RE: E-Vote for Criminal Jurisprudence & Practice Committee: Respond by Monday Afternoon

In the absence of a quorum at the October 13 Criminal Jurisprudence & Practice Committee Meeting, an e-vote on matters discussed is requested. The following motions were made and supported. All committee members are requested to indicate their vote as A, B or C on each item by Monday, October 17 at 4 PM.

Your voting choices are:

A. Support the Committee Position

B. Oppose the Committee Position

C. Abstain from Voting

1. 2008-36 Proposed Amendment of Rule 7.202 of the Michigan Court Rules and Proposed Adoption of Administrative Order No. 2011-XX

Alternative A, the proposed amendment of MCR 7.202 would establish that an order suppressing material and substantial evidence is considered a final order, and therefore subject to an appeal by right. By contrast, Alternative B, a proposed administrative order, would establish a right to a mandatory stay while a prosecutor pursues interlocutory appeal of a trial court’s decision to suppress a prosecutor’s evidence. These proposals were prompted by the Court’s decision in People v Richmond, 486 Mich 29 (2010), in which the Court held that a prosecutor’s decision to move to dismiss the prosecutor’s case makes the case moot on appeal.

MOTION: Support the revised MCR 7.205(E)(3)

After an online discussion, on September 19, 2011, the Committee took the following position: The committee feels that neither alternative is needed. Under Michigan law there is already a procedure in place for the prosecutor to file an application for leave to appeal and request a stay. If the trial court and the Court of Appeals wrongfully deny a stay, the Supreme Court can easily reverse and grant a stay pending the appeal. Alternative A changes Michigan law by its re-definition of a 'final judgment' or 'final order' and affords the prosecutor rights not similarly available to the defense. Alternative B bypasses established appellate rules and also affords to the prosecutor a right not similarly available to the defense. Both alternatives also eliminate the discretion by the trial court and Court of Appeals, as needed, to grant or deny a stay of proceedings.

On October 13, 2011 a motion was made and supported to propose the following court rule:

MCR 7.205(E)(3) Where the trial 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 trial 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. The appealing party must pursue the appeal as expeditiously as practicable, and the Court of Appeals shall consider the matter under the same priority as that granted to an interlocutory criminal appeal under MCR 7.213(C)(1). If the application for leave to appeal is filed by the prosecutor and the defendant is incarcerated, the defendant may request that the trial court reconsider whether pretrial release is appropriate.

2. 2010-14 Proposed Adoption of New Rule 6.202 of the Michigan Court Rules

The intent of this proposed new rule is to create a “notice and demand” rule that would allow forensic reports to be admitted into evidence without the forensic analyst’s presence if the defendant does not object. The proposed rule is based on favorable discussion by the United States Supreme Court in Melendez-Diaz v Massachusetts, 557 US ___; 129 S Ct 2527 (2009). Although the Supreme Court struck down the Massachusetts procedure for admitting forensic evidence without attendance by the forensic analyst, it noted that some states have adopted “notice and demand” provisions that create a procedure by which forensic reports may be admitted into evidence if the defendant does not object to the report’s entry.

MOTION: Support the concept with the following recommended amendments: (1) it applies to both prosecution and defense; (2) the cut-off dates are modified, and (3) the following language is accepted:

Rule 6.202. Disclosure of Forensic Laboratory Report and Certificate; Admissibility of Report and Certificate; Adjournment.

(A) Disclosure. Upon receipt of a forensic laboratory report and certificate by the examining expert, a party may 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 on the opposing party's attorney, or party if not represented by an attorney, shall be filed with the court.

(B) Notice and Demand.

(1) Notice. If a party intends to offer the report 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 when the report is served as provided in subrule (A)(1). 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. Except as provided in subrule (B)(2), the report and certification 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, 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 except as otherwise allowed by law. If no objections 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 (B)(1).

(3) Adjournment. Compliance with this court rule shall be good cause for an adjournment of the trial

Carrie A. Sharlow
Administrative Assistant, Governmental Relations

State Bar of Michigan
Michael Franck Building
306 Townsend Street
Lansing, MI 48933
P: 517-346-6317
F: 517-482-6248

csharlow@mail.michbar.org
www.michbar.org

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