Chapter 1: Common Issues Arising in Trial Court Proceedings
1.1Access to Court Proceedings and Records
A.Personal Identifying Information (PII)
“[P]ersonal identifying information is protected and shall not be included in any public document or attachment filed with the court on or after April 1, 2022,” unless otherwise provided by the Michigan Court Rules. MCR 1.109(D)(9)(a).
1.Protected PII Defined
An individual’s protected PII includes the following:
•date of birth,
•Social Security number or national identification number,
•driver’s license number or number of state-issued personal identification card,
•passport number, and
•financial account numbers. MCR 1.109(D)(9)(a)(i)-(v).
2.Filing and Accessing Protected PII
a.Filing a Document Containing Protected PII
When law or court rule requires protected PII, as it is defined in MCR 1.109(D)(9)(a), to be filed with the court, or when the court finds the information necessary to identify a specific individual in a case, the PII must be provided using the form and manner required by the State Court Administrative Office (SCAO).1 MCR 1.109(D)(9)(b)(i).
Protected PII provided to the court in compliance with the requirements of MCR 1.109(D)(9)(b) must be entered into the case management system according to standards established by the SCAO. MCR 1.109(D)(9)(e). “The information shall be maintained for the purposes for which it was collected and for which its use is authorized by federal or state law or court rule; however, it shall not be included or displayed as case history under MCR 8.119(D)(1).
Except as otherwise provided in the court rules, when a party is required to provide protected PII in a public document to be filed with the court, the party must redact the protected PII from the document and file the PII form approved by SCAO.2 MCR 1.109(D)(9)(b)(iii). Unredacted protected PII may be included on Uniform Law Citations filed with the court and on proposed orders submitted to the court. Id. If a party submits a proposed order to the court that is required to contain unredacted protected PII once issued by the court, the party must not attach the proposed order to another document. Id.
The SCAO form must contain the information redacted from the document and must assign an appropriate reference to the information contained in the SCAO form that uniquely associates each item redacted from the document with the corresponding personal identifying information provided on the SCAO form.3 MCR 1.109(D)(9)(b)(iii). When a reference is made in a case to the identifier representing the personal identifying information on the SCAO form, the reference to the identifier is understood to refer to the complete information related to the identifier appearing on the form. Id. The SCAO form may include fields for the PII, and the information inserted into the fields will be protected.4 Id.
Providing a Social Security number. When a Social Security number is required to be filed with the court, the number must be limited to the last four digits, except when the documents being filed are required by the Friend of the Court and will not be placed in the court’s legal file under MCR 8.119(D). MCR 1.109(D)(9)(b)(ii).5
b.Amending Protected PII
An individual may amend as of right the protected PII provided in the SCAO form. MCR 1.109(D)(9)(b)(iii).
c.Access to a Document Containing Protected PII
Limited access to protected PII. Protected PII under MCR 1.109(D) is nonpublic. MCR 1.109(D)(9)(b)(iv). Protected PII is available for purposes of case activity or as otherwise required by law or court rule. Id. The protected PII provided is available only to the parties in a case, to interested persons described in the court rules, and to other persons, entities, or agencies authorized by law or court rules to access nonpublic records that have been filed with the court. Id.
3.Consenting to the Access of Protected PII
A party may stipulate in writing to permit any person, entity, or agency to access to his or her protected PII. MCR 1.109(D)(9)(b)(v)(A). Any person, entity, or agency attempting to access the protected PII must provide the court with the stipulation permitting access. Id.
a.Access to a Party’s Date of Birth
Obtaining authority to access a party’s date of birth. For the purpose of confirming a particular person’s identity and with the person’s consent, an individual may be authorized to access a party’s date of birth without having to present a stipulation as is required under MCR 1.109(D)(9)(b)(v)(A) in order to access protected PII. MCR 1.109(D)(9)(b)(v)(B)(1).
Possession of the party’s consent. The individual authorized to access a birthdate must retain possession of the consent, or the consent must be retained by the entity for which the individual works, or the person or organization (or someone acting on their behalf) seeking a party’s date of birth. MCR 1.109(D)(9)(b)(v)(B)(1).
b.List of Individuals Authorized to Access a Party’s Date of Birth
SCAO list of authorized individuals. The SCAO will maintain a list of the individuals having the authority to access a party’s date of birth. MCR 1.109(D)(9)(b)(v)(B)(1). To appear on the SCAO list, an individual must provide in writing the name of the entity for which the individual works and an assurance that on each occasion the individual seeks to confirm a party’s birthdate, it will be in the course of the individual’s work and with the consent of the person whose date of birth is sought. Id. The assurance must be updated within every six months from the date of the original submission. Id.
Additional information required for placement on the SCAO list. In addition, an individual attempting to be placed on the SCAO list of individuals authorized to access birthdates must provide proof of his or her employer’s or hiring entity’s professional liability insurance in effect during the time the individual is seeking the person’s date of birth. MCR 1.109(D)(9)(b)(v)(B)(2). The proof of insurance is nonpublic and must be updated upon the expiration or termination of the insurance policy. Id.
Court’s duty to verify identity. A court must verify the identity of an individual claiming to be authorized to obtain a person’s birthdate by matching the name appearing on the individual’s state-issued identification card with the individual’s name on the SCAO list. MCR 1.109(D)(9)(b)(v)(B)(3). Courts and SCOA may create secure, individualized accounts that allow authorized individuals to access a party’s date of birth electronically. Id. After confirming the identity of the individual seeking information about a person’s birthdate, a court must supply the authorized individual with a public register of actions or other public document that includes the person’s date of birth. Id.
4.No Exemptions for Service of Protected PII
Except by a court order issued under MCR 1.109(D)(9)(b)(vii) making the PII confidential, there is no exemption from the requirement that a court or a party serve a nonpublic document that was filed with the court and includes the protected PII that must be provided to the court as stated in MCR 1.109(D)(9)(b)(i). MCR 1.109(D)(9)(b)(vi).
5.Protected PII May Be Made Confidential
For just cause found, a court may, on its own motion or by motion of a party, order that PII be made confidential. MCR 1.109(D)(9)(b)(vii). The order must identify the person, party, or entity whose access to the PII is restricted. Id. When a party’s home address or telephone number is made confidential, the court order must provide an alternative address for service on the party or an alternative phone number by which the party may be contacted about case activity. Id.
6.Failing to Comply With Requirements to Protect PII
If a party files his or her protected PII in a public document and does not provide the information in the form and manner established by the SCAO under MCR 1.109(D)(9), the party waives the protection available for his or her PII. MCR 1.109(D)(9)(d)(i). When a party fails to comply with the requirements of MCR 1.109(D) the court, on its own initiative or by a party’s motion, may have the improperly filed documents sealed and order that new documents with redactions be prepared and filed. MCR 1.109(D)(9)(d)(ii).
7.Redacting Protected and Unprotected PII
a.Protected PII in Documents Filed With a Court
A person whose protected PII appears in a document filed with the court may request in writing that the protected PII be redacted;6 if a person makes such a request, the clerk of the court must promptly process the request. MCR 1.109(D)(10)(c)(i). No motion fee is required for the request, the request must specify the protected PII to be redacted, and the document must be maintained as a nonpublic document in the case file. Id.
b.Unprotected PII in Public Documents Filed With a Court
PII not protected under MCR 1.109 may be redacted or made confidential or nonpublic. MCR 1.109(D)(10)(c)(ii). A party or a person having unprotected PII in a public document filed with the court may, in an ex parte motion using the appropriate SCAO-approved form,7 request that the court direct the court clerk to redact the information specified by the party or person or to make the information confidential or nonpublic. Id. The court has discretion to hold a hearing on the motion. Id. The court must enter an order to redact the information or to make the information confidential or nonpublic “if the party or person’s privacy interest outweighs the public’s interest in the information.”8 Id.
c.Protected PII in an Exhibit Offered for Hearing or Trial
Protected PII may be redacted from an exhibit offered at a hearing or a trial when a person or party having protected PII in the exhibit requests in writing to have the PII redacted. MCR 1.109(D)(10)(c)(iii). No motion fee is required. Id. The person or party seeking redaction must identify in the request the specific protected PII to be redacted, and the request must be maintained as a nonpublic document in the case file. Id. The court must order the information redacted “if the party or person’s privacy interest outweighs the public’s interest in the information.” Id.
d.Unredacted Protected PII in Transcripts Filed With a Court
Unredacted protected PII may be included on transcripts filed with the court; however, the clerk of the court must redact protected PII if a person submits a written request identifying the page and line number for each place in the transcript where the PII is located. MCR 1.109(D)(10)(c)(iv).
8.Responsibility for Redaction
The parties and their attorneys are solely responsible for excluding or redacting the PII listed in MCR 1.109(D)(9) from all documents filed with or offered to the court. MCR 1.109(D)(10)(a). There is no requirement that at the time of filing, a court clerk review, redact, or screen documents for PII, whether protected or unprotected, without regard to whether the documents are filed electronically or on paper. Id.
Except as otherwise provided in the court rules, a court clerk is not required to redact protected PII from documents filed with or offered to the court9 before providing a copy of the document requested, whether in-person or via the internet, or before making available at the courthouse via a publicly accessible computer that gives a person direct access to the document. MCR 1.109(D)(10)(a).
9.Certifying a Record
“The clerk of the court may certify a redacted record as a true copy of an original record on file with the court by stating that information has been redacted in accordance with law or court rule, or sealed as ordered by the court.” MCR 1.109(D)(10)(d).
10.Maintaining a Document After Redacting PII
Documents from which PII has been redacted, or to which access has been restricted, must be maintained according to the standards established by the SCAO. MCR 1.109(D)(10)(e).
“[C]ourts may determine the manner and extent of the use of videoconferencing technology and may require participants to attend court proceedings by videoconferencing technology.” MCR 2.407(B)(2). Proceedings occurring by videoconferencing are “subject to requirements, standards, and guidelines published by the [SCAO] and the criteria set forth in [MCR 2.407(C)].” MCR 2.407(B)(1). MCR 2.407 “does not supersede a participant’s ability to participate by telephonic means under MCR 2.402.” MCR 2.407(B)(3). See also MCR 6.006(A)(4).
The Michigan Court Rules identify certain proceedings in both circuit and district/municipal court for which videoconferencing technology is the preferred mode. MCR 6.006(B) and MCR 6.006(C). “In all other proceedings, the in-person appearance of the parties, witnesses, and other participants is presumed.” MCR 6.006(B)(3); MCR 6.006(C)(2). However, “[a] court may, at the request of any participant, or sua sponte, allow the use of videoconferencing technology by any participant in any criminal proceeding.” MCR 6.006(A)(2). “The use of telephonic, voice, videoconferencing, or two-way interactive video technology, must be in accordance with any requirements and guidelines established by the [SCAO], and all proceedings at which such technology is used must be recorded verbatim by the court.” MCR 6.006(D). Use of videoconferencing technology under MCR 6.006 is subject to MCR 2.704. MCR 6.006(A)(1).
Nothing in the court rules precludes “a participant from requesting to physically appear in person for any proceeding.” MCR 2.407(B)(4). Accordingly, “[i]f there is a request to appear in person, or a participant is found to be unable to adequately use the technology, to hear or understand or be heard or understood, the presiding judge and any attorney of record for said participant must appear in person with the participant for said proceeding. Subject to [MCR 2.407(B)(5)], the court must allow other participants to participate using videoconferencing technology.” MCR 2.407(B)(4).
A court may determine “that a case is not suited for videoconferencing, and may require any hearing, even a proceeding categorized as presumptively subject to videoconferencing technology, to be conducted in person.” MCR 2.407(B)(5). However, a court must “consider the factors listed in [MCR 2.407(C)]” and “state its decision and reasoning, either in writing or on the record, when requiring in-person proceedings in each case where there is a presumption for the use of videoconferencing technology.” MCR 2.407(B)(5)(a)-(b).
“When determining whether to utilize videoconferencing technology,” courts must “consider constitutional requirements, in addition to the factors contained in MCR 2.407.” MCR 6.006(A)(3). MCR 2.407(C) directs the court to consider the following factors “[i]n determining in a particular case the use of videoconferencing technology and the manner of proceeding with videoconferencing:
(1) The capabilities of the court and the parties to participate in a videoconference.
(2) Whether a specific articulable prejudice would result.
(3) The convenience of the parties and the proposed witness(es), the cost of producing the witness in person in relation to the importance of the offered testimony, and the potential to increase access to courts by allowing parties and/or their counsel to appear by videoconferencing technology.
(4) Whether the procedure would allow for full and effective cross-examination, especially when the cross-examination would involve documents or other exhibits.
(5) Whether the court has reason to believe that the participants in this hearing will not be able to maintain the dignity, solemnity, and decorum of court while using videoconferencing technology, or that the use of videoconferencing technology will undermine the integrity, fairness, or effectiveness of the proceeding.
(6) Whether a physical liberty or other fundamental interest is at stake in the proceeding.
(7) Whether the court can sufficiently control the participants in this hearing or matter so as to effectively extend the courtroom to the remote location.
(8) Whether the use of videoconferencing technology presents the person at a remote location in a diminished or distorted sense that negatively reflects upon the individual at the remote location to persons present in the courtroom.
(9) Whether the person appearing by videoconferencing technology presents a significant security risk to transport and be present physically in the courtroom.
(10) Whether the parties or witness(es) have waived personal appearance or stipulated to videoconferencing.
(11) The proximity of the videoconferencing request date to the proposed appearance date.
(12) Any other factors that the court may determine to be relevant.” MCR 2.407(C).
Courts “must provide reasonable notice to participants of the time and mode of a proceeding. If a proceeding will be held using videoconferencing technology, the court must provide reasonable notice of the way(s) to access that proceeding.” MCR 2.407(B)(6). Courts must also “allow a party and their counsel to engage in confidential communication during a proceeding being conducted by videoconferencing technology.” MCR 2.407(B)(7). “If, during the course of a videoconference proceeding, the court or a participant is unable to proceed due to failure of technology, the court must reschedule the proceeding and promptly notify the participants of the rescheduled date and time and whether the proceeding will be held using videoconferencing technology or in person.” MCR 2.407(B)(8). “All proceedings that are held using videoconferencing technology or communication equipment must be recorded verbatim by the court with the exception of hearings that are not required to be recorded by law.” MCR 2.407(B)(9). “Courts must provide access to a proceeding held using videoconferencing technology to the public either during the proceeding or immediately after via access to a video recording of the proceeding, unless the proceeding is closed or access would otherwise be limited by statute or rule.” MCR 2.407(B)(10).
“A participant who requests the use of videoconferencing technology shall ensure that the equipment available at the remote location meets the technical and operational standards established by [SCAO].” MCR 2.407(D)(1). Additionally, a “participant who will be using videoconferencing technology must provide the court with the participant’s contact information, including mobile phone number(s) and email address(es), in advance of the court date when videoconferencing technology will be used. A court may collect the contact information using an SCAO-approved form. The contact information form used under this provision shall be confidential. An email address for an attorney must be the same address as the one on file with the State Bar of Michigan.” MCR 2.407(D)(2). “There is no motion fee for requests submitted under [MCR 2.407].” MCR 2.407(D)(3).
1.Mode of Proceedings in Circuit Court
In circuit court, the use of videoconferencing technology is the preferred mode for “(a) initial arraignments on the information; (b) pretrial conferences; (c) motions pursuant to MCR 2.119; and (d) pleas.” MCR 6.006(B)(2). “In all other proceedings, the in-person appearance of the parties, witnesses, and other participants is presumed.” MCR 6.006(B)(3).
“Circuit courts may use videoconferencing technology to conduct any non-evidentiary or trial proceeding.” MCR 6.006(B)(1). However, MCR 6.006(B)(4) prohibits the use of videoconferencing technology “in bench or jury trials, or any proceeding wherein the testimony of witnesses or presentation of evidence may occur, except in the discretion of the court after all parties have had notice and an opportunity to be heard on [its] use[.]”
“Nothing in [MCR 6.006] prevents a defendant, who otherwise has the right to appear in person, from demanding to physically appear in person for any proceeding. If there is a demand to appear in person, or a participant is found to be unable to adequately use the technology, to hear or understand or be heard or understood, the presiding judge and any attorney of record for said participant must appear in person with the participant for said proceeding. Subject to MCR 2.407(B)(5), the court must allow other participants to participate using videoconferencing technology.” MCR 6.006(B)(5). See also M Crim JI 5.16, which addresses witness testimony introduced via video rather than in-person:
“The next witness, [identify witness], will testify by videoconferencing technology. You are to judge the witness’s testimony by the same standards as any other witness, and you should give the witness’s testimony the same consideration you would have given it had the witness testified in person. If you cannot hear something that is said or if you have any difficulty observing the witness on the videoconferencing screen, please raise your hand immediately.”
2.Mode of Proceedings in District and Municipal Court
In district and municipal court, the use of videoconferencing technology is the preferred mode for “conducting arraignments and probable cause conferences for in-custody defendants.” MCR 6.006(C)(1). “In all other proceedings, the in-person appearance of the parties, witnesses, and other participants is presumed.” MCR 6.006(C)(2).
However, “the use of videoconferencing technology shall not be used in evidentiary hearings, bench trials or jury trials, or any criminal proceeding wherein the testimony of witnesses or presentation of evidence may occur, except in the discretion of the court.” MCR 6.006(C)(3). Nonetheless, “as long as the defendant is either present in the courtroom or has waived the right to be present, district courts may use videoconferencing to take testimony from any witness in a preliminary examination.” MCR 6.006(C)(4). See also M Crim JI 5.16, which addresses witness testimony introduced via video rather than in-person:
“The next witness, [identify witness], will testify by videoconferencing technology. You are to judge the witness’s testimony by the same standards as any other witness, and you should give the witness’s testimony the same consideration you would have given it had the witness testified in person. If you cannot hear something that is said or if you have any difficulty observing the witness on the videoconferencing screen, please raise your hand immediately.”
MCR 8.108(B)(1) states that a “court reporter or recorder shall attend the court sessions under the direction of the court and take a verbatim record of the following:
“(a) the voir dire of prospective jurors;
(b) the testimony;
(c) the charge to the jury;
(d) in a jury trial, the opening statements and final arguments;
(e) the reasons given by the court for granting or refusing any motion made by a party during the course of a trial; and
(f) opinions and orders dictated by the court and other matters as may be prescribed by the court.”
MCR 8.108(E) states in part that “[t]he court reporter or recorder shall prepare without delay, in legible English, a transcript of the records taken by him or her (or any part thereof): (1) to any party on request, [or] . . . (2) on order of the trial court.” Id. If the transcript is prepared in response to a party’s request, “[t]he reporter or recorder is entitled to receive the compensation prescribed in the statute on fees from the person who makes the request.” MCR 8.108(E)(1). If the transcript is prepared on order of the court, “[t]he court may order the transcript prepared without expense to either party.” MCR 8.108(E)(2).
MCR 8.109(A) indicates that a trial court is “authorized to use audio and video recording equipment for making a record of court proceedings” if the equipment meets the standards published by the State Court Administrative Office (SCAO)10 or is analog equipment that SCAO has approved for use. In addition, trial courts that use audio or video recording equipment “must adhere to the audio and video recording operating standards published by [SCAO].” MCR 8.109(B). Occasionally, proceedings occur without a court reporter present, or with a recording system that was not turned on or did not function correctly. If a settled statement of facts is made and certified as prescribed by MCR 7.210(B)(2), it controls the timing of the appellant’s brief in the same manner as would a transcript. MCR 7.212(A)(1)(a)(iii).
MCR 7.210(B)(2) provides specific steps for an appellant to follow “[w]hen a transcript of the proceedings in the trial court or tribunal cannot be obtained from the court reporter or recorder . . . to settle the record and to cause the filing of a certified settled statement of facts to serve as a substitute for the transcript.” “If a criminal defendant discovers during the pendency of an appeal that a transcript is unavailable, the defendant must file ‘a motion to settle the record and, where reasonably possible, a proposed statement of facts’ to serve as a substitute for the transcript.” People v Craig, 342 Mich App 217, 228 (2022) (quoting MCR 7.210(B)(2)(a)). “A proposed statement of facts must concisely set forth the substance of the testimony from the missing transcript in sufficient detail to provide for appellate review.” Craig, 342 Mich App at 228 (cleaned up).
“The inability to obtain the transcripts of criminal proceedings may so impede a defendant’s right of appeal under Const 1963, art 1, § 20 that a new trial must be ordered.” Craig, 342 Mich App at 226 (cleaned up). However, the “failure of the State to provide a transcript when, after good faith effort, it cannot physically do so, does not automatically entitle a defendant to a new trial.” Id. at 226 (quotation marks and citation omitted). “For example, if a defendant argues that they were not given statutory notice of the right to a jury trial and there is no transcript of the relevant proceeding, the presumption of regularity applies, and in the absence of substantial proofs to the contrary, it will be presumed that the official discharged their public duty in this regard. Moreover, when the surviving record is sufficient to allow evaluation of the appeal, the defendant’s constitutional right is satisfied. Whether a record is sufficient in a particular case will of course depend upon the questions that must be asked of it. That is, where only a portion of the trial transcript is missing, the surviving record must be reviewed in terms of whether it is sufficient to allow evaluation of a defendant’s claim on appeal.” People v Skippergosh, ___ Mich App ___, ___ (2024) (cleaned up) (holding that the defendant failed to demonstrate “a due-process violation or violation of the court rules for the allegations of error identified in his affidavit” because the errors were “irrelevant to the claims presented on appeal or nonexistent”).
In Craig, the defendant alleged that “the trial court might have provided improper jury instructions” and “the possible insufficiency of the evidence to show the kind of ‘knowing restraint’ needed to prove kidnapping[.]” Craig, 342 Mich App at 231, 232. The Court of Appeals observed that “defendant showed sufficient prejudice to warrant a new trial” and “did not baldly assert that the missing transcript might reveal the existence of error warranting reversal.” Id. at 230, 231. “Rather . . . defendant cited specific facts from the surviving record and the evidentiary hearing to identify multiple possible appellate issues, which, if meritorious, would entitle him to a new trial.” Id. at 231. Because the defendant “identified two potential errors that entitle[d] him to a new trial on all charges, and the absence of the transcript from the trial’s third and final day [was] prejudicial and [denied] him the opportunity for a fair appeal,” the Court held that the missing transcript deprived defendant of his “constitutional right to an appeal” and “the trial court did not abuse its discretion by granting defendant a new trial[.]” Id. at 233, 235.
Committee Tip:
It is of the utmost importance to assure that proceedings are being recorded to avoid situations in which records need to be recreated when courts have failed to record proceedings.
Defendants are entitled to a public trial. US Const, Am VI; Const 1963, art 1, § 20; MCL 600.1420. The right to a public trial extends to pretrial hearings, Waller v Georgia, 467 US 39, 43-47 (1984), and the jury selection process, Presley v Georgia, 558 US 209, 212-216 (2010), and “other portions of the trial.” Weaver v Massachusetts, 582 US 286, 292 (2017). “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of responsibility and to the importance of their functions[.]” People v Davis, 509 Mich 52, 66 (2022) (quotation marks and citation omitted). “The public-trial right also helps ensure that judges and prosecutors fulfill their duties ethically, encourages witnesses to come forward, and discourages perjury.” Id. “Despite serving these important interests, the public-trial right is not unlimited . . . .” Id.
Indeed, “there are circumstances that allow the closure of a courtroom during any stage of a criminal proceeding, even over a defendant’s objection:
The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
If there is a timely assertion of the Sixth Amendment public trial right, the remedy for a violation must be appropriate to the violation, although the defendant should not be required to prove specific prejudice in order to obtain relief . . . .” People v Sherrill, ___ Mich App ___, ___ (2024) (cleaned up) (observing that MCR 8.116(D) “prescrib[es] procedures for courts to follow when limiting access to court proceedings”).
Preventing interference with the jury is an overriding interest sufficient to justify a courtroom closure. Davis 509 Mich at 66-67. In Davis, the Court concluded that the trial court closed the courtroom to the public for the majority of the trial when, “[a]fter a benign interaction between a courtroom observer and a juror on the second day of trial,” it “ordered the courtroom closed to all observers except [the victim’s] mother for the remainder of the trial.” Davis, 509 Mich at 58, 68 (further concluding that “the closure was broader than necessary to protect the impartiality of the jury,” “failed to consider reasonable alternatives to closing the proceedings,” and “the trial court failed to make adequate factual findings to support the closure,” rendering the “decision to close the courtroom . . . unjustified”). Although defendant’s trial counsel did not object, the Court held that “mere silence in the face of a courtroom closure results in forfeiture, not waiver, of the public trial right.” Id. at 65. Despite accepting the trial court’s assertion that it “did not take any further action to effectuate this closure,” the Michigan Supreme Court held that “the unjustified closure nonetheless violated defendant’s public-trial right and constituted plain error requiring reversal.” Id. at 58 (further noting that “the deprivation of a defendant’s public-trial right is a structural error” that necessarily affects a defendant’s substantial rights; such “structural error presumptively satisfies the plain-error standard’s requirements for reversal”).
“The court must identify the particular interest, and threat to that interest along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” People v Veach, ___ Mich ___, ___ (2023) (cleaned up). In Veach, “the courtroom was closed to all but the parties, their attorneys, the complainant, and the victim advocate during the complainant’s trial testimony.” Id. at ___. “This was a total closure of the courtroom to the public during a critical phase of the defendant’s trial,” and “[t]he trial court did not consider any reasonable alternatives to closure on the record as required[.]” Id. at ___. The Michigan Supreme Court concluded that the “trial court’s sole discernable rationale for closure—that some unidentified observing family members may be sequestered as witnesses—lack[ed] specificity and [was] thus insufficient to support appellate review.” Id. at ___. The “mere fact of closure during preliminary examination is insufficient to support closure at trial.” Id. at ___. Accordingly, the Court held that “the trial court’s findings of an overriding interest were inadequate to support closure.” Id. at ___ (“the trial court did not identify an overriding interest”). The Veach Court held that defendant was entitled to a new trial because “defendant’s public-trial right was violated” when “the trial court did not consider any alternatives to closure during the complainant’s testimony[.]” Id. at ___.
“A total closure involves excluding all persons from the courtroom for some period while a partial closure involves excluding one or more individuals, but not all, from the courtroom.” Sherrill, ___ Mich App at ___ (holding that a courtroom closed due to COVID-19 restrictions was fully closed “because all members of the public were prevented from attending [the] trial in person”). In Sherrill, “[t]he local court order closing the courthouse to spectators addressed an overriding interest that was likely to be prejudiced if the courtroom was open to the public.” Id. at ___. “On the facts, the closure of the courtroom was also no broader than necessary.” Id. at ___ (“The decision to limit spectators from attending the trial in person was intended to make the courtroom a safer environment for the jury and others who were required to participate in the trial.”). Although “[t]he trial court did not consider reasonable alternatives because there was no objection to the closure of the courtroom,” the local court order “anticipated a reasonable alternative to viewing the trial in person because the trial was streamed over YouTube.” Id. at ___. “This option allowed the public to view the trial while keeping those participating in the trial safe.” Id. at ___ (rejecting argument “that this alternative was not available to certain communities because of limited access to internet service” due to “the widespread availability of cellular service and smartphones, as well as the availability of internet services at pubic libraries”).
The term gag order refers to a court order prohibiting attorneys, witnesses, and parties from discussing a case with reporters, or to a court order prohibiting reporters from publishing information related to a case. A court order prohibiting publication of information related to a case is unconstitutional if it imposes a prior restraint on speech. Nebraska Press Ass’n v Stuart, 427 US 539, 556 (1976) (“The [United States Supreme] Court has interpreted [First Amendment] guarantees to afford special protection against orders that [impose a prior restraint on speech by] prohibit[ing] the publication or broadcast of particular information or commentary . . . .”). See People v Sledge, 312 Mich App 516, 537 (2015), in which “[t]he trial court issued a gag order precluding all potential trial participants from making any extrajudicial statement regarding the case to the media or to any person for the purpose of dissemination to the public.” The Court of Appeals vacated the gag order, holding that “[t]he overbroad and vague gag order constituted a prior restraint on freedom of speech, freedom of expression, and freedom of the press, and the trial court failed to justify the gag order.” Id.
MCR 8.116(D)(1) should be followed in assessing whether to issue a gag order prohibiting discussion of the case with reporters:
“Except as otherwise provided by statute or court rule, a court may not limit access by the public to a court proceeding unless
(a) a party has filed a written motion that identifies the specific interest to be protected, or the court sua sponte has identified a specific interest to be protected, and the court determines that the interest outweighs the right of access;
(b) the denial of access is narrowly tailored to accommodate the interest to be protected, and there is no less restrictive means to adequately and effectively protect the interest; and
(c) the court states on the record the specific reasons for the decision to limit access to the proceeding.”
F.Access to Court Files and Records
“For purposes of [MCR 8.119(A)], records are as defined in MCR 1.109, MCR 3.218, MCR 3.903, and MCR 8.119(D)-(G).” MCR 8.119(A). “Court records are recorded information of any kind that has been created by the court or filed with the court in accordance with Michigan Court Rules[,]” and “may be created using any means and may be maintained in any medium authorized by these court rules provided those records comply with other provisions of law and these court rules.” MCR 1.109(A)(1). MCR 1.109(A)(1)(a) provides that “[c]ourt records include, but are not limited to:
(i) documents, attachments to documents, discovery materials, and other materials filed with the clerk of the court,
(ii) documents, recordings, data, and other recorded information created or handled by the court, including all data produced in conjunction with the use of any system for the purpose of transmitting, accessing, reproducing, or maintaining court records.”
“Discovery materials that are not filed with the clerk of the court are not court records. Exhibits that are maintained by the court reporter or other authorized staff pursuant to MCR 2.518 or MCR 3.930[11] during the pendency of a proceeding are not court records.” MCR 1.109(A)(2) (emphasis added).
The clerk of the court is required to “maintain a file of each action,” including “all pleadings, process, written opinions and findings, orders, and judgments filed in the action, and any other materials prescribed by court rule, statute, or court order to be filed with the clerk of the court.” MCR 8.119(D)(1)(b).
MCR 1.109(F) provides that “[r]equests for access to public court records shall be granted in accordance with MCR 8.119(H).” MCR 8.119(H) provides, in part:
“Except as otherwise provided in [MCR 8.119](F),[12] only case records as defined in [MCR 8.119](D) are public records, subject to access in accordance with these rules.”13
Additionally, MCR 8.119(H)(7) provides that “[u]nless access to a case record or information contained in a record as defined in [MCR 8.119](D) is restricted by statute, court rule, or an order [sealing a record] pursuant to [MCR 8.119](I),[14] any person may inspect that record and may obtain copies as provided in [MCR 8.119](J).”15
“Access to information on set aside convictions is limited to a court of competent jurisdiction, an agency of the judicial branch of state government, the department of corrections, a law enforcement agency, a prosecuting attorney, the attorney general, and the governor upon request and only for the purposes identified in MCL 780.623. Access may also be provided to the individual whose conviction was set aside, that individual’s attorney, and the victim(s) as defined in MCL 780.623. The court must redact all information related to the set aside conviction or convictions before making the case record or a court record available to the public in any format.” MCR 8.119(H)(9).
MCR 8.119(G) provides, in part, that “[a]ll court records not included in [MCR 8.119(D)-(F)] are considered administrative and fiscal records or nonrecord materials and are not subject to public access under [MCR 8.119](H).”
Administrative Order No. 2006-2, 474 Mich cliv (2006) addresses the confidentiality of social security numbers and management of non-public information contained within public documents.
“[A] court is prohibited from sealing court orders and court opinions under [the plain language of MCR 8.119(I)(6)16.]” Jenson v Puste, 290 Mich App 338, 347 (2010). “Significantly, [MCR 8.119(I)(6)] does not allow a court the authority to exercise discretion in deciding whether to seal [a court order or opinion], unlike the limited discretion that [MCR 8.119(I)(1)] allows when a motion involves other court records.” Jenson, 290 Mich App at 342-347 (trial court properly held that it did not have the authority to seal a personal protection order (PPO) pursuant to MCR 8.119(I)(6)).
Access to court records can be restricted by the Legislature. In re Midland Publishing Co, Inc, 420 Mich 148, 159 (1984). For example, MCL 750.520k allows a court, in a criminal sexual conduct case, to order the suppression of the victim’s and actor’s names and details of the alleged offense until after the preliminary examination. For a partial listing of statutes, court rules, and cases that restrict public access to court records, see the State Court Administrative Office’s Michigan Trial Court Records Management Standards.
To determine whether a right of access exists regarding a document, a court should ask whether the document has historically been open to the public and press, and whether access “‘plays a significant positive role in the function of the particular process in question.’” In re People v Atkins, 444 Mich 737, 740 (1994), quoting Press-Enterprise Co v Superior Ct of California, 478 US 1, 8 (1986) (after the defendant was found competent to stand trial, the court provided newspapers with an edited (as opposed to full text) version of the psychiatrist’s written report; because competency reports that have not been admitted into evidence have traditionally been viewed as confidential, and public access would not play a significant positive role in the functioning of the particular process in question, the court’s denial of full access to the report was affirmed).
“[T]he press has a qualified right of postverdict access to jurors’ names and addresses, subject to the trial court’s discretion to fashion an order that takes into account the competing interest of juror safety and any other interests that may be implicated by the court’s order.” In re Disclosure of Juror Names (People v Mitchell), 233 Mich App 604, 630-631 (1999). If a court determines that jurors’ safety concerns are “legitimate and reasonable,” the court may deny media access to jurors’ names and addresses. Id. at 630. Jurors’ privacy concerns alone are insufficient to deny access to jurors’ names. Id.
Committee Tips:
Reports and records may be privileged or confidential and their treatment should be scrutinized in each case. Examples are substance abuse evaluations and treatment records, medical records and reports, and psychological/psychiatric records and reports.
Consider whether access to the record is limited by statute, court order, or court rule. See the Nonpublic and Limited-Access Court Records chart.
Consider whether a filed document can be removed from the file by court order. See MCR 8.119(H).
For other information parties wish to keep confidential, consider having the document marked as an exhibit, reviewed by the court on the record, and then returned to the parties at the conclusion of the proceeding. See MCR 1.109(A)(2); MCR 2.518(A) (exhibits received and accepted into evidence under MCR 2.518 are not court records).
3.Confidentiality and Management of Records17
MCR 8.119 governs court records and reports, including which records are public records. Trial courts must comply with the records standards in MCR 8.119, MCR 1.109, and as prescribed by the Michigan Supreme Court. MCR 8.119(B).
District and municipal court case and court records following circuit-court bindover. “Immediately on concluding the examination, the court must certify and transmit to the court before which the defendant is bound to appear the case file, any recognizances received, and a copy of the register of actions.” MCR 6.110(G). All case and court records maintained by a district or municipal court become nonpublic immediately after entry of an order binding a criminal defendant over to the circuit court on or after July 2, 2024. MCR 8.119(H)(10). Circuit court case and court records, including those transmitted under MCR 6.110(G), remain accessible as provided by MCR 8.119. MCR 8.119(H)(10). A district or municipal court “need not transmit recordings of any proceedings to the circuit court.” MCR 6.110(G)(i).
b.Remands to District or Municipal Court
Remand to district or municipal court following circuit-court bindover. “If the circuit court remands the case to the district or municipal court for further proceedings, the circuit court must transmit to the court where the case has been remanded the case file, any recognizances received, and a copy of the register of actions.” MCR 6.110(J). The circuit court “need not transmit recordings of any proceedings to the district or municipal court.” MCR 6.110(J)(i). Upon remand to the district or municipal court on or after July 2, 2024, all case and court records maintained by the circuit court become nonpublic immediately upon entry of an order to remand . MCR 8.119(H)(10). District or municipal court case and court records, including the records transmitted under MCR 6.110(J), become accessible after an order to remand under MCR 8.119. MCR 8.119(H)(10).
c.Transcripts Following Bindovers
“If an interested party requests a transcript of a district or municipal court proceeding after the case is bound over, the circuit court shall forward that request to the district or municipal court for transcription as provided in MCR 8.108.” MCR 6.110(G)(ii). “The circuit court shall forward this request only if the circuit court case record is publicly-accessible.” Id.
d.Transcripts Following Remands
Similarly, if an interested party requests a transcript of a circuit court proceeding after the case is remanded, the district or municipal court must forward that request to the circuit court for transcription under MCR 8.108 if the district or municipal court case record is publicly-accessible. MCR 6.110(J)(ii).
e.Presentence Investigation Reports
A presentence investigation report (PSIR) must be prepared before the court sentences a person charged with a felony and may be prepared if directed by the court in any case where a person is charged with a misdemeanor. MCL 771.14(1). See also MCR 6.425(A). In the course of preparing the PSIR, “the probation officer must investigate the defendant’s background and character, verify material information, and report in writing the results of the investigation to the court.” MCR 6.425(A)(1). “On request, the probation officer must give the defendant’s attorney notice and a reasonable opportunity to attend the presentence interview.” MCR 6.425(A)(2). The court must permit the prosecutor, the defendant’s attorney, and the defendant to review the PSIR before sentencing. MCL 771.14(5).18
If a victim impact statement is included in the presentence report, the victim must be notified that his or her statement will be made available to the defendant and defense counsel unless the court exempts it from disclosure. MCL 780.763(1)(e); MCL 780.791(2)(c); MCL 780.823(1)(e).
f.Probation Records
“[A]ll records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or confidential communications not open to public inspection.” MCL 791.229. However, “[j]udges and probation officers shall have access to the records, reports, and case histories.” Id. See also Howe v Detroit Free Press, Inc, 440 Mich 203 (1992) (discussing the scope of the privilege). “The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.” MCL 791.229.
MCR 8.119(I)(1)-(3) provide information on sealing records, as follows:
“(1) Except as otherwise provided by statute or court rule, a court may not enter an order that seals courts [sic] records, in whole or in part, in any action or proceeding, unless
(a) a party has filed a written motion that identifies the specific interest to be protected,
(b) the court has made a finding of good cause, in writing or on the record, which specifies the grounds for the order, and
(c) there is no less restrictive means to adequately and effectively protect the specific interest asserted.
(2) In determining whether good cause has been shown, the court must consider,
(a) the interests of the parties, including, where there is an allegation of domestic violence, the safety of the alleged or potential victim of the domestic violence, and
(b) the interest of the public.
(3) The court must provide any interested person the opportunity to be heard concerning the sealing of the records.”
MCR 8.119(I) is not intended to limit a court’s authority to issue protective orders under MCR 2.302(C) for trade secrets, etc. MCR 8.119(I)(8). “A protective order issued under MCR 2.302(C) may authorize parties to file materials under seal in accordance with the provisions of the protective order without the necessity of filing a motion to seal under [MCR 8.119].” MCR 8.119(I)(8).
“[A] court is prohibited from sealing court orders and court opinions under [the plain language of MCR 8.119(I)(6).19]” Jenson v Puste, 290 Mich App 338, 347 (2010). “Significantly, [MCR 8.119(I)(6)] does not give a court the authority to exercise discretion in deciding whether to seal [a court order or opinion], unlike the limited discretion that [MCR 8.119(I)(1)20] allows when a motion involves other court records.” Jenson, 290 Mich App at 342-347 (trial court properly held that it did not have the authority to seal a personal protection order (PPO) pursuant to MCR 8.119(I)(6)).
“Any person may file a motion to set aside an order that disposes of a motion to seal the record, to unseal a document filed under seal pursuant to MCR 2.302(C), or an objection to entry of a proposed order. MCR 2.119[21] governs the proceedings on such a motion or objection.” MCR 8.119(I)(9).
If a court grants a motion to seal a court record, the court must send a copy of the order to the Clerk of the Michigan Supreme Court and to the State Court Administrative Office. MCR 8.119(I)(7).
When a party files an appeal in a case where the trial court sealed the file, the file remains sealed while in the possession of the Court of Appeals. MCR 7.211(C)(9)(a). Any requests to view the sealed file will be referred to the trial court. Id. MCR 8.119(I) also governs the procedure for sealing a Court of Appeals file. MCR 7.211(C)(9)(c). “Materials that are subject to a motion to seal a Court of Appeals file in whole or in part must be held under seal pending the court’s disposition of the motion.” MCR 7.211(C)(9)(c).
MCR 8.119(D) sets out procedures to protect the confidentiality of a sealed record:
“Documents and other materials made nonpublic or confidential by court rule, statute, or order of the court [sealing a record] pursuant to [MCR 8.119](I) must be designated accordingly and maintained to allow only authorized access. In the event of transfer or appeal of a case, every rule, statute, or order of the court under [MCR 8.119](I) that makes a document or other materials in that case nonpublic or confidential applies uniformly to every court in Michigan, irrespective of the court in which the document or other materials were originally filed.”
See also MCR 2.518(C), which provides:
“Confidentiality. If the court retains discovery materials filed pursuant to MCR 1.109(D) or an exhibit submitted pursuant to [MCR 2.518] after a hearing or trial and the material is confidential as provided by law, court rule, or court order pursuant to MCR 8.119(I), the court must continue to maintain the material in a confidential manner.”
“The [SCAO] shall establish and maintain records management policies and procedures for the courts, including a records retention and disposal schedule, in accordance with [S]upreme [C]ourt rules.” MCL 600.1428(1). “The record retention and disposal schedule shall be developed and maintained as prescribed in . . . MCL 399.811.” MCL 600.1428(1).
“Subject to the records reproduction act, . . . MCL 24.401 to [MCL] 24.406, a court may dispose of any record as prescribed in [MCL 600.1428(1)].” MCL 600.1428(2).
“A record, regardless of its medium, shall not be disposed of until the record has been in the custody of the court for the retention period established under [MCL 600.1428(1)].” MCL 600.1428(3).
MCR 8.119(K) provides:
“Retention Periods and Disposal of Court Records. For purposes of retention, the records of the trial courts include: (1) administrative and fiscal records, (2) case file and other case records, (3) court recordings, log notes, jury seating charts, and recording media, and (4) nonrecord material. The records of the trial courts shall be retained in the medium prescribed by MCR 1.109. The records of a trial court may not be disposed of except as authorized by the records retention and disposal schedule and upon order by the chief judge of that court. Before disposing of records subject to the order, the court shall first transfer to the Archives of Michigan any records specified as such in the Michigan trial courts approved records retention and disposal schedule. An order disposing of court records shall comply with the retention periods established by the State Court Administrative Office and approved by the state court administrator, Attorney General, State Administrative Board, Archives of Michigan, and Records Management Services of the Department of Management and Budget, in accordance with MCL 399.811.”
For additional information on records management, and for links to records retention and disposal schedules, see the State Court Administrative Office’s Records Management website.
6.Access and Reproduction Fees22
“A court may not charge a fee to access public case history information or to retrieve or inspect a case document irrespective of the medium in which the record is retained, the manner in which access to the case record is provided (including whether a record is retained onsite or offsite), and the technology used to create, store, retrieve, reproduce, and maintain the case record.” MCR 8.119(J)(1). “A court may charge a reproduction fee for a document pursuant to MCL 600.1988, except when required by law or court rule to provide a copy without charge to a person or other entity.” MCR 8.119(J)(2). “The court may provide access to its public case records in any medium authorized by the records reproduction act, 1992 PA 116; MCL 24.401 to [MCL] 24.403.” MCR 8.119(J)(3).
“Reproduction of a case document means the act of producing a copy of that document through any medium authorized by the records reproduction act, 1992 PA 116; MCL 24.401 to [MCL] 24.403.
(a) A court may charge only for the actual cost of labor and supplies and the actual use of the system, including printing from a public terminal, to reproduce a case document and not the cost associated with the purchase and maintenance of any system or technology used to store, retrieve, and reproduce the document.
(b) If a person wishes to obtain copies of documents in a file, the clerk shall provide copies upon receipt of the actual cost of reproduction.
(c) Except as otherwise directed by statute or court rule, a standard fee may be established, pursuant to [MCR 8.119(H)(8)], for providing copies of documents on file.” MCR 8.119(J)(4).
“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except” in the limited circumstances set out in Code of Judicial Conduct 3(A)(4). The exceptions include communications for scheduling, administrative matters, consulting with court personnel, and, with the consent of the parties, conferring separately with the parties and their attorneys in an effort to reach resolution. Code of Judicial Conduct. See MCJC 3(A)(4)(a)-(e).
“[MCJC 3(A)(4)] prohibits a judge from communicating with a party to a legal proceeding outside the presence of opposing counsel in most instances.” People v Loew, ___ Mich ___, ___ (2024) (noting that “the trial judge’s violation of this canon is relevant to deciding whether she failed to adhere to the appearance-of-impropriety standard” under MCR 2.003 (C)(1)(b)(ii)). “In a word, a judge may not initiate, permit, or consider ex parte communications, but a judge may allow ex parte communications for administrative purposes, so long as the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage and the judge promptly discloses the communication.” Loew, ___ Mich at ___ (quotation marks and citation omitted). Although MCJC 3(A)(4)(a) “provides that a judge may allow ex parte communications for administrative purposes,” the Loew Court was “skeptical that this means a judge may initiate ex parte communications for administrative purposes.” Loew, ___ Mich at ___ (quotation marks omitted). “Divorced from context perhaps, the phrase ‘communications for administrative purposes’ could plausibly refer to any communication made for the purpose of managing or supervising the process of something, no matter what that something is.” Id. at ___ (cleaned up). “But this phrase appears in the context of a judicial canon regulating a judge’s conduct in the performance of her adjudicative responsibilities.” Id. at ___. Accordingly, “‘communications for administrative purposes’ means those communications made for the purpose of managing or executing a pending or impending proceeding.” Id. at ___ (cleaned up).
In Loew, the trial judge exchanged several e-mails with the county prosecutor discussing testimony given by two law enforcement officers during defendant’s jury trial. Id. at ___. “In her e-mails, the trial judge expressed concern about mistakes law enforcement had made in its investigation and asked questions related to why those mistakes had occurred.” Id. at ___. “The trial judge never notified defendant or defense counsel of these e-mails or their contents.” Id. at ___. The Loew Court determined that “the trial judge commenting about the trooper’s investigation, asking whether the Michigan State Police has detectives, and asking why the victim was not referred for a medical examination were not ‘communications for administrative purposes,’ at least not as that phrase is used in [MCJC 3(A)(4)(a)].” Loew, ___ Mich at ___ (cleaned up). “Because the trial judge’s ex parte communications with [the prosecutor] were not made for the purpose of managing or executing a pending or impending proceeding, they violated [MCJC 3(A)(4)(a)].” Loew, ___ Mich at ___.
However, “a judge’s violation of the Michigan Code of Judicial Conduct is not a legally recognized basis for [granting a new trial].” Loew, ___ Mich at ___ (stating that “the canons do not grant litigants any substantive or procedural rights”). Furthermore, “the mere occurrence of an ex parte conversation between a judge and the prosecution, alone, does not automatically deprive a defendant of any constitutional right.” Loew, ___ Mich at ___ (stating that “ex parte communications between a judge and the prosecution are not per se unconstitutional”). “But depending on the circumstances, ex parte communications between a judge and the prosecution might deprive a defendant of the constitutional right to be present, to effective assistance of counsel, or the due-process right to a fair trial more generally.” Id. at ___. “No matter the content of the ex parte communications, it is a gross breach of the appearance of justice when a party’s principal adversary is given private access to the ear of the court[.]” Id. at ___ (cleaned up). “This is not to suggest that one instance of ex parte communications always requires a judge to disqualify herself.” Id. at ___ (noting that recusal is required only when the ex parte communication threatens the judge’s impartiality). “Depending on the circumstances, a brief ex parte exchange concerning a matter unrelated to the defendant or the proceeding might not create in reasonable minds a perception that the judge is biased.” Id. at ___.
The Loew Court held “that an ordinary person might still reasonably question her impartiality” even though “the trial judge’s communications [did] not show she was actually biased or that there was an unconstitutionally high probability she was actually biased . . . .” Id. at ___. Importantly, the trial judge’s ex parte communications with the prosecutor “was not about some matter unrelated to defendant or his trial.” Id. at ___. “In response to witness testimony, while presiding over defendant’s trial, the trial judge privately e-mailed [the prosecutor] expressing concern about law enforcement’s missteps in its investigation of defendant’s case specifically and asking why these missteps occurred.” Id. at ___. “Not only did the trial judge give [the prosecutor] private access to her ear, considering the contents of her communications, one might reasonably question whether the trial judge was interested in seeing the prosecution succeed or seeing defendant convicted.” Id. at ___ (quotation marks omitted) (holding that “the trial judge’s private exchange with the elected prosecutor violated the Michigan Code of Judicial Conduct”).
The prohibition against ex parte communications with a judge may also apply to nonparties such as probation agents. See People v Smith, 423 Mich 427, 459 (1985) (while “[e]x parte communications between probation officers and judges, whether in written or oral form, threaten the ability of counsel to effectively challenge unreliable information and hence threaten a defendant’s right to counsel,” . . . resentencing [for violating this right] is only necessary when the sentencing judge obtains information about the defendant from the probation officer that is not included in the written presentence report”).
Committee Tip:
The prohibition on ex parte communications precludes a judge from obtaining or seeking substantive information without both parties having the opportunity to participate. It is recommended that court staff be carefully trained to intercept prohibited ex parte communications. These communications can include efforts by the parties or other persons interested in the case to contact the judge, contacts with or from police or other agencies, and communications with jurors. The judge also should not view the scene without notifying the parties, who should have the opportunity to be present.
2.Judge’s Appearance by Video Communication Equipment
“The State Court Administrative Office is authorized . . . to approve the use of two-way interactive video technology in the trial courts to allow judicial officers to preside remotely in any proceeding that may be conducted by two-way interactive technology or communication equipment without the consent of the parties under the Michigan Court Rules and statutes. Administrative Order No. 2012-7, 493 Mich cx (2013).
“Notwithstanding any other provision in [MCR 6.006], until further order of the Court, AO No. 2012-7 is suspended.” MCR 6.006(E).
A trial court’s decision to permit public access to court proceedings and documents is reviewed for an abuse of discretion, in light of the facts and circumstances of the particular case. Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America v Dorsey, 268 Mich App 313, 329 (2005), rev’d in part on other grounds 474 Mich 1097 (2006),23 citing Nixon v Warner Communications, Inc, 435 US 589, 599 (1978).