6.6Special Protections For Victims and Witnesses
A.Confrontation Issues Generally1
Except in very limited circumstances involving child victims, a defendant has an absolute right to face-to-face confrontation “for all ‘testimonial’ evidence unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.”2 People v Jemison, 505 Mich 352, 362 (2020) (forensic expert’s testimony via two-way video technology was improperly admitted at trial).
“Use of a procedure that limits a defendant’s right to confront his [or her] accusers face[-]to[-]face” is permissible where the court “determine[s] that the procedure is necessary to further an important state interest[,] . . . hear[s] evidence and determine[s] . . . use of the procedure is necessary to protect the witness[, and] . . . find[s] that the witness would be traumatized by the presence of the defendant and that the emotional distress would be more than de minimis.” People v Rose (Ronald), 289 Mich App 499, 516-517 (2010).
The exception to the absolute right of face-to-face confrontation may be made under very specific circumstances in cases involving a child victim. Jemison, 505 Mich at 356 n 1. The Jemison Court confined the exception to the specific facts in Maryland v Craig, 497 US 836, 860 (1990), and held that “a child victim may testify against the accused by means of one-way video (or a similar Craig-type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection.” Jemison, 505 Mich at 365. That is, to preserve a respondent’s due process rights, including the right to face-to-face confrontation, the court must hear evidence and make particularized, case-specific findings that the alternative arrangement is necessary to protect the welfare of a child witness who seeks to testify. Craig, 497 at 855-856.3 In Craig, 497 US at 855-856, the United States Supreme Court described the necessary findings:
“The requisite finding of necessity must . . . be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. . . . The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. . . . Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than ‘mere nervousness or excitement or some reluctance to testify[.]’” (Internal citations omitted.)
MCL 600.2163a(20),4 a statute permitting special arrangements for a child victim’s testimony during certain types of proceedings, impaired persons who are victims, and vulnerable adults who are victims, has been found to satisfy the Craig requirements. People v Pesquera, 244 Mich App 305, 310-312 (2001).5
Note: The Confrontation Clause of the Sixth Amendment to the United States Constitution does not apply to personal protection order (PPO) proceedings, which are civil in nature. HMM v JS, ___ Mich App ___, ___ (2024). Nevertheless, “PPO proceedings have significant liberty interests at stake.” Id. at ___. The trial court abused its discretion when it permitted a 17-year-old petitioner to testify off-camera using two-way video technology in the hearing on respondent’s motion to terminate the ex parte PPO against him. Id. at ___. The trial court failed to make an “express finding that it was necessary for petitioner to testify off-camera and she did not . . . undergo a full cross-examination.” Id. at ___. Without the ability to see petitioner, the court was unable “to assess petitioner’s credibility fully,” id. at ___, and respondent’s counsel was not able “to see petitioner testify and respond accordingly to her demeanor or credibility.” Id. at ___.
B.Victims and Witnesses (Regardless of Age or Disability)
1.Special Procedures to Protect Victims and Witnesses
Under MRE 611(a), “[t]he court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.” MRE 611(a) (emphasis added). See also MCL 768.29.
MRE 611(a) permits the trial court to limit cross-examination to protect witnesses from harassment or undue embarrassment. People v Daniels, 311 Mich App 257, 268 (2015). Specifically, “MRE 611(a) allows the trial court to prohibit a defendant from personally cross-examining vulnerable witnesses—particularly children who have accused the defendant of committing sexual assault[; t]he court must balance the criminal defendant’s right to self-representation with ‘the State’s important interest in protecting child sexual abuse victims from further trauma.’” Daniels, 311 Mich App at 269 (holding that the “trial court wisely and properly prevented [the] defendant from personally cross-examining [his children regarding their testimony that he sexually abused them], to stop the children from suffering ‘harassment and undue embarrassment[,]’” following “a motion hearing at which [the court] heard considerable evidence that [the] defendant’s personal cross-examination would cause [the children] significant trauma and emotional stress[,]” and finding that the defendant’s right to self-representation was not violated because “a criminal defendant has ‘no constitutional right to personally cross-examine the victim of his crimes[,]” and “[a]t all times in this case, [the] defendant maintained autonomy in presenting his defense, and was able to control the direction of the cross-examination of [the children] by writing the relevant questions for his advisory attorney[,] . . . [and the] advisory counsel conferred with [the] defendant and received assistance from him in coordinating the exhibits during [the children’s cross-]examinations[]”) (quoting MRE 611(a); additional citations omitted). See also People v Adamski, 198 Mich App 133, 138 (1993) (“[t]he right of cross-examination does not include a right to cross-examine on irrelevant issues and may bow to accommodate other legitimate interest of the trial process or of society[]”).
MRE 611(a) contains no age or developmental disability restrictions and thus may be applied to all victims and witnesses. Additionally, the trial court is free to use its authority under other rules, including any rules of civil procedure that apply in criminal cases. See MCR 6.001(D).
2.Use of Support Person or Support Animal
MCL 600.2163a(4) permits certain witnesses to be accompanied by a support person or support animal.6 However, “a fully abled adult witness may not be accompanied by a support animal or support person while testifying.” People v Shorter (Dakota), 324 Mich App 529, 542 (2018).7
C.Victims-Witnesses Under Age 16, Age 16 or Older With Developmental Disability, or Vulnerable Adults
MCL 600.2163a (criminal proceedings) and MCL 712A.17b (child protective proceedings and certain juvenile delinquency) provide specific protections or procedures to a witness in addition to those afforded to a witness by law or court rule. MCL 600.2163a(22); MCL 712A.17b(18). See also In re Hensley, 220 Mich App 331, 333-334 (1996) (these statutory provisions supplement rather than limit a trial court’s authority to protect specified child and witnesses with developmental disabilities).
The protections set out in MCL 600.2163a apply to a witness, defined in MCL 600.2163a(1)(g) as “an alleged victim of an [enumerated] offense” who is one of the following:
•under 16 years of age,
•16 years of age or older with a developmental disability, or
•a vulnerable adult.
See also MCL 712A.17b(1)(e), which contains a similar definition of witness, but does not include vulnerable adults.
A court is free to go beyond the statutory protections enumerated in MCL 600.2163a and MCL 712A.17b and to use its authority under other rules, such as MCR 3.923 and MRE 611.8 In re Hensley, 220 Mich App at 335.
1.Applicable Prosecutions and Proceedings
a.Witnesses Under Age 16 or Age 16 or Older With Developmental Disability
For purposes of a witness under the age of 16 or a witness 16 years of age or older with a developmental disability, the protections that are afforded under MCL 600.2163a and MCL 712A.17b apply only to “prosecutions and proceedings” involving the following offenses, as set out in MCL 600.2163a(2)(a) and MCL 712A.17b(2):9
•Child abuse, MCL 750.136b.
•Sexually abusive activity or material involving children, MCL 750.145c.
•CSC-I, MCL 750.520b.
•CSC-II, MCL 750.520c.
•CSC-III, MCL 750.520d.
•CSC-IV, MCL 750.520e.
•Assault with intent to commit criminal sexual conduct, MCL 750.520g.
In addition, MCL 712A.17b also applies to child protective proceedings. MCL 712A.17b(2)(b).
b.Vulnerable Adult Witnesses
For purposes of a witness who is a vulnerable adult, protections may be afforded under MCL 600.2163a only in “prosecutions and proceedings” for one or more of the following offenses, as set out in MCL 600.2163a(2)(b)(i)-(ii):
•Home invasion, MCL 750.110a.
•Vulnerable adult abuse, MCL 750.145n–MCL 750.145p.
•Embezzlement, MCL 750.174–MCL 750.174a.
•An assaultive crime, as that term is defined in MCL 770.9a.
In appropriate prosecutions or proceedings, if a witness meets the age or disability requirements of MCL 600.2163a or MCL 712A.17b, the court must allow the use of certain protective measures to protect the witness.
“If pertinent, the court must permit the witness to use dolls or mannequins, including, but not limited to, anatomically correct dolls or mannequins, to assist the witness in testifying on direct and cross-examination.” MCL 600.2163a(3). See also MCL 712A.17b(3), which contains substantially similar language. See also MCR 3.923(E) (applicable to child protective proceedings and certain juvenile delinquency proceedings), which allows, among other protective measures, the use of anatomical dolls.
“The court must permit a witness who is called upon to testify to have a support person sit with, accompany, or be in close proximity to the witness during his or her testimony.” MCL 600.2163a(4). See also MCL 712A.17b(4), which contains substantially similar language. See also MCR 3.923(E), which allows, among other protective measures, the use of support persons.
Cases where trial court properly permitted support person:
• People v Rockey, 237 Mich App 74, 78 (1999) (trial court did not err in allowing a seven-year-old sexual assault victim to sit on her father’s lap while testifying or in denying the defendant’s motion for a new trial where there was no evidence of nonverbal communication between the victim and her father).
•People v Jehnsen, 183 Mich App 305, 308-311 (1990) (trial court did not err in allowing four-year-old victim’s mother to remain in courtroom following the mother’s testimony or in denying the defendant’s motion for a new trial despite engaging in “nonverbal behavior which could have communicated the mother’s judgment of the appropriate answers to questions on cross-examination[,]” where the trial court found no correlation between the mother’s conduct and the victim’s answers).
“A notice of intent to use a support person . . . is only required if the support person . . . is to be utilized during trial and is not required for the use of a support person . . . during any other courtroom proceeding. A notice of intent under this subsection must be filed with the court and must be served upon all parties to the proceeding. The notice must name the support person . . ., identify the relationship the support person has with the witness, if applicable, and give notice to all parties that the witness may request that the named support person . . . sit with the witness when the witness is called upon to testify during trial.” MCL 600.2163a(5). See also MCL 712A.17b(4), which contains similar requirements.
The defendant may file a motion objecting to the use of a named support person. See MCL 600.2163a(5); MCL 712A.17b(4). If the defendant objects, the court must rule on the motion “before the date when the witness desires to use the support person[.]” MCL 600.2163a(5); MCL 712A.17b(4).
Committee Tip:
Before testimony is taken, the judge should consider advising the support person not to react verbally or non-verbally (with gestures or motions) to questions asked of the witness or to the witness’s responses.
“The court must . . . permit a witness who is called upon to testify to have a courtroom support dog and handler sit with, or be in close proximity to, the witness during his or her testimony.”10 MCL 600.2163a(4).
“A notice of intent to use a . . . courtroom support dog is only required if the . . . courtroom support dog is to be utilized during trial and is not required for the use of a . . . courtroom support dog during any other courtroom proceeding. A notice of intent under this subsection must be filed with the court and must be served upon all parties to the proceeding. The notice must name the . . . ,courtroom support dog, . . . , and give notice to all parties that the witness may request that the . . . courtroom support dog sit with the witness when the witness is called upon to testify during trial.” MCL 600.2163a(5).
The defendant may file a motion objecting to the use of a courtroom support dog. See MCL 600.2163a(5). If the defendant objects, the court must rule on the motion “before the date when the witness desires to use the . . . courtroom support dog.” MCL 600.2163a(5).
3.Special Arrangements in the Courtroom
In certain proceedings, a party may make a timely motion for special arrangements in the courtroom to protect the welfare of a witness. See MCL 600.2163a(16); MCL 600.2163a(18); MCL 712A.17b(14). Types of special arrangements may include excluding unnecessary persons from the courtroom and rearranging the courtroom.
a.Preliminary Examinations in Criminal Proceedings
Before a preliminary examination in criminal proceedings, a party may make a motion for special arrangements in the courtroom to protect the welfare of a witness. See MCL 600.2163a(16). “In determining whether it is necessary to protect the welfare of the witness, the court must consider all of the following factors:
(a) The age of the witness.
(b) The nature of the offense or offenses.
(c) The desire of the witness or the witness’s family or guardian to have the testimony taken in a room closed to the public.
(d) The physical condition of the witness.” MCL 600.2163a(16).
If the court “finds on the record that the special arrangements specified in [MCL 600.2163a(17)] are necessary to protect the welfare of the witness, the court must order those special arrangements.” MCL 600.2163a(16).
Under MCL 600.2163a(17), “[i]f the court determines on the record that it is necessary to protect the welfare of the witness and grants the motion made under [MCL 600.2163a(16)], the court must order both of the following:
(a) That all persons not necessary to the proceeding must be excluded during the witness’s testimony from the courtroom where the preliminary examination is held. Upon request by any person and the payment of the appropriate fees, a transcript of the witness’s testimony must be made available.
(b) That the courtroom be arranged so that the defendant is seated as far from the witness stand as is reasonable and not directly in front of the witness stand in order to protect the witness from directly viewing the defendant. The defendant’s position must be located so as to allow the defendant to hear and see the witness and be able to communicate with his or her attorney.”
Before a criminal trial, a party may make a motion for special arrangements in the courtroom to protect the welfare of a witness. See MCL 600.2163a(18). “In determining whether it is necessary to protect the welfare of the witness, the court must consider all of the following factors:
(a) The age of the witness.
(b) The nature of the offense or offenses.
(c) The desire of the witness or the witness’s family or guardian to have the testimony taken in a room closed to the public.
(d) The physical condition of the witness.” MCL 600.2163a(18).
If the court “finds on the record that the special arrangements specified in [MCL 600.2163a(19)] are necessary to protect the welfare of the witness, the court must order those special arrangements.” MCL 600.2163a(18).
Under MCL 600.2163a(19), “[i]f the court determines on the record that it is necessary to protect the welfare of the witness and grants the motion made under [MCL 600.2163a(18)], the court must order 1 or more of the following:
(a) That all persons not necessary to the proceeding be excluded during the witness’s testimony from the courtroom where the trial is held. The witness’s testimony must be broadcast by closed-circuit television to the public in another location out of sight of the witness.
(b) That the courtroom be arranged so that the defendant is seated as far from the witness stand as is reasonable and not directly in front of the witness stand in order to protect the witness from directly viewing the defendant. The defendant’s position must be the same for all witnesses and must be located so as to allow the defendant to hear and see all witnesses and be able to communicate with his or her attorney.
(c) That a questioner’s stand or podium be used for all questioning of all witnesses by all parties and must be located in front of the witness stand.”
c.Certain Juvenile Delinquency Adjudications
Before a juvenile delinquency adjudication for an enumerated offense,11 a party may make a motion for special arrangements in the courtroom to protect the welfare of a witness. See MCL 712A.17b(14). “In determining whether it is necessary to protect the welfare of the witness, the court shall consider both of the following:
(a) The age of the witness.
(b) The nature of the offense or offenses.” MCL 712A.17b(14).
If the court “finds on the record that the special arrangements specified in [MCL 712A.17b(15)] are necessary to protect the welfare of the witness, the court shall order 1 or both of those special arrangements.” MCL 712A.17b(14).
Under MCL 712A.17b(15), “[i]f the court determines on the record that it is necessary to protect the welfare of the witness and grants the motion made under [MCL 712A.17b(14)], the court shall order 1 or both of the following:
(a) In order to protect the witness from directly viewing the respondent, the courtroom shall be arranged so that the respondent is seated as far from the witness stand as is reasonable and not directly in front of the witness stand. The respondent’s position shall be located so as to allow the respondent to hear and see all witnesses and be able to communicate with his or her attorney.
(b) A questioner’s stand or podium shall be used for all questioning of all witnesses by all parties, and shall be located in front of the witness stand.”
Use of a witness screen “that limits a defendant’s right to confront his [or her] accusers face[-]to[-]face” is permissible where the court “determine[s] that [use of the witness screen] is necessary to further an important state interest[,] . . . hear[s] evidence and determine[s] . . . use of the [witness screen] is necessary to protect the witness[, and] . . . find[s] that the witness would be traumatized by the presence of the defendant and that the emotional distress would be more than de minimis.” People v Rose (Ronald), 289 Mich App 499, 516-517 (2010) (trial court’s decision to permit an eight-year-old victim to testify using a one-way witness screen that prevented the victim from seeing the defendant, did not violate the defendant’s right to confrontation where “the trial court clearly found that the use of the witness screen was necessary to protect [the victim,]” the victim expressed fear of the defendant, and the court determined “that, given [the victim’s] age, the nature of the offenses, and [the victim’s] therapist’s testimony, there was ‘a high likelihood’ that [the victim] testifying face[-]to[-]face with [the defendant] would cause [the victim] to ‘regress in her therapy, have psychological damage’ and could cause her ‘to possibly not testify . . . [,]’ [and] . . . the use of the witness screen preserved the other elements of the confrontation right”), citing People v Burton, 219 Mich App 278, 288, 290 (1996).12
“Even if the use of a [witness] screen were inherently prejudicial, a trial court could nevertheless require a [witness] screen [without violating the defendant’s due process right to a fair trial] if its use were necessary to further an essential state interest.” Rose (Ronald), 289 Mich App at 521-522 (because “the state has a compelling interest in protecting child witnesses from the trauma of testifying when the trauma would be the result of the defendant’s presence and would impair the child’s ability to testify[,]” the trial court properly found that “the use of the [witness] screen was necessary in order to ensure [the eight-year-old victim] would be able to testify[]”), citing Maryland v Craig, 497 US 836, 855-857 (1990).
5.Videotaped Depositions and One-Way Closed-Circuit Television
In criminal proceedings, “[i]f, upon the motion of a party or in the court’s discretion, the court finds on the record that the witness is or will be psychologically or emotionally unable to testify at a court proceeding[13] even with the benefit of the protections afforded the witness in [MCL 600.2163a(3) (use of dolls or mannequins)], [MCL 600.2163a(4) (use of support person or courtroom support dog)], [MCL 600.2163a(17) (special arrangements in the courtroom during preliminary examination)], and [MCL 600.2163a(19) (special arrangements in the courtroom during trial)], the court must order that the witness may testify outside the physical presence of the defendant by closed circuit television or other electronic means that allows the witness to be observed by the trier of fact and the defendant when questioned by the parties.” MCL 600.2163a(20).
“For purposes of the videorecorded deposition under [MCL 600.2163a(20)], the witness’s examination and cross-examination must proceed in the same manner as if the witness testified at the court proceeding for which the videorecorded deposition is to be used. The court must permit the defendant to hear the testimony of the witness and to consult with his or her attorney.” MCL 600.2163a(21).
b.Child Protective Proceedings
“In a proceeding brought under [MCL 712A.2(b)], if, upon the motion of a party or in the court’s discretion, the court finds on the record that psychological harm to the witness would occur if the witness were to testify at the adjudication stage, the court shall order to be taken a videorecorded deposition of a witness that shall be admitted into evidence at the adjudication stage instead of the live testimony of the witness. The examination and cross-examination of the witness in the videorecorded deposition shall proceed in the same manner as permitted at the adjudication stage.” MCL 712A.17b(13). See also MCR 3.923(E), which allows the court, among other protective measures, to use “videoconferencing technology, speaker telephone, or other similar electronic equipment to facilitate hearings or to protect the parties[,]” and the use of videotaped depositions “to protect the child witness as authorized by MCL 712A.17b.”
Use of a child’s videotaped deposition did not deprive the respondent-parents of their due process rights to confrontation where an expert testified to the child’s inability to communicate if attorneys questioned her and that she may suffer trauma if forced to participate in cross-examination, and during the deposition, the respondent-parents’ counsel observed the child through a one-way window and submitted questions before and during the deposition. In re Brock, 442 Mich 101, 105-115 (1993).14 The Court found that although parents “have an important liberty interest in the management of their children that is protected by due process[,] . . . the child’s welfare is primary in child protective proceedings.” Id. at 114-115. Thus, where “the spirit of confrontation and cross-examination [can] only be achieved by alternative, nontraditional procedures, deviation from traditional practices should be allowed.” Id. at 115.
c.Certain Juvenile Delinquency Proceedings
In juvenile delinquency proceedings, “in which the alleged offense, if committed by an adult, would be a felony under [MCL 750.136b, MCL 750.145c, MCL 750.520b, MCL 750.520c, MCL 750.520d, MCL 750.520e, or MCL 750.520g], if, upon the motion of a party or in the court’s discretion, the court finds on the record that the witness is or will be psychologically or emotionally unable to testify at a court proceeding even with the benefit of the protections afforded the witness in [MCL 712A.17b(3) (use of dolls or mannequins)], [MCL 712A.17b(4) (use of support person)], and [MCL 712A.17b(15) (rearranging of courtroom)], the court shall order that a videorecorded deposition of a witness shall be taken to be admitted at the adjudication stage instead of the witness’s live testimony.” MCL 712A.17b(16). See also MCR 3.923(E), which allows the court, among other protective measures, to use “videoconferencing technology, speaker telephone, or other similar electronic equipment to facilitate hearings or to protect the parties[,]” and the use of videotaped depositions “to protect the child witness as authorized by MCL 712A.17b.”
“For purposes of the videorecorded deposition under [MCL 712A.17b(16)], the witness’s examination and cross-examination shall proceed in the same manner as if the witness testified at the adjudication stage, and the court shall order that the witness, during his or her testimony, shall not be confronted by the respondent but shall permit the respondent to hear the testimony of the witness and to consult with his or her attorney.” MCL 712A.17b(17).
The court may use telephonic, voice, videoconferencing, or two-way interactive video technology during certain criminal proceedings.15 See MCR 6.006. However, in Michigan, defendants in felony cases have a statutory right to be “personally present” at trial. MCL 768.3. In addition, criminal defendants have a constitutional right to confront the witnesses against them. US Const, Am VI; Const 1963, art 1, § 20; MCL 763.1. Thus, use of this technology may implicate a defendant’s right to confrontation.
“A videorecorded statement may be considered in court proceedings only for 1 or more of the following purposes:
(a) It may be admitted as evidence at all pretrial proceedings, except that it cannot be introduced at the preliminary examination instead of the live testimony of the witness.
(b) It may be admitted for impeachment purposes.
(c) It may be considered by the court in determining the sentence.
(d) It may be used as a factual basis for a no contest plea or to supplement a guilty plea.” MCL 600.2163a(8).
MCL 600.2163a(7) requires the videorecorded statement to do all of the following:
•“[S]tate the date and time that the statement was taken;”
•“[I]dentify the persons present in the room and state whether they were present for the entire videorecording or only a portion of the videorecording;”
•“[S]how a time clock that is running during the taking of the videorecorded statement.”
“A custodian of the videorecorded statement may take a witness’s videorecorded statement before the normally scheduled date for the defendant’s preliminary examination.” MCL 600.2163a(7).
Questioning of the witness. “In a videorecorded statement, the questioning of the witness should be full and complete; must be in accordance with the forensic interview protocol[16] implemented as required by . . . MCL 722.628, or as otherwise provided by law; and, if appropriate for the witness’s developmental level or mental acuity, must include, but is not limited to, all of the following areas:
(a) The time and date of the alleged offense or offenses.
(b) The location and area of the alleged offense or offenses.
(c) The relationship, if any, between the witness and the accused.
(d) The details of the offense or offenses.
(e) The names of any other persons known to the witness who may have personal knowledge of the alleged offense or offenses.” MCL 600.2163a(10).
Release or use of videorecorded statement. “A videorecorded statement must not be copied or reproduced in any manner except as provided in this section.” MCL 600.2163a(15). MCL 600.2163a(15) does not, however, “prohibit the production or release of a transcript of a videorecorded statement.”
MCL 600.2163a(11)-(12) set out the applicable standards for release or use of videorecorded statements:
• “A custodian of the videorecorded statement may release or consent to the release or use of a videorecorded statement or copies of a videorecorded statement to[:]
•a law enforcement agency,
•an agency authorized to prosecute the criminal case to which the videorecorded statement relates, or
•an entity that is part of county protocols established under . . . MCL 722.628, or as otherwise provided by law.” MCL 600.2163a(11) (bullets added).
•“The defendant and, if represented, his or her attorney has the right to view and hear a videorecorded statement before the defendant’s preliminary examination.” MCL 600.2163a(11).
•“Upon request, the prosecuting attorney shall provide the defendant and, if represented, his or her attorney with reasonable access and means to view and hear the videorecorded statement at a reasonable time before the defendant’s pretrial or trial of the case.” MCL 600.2163a(11).
•“In preparation for a court proceeding and under protective conditions, including, but not limited to, a prohibition on the copying, release, display, or circulation of the videorecorded statement, the court may order that a copy of the videorecorded statement be given to the defense.” MCL 600.2163a(11).
•“If authorized by the prosecuting attorney in the county in which the videorecorded statement was taken, and with the consent of a minor witness’s nonoffending parent or legal guardian, a videorecorded statement may be used for purposes of training the custodians of the videorecorded statement in that county, or for purposes of training persons in another county who would meet the definition of custodian of the videorecorded statement had the videorecorded statement been taken in that other county, on the forensic interview protocol[17] implemented as required by . . . MCL 722.628, or as otherwise provided by law. The consent required under this subsection must be obtained through the execution of a written, fully informed, time-limited, and revocable release of information. An individual participating in training under this subsection is also required to execute a nondisclosure agreement to protect witness confidentiality.” MCL 600.2163a(12).
“Except as provided in this section, an individual, including, but not limited to, a custodian of the videorecorded statement, the witness, or the witness’s parent, guardian, guardian ad litem, or attorney, shall not release or consent to release a videorecorded statement or a copy of a videorecorded statement.” MCL 600.2163a(13). “A person who intentionally releases a videorecorded statement in violation of this section is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 600.2163a(23).
“A videorecorded statement is exempt from disclosure under the freedom of information act [(FOIA)], . . . MCL 15.231 to [MCL] 15.246, is not subject to release under another statute, and is not subject to disclosure under the Michigan court rules governing discovery.” MCL 600.2163a(15).
Videorecorded statement subject to protective order. “A videorecorded statement that becomes part of the court record is subject to a protective order of the court for the purpose of protecting the privacy of the witness.” MCL 600.2163a(14).
b.Child Protective and Certain Juvenile Delinquency Proceedings18
“The court may allow the use of videotaped statements . . . to protect the child witness as authorized by MCL 712A.17b.” MCR 3.923(E).
MCL 712A.17b(5) requires the videorecorded statement to do all of the following:
•“[S]tate the date and time that the [videorecorded] statement was taken.”
•“[I]dentify the persons present in the room and state whether they were present for the entire video recording or only a portion of the video recording.”
•“[S]how a time clock that is running during the taking of the videorecorded statement.”
“A custodian of the videorecorded statement may take a witness’s videorecorded statement. The videorecorded statement shall be admitted at all proceedings except the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(5).19 See In re Martin, 316 Mich App 73, 81-82 (2016) (reversing the trial court’s order of adjudication with respect to the respondent-father and the order terminating his parental rights where the trial court erroneously relied on the child’s videorecorded statements contained in a DVD instead of live testimony to adjudicate the respondent-father).20
Questioning of the witness. “In a videorecorded statement, the questioning of the witness should be full and complete; shall be in accordance with the forensic interview protocol[21] implemented as required by . . . MCL 722.628; and, if appropriate for the witness’s developmental level, shall include, but need not be limited to, all of the following areas:
(a) The time and date of the alleged offense or offenses.
(b) The location and area of the alleged offense or offenses.
(c) The relationship, if any, between the witness and the respondent.
(d) The details of the offense or offenses.
(e) The names of other persons known to the witness who may have personal knowledge of the offense or offenses.” MCL 712A.17b(6).
Release or use of videorecorded statement. “A videorecorded statement shall not be copied or reproduced in any manner except as provided in [MCL 712A.17b].” MCL 712A.17b(11). MCL 712A.17b(11) does not, however, “prohibit the production or release of a transcript of a videorecorded statement.”
MCL 712A.17b(7)-(8) set out the applicable standards for release or use of videorecorded statements:
• “A custodian of the videorecorded statement may release or consent to the release or use of a videorecorded statement or copies of a videorecorded statement to[:]
•a law enforcement agency,
•an agency authorized to prosecute the criminal case to which the videorecorded statement relates, or
•an entity that is part of county protocols established under . . . MCL 722.628.” MCL 712A.17b(7) (bullets added).
•“Each respondent and, if represented, his or her attorney has the right to view and hear the videorecorded statement at a reasonable time before it is offered into evidence.” MCL 712A.17b(7).
•“In preparation for a court proceeding and under protective conditions, including, but not limited to, a prohibition on the copying, release, display, or circulation of the videorecorded statement, the court may order that a copy of the videorecorded statement be given to the defense.” MCL 712A.17b(7).
•“If authorized by the prosecuting attorney in the county in which the videorecorded statement was taken and with the consent of a minor witness’s nonoffending parent or legal guardian, a videorecorded statement may be used for purposes of training the custodians of the videorecorded statement in that county, or for purposes of training persons in another county that would meet the definition of custodian of the videorecorded statement had the videorecorded statement been taken in that other county, on the forensic interview protocol[22] implemented as required by . . . MCL 722.628. The consent required under this subsection must be obtained through the execution of a written, fully informed, time-limited, and revocable release of information. An individual participating in training under this subsection is also required to execute a nondisclosure agreement to protect witness confidentiality.” MCL 712A.17b(8).
“Except as provided in [MCL 712A.17b], an individual, including, but not limited to, a custodian of the videorecorded statement, the witness, or the witness’s parent, guardian, guardian ad litem, or attorney, shall not release or consent to release a videorecorded statement or a copy of a videorecorded statement.” MCL 712A.17b(9). “A person who intentionally releases a videorecorded statement in violation of [MCL 712A.17b] is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.” MCL 712A.17b(19).
“A videorecorded statement is exempt from disclosure under the [FOIA], . . . MCL 15.231 to [MCL] 15.246, is not subject to release under another statute, and is not subject to disclosure under the Michigan court rules governing discovery.” MCL 712A.17b(11).
Videorecorded statement subject to protective order. “A videorecorded statement that becomes part of the court record is subject to a protective order of the court for the purpose of protecting the privacy of the witness.” MCL 712A.17b(10).