November 5, 2008, Introduced by Senator CROPSEY and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 1, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16,
and 17 of chapter VI (MCL 766.1, 766.4, 766.5, 766.6, 766.7, 766.8,
766.9, 766.10, 766.11, 766.13, 766.14, 766.15, 766.16, and 766.17),
section 4 as amended by 1994 PA 167, section 9 as amended by 1988
PA 106, and section 14 as amended by 1998 PA 520, and by adding
section 2.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER VI
Sec.
1. The state and accused shall be are entitled to a
prompt
examination and probable
cause 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 examination, to bring them to a final
determination
without delay except as it may be necessary to secure
to
the accused a fair and impartial examination felony cases.
Sec. 2. (1) The chief judge of the district court, the county
prosecuting attorney, and the county sheriff may, by unanimous
agreement in writing, provide for preliminary examination
conferences to be held in that district court as provided in this
section before any preliminary examinations are conducted. This
subsection does not prohibit the court from conducting a
preliminary examination conference absent an agreement under this
subsection, and any preliminary examination conference agreement or
policy enacted before January 1, 2009 remains in effect until that
agreement or policy expires or otherwise becomes inoperable or a
different agreement or policy is adopted as provided in this
subsection.
(2) An agreement adopted under this section to provide for
preliminary examination conferences shall, at a minimum, allow the
county prosecuting attorney and the defendant and his or her
attorney to discuss the procedural aspects of the case, the
opportunity for bail, and the possibility of a plea agreement in
any preliminary examination conference conducted under the
agreement. The agreement shall not require proof of probable cause
to believe that a felony was committed and that the defendant
committed that felony. The prosecuting attorney and the defendant
and his or her attorney shall be ordered by the court to attend the
preliminary examination conference unless the conference is waived
by the defendant. In accordance with the William Van Regenmorter
crime victim's rights act, 1985 PA 87, MCL 780.751 to 780.834, the
victim shall be notified of a preliminary examination conference
held under this section and shall have the opportunity to discuss
the conference with the prosecuting attorney before the conference
is held.
(3) The court may preside over a preliminary examination
conference held under this section. If the court does not preside
over the conference, the judge shall be available during the period
in which the conference is held to dispose of any plea agreement or
to determine bail. The rules of evidence do not apply to a
preliminary examination conference held under this section, and
witnesses shall not be presented. The prosecuting attorney shall
provide the defendant and his or her attorney with all of the
following information related to the case before or during the
conference held under this subsection and, if additional
information is obtained after the conference, promptly after that
information is obtained:
(a) A copy of each available investigative report prepared by
or on behalf of law enforcement.
(b) A copy of each available witness statement.
(c) A copy of each available recorded confession and, if the
confession was transcribed, a copy of each available transcription.
(4) Except as otherwise provided in subsection (3), the
prosecuting attorney and the defendant remain subject to the rules
of discovery under the Michigan rules of court.
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 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 for a preliminary examination not
exceeding 14 days after the arraignment. At the preliminary
examination,
a magistrate shall examine the complainant and the
witnesses
in support of the prosecution , on under 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 1961 PA 236, MCL 600.2167, in
the
presence
of the accused, in regard to the offense charged. and in
regard
to any other matters connected with the charge that the
magistrate
considers pertinent. The preliminary
examination shall
not be used for purposes of discovery.
(2) If 1 or more defendants have been charged with a felony
arising out of the same transaction, the preliminary examinations
for all the defendants who have been arrested on those charges
shall be consolidated, and only 1 joint preliminary examination
shall be held. Upon motion of 1 or more of the defendants, the
consolidated preliminary examinations may be severed if the
defendant's attorney cannot attend a preliminary examination within
14 days after the arraignment or for other good cause shown.
(3) If the preliminary examination is for a felony for which
the maximum possible penalty is imprisonment for life or any term
of years, the rules of evidence apply at the preliminary
examination.
(4) If the preliminary examination is for an assaultive
felony, the prosecuting attorney may present the testimony of the
victim or victims of the felony to establish probable cause to
believe that a charged felony was committed and that there is
probable cause to believe that the defendant committed the charged
felony. The rules of evidence apply to the testimony of each
victim. If the victim testifies at the preliminary examination,
regardless of whether the declarant is available as a witness,
hearsay from a law enforcement officer involved in the
investigation is admissible and the court shall allow the
prosecuting attorney to present hearsay testimony from that law
enforcement officer to establish probable cause to believe that a
charged felony was committed and that there is probable cause to
believe that the defendant committed that felony. The court may
allow any charges based on or supported by hearsay evidence from a
law enforcement officer to be amended under section 13 of this
chapter or under any other applicable law in the same manner as
charges that are not supported by hearsay evidence from a law
enforcement officer may be amended. Other than the hearsay
testimony of a law enforcement officer involved in the
investigation, the rules of evidence apply to the testimony of each
witness. If the victim does not testify at the preliminary
examination, the rules of evidence apply to all witnesses.
(5) In all other cases, regardless of whether the declarant or
victim is available as a witness, hearsay from a law enforcement
officer involved in the investigation is admissible and the court
shall allow the prosecuting attorney to present hearsay testimony
from that law enforcement officer to establish probable cause to
believe that a charged felony was committed and that there is
probable cause to believe that the defendant committed the charged
felony. The court may allow any charges based on or supported by
hearsay evidence from a law enforcement officer to be amended under
section 13 of this chapter or under any other applicable law in the
same manner as charges that are not supported by hearsay evidence
from a law enforcement officer may be amended. Other than the
hearsay testimony of a law enforcement officer involved in the
investigation, the rules of evidence apply to the testimony of each
witness.
(6) Each party may subpoena witnesses, offer proofs, and
examine and cross-examine witnesses at the preliminary examination.
Except as otherwise provided by law, the court must conduct the
examination in accordance with the rules of evidence. A verbatim
record must be made of the preliminary examination.
(7) As used in this section, "assaultive felony" means a
felony offense against a person in violation of section 81, 81a,
81c, 81d, 82, 84, 86, 87, 88, 90b, 397, 411h, 411i, 520c, 520d,
520e, 520g, 530, or 543a to 543z of the Michigan penal code, 1931
PA 328, MCL 750.81, 750.81a, 750.81c, 750.81d, 750.82, 750.84,
750.86, 750.87, 750.88, 750.90b, 750.397, 750.411h, 750.411i,
750.520c, 750.520d, 750.520e, 750.520g, 750.530, and 750.543a to
750.543z.
Sec.
5. If it appears that a felony has been committed and
that
the court determines there is probable cause to believe that
the
accused is guilty thereof committed
a felony, and if the
offense is bailable by the magistrate and the accused offers
sufficient
bail, it that bail shall be taken accepted and the
prisoner discharged until trial. If sufficient bail is not offered
or the offense is not bailable by the magistrate, the accused shall
be committed to jail for trial. This section shall not prevent the
magistrate from releasing the accused on his or her own
recognizance
where if authorized by law.
Sec. 6. Any magistrate to whom complaint is made, or before
whom
any prisoner is brought, may associate with himself 1 or more
other magistrates of the same county, and they may together execute
the
powers and duties conferred upon such magistrates respectively
by
this chapter, but no fees shall be taxed for such those other
associates.
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 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 or she is charged with treason or murder, he may be
admitted to bail. An adjournment, continuance, or delay of a
preliminary
examination shall not be granted by a magistrate except
for
good cause shown or by agreement
of the parties. A magistrate
shall
not adjourn, continue, or delay the examination of any cause
by
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.
An action on the part of the magistrate
in adjourning or
continuing
any case, shall adjournment
or continuance does not
cause the magistrate to lose jurisdiction of the case.
Sec.
8. The person accused may be committed as provided in the
preceding
section 7, by
the verbal order of the magistrate, or by a
warrant
under his hand issued by
the magistrate, stating
that he
the
accused is committed for such further
examination on a day to
be
named in the warrant. ; and on the day therein specified, he may
be
brought The accused shall
appear before the magistrate by his
verbal
order to the same officer by or to whose custody he was
committed,
or by an order in writing to a different officer as
ordered or as specified in the warrant.
Sec.
9. (1) Upon the motion of any party, the examining
magistrate may close to members of the general public the
preliminary examination of a person charged with criminal sexual
conduct in any degree, assault with intent to commit criminal
sexual conduct, sodomy, gross indecency, or any other offense
involving sexual misconduct if all of the following conditions are
met:
(a) The magistrate determines that the need for protection of
a victim, a witness, or the defendant outweighs the public's right
of access to the preliminary examination.
(b) The denial of access to the preliminary examination is
narrowly tailored to accommodate the interest being protected.
(c) The magistrate states on the record the specific reasons
for his or her decision to close the preliminary examination to
members of the general public.
(2) In determining whether closure of the preliminary
examination is necessary to protect a victim or witness, the
magistrate shall consider all of the following:
(a) The psychological condition of the victim or witness.
(b) The nature of the offense charged against the defendant.
(c) The desire of the victim or witness to have the
preliminary examination closed to the public.
(3) The magistrate may close a preliminary examination to
protect the right of a party to a fair trial only if both of the
following apply:
(a) There is a substantial probability that the party's right
to a fair trial will be prejudiced by publicity that closure would
prevent.
(b) Reasonable alternatives to closure cannot adequately
protect the party's right to a fair trial.
Sec.
10. The Consistent with
the William Van Regenmorter crime
victim's rights act, 1985 PA 87, MCL 780.751 to 780.834, the
magistrate
while conducting such a
preliminary examination may
exclude from the place of the preliminary examination all the
witnesses
who have not been examined. ; and he The magistrate may
also,
if requested or if he sees or
she determines that there is
cause,
direct the require any witnesses whether for or against the
prisoner,
to be kept separate so that they
cannot converse with
each
other until they shall have been examined. And such The
magistrate
may in his discretion, also exclude from the place of
examination
any or all minors during the
preliminary examination of
such
those witnesses.
Sec. 11. (1) Witnesses may be compelled to appear before the
magistrate
by subpoenas issued by the magistrate, or by an officer
of
the court authorized to issue subpoenas court, in the same
manner, and
with the same effect, and subject to the same penalties
for
disobedience , or for refusing to be sworn or to testify, as in
cases of trials in the circuit court.
(2) Unless otherwise provided by law, the evidence given by
the witnesses examined in a municipal court shall be taken down in
shorthand by a county stenographer where one has been appointed
under the provision of a local act of the legislature or by the
county board of commissioners of the county in which the
preliminary examination is held, or the magistrate, for cause
shown, may appoint some other suitable stenographer at the request
of the prosecuting attorney of the county and with the consent of
the respondent or the respondent's attorney, to act as official
stenographer
pro tempore for the court of the magistrate to take
down
in shorthand the testimony of an presented at the preliminary
examination.
A An appointed stenographer so appointed shall take
the
constitutional oath as the official stenographer and shall be
is
entitled to the following fees: a fee of $6.00
for each day and
$3.00
for each half day while so employed in as the official
stenographer taking down the testimony, and 10 cents per folio for
typewriting
word processing the testimony taken down in shorthand,
or
other compensation and fees as shall be fixed by the county
board
of commissioners appointing that
appointed the stenographer.
The fees may be allowed and paid out of the treasury of the county
in
which the testimony is taken. It shall not be necessary for a A
witness
or witnesses whose testimony is taken in shorthand by the
stenographer is not required to sign the testimony. Except as
provided
in section 15 of this chapter, the testimony so taken
under
this subsection , shall be typewritten word processed,
certified, received, and filed in the court to which the accused is
held for trial.
(3)
Testimony taken by a stenographer appointed pursuant to
under subsection (2) or taken by shorthand or recorded by a court
stenographer or district court recorder as provided by law, when
transcribed,
shall be considered is prima facie evidence of the
testimony of the witness or witnesses at the preliminary
examination.
Sec.
13. If it shall appear to the magistrate determines at
the conclusion of the preliminary examination either that an
offense has not been committed or that there is not probable cause
for
charging the defendant therewith with that offense, he the
magistrate
shall discharge such the defendant.
If it shall appear
to
the magistrate determines at the conclusion of the preliminary
examination that a felony has been committed and there is probable
cause
for charging the defendant therewith with that felony, the
magistrate
shall forthwith promptly bind the defendant to appear
before
the circuit court of such that
county , or other court
having
jurisdiction of the cause, for
trial.
Sec. 14. (1) If the court determines at the conclusion of the
preliminary examination of a person charged with a felony that the
offense charged is not a felony or that an included offense that is
not a felony has been committed, the accused shall not be dismissed
but the magistrate shall proceed in the same manner as if the
accused had initially been charged with an offense that is not a
felony.
(2) If at the conclusion of the preliminary examination of a
juvenile
the magistrate finds that a specified juvenile violation
did
not occur or that there is not
probable cause to believe that
the
juvenile committed the a specified
juvenile violation, but that
there is probable cause to believe that some other offense occurred
and that the juvenile committed that other offense, the magistrate
shall transfer the case to the family division of circuit court of
the county where the offense is alleged to have been committed.
(3) A transfer under subsection (2) does not prevent the
family division of circuit court from waiving jurisdiction over the
juvenile under section 4 of chapter XIIA of 1939 PA 288, MCL
712A.4.
(4) As used in this section, "specified juvenile violation"
means any of the following:
(a) A violation of section 72, 83, 86, 89, 91, 316, 317, 349,
520b, 529, 529a, or 531 of the Michigan penal code, 1931 PA 328,
MCL 750.72, 750.83, 750.89, 750.91, 750.316, 750.317, 750.349,
750.520b, 750.529, 750.529a, and 750.531.
(b) A violation of section 84 or 110a(2) of the Michigan penal
code, 1931 PA 328, MCL 750.84 and 750.110a, if the juvenile is
armed with a dangerous weapon. As used in this subdivision,
"dangerous weapon" means 1 or more of the following:
(i) A loaded or unloaded firearm, whether operable or
inoperable.
(ii) A knife, stabbing instrument, brass knuckles, blackjack,
club, or other object specifically designed or customarily carried
or possessed for use as a weapon.
(iii) An object that is likely to cause death or bodily injury
when used as a weapon and that is used as a weapon or carried or
possessed for use as a weapon.
(iv) An object or device that is used or fashioned in a manner
to lead a person to believe the object or device is an object or
device described in subparagraphs (i) to (iii).
(c) A violation of section 186a of the Michigan penal code,
1931 PA 328, MCL 750.186a, regarding escape or attempted escape
from a juvenile facility, but only if the juvenile facility from
which the individual escaped or attempted to escape was 1 of the
following:
(i) A high-security or medium-security facility operated by the
family independence agency or a county juvenile agency.
(ii) A high-security facility operated by a private agency
under contract with the family independence agency or a county
juvenile agency.
(d) A violation of section 7401(2)(a)(i) or 7403(2)(a)(i) of
the public health code, 1978 PA 368, MCL 333.7401 and 333.7403.
(e) An attempt to commit a violation described in subdivisions
(a) to (d).
(f) Conspiracy to commit a violation described in subdivisions
(a) to (d).
(g) Solicitation to commit a violation described in
subdivisions (a) to (d).
(h) Any lesser included offense of a violation described in
subdivisions (a) to (g) if the individual is charged with a
violation described in subdivisions (a) to (g).
(i) Any other violation arising out of the same transaction as
a violation described in subdivisions (a) to (g) if the individual
is charged with a violation described in subdivisions (a) to (g).
Sec. 15. (1) Except as provided in subsection (2) or (3), all
preliminary examinations and recognizances taken by a magistrate
pursuant
to under this chapter shall be immediately certified and
returned by the magistrate to the clerk of the court before which
the party charged is bound to appear. If that magistrate refuses or
neglects
to return the same certified
hearing or recognizance, the
magistrate may be compelled immediately by order of the court, and
in case of disobedience may be proceeded against as for a contempt
by an order to show cause or a bench warrant.
(2) A written transcript of the testimony of a preliminary
examination need not be prepared or filed except upon written
demand of the prosecuting attorney, defense attorney, or defendant
if the defendant is not represented by an attorney, or as ordered
sua
sponte by the trial court. A
written demand to prepare and file
a written transcript is timely made if filed within 2 weeks
following the arraignment on the information or indictment. A copy
of a demand to prepare and file a written transcript shall be filed
with
the trial court, all attorneys of record, and the court which
that
held the preliminary examination. Upon sua
sponte order of the
trial court or timely written demand of an attorney, a written
transcript
of the preliminary examination or a portion thereof of
that transcript shall be prepared and filed with the trial court.
(3) If a written demand is not timely made as provided in
subsection (2), a written transcript need not be prepared or filed
except upon motion of an attorney or a defendant who is not
represented by an attorney, upon cause shown, and when granting of
the motion would not delay the start of the trial. When the start
of the trial would otherwise be delayed, upon good cause shown to
the trial court, in lieu of preparation of the transcript or a
portion
thereof of that transcript, the trial court may direct that
the
defense and prosecution shall have an opportunity before trial
to listen to any electronically recorded testimony, a copy of the
recording tape or disc, or a stenographer's notes being read back.
Sec. 16. If the person recognized according to the provisions
of
this chapter shall does not appear before the magistrate at the
time
appointed for his or her further examination hearing,
the
magistrate shall record the default, and shall certify the
recognizance,
with the record of such that
default, to the court to
which
the accused might otherwise have been held for trial. ,
and
the
like proceedings The failure
to appear shall be had thereon as
upon
the treated as a breach of the condition of a recognizance for
appearance
to appear before such that court.
Sec.
17. Whenever no If sufficient bail is offered not
provided, and the prisoner is committed to jail, the magistrate
before
whom the examination hearing
was had, shall certify upon the
mittimus issued by him or her, the sum for which bail was required.
,
and if If the prisoner shall offer sufficient offers bail
for
such
sum in the amount specified to the clerk of the court wherein
in
which the prisoner was committed for
trial, it that bail shall
be
taken accepted by said the clerk and the prisoner
shall be
discharged.
Enacting section 1. This amendatory act takes effect January
1, 2009 and applies to probable cause hearings commenced on or
after that date. A preliminary examination commenced before January
1, 2009 shall be continued until completion under the law in effect
on the date that the preliminary examination began.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No. ___ or House Bill No. ___ (request no.
03671'07 *) of the 94th Legislature is enacted into law.