A Crime Victim’s Rights Following Felony Arraignment

5.14A Crime Victim’s Rights Following Felony Arraignment ¹

Article 1 of the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq., assigns certain rights and responsibilities to victims of felonies. In addition, some provisions in the Revised Judicature Act assign victim rights. Although most provisions of the CVRA deal with a law enforcement agency’s obligations, the court may find it helpful to be cognizant of the following CVRA requirements and procedures as early as the arraignment.

•Identifying information about and visual representations of a crime victim are protected. MCL 780.758(2) provides that a victim’s home and work addresses and telephone numbers must not be in the court file or “ordinary” court documents unless they are contained in a trial transcript or are used to identify the place of a crime. Under MCL 780.758(3), information and visual representations of a crime victim are subject to the following:

“(a) The home address, home telephone number, work address, and work telephone number of the victim are exempt from disclosure under the [Freedom of Information Act (FOIA), MCL 15.231 et seq.], unless the address is used to identify the place of the crime.

(b) A picture, photograph, drawing, or other visual representation, including any film, videotape, or digitally stored image of the victim, are exempt from disclosure under the [FOIA], and, if the picture, photograph, drawing, or other visual representation is from a court proceeding that is made available to the public through streaming on the internet or other means, the picture, photograph, drawing, or visual representation may be blurred.

(c) The following information concerning a victim of child abuse, criminal sexual conduct, assault with intent to commit criminal sexual conduct, or a similar crime who was less than 18 years of age when the crime was committed is exempt from disclosure under the [FOIA]:

(i) The victim’s name and address.

(ii) The name and address of an immediate family member or relative of the victim, who has the same surname as the victim, other than the name and address of the accused.

(iii) Any other information that would tend to reveal the identity of the victim, including a reference to the victim’s familial or other relationship to the accused.”

•Notice required when the defendant is available for pretrial release. Within 24 hours of a felony defendant’s arraignment, the investigating law enforcement agency must notify the victim “of the availability of pretrial release for the defendant[.]” MCL 780.755(1). The notice must include the sheriff’s or juvenile facility’s telephone number and must inform the crime victim that he or she may contact the sheriff or juvenile facility to find out whether the defendant was released from police custody. Id. If a victim has requested notification of a defendant’s arrest or release under MCL 780.753, the investigating law enforcement agency must promptly notify the victim of these events. MCL 780.755(1).

•Notice requirements in cases involving deferred judgments or delayed sentences. In all cases, the court, the Department of Corrections (DOC), the Department of Health and Human Services (DHHS), a county sheriff, or a prosecuting attorney must provide notice to a victim if the case against the defendant is resolved by assignment of the defendant to trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal. In performing this duty, the court, DOC, DHHS, county sheriff, or prosecuting attorney may furnish information or records to the victim that would otherwise be closed to public inspection, including information or records related to a defendant’s youthful trainee status. MCL 780.752a; MCL 780.781a; MCL 780.811b.² Notice must be mailed to the address provided by the victim, except as otherwise provided in MCL 780.861. If the victim is a program participant of the Address Confidentiality Program,³ the victim may use the address designated by the department of the attorney general. MCL 780.811b(2).

•Notice requirements prior to the defendant’s admission to drug treatment court.⁴ Circuit and district courts are authorized to institute or adopt a drug treatment court.⁵ MCL 600.1062(1). Family divisions are also authorized to institute or adopt a drug treatment court for juveniles. MCL 600.1062(2). If an offender is admitted to a drug treatment court, adjudication of his or her crime may be deferred. MCL 600.1070(1)(a)-(c). A crime victim and others must be permitted to submit a written statement to the court prior to an offender’s admission to drug treatment court. MCL 600.1068(4) provides:

“In addition to rights accorded a victim under the [CVRA], . . . MCL 780.751 to [MCL] 780.834, the drug treatment court must permit any victim of the offense or offenses of which the individual is charged, any victim of a prior offense of which that individual was convicted, and members of the community in which either the offenses were committed or in which the defendant resides to submit a written statement to the court regarding the advisability of admitting the individual into the drug treatment court.”

Note: Subject to the agreement of the defendant, the defendant’s attorney, the prosecutor, the judge of the transferring court, the judge of the receiving court, and the prosecutor of the receiving drug treatment court’s funding unit, a drug treatment court may accept participants from any other jurisdiction based on the participant’s residence or the unavailability of a drug treatment court in the jurisdiction where the participant is charged. MCL 600.1062(4).

•Notice requirements prior to the defendant’s admission to veterans treatment court.⁶ Circuit and district courts are authorized to adopt or institute a veterans treatment court.⁷ MCL 600.1201(2). If an offender is admitted to a veterans treatment court, adjudication of his or her crime may be deferred. MCL 600.1206(1)(c). Crime victims and community members must be permitted to submit written statements to the veterans treatment court prior to an offender’s admission to that court. MCL 600.1205(4) provides:

“In addition to rights accorded a victim under the [CVRA], . . . MCL 780.751 to [MCL] 780.834, the veterans treatment court shall permit any victim of the offense or offenses of which the individual is charged, any victim of a prior offense of which that individual was convicted, and members of the community in which the offenses were committed or in which the defendant resides to submit a written statement to the court regarding the advisability of admitting the individual into the veterans treatment court.”

A participant in veterans treatment court must “[p]ay all crime victims’ rights assessments under . . . MCL 780.905.” MCL 600.1208(1)(d).

Note: Subject to the agreement of the defendant, the defendant’s attorney, the prosecutor, the judge of the transferring court, the judge of the receiving veterans treatment court, and the prosecutor of the receiving veterans treatment court’s funding unit, a veterans treatment court may accept participants from any other jurisdiction in the state based on either the participant’s residence in the receiving jurisdiction or the unavailability of a veterans treatment court in the jurisdiction in which the participant is charged. MCL 600.1201(4).

•Notice requirements prior to the defendant’s admission to mental health court.⁸ Circuit and district courts are authorized to adopt or institute a mental health court. MCL 600.1091(1).⁹ If an offender is admitted to a mental health court, he or she may be entitled to discharge and dismissal of the proceedings. MCL 600.1098(2)-(5). Crime victims must be permitted to submit written statements to the mental health court prior to an offender’s admission to that court. MCL 600.1094(4) provides:

“In addition to rights accorded a victim under the [CVRA], . . . MCL 780.751 to [MCL] 780.834, the mental health court shall permit any victim of the offense or offenses of which the individual is charged as well as any victim of a prior offense of which that individual was convicted to submit a written statement to the court regarding the advisability of admitting the individual into the mental health court.”

Note: The court may, but is not required to, “accept participants from any other jurisdiction in [the] state based upon the residence of the participant in the receiving jurisdiction, the nonavailability of a mental health court in the jurisdiction where the participant is charged, and the availability of financial resources for both operations of the mental health court program and treatment services.” MCL 600.1091(2).

•Notice requirements prior to the defendant’s admission to family treatment court.¹⁰ Circuit courts are authorized to adopt or institute a family treatment court. MCL 600.1099bb(1).¹¹ A violent offender must not be admitted to a family treatment court unless the family treatment court judge and the prosecution, in consultation with any known victim, consent to the violent offender’s admission. MCL 600.1099dd(1); MCL 600.1099ee(c). Individuals currently charged with first-degree murder or criminal sexual conduct in the first, second, or third degree, and individuals who have been convicted of first-degree murder, criminal sexual conduct in the first degree, or child sexually abusive activity are ineligible for admission. MCL 600.1099dd(1)(a)-(b); MCL 600.1099ee(c)-(e). Upon completion of a family treatment court program, a participant may be entitled to discharge and dismissal of the proceedings. See MCL 600.1099jj(1)-(3).

•Notice requirements prior to the juvenile’s admission to juvenile mental health court.¹² The family division of a circuit court is authorized to adopt or institute a juvenile mental health court. MCL 600.1099c(1).¹³ If a juvenile is admitted to a juvenile mental health court, he or she may be entitled to discharge and dismissal of the proceedings. MCL 600.1099k(2)-(3). Crime victims must be permitted to submit written statements to the juvenile mental health court prior to a juvenile’s admission to that court. MCL 600.1099g provides:

“In addition to rights accorded a victim under the [CVRA], . . . MCL 780.751 to [MCL] 780.834, the juvenile mental health court shall permit any victim of the offense or offenses for which the juvenile has been petitioned to submit a written statement to the court regarding the advisability of admitting the juvenile into the juvenile mental health court.”

•Victim impact statements (written). The court must order the preparation of a presentence investigation report (PSIR) in any criminal felony case. MCL 771.14(1). If a crime victim requests, a written impact statement must be included in the PSIR if one is prepared. MCL 771.14(2)(b); MCL 780.764. In juvenile delinquency, designated, and serious misdemeanor cases, the victim also has the right to submit a written impact statement if a disposition report or PSIR is prepared. MCL 780.792(1); MCL 780.792(3). If no PSIR is prepared in a designated case involving a misdemeanor, the court must “notify the prosecuting attorney of the date and time of sentencing at least 10 days prior to the [disposition or] sentencing[,]” and the victim may submit a written impact statement to the prosecutor or court. MCL 780.792(2)-(3).

•Victim impact statements (oral). A crime victim has the right to appear and make an oral impact statement at the sentencing of the defendant or at the disposition or sentencing of the juvenile. MCL 780.765(1); MCL 780.793(1). The victim may elect to remotely provide the oral impact statement. MCL 780.765(1); MCL 780.793(1). The defendant or juvenile must be physically present in the courtroom at the time a victim makes an oral impact statement, unless the court has determined, in its discretion, that the defendant or juvenile is behaving in a disruptive manner or presents a threat to the safety of any individuals in the courtroom. MCL 780.765(2); MCL 780.793(3). The court may consider any relevant statement provided by the victim regarding the defendant being physically present during the victim’s oral impact statement when making its determination. MCL 780.765(2); MCL 780.793(3).

¹ See Section 5.11 for discussion of application of the Crime Victim’s Rights Act (CVRA) to serious misdemeanors, some of which are punishable by more than one year in prison and are therefore cognizable in the circuit court. See the Michigan Judicial Institute’s Crime Victim Rights Benchbook for a detailed and comprehensive discussion of the Crime Victim’s Rights Act.

² See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9, for discussion of deferment and delayed sentencing, including specialized treatment courts.

⁵ A drug treatment court, or a circuit or district court seeking to adopt or institute a drug treatment court, must be certified by the State Court Administrative Office. MCL 600.1062(5). A case may be completely transferred from a court of original jurisdiction to a drug treatment court, prior to or after adjudication, if those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting attorney from each court, and the defendant—have executed a memorandum of understanding as provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant until final disposition of the case, but not longer than the probation period established under MCL 771.2. MCL 600.1070(2).

⁷ A veterans treatment court, or a circuit or district court seeking to adopt or institute a veterans treatment court, must be certified by the State Court Administrative Office. MCL 600.1201(5). A case may be completely transferred from a court of original jurisdiction to a veterans treatment court, prior to or after adjudication, if those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting attorney from each court, and the defendant—have executed a memorandum of understanding as provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant until final disposition of the case, but not longer than the probation period established under MCL 771.2. MCL 600.1206(2).

⁹ A mental health court, or a circuit or district court seeking to adopt or institute a mental health court, must be certified by the State Court Administrative Office. MCL 600.1091(4). A case may be completely transferred from a court of original jurisdiction to a mental health court, prior to or after adjudication, if those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting attorney from each court, and the defendant—have executed a memorandum of understanding as provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant until final disposition of the case, but not longer than the probation period established under MCL 771.2. MCL 600.1095(2).

¹⁰ See the Michigan Judicial Institute’s Controlled Substances Benchbook for discussion of family treatment courts.

¹¹ A family treatment court or circuit court seeking to adopt or institute a family treatment court must be certified by the State Court Administrative Office. MCL 600.1099bb(3). A circuit court cannot adopt or institute a family treatment court unless it enters into a memorandum of understanding with the prosecuting attorney, a lawyer-guardian ad litem, a representative of the bar specializing in family or juvenile law, and representative(s) of the Department of Health and Human Services and community treatment providers. See MCL 600.1099bb(1).

¹³ A juvenile mental health court, or a family division of circuit court seeking to adopt or institute a juvenile mental health court, must be certified by the State Court Administrative Office. MCL 600.1099c(4). A case may be completely transferred from a court of original jurisdiction to a juvenile mental health court, prior to or after adjudication, if those courts—with the approval of the chief judge and assigned judge of each court, a prosecuting attorney from each court, and the juvenile—have executed a memorandum of understanding as provided in MCL 600.1088(1)(a)-(e). See MCL 600.1088(1). Unless a memorandum of understanding provides otherwise, the original court of jurisdiction maintains jurisdiction over the participant until final disposition of the case. MCL 600.1099h(b). The court may also “receive jurisdiction over the juvenile’s parents or guardians under section 6 of chapter XIIA of the probate code of 1939, . . . MCL 712A.6, in order to assist in ensuring the juvenile’s continued participation and successful completion of the juvenile mental health court and may issue and enforce any appropriate and necessary order regarding the parent or guardian.” MCL 600.1099h(b).