defendant's sentence, that treating facility 23 shall transmit to the parole board a report on the condition of 24 the defendant that contains the clinical facts, the diagnosis, 25 the course of treatment, the prognosis for the remission of symp- 26 toms, the potential for recidivism, the danger of the defendant 27 to himself or herself or to the public, and recommendations for 07066'02 12 1 future treatment. If the parole board considers the defendant 2 for parole, the board shall consult with the treating facility at 3 which the defendant is being treated or from which the defendant 4 has been discharged and a comparable report on the condition of 5 the defendant shall be filed with the board. If the defendant is 6 placed on parole, the defendant's treatment shall, upon recommen- 7 dation of the treating facility, be made a condition of parole. 8 Failure to continue treatment except by agreement with the desig- 9 nated facility and parole board is grounds for revocation of 10 parole. 11 (4) If a defendant who is found guilty but mentally ill OR A 12 JUVENILE WHO IS RESPONSIBLE FOR AN OFFENSE THAT WOULD BE A CRIME 13 IF COMMITTED BY AN ADULT is placed on probation under the juris- 14 diction of the sentencing court as provided by law, the trial 15 judge, upon recommendation of the center for forensic psychiatry, 16 shall make treatment a condition of probation. Reports as speci- 17 fied by the trial judge shall be filed with the probation officer 18 and the sentencing court. Failure to continue treatment, except 19 by agreement with the treating agency and the sentencing court, 20 is grounds for revocation of probation. The period of probation 21 FOR A DEFENDANT shall not be for less than 5 years and shall not 22 be shortened without receipt and consideration of a forensic psy- 23 chiatric report by the sentencing court. THE PERIOD OF PROBATION 24 FOR A JUVENILE SHALL EXTEND TO THE JUVENILE'S TWENTY-FIRST 25 BIRTHDAY. THE PERIOD OF PROBATION FOR A JUVENILE SHALL NOT BE 26 SHORTENED WITHOUT RECEIPT AND CONSIDERATION OF A FORENSIC 27 PSYCHIATRIC REPORT BY THE SENTENCING COURT. Treatment shall be 07066'02 13 1 provided by an agency of the department of community health or, 2 with the approval of the sentencing court and at individual 3 expense, by private agencies, private physicians, or other mental 4 health personnel. A psychiatric report shall be filed with the 5 probation officer and the sentencing court every 3 months during 6 the period of probation. If a motion on a petition to discon- 7 tinue probation is made by the defendant OR JUVENILE, the proba- 8 tion officer shall request a report as specified from the center 9 for forensic psychiatry oranyother facility certified by THE 10 department of community health for the performance of forensic 11 psychiatric evaluation. 12 (5) AS USED IN THIS SECTION, "JUVENILE" MEANS AN INDIVIDUAL 13 WHO IS WITHIN THE JURISDICTION OF THE FAMILY DIVISION OF THE CIR- 14 CUIT COURT UNDER SECTION 2(A)(1) OF CHAPTER XIIA OF THE PROBATE 15 CODE OF 1939, 1939 PA 288, MCL 712A.2. 16 Enacting section 1. This amendatory act does not take 17 effect unless all of the following bills of the 91st Legislature 18 are enacted into law: 19 (a) Senate Bill No. ________ or House Bill No. 6381 20 (request no. 07064'02). 21 (b) Senate Bill No. _______or House Bill No. 6382 22 (request no. 07065'02). 07066'02 Final page. LTB