MICHIGAN COURT RULES OF 1985
Updated April 26, 2024
Subchapter 6.000 General Provisions
Rule 6.001 Scope; Applicability of Civil Rules; Superseded Rules and Statutes
(A) Felony Cases. The rules in subchapters 6.000-6.500, except MCR 6.006(C), govern matters of procedure in criminal cases cognizable in the circuit courts and in courts of equivalent criminal jurisdiction.
(B) Misdemeanor Cases. MCR 6.001-6.004, 6.005(B) and (C), 6.006(A) and (C)-(E), 6.009, 6.101-6.103, 6.104(A), 6.105-6.106, 6.125, 6.202, 6.425(D)(3), 6.427, 6.430, 6.435, 6.440, 6.441, 6.445, 6.450, 6.451, and the rules in subchapter 6.600 govern matters of procedure in criminal cases cognizable in the district courts.
(C) Juvenile Cases. MCR 6.009 and the rules in subchapter 6.900 govern matters of procedure in the district courts and in circuit courts and courts of equivalent criminal jurisdiction in cases involving juveniles against whom the prosecutor has authorized the filing of a criminal complaint as provided in MCL 764.1f.
(D) Civil Rules Applicable. The provisions of the rules of civil procedure apply to cases governed by this chapter, except
(1) as otherwise provided by rule or statute,
(2) when it clearly appears that they apply to civil actions only,
(3) when a statute or court rule provides a like or different procedure, or
(4) with regard to limited appearances and notices of limited appearance.
Depositions and other discovery proceedings under subchapter 2.300 may not be taken for the purposes of discovery in cases governed by this chapter. The provisions of MCR 2.501(C) regarding the length of notice of trial assignment do not apply in cases governed by this chapter.
(E) Rules and Statutes Superseded. The rules in this chapter supersede all prior court rules in this chapter and any statutory procedure pertaining to and inconsistent with a procedure provided by a rule in this chapter.
Rule 6.002 Purpose and Construction
These rules are intended to promote a just determination of every criminal proceeding. They are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
For purposes of subchapters 6.000-6.800:
(1) “Party” includes the lawyer representing the party.
(2) “Defendant’s lawyer” includes a self-represented defendant proceeding without a lawyer.
(3) “Prosecutor” includes any lawyer prosecuting the case.
(4) “Court” or “judicial officer” includes a judge, a magistrate, or a district court magistrate authorized in accordance with the law to perform the functions of a magistrate.
(5) “Court clerk” includes a deputy clerk.
(6) “Court reporter” includes a court recorder.
(7) “Technical probation violation” means any violation of the terms of a probation order, including missing or failing a drug test, excluding the following:
(a) A violation of an order of the court requiring that the probationer have no contact with a named individual.
(b) A violation of a law of this state, a political subdivision of this state, another state, or the United States or of tribal law, whether or not a new criminal offense is charged.
(c) The consumption of alcohol by a probationer who is on probation for a felony violation of MCL 257.625.
(d) Absconding, defined as the intentional failure of a probationer to report to his or her supervising agent or to advise his or her supervising agent of his or her whereabouts for a continuous period of not less than 60 days.
(A) Right to Speedy Trial. The defendant and the people are entitled to a speedy trial and to a speedy resolution of all matters before the court. Whenever the defendant's constitutional right to a speedy trial is violated, the defendant is entitled to dismissal of the charge with prejudice.
(B) Priorities in Scheduling Criminal Cases. The trial court has the responsibility to establish and control a trial calendar. In assigning cases to the calendar, and insofar as it is practicable,
(1) the trial of criminal cases must be given preference over the trial of civil cases, and
(2) the trial of defendants in custody and of defendants whose pretrial liberty presents unusual risks must be given preference over other criminal cases.
(C) Delay in Felony and Misdemeanor Cases; Recognizance Release. In a felony case in which the defendant has been incarcerated for a period of 180 days or more to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, or in a misdemeanor case in which the defendant has been incarcerated for a period of 28 days or more to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, the defendant must be released on personal recognizance, unless the court finds by clear and convincing evidence that the defendant is likely either to fail to appear for future proceedings or to present a danger to any other person or the community. In computing the 28-day and 180-day periods, the court is to exclude
(1) periods of delay resulting from other proceedings concerning the defendant, including but not limited to competency and criminal responsibility proceedings, pretrial motions, interlocutory appeals, and the trial of other charges,
(2) the period of delay during which the defendant is not competent to stand trial,
(3) the period of delay resulting from an adjournment requested or consented to by the defendant’s lawyer,
(4) the period of delay resulting from an adjournment requested by the prosecutor, but only if the prosecutor demonstrates on the record either
(a) the unavailability, despite the exercise of due diligence, of material evidence that the prosecutor has reasonable cause to believe will be available at a later date; or
(b) exceptional circumstances justifying the need for more time to prepare the state’s case,
(5) a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run, but only if good cause exists for not granting the defendant a severance so as to enable trial within the time limits applicable, and
(6) any other periods of delay that in the court’s judgment are justified by good cause, but not including delay caused by docket congestion.
(D) Untried Charges Against State Prisoner.
(1) The 180-Day Rule. Except for crimes exempted by MCL 780.131(2), the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail.
(2) Remedy. In the event that action is not commenced on the matter for which request for disposition was made as required in subsection (1), no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information, or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Rule 6.005 Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings
(A) Advice of Right. At the arraignment on the warrant or complaint, the court must advise the defendant
(1) of entitlement to a lawyer’s assistance at all court proceedings, and
(2) that the defendant is entitled to a lawyer at public expense if the defendant wants one and is financially unable to retain one.
The court must ask the defendant whether the defendant wants a lawyer and, if so, whether the defendant is financially unable to retain one.
(B) Questioning Defendant About Indigency. If the defendant requests a lawyer and claims financial inability to retain one, the court must determine whether the defendant is indigent unless the court's local funding unit has designated an appointing authority in its compliance plan with the Michigan Indigent Defense Commission. If there is an appointing authority, the court must refer the defendant to the appointing authority for indigency screening. If there is no appointing authority, or if the defendant seeks judicial review of the appointing authority’s determination concerning indigency, the court’s determination of indigency must be guided by the following factors:
(1) present employment, earning capacity and living expenses;
(2) outstanding debts and liabilities, secured and unsecured;
(3) whether the defendant has qualified for and is receiving any form of public assistance;
(4) availability and convertibility, without undue financial hardship to the defendant and the defendant's dependents, of any personal or real property owned;
(5) the rebuttable presumptions of indigency listed in the MIDC’s indigency standard; and
(6) any other circumstances that would impair the ability to pay a lawyer's fee as would ordinarily be required to retain competent counsel.
The ability to post bond for pretrial release does not make the defendant ineligible for appointment of a lawyer. The court reviews an appointing authority’s determination of indigency de novo and may consider information not presented to the appointing authority.
(C) Partial Indigency. If a defendant is able to pay part of the cost of a lawyer, the court may require contribution to the cost of providing a lawyer and may establish a plan for collecting the contribution.
(D) Appointment or Waiver of a Lawyer. Where the court makes the determination that a defendant is financially unable to retain a lawyer, it must promptly refer the defendant to the local indigent criminal defense system's appointing authority for appointment of a lawyer. The court may not permit the defendant to make an initial waiver of the right to be represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.
The court should encourage any defendant who appears without counsel to be screened for indigency and potential appointment of counsel.
(E) Advice at Subsequent Proceedings. If a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial or sentencing) need show only that the court advised the defendant of the continuing right to a lawyer's assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,
(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or
(2) if the defendant requests a lawyer and is financially unable to retain one, the court must refer the defendant to the local indigent criminal defense system’s appointing authority for the appointment of one; or
(3) if the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one.
The court may refuse to adjourn a proceeding for the appointment of counsel or allow a defendant to retain counsel if an adjournment would significantly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking counsel.
(F) Multiple Representation. When two or more indigent defendants are jointly charged with an offense or offenses or their cases are otherwise joined, the local indigent criminal defense system must appoint separate lawyers unassociated in the practice of law for each defendant. Whenever two or more defendants who have been jointly charged or whose cases have been joined are represented by the same retained lawyer or lawyers associated in the practice of law, the court must inquire into the potential for a conflict of interest that might jeopardize the right of each defendant to the undivided loyalty of the lawyer. The court may not permit the joint representation unless:
(1) the lawyer or lawyers state on the record the reasons for believing that joint representation in all probability will not cause a conflict of interests;
(2) the defendants state on the record after the court’s inquiry and the lawyer’s statement, that they desire to proceed with the same lawyer; and
(3) the court finds on the record that joint representation in all probability will not cause a conflict of interest and states its reasons for the finding.
(G) Unanticipated Conflict of Interest. If, in a case of joint representation, a conflict of interest arises at any time, including trial, the lawyer must immediately inform the court. If the court agrees that a conflict has arisen, it must afford one or more of the defendants the opportunity to retain separate lawyers. The court should on its own initiative inquire into any potential conflict that becomes apparent, and take such action as the interests of justice require.
(H) Scope of Trial Lawyer’s Responsibilities.
(1) The responsibilities of the trial lawyer who represents the defendant include
(a) representing the defendant in all trial court proceedings through initial sentencing,
(b) filing of interlocutory appeals the lawyer deems appropriate, and
(c) responding to any preconviction appeals by the prosecutor. Unless an appellate lawyer has been appointed or retained, the defendant’s trial lawyer must either:
(i) file a response to any application for leave to appeal, appellant’s brief, or substantive motion; or
(ii) notify the Court of Appeals in writing that the defendant has knowingly elected not to file a response.
(2) Unless an appellate lawyer has been appointed or retained, or if retained trial counsel withdraws, the trial lawyer who represents the defendant is responsible for filing postconviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw plea, or for resentencing.
(3) When an appellate lawyer has been appointed or retained, the trial lawyer is responsible for promptly making the defendant’s file, including all discovery material obtained and exhibits in the trial lawyer’s possession, reasonably available upon request of the appellate lawyer. The trial lawyer must retain the materials in the defendant’s file for at least five years after the case is disposed in the trial court.
(I) Assistance of Lawyer at Grand Jury Proceedings.
(1) A witness called before a grand jury or a grand juror is entitled to have a lawyer present in the hearing room while the witness gives testimony. A witness may not refuse to appear for reasons of unavailability of the lawyer for that witness. Except as otherwise provided by law, the lawyer may not participate in the proceedings other than to advise the witness.
(2) The prosecutor assisting the grand jury is responsible for ensuring that a witness is informed of the right to a lawyer’s assistance during examination by written notice accompanying the subpoena to the witness and by personal advice immediately before the examination. The notice must include language informing the witness that if the witness is financially unable to retain a lawyer, the chief judge in the circuit court in which the grand jury is convened will on request refer the witness to the local indigent criminal defense system for appointment of an attorney at public expense.
Rule 6.006 Video and Audio Proceedings
(A) Generally.
(1) Except as otherwise provided by this rule, the use of videoconferencing technology under this rule is subject to MCR 2.407.
(2) 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.
(3) When determining whether to utilize videoconferencing technology, the court shall consider constitutional requirements, in addition to the factors contained in MCR 2.407.
(4) This rule does not supersede a participant’s ability to participate by telephonic means under MCR 2.402.
(B) Mode of Proceedings in Cases Cognizable in the Circuit Court
(1) Generally. Circuit courts may use videoconferencing technology to conduct any non-evidentiary or trial proceeding.
(2) Preferred Mode. The use of videoconferencing technology shall be preferred for the following proceedings:
(a) initial arraignments on the information;
(b) pretrial conferences;
(c) motions pursuant to MCR 2.119; and
(d) pleas.
As used in this subrule, “preferred” means scheduled to be conducted remotely subject to a request under MCR 2.407(B)(4) to appear in person by any participant, including a victim as defined by the William Van Regenmorter Crime Victim's Rights Act, MCL 780.751 et seq., or a determination by the court that a case is not suited for videoconferencing under MCR 2.407(B)(5).
(3) Presumed Mode. In all other proceedings, the in-person appearance of the parties, witnesses, and other participants is presumed.
(4) Trials. Notwithstanding any other provisions of these rules, the use of videoconferencing technology shall not be used 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 the use of videoconferencing technology.
(5) In-Person Demand. Nothing in this rule 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.
(C) Mode of Proceedings in Cases Cognizable in the District and Municipal Court
(1) Preferred Mode. The use of videoconferencing technology shall be the preferred mode for conducting arraignments and probable cause conferences for in-custody defendants. As used in this subrule, “preferred” means scheduled to be conducted remotely subject to a request under MCR 2.407(B)(4) to appear in person by any participant, including a victim as defined by the William Van Regenmorter Crime Victim’s Rights Act, MCL 780.751 et seq., or a determination by the court that a case is not suited for videoconferencing under MCR 2.407(B)(5).
(2) Presumed Mode. In all other criminal proceedings, the in-person appearance of parties, witnesses, and other participants is presumed.
(3) Videoconferencing Technology Prohibited. Notwithstanding any other provision of these rules and subject to constitutional rights, 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.
(4) Preliminary Examination. Notwithstanding anything herein to the contrary, 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.
(D) Mechanics of Use. The use of telephonic, voice, videoconferencing, or two-way interactive video technology, must be in accordance with any requirements and guidelines established by the State Court Administrative Office, and all proceedings at which such technology is used must be recorded verbatim by the court.
(E) Notwithstanding any other provision in this rule, until further order of the Court, AO No. 2012-7 is supended.
Rule 6.007 Confidential Records
Records are public except as otherwise indicated in court rule or statute.
Rule 6.008 Criminal Jurisdiction
(A) District Court. The district court has jurisdiction over all misdemeanors and all felonies through the preliminary examination and until the entry of an order to bind the defendant over to the circuit court.
(B) Circuit Court. The circuit court has jurisdiction over all felonies from the bindover from the district court unless otherwise provided by law. The failure of the court to properly document the bindover decision shall not deprive the circuit court of jurisdiction. A party challenging a bindover decision must do so before any plea of guilty or no contest, or before trial.
(C) Pleas and Verdicts in Circuit Court. The circuit court retains jurisdiction over any case in which a plea is entered or a verdict rendered to a charge that would normally be cognizable in the district court.
(D) Sentencing Misdemeanors in Circuit Court. The circuit court shall sentence all defendants bound over to circuit court on a felony that either plead guilty to, or are found guilty of, a misdemeanor.
(E) Concurrent Jurisdiction. As part of a concurrent jurisdiction plan, the circuit court and district court may enter into an agreement for district court probation officers to prepare the presentence investigation report and supervise on probation defendants who either plead guilty to, or are found guilty of, a misdemeanor in circuit court. The case remains under the jurisdiction of the circuit court.
Rule 6.009 Use of Restraints on a Defendant
(A) Instruments of restraint, such as handcuffs, chains, irons, or straitjackets, cloth and leather restraints, and other similar items, may not be used on a defendant during a court proceeding that is or could have been before a jury unless the court finds, using record evidence, that the use of restraints is necessary due to one of the following factors:
(1) Instruments of restraint are necessary to prevent physical harm to the defendant or another person.
(2) The defendant has a history of disruptive courtroom behavior that has placed others in potentially harmful situations or presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.
(3) There is a founded belief that the defendant presents a substantial risk of flight from the courtroom.
(B) The court’s determination that restraints are necessary must be made outside the presence of the jury. If restraints are ordered, the court shall state on the record or in writing its findings of fact in support of the order.
(C) Any restraints used on a defendant in the courtroom must allow the defendant limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances should a defendant be restrained using fixed restraints to a wall, floor, or furniture.
(D) If the court determines restraints are needed, the court must order restraints that reflect the least restrictive means necessary to maintain the security of the courtroom. A court should consider the visibility of a given restraint and the degree to which it affects an individual’s range of movement. A court may consider, but is not limited to considering, participation by video or other electronic means; the presence of court personnel, law enforcement officers, or bailiffs; or unobtrusive stun devices.
Subchapter 6.100 Preliminary Proceedings
(A) Definition and Form. A complaint is a written accusation that a named or described person has committed a specified criminal offense. The complaint must include the substance of the accusation against the accused and the name and statutory citation of the offense. At the time of filing, specified case initiation information shall be provided in the form and manner approved by the State Court Administrative Office.
(B) Signature and Oath. The complaint must be signed and verified under MCR 1.109(D)(3). Any requirement of law that a complaint filed with the court must be sworn is met by this verification.
(C) Prosecutor’s Approval or Posting of Security. A complaint may not be filed without a prosecutor’s written approval endorsed on the complaint or attached to it, or unless security for costs is filed with the court.
Rule 6.102 Warrants and Summonses
(A) Issuance of Summons; Warrant. A court must issue an arrest warrant or a summons as provided in this rule if presented with a proper complaint and if the court finds probable cause to believe that the accused committed the alleged offense.
(B) Probable Cause Determination. A finding of probable cause may be based on hearsay evidence and rely on factual allegations in the complaint, affidavits from the complainant or others, the testimony of a sworn witness adequately preserved to permit review, or any combination of these sources.
(C) Summons. A court must issue a summons unless otherwise provided in subrule (D).
(1) Form. A summons must contain the same information as an arrest warrant, except that it should summon the accused to appear before a designated court at a stated time and place.
(2) Service and Return of Summons. A summons may be served by the court or prosecuting attorney by
(a) delivering a copy to the named individual; or
(b) leaving a copy with a person of suitable age and discretion at the individual’s home or usual place of abode; or
(c) mailing a copy to the individual’s last known address.
Service should be made promptly to give the accused adequate notice of the appearance date. Unless service is made by the court, the person serving the summons must make a return to the court before the person is summoned to appear.
(3) If the accused fails to appear in response to a summons, the court may issue a bench warrant pursuant to MCR 6.103.
(D) Arrest Warrant. A court may issue an arrest warrant, rather than a summons, if any of the following circumstance apply
(1) the complaint is for an assaultive crime or an offense involving domestic violence, as defined in MCL 764.1a.
(2) there is reason to believe from the complaint that the person against whom the complaint is made will not appear upon a summons.
(3) the issuance of a summons poses a risk to public safety.
(4) the prosecutor has requested an arrest warrant.
(E) Contents of Warrant; Court’s Subscription. A warrant must
(1) contain the accused’s name, if known, or an identifying name or description;
(2) describe the offense charged in the complaint;
(3) command a peace officer or other person authorized by law to arrest and bring the accused before a judicial officer of the judicial district in which the offense allegedly was committed or some other designated court; and
(4) be signed by the court.
(F) Warrant Specification of Interim Bail. Where permitted by law, the court may specify on the warrant the bail that an accused may post to obtain release before arraignment on the warrant and, if the court deems it appropriate, include as a bail condition that the arrest of the accused occur on or before a specified date or within a specified period of time after issuance of the warrant.
(G) Execution and Return of Warrant. Only a peace officer or other person authorized by law may execute an arrest warrant. On execution or attempted execution of the warrant, the officer must make a return on the warrant and deliver it to the court before which the arrested person is to be taken.
(H) Release on Interim Bail. If an accused has been arrested pursuant to a warrant that includes an interim bail provision, the accused must either be arraigned promptly or released pursuant to the interim bail provision. The accused may obtain release by posting the bail on the warrant and by submitting a recognizance to appear before a specified court at a specified date and time, provided that
(1) the accused is arrested prior to the expiration date, if any, of the bail provision;
(2) the accused is arrested in the county in which the warrant was issued, or in which the accused resides or is employed, and the accused is not wanted on another charge;
(3) the accused is not under the influence of liquor or controlled substance; and
(4) the condition of the accused or the circumstances at the time of arrest do not otherwise suggest a need for judicial review of the original specification of bail.
(A) In General. Except as provided in MCR 6.615(B), if a defendant fails to appear in court, the court must wait 48 hours, excluding weekends and holidays if the court is closed to the public, before issuing a bench warrant to allow the defendant an opportunity to voluntarily appear before the court.
(1) This rule does not apply if the case is for an assaultive crime or domestic violence offense, as defined in MCL 764.3, or if the defendant previously failed to appear in the case.
(2) If this rule does apply, the court may immediately issue a bench warrant only if the court has a specific articulable reason, stated on the record, to suspect any of the following apply:
(a) the defendant has committed a new crime.
(b) a person or property will be endangered if a bench warrant is not issued.
(c) prosecution witnesses have been summoned and are present for the proceeding.
(d) the proceeding is to impose a sentence for the crime.
(e) there are other compelling circumstances that require the immediate issuance of a bench warrant.
(3) If the defendant does not appear within 48 hours, the court must issue a bench warrant unless the court believes there is good reason to instead schedule the case for further hearing.
(B) Show Cause. This rule does not abridge a court’s authority to issue an order to show cause, instead of a bench warrant, if a defendant fails to appear in court.
(C) Release Order. The court must not revoke a defendant’s release order or forfeit bond during the 48-hour period of delay before a warrant is issued.
Rule 6.104 Arraignment on the Warrant or Complaint
(A) Arraignment Without Unnecessary Delay. Unless released beforehand, an arrested person must be taken without unnecessary delay before a court for arraignment in accordance with the provisions of this rule, or must be arraigned without unnecessary delay by use of two-way interactive video technology in accordance with MCR 6.006(A). The arrested person is entitled to the assistance of an attorney at arraignment unless
(1) the arrested person makes an informed waiver of counsel or
(2) the court issues a personal bond and will not accept a plea of guilty or no contest at arraignment.
(B) Place of Arraignment. An accused arrested pursuant to a warrant must be taken to a court specified in the warrant. An accused arrested without a warrant must be taken to a court in the judicial district in which the offense allegedly occurred. If the arrest occurs outside the county in which these courts are located, the arresting agency must make arrangements with the authorities in the demanding county to have the accused promptly transported to the latter county for arraignment in accordance with the provisions of this rule. If prompt transportation cannot be arranged, the accused must be taken without unnecessary delay before the nearest available court for preliminary appearance in accordance with subrule (C). In the alternative, the provisions of this subrule may be satisfied by use of two-way interactive video technology in accordance with MCR 6.006(A).
(C) Preliminary Appearance Outside County of Offense. When, under subrule (B), an accused is taken before a court outside the county of the alleged offense either in person or by way of two-way interactive video technology, the court must advise the accused of the rights specified in subrule (E)(2) and determine what form of pretrial release, if any, is appropriate. To be released, the accused must submit a recognizance for appearance within the next 14 days before a court specified in the arrest warrant or, in a case involving an arrest without a warrant, before either a court in the judicial district in which the offense allegedly occurred or some other court designated by that court. The court must certify the recognizance and have it delivered or sent without delay to the appropriate court. If the accused is not released, the arresting agency must arrange prompt transportation to the judicial district of the offense. In all cases, the arraignment is then to continue under subrule (D), if applicable, and subrule (E) either in the judicial district of the alleged offense or in such court as otherwise is designated.
(D) Arrest Without Warrant. If an accused is arrested without a warrant, a complaint complying with MCR 6.101 must be filed at or before the time of arraignment. On receiving the complaint and on finding probable cause, the court must either issue a warrant or endorse the complaint as provided in MCL 764.1c. Arraignment of the accused may then proceed in accordance with subrule (E).
(E) Arraignment Procedure; Judicial Responsibilities. The court at the arraignment must
(1) inform the accused of the nature of the offense charged, and its maximum possible prison sentence and any mandatory minimum sentence required by law;
(2) if the accused is not represented by a lawyer at the arraignment, advise the accused that
(a) the accused has a right to remain silent,
(b) anything the accused says orally or in writing can be used against the accused in court,
(c) the accused has a right to have a lawyer present during any questioning consented to, and
(d) if the accused does not have the money to hire a lawyer, the local indigent criminal defense system will appoint a lawyer for the accused;
(3) advise the accused of the right to a lawyer at all court proceedings;
(4) set a date for a probable cause conference not less than 7 days or more than 14 days after the date of the arraignment and set a date for preliminary examination not less than 5 days or more than 7 days after the date of the probable cause conference;
(5) determine what form of pretrial release, if any, is appropriate; and
(6) ensure that the accused has had biometric data collected as required by law.
The court may not question the accused about the alleged offense or request that the accused enter a plea.
(F) Arraignment Procedure; Recording. A verbatim record must be made of the arraignment.
(G) Plan for Judicial Availability. In each county, the court with trial jurisdiction over felony cases must adopt and file with the state court administrator a plan for judicial availability. The plan shall
(1) make a judicial officer available for arraignments each day of the year, or
(2) make a judicial officer available for setting bail for every person arrested for commission of a felony each day of the year conditioned upon
(a) the judicial officer being presented a proper complaint and finding probable cause pursuant to MCR 6.102(A), and
(b) the judicial officer having available information to set bail.
This portion of the plan must provide that the judicial officer shall order the arresting officials to arrange prompt transportation of any accused unable to post bond to the judicial district of the offense for arraignment not later than the next regular business day.
Rule 6.105 Voluntary Appearance
(A) In General. If a defendant, wanted on a bench or arrest warrant, voluntarily presents himself or herself to the court that issued the warrant within one year of the warrant issuance, the court must either
(1) arraign the defendant, if the court is available to do so within two hours of the defendant presenting himself or herself to the court; or
(2) recall the warrant and schedule the case for a future appearance.
It is presumed the defendant is not a flight risk when the court sets bond or other conditions of release at an arraignment under this rule.
(B) Exceptions. This rule does not apply to assaultive crimes or domestic violence offenses, as defined in MCL 762.10d, or to defendants who have previously benefited from this rule on any pending criminal charge.
(A) In General. At the defendant’s arraignment on the complaint and/or warrant, unless an order in accordance with this rule was issued beforehand, the court must order that, pending trial, the defendant be
(1) held in custody as provided in subrule (B);
(2) released on personal recognizance or an unsecured appearance bond; or
(3) released conditionally, with or without money bail (ten percent, cash or surety).
(B) Pretrial Release/Custody Order Under Const 1963, art 1, § 15.
(1) The court may deny pretrial release to
(a) a defendant charged with
(i) murder or treason, or
(ii) committing a violent felony and
[A] at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony, or
[B] during the 15 years preceding the commission of the violent felony, the defendant had been convicted of 2 or more violent felonies under the laws of this state or substantially similar laws of the United States or another state arising out of separate incidents, if the court finds that proof of the defendant's guilt is evident or the presumption great;
(b) a defendant charged with criminal sexual conduct in the first degree, armed robbery, or kidnapping with the intent to extort money or other valuable thing thereby, if the court finds that proof of the defendant's guilt is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.
(2) A “violent felony” within the meaning of subrule (B)(1) is a felony, an element of which involves a violent act or threat of a violent act against any other person.
(3) If the court determines as provided in subrule (B)(1) that the defendant may not be released, the court must order the defendant held in custody for a period not to exceed 90 days after the date of the order, excluding delays attributable to the defense, within which trial must begin or the court must immediately schedule a hearing and set the amount of bail.
(4) The court must state the reasons for an order of custody on the record and on a form approved by the State Court Administrator's Office entitled “Custody Order.” The completed form must be placed in the court file.
(5) The court may, in its custody order, place conditions on the defendant, including but not limited to restricting or prohibiting defendant’s contact with any other named person or persons, if the court determines the conditions are reasonably necessary to maintain the integrity of the judicial proceedings or are reasonably necessary for the protection of one or more named persons. If an order under this paragraph is in conflict with another court order, the most restrictive provisions of the orders shall take precedence until the conflict is resolved.
(6) Nothing in this rule limits the ability of a jail to impose restrictions on detainee contact as an appropriate means of furthering penological goals.
(C) Release on Personal Recognizance. If the defendant is not ordered held in custody pursuant to subrule (B), the court must order the pretrial release of the defendant on personal recognizance, or on an unsecured appearance bond, subject to the conditions that the defendant will appear as required, will not leave the state without permission of the court, and will not commit any crime while released, unless the court determines that such release will not reasonably ensure the appearance of the defendant as required, or that such release will present a danger to the public.
(D) Conditional Release. If the court determines that the release described in subrule (C) will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public, the court may order the pretrial release of the defendant on the condition or combination of conditions that the court determines are appropriate including
(1) that the defendant will appear as required, will not leave the state without permission of the court, and will not commit any crime while released, and
(2) subject to any condition or conditions the court determines are reasonably necessary to ensure the appearance of the defendant as required and the safety of the public, which may include requiring the defendant to
(a) make reports to a court agency as are specified by the court or the agency;
(b) not use alcohol or illicitly use any controlled substance;
(c) participate in a substance abuse testing or monitoring program;
(d) participate in a specified treatment program for any physical or mental condition, including substance abuse;
(e) comply with restrictions on personal associations, place of residence, place of employment, or travel;
(f) surrender driver’s license or passport;
(g) comply with a specified curfew;
(h) continue to seek employment;
(i) continue or begin an educational program;
(j) remain in the custody of a responsible member of the community who agrees to monitor the defendant and report any violation of any release condition to the court;
(k) not possess a firearm or other dangerous weapon;
(l) not enter specified premises or areas and not assault, beat, molest or wound a named person or persons;
(m) comply with any condition limiting or prohibiting contact with any other named person or persons. If an order under this paragraph limiting or prohibiting contact with any other named person or persons is in conflict with another court order, the most restrictive provision of the orders shall take precedence until the conflict is resolved. The court may make this condition effective immediately on entry of a pretrial release order and while defendant remains in custody if the court determines it is reasonably necessary to maintain the integrity of the judicial proceeding or it is reasonably necessary for the protection of one or more named persons.
(n) satisfy any injunctive order made a condition of release; or
(o) comply with any other condition, including the requirement of money bail as described in subrule (E), reasonably necessary to ensure the defendant's appearance as required and the safety of the public.
(E) Money Bail. If the court determines for reasons it states on the record that the defendant's appearance or the protection of the public cannot otherwise be assured, money bail, with or without conditions described in subrule (D), may be required.
(1) The court may require the defendant to
(a) post, at the defendant’s option,
(i) a surety bond that is executed by a surety approved by the court in an amount equal to 1/4 of the full bail amount, or
(ii) bail that is executed by the defendant, or by another who is not a surety approved by the court, and secured by
[A] a cash deposit, or its equivalent, for the full bail amount, or
[B] a cash deposit of 10 percent of the full bail amount, or, with the court’s consent,
[C] designated real property; or
(b) post, at the defendant’s option,
(i) a surety bond that is executed by a surety approved by the court in an amount equal to the full bail amount, or
(ii) bail that is executed by the defendant, or by another who is not a surety approved by the court, and secured by
[A] a cash deposit, or its equivalent, for the full bail amount, or, with the court’s consent,
[B] designated real property.
(2) The court may require satisfactory proof of value and interest in property if the court consents to the posting of a bond secured by designated real property.
(F) Decision; Statement of Reasons.
(1) In deciding which release to use and what terms and conditions to impose, the court is to consider relevant information, including
(a) defendant’s prior criminal record, including juvenile offenses;
(b) defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution;
(c) defendant’s history of substance abuse or addiction;
(d) defendant’s mental condition, including character and reputation for dangerousness;
(e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence;
(f) defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail;
(g) the availability of responsible members of the community who would vouch for or monitor the defendant;
(h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence, and
(i) any other facts bearing on the risk of nonappearance or danger to the public.
(2)If the court orders the defendant held in custody pursuant to subrule (B) or released on conditions in subrule (D) that include money bail, the court must state the reasons for its decision on the record. The court need not make a finding on each of the enumerated factors.
(3) Nothing in subrules (C) through (F) may be construed to sanction pretrial detention nor to sanction the determination of pretrial release on the basis of race, religion, gender, economic status, or other impermissible criteria.
(G) Custody Hearing.
(1) Entitlement to Hearing. A court having jurisdiction of a defendant may conduct a custody hearing if the defendant is being held in custody pursuant to subrule (B) and a custody hearing is requested by either the defendant or the prosecutor. The purpose of the hearing is to permit the parties to litigate all of the issues relevant to challenging or supporting a custody decision pursuant to subrule (B).
(2) Hearing Procedure.
(a) At the custody hearing, the defendant is entitled to be present and to be represented by a lawyer, and the defendant and the prosecutor are entitled to present witnesses and evidence, to proffer information, and to cross-examine each other’s witnesses.
(b) The rules of evidence, except those pertaining to privilege, are not applicable. Unless the court makes the findings required to enter an order under subrule (B)(1), the defendant must be ordered released under subrule (C) or (D). A verbatim record of the hearing must be made.
(H) Appeals; Modification of Release Decision.
(1) Appeals. A party seeking review of a release decision may file a motion in the court having appellate jurisdiction over the court that made the release decision. There is no fee for filing the motion. The reviewing court may not stay, vacate, modify, or reverse the release decision except on finding an abuse of discretion.
(2) Modification of Release Decision.
(a) Prior to Arraignment on the Information. Prior to the defendant’s arraignment on the information, any court before which proceedings against the defendant are pending may, on the motion of a party or its own initiative and on finding that there is a substantial reason for doing so, modify a prior release decision or reopen a prior custody hearing.
(b) Arraignment on Information and Afterwards. At the defendant’s arraignment on the information and afterwards, the court having jurisdiction of the defendant may, on the motion of a party or its own initiative, make a de novo determination and modify a prior release decision or reopen a prior custody hearing.
(c) Burden of Going Forward. The party seeking modification of a release decision has the burden of going forward.
(3) Emergency Release. If a defendant being held in pretrial custody under this rule is ordered released from custody as a result of a court order or law requiring the release of prisoners to relieve jail conditions, the court ordering the defendant’s release may, if appropriate, impose conditions of release in accordance with this rule to ensure the appearance of the defendant as required and to protect the public. If such conditions of release are imposed, the court must inform the defendant of the conditions on the record or by furnishing to the defendant or the defendant's lawyer a copy of the release order setting forth the conditions.
(I) Termination of Release Order.
(1) If the conditions of the release order are met and the defendant is discharged from all obligations in the case, the court must vacate the release order, discharge anyone who has posted bail or bond, and return the cash (or its equivalent) posted in the full amount of the bail, or, if there has been a deposit of 10 percent of the full bail amount, return 90 percent of the deposited money and retain 10 percent.
(2) If the defendant has failed to comply with the conditions of release, the court may, pursuant to MCR 6.103, issue a warrant for the arrest of the defendant and enter an order revoking the release order and declaring the bail money deposited or the surety bond, if any, forfeited.
(a) The court must mail notice of any revocation order immediately to the defendant at the defendant’s last known address and, if forfeiture of bail or bond has been ordered, to anyone who posted bail or bond.
(b) If the defendant does not appear and surrender to the court within 28 days after the revocation date, the court may continue the revocation order and enter judgment for the state or local unit of government against the defendant and anyone who posted bail or bond for an amount not to exceed the full amount of the bail, and costs of the court proceedings, or if a surety bond was posted, an amount not to exceed the full amount of the surety bond. If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall continue to be liable to the court for the difference, unless otherwise ordered by the court. If the defendant does not within that period satisfy the court that there was compliance with the conditions of release other than appearance or that compliance was impossible through no fault of the defendant, the court may continue the revocation order and enter judgment for the state or local unit of government against the defendant alone for an amount not to exceed the full amount of the bond, and costs of the court proceedings.
(c) The 10 percent bail deposit made under subrule (E)(1)(a)(ii)[B] must be applied to the costs and, if any remains, to the balance of the judgment. The amount applied to the judgment must be transferred to the county treasury for a circuit court case, to the treasuries of the governments contributing to the district control unit for a district court case, or to the treasury of the appropriate municipal government for a municipal court case. The balance of the judgment may be enforced and collected as a judgment entered in a civil case.
(3) If money was deposited on a bail or bond executed by the defendant, the money must be first applied to the amount of any fine, costs, or statutory assessments imposed and any balance returned, subject to subrule (I)(1).
Rule 6.107 Grand Jury Proceedings
(A) Right to Grand Jury Records. Whenever an indictment is returned by a grand jury or a grand juror, the person accused in the indictment is entitled to the part of the record, including a transcript of the part of the testimony of all witnesses appearing before the grand jury or grand juror, that touches on the guilt or innocence of the accused of the charge contained in the indictment.
(B) Procedure to Obtain Records.
(1) To obtain the part of the record and transcripts specified in subrule (A), a motion must be addressed to the chief judge of the circuit court in the county in which the grand jury issuing the indictment was convened.
(2) The motion must be filed within 14 days after arraignment on the indictment or at a reasonable time thereafter as the court may permit on a showing of good cause and a finding that the interests of justice will be served.
(3) On receipt of the motion, the chief judge shall order the entire record and transcript of testimony taken before the grand jury to be delivered to the chief judge by the person having custody of it for an in-camera inspection by the chief judge.
(4) Following the in-camera inspection, the chief judge shall certify the parts of the record, including the testimony of all grand jury witnesses that touches on the guilt or innocence of the accused, as being all of the evidence bearing on that issue contained in the record, and have two copies of it prepared, one to be delivered to the attorney for the accused, or to the accused if not represented by an attorney, and one to the attorney charged with the responsibility for prosecuting the indictment.
(5) The chief judge shall then have the record and transcript of all testimony of grand jury witnesses returned to the person from whom it was received for disposition according to law.
Rule 6.108 The Probable Cause Conference
(A) Right to a probable Cause Conference. The state and the defendant are entitled to a probable cause conference, unless waived by both parties. If the probable cause conference is waived, the parties shall provide written notice to the court and indicate whether the parties will be conducting a preliminary examination, waiving the examination, or entering a plea.
(B) A district court magistrate may conduct probable cause conferences when authorized to do so by the chief district judge and may conduct all matters allowed at the probable cause conference, except taking pleas and imposing sentences unless permitted by statute to take pleas or impose sentences.
(C) The probable cause conference shall include discussions regarding a possible plea agreement and other pretrial matters, including bail and bond modification.
(D) The district court judge must be available during the probable cause conference to take pleas, consider requests for modification of bond, and if requested by the prosecutor, take the testimony of a victim.
(E) The probable cause conference for codefendants who are arraigned at least 72 hours before the probable cause conference shall be consolidated and only one joint probable cause conference shall be held unless the prosecuting attorney consents to the severance, a defendant seeks severance by motion and it is granted, or one of the defendants is unavailable and does not appear at the hearing.
Rule 6.110 The Preliminary Examination
(A) Right to Preliminary Examination. Where a preliminary examination is permitted by law, the people and the defendant are entitled to a prompt preliminary examination. The defendant may waive the preliminary examination with the consent of the prosecuting attorney. Upon waiver of the preliminary examination, the court must bind the defendant over for trial on the charge set forth in the complaint or any amended complaint. The preliminary examination for codefendants shall be consolidated and only one joint preliminary examination shall be held unless the prosecuting attorney consents to the severance, a defendant seeks severance by motion and it is granted, or one of the defendants is unavailable and does not appear at the hearing.
(B) Time of Examination; Remedy.
(1) Unless adjourned by the court, the preliminary examination must be held on the date specified by the court at the arraignment on the warrant or complaint. If the parties consent, the court may adjourn the preliminary examination for a reasonable time. If a party objects, the court may not adjourn a preliminary examination unless it makes a finding on the record of good cause shown for the adjournment. A violation of this subrule is deemed to be harmless error unless the defendant demonstrates actual prejudice.
(2) Upon the request of the prosecuting attorney, the preliminary examination shall commence immediately at the date and time set for the probable cause conference for the sole purpose of taking and preserving the testimony of the victim, if the victim is present, as long as the defendant is either present in the courtroom or has waived the right to be present. If victim testimony is taken as provided under this rule, the preliminary examination will be continued at the date originally set for that event.
(C) Conduct of Examination. A verbatim record must be made of the preliminary examination. The court shall allow the prosecutor and the defendant to subpoena and call witnesses, offer proofs, and examine and cross-examine witnesses at the preliminary examination. The court must conduct the examination in accordance with the Michigan Rules of Evidence.
(D) Exclusionary Rules.
(1) The court shall allow the prosecutor and defendant to subpoena and call witnesses from whom hearsay testimony was introduced on a satisfactory showing that live testimony will be relevant.
(2) If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence. If, however, there has been a preliminary showing that the evidence is admissible, the court need not hold a separate evidentiary hearing on the question of whether the evidence should be excluded. The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of
(a) a prior evidentiary hearing, or
(b) a prior evidentiary hearing supplemented with a hearing before the trial court, or
(c) if there was no prior evidentiary hearing, a new evidentiary hearing.
(E) Probable Cause Finding. If, after considering the evidence, the court determines that probable cause exists to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it, the court must bind the defendant over for trial. If the court finds probable cause to believe that the defendant has committed an offense cognizable by the district court, it must proceed thereafter as if the defendant initially had been charged with that offense.
(F) Discharge of Defendant. No Finding of Probable Cause. If, after considering the evidence, the court determines that probable cause does not exist to believe either that an offense has been committed or that the defendant committed it, the court must discharge the defendant without prejudice to the prosecutor initiating a subsequent prosecution for the same offense or reduce the charge to an offense that is not a felony. Except as provided in MCR 8.111(C), the subsequent preliminary examination must be held before the same judicial officer and the prosecutor must present additional evidence to support the charge.
(G) Return of Examination. Immediately on concluding the examination, the court must certify and transmit to the court before which the defendant is bound to appear the prosecutor's authorization for a warrant application, the complaint, a copy of the register of actions, the examination return, and any recognizances received.
(H) Motion to Dismiss. If, on proper motion, the trial court finds a violation of subrule (C), (D), (E), or (F), it must either dismiss the information or remand the case to the district court for further proceedings.
(I) Scheduling the Arraignment. Unless the trial court does the scheduling of the arraignment on the information, the district court must do so in accordance with the administrative orders of the trial court.
Rule 6.111 Circuit Court Arraignment in District Court
(A) The circuit court arraignment may be conducted by a district judge in criminal cases cognizable in the circuit court immediately after the bindover of the defendant. A district court judge shall take a felony plea as provided by court rule if a plea agreement is reached between the parties. Following a plea, the case shall be transferred to the circuit court where the circuit judge shall preside over further proceedings, including sentencing. The circuit court judge’s name shall be available to the litigants before the plea is taken.
(B) Arraignments conducted pursuant to this rule shall be conducted in conformity with MCR 6.113.
(C) Pleas taken pursuant to this rule shall be taken in conformity with MCR 6.301, 6.302, 6.303, and 6.304, as applicable, and, once taken, shall be governed by MCR 6.310.
Rule 6.112 The Information or Indictment
(A) Informations and Indictments; Similar Treatment. Except as otherwise provided in these rules or elsewhere, the law and rules that apply to informations and prosecutions on informations apply to indictments and prosecutions on indictments.
(B) Use of Information or Indictment. A prosecution must be based on an information or an indictment. Unless the defendant is a fugitive from justice, the prosecutor may not file an information until the defendant has had or waives a preliminary examination. An indictment is returned and filed without a preliminary examination. When this occurs, the indictment shall commence judicial proceedings.
(C) Time of Filing Information or Indictment. The prosecutor must file the information or indictment on or before the date set for the arraignment.
(D) Information; Nature and Contents; Attachments. The information must set forth the substance of the accusation against the defendant and the name, statutory citation, and penalty of the offense allegedly committed. If applicable, the information must also set forth the notice required by MCL 767.45, and the defendant’s Michigan driver’s license number. To the extent possible, the information should specify the time and place of the alleged offense. Allegations relating to conduct, the method of committing the offense, mental state, and the consequences of conduct may be stated in the alternative. A list of all witnesses known to the prosecutor who may be called at trial and all res gestae witnesses known to the prosecutor or investigating law enforcement officers must be attached to the information. A prosecutor must sign the information.
(E) Bill of Particulars. The court, on motion, may order the prosecutor to provide the defendant a bill of particulars describing the essential facts of the alleged offense.
(F) Notice of Intent to Seek Enhanced Sentence. A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list the prior convictions that may be relied upon for purposes of sentence enhancement. The notice must contain, if applicable, any mandatory minimum sentence required by law as a result of the sentence enhancement. The notice must be filed within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived or eliminated as allowed under MCR 6.113(E), within 21 days after the filing of the information charging the underlying offense.
(G) Harmless Error. Absent a timely objection and a showing of prejudice, a court may not dismiss an information or reverse a conviction because of an untimely filing or because of an incorrectly cited statute or a variance between the information and proof regarding time, place, the manner in which the offense was committed, or other factual detail relating to the alleged offense.
(H) Amendment of Information or Notice of Intent to Seek Enhanced Sentence. The court before, during, or after trial may permit the prosecutor to amend the information or the notice of intent to seek enhanced sentence unless the proposed amendment would unfairly surprise or prejudice the defendant. On motion, the court must strike unnecessary allegations from the information.
Rule 6.113 The Arraignment on the Indictment or Information
(A) Time of Conducting. Unless the defendant waives arraignment or the court for good cause orders a delay, or as otherwise permitted by these rules, the court with trial jurisdiction must arraign the defendant on the scheduled date. The court may hold the arraignment before the preliminary examination transcript has been prepared and filed. Unless the defendant demonstrates actual prejudice, failure to hold the arraignment on the scheduled date is to be deemed harmless error.
(B) Arraignment Procedure. The prosecutor must give a copy of the information to the defendant before the defendant is asked to plead. Unless waived by the defendant, the court must either state to the defendant the substance of the charge contained in the information or require the information to be read to the defendant. If the defendant has waived legal representation, the court must advise the defendant of the pleading options. If the defendant offers a plea other than not guilty, the court must proceed in accordance with the rules in subchapter 6.300. Otherwise, the court must enter a plea of not guilty on the record. A verbatim record must be made of the arraignment.
(C) Waiver. A defendant represented by a lawyer may, as a matter of right, enter a plea of not guilty or stand mute without arraignment by filing, at or before the time set for the arraignment, a written statement signed by the defendant and the defendant’s lawyer acknowledging that the defendant has received a copy of the information, has read or had it read or explained, understands the substance of the charge, waives arraignment in open court, and pleads not guilty to the charge or stands mute.
(D) Preliminary Examination Transcript. The court reporter shall transcribe and file the record of the preliminary examination if such is demanded or ordered pursuant to MCL 766.15.
(E) Elimination of Arraignments. A circuit court may submit to the State Court Administrator pursuant to MCR 8.112(B) a local administrative order that eliminates arraignment for a defendant represented by an attorney, provided other arrangements are made to give the defendant a copy of the information and any notice of intent to seek an enhanced sentence, as provided in MCR 6.112(F).
Rule 6.120 Joinder and Severance; Single Defendant
(A) Charging Joinder. The prosecuting attorney may file an information or indictment that charges a single defendant with any two or more offenses. Each offense must be stated in a separate count. Two or more informations or indictments against a single defendant may be consolidated for a single trial.
(B) Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties’ readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an opportunity to be heard.
(C) Right of Severance; Unrelated Offenses. On the defendant’s motion, the court must sever for separate trials offenses that are not related as defined in subrule (B)(1).
Rule 6.121 Joinder and Severance; Multiple Defendants
(A) Permissive Joinder. An information or indictment may charge two or more defendants with the same offense. It may charge two or more defendants with two or more offenses when
(1) each defendant is charged with accountability for each offense, or
(2) the offenses are related as defined in MCR 6.120(B).
When more than one offense is alleged, each offense must be stated in a separate count. Two or more informations or indictments against different defendants may be consolidated for a single trial whenever the defendants could be charged in the same information or indictment under this rule.
(B) Right of Severance; Unrelated Offenses. On a defendant’s motion, the court must sever offenses that are not related as defined in MCR 6.120(B).
(C) Right of Severance; Related Offenses. On a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.
(D) Discretionary Severance. On the motion of any party, the court may sever the trial of defendants on the ground that severance is appropriate to promote fairness to the parties and a fair determination of the guilt or innocence of one or more of the defendants. Relevant factors include the timeliness of the motion, the drain on the parties’ resources, the potential for confusion or prejudice stemming from either the number of defendants or the complexity or nature of the evidence, the convenience of witnesses, and the parties’ readiness for trial.
Rule 6.125 Mental Competency Hearing
(A) Applicable Provisions. Except as provided in these rules, a mental competency hearing in a criminal case is governed by MCL 330.2020 et seq.
(B) Time and Form of Motion. The issue of the defendant’s competence to stand trial or to participate in other criminal proceedings may be raised at any time during the proceedings against the defendant. The issue may be raised by the court before which such proceedings are pending or being held, or by motion of a party. Unless the issue of defendant’s competence arises during the course of proceedings, a motion raising the issue of defendant’s competence must be in writing. If the competency issue arises during the course of proceedings, the court may adjourn the proceeding or, if the proceeding is defendant's trial, the court may, consonant with double jeopardy considerations, declare a mistrial.
(C) Order for Examination.
(1) On a showing that the defendant may be incompetent to stand trial, the court must order the defendant to undergo an examination by a certified or licensed examiner of the center for forensic psychiatry or other facility officially certified by the department of mental health to perform examinations relating to the issue of competence to stand trial.
(2) The defendant must appear for the examination as required by the court.
(3) If the defendant is held in detention pending trial, the examination may be performed in the place of detention or the defendant may be transported by the sheriff to the diagnostic facility for examination.
(4) The court may order commitment to a diagnostic facility for examination if the defendant fails to appear for the examination as required or if commitment is necessary for the performance of the examination.
(5) The defendant must be released from the facility on completion of the examination and, if (3) is applicable, returned to the place of detention.
(D) Independent Examination. On a showing of good cause by either party, the court may order an independent examination of the defendant relating to the issue of competence to stand trial.
(E) Hearing. A competency hearing must be held within 5 days of receipt of the report required by MCL 330.2028 or on conclusion of the proceedings then before the court, whichever is sooner, unless the court, on a showing of good cause, grants an adjournment.
(F) Motions; Testimony.
(1) A motion made while a defendant is incompetent to stand trial must be heard and decided if the presence of the defendant is not essential for a fair hearing and decision on the motion.
(2) Testimony may be presented on a pretrial defense motion if the defendant’s presence could not assist the defense.
Rule 6.126 Decision on Admissibility of Evidence
Where the court makes a decision on the admissibility of evidence and the prosecutor or the defendant files an interlocutory application for leave to appeal seeking to reverse that decision, the court shall stay proceedings pending resolution of the application in the Court of Appeals, unless the court makes findings that the evidence is clearly cumulative or that an appeal is frivolous because legal precedent is clearly against the party’s position. If the application for leave to appeal is filed by the prosecutor and the defendant is incarcerated, the defendant may request that the court reconsider whether pretrial release is appropriate.
(A) Mandatory Disclosure. In addition to disclosures required by provisions of law other than MCL 767.94a, a party upon request must provide all other parties:
(1) the names and addresses of all lay and expert witnesses whom the party may call at trial; in the alternative, a party may provide the name of the witness and make the witness available to the other party for interview; the witness list may be amended without leave of the court no later than 28 days before trial;
(2) any written or recorded statement, including electronically recorded statements, pertaining to the case by a lay witness whom the party may call at trial, except that a defendant is not obliged to provide the defendant’s own statement;
(3) the curriculum vitae of an expert the party may call at trial and either a report by the expert or a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion;
(4) any criminal record that the party may use at trial to impeach a witness;
(5) a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial; and
(6) a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request. A party may request a hearing regarding any question of costs of reproduction, including the cost of providing copies of electronically recorded statements. On good cause shown, the court may order that a party be given the opportunity to test without destruction any tangible physical evidence.
(B) Discovery of Information Known to the Prosecuting Attorney. Upon request, the prosecuting attorney must provide each defendant:
(1) any exculpatory information or evidence known to the prosecuting attorney;
(2) any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation;
(3) any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case, even if that person is not a prospective witness at trial;
(4) any affidavit, warrant, and return pertaining to a search or seizure in connection with the case; and
(5) any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.
(C) Prohibited Discovery.
(1) Notwithstanding any other provision of this rule, there is no right to discover information or evidence that is protected from disclosure by constitution, statute, or privilege, including information or evidence protected by a defendant's right against self-incrimination, except as provided in subrule (2).
(2) If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records.
(a) If the privilege is absolute, and the privilege holder refuses to waive the privilege to permit an in camera inspection, the trial court shall suppress or strike the privilege holder’s testimony.
(b) If the court is satisfied, following an in camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel. If the privilege is absolute and the privilege holder refuses to waive the privilege to permit disclosure, the trial court shall suppress or strike the privilege holder’s testimony.
(c) Regardless of whether the court determines that the records should be made available to the defense, the court shall make findings sufficient to facilitate meaningful appellate review.
(d) The court shall seal and preserve the records for review in the event of an appeal
(i) by the defendant, on an interlocutory basis or following conviction, if the court determines that the records should not be made available to the defense, or
(ii) by the prosecution, on an interlocutory basis, if the court determines that the records should be made available to the defense.
(e) Records disclosed under this rule shall remain in the exclusive custody of counsel for the parties, shall be used only for the limited purpose approved by the court, and shall be subject to such other terms and conditions as the court may provide.
(D) Excision. When some parts of material or information are discoverable and other parts are not discoverable, the party must disclose the discoverable parts and may excise the remainder. The party must inform the other party that nondiscoverable information has been excised and withheld. On motion, the court must conduct a hearing in camera to determine whether the reasons for excision are justifiable. If the court upholds the excision, it must seal and preserve the record of the hearing for review in the event of an appeal.
(E) Protective Orders. On motion and a showing of good cause, the court may enter an appropriate protective order. In considering whether good cause exists, the court shall consider the parties’ interests in a fair trial; the risk to any person of harm, undue annoyance, intimidation, embarrassment, or threats; the risk that evidence will be fabricated; and the need for secrecy regarding the identity of informants or other law enforcement matters. On motion, with notice to the other party, the court may permit the showing of good cause for a protective order to be made in camera. If the court grants a protective order, it must seal and preserve the record of the hearing for review in the event of an appeal.
(F) Timing of Discovery. Unless otherwise ordered by the court, the prosecuting attorney must comply with the requirements of this rule within 21 days of a request under this rule and a defendant must comply with the requirements of this rule within 21 days of a request under this rule.
(G) Copies. Except as ordered by the court on good cause shown, a party’s obligation to provide a photograph or paper of any kind is satisfied by providing a clear copy.
(H) Continuing Duty to Disclose. If at any time a party discovers additional information or material subject to disclosure under this rule, the party, without further request, must promptly notify the other party.
(I) Modification. On good cause shown, the court may order a modification of the requirements and prohibitions of this rule.
(J) Violation. If a party fails to comply with this rule, the court, in its discretion, may order the party to provide the discovery or permit the inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances. Parties are encouraged to bring questions of noncompliance before the court at the earliest opportunity. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court. An order of the court under this section is reviewable only for abuse of discretion.
(K) Except as otherwise provided in MCR 2.302(B)(6), electronic materials are to be treated in the same manner as nonelectronic materials under this rule. Nothing in this rule shall be construed to conflict with MCL 600.2163a.
Rule 6.202. Disclosure of Forensic Laboratory Report and Certificate; Applicability; Admissibility of Report and Certificate; Extension of Time; Adjournment
(A) This rule shall apply to criminal trials in the district and circuit courts.
(B) Disclosure. Upon receipt of a forensic laboratory report and certificate, if applicable, by the examining expert, the prosecutor shall serve a copy of the laboratory report and certificate on the opposing party’s attorney or party, if not represented by an attorney, within 14 days after receipt of the laboratory report and certificate. A proof of service of the report and certificate, if applicable, on the opposing party’s attorney or party, if not represented by an attorney, shall be filed with the court.
(C) Notice and Demand.
(1) Notice. If a party intends to offer the report described in subsection (B) as evidence at trial, the party’s attorney or party, if not represented by an attorney, shall provide the opposing party’s attorney or party, if not represented by an attorney, with notice of that fact in writing. If the prosecuting attorney intends to offer the report as evidence at trial, notice to the defendant’s attorney or the defendant, if not represented by an attorney, shall be included with the report. If the defendant intends to offer the report as evidence at trial, notice to the prosecuting attorney shall be provided within 14 days after receipt of the report. Except as provided in subrule (C)(2), the report and certification, if applicable, is admissible in evidence to the same effect as if the person who performed the analysis or examination had personally testified.
(2) Demand. Upon receipt of a copy of the laboratory report and certificate, if applicable, the opposing party’s attorney or party, if not represented by an attorney, may file a written objection to the use of the laboratory report and certificate. The written objection shall be filed with the court in which the matter is pending, and shall be served on the opposing party’s attorney or party, if not represented by an attorney, within 14 days of receipt of the notice. If a written objection is filed, the report and certificate are not admissible under subrule (C)(1). If no objection is made to the use of the laboratory report and certificate within the time allowed by this section, the report and certificate are admissible in evidence as provided in subrule (C)(1).
(3) For good cause the court shall extend the time period of filing a written objection.
(4) Adjournment. Compliance with this court rule shall be good cause for an adjournment of the trial.
(D) Certification. Except as otherwise provided, the analyst who conducts the analysis on the forensic sample and signs the report shall complete a certificate on which the analyst shall state (i) that he or she is qualified by education, training, and experience to perform the analysis, (ii) the name and location of the laboratory where the analysis was performed, (iii) that performing the analysis is part of his or her regular duties, and (iv) that the tests were performed under industry-approved procedures or standards and the report accurately reflects the analyst’s findings and opinions regarding the results of those tests or analysis. A report submitted by an analyst who is employed by a laboratory that is accredited by a national or international accreditation entity that substantially meets the certification requirements described above may provide proof of the laboratory’s accreditation certificate in lieu of a separate certificate.
(A) Possible Pleas. Subject to the rules in this subchapter, a defendant may plead not guilty, guilty, nolo contendere, guilty but mentally ill, or not guilty by reason of insanity. If the defendant refuses to plead or stands mute, or the court, pursuant to the rules, refuses to accept the defendant’s plea, the court must enter a not guilty plea on the record. A plea of not guilty places in issue every material allegation in the information and permits the defendant to raise any defense not otherwise waived.
(B) Pleas That Require the Court’s Consent. A defendant may enter a plea of nolo contendere only with the consent of the court.
(C) Pleas That Require the Consent of the Court and the Prosecutor. A defendant may enter the following pleas only with the consent of the court and the prosecutor:
(1) A defendant who has asserted an insanity defense may enter a plea of guilty but mentally ill or a plea of not guilty by reason of insanity. Before such a plea may be entered, the defendant must comply with the examination required by law.
(2) A defendant may enter a conditional plea of guilty, nolo contendere, guilty but mentally ill, or not guilty by reason of insanity. A conditional plea preserves for appeal a specified pretrial ruling or rulings notwithstanding the plea-based judgment and entitles the defendant to withdraw the plea if a specified pretrial ruling is overturned on appeal. The ruling or rulings as to which the defendant reserves the right to appeal must be specified orally on the record or in a writing made a part of the record. The appeal is by application for leave to appeal only.
(D) Pleas to Lesser Charges. The court may not accept a plea to an offense other than the one charged without the consent of the prosecutor.
Rule 6.302 Pleas of Guilty and Nolo Contendere
(A) Plea Requirements. The court may not accept a plea of guilty or nolo contendere unless it is convinced that the plea is understanding, voluntary, and accurate. Before accepting a plea of guilty or nolo contendere, the court must place the defendant or defendants under oath and personally carry out subrules (B)-(E).
(B) An Understanding Plea. Speaking directly to the defendant or defendants, the court must advise the defendant or defendants of the following and determine that each defendant understands:
(1) the name of the offense to which the defendant is pleading; the court is not obliged to explain the elements of the offense, or possible defenses;
(2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c;
(3) if the plea is accepted, the defendant will not have a trial of any kind, and so gives up the rights the defendant would have at a trial, including the right:
(a) to be tried by a jury;
(b) to be presumed innocent until proved guilty;
(c) to have the prosecutor prove beyond a reasonable doubt that the defendant is guilty;
(d) to have the witnesses against the defendant appear at the trial;
(e) to question the witnesses against the defendant;
(f) to have the court order any witnesses the defendant has for the defense to appear at the trial;
(g) to remain silent during the trial;
(h) to not have that silence used against the defendant; and
(i) to testify at the trial if the defendant wants to testify.
(4) if the plea is accepted, the defendant will be giving up any claim that the plea was the result of promises or threats that were not disclosed to the court at the plea proceeding, or that it was not the defendant's own choice to enter the plea;
(5) if the plea is accepted, the defendant may be giving up the right to appeal issues that would otherwise be appealable if she or he were convicted at trial. Further, any appeal from the conviction and sentence pursuant to the plea will be by application for leave to appeal and not by right;
The requirements of subrules (B)(3) and (B)(5) may be satisfied by a writing on a form approved by the State Court Administrative Office. If a court uses a writing, the court shall address the defendant and obtain from the defendant orally on the record a statement that the rights were read and understood and a waiver of those rights. The waiver may be obtained without repeating the individual rights.
(C) A Voluntary Plea.
(1) The court must ask the prosecutor and the defendant’s lawyer whether they have made a plea agreement. If they have made a plea agreement, which may include an agreement to a sentence to a specific term or within a specific range, the agreement must be stated on the record or reduced to writing and signed by the parties. The parties may memorialize their agreement on a form substantially approved by the SCAO. The written agreement shall be made part of the case file.
(2) If there is a plea agreement, the court must ask the prosecutor or the defendant’s lawyer what the terms of the agreement are and confirm the terms of the agreement with the other lawyer and the defendant.
(3) If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a sentence to a specified term or within a specified range or a prosecutorial sentence recommendation, the court may
(a) reject the agreement; or
(b) accept the agreement after having considered the presentence report, in which event it must sentence the defendant to a specified term or within a specified range as agreed to; or
(c) accept the agreement without having considered the presentence report; or
(d) take the plea agreement under advisement.
If the court accepts the agreement without having considered the presentence report or takes the plea agreement under advisement, it must explain to the defendant that the court is not bound to follow an agreement to a sentence for a specified term or within a specified range or a recommendation agreed to by the prosecutor, and that if the court chooses not to follow an agreement to a sentence for a specified term or within a specified range, the defendant will be allowed to withdraw from the plea agreement. A judge’s decision not to follow the sentence recommendation does not entitle the defendant to withdraw the defendant’s plea.
(4) The court must ask the defendant:
(a) (if there is no plea agreement) whether anyone has promised the defendant anything, or (if there is a plea agreement) whether anyone has promised anything beyond what is in the plea agreement;
(b) whether anyone has threatened the defendant; and
(c) whether it is the defendant’s own choice to plead guilty.
(D) An Accurate Plea.
(1) If the defendant pleads guilty, the court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading.
(2) If the defendant pleads nolo contendere, the court may not question the defendant about participation in the crime. The court must:
(a) state why a plea of nolo contendere is appropriate; and
(b) hold a hearing, unless there has been one, that establishes support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading.
(E) Additional Inquiries. On completing the colloquy with the defendant, the court must ask the prosecutor and the defendant's lawyer whether either is aware of any promises, threats, or inducements other than those already disclosed on the record, and whether the court has complied with subrules (B)-(D). If it appears to the court that it has failed to comply with subrules (B)-(D), the court may not accept the defendant's plea until the deficiency is corrected.
(F) Plea Under Advisement; Plea Record. The court may take the plea under advisement. A verbatim record must be made of the plea proceeding.
Rule 6.303 Plea of Guilty but Mentally Ill
Before accepting a plea of guilty but mentally ill, the court must comply with the requirements of MCR 6.302. In addition to establishing a factual basis for the plea pursuant to MCR 6.302(D)(1) or (D)(2)(b), the court must examine the psychiatric reports prepared and hold a hearing that establishes support for a finding that the defendant was mentally ill, at the time of the offense to which the plea is entered. The reports must be made a part of the record.
Rule 6.304 Plea of Not Guilty by Reason of Insanity
(A) Advice to Defendant. Before accepting a plea of not guilty by reason of insanity, the court must comply with the requirements of MCR 6.302 except that subrule (C) of this rule, rather than MCR 6.302(D), governs the manner of determining the accuracy of the plea.
(B) Additional Advice Required. After complying with the applicable requirements of MCR 6.302, the court must advise the defendant, and determine whether the defendant understands, that the plea will result in the defendant's commitment for diagnostic examination at the center for forensic psychiatry for up to 60 days, and that after the examination, the probate court may order the defendant to be committed for an indefinite period of time.
(C) Factual Basis. Before accepting a plea of not guilty by reason of insanity, the court must examine the psychiatric reports prepared and hold a hearing that establishes support for findings that
(1) the defendant committed the acts charged, and
(2) that, by a preponderance of the evidence, the defendant was legally insane at the time of the offense.
(D) Report of Plea. After accepting the defendant's plea, the court must forward to the center for forensic psychiatry a full report, in the form of a settled record, of the facts concerning the crime to which the defendant pleaded and the defendant's mental state at the time of the crime.
Rule 6.310 Withdrawal or Vacation of Plea
(A) Withdrawal Before Acceptance. The defendant has a right to withdraw any plea until the court accepts it on the record.
(B) Withdrawal After Acceptance but Before Sentence. Except as provided in subsection (3), after acceptance but before sentence,
(1) a plea may be withdrawn on the defendant's motion or with the defendant’s consent, only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant's motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by subrule (C).
(2) the defendant is entitled to withdraw the plea if
(a) the plea involves an agreement for a sentence for a specified term or within a specified range, and the court states that it is unable to follow the agreement; the trial court shall then state the sentence it intends to impose, and provide the defendant the opportunity to affirm or withdraw the plea; or
(b) the plea involves a statement by the court that it will sentence to a specified term or within a specified range, and the court states that it is unable to sentence as stated; the trial court shall provide the defendant the opportunity to affirm or withdraw the plea, but shall not state the sentence it intends to impose; or
(c) a consecutive sentence will be imposed and the defendant was not advised at the time of his or her plea that the law permits or requires consecutive sentencing in his or her case.
(3) Except as allowed by the trial court for good cause, a defendant is not entitled to withdraw a plea under subsection (2)(a) or (2)(b) if the defendant commits misconduct after the plea is accepted but before sentencing. For purposes of this rule, misconduct is defined to include, but is not limited to: absconding or failing to appear for sentencing, violating terms of conditions on bond or the terms of any sentencing or plea agreement, or otherwise failing to comply with an order of the court pending sentencing.
(C) Motion to Withdraw Plea After Sentence.
(1) The defendant may file a motion to withdraw the plea within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and (b)(i)-(iii).
(2) Thereafter, the defendant may seek relief only in accordance with the procedure set forth in subchapter 6.500.
(3) If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea. If the defendant elects to allow the plea and sentence to stand, the additional advice given and inquiries made become part of the plea proceeding for the purposes of further proceedings, including appeals.
(D) Preservation of Issues. A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirements of the rules in this subchapter, or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal.
(E) Vacation of Plea on Prosecutor’s Motion. On the prosecutor’s motion, the court may vacate a plea if the defendant has failed to comply with the terms of a plea agreement.
Rule 6.312 Effect of Withdrawal or Vacation of Plea
If a plea is withdrawn by the defendant or vacated by the trial court or an appellate court, the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered.
Rule 6.401 Right to Trial by Jury or by the Court
The defendant has the right to be tried by a jury, or may, with the consent of the prosecutor and approval by the court, elect to waive that right and be tried before the court without a jury.
Rule 6.402 Waiver of Jury Trial by the Defendant
(A) Time of Waiver. The court may not accept a waiver of trial by jury until after the defendant has been arraigned or has waived an arraignment on the information, or, in a court where arraignment on the information has been eliminated under MCR 6.113(E), after the defendant has otherwise been provided with a copy of the information, and has been offered an opportunity to consult with a lawyer.
(B) Waiver and Record Requirements. Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding.
Rule 6.403 Trial by the Judge in Waiver Cases
When trial by jury has been waived, the court with jurisdiction must proceed with the trial. The court must find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The court must state its findings and conclusions on the record or in a written opinion made a part of the record.
Rule 6.410 Jury Trial; Number of Jurors; Unanimous Verdict
(A) Number of Jurors. Except as provided in this rule, a jury that decides a case must consist of 12 jurors. At any time before a verdict is returned, the parties may stipulate with the court’s consent to have the case decided by a jury consisting of a specified number of jurors less than 12. On being informed of the parties’ willingness to stipulate, the court must personally advise the defendant of the right to have the case decided by a jury consisting of 12 jurors. By addressing the defendant personally, the court must ascertain that the defendant understands the right and that the defendant voluntarily chooses to give up that right as provided in the stipulation. If the court finds that the requirements for a valid waiver have been satisfied, the court may accept the stipulation. Even if the requirements for a valid waiver have been satisfied, the court may, in the interest of justice, refuse to accept a stipulation, but it must state its reasons for doing so on the record. The stipulation and procedure described in this subrule must take place in open court and a verbatim record must be made.
(B) Unanimous Verdicts. A jury verdict must be unanimous.
The court may impanel more than 12 jurors. If more than the number of jurors required to decide the case are left on the jury before deliberations are to begin, the names of the jurors must be placed in a container and names drawn from it to reduce the number of jurors to the number required to decide the case. The court may retain the alternate jurors during deliberations. If the court does so, it shall instruct the alternate jurors not to discuss the case with any other person until the jury completes its deliberations and is discharged. If an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.
Rule 6.412 Selection of the Jury
(A) Selecting and Impaneling the Jury. Except as otherwise provided by the rules in this subchapter, MCR 2.510 and 2.511 govern the procedure for selecting and impaneling the jury.
(B) Instructions and Oath Before Selection. Before beginning the jury selection process, the court should give the prospective jurors appropriate preliminary instructions and must have them sworn.
(C) Voir Dire of Prospective Jurors.
(1) Scope and Purpose. The scope of voir dire examination of prospective jurors is within the discretion of the court. It should be conducted for the purposes of discovering grounds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of peremptory challenges. The court should confine the examination to these purposes and prevent abuse of the examination process.
(2) Conduct of the Examination. The court may examine prospective jurors or permit the attorneys for the parties to do so. If the court examines the prospective jurors, it must permit the attorneys for the parties to
(a) ask further questions that the court considers proper, or
(b) submit further questions that the court may ask if it considers them proper.
On its own initiative or on the motion of a party, the court may provide for a prospective juror or jurors to be questioned out of the presence of the other jurors.
(D) Challenges for Cause.
(1) Grounds. A prospective juror is subject to challenge for cause on any ground set forth in MCR 2.511(D) or for any other reason recognized by law.
(2) Procedure. If, after the examination of any juror, the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.
(E) Peremptory Challenges.
(1) Challenges by Right. Each defendant is entitled to 5 peremptory challenges unless an offense charged is punishable by life imprisonment, in which case a defendant being tried alone is entitled to 12 peremptory challenges, 2 defendants being tried jointly are each entitled to 10 peremptory challenges, 3 defendants being tried jointly are each entitled to 9 peremptory challenges, 4 defendants being tried jointly are each entitled to 8 peremptory challenges, and 5 or more defendants being tried jointly are each entitled to 7 peremptory challenges. The prosecutor is entitled to the same number of peremptory challenges as a defendant being tried alone, or, in the case of jointly tried defendants, the total number of peremptory challenges to which all the defendants are entitled.
(2) Additional Challenges. On a showing of good cause, the court may grant one or more of the parties an increased number of peremptory challenges. The additional challenges granted by the court need not be equal for each party.
(F) Oath After Selection. After the jury is selected and before trial begins, the court must have the jurors sworn.
Rule 6.416 Presentation of Evidence
Subject to the rules in this chapter and to the Michigan rules of evidence, each party has discretion in deciding what witnesses and evidence to present.
Before ordering a mistrial, the court must, on the record, give each defendant and the prosecutor an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.
Rule 6.419 Motion for Directed Verdict of Acquittal
(A) Before Submission to the Jury. After the prosecutor has rested the prosecution’s case-in-chief or after the close of all the evidence, the court on the defendant’s motion must direct a verdict of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the defendant may offer evidence without having reserved the right to do so.
(B) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.
(C) After Jury Verdict. After a jury verdict, the defendant may file an original or renewed motion for directed verdict of acquittal in the same manner as provided by MCR 6.431(A) for filing a motion for a new trial.
(D) Bench Trial. In an action tried without a jury, after the prosecutor has rested the prosecution's case-in-chief, the defendant, without waiving the right to offer evidence if the motion is not granted, may move for acquittal on the ground that a reasonable doubt exists. The court may then determine the facts and render a verdict of acquittal, or may decline to render judgment until the close of all the evidence. If the court renders a verdict of acquittal, the court shall make findings of fact.
(E) Conditional New Trial Ruling. If the court grants a directed verdict of acquittal after the jury has returned a guilty verdict, it must also conditionally rule on any motion for a new trial by determining whether it would grant the motion if the directed verdict of acquittal is vacated or reversed.
(F) Explanation of Rulings on Record. The court must state orally on the record or in a written ruling made a part of the record its reasons for granting or denying a motion for a directed verdict of acquittal and for conditionally granting or denying a motion for a new trial.
(A) Return. The jury must return its verdict in open court.
(B) Several Defendants. If two or more defendants are jointly on trial, the jury at any time during its deliberations may return a verdict with respect to any defendant as to whom it has agreed. If the jury cannot reach a verdict with respect to any other defendant, the court may declare a mistrial as to that defendant.
(C) Several Counts. If a defendant is charged with two or more counts, and the court determines that the jury is deadlocked so that a mistrial must be declared, the court may inquire of the jury whether it has reached a unanimous verdict on any of the counts charged, and, if so, may accept the jury's verdict on that count or counts.
(D) Poll of Jury. Before the jury is discharged, the court on its own initiative may, or on the motion of a party must, have each juror polled in open court as to whether the verdict announced is that juror's verdict. If polling discloses the jurors are not in agreement, the court may (1) discontinue the poll and order the jury to retire for further deliberations, or (2) either (a) with the defendant's consent, or (b) after determining that the jury is deadlocked or that some other manifest necessity exists, declare a mistrial and discharge the jury.
Rule 6.425 Sentencing; Appointment of Appellate Counsel
(A) Presentence Report; Contents.
(1) Prior to sentencing, 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. The report must be succinct and, depending on the circumstances, include:
(a) a description of the defendant’s prior criminal convictions and juvenile adjudications,
(b) a complete description of the offense and the circumstances surrounding it,
(c) a brief description of the defendant’s vocational background and work history, including military record and present employment status,
(d) a brief social history of the defendant, including marital status, financial status, length of residence in the community, educational background, and other pertinent data,
(e) the defendant’s medical history, substance abuse history, if any, and, if indicated, a current psychological or psychiatric report,
(f) information concerning the financial, social, psychological, or physical harm suffered by any victim of the offense, including the restitution needs of the victim,
(g) if provided and requested by the victim, a written victim’s impact statement as provided by law,
(h) any statement the defendant wishes to make,
(i) a statement prepared by the prosecutor on the applicability of any consecutive sentencing provision,
(j) an evaluation of and prognosis for the defendant’s adjustment in the community based on factual information in the report,
(k) a specific recommendation for disposition, and
(l) any other information that may aid the court in sentencing.
(2) On request, the probation officer must give the defendant’s attorney notice and a reasonable opportunity to attend the presentence interview.
(3) A presentence investigation report shall not include any address or telephone number for the home, workplace, school, or place of worship of any victim or witness, or a family member of any victim or witness, unless an address is used to identify the place of the crime or to impose conditions of release from custody that are necessary for the protection of a named individual. Upon request, any other address or telephone number that would reveal the location of a victim or witness or a family member of a victim or witness shall be exempted from disclosure unless an address is used to identify the place of the crime or to impose conditions of release from custody that are necessary for the protection of a named individual.
(B) Presentence Report; Disclosure Before Sentencing. The court must provide copies of the presentence report to the prosecutor, and the defendant's lawyer, or the defendant if not represented by a lawyer, at a reasonable time, but not less than two business days, before the day of sentencing. The prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, may retain a copy of the report or an amended report. If the presentence report is not made available to the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, at least two business days before the day of sentencing, the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, shall be entitled, on oral motion, to an adjournment of the day of sentencing to enable the moving party to review the presentence report and to prepare any necessary corrections, additions, or deletions to present to the court. The court may exempt from disclosure information or diagnostic opinion that might seriously disrupt a program of rehabilitation and sources of information that have been obtained on a promise of confidentiality. When part of the report is not disclosed, the court must inform the parties that information has not been disclosed and state on the record the reasons for nondisclosure. To the extent it can do so without defeating the purpose of nondisclosure, the court also must provide the parties with a written or oral summary of the nondisclosed information and give them an opportunity to comment on it. The court must have the information exempted from disclosure specifically noted in the report. The court’s decision to exempt part of the report from disclosure is subject to appellate review.
(C) Sentencing Guidelines. The court must use the sentencing guidelines, as provided by law. Proposed scoring of the guidelines shall accompany the presentence report.
(D) Sentencing Procedure.
(1) The court must sentence the defendant within a reasonably prompt time after the plea or verdict unless the court delays sentencing as provided by law. At sentencing, the court must, on the record:
(a) determine that the defendant, the defendant’s lawyer, and the prosecutor have had an opportunity to read and discuss the presentence report,
(b) give each party an opportunity to explain, or challenge the accuracy or relevancy of, any information in the presentence report, and resolve any challenges in accordance with the procedure set forth in subrule (D)(2),
(c) before imposing sentence
(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf,
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence,
(iii) provide the prosecutor an opportunity to speak equivalent to that of the defendant’s attorney, and
(iv) address any victim of the crime who is present at sentencing or any person the victim has designated to speak on the victim’s behalf and permit the victim or the victim’s designee to make an impact statement,
(d) state the sentence being imposed, including the minimum and maximum sentence if applicable, together with any credit for time served to which the defendant is entitled,
(e) if the sentence imposed is not within the guidelines range, articulate the reasons justifying that specific departure, and
(f) order the dollar amount of restitution that the defendant must pay to make full restitution as required by law to any victim of the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate.
(2) Challenges and Corrections.
(a) If any information in the presentence report is challenged, the court must allow the parties to be heard regarding the challenge, and make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account in sentencing. If the court finds merit in the challenge, determines that it will not take the challenged information into account in sentencing, or otherwise determines that the report should be corrected, it must order the probation officer to correct the report. If ordered to correct the report, the probation officer must provide defendant’s lawyer with an opportunity to review the corrected report before it is sent to the Department of Corrections, certify that the report has been corrected, and ensure that no prior version of the report is used for classification, programming, or parole purposes.
(b) Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.
(3) Incarceration for Nonpayment.
(a) The court shall not sentence a defendant to a term of incarceration, nor revoke probation, for failure to comply with an order to pay money unless the court finds, on the record, that the defendant is able to comply with the order without manifest hardship and that the defendant has not made a good-faith effort to comply with the order.
(b) Payment alternatives. If the court finds that the defendant is unable to comply with an order to pay money without manifest hardship, the court may impose a payment alternative, such as a payment plan, modification of any existing payment plan, or waiver of part or all of the amount of money owed to the extent permitted by law.
(c) Determining manifest hardship. The court shall consider the following criteria in determining manifest hardship:
(i) Defendant’s employment status and history.
(ii) Defendant’s employability and earning ability.
(iii) The willfulness of the defendant’s failure to pay.
(iv) Defendant’s financial resources.
(v) Defendant’s basic living expenses including but not limited to food, shelter, clothing, necessary medical expenses, or child support.
(vi) Any other special circumstances that may have bearing on the defendant’s ability to pay.
(E) Presentence Report; Retention and Disclosure after Sentencing. Regardless of the sentence imposed, the Department of Corrections must retain the presentence report reflecting any corrections ordered under subrule (D)(2). On written request or order of the court, the Department of Corrections must provide the prosecutor, the defendant’s lawyer, or the defendant if not represented by a lawyer, with a copy of the report. On written request, the court must provide the prosecutor, the defendant’s lawyer, or the defendant if not represented by a lawyer, with copies of any documents that were presented for consideration at sentencing, including the court’s initial copy of the presentence report if corrections were made after sentencing. If the court exempts or orders the exemption of any information from disclosure, it must follow the exemption requirements of subrule (B).
(F) Advice Concerning the Right to Appeal; Appointment of Counsel.
(1) In a case involving a conviction following a trial, immediately after imposing sentence, the court must advise the defendant, on the record, that
(a) the defendant is entitled to appellate review of the conviction and sentence,
(b) if the defendant is financially unable to retain a lawyer, the court will appoint a lawyer to represent the defendant on appeal, and
(c) the request for a lawyer must be filed within 42 days after sentencing.
(2) In a case involving a conviction following a plea of guilty or nolo contendere, immediately after imposing sentence, the court must advise the defendant, on the record, that
(a) the defendant is entitled to file an application for leave to appeal,
(b) if the defendant is financially unable to retain a lawyer, the court will appoint a lawyer to represent the defendant on appeal, and
(c) the request for a lawyer must be filed within 42 days after sentencing.
(3) The court also must give the defendant a request for counsel form containing an instruction informing the defendant that the form must be completed and filed within 42 days after sentencing if the defendant wants the court to appoint a lawyer. The court must give the defendant an opportunity to tender a completed request for counsel form at sentencing if the defendant wishes to do so.
(4) A request for counsel must be deemed filed on the date on which it is received by the court or the Michigan Appellate Assigned Counsel System (MAACS), whichever is earlier.
(5) When imposing sentence in a case in which sentencing guidelines enacted in 1998 PA 317, MCL 777.1 et seq., are applicable, if the court imposes a minimum sentence that is longer or more severe than the range provided by the sentencing guidelines, the court must advise the defendant on the record and in writing that the defendant may seek appellate review of the sentence, by right if the conviction followed trial or by application if the conviction entered by plea, on the ground that it is longer or more severe than the range provided by the sentencing guidelines.
(G) Appointment of Lawyer and Preparation of Transcript; Scope of Appellate Lawyer’s Responsibilities.
(1) Appointment of Lawyer and Preparation of Transcript.
(a) All requests for the appointment of appellate counsel must be granted or denied on forms approved by the State Court Administrative Office and provided by MAACS.
(b) Within 7 days after receiving a defendant's request for a lawyer, or within 7 days after the disposition of a postjudgment motion if one is filed, the trial court must submit the request, the judgment of sentence, the register of actions, and any additional requested information to MAACS under procedures approved by the Appellate Defender Commission for the preparation of an appropriate order granting or denying the request. The court must notify MAACS if it intends to deny the request for counsel.
(c) Within 7 days after receiving a request and related information from the trial court, MAACS must provide the court with a proposed order appointing appellate counsel or denying the appointment of appellate counsel. A proposed appointment order must name the State Appellate Defender Office (SADO) or an approved private attorney who is willing to accept an appointment for the appeal.
(d) Within 7 days after receiving a proposed order from MAACS, the trial court must rule on the request for a lawyer. If the defendant is indigent, the court must enter an order appointing a lawyer if the request for a lawyer is filed within 42 days after entry of the judgment of sentence or, if applicable, within the time for filing an appeal of right. The court should liberally grant an untimely request as long as the defendant may file an application for leave to appeal. An order denying a request for the appointment of appellate counsel must include a statement of reasons and must inform the defendant that the order denying the request may be appealed by filing an application for leave to appeal in the Court of Appeals in accordance with MCR 7.205.
(e) In a case involving a conviction following a trial, if the defendant's request for a lawyer was filed within the time for filing a claim of appeal, the order must be entered on an approved form entitled "Claim of Appeal and Appointment of Counsel." Entry of the order by the trial court pursuant to this subrule constitutes a timely filed claim of appeal for the purposes of MCR 7.204.
(f) An appointment order must direct the court reporter to prepare and file, within the time limits specified in MCR 7.210, the full transcript of all proceedings, and provide for the payment of the reporter's fees.
(g) The trial court must serve MAACS with a copy of its order granting or denying a request for a lawyer. Unless MAACS has agreed to provide the order to any of the following, the trial court must also serve a copy of its order on the defendant, defense counsel, the prosecutor, and, if the order includes transcripts, the court reporter(s)/recorder(s). If the order is in the form of a Claim of Appeal and Appointment of Counsel, the court must also serve the Court of Appeals with a copy of the order and the judgment being appealed.
(2) Scope of Appellate Lawyer's Responsibilities. The responsibilities of the appellate lawyer appointed to represent the defendant include representing the defendant
(a) in available postconviction proceedings in the trial court the lawyer deems appropriate,
(b) in postconviction proceedings in the Court of Appeals,
(c) in available proceedings in the trial court the lawyer deems appropriate under MCR 7.208(B) or 7.211(C)(1), and
(d) as appellee in relation to any postconviction appeal taken by the prosecutor.
(H) Notwithstanding any other provision in this rule, until further order of the Court, if the defendant is indigent, a request for the appointment of appellate counsel under MCR 6.425(F)(3) must be granted if it is received by the trial court or the Michigan Appellate Assigned Counsel System (MAACS) within six months after sentencing. This provision applies to all cases in which sentencing took place on or after March 24, 2020.
Within 7 days after sentencing, the court must date and sign a written judgment of sentence that includes:
(1) the title and file number of the case;
(2) the defendant’s name;
(3) the crime for which the defendant was convicted;
(4) the defendant’s plea;
(5) the name of the defendant’s attorney if one appeared;
(6) the jury’s verdict or the finding of guilt by the court;
(7) the term of the sentence;
(8) the place of detention;
(9) the conditions incident to the sentence;
(10) whether the conviction is reportable to the Secretary of State pursuant to statute, and, if so, the defendant's Michigan driver’s license number; and
(11) the dollar amount of restitution that the defendant is ordered to pay.
If the defendant was found not guilty or for any other reason is entitled to be discharged, the court must enter judgment accordingly. The date a judgment is signed is its entry date.
Rule 6.428 Restoration of Appellate Rights.
If the defendant, whether convicted by plea or at trial, was denied the right to appellate review or the appointment of appellate counsel due to errors by the defendant’s prior attorney or the court, or other factors outside the defendant’s control, the trial court shall issue an order restarting the time in which to file an appeal or request counsel.
Rule 6.429 Correction and Appeal of Sentence
(A) Authority to Modify Sentence. The court may correct an invalid sentence, on its own initiative after giving the parties an opportunity to be heard, or on motion by either party. But the court may not modify a valid sentence after it has been imposed except as provided by law. Any correction of an invalid sentence on the court’s own initiative must occur within 6 months of the entry of the judgment of conviction and sentence.
(B) Time For Filing Motion.
(1) A motion to correct an invalid sentence may be filed before the filing of a timely claim of appeal.
(2) If a claim of appeal has been filed, a motion to correct an invalid sentence may only be filed in accordance with the procedure set forth in MCR 7.208(B) or the remand procedure set forth in MCR 7.211(C)(1).
(3) If the defendant may only appeal by leave or fails to file a timely claim of appeal, a motion to correct an invalid sentence may be filed within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and (b)(i)-(iii).
(4) If the defendant is no longer entitled to appeal by right or by leave, the defendant may seek relief pursuant to the procedure set forth in subchapter 6.500.
(C) Preservation of Issues Concerning Sentencing Guidelines Scoring and Information Considered in Sentencing. A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.
Rule 6.430 Postjudgment Motion to Amend Restitution
(A) The court may amend an order of restitution entered under the Crime Victim’s Rights Act on a motion filed by the prosecuting attorney, the victim, or the defendant based upon new or updated information related to the injury, damages, or loss for which the restitution was ordered.
(B) Filing. The moving party must file the motion and a copy of the motion with the clerk of the court in which the defendant was convicted and sentenced. Upon receipt of a motion, the clerk shall file it under the same case number as the original conviction. If an appeal is pending when the motion is filed, the moving party must serve a copy on the appellate court.
(C) Service and Notice of Hearing. If the defendant is the moving party, he/she shall serve a copy of the motion and notice of its filing on the prosecuting attorney and the prosecutor shall then serve a copy of the motion and notice upon the victim. If the prosecutor is the moving party, he/she shall serve a copy of the motion and notice of its filing on the defendant and the victim. If the victim is the moving party, he/she shall serve a copy of the motion and notice of its filing on the defendant and the prosecutor. The home address, home telephone number, work address, and work telephone number of the victim, if included on a motion to amend restitution, is nonpublic. The non-moving party is permitted but not required to respond. Any response to the motion shall comply with the time for service of the response as provided in MCR 2.119(C)(2). The court shall provide written notice of hearing on the motion to the defendant and prosecutor. The prosecutor shall then serve notice of hearing upon the victim.
(D) Appearance. As permitted by MCR 6.006(A), the court may allow the defendant to appear by two-way interactive video technology to conduct the proceeding between a courtroom and a prison, jail, or other location.
(E) Ruling. The court, in writing, shall enter an appropriate order disposing of the motion and, if the motion is granted, enter an order amending the restitution. If an appeal was pending when the motion was filed, the moving party must provide a copy of the order to the appellate court.
(F) Appeal. An appeal from this subsection is processed as provided by MCR 7.100 et seq., and 7.200 et seq.
(A) Time for Making Motion.
(1) A motion for a new trial may be filed before the filing of a timely claim of appeal.
(2) If a claim of appeal has been filed, a motion for a new trial may only be filed in accordance with the procedure set forth in MCR 7.208(B) or the remand procedure set forth in MCR 7.211(C)(1).
(3) If the defendant may only appeal by leave or fails to file a timely claim of appeal, a motion for a new trial may be filed within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and (b)(i)-(iii).
(4) If the defendant is no longer entitled to appeal by right or by leave, the defendant may seek relief pursuant to the procedure set forth in subchapter 6.500.
(B) Reasons for Granting. On the defendant’s motion, the court may order a new trial on any ground that would support appellate reversal of the conviction or because it believes that the verdict has resulted in a miscarriage of justice. The court must state its reasons for granting or denying a new trial orally on the record or in a written ruling made a part of the record.
(C) Trial Without Jury. If the court tried the case without a jury, it may, on granting a new trial and with the defendant's consent, vacate any judgment it has entered, take additional testimony, amend its findings of fact and conclusions of law, and order the entry of a new judgment.
(D) Inclusion of Motion for Judgment of Acquittal. The court must consider a motion for a new trial challenging the weight or sufficiency of the evidence as including a motion for a directed verdict of acquittal.
Rule 6.433 Documents for Postconviction Proceedings; Indigent Defendant
(A) Appeals of Right. An indigent defendant may file a written request with the sentencing court for specified court documents or transcripts, indicating that they are required to pursue an appeal of right. The court must order the clerk to provide the defendant with copies of documents without cost to the defendant, and, unless the transcript has already been ordered as provided in MCR 6.425(G), must order the preparation of the transcript.
(B) Appeals by Leave. An indigent defendant who may file an application for leave to appeal may obtain copies of transcripts and other documents as provided in this subrule.
(1) The defendant must make a written request to the sentencing court for specified documents or transcripts indicating that they are required to prepare an application for leave to appeal.
(2) If the requested materials have been filed with the court and not provided previously to the defendant, the court clerk must provide a copy to the defendant. If the requested materials have been provided previously to the defendant, on defendant's showing of good cause to the court, the clerk must provide the defendant with another copy.
(3) If the request includes the transcript of a proceeding that has not been transcribed, the court must order the materials transcribed and filed with court. After the transcript has been prepared, court clerk must provide a copy to the defendant.
(C) Other Postconviction Proceedings. An indigent defendant who is not eligible to file an appeal of right or an application for leave to appeal may obtain records and documents as provided in this subrule.
(1) The defendant must make a written request to the sentencing court for specific court documents or transcripts indicating that the materials are required to pursue postconviction remedies in a state or federal court and are not otherwise available to the defendant.
(2) If the documents or transcripts have been filed with the court and not provided previously to the defendant, the clerk must provide the defendant with copies of such materials without cost to the defendant. If the requested materials have been provided previously to the defendant, on defendant’s showing of good cause to the court, the clerk must provide the defendant with another copy.
(3) The court may order the transcription of additional proceedings if it finds that there is good cause for doing so. After such a transcript has been prepared, the clerk must provide a copy to the defendant.
(4) Nothing in this rule precludes the court from ordering materials to be supplied to the defendant in a proceeding under subchapter 6.500.
Rule 6.435 Correcting Mistakes
(A) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it.
(B) Substantive Mistakes. After giving the parties an opportunity to be heard, and provided it has not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.
(C) Correction of Record. If a dispute arises as to whether the record accurately reflects what occurred in the trial court, the court, after giving the parties the opportunity to be heard, must resolve the dispute and, if necessary, order the record to be corrected.
(D) Correction During Appeal. If a claim of appeal has been filed or leave to appeal granted in the case, corrections under this rule are subject to MCR 7.208(A) and (B).
Rule 6.440 Disability of Judge
(A) During Jury Trial. If, by reason of death, sickness, or other disability, the judge before whom a jury trial has commenced is unable to continue with the trial, another judge regularly sitting in or assigned to the court, on certification of having become familiar with the record of the trial, may proceed with and complete the trial.
(B) During Bench Trial. If a judge becomes disabled during a trial without a jury, another judge may be substituted for the disabled judge, but only if
(1) both parties consent in writing to the substitution, and
(2) the judge certifies having become familiar with the record of the trial, including the testimony previously given.
(C) After Verdict. If, after a verdict is returned or findings of fact and conclusions of law are filed, the trial judge because of disability becomes unable to perform the remaining duties the court must perform, another judge regularly sitting in or assigned to the court may perform those duties; but if that judge is not satisfied of an ability to perform those duties because of not having presided at the trial or determines that it is appropriate for any other reason, the judge may grant the defendant a new trial.
Rule 6.441 Early Probation Discharge
(A) Eligibility. Except as otherwise provided in statute, a probationer is eligible for early discharge from probation when the probationer has completed half of the original probationary period and all required programming. The court must notify the probationer at the time of sentencing, either orally or in writing, about the probationer’s early probation discharge eligibility and the notice process contained in this rule.
(B) Notice of Eligibility. The probation department may file notice with the sentencing court when a probationer becomes eligible for early probation discharge. The notice must be served on the prosecuting attorney and probationer. If the probation department does not file the notice, and the probationer has not violated probation within the last 3 months, the probationer may file the notice with the sentencing court and serve copies to the prosecuting attorney and probation department. The prosecuting attorney must file any written objection to early probation discharge within 14 days of receiving service of the notice.
(C) Case Review. Upon receiving notice under subrule (B), the court must conduct a preliminary review of the case to determine whether the probationer’s behavior warrants a reduction in the original probationary term. A court must not deny early discharge because of outstanding court-ordered fines, fees, or costs, if the probationer has an inability to pay and has made good-faith efforts to make payments. Before granting early discharge to a probationer who owes outstanding restitution, the court must consider the impact of early discharge on the victim and the payment of outstanding restitution.
(D) Discharge Without a Hearing. Except as provided in subrule (E), the court must discharge a probationer from probation, without a hearing, if the prosecutor does not submit a timely objection and the court’s review in subrule (C) determines the probationer
(1) is eligible for early probation discharge;
(2) achieved all the rehabilitation goals of probation; and
(3) is not a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continued probation supervision.
If the probationer owes outstanding restitution but has made a good-faith effort to make payments, the court may retain the probationer on probation up to the maximum allowable probation term with the sole condition of continuing restitution payments.
(E) Hearing Requirement. The court must hold a hearing after conducting the review in subrule (C) if
(1) the prosecutor submits a timely objection, or
(2) a circumstance identified in MCL 771.2(7) is applicable,
(3) or the court reviewed the case and does not grant an early discharge or retain the probationer on probation with the sole condition of continuing restitution payment.
If the hearing is held pursuant to MCL 771.2(7), the prosecuting attorney shall notify the victim of the date and time of the hearing. Both the probationer and victim, if applicable, must be given an opportunity to be heard at the hearing.
(F) Discharge After Hearing. Upon the conclusion of the hearing, the court must either grant early discharge or, if applicable, retain the probationer on probation with the sole condition of continuing restitution payments, if the probationer proves by a preponderance of the evidence that he or she
(1) is eligible for early probation discharge;
(2) achieved all the rehabilitation goals of probation; and
(3) is not a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continued probation supervision.
(G) Impact on Sentencing. The eligibility for early probation discharge under this rule must not influence the court’s sentencing decision regarding the length of the original probationary period.
(H) Motions. This rule does not prohibit a defendant from motioning, a probation officer from recommending, or the court from considering, a probationer for early discharge from probation at the court’s discretion at any time during the duration of the probation term.
Rule 6.445 Probation Violation and Revocation
(A) Issuance of Summons; Warrant. The court may issue a bench warrant or summons upon finding probable cause to believe that a probationer has committed a nontechnical violation of probation. The court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation unless the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.
An arrested probationer must promptly be brought before the court for arraignment on the alleged violation.
(B) Arraignment on the Charge. At the arraignment on the alleged probation violation, the court must
(1) ensure that the probationer receives written notice of the alleged violation,
(2) inform the probationer whether the alleged violation is charged as a technical or nontechnical violation of probation, and the maximum possible jail or prison sentence,
(3) advise the probationer that
(a) the probationer has a right to contest the charge at a hearing, and
(b) the probationer is entitled to a lawyer’s assistance at the hearing and at all court proceedings, including the arraignment on the violation/bond hearing, and that a lawyer will be appointed at public expense if the probationer wants one and is financially unable to retain one,
(4) if requested and appropriate, refer the matter to the local indigent criminal defense system’s appointing authority for appointment of a lawyer,
(5) determine what form of release, if any, is appropriate, and
(6) subject to subrule (C), set a reasonably prompt hearing date or postpone the hearing.
(C) Scheduling or Postponement of Hearing. The hearing of a probationer being held in custody for an alleged probation violation must be held within the permissible jail sentence for the probation violation, but in no event longer than 14 days after the arrest or the court must order the probationer released from that custody pending the hearing. If the alleged violation is based on a criminal offense that is a basis for a separate criminal prosecution, the court may postpone the hearing for the outcome of that prosecution.
(D) Continuing Duty to Advise of Right to Assistance of Lawyer. Even though a probationer charged with probation violation has waived the assistance of a lawyer, at each subsequent proceeding the court must comply with the advice and waiver procedure in MCR 6.005(E).
(E) The Violation Hearing.
(1) Conduct of the Hearing. The evidence against the probationer must be disclosed to the probationer. The probationer has the right to be present at the hearing, to present evidence, and to examine and cross-examine witnesses. The court may consider only evidence that is relevant to the violation alleged, but it need not apply the rules of evidence except those pertaining to privileges. The state has the burden of proving a violation by a preponderance of the evidence.
(2) Judicial Findings. At the conclusion of the hearing, the court must make findings in accordance with MCR 6.403 and, if the violation is proven, whether the violation is a technical or nontechnical violation of probation.
(F) Pleas of Guilty. The probationer may, at the arraignment or afterward, plead guilty to the violation. Before accepting a guilty plea, the court, speaking directly to the probationer and receiving the probationer's response, must
(1) advise the probationer that by pleading guilty the probationer is giving up the right to a contested hearing and, if the probationer is proceeding without legal representation, the right to a lawyer's assistance as set forth in subrule (B)(3)(b),
(2) advise the probationer of the maximum possible jail or prison sentence for the offense,
(3) ascertain that the plea is understandingly, voluntarily, and accurately made, and
(4) establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or nontechnical violation of probation.
(G) Sentencing. If the court finds that the probationer has violated a condition of probation, or if the probationer pleads guilty to a violation, the court may continue probation, modify the conditions of probation, extend the probation period, or revoke probation and impose a sentence of incarceration pursuant to law. The court may not sentence the probationer to prison without having considered a current presentence report and may not sentence the probationer to prison or jail (including for failing to pay fines, costs, restitution, and other financial obligations imposed by the court) without having complied with the provisions set forth in MCR 6.425(B) and (D).
(H) Review.
(1) In a case involving a sentence of incarceration under subrule (G), the court must advise the probationer on the record, immediately after imposing sentence, that
(a) the probationer has a right to appeal, if the underlying conviction occurred as a result of a trial, or
(b) the probationer is entitled to file an application for leave to appeal, if the underlying conviction was the result of a plea of guilty or nolo contendere.
(2) In a case that involves a sentence other than incarceration under subrule (G), the court must advise the probationer on the record, immediately after imposing sentence, that the probationer is entitled to file an application for leave to appeal.
Rule 6.450 Technical Probation Violation Acknowledgment
(A) Acknowledgment. In lieu of initiating a probation violation proceeding under MCR 6.445, the court may allow a probationer to acknowledge a technical probation violation without a hearing. The acknowledgment must be in writing and advise the probationer of the following information
(1) the probationer has a right to contest the alleged technical probation violation at a formal probation violation hearing;
(2) the probationer is entitled to a lawyer’s assistance at the probation violation hearing and at all subsequent court proceedings, and that the appointing authority will appoint a lawyer at public expense if the probationer wants one and is financially unable to retain one;
(3) the court will not revoke probation or sentence the probationer to incarceration as a result of the acknowledgment, but the court may continue probation, modify the conditions of probation, or extend probation;
(4) if the probationer violates probation again, the court may consider the acknowledgment a prior technical probation violation conviction for the purposes of determining the maximum jail or prison sentence and probation revocation eligibility authorized by law;
(5) acknowledging a technical probation violation may delay the probationer’s eligibility for an early discharge from probation.
(B) Review. Upon acknowledgment of a technical probation violation by a probationer, the court may continue probation, modify the conditions of probation, or extend the term of probation. The court may not impose a sentence of incarceration or revoke probation for acknowledging a technical probation violation under this rule, but the court may count the acknowledgment for the purpose of identifying the number of technical probation violations under MCL 771.4b.
Rule 6.451 Reinstatement of Convictions Set Aside Without Application
A conviction that was set aside by operation of law under MCL 780.621g must be reinstated by the court only as provided in MCL 780.621h. The court must:
(A) provide notice and an opportunity to be heard before reinstating a conviction for failure to make a good faith effort to pay restitution under MCL 780.621h(3),
(B) order the reinstatement on a form approved by the State Court Administrative Office,
(C) serve any order entered under this rule on the prosecuting authority and the individual whose conviction was automatically set aside.
An order for reinstatement of a conviction that was improperly or erroneously set aside as provided in MCL 780.621h(2) must advise the individual whose conviction is being reinstated that he or she may object to the reinstatement by requesting a hearing. The request must be filed with the court on a form approved by the State Court Administrative Office.
Subchapter 6.500 Postappeal Relief
Rule 6.501 Scope of Subchapter
Unless otherwise specified by these rules, a judgment of conviction and sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of this subchapter.
Rule 6.502 Motion for Relief From Judgment
(A) Nature of Motion. The request for relief under this subchapter must be in the form of a motion to set aside or modify the judgment. The motion must specify all of the grounds for relief which are available to the defendant and of which the defendant has, or by the exercise of due diligence, should have knowledge.
(B) Limitations on Motion. A motion may seek relief from one judgment only. If the defendant desires to challenge the validity of additional judgments, the defendant must do so by separate motions. For the purpose of this rule, multiple convictions resulting from a single trial or plea proceeding shall be treated as a single judgment.
(C) Form of Motion. The motion may not be noticed for hearing, and must be typed or legibly handwritten and include a verification by the defendant or defendant’s lawyer in accordance with MCR 1.109(D)(3). Except as otherwise ordered by the court, the combined length of the motion and any memorandum of law in support may not exceed 50 pages double-spaced, exclusive of attachments and exhibits. If the court enters an order increasing the page limit for the motion, the same order shall indicate that the page limit for the prosecutor’s response provided for in MCR 6.506(A) is increased by the same amount. The motion must be substantially in the form approved by the State Court Administrative Office, and must include:
(1) The name of the defendant;
(2) The name of the court in which the defendant was convicted and the file number of the defendant's case;
(3) The place where the defendant is confined, or, if not confined, the defendant’s current address;
(4) The offenses for which the defendant was convicted and sentenced;
(5) The date on which the defendant was sentenced;
(6) Whether the defendant was convicted by a jury, by a judge without jury, or on a plea of guilty, guilty but mentally ill, or nolo contendere;
(7) The sentence imposed (probation, fine, and/or imprisonment), the length of the sentence imposed, and whether the defendant is now serving that sentence;
(8) The name of the judge who presided at trial and imposed sentence;
(9) The court, title, and file number of any proceeding (including appeals and federal court proceedings) instituted by the defendant to obtain relief from conviction or sentence, specifying whether a proceeding is pending or has been completed;
(10) The name of each lawyer who represented the defendant at any time after arrest, and the stage of the case at which each represented the defendant;
(11) The relief requested;
(12) The grounds for the relief requested;
(13) The facts supporting each ground, stated in summary form;
(14) Whether any of the grounds for the relief requested were raised before; if so, at what stage of the case, and, if not, the reasons they were not raised;
(15) Whether the defendant requests the appointment of counsel, and, if so, information necessary for the court to determine whether the defendant is entitled to appointment of counsel at public expense.
Upon request, the clerk of each court with trial level jurisdiction over felony cases shall make available blank motion forms without charge to any person desiring to file such a motion.
(D) Return of Insufficient Motion. If a motion is not submitted on a form approved by the State Court Administrative Office, or does not substantially comply with the requirements of these rules, the court shall either direct that it be returned to the defendant with a statement of the reasons for its return, along with the appropriate form, or adjudicate the motion under the provisions of these rules. When a pro se defendant files his or her first motion effectively seeking to set aside or modify the judgment but styles the motion as something other than a motion for relief from judgment, the court shall promptly notify the defendant of its intention to recharacterize the pleading as a motion for relief from judgment; inform the defendant of any effects this might have on subsequent motions for relief, see MCR 6.502(B), (G); and provide the defendant 90 days to withdraw or amend his or her motion before the court recharacterizes the motion. If the court fails to provide this notice and opportunity for withdrawal or amendment, or the defendant establishes that notice was not actually received, the defendant’s motion cannot be considered a motion for relief from judgment for purposes of MCR 6.502(B), (G). The clerk of the court shall retain a copy of the motion.
(E) Attachments to Motion. The defendant may attach to the motion any affidavit, document, or evidence to support the relief requested.
(F) Amendment and Supplementation of Motion. The court may permit the defendant to amend or supplement the motion at any time.
(G) Successive Motions.
(1) Except as provided in subrule (G)(2), regardless of whether a defendant has previously filed a motion for relief from judgment, after August 1, 1995, one and only one motion for relief from judgment may be filed with regard to a conviction.
(2) A defendant may file a second or subsequent motion based on any of the following:
(a) a retroactive change in law that occurred after the first motion for relief from judgment was filed,
(b) a claim of new evidence that was not discovered before the first such motion was filed, or
(c) a final court order vacating one or more of the defendant’s convictions either described in the judgment from which the defendant is seeking relief or upon which the judgment was based.
The clerk shall refer a successive motion to the judge to whom the case is assigned for a determination whether the motion is within one of the exceptions.
The court may waive the provisions of this rule if it concludes that there is a significant possibility that the defendant is innocent of the crime. For motions filed under both (G)(1) and (G)(2), the court shall enter an appropriate order disposing of the motion.
(3) For purposes of subrule (G)(2), “new evidence” includes new scientific evidence. This includes, but is not limited to, shifts in science entailing changes:
(a) in a field of scientific knowledge, including shifts in scientific consensus;
(b) in a testifying expert’s own scientific knowledge and opinions; or
(c) in a scientific method on which the relevant scientific evidence at trial was based.
Rule 6.503 Filing and Service of Motion
(A) Filing; Copies.
(1) A defendant seeking relief under this subchapter must file a motion, and a copy of the motion with the clerk of the court in which the defendant was convicted and sentenced.
(2) Upon receipt of a motion, the clerk shall file it under the same number as the original conviction.
(B) Service. The defendant shall serve a copy of the motion and notice of its filing on the prosecuting attorney. Unless so ordered by the court as provided in this subchapter, the filing and service of the motion does not require a response by the prosecutor.
Rule 6.504 Assignment; Preliminary Consideration by Judge; Summary Denial
(A) Assignment to Judge. The motion shall be presented to the judge to whom the case was assigned at the time of the defendant’s conviction. If the appropriate judge is not available, the motion must be assigned to another judge in accordance with the court's procedure for the reassignment of cases. The chief judge may reassign cases in order to correct docket control problems arising from the requirements of this rule.
(B) Initial Consideration by Court.
(1) The court shall promptly examine the motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack. The court may request that the prosecutor provide copies of transcripts, briefs, or other records.
(2) If it plainly appears from the face of the materials described in subrule (B)(1) that the defendant is not entitled to relief, the court shall deny the motion without directing further proceedings. The order must include a concise statement of the reasons for the denial. The clerk shall serve a copy of the order on the defendant and the prosecutor. The court may dismiss some requests for relief or grounds for relief while directing a response or further proceedings with respect to other specified grounds.
(3) If the motion is summarily dismissed under subrule (B)(2), the defendant may move for reconsideration of the dismissal within 21 days after the clerk serves the order. The motion must concisely state why the court's decision was based on a clear error and that a different decision must result from correction of the error. A motion which merely presents the same matters that were considered by the court will not be granted.
(4) If the entire motion is not dismissed under subrule (B)(2), the court shall order the prosecuting attorney to file a response as provided in MCR 6.506, and shall conduct further proceedings as provided in MCR 6.505-6.508.
Rule 6.505 Right to Legal Assistance
(A) Appointment of Counsel. If the defendant has requested appointment of counsel, and the court has determined that the defendant is indigent, the court may appoint counsel for the defendant at any time during the proceedings under this subchapter. Counsel must be appointed if the court directs that oral argument or an evidentiary hearing be held.
(B) Opportunity to Supplement the Motion. If the court appoints counsel to represent the defendant, it shall afford counsel 56 days to amend or supplement the motion. The court may extend the time on a showing that a necessary transcript or record is not available to counsel.
Rule 6.506 Response by Prosecutor
(A) Contents of Response. On direction of the court pursuant to MCR 6.504(B)(4), the prosecutor shall respond in writing to the allegations in the motion. The trial court shall allow the prosecutor a minimum of 56 days to respond. If the response refers to transcripts or briefs that are not in the court's file, the prosecutor shall submit copies of those items with the response. Except as otherwise ordered by the court, the response shall not exceed 50 pages double-spaced, exclusive of attachments and exhibits.
(B) Filing and Service. The prosecutor shall file the response and one copy with the clerk of the court and serve one copy on the defendant.
Rule 6.507 Expansion of Record
(A) Order to Expand Record. If the court does not deny the motion pursuant to MCR 6.504(B)(2), it may direct the parties to expand the record by including any additional materials it deems relevant to the decision on the merits of the motion. The expanded record may include letters, affidavits, documents, exhibits, and answers under oath to interrogatories propounded by the court.
(B) Submission to Opposing Party. Whenever a party submits items to expand the record, the party shall serve copies of the items to the opposing party. The court shall afford the opposing party an opportunity to admit or deny the correctness of the items.
(C) Authentication. The court may require the authentication of any item submitted under this rule.
Rule 6.508 Procedure; Evidentiary Hearing; Determination
(A) Procedure Generally. If the rules in this subchapter do not prescribe the applicable procedure, the court may proceed in any lawful manner. The court may apply the rules applicable to civil or criminal proceedings, as it deems appropriate.
(B) Decision Without Evidentiary Hearing. After reviewing the motion and response, the record, and the expanded record, if any, the court shall determine whether an evidentiary hearing is required. If the court decides that an evidentiary hearing is not required, it may rule on the motion or, in its discretion, afford the parties an opportunity for oral argument.
(C) Evidentiary Hearing. If the court decides that an evidentiary hearing is required, it shall schedule and conduct the hearing as promptly as practicable. At the hearing, the rules of evidence other than those with respect to privilege do not apply. The court shall assure that a verbatim record is made of the hearing.
(D) Entitlement to Relief. The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still is subject to challenge on appeal pursuant to subchapter 7.200 or subchapter 7.300;
(2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under this subchapter, unless the defendant establishes that a retroactive change in the law has undermined the prior decision; for purposes of this provision, a court is not precluded from considering previously decided claims in the context of a new claim for relief, such as in determining whether new evidence would make a different result probable on retrial, or if the previously decided claims, when considered together with the new claim for relief, create a significant possibility of actual innocence;
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, “actual prejudice” means that,
(i) in a conviction following a trial,
(A) but for the alleged error, the defendant would have had a reasonably likely chance of acquittal; or
(B) where the defendant rejected a plea based on incorrect information from the trial court or ineffective assistance of counsel, it is reasonably likely that
(1) the prosecutor would not have withdrawn any plea offer;
(2) the defendant and the trial court would have accepted the plea but for the improper advice; and
(3) the conviction or sentence, or both, under the plea’s terms would have been less severe than under the judgment and sentence that in fact were imposed.
(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo contendere, the defect in the proceedings was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction to stand;
(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case;
(iv) in the case of a challenge to the sentence, the sentence is invalid.
The court may waive the “good cause” requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the defendant is innocent of the crime.
(E) Ruling. The court, either orally or in writing, shall set forth in the record its findings of fact and its conclusions of law, and enter an appropriate order disposing of the motion.
(A) Availability of Appeal. Appeals from decisions under this subchapter are by application for leave to appeal to the Court of Appeals pursuant to MCR 7.205(A)(1). The 6-month time limit provided by MCR 7.205(A)(4)(a), runs from the decision under this subchapter. Nothing in this subchapter shall be construed as extending the time to appeal from the original judgment.
(B) Responsibility of Appointed Counsel. If the trial court has appointed counsel for the defendant during the proceeding, that appointment authorizes the attorney to represent the defendant in connection with an application for leave to appeal to the Court of Appeals.
(C) Responsibility of the Prosecutor. If the prosecutor has not filed a response to the defendant’s application for leave to appeal in the appellate court, the prosecutor must file an appellee’s brief if the appellate court grants the defendant’s application for leave to appeal. The prosecutor must file an appellee’s brief within 56 days after an order directing a response pursuant to subrule (D).
(D) Responsibility of the Appellate Court. If the appellate court grants the defendant’s application for leave to appeal and the prosecutor has not filed a response in the appellate court, the appellate court must direct the prosecutor to file an appellee’s brief, and give the prosecutor the opportunity to file an appellee’s brief pursuant to subrule (C), before granting further relief to the defendant.
Subchapter 6.600 Criminal Procedure in District Court
Rule 6.610 Criminal Procedure Generally
(A) Precedence. Criminal cases have precedence over civil actions.
(B) Pretrial. The court, on its own initiative or on motion of either party, may direct the prosecutor and the defendant, and, if represented, the defendant's attorney to appear for a pretrial conference. The court may require collateral matters and pretrial motions to be filed and argued no later than this conference.
(C) Record. Unless a writing is permitted, a verbatim record of the proceedings before a court under subrules (D)-(F) must be made.
(D) Arraignment; District Court Offenses.
(1) Whenever a defendant is arraigned on an offense over which the district court has jurisdiction, the defendant must be informed of
(a) the name of the offense;
(b) the maximum sentence permitted by law; and
(c) the defendant’s right
(i) to the assistance of an attorney at all court proceedings, including arraignment, and to a trial;
(ii) (if subrule [D][2] applies) to an appointed attorney; and
(iii) to a trial by jury, when required by law.
The information may be given in a writing that is made a part of the file or by the court on the record.
(2) An indigent defendant has a right to an appointed attorney whenever the offense charged requires on conviction a minimum term in jail or the court determines it might sentence to a term of incarceration, even if suspended.
If an indigent defendant is without an attorney and has not waived the right to an appointed attorney, the court may not sentence the defendant to jail or to a suspended jail sentence.
(3) The right to the assistance of an attorney, to an appointed attorney, or to a trial by jury is not waived unless the defendant
(a) has been informed of the right; and
(b) has waived it in a writing that is made a part of the file or orally on the record.
If the defendant has not waived the right to counsel, the court must refer the matter to the appointing authority for the assignment of counsel.
(4) The court may allow a defendant to enter a plea of not guilty or to stand mute without formal arraignment by filing a written statement signed by the defendant and any defense attorney of record, reciting the general nature of the charge, the maximum possible sentence, the rights of the defendant at arraignment, and the plea to be entered. The court may require that an appropriate bond be executed and filed and appropriate and reasonable sureties posted or continued as a condition precedent to allowing the defendant to be arraigned without personally appearing before the court.
(E) Discovery in Misdemeanor Proceedings.
(1) The provisions of MCR 6.201, except for MCR 6.201(A), apply in all misdemeanor proceedings.
(2) MCR 6.201(A) only applies in misdemeanor proceedings, as set forth in this subrule, if a defendant elects to request discovery pursuant to MCR 6.201(A). If a defendant requests discovery pursuant to MCR 6.201(A) and the prosecuting attorney complies, then the defendant must also comply with MCR 6.201(A).
(F) Pleas of Guilty and Nolo Contendere. Before accepting a plea of guilty or nolo contendere, the court shall in all cases comply with this rule.
(1) The court shall determine that the plea is understanding, voluntary, and accurate. In determining the accuracy of the plea,
(a) if the defendant pleads guilty, the court, by questioning the defendant, shall establish support for a finding that defendant is guilty of the offense charged or the offense to which the defendant is pleading, or
(b) if the defendant pleads nolo contendere, the court shall not question the defendant about the defendant's participation in the crime, but shall make the determination on the basis of other available information.
(2) The court shall inform the defendant of the right to the assistance of an attorney. If the offense charged requires on conviction a minimum term in jail, the court shall inform the defendant that if the defendant is indigent the defendant has the right to an appointed attorney. The court shall also give such advice if it determines that it might sentence to a term of incarceration, even if suspended.
(3) The court shall advise the defendant of the following:
(a) the mandatory minimum jail sentence, if any, and the maximum possible penalty for the offense,
(b) that if the plea is accepted the defendant will not have a trial of any kind and that the defendant gives up the following rights that the defendant would have at trial:
(i) the right to have witnesses called for the defendant’s defense at trial,
(ii) the right to cross-examine all witnesses called against the defendant,
(iii) the right to testify or to remain silent without an inference being drawn from said silence,
(iv) the presumption of innocence and the requirement that the defendant’s guilt be proven beyond a reasonable doubt.
(4) A defendant or defendants may be informed of the trial rights listed in subrule (3)(b) as follows:
(a) on the record,
(b) in a writing made part of the file, or
(c) in a writing referred to on the record.
Except as provided in subrule (F)(7), if the court uses a writing pursuant to subrule (F)(4)(b) or (c), the court shall address the defendant and obtain from the defendant orally on the record a statement that the rights were read and understood and a waiver of those rights. The waiver may be obtained without repeating the individual rights.
(5) The court shall make the plea agreement a part of the record and determine that the parties agree on all the terms of that agreement. The court shall accept, reject or indicate on what basis it accepts the plea.
(6) The court must ask the defendant:
(a) (if there is no plea agreement) whether anyone has promised the defendant anything, or (if there is a plea agreement) whether anyone has promised anything beyond what is in the plea agreement;
(b) whether anyone has threatened the defendant; and
(c) whether it is the defendant's own choice to plead guilty.
(7) A plea of guilty or nolo contendere in writing is permissible without a personal appearance of the defendant and without support for a finding that defendant is guilty of the offense charged or the offense to which the defendant is pleading if
(a) the court decides that the combination of the circumstances and the range of possible sentences makes the situation proper for a plea of guilty or nolo contendere;
(b) the defendant acknowledges guilt or nolo contendere, in a writing to be placed in the district court file, and waives in writing the rights enumerated in subrule (3)(b); and
(c) the court is satisfied that the waiver is voluntary.
A “writing” includes digital communications, transmitted through electronic means, which are capable of being stored and printed.
(8) The following provisions apply where a defendant seeks to challenge the plea.
(a) A defendant may not challenge a plea on appeal unless the defendant moved in the trial court to withdraw the plea for noncompliance with these rules. Such a motion may be made either before or after sentence has been imposed. After imposition of sentence, the defendant may file a motion to withdraw the plea within the time for filing an application for leave to appeal under MCR 7.105(G)(2).
(b) If the trial court determines that a deviation affecting substantial rights occurred, it shall correct the deviation and give the defendant the option of permitting the plea to stand or of withdrawing the plea. If the trial court determines either a deviation did not occur, or that the deviation did not affect substantial rights, it may permit the defendant to withdraw the plea only if it does not cause substantial prejudice to the people because of reliance on the plea.
(c) If a deviation is corrected, any appeal will be on the whole record including the subsequent advice and inquiries.
(9) The State Court Administrator shall develop and approve forms to be used under subrules (E)(4)(b) and (c) and (E)(7)(b).
(G) Sentencing.
(1) For sentencing, the court shall:
(a) require the presence of the defendant's attorney, unless the defendant does not have one or has waived the attorney's presence;
(b) provide copies of the presentence report (if a presentence report was prepared) to the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, at a reasonable time, but not less than two business days before the day of sentencing. The prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, may retain a copy of the report or an amended report. If the presentence report is not made available to the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, at least two business days before the day of sentencing, the prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, shall be entitled, on oral motion, to an adjournment to enable the moving party to review the presentence report and to prepare any necessary corrections, additions or deletions to present to the court, or otherwise advise the court of circumstances the prosecutor or defendant believes should be considered in imposing sentence. A presentence investigation report shall not include any address or telephone number for the home, workplace, school, or place of worship of any victim or witness, or a family member of any victim or witness, unless an address is used to identify the place of the crime or to impose conditions of release from custody that are necessary for the protection of a named individual. Upon request, any other address or telephone number that would reveal the location of a victim or witness or a family member of a victim or witness shall be exempted from disclosure unless an address is used to identify the place of the crime or to impose conditions of release from custody that are necessary for the protection of a named individual.
(c) before imposing sentence
(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf,
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence,
(iii) provide the prosecutor an opportunity to speak equivalent to that of the defendant’s attorney, and
(iv) address any victim of the crime who is present at sentencing or any person the victim has designated to speak on the victim’s behalf and permit the victim or the victim’s designee to make an impact statement.
(d) inform the defendant of credit to be given for time served, if any.
(e) order the dollar amount of restitution that the defendant must pay to make full restitution as required by law to any victim of the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate. Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.
(2) The court shall not sentence a defendant to a term of incarceration for nonpayment unless the court has complied with the provisions of MCR 6.425(D)(3).
(3) Unless a defendant who is entitled to appointed counsel is represented by an attorney or has waived the right to an attorney, a subsequent charge or sentence may not be enhanced because of this conviction and the defendant may not be incarcerated for violating probation or any other condition imposed in connection with this conviction.
(4) Immediately after imposing a sentence of incarceration, even if suspended, the court must advise the defendant, on the record or in writing, that:
(a) if the defendant wishes to file an appeal and is financially unable to retain a lawyer, the local indigent criminal defense system’s appointing authority will appoint a lawyer to represent the defendant on appeal, and
(b) the request for a lawyer must be made within 14 days after sentencing.
(H) Motion for New Trial. A motion for a new trial must be filed within 21 days after the entry of judgment. However, if an appeal has not been taken, a delayed motion may be filed within the time for filing an application for leave to appeal.
(I) Arraignment; Offenses Not Cognizable by the District Court. In a prosecution in which a defendant is charged with a felony or a misdemeanor not cognizable by the district court, the court shall
(1) inform the defendant of the nature of the charge;
(2) inform the defendant of
(a) the right to a preliminary examination;
(b) the right to an attorney, if the defendant is not represented by an attorney at the arraignment;
(c) the right to have an attorney appointed at public expense if the defendant is indigent; and
(d) the right to consideration of pretrial release.
If a defendant not represented by an attorney waives the preliminary examination, the court shall ascertain that the waiver is freely, understandingly, and voluntarily given before accepting it.
(A) Citation; Complaint; Summons; Warrant.
(1) A misdemeanor case may be initiated by one of the following procedures:
(a) Subject to the exceptions in MCL 764.9c, service by a law enforcement officer on the defendant of a written citation, and the filing of the citation in the district court. The citation may be prepared electronically or on paper. The citation must be signed by the officer in accordance with MCR 1.109(E)(4); if a citation is prepared electronically and filed with a court as data, the name of the officer that is associated with the issuance of the citation satisfies this requirement.
(b) The filing of a sworn complaint in the district court and the issuance of a summons or an arrest warrant.
(c) Other special procedures authorized by statute.
(2) The citation may serve as a sworn complaint and as a summons to command
(a) the initial appearance of the defendant; and
(b) for misdemeanor traffic cases, a response from the defendant as to his or her guilt of the violation alleged.
(B) Appearances; Failure To Appear. If a defendant fails to appear or otherwise respond to any matter pending relative to a misdemeanor citation issued under MCL 764.9c, the court shall issue an order to show cause.
(1) The court may immediately issue a bench warrant, rather than an order to show cause, if the court has a specific articulable reason to suspect that any of the following apply and states it on the record:
(a) the defendant has committed a new crime.
(b) the defendant’s failure to appear is the result of a willful intent to avoid or delay the adjudication of the case.
(c) another person or property will be endangered if a warrant is not issued.
(2) If a defendant fails to appear or otherwise respond to any matter pending relative to a misdemeanor traffic citation, the court must also initiate the procedures required by MCL 257.321a.
(C) Arraignment. An arraignment in a misdemeanor case may be conducted by
(1) a judge of the district, or
(2) a district court magistrate as authorized by statute and by the judges of the district.
(D) Contested Cases. A misdemeanor case must be conducted in compliance with the constitutional and statutory procedures and safeguards applicable to misdemeanors cognizable by the district court.
Rule 6.620 Impaneling the Jury
(A) Alternate Jurors. The court may direct that 7 or more jurors be impaneled to sit in a criminal case. After the instructions to the jury have been given and the case submitted, the names of the jurors must be placed in a container and names drawn to reduce the number of jurors to 6, who shall constitute the jury. The court may retain the alternate jurors during deliberations. If the court does so, it shall instruct the alternate jurors not to discuss the case with any other person until the jury completes its deliberations and is discharged. If an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.
(B) Peremptory Challenges.
(1) Each defendant is entitled to three peremptory challenges. The prosecutor is entitled to the same number of peremptory challenges as a defendant being tried alone, or, in the case of jointly tried defendants, the total number of peremptory challenges to which all the defendants are entitled.
(2) Additional Challenges. On a showing of good cause, the court may grant one or more of the parties an increased number of peremptory challenges. The additional challenges granted by the court need not be equal for each party.
Rule 6.625 Appeal; Appointment of Appellate Counsel
(A) An appeal from a misdemeanor case is governed by subchapter 7.100.
(B) If the court imposed a sentence of incarceration, even if suspended, and the defendant is indigent, the local indigent criminal defense system’s appointing authority must appoint a lawyer if, within 14 days after sentencing, the defendant files a request for a lawyer or makes a request on the record. If the defendant makes a request on the record, the court shall inform the appointing authority of the request that same day. Unless there is a postjudgment motion pending, the appointing authority must act on a defendant’s request for a lawyer within 14 days after receiving it. If there is a postjudgment motion pending, the appointing authority must act on the request after the court’s disposition of the pending motion and within 14 days after that disposition. If a lawyer is appointed, the 21 days for taking an appeal pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3) shall commence on the day of the appointment.
(C) If indigency was not previously determined or there is a request for a redetermination of indigency, the court shall make an indigency determination unless the court’s local funding unit has designated this duty to its appointing authority in its compliance plan with the Michigan Indigent Defense Commission. The determination of indigency and, if indigency is found, the appointment of counsel must occur with 14 days of the request unless a postjudgment motion is pending. If there is a postjudgment motion pending, the appointing authority must act on the request after the court's disposition of the pending motion and within 14 days after that disposition.
(D) If a lawyer is appointed, the 21 days for taking an appeal pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3) shall commence on the day the notice of appointment is filed with the court.
Subchapter 6.900 Rules Applicable to Juveniles Charged With Specified Offenses Subject to the Jurisdiction of the Circuit or District Court
(A) Precedence. The rules in this subchapter take precedence over, but are not exclusive of, the rules of procedure applicable to criminal actions against adult offenders.
(B) Scope. The rules apply to criminal proceedings in the district court and the circuit court concerning a juvenile against whom the prosecuting attorney has authorized the filing of a criminal complaint charging a specified juvenile violation instead of approving the filing of a petition in the family division of the circuit court. The rules do not apply to a person charged solely with an offense in which the family division has waived jurisdiction pursuant to MCL712A.4.
(C) Video and Audio Proceedings. The courts may use telephonic, voice, or videoconferencing technology under this subchapter as prescribed by MCR 6.006.
When used in this subchapter, unless the context otherwise indicates:
(A) “Commitment review hearing” includes a hearing as required by MCL 769.1 to decide whether the jurisdiction of the court shall continue over a juvenile who was placed on juvenile probation and committed to state wardship.
(B) “Commitment review report” means a report on a juvenile committed to state wardship for use at a commitment review hearing prepared by the Department of Health and Human Services pursuant to MCL 803.225 (§ 5 of the Juvenile Facilities Act).
(C) “Court” means the circuit court as provided in MCL 600.606, but does not include the family division of the circuit court.
(D) “Family division” means the family division of the circuit court.
(E) “Juvenile” means a person 14 years of age or older, who is subject to the jurisdiction of the court for having allegedly committed a specified juvenile violation on or after the person's 14th birthday and before the person’s 18th birthday.
(F) “Juvenile sentencing hearing” means a hearing conducted by the court following a criminal conviction to determine whether the best interests of the juvenile and of the public would be served:
(1) by retaining jurisdiction over the juvenile, placing the juvenile on juvenile probation, and committing the juvenile to a state institution or agency as a state ward, as provided in MCL 769.1; or
(2) by imposing sentence as provided by law for an adult offender.
(G) “Juvenile facility” means an institution or facility operated by the juvenile division of the circuit court, or a state institution or agency described in the Youth Rehabilitation Services Act, MCL 803.301 et seq., or a county facility or institution operated as an agency of the county other than a facility designed or used to incarcerate adults.
(H) “Specified Juvenile Violation” means one or more of the following offenses allegedly committed by a juvenile in which the prosecuting attorney has authorized the filing of a criminal complaint and warrant instead of proceeding in the family division of the circuit court:
(1) burning a dwelling house, MCL 750.72;
(2) assault with intent to commit murder, MCL 750.83;
(3) assault with intent to maim, MCL 750.86;
(4) assault with intent to rob while armed, MCL 750.89;
(5) attempted murder, MCL 750.91;
(6) first-degree murder, MCL 750.316;
(7) second-degree murder, MCL 750.317;
(8) kidnapping, MCL 750.349;
(9) first-degree criminal sexual conduct, MCL 750.520b;
(10) armed robbery, MCL 750.529;
(11) carjacking, MCL 750.529a;
(12) bank, safe, or vault robbery, MCL 750.531;
(13) assault with intent to do great bodily harm, MCL 750.84, if armed with a dangerous weapon;
(14) first-degree home invasion, MCL 750.110a(2), if armed with a dangerous weapon;
(15) escape or attempted escape from a medium-security or high-security juvenile facility operated by the Department of Health and Human Services, or a high-security facility operated by a private agency under contract with the Department of Health and Human Services, MCL 750.186a;
(16) possession of [MCL 333.7403(2)(a)(i)] or manufacture, delivery, or possession with intent to manufacture or deliver of 650 grams(1,000 grams beginning March 1, 2003) or more of a schedule 1 or 2 controlled substance [MCL 333.7401(2)(a)(i)];
(17) any attempt, MCL 750.92; solicitation, MCL 750.157b; or conspiracy, MCL 750.157a; to commit any of the offenses listed in subrules (1)-(16);
(18) any lesser-included offense of an offense listed in subrules (1)-(17) if the juvenile is charged with a specified juvenile violation;
(19) any other violation arising out of the same transaction if the juvenile is charged with one of the offenses listed in subrules (1)-(17).
(I) “Dangerous Weapon” means one of the following:
(1) a loaded or unloaded firearm, whether operable or inoperable;
(2) a knife, stabbing instrument, brass knuckles, blackjack, club, or other object specifically designed or customarily carried or possessed for use as a weapon;
(3) an object that is likely to cause death or bodily injury when used as a weapon and that is used as a weapon, or carried or possessed for use as a weapon;
(4) an object or device that is used or fashioned in a manner leading a person to believe the object or device is an object or device described in subrules (1)-(3).
(J) “Magistrate” means a judge of the district court or a municipal court as defined in MCL 761.1(f).
(K) “Progress report” means the report on a juvenile in state wardship prepared by the Department of Health and Human Services for the court as required by MCL 803.223 (§ 3 of the Juvenile Facilities Act) and by these rules.
(L) “Social report” means the written report on a juvenile for use at the juvenile sentencing hearing prepared by the Family Independence Agency as required by MCL 803.224 (§ 4 of the Juvenile Facilities Act).
(M) “State wardship” means care and control of a juvenile until the juvenile's 21st birthday by an institution or agency within or under the supervision of the Family Independence Agency as provided in the Youth Rehabilitation Services Act, MCL 803.301 et seq., while the juvenile remains under the jurisdiction of the court on the basis of a court order of juvenile probation and commitment as provided in MCL 769.1.
Rule 6.905 Assistance of Attorney
(A) Advice of Right. If the juvenile is not represented by an attorney, the magistrate or court shall advise the juvenile at each stage of the criminal proceedings of the right to the assistance of an attorney. If the juvenile has waived the right to an attorney, the court at later proceedings must reaffirm that the juvenile continues to not want an attorney.
(B) Appointed Attorney. Unless the juvenile has a retained attorney, or has waived the right to an attorney, the magistrate or the court must refer the matter to the local indigent criminal defense system’s appointing authority for appointment of an attorney to represent the juvenile.
(C) Waiver of Attorney. The magistrate or court may permit a juvenile to waive representation by an attorney if:
(1) an attorney is appointed to give the juvenile advice on the question of waiver;
(2) the magistrate or the court finds that the juvenile is literate and is competent to conduct a defense;
(3) the magistrate or the court advises the juvenile of the dangers and of the disadvantages of self-representation;
(4) the magistrate or the court finds on the record that the waiver is voluntarily and understandingly made; and
(5) the court appoints standby counsel to assist the juvenile at trial and at the juvenile sentencing hearing.
(D) Cost. The court may assess cost of legal representation, or part thereof, against the juvenile or against a person responsible for the support of the juvenile, or both. The order assessing cost shall not be binding on a person responsible for the support of the juvenile unless an opportunity for a hearing has been given and until a copy of the order is served on the person, personally or by first class mail to the person's last known address.
Rule 6.907 Arraignment on Complaint and Warrant
(A) Time. When the prosecuting attorney authorizes the filing of a complaint and warrant charging a juvenile with a specified juvenile violation instead of approving the filing of a petition in the family division of the circuit court, the juvenile in custody must be taken to the magistrate for arraignment on the charge. The prosecuting attorney must make a good-faith effort to notify the parent of the juvenile of the arraignment. The juvenile must be released if arraignment has not commenced:
(1) within 24 hours of the arrest of the juvenile; or
(2) within 24 hours after the prosecuting attorney authorized the complaint and warrant during special adjournment pursuant to MCR 3.935(A)(3), provided the juvenile is being detained in a juvenile facility.
(B) Temporary Detention Pending Arraignment. If the prosecuting attorney has authorized the filing of a complaint and warrant charging a specified juvenile violation instead of approving the filing of a petition in the family division of the circuit court, a juvenile may, following apprehension, be detained pending arraignment:
(1) in a juvenile facility operated by the county;
(2) in a regional juvenile detention facility operated by the state; or
(3) in a facility operated by the family division of the circuit court with the consent of the family division or an order of a court as defined in MCR 6.903(C).
If no juvenile facility is reasonably available and if it is apparent that the juvenile may not otherwise be safely detained, the magistrate may, without a hearing, authorize that the juvenile be lodged pending arraignment in a facility used to incarcerate adults. The juvenile must be kept separate from adult prisoners as required by law.
(C) Procedure. At the arraignment on the complaint and warrant:
(1) The magistrate shall determine whether a parent, guardian, or an adult relative of the juvenile is present. Arraignment may be conducted without the presence of a parent, guardian, or adult relative provided the local funding unit’s appointment authority appoints an attorney to appear at arraignment with the juvenile or provided an attorney has been retained and appears with the juvenile.
(2) The magistrate shall set a date for the juvenile's preliminary examination within the next 14 days, less time given and used by the prosecuting attorney under special adjournment pursuant to MCR 3.935(A)(3), up to three days' credit. The magistrate shall inform the juvenile and the parent, guardian, or adult relative of the juvenile, if present, of the preliminary examination date. If a parent, guardian, or an adult relative is not present at the arraignment, the court shall direct the attorney for the juvenile to advise a parent or guardian of the juvenile of the scheduled preliminary examination.
Rule 6.909 Releasing or Detaining Juveniles Before Trial or Sentencing
(A) Bail; Detention.
(1) Bail. Except as provided in subrule (2) the magistrate or court must advise the juvenile of a right to bail as provided for an adult accused. The magistrate or the court may order a juvenile released to a parent or guardian on the basis of any lawful condition, including that bail be posted.
(2) Detention Without Bail. If the proof is evident or if the presumption is great that the juvenile committed the offense, the magistrate or the court may deny bail:
(a) to a juvenile charged with first-degree murder, second-degree murder, or
(b) to a juvenile charged with first-degree criminal sexual conduct, or armed robbery,
(i) who is likely to flee, or
(ii) who clearly presents a danger to others.
(B) Place of Confinement.
(1) Juvenile Facility. Except as provided in subrule (B)(2) and in MCR 6.907(B), a juvenile charged with a crime and not released must be placed in a juvenile facility while awaiting trial and, if necessary, sentencing, rather than being placed in a jail or similar facility designed and used to incarcerate adult prisoners.
(2) Jailing of Juveniles; Restricted. On motion of a prosecuting attorney or a superintendent of a juvenile facility in which the juvenile is detained, the magistrate or court may order the juvenile confined in a jail or similar facility designed and used to incarcerate adult prisoners upon a showing that
(a) the juvenile's habits or conduct are considered a menace to other juveniles; or
(b) the juvenile may not otherwise be safely detained in a juvenile facility.
(3) Family Division Operated Facility. The juvenile shall not be placed in an institution operated by the family division of the circuit court except with the consent of the family division or on order of a court as defined in MCR 6.903(C).
(4) Separate Custody of Juvenile. The juvenile in custody or detention must be maintained separately from the adult prisoners or adult accused as required by MCL 764.27a.
(C) Speedy Trial. Within 7 days of the filing of a motion, the court shall release a juvenile who has remained in detention while awaiting trial for more than 91 days to answer for the specified juvenile violation unless the trial has commenced. In computing the 91-day period, the court is to exclude delays as provided in MCR 6.004(C)(1)-(6) and the time required to conduct the hearing on the motion.
Rule 6.911 Preliminary Examination
(A) Waiver. The juvenile may waive a preliminary examination if the juvenile is represented by an attorney and the waiver is made and signed by the juvenile in open court. The magistrate shall find and place on the record that the waiver was freely, understandingly, and voluntarily given.
(B) Transfer to Family Division of Circuit Court. If the magistrate, following preliminary examination, finds that there is no probable cause to believe that a specified juvenile violation occurred or that there is no probable cause to believe that the juvenile committed the specified juvenile violation, but that some other offense occurred that if committed by an adult would constitute a crime, and that there is probable cause to believe that the juvenile committed that offense, the magistrate shall transfer the matter to the family division of the circuit court in the county where the offense is alleged to have been committed for further proceedings. If the court transfers the matter to the family division, a transcript of the preliminary examination shall be sent to the family division without charge upon request.
Rule 6.931 Juvenile Sentencing Hearing
(A) General. If the juvenile has been convicted of an offense listed in MCL 769.1(1)(a)-(l), the court must sentence the juvenile in the same manner as an adult. Unless a juvenile is required to be sentenced in the same manner as an adult, a judge of a court having jurisdiction over a juvenile shall conduct a juvenile sentencing hearing unless the hearing is waived as provided in subrule (B). At the conclusion of the juvenile sentencing hearing, the court shall determine whether to impose a sentence against the juvenile as though an adult offender or whether to place the juvenile on juvenile probation and commit the juvenile to state wardship pursuant to MCL 769.1b.
(B) No Juvenile Sentencing Hearing; Consent. The court need not conduct a juvenile sentencing hearing if the prosecuting attorney, the juvenile, and the attorney for the juvenile, consent that it is not in the best interest of the public to sentence the juvenile as though an adult offender. If the juvenile sentence hearing is waived, the court shall not impose a sentence as provided by law for an adult offender. The court must place the juvenile on juvenile probation and commit the juvenile to state wardship.
(C) Notice of Juvenile Sentencing Hearing Following Verdict. If a juvenile sentencing hearing is required, the prosecuting attorney, the juvenile, and the attorney for the juvenile must be advised on the record immediately following conviction of the juvenile by a guilty plea or verdict of guilty that a hearing will be conducted at sentencing, unless waived, to determine whether to sentence the juvenile as an adult or to place the juvenile on juvenile probation and commit the juvenile to state wardship as though a delinquent. The court may announce the scheduled date of the hearing. On request, the court shall notify the victim of the juvenile sentencing hearing.
(D) Review of Reports. The court must give the prosecuting attorney, the juvenile, and the attorney for the juvenile, an opportunity to review the presentence report and the social report before the juvenile sentencing hearing. The court may exempt information from the reports as provided in MCL 771.14 and 771.14a.
(E) Juvenile Sentencing Hearing Procedure.
(1) Evidence. At the juvenile sentencing hearing all relevant and material evidence may be received by the court and relied upon to the extent of its probative value, even though such evidence may not be admissible at trial. The rules of evidence do not apply. The court shall receive and consider the presentence report prepared by the probation officer and the social report prepared by the Department of Health and Human Services.
(2) Standard of Proof. The court must sentence the juvenile in the same manner as an adult unless the court determines by a preponderance of the evidence, except as provided in subrule (3)(c), that the best interests of the public would be served by placing the juvenile on probation and committing the juvenile to state wardship.
(3) Alternative Sentences For Juveniles Convicted of Certain Controlled Substance Offenses. If a juvenile is convicted of a violation or conspiracy to commit a violation of MCL 333.7403(2)(a)(i), the court shall determine whether the best interests of the public would be served by:
(a) imposing the sentence provided by law for an adult offender;
(b) placing the individual on probation and committing the individual to a state institution or agency as provided in MCL 769.1(3); or
(c) imposing a sentence of imprisonment for any term of years, but not less than 25 years, if the court determines by clear and convincing evidence that such a sentence would serve the best interests of the public.
In making its determination, the court shall use the criteria set forth in subrule (4).
(4) Criteria. The court shall consider the following criteria in determining whether to sentence the juvenile as though an adult offender or whether to place the juvenile on juvenile probation and commit the juvenile to state wardship, giving more weight to the seriousness of the alleged offense and the juvenile's prior record of delinquency:
(a) the seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the impact on any victim;
(b) the culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile's participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines;
(c) the juvenile's prior record of delinquency, including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior;
(d) the juvenile's programming history, including, but not limited to, the juvenile's past willingness to participate meaningfully in available programming;
(e) the adequacy of the punishment or programming available in the juvenile justice system; and
(f) the dispositional options available for the juvenile.
(5) Findings. The court must make findings of fact and conclusions of law forming the basis for the juvenile probation and commitment decision or the decision to sentence the juvenile as though an adult offender. The findings and conclusions may be incorporated in a written opinion or stated on the record.
(F) Postjudgment Procedure; Juvenile Probation and Commitment to State Wardship. If the court retains jurisdiction over the juvenile, places the juvenile on juvenile probation, and commits the juvenile to state wardship, the court shall comply with subrules (1)-(11):
(1) The court shall enter a judgment that includes a provision for reimbursement by the juvenile or those responsible for the juvenile's support, or both, for the cost of care and services pursuant to MCL 769.1(7). An order assessing such cost against a person responsible for the support of the juvenile shall not be binding on the person, unless an opportunity for a hearing has been given and until a copy of the order is served on the person, personally or by first class mail to the person's last known address.
(2) The court shall advise the juvenile at sentencing that if the juvenile, while on juvenile probation, is convicted of a felony or a misdemeanor punishable by more than one year's imprisonment, the court must revoke juvenile probation and sentence the juvenile to a term of years in prison not to exceed the penalty that might have been imposed for the offense for which the juvenile was originally convicted.
(3) The court shall assure that the juvenile receives a copy of the social report.
(4) The court shall send a copy of the order and a copy of the written opinion or transcript of the findings and conclusions of law to the Department of Health and Human Services.
(5) The court shall not place the juvenile on deferred sentencing, as provided in MCL 771.1(2).
(6) The court shall not place the juvenile on life probation for conviction of a controlled substance violation, as set forth in MCL 771.1(4).
(7) The five-year limit on the term of probation for an adult felony offender shall not apply.
(8) The court shall not require as a condition of juvenile probation that the juvenile report to a department of corrections probation officer.
(9) The court shall not, as a condition of juvenile probation, impose jail time against the juvenile except as provided in MCR 6.933(G)(2).
(10) The court shall not commit the juvenile to the Department of Corrections for failing to comply with a restitution order.
(11) The court shall not place the juvenile in a Department of Corrections camp for one year, as otherwise provided in MCL 771.3a(1).
Rule 6.933 Juvenile Probation Revocation
(A) Issuance of Summons; Warrant. When a juvenile, who was placed on juvenile probation and committed to an institution as a state ward, is alleged to have violated juvenile probation, on finding probable cause to believe that a probationer has violated a condition of probation, the court may
(1) issue a summons in accordance with MCR 6.102 for the probationer to appear for arraignment on the alleged violation, or
(2) issue a warrant for the arrest of the probationer.
An arrested probationer must promptly be brought before the court for arraignment on the alleged violation.
(B) Arraignment on the Charge. At the arraignment on the alleged probation violation, the court must
(1) ensure that the probationer receives written notice of the alleged violation,
(2) advise the probationer that
(a) the probationer has a right to contest the charge at a hearing, and
(b) the probationer is entitled to a lawyer’s assistance at the hearing and at all subsequent court proceedings, and that the court will appoint a lawyer at public expense if the probationer wants one and is financially unable to retain one,
(3) if requested and appropriate, appoint a lawyer,
(4) determine what form of release, if any, is appropriate, and
(5) subject to subrule (C), set a reasonably prompt hearing date or postpone the hearing.
(C) Scheduling or Postponement of Hearing. The hearing of a probationer being held in custody for an alleged probation violation must be held within 14 days after the arraignment or the court must order the probationer released from that custody pending the hearing. If the alleged violation is based on a criminal offense that is a basis for a separate criminal prosecution, the court may postpone the hearing for the outcome of that prosecution.
(D) Continuing Duty to Advise of Right to Assistance of Lawyer. Even though a probationer charged with probation violation has waived the assistance of a lawyer, 13 at each subsequent proceeding the court must comply with the advice and waiver procedure in MCR 6.005(E).
(E) The Violation Hearing.
(1) Conduct of the Hearing. The evidence against the probationer must be disclosed to the probationer. The probationer has the right to be present at the hearing, to present evidence, and to examine and cross-examine witnesses. The court may consider only evidence that is relevant to the violation alleged, but it need not apply the rules of evidence except those pertaining to privileges. The state has the burden of proving a violation by a preponderance of the evidence.
(2) Judicial Findings. At the conclusion of the hearing, the court must make findings in accordance with MCR 6.403.
(F) Pleas of Guilty. The probationer may, at the arraignment or afterward, plead guilty to the violation. Before accepting a guilty plea, the court, speaking directly to the probationer and receiving the probationer’s response, must
(1) advise the probationer that by pleading guilty the probationer is giving up the right to a contested hearing and, if the probationer is proceeding without legal representation, the right to a lawyer’s assistance as set forth in subrule (B)(2)(b),
(2) advise the probationer of the maximum possible jail or prison sentence for the offense,
(3) ascertain that the plea is understandingly, voluntarily, and accurately made, and
(4) establish factual support for a finding that the probationer is guilty of the alleged violation.
(G) Disposition in General.
(1) Certain Criminal Offense Violations.
(a) If the court finds that the juvenile has violated juvenile probation by being convicted of a felony or a misdemeanor punishable by more than one year's imprisonment, the court must revoke the probation of the juvenile and order the juvenile committed to the Department of Corrections for a term of years not to exceed the penalty that could have been imposed for the offense that led to the probation. The court in imposing sentence shall grant credit against the sentence as required by law.
(b) The court may not revoke probation and impose sentence under subrule (G)(1) unless at the original sentencing the court gave the advice, as required by MCR 6.931(F)(2), that subsequent conviction of a felony or a misdemeanor punishable by more than one year's imprisonment would result in the revocation of juvenile probation and in the imposition of a sentence of imprisonment.
(2) Other Violations. If the court finds that the juvenile has violated juvenile probation, other than as provided in subrule (G)(1), the court may order the juvenile committed to the Department of Corrections as provided in subrule (G)(1), or may order the juvenile continued on juvenile probation and under state wardship, and may order any of the following:
(a) a change of placement,
(b) restitution,
(c) community service,
(d) substance abuse counseling,
(e) mental health counseling,
(f) participation in a vocational-technical education program,
(g) incarceration in a county jail for not more than 30 days, and
(h) any other participation or performance as the court considers necessary.
If the court determines to place the juvenile in jail for up to 30 days, and the juvenile is under 18 years of age, the juvenile must be placed separately from adult prisoners as required by law.
(3) If the court revokes juvenile probation pursuant to subrule (G)(1), the court must receive an updated presentence report and comply with MCR 6.445(G) before it imposes a prison sentence on the juvenile.
(H) Disposition Regarding Specific Underlying Offenses.
(1) Controlled Substance Violation Punishable by Mandatory Nonparolable Life Sentence For Adults. A juvenile who was placed on probation and committed to state wardship for manufacture, delivery, or possession with the intent to deliver 650 grams(1,000 grams beginning March 1, 2003) or more of a controlled substance, MCL 333.7401(2)(a)(i), may be resentenced only to a term of years following mandatory revocation of probation for commission of a subsequent felony or a misdemeanor punishable by more than one year of imprisonment.
(2) First-Degree Murder. A juvenile convicted of first-degree murder who violates juvenile probation by being convicted of a felony or a misdemeanor punishable by more than one year's imprisonment may only be sentenced to a term of years, not to nonparolable life.
(I) Review. The juvenile may appeal as of right from the imposition of a sentence of incarceration after a finding of juvenile probation violation.
(J) Determination of Ability to Pay. A juvenile and/or parent shall not be detained or incarcerated for the nonpayment of court-ordered financial obligations as ordered by the court, unless the court determines that the juvenile and/or parent has the resources to pay and has not made a good-faith effort to do so.
Rule 6.935 Progress Review of Court-Committed Juveniles
(A) General. When a juvenile is placed on probation and committed to a state institution or agency, the court retains jurisdiction over the juvenile while the juvenile is on probation and committed to that state institution or agency. The court shall review the progress of a juvenile it has placed on juvenile probation and committed to state wardship.
(B) Time.
(1) Semiannual Progress Reviews. The court must conduct a progress review no later than 182 days after the entry of the order placing the juvenile on juvenile probation and committing the juvenile to state wardship. A review shall be made semiannually thereafter as long as the juvenile remains in state wardship.
(2) Annual Review. The court shall conduct an annual review of the services being provided to the juvenile, the juvenile's placement, and the juvenile's progress in that placement.
(C) Progress Review Report. In conducting these reviews, the court shall examine the progress review report prepared by the Department of Health and Human Services, covering placement and services being provided the juvenile and the progress of the juvenile, and the court shall also examine the juvenile's annual report prepared under MCL 803.223 (§ 3 of the Juvenile Facilities Act). The court may order changes in the juvenile's placement or treatment plan including, but not limited to, committing the juvenile to the jurisdiction of the Department of Corrections, on the basis of the review.
(D) Hearings for Progress and Annual Reviews. Unless the court orders a more restrictive placement or treatment plan, there shall be no requirement that the court hold a hearing when conducting a progress review for a court-committed juvenile pursuant to MCR 6.935(B). However, the court may not order a more physically restrictive change in the level of placement of the juvenile or order more restrictive treatment absent a hearing as provided in MCR 6.937.
Rule 6.937 Commitment Review Hearing
(A) Required Hearing Before Age 19 for Court-Committed Juveniles. The court shall schedule and hold, unless adjourned for good cause, a commitment review hearing as nearly as possible to, but before, the juvenile's 19th birthday.
(1) Notice. The Department of Health and Human Services or agency, facility, or institution to which the juvenile is committed, shall advise the court at least 91 days before the juvenile attains age 19 of the need to schedule a commitment review hearing. Notice of the hearing must be given to the prosecuting attorney, the agency or the superintendent of the facility to which the juvenile has been committed, the juvenile, and the parent of the juvenile if the parent’s address or whereabouts are known, at least 14 days before the hearing. Notice must clearly indicate that the court may extend jurisdiction over the juvenile until the age of 21. The notice shall include advice to the juvenile and the parent of the juvenile that the juvenile has the right to an attorney.
(2) Appointment of an Attorney. The local funding unit’s appointing authority must appoint an attorney to represent the juvenile at the hearing unless an attorney has been retained or is waived pursuant to MCR 6.905(C).
(3) Reports. The state institution or agency charged with the care of the juvenile must prepare a commitment report as required by MCL 769.1b(4) and 803.225(1). The commitment report must contain all of the following, as required by MCL 803.225(1)(a)-(d):
(a) the services and programs currently being utilized by, or offered to, the juvenile and the juvenile's participation in those services and programs;
(b) where the juvenile currently resides and the juvenile's behavior in the current placement;
(c) the juvenile's efforts toward rehabilitation; and
(d) recommendations for the juvenile's release or continued custody.
The report created pursuant to MCL 803.223 for the purpose of annual reviews may be combined with a commitment review report.
(4) Findings; Criteria. Before the court continues the jurisdiction over the juvenile until the age of 21, the prosecutor must demonstrate by a preponderance of the evidence that the juvenile has not been rehabilitated or that the juvenile presents a serious risk to public safety. The rules of evidence do not apply. In making the determination, the court must consider the following factors:
(a) the extent and nature of the juvenile's participation in education, counseling, or work programs;
(b) the juvenile's willingness to accept responsibility for prior behavior;
(c) the juvenile's behavior in the current placement;
(d) the prior record and character of the juvenile and physical and mental maturity;
(e) the juvenile's potential for violent conduct as demonstrated by prior behavior;
(f) the recommendations of the state institution or agency charged with the juvenile's care for the juvenile's release or continued custody; and
(g) other information the prosecuting attorney or the juvenile may submit.
(B) Other Commitment Review Hearings. The court, on motion of the institution, agency, or facility to which the juvenile is committed, may release a juvenile at any time upon a showing by a preponderance of evidence that the juvenile has been rehabilitated and is not a risk to public safety. The notice provision in subrule (A), other than the requirement that the court clearly indicate that it may extend jurisdiction over the juvenile until the age of 21, and the criteria in subrule (A) shall apply. The rules of evidence shall not apply. The local funding unit’s appointing authority must appoint an attorney to represent the juvenile at the hearing unless an attorney has been retained or the right to counsel waived. The court, upon notice and opportunity to be heard as provided in this rule, may also move the juvenile to a more restrictive placement or treatment program.
Rule 6.938 Final Review Hearings
(A) General. The court must conduct a final review of the juvenile's probation and commitment not less than 3 months before the end of the period that the juvenile is on probation and committed to the state institution or agency. If the court determines at this review that the best interests of the public would be served by imposing any other sentence provided by law for an adult offender, the court may impose that sentence.
(B) Notice Requirements. Not less than 14 days before a final review hearing is to be conducted, the prosecuting attorney, juvenile, and, if addresses are known, the juvenile's parents or guardian must be notified. The notice must state that the court may impose a sentence upon the juvenile and must advise the juvenile and the juvenile's parent or guardian of the right to legal counsel.
(C) Appointment of Counsel. If an attorney has not been retained or appointed to represent the juvenile, the local funding unit’s appointing authority must appoint an attorney and the court may assess the cost of providing an attorney as costs against the juvenile or those responsible for the juvenile's support, or both, if the persons to be assessed are financially able to comply.
(D) Criteria. In determining whether the best interests of the public would be served by imposing sentence, the court shall consider the following:
(1) the extent and nature of the juvenile's participation in education, counseling, or work programs;
(2) the juvenile's willingness to accept responsibility for prior behavior;
(3) the juvenile's behavior in the current placement;
(4) the prior record and character of the juvenile and the juvenile's physical and mental maturity;
(5) the juvenile's potential for violent conduct as demonstrated by prior behavior;
(6) the recommendations of the state institution or agency charged with the juvenile's care for the juvenile's release or continued custody;
(7) the effect of treatment on the juvenile's rehabilitation;
(8) whether the juvenile is likely to be dangerous to the public if released;
(9) the best interests of the public welfare and the protection of public security; and
(10) other information the prosecuting attorney or juvenile may submit.
(E) Credit for Time Served on Probation. If a sentence is imposed, the juvenile must receive credit for the period of time served on probation and committed to a state agency or institution.