May 7, 1996



94-53



Amendment of Rule 6.201
of the Michigan Court Rules
_______________________________


          On order of the Court, notice of proposed changes
having been provided, and consideration having been given to the
comments received in response to that notice, the following
amendment of Rule 6.201 of the Michigan Court Rules is adopted,
to be effective July 1, 1996.


[The present language is amended as indicated below.]

ICLE Editor's Note:

Rule 6.201     Discovery

(A) - (B)      [Unchanged.]

(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) - (I)      [Unchanged.]



          STAFF COMMENT:  Consistent with People v
Stanaway, 446 Mich 643 (1994), the addition of subrule (C)(2) in
1996 provided for the in-camera inspection of confidential
records protected by privilege, and subsequent appellate review.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.