3.4​Discovery Provisions That Pertain to Crime Victims

A.​Applicable Discovery Rules²

MCR 6.201 (criminal discovery rule) applies to felony proceedings in both district and circuit court. People v Greenfield (On Reconsideration), 271 Mich App, 442, 450 n 6 (2006). “The provisions of MCR 6.201, except for MCR 6.201(A), apply in all misdemeanor proceedings.” MCR 6.610(E)(1). However, in limited circumstances, MCR 6.201(A) may apply in misdemeanor proceedings. See MCR 6.610(E)(2). “MCR 6.201(A) only applies in misdemeanor proceedings . . . if a defendant elects to request discovery pursuant to MCR 6.201(A). If a defendant requests discovery pursuant to MCR 6.201(A) and the prosecuting attorney complies, the defendant must also comply with MCR 6.201(A).” MCR 6.610(E)(2).

“A trial court may grant a motion for discovery on two different grounds. First, MCR 6.201 makes certain discovery mandatory[ in felony cases]. Second, in a criminal case, [the] trial court has the discretion to grant additional discovery.” People v Valeck, 223 Mich App 48, 50 (1997), citing to People v Laws, 218 Mich App 447, 454-455 (1996) and People v Johnson (Richard), 168 Mich App 581, 584 (1988). Discovery in juvenile delinquency proceedings is governed by MCR 3.922(A). See the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 7 for more information.

MCR 6.001(D) prohibits taking depositions and other discovery proceedings as provided in subchapter 2.300 of the Michigan Court Rules in criminal cases for discovery purposes. However, “[t]his exception merely precludes parties in criminal proceedings from utilizing the discovery methods of subchapter 2.300; it is not broad enough to exclude the remaining provisions of subchapter 2.300 from criminal discovery.” People v Holtzman, 234 Mich App 166, 177 (1999).

B.​Privacy Protections During Discovery

All parties are required to disclose some information to the opposing side (i.e., mandatory disclosure). See MCR 6.201(A) (all parties’ obligations); MCR 6.201(B) (prosecutor’s obligations); MCL 767.94a (defendant’s obligations); and MCR 6.610 (obligations in misdemeanor proceedings).³ However, some limitations or protections are in place to protect victim privacy and are discussed in the following sub-subsections.

1.​Name and Address of Witness

“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 . . . witnesses whom the party may call at trial[.]” MCR 6.201(A)(1).

As an alternative to the mandatory disclosure of a witness’s name and address, MCR 6.201(A)(1) permits a party to “provide the name of the witness and make the witness available to the other party for interview[.]”

The alternative of making witnesses available for examination instead of providing the other party with the witnesses’ names and addresses is an alternative applicable only to the information specified in MCR 6.201(A)(1); the alternative in MCR 6.201(A)(1) does not apply to the information a prosecutor must provide to a defendant pursuant to MCR 6.201(B)(2). People v Jack, 336 Mich App 316, 325-326 (2021) (holding that the prosecution improperly redacted the addresses, phone numbers, and birthdates of potential witnesses from the police reports it provided to defendant under MCR 6.201(B)(2)). MCR 6.201(B)(2) unambiguously requires a prosecutor to provide to each defendant on request the unredacted police reports and interrogation records involved in the case; however, parts of a police report related to an ongoing investigation are not subject to mandatory disclosure. MCR 6.201(B)(2); Jack, 336 Mich App at 324. Any additional information the prosecution wishes to withhold from a defendant must qualify for an exception under MCR 6.201(I) or be covered by a protective order obtained under MCR 6.201(E). Jack, 336 Mich App at 326.

The contact information for crime victims is also subject to the requirements of MCR 6.201; a victim’s contact information “is not automatically shielded” from the information the prosecution is obligated to provide to a defendant during discovery. People v Antaramian, 346 Mich App 710, 713 (2023). “[MCR 6.201(E)] provides the prosecutor with an avenue to seek judicial permission to withhold otherwise presumptively discoverable contact information.” Antaramian, 346 Mich App at 722. To redact a victim’s contact information from a police report provided to a defendant, “a trial court must determine in each case whether there is good cause to enter a protective order under MCR 6.201(E) or to modify the discovery rules under MCR 6.201(I).” Antaramian, 346 Mich App at 713.

MCL 780.758(2) of the CVRA prohibits including a victim’s address and phone number “‘in the court file or ordinary court documents.’” Antaramian, 346 Mich App at 719, quoting MCL 780.758(2). However, MCL 780.758 does not authorize a prosecutor “to automatically redact victim contact information from police reports before discovery in a criminal case.” Antaramian, 346 Mich App at 720. Additionally, MCL 780.758(3) does not authorize a prosecutor’s office “to implement a policy for redacting victim contact information in police reports produced during discovery”; MCL 780.758(3) exempts from disclosure of this information under the freedom of information act; it does not apply to discovery sought by a defendant in a criminal case. Antaramian, 346 Mich App at 721. Finally, “[e]ven the provisions under MCL 780.758(1), through which the prosecution may move to prevent compelled testimony regarding a victim’s address, employment, and other personal identification information, are not automatic.” Antaramian, 346 Mich App at 721-722.

2.​Discovery of Privileged Records⁴

“Notwithstanding any other provision of this rule, there is no right to discover information or evidence that is protected from disclosure by constitution, statute, or privilege, including information or evidence protected by a defendant’s right against self-incrimination, except as provided in [MCR 6.201(C)(2)].” MCR 6.201(C)(1).

MCR 6.201(C)(2) sets out the procedure in which a defendant may discover certain privileged records, including a requirement for the court to conduct an in camera inspection of the records if “[the] 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.” See People v Davis-Christian, 316 Mich App 204, 209, 212-213 (2016) (finding the trial court abused its discretion in granting the defendant’s motion for an in camera review of the complainant’s counseling records when it “failed to apply the law as articulated in [People v] Stanaway[, 446 Mich 643 (1994),] and MCR 6.201(C)(2)[, and instead] . . . articulated [its own] standard [that] would allow an in camera review of most—if not all—of the counseling records of alleged sexual assault victims[;]” specifically, the defendant did not demonstrate that the records “would be ‘necessary to the defense[]’” as required under MCR 6.201(C)(2) where his “assertion of need merely voice[d] a hope of corroborating evidence, untethered to any articulable facts[,]” and his “access to the police report and [the victim’s] forensic interview” when coupled with witness statements gave him “the information necessary to properly prepare a defense[]”).

A trial court properly denied a defendant’s request to discover privileged information when the request “essentially amounted to an attempt to ‘fish’ for evidence” that might have enhanced the defendant’s defense. People v Warner, 339 Mich App 125, 152 (2021), rev’d on other grounds ___ Mich ___ (2024).⁵ In addition, the privileged information sought by a defendant must be relevant to the particular aspect of the defense the defendant wishes to enhance. Warner, 339 Mich App at 150-152. Specifically, in support of the trial court’s denial of the defendant’s discovery request, the Warner Court pointed out “that the victim’s medical records were not necessary for defendant’s defense that the victim had fabricated the allegations against him.” Id. at 152.

Similarly, defendant’s “self-serving and conclusory allegations that [the victim] ha[d] an unspecified mental health condition” failed “to meet the threshold showing of establishing a reasonable probability that the [victim’s counseling] records contained information material to [defendant’s] defense to overcome the statutory privileges at issue.” People v Wisniewski, ___ Mich App ___, ___ (2025) (cleaned up). “[The Michigan] Supreme Court has rejected any attempt by a criminal defendant to articulate a generalized assertion of a need to undermine and attack the credibility of his accuser as a justification for an in camera review of records subject to the counselor-patient privilege.” Id. at ___ (quotation marks and citation omitted).

“Records disclosed under [MCR 6.201] shall remain in the exclusive custody of counsel for the parties, shall be used only for the limited purpose approved by the court, and shall be subject to such other terms and conditions as the court may provide.” MCR 6.201(C)(2)(e).

3.​Excision

MCR 6.201(D) provides for the exclusion of some portions of material or information that is otherwise discoverable:

“When some parts of material or information are discoverable and other parts are not discoverable, the party must disclose the discoverable parts and may excise the remainder. The party must inform the other party that nondiscoverable information has been excised and withheld. On motion, the court must conduct a hearing in camera to determine whether the reasons for excision are justifiable. If the court upholds the excision, it must seal and preserve the record of the hearing for review in the event of an appeal.”

4.​Protective Orders

In some cases, a court may issue a protective order to guard against improper use of discovery material:

“On motion and a showing of good cause, the court may enter an appropriate protective order. In considering whether good cause exists, the court shall consider the parties’ interests in a fair trial; the risk to any person of harm, undue annoyance, intimidation, embarrassment, or threats; the risk that evidence will be fabricated; and the need for secrecy regarding the identity of informants or other law enforcement matters. On motion, with notice to the other party, the court may permit the showing of good cause for a protective order to be made in camera. If the courts grants a protective order, it must seal and preserve the record of the hearing for review in the event of an appeal.” MCR 6.201(E).

C.​Discovery Violations and Remedies

MCR 6.201(J)⁶ addresses a party’s failure to comply with the requirements of MCR 6.201:

“If a party fails to comply with this rule, the court, in its discretion, may order the party to provide the discovery or permit the inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances. Parties are encouraged to bring questions of noncompliance before the court at the earliest opportunity. Wil[l]ful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. An order of the court under this section is reviewable only for abuse of discretion.”

Although MCR 6.201(J) affords a court discretion in fashioning a remedy for noncompliance with a discovery order, People v Jackson (Andre), 292 Mich App 583, 591 (2011), exclusion of otherwise admissible evidence is a remedy which should be used only in the most egregious cases, People v Taylor (Robert), 159 Mich App 468, 487 (1987). The preferred remedy for discovery violations is to grant an adjournment to allow the other party to react to the new information. People v Burwick, 450 Mich 281, 298 (1995).