February 8, 2005, Introduced by Rep. Meyer and referred to the Committee on 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 as
amended by 1983 PA 42, section 21a as amended by 1994 PA 56, and
section 36 as amended by 2002 PA 245.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER VIII
Sec.
20. (1) If a defendant in a felony criminal case
proposes to offer in his or her defense testimony to establish an
alibi at the time of the alleged offense, the defendant shall at
the time of arraignment on the information or within 15 days after
that arraignment but not less than 10 days before the trial of the
case, or at another time as the court directs, file and serve upon
the prosecuting attorney a notice in writing of his or her
intention to claim that defense. If a juvenile facing trial for an
offense that would be a crime if committed by an adult proposes to
offer in his or her defense testimony to establish an alibi at the
time of the alleged offense, the juvenile shall at the preliminary
hearing on the petition or within 15 days after that hearing, but
not less than 10 days before the trial of the case, or at another
time as the court directs, file and serve upon the prosecuting
attorney a notice in writing of his or her intention to claim that
defense. The notice shall contain, as particularly as is known to
the defendant or the defendant's attorney or the juvenile or the
juvenile's attorney, the names of witnesses to be called in behalf
of
the defendant or juvenile to establish that defense. The
defendant's
notice shall include specific
information as to the
place
at which the accused defendant
or juvenile claims to have
been at the time of the alleged offense.
(2)
Within 10 days after the receipt of the defendant's
notice required under subsection (1) but not later than 5 days
before
the trial of the case, or at such other another time as
the court may direct, the prosecuting attorney shall file and serve
upon
the defendant or juvenile a notice of rebuttal which shall
contain
that contains, as
particularly as is known to the
prosecuting attorney, the names of the witnesses whom the
prosecuting
attorney proposes to call in rebuttal to controvert the
defendant's
alibi defense at the trial
of the case.
(3)
Both the The defendant,
the juvenile, and the
prosecuting
attorney shall be are under a continuing duty to
disclose
promptly the names of additional witnesses which that
come
to the their attention of either party subsequent to
filing their respective notices as provided in this section. Upon
motion with notice to the other party and upon a showing by the
moving party that the name of an additional witness was not
available
when the notice required by subsections subsection (1)
or (2) was filed and could not have been available by the exercise
of due diligence, the additional witness may be called by the
moving party to testify as a witness for the purpose of
establishing or rebutting an alibi defense.
(4) As used in this section, "juvenile" includes an individual
who may be within the jurisdiction of the family division of
circuit court under section 2(a)(1) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2.
Sec.
20a. (1) If a defendant in a felony criminal case or a
juvenile facing trial for an offense that would be a crime if
committed by an adult proposes to offer in his or her defense
testimony to establish his or her insanity at the time of an
alleged offense, the defendant or juvenile shall file and serve
upon the court and the prosecuting attorney a notice in writing of
his or her intention to assert the defense of insanity not less
than
30 days before the date set for the trial of the case, or at
such
other another
time as the court directs.
(2) Upon receipt of a notice of an intention to assert the
defense of insanity, a court shall order the defendant or juvenile
to undergo an examination relating to his or her claim of insanity
by personnel of the center for forensic psychiatry or by other
qualified personnel, as applicable, for a period not to exceed 60
days
from the date of the order. When If the defendant or
juvenile is to be held in jail or detention pending trial, the
center or the other qualified personnel may perform the examination
in the jail or at the juvenile detention facility, or may notify
the sheriff to transport the defendant or juvenile to the center or
facility used by the qualified personnel for the examination, and
the sheriff shall return the defendant to the jail or the juvenile
to the juvenile detention facility upon completion of the
examination.
When If the defendant or juvenile is at liberty
pending trial, on bail or otherwise, the defendant or juvenile
shall make himself or herself available for the examination at the
place and time established by the center or the other qualified
personnel. If the defendant or juvenile, after being notified of
the place and time of the examination, fails to make himself or
herself available for the examination, the court may, without a
hearing, order his or her commitment to the center.
(3) The defendant or juvenile may, at his or her own expense,
or if indigent, at the expense of the county, secure an independent
psychiatric evaluation by a clinician of his or her choice on the
issue of his or her insanity at the time the alleged offense was
committed. The defendant or juvenile shall notify the prosecuting
attorney at least 5 days before the day scheduled for the
independent evaluation that he or she intends to secure such an
evaluation. The prosecuting attorney may similarly obtain
independent psychiatric evaluation. A clinician secured by an
indigent
defendant shall be or
juvenile is entitled to receive a
reasonable fee as approved by the court.
(4) The defendant or juvenile shall fully cooperate in his or
her
examination by personnel of the center for forensic
psychiatry
psychiatry's personnel or by
other qualified personnel,
and
by any other independent examiners for the defense and
prosecution
defendant, the juvenile, or the prosecutor. If he or
she fails to cooperate, and that failure is established to the
satisfaction of the court at a hearing prior to trial, the
defendant or juvenile shall be barred from presenting testimony
relating to his or her insanity at the trial of the case.
(5)
Statements made by the defendant
or juvenile to personnel
of
the center for forensic psychiatry
psychiatry's personnel, to
other qualified personnel, or to any independent examiner during an
examination
shall is not be admissible or and does not have
probative value in court at the trial of the case on any issues
other than his or her mental illness or insanity at the time of the
alleged offense.
(6) Upon conclusion of the examination, the center for
forensic
psychiatry, or the other qualified personnel, and
any
or independent examiner , shall prepare a
written report and
shall
submit the report to the prosecuting attorney and defense
counsel for the defendant or the juvenile. The report shall contain
all of the following:
(a) The clinical findings of the center, the qualified
personnel,
or any independent examiner.
(b)
The facts, in reasonable detail, upon on which the
findings were based.
(c)
The opinion of the center or center's, qualified
personnel
personnel's, and or the
independent examiner
examiner's opinion on the issue of the defendant's or juvenile's
insanity at the time the alleged offense was committed and whether
the defendant or juvenile was mentally ill or mentally retarded at
the time the alleged offense was committed.
(7) Within 10 days after the receipt of the report from the
center for forensic psychiatry or from the qualified personnel, or
within 10 days after the receipt of the report of an independent
examiner secured by the prosecution, whichever occurs later, but
not
later than 5 days before the trial of the case, or at such
other
another time as the court
directs, the prosecuting attorney
shall file and serve upon the defendant or juvenile a notice of
rebuttal
of the defense of insanity which that shall contain the
names of the witnesses whom the prosecuting attorney proposes to
call in rebuttal.
(8)
The report of the center for forensic psychiatry, the
qualified
personnel, or any independent examiner may be
admissible
in evidence upon the stipulation of the prosecution and
defense
parties.
(9)
As used in this section: , "qualified personnel" means
either
of the following: (a) Personnel
(a) "Center" means the center for forensic psychiatry.
(b) "Juvenile" includes an individual who may be within the
jurisdiction of the family division of circuit court under section
2(a)(1) of chapter XIIA of the probate code of 1939, 1939 PA 288,
MCL 712A.2.
(c) "Qualified personnel" means personnel meeting standards
determined
by the department of mental community health under
rules
promulgated pursuant to Act No. 306 of the Public Acts of
1969,
being sections 24.301 to 24.315 of the Michigan Compiled Laws
under the administrative procedures act of 1969, 1969 PA 306, MCL
24.201 to 24.328.
(b)
Until the rules to which subdivision (a) refers,
excluding
emergency rules, are in effect, personnel of the
psychiatric
clinic of the recorder's court of the city of Detroit.
Sec. 21. (1) If the defendant or juvenile fails to file and
serve the written notice prescribed in section 20 or 20a of this
chapter, the court shall exclude evidence offered by the defendant
or
juvenile for the purpose of
establishing an alibi or the
insanity
of the defendant defense. If the notice given by the
defendant or juvenile does not state, as particularly as is known
to the defendant or the defendant's attorney or the juvenile or the
juvenile's attorney, the name of a witness to be called in behalf
of the defendant or juvenile to establish a defense specified in
section 20 or 20a of this chapter, the court shall exclude the
witness testimony of a witness which is offered by
the defendant
or juvenile for the purpose of establishing that defense.
(2) If the prosecuting attorney fails to file and serve a
notice of rebuttal upon the defendant or juvenile as provided in
section 20 or 20a of this chapter, the court shall exclude evidence
offered by the prosecution in rebuttal to the defendant's or
juvenile's evidence relevant to a defense specified in section 20
or 20a of this chapter. If the notice given by the prosecuting
attorney does not state, as particularly as is known to the
prosecuting
attorney, the witness's name of a witness to be
called
in rebuttal of the defense of to
rebut the alibi or
insanity defense,
the court shall exclude the
witness testimony of
a
witness which is offered by the
prosecuting attorney for the
purpose of rebutting that defense.
(3) As used in this section, "juvenile" includes an individual
who may be within the jurisdiction of the family division of
circuit court under section 2(a)(1) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2.
Sec. 21a. (1) It is an affirmative defense to a prosecution
for a criminal offense or for an offense committed by a juvenile
that would be a crime if committed by an adult that the defendant
or juvenile was legally insane when he or she committed the acts
constituting the offense. An individual is legally insane if, as a
result of mental illness or of being mentally retarded as those
terms
are defined in section 400a of the
mental health code, Act
No.
258 of the Public Acts of 1974, being section 330.1400a of the
Michigan
Compiled Laws, or as a result of being mentally retarded
as
defined in section 500(h) of the mental health code, Act No. 258
of
the Public Acts of 1974, being section 330.1500 of the Michigan
Compiled
Laws 1001a of the mental health code, 1974 PA 258,
MCL
330.2001a, that person individual lacks substantial capacity
either to appreciate the nature and quality or the wrongfulness of
his or her conduct or to conform his or her conduct to the
requirements of the law. Mental illness or being mentally retarded
does not otherwise constitute a defense of legal insanity.
(2) An individual who was under the influence of voluntarily
consumed or injected alcohol or controlled substances at the time
of his or her alleged offense is not considered to have been
legally insane solely because of being under the influence of the
alcohol or controlled substances.
(3) The defendant or juvenile has the burden of proving the
defense of insanity by a preponderance of the evidence.
(4) As used in this section, "juvenile" includes an individual
who may be within the jurisdiction of the family division of
circuit court under section 2(a)(1) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2.
Sec. 36. (1) If the defendant or juvenile asserts a defense of
insanity in compliance with section 20a of this chapter, the
defendant may be found "guilty but mentally ill" or the juvenile
may be found "responsible but mentally ill" if, after trial, the
trier of fact finds all of the following:
(a) The defendant is guilty beyond a reasonable doubt of an
offense or the juvenile is responsible for an offense that would be
a crime if committed by an adult.
(b) The defendant or juvenile has proven by a preponderance of
the evidence that he or she was mentally ill at the time of the
commission of that offense.
(c) The defendant or juvenile has not established by a
preponderance of the evidence that he or she lacked the substantial
capacity either to appreciate the nature and quality or the
wrongfulness of his or her conduct or to conform his or her conduct
to the requirements of the law.
(2) If the defendant or juvenile asserts a defense of insanity
in compliance with section 20a of this chapter and the defendant or
juvenile waives his or her right to trial, by jury or by judge, the
trial judge, with the approval of the prosecuting attorney, may
accept
a plea of guilty but mentally ill in lieu or responsible
but mentally ill instead of a plea of guilty, a plea of
responsible, or a plea of nolo contendere. The judge shall not
accept a plea of guilty but mentally ill or responsible but
mentally ill until, with the defendant's or juvenile's consent, the
judge has examined the report or reports prepared in compliance
with section 20a of this chapter, the judge has held a hearing on
the issue of the defendant's or juvenile's mental illness at which
either party may present evidence, and the judge is satisfied that
the defendant or juvenile has proven by a preponderance of the
evidence that the defendant or juvenile was mentally ill at the
time of the offense to which the plea is entered. The reports shall
be made a part of the record of the case.
(3) If a defendant or juvenile is found guilty but mentally
ill or responsible but mentally ill or enters a plea to that effect
which
that is accepted by the
court, the court shall impose any
sentence that could be imposed by law upon a defendant who is
convicted of the same offense or upon a juvenile found responsible
for the same offense. If the juvenile is committed to the custody
of the family independence agency or to a juvenile facility, the
juvenile shall undergo further evaluation and be given treatment
that is psychiatrically indicated for the juvenile's mental illness
or retardation. If the defendant is committed to the custody of the
department of corrections, the defendant shall undergo further
evaluation and be given such treatment as is psychiatrically
indicated for his or her mental illness or retardation. Treatment
may be provided by the department of corrections or by the
department of community health as provided by law. Sections 1004
and 1006 of the mental health code, 1974 PA 258, MCL 330.2004 and
330.2006, apply to the discharge of the defendant from a facility
of the department of community health to which the defendant has
been admitted and to the return of the defendant to the department
of
corrections for the balance of the defendant's sentence. When
If a treating facility designated by either the department of
corrections or the department of community health discharges the
defendant before the expiration of the defendant's sentence, that
treating facility shall transmit to the parole board a report on
the condition of the defendant that contains the clinical facts,
the diagnosis, the course of treatment, the prognosis for the
remission of symptoms, the potential for recidivism, the danger of
the defendant to himself or herself or to the public, and
recommendations for future treatment. If the parole board considers
the defendant for parole, the board shall consult with the treating
facility at which the defendant is being treated or from which the
defendant has been discharged and a comparable report on the
condition of the defendant shall be filed with the board. If the
defendant is placed on parole, the defendant's treatment shall,
upon recommendation of the treating facility, be made a condition
of parole. Failure to continue treatment except by agreement with
the designated facility and parole board is grounds for revocation
of parole.
(4) If a defendant who is found guilty but mentally ill or a
juvenile who is responsible for an offense that would be a crime if
committed by an adult is placed on probation under the jurisdiction
of the sentencing court as provided by law, the trial judge, upon
recommendation of the center for forensic psychiatry, shall make
treatment a condition of probation. Reports as specified by the
trial judge shall be filed with the probation officer and the
sentencing court. Failure to continue treatment, except by
agreement with the treating agency and the sentencing court, is
grounds for revocation of probation. The period of probation for a
defendant shall not be for less than 5 years and shall not be
shortened without receipt and consideration of a forensic
psychiatric report by the sentencing court. The period of probation
for a juvenile shall extend to the juvenile's twenty-first
birthday. The period of probation for a juvenile shall not be
shortened without receipt and consideration of a forensic
psychiatric report by the sentencing court. Treatment shall be
provided by an agency of the department of community health or,
with the approval of the sentencing court and at individual
expense, by private agencies, private physicians, or other mental
health personnel. A psychiatric report shall be filed with the
probation officer and the sentencing court every 3 months during
the period of probation. If a motion on a petition to discontinue
probation is made by the defendant or juvenile, the probation
officer shall request a report as specified from the center for
forensic
psychiatry or any other facility certified by the
department of community health for the performance of forensic
psychiatric evaluation.
(5) As used in this section, "juvenile" includes an individual
who may be within the jurisdiction of the family division of
circuit court under section 2(a)(1) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 93rd Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 4213(request no.
00138'05).
(b) Senate Bill No.____ or House Bill No. 4214(request no.
00139'05).