Bill Text: MI HB4549 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Children; protection; videorecorded statements; allow to be used in child protective services hearings, increase fines for improper release of, and require to be retained for certain period of time. Amends sec. 17b, ch. XIIA of 1939 PA 288 (MCL 712A.17b). TIE BAR WITH: HB 4547'15, HB 4548'15

Spectrum: Slight Partisan Bill (Republican 6-2)

Status: (Introduced - Dead) 2015-06-09 - Referred To Second Reading [HB4549 Detail]

Download: Michigan-2015-HB4549-Introduced.html

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HOUSE BILL No. 4549

 

May 5, 2015, Introduced by Reps. Santana, Barrett, Chatfield, Victory, Price, LaVoy, Runestad and Glenn and referred to the Committee on Judiciary.

 

     A bill to amend 1939 PA 288, entitled

 

"Probate code of 1939,"

 

by amending section 17b of chapter XIIA (MCL 712A.17b), as amended

 

by 2002 PA 625.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER XIIA

 

     Sec. 17b. (1) As used in this section:

 

     (a) "Custodian of the videorecorded statement" means the

 

family independence agency, department of health and human

 

services, investigating law enforcement agency, prosecuting

 

attorney, or department of attorney general or another person

 

designated under the county protocols established as required by

 

section 8 of the child protection law, 1975 PA 238, MCL 722.628.

 

     (b) "Developmental disability" means that term as defined in

 

section 100a of the mental health code, 1974 PA 258, MCL 330.1100a,

except that, for the purposes of implementing this section,

 

developmental disability includes only a condition that is

 

attributable to a mental impairment or to a combination of mental

 

and physical impairments, and does not include a condition

 

attributable to a physical impairment unaccompanied by a mental

 

impairment.

 

     (c) "Videorecorded statement" means a witness's statement

 

taken by a custodian of the videorecorded statement as provided in

 

subsection (5). Videorecorded statement does not include a

 

videorecorded deposition taken as provided in subsections (16) and

 

(17).

 

     (d) "Witness" means an alleged victim of an offense listed

 

under subsection (2) who is either of the following:

 

     (i) A person under 16 years of age.

 

     (ii) A person 16 years of age or older with a developmental

 

disability.

 

     (2) This section only applies to either 1 or more of the

 

following:

 

     (a) A proceeding brought under section 2(a)(1) of this chapter

 

in which the alleged offense, if committed by an adult, would be a

 

felony under section 136b, 145c, 520b to 520e, or 520g of the

 

Michigan penal code, 1931 PA 328, MCL 750.136b, 750.145c, 750.520b

 

to 750.520e, and 750.520g, or under former section 136 or 136a of

 

the Michigan penal code, 1931 PA 328.

 

     (b) A proceeding brought under section 2(b) of this chapter.

 

     (c) A proceeding brought under section 7(6) of the child

 

protection law, 1975 PA 238, MCL 722.627.

     (3) If pertinent, the witness shall be permitted the use of

 

dolls or mannequins, including, but not limited to, anatomically

 

correct dolls or mannequins, to assist the witness in testifying on

 

direct and cross-examination.

 

     (4) A witness who is called upon to testify shall be permitted

 

to have a support person sit with, accompany, or be in close

 

proximity to the witness during his or her testimony. A notice of

 

intent to use a support person shall name the support person,

 

identify the relationship the support person has with the witness,

 

and give notice to all parties to the proceeding that the witness

 

may request that the named support person sit with the witness when

 

the witness is called upon to testify during any stage of the

 

proceeding. The notice of intent to use a named support person

 

shall be filed with the court and shall be served upon all parties

 

to the proceeding. The court shall rule on a motion objecting to

 

the use of a named support person before the date at which the

 

witness desires to use the support person.

 

     (5) A custodian of the videorecorded statement may take a

 

witness's videorecorded statement. The videorecorded statement

 

shall be admitted at all proceedings except the adjudication stage

 

instead of the live testimony of the witness. The videorecorded

 

statement shall state the date and time that the statement was

 

taken; shall identify the persons present in the room and state

 

whether they were present for the entire videorecording video

 

recording or only a portion of the videorecording; video recording;

 

and shall show a time clock that is running during the taking of

 

the statement.

     (6) In a videorecorded statement, the questioning of the

 

witness should be full and complete; shall be in accordance with

 

the forensic interview protocol implemented as required by section

 

8 of the child protection law, 1975 PA 238, MCL 722.628; and, if

 

appropriate for the witness's developmental level, shall include,

 

but need not be limited to, all of the following areas:

 

     (a) The time and date of the alleged offense or offenses.

 

     (b) The location and area of the alleged offense or offenses.

 

     (c) The relationship, if any, between the witness and the

 

respondent.

 

     (d) The details of the offense or offenses.

 

     (e) The names of other persons known to the witness who may

 

have personal knowledge of the offense or offenses.

 

     (7) A custodian of the videorecorded statement may release or

 

consent to the release or use of a videorecorded statement or

 

copies of a videorecorded statement to a law enforcement agency, an

 

agency authorized to prosecute the criminal case to which the

 

videorecorded statement relates, or an entity that is part of

 

county protocols established under section 8 of the child

 

protection law, 1975 PA 238, MCL 722.628. Each respondent and, if

 

represented, his or her attorney has the right to view and hear the

 

videorecorded statement at a reasonable time before it is offered

 

into evidence. In preparation for a court proceeding and under

 

protective conditions, including, but not limited to, a prohibition

 

on the copying, release, display, or circulation of the

 

videorecorded statement, the court may order that a copy of the

 

videorecorded statement be given to the defense. The order may

specify who shall view the videorecorded statement, indicate the

 

time by which the videorecorded statement is required to be

 

returned, and state a reason for the release of the videorecorded

 

statement.

 

     (8) If authorized by the prosecuting attorney in the county in

 

which the videorecorded statement was taken, a videorecorded

 

statement may be used for purposes of training the custodians of

 

the videorecorded statement in that county on the forensic

 

interview protocol implemented as required by section 8 of the

 

child protection law, 1975 PA 238, MCL 722.628.

 

     (9) Except as provided in this section, an individual,

 

including, but not limited to, a custodian of the videorecorded

 

statement, the witness, or the witness's parent, guardian, guardian

 

ad litem, or attorney, shall not release or consent to release a

 

videorecorded statement or a copy of a videorecorded statement.

 

     (10) A videorecorded statement that becomes part of the court

 

record is subject to a protective order of the court for the

 

purpose of protecting the privacy of the witness.

 

     (11) A videorecorded statement shall not be copied or

 

reproduced in any manner except as provided in this section. A

 

videorecorded statement is exempt from disclosure under the freedom

 

of information act, 1976 PA 442, MCL 15.231 to 15.246, is not

 

subject to release under another statute, and is not subject to

 

disclosure under the Michigan court rules governing discovery. This

 

section does not prohibit the production or release of a transcript

 

of a videorecorded statement.

 

     (12) Except as otherwise provided in subsection (15), if, upon

the motion of a party or in the court's discretion, the court finds

 

on the record that psychological harm to the witness would occur if

 

the witness were to testify in the presence of the respondent at a

 

court proceeding or in a videorecorded deposition taken as provided

 

in subsection (13), the court shall order that the witness during

 

his or her testimony be shielded from viewing the respondent in

 

such a manner as to enable the respondent to consult with his or

 

her attorney and to see and hear the testimony of the witness

 

without the witness being able to see the respondent.

 

     (13) In a proceeding brought under section 2(b) of this

 

chapter, if, upon the motion of a party or in the court's

 

discretion, the court finds on the record that psychological harm

 

to the witness would occur if the witness were to testify at the

 

adjudication stage, the court shall order to be taken a

 

videorecorded deposition of a witness that shall be admitted into

 

evidence at the adjudication stage instead of the live testimony of

 

the witness. The examination and cross-examination of the witness

 

in the videorecorded deposition shall proceed in the same manner as

 

permitted at the adjudication stage.

 

     (14) In a proceeding brought under section 2(a)(1) of this

 

chapter in which the alleged offense, if committed by an adult,

 

would be a felony under section 136b, 145c, 520b to 520e, or 520g

 

of the Michigan penal code, 1931 PA 328, MCL 750.136b, 750.145c,

 

750.520b to 750.520e, and 750.520g, or under former section 136 or

 

136a of the Michigan penal code, 1931 PA 328, if, upon the motion

 

of a party made before the adjudication stage, the court finds on

 

the record that the special arrangements specified in subsection

(15) are necessary to protect the welfare of the witness, the court

 

shall order 1 or both of those special arrangements. In determining

 

whether it is necessary to protect the welfare of the witness, the

 

court shall consider both of the following:

 

     (a) The age of the witness.

 

     (b) The nature of the offense or offenses.

 

     (15) If the court determines on the record that it is

 

necessary to protect the welfare of the witness and grants the

 

motion made under subsection (14), the court shall order 1 or both

 

of the following:

 

     (a) In order to protect the witness from directly viewing the

 

respondent, the courtroom shall be arranged so that the respondent

 

is seated as far from the witness stand as is reasonable and not

 

directly in front of the witness stand. The respondent's position

 

shall be located so as to allow the respondent to hear and see all

 

witnesses and be able to communicate with his or her attorney.

 

     (b) A questioner's stand or podium shall be used for all

 

questioning of all witnesses by all parties, and shall be located

 

in front of the witness stand.

 

     (16) In a proceeding brought under section 2(a)(1) of this

 

chapter in which the alleged offense, if committed by an adult,

 

would be a felony under section 136b, 145c, 520b to 520e, or 520g

 

of the Michigan penal code, 1931 PA 328, MCL 750.136b, 750.145c,

 

750.520b to 750.520e, and 750.520g, or under former section 136 or

 

136a of the Michigan penal code, 1931 PA 328, if, upon the motion

 

of a party or in the court's discretion, the court finds on the

 

record that the witness is or will be psychologically or

emotionally unable to testify at a court proceeding even with the

 

benefit of the protections afforded the witness in subsections (3),

 

(4), and (15), the court shall order that a videorecorded

 

deposition of a witness shall be taken to be admitted at the

 

adjudication stage instead of the witness's live testimony.

 

     (17) For purposes of the videorecorded deposition under

 

subsection (16), the witness's examination and cross-examination

 

shall proceed in the same manner as if the witness testified at the

 

adjudication stage, and the court shall order that the witness,

 

during his or her testimony, shall not be confronted by the

 

respondent but shall permit the respondent to hear the testimony of

 

the witness and to consult with his or her attorney.

 

     (18) This section is in addition to other protections or

 

procedures afforded to a witness by law or court rule.

 

     (19) A person who intentionally releases a videorecorded

 

statement in violation of this section is guilty of a misdemeanor

 

punishable by imprisonment for not more than 93 days 1 year or a

 

fine of not more than $500.00, $1,000.00, or both.

 

     (20) The court shall retain a videorecorded statement made

 

under this section as required by supreme court rule. All other

 

entities shall store a videorecorded statement made under this

 

section in accordance with the county protocols established under

 

section 8 of the child protection law, 1975 PA 238, MCL 722.628.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

 

     Enacting section 2. This amendatory act does not take effect

 

unless all of the following bills of the 98th Legislature are

enacted into law:

 

     (a) Senate Bill No. ____ or House Bill No. 4548 (request no.

 

01729'15).

 

     (b) Senate Bill No. ____ or House Bill No. 4547 (request no.

 

01735'15).