ICLE Homepage | Other Proposed Amendments to MCRs
February 3, 2004
ADM File No. 2003-04
Proposed Amendments of Rules 2.511, 6.001,
6.004, 6.005, 6.102, 6.104, 6.106, 6.107, 6.110,
6.112, 6.113, 6.201, 6.302, 6.303, 6.304, 6.310,
6.311, 6.402, 6.412, 6.414, 6.419, 6.420, 6.425,
6.427, 6.429, 6.431, 6.433, 6.440, 6.445,
6.501, 6.502, 6.503, 6.504, 6.506, 6.508, 6.509,
6.610, 6.615, and 6.620; and the adoption of
Rules 6.006, 6.111, and 6.428
of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering amendments
of Rules 2.511, 6.001, 6.004, 6.005, 6.102, 6.104, 6.106, 6.107, 6.110, 6.112, 6.113,
6.201, 6.302, 6.303, 6.304, 6.310, 6.311, 6.402, 6.412, 6.414, 6.419, 6.420, 6.425, 6.427,
6.429, 6.431, 6.433, 6.440, 6.445, 6.501, 6.502, 6.503, 6.504, 6.506, 6.508, 6.509, 6.610,
6.615, and 6.620; and the adoption of Rules 6.006, 6.111, and 6.428 of the Michigan
Court Rules, as recommended by the Committee on the Rules of Criminal Procedure
appointed by the Court. The Court is also considering amendments of Subrules
6.106(D)(2)(o), 6.201(A)(5), and 6.201(B)(2) as developed by the Court's staff. Before
determining whether the proposals should be adopted, changed before adoption, or
rejected, this notice is given to afford interested persons the opportunity to comment on
the form or the merits of the proposals, or to suggest alternatives. The Court welcomes
the views of all. This matter will be considered at a public hearing. The notices and
agendas for public hearings are posted on the Court's website at
www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on
the subject, nor does it imply probable adoption of the proposal in its present form.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
CHAPTER 2
Civil Procedure
Rule 2.511 Impaneling the Jury
(A) Selection of Jurors.
(1) Persons who have not been discharged or excused as prospective jurors by
the court are subject to selection for the action or actions to be tried during their term of
service as provided by law.
(2) In an action that is to be tried before a jury, the names or corresponding
numbers of the prospective jurors shall be deposited in a container, and the prospective
jurors must be selected for examination by a random blind draw from the container.
(3) The court may provide for random selection of prospective jurors for
examination from less than all of the prospective jurors not discharged or excused.
(4) Prospective jurors may be selected by any other fair and impartial method
directed by the court or agreed to by the parties.
(B) Alternate Jurors. The court may direct that 7 or more jurors be impaneled to sit.
After the instructions to the jury have been given and the action is ready to be submitted,
unless the parties have stipulated that all the jurors may deliberate, 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.
(C) Examination of Jurors. The court may conduct the examination of prospective
jurors or may permit the attorneys to do so.
(D) Challenges for Cause. The parties may challenge jurors for cause, and the court
shall rule on each challenge. A juror challenged for cause may be directed to answer
questions pertinent to the inquiry. It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror;
[(2) has been convicted of a felony;
(3)](2) is biased for or against a party or attorney;
[(4)](3) shows a state of mind that will prevent the person from
rendering a just verdict, or has formed a positive opinion on the facts of the case or on
what the outcome should be;
[(5)](4) has opinions or conscientious scruples that would
improperly influence the person's verdict;
[(6)](5) has been subpoenaed as a witness in the action;
[(7)](6) has already sat on a trial of the same issue;
[(8)](7) has served as a grand or petit juror in a criminal case
based on the same transaction;
[(9)](8) is related within the ninth degree (civil law) of
consanguinity or affinity to one of the parties or attorneys;
[(10)](9) is the guardian, conservator, ward, landlord, tenant,
employer, employee, partner, or client of a party or attorney;
[(11)](10) is or has been a party adverse to the challenging party
or attorney in a civil action, or has complained of or has been accused by that party in a
criminal prosecution;
[(12)](11) has a financial interest other than that of a taxpayer in
the outcome of the action;
[(13)](12) is interested in a question like the issue to be tried.
Exemption from jury service is the privilege of the person exempt, not a ground
for challenge.
(E) Peremptory Challenges.
(1) A juror peremptorily challenged is excused without cause.
(2) Each party may peremptorily challenge three jurors. Two or more parties
on the same side are considered a single party for purposes of peremptory challenges.
However, when multiple parties having adverse interests are aligned on the same side,
three peremptory challenges are allowed to each party represented by a different attorney,
and the court may allow the opposite side a total number of peremptory challenges not
exceeding the total number of peremptory challenges allowed to the multiple parties.
(3) Peremptory challenges must be exercised in the following manner:
(a) First the plaintiff and then the defendant may exercise one or more
peremptory challenges until each party successively waives further peremptory
challenges or all the challenges have been exercised, at which point jury selection is
complete.
(b) A "pass" is not counted as a challenge but is a waiver of further
challenge to the panel as constituted at that time.
(c) If a party has exhausted all peremptory challenges and another party
has remaining challenges, that party may continue to exercise his or her remaining
peremptory challenges until they are exhausted.
(F) Replacement of Challenged Jurors. After the jurors have been seated in the jurors'
box and a challenge for cause is sustained or a peremptory challenge or
challenges exercised, another juror or other jurors must be selected and
examined before further challenges are made. [This juror is] Such jurors
are subject to challenge as are other jurors.
(G) Oath of Jurors. The jury must be sworn by the clerk substantially as follows:
"Each of you do solemnly swear (or affirm) that, in this action now before the court, you
will justly decide the questions submitted to you, that, unless you are discharged by the
court from further deliberation, you will render a true verdict, and that you will render
your verdict only on the evidence introduced and in accordance with the instructions of
the court, so help you God."
CHAPTER 6
Criminal Procedure
Rule 6.001 Scope; Applicability of Civil Rules; Superseded Rules and Statutes
(A) Felony Cases. The rules in subchapters 6.000-6.500 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, 6.006, 6.106, 6.125, 6.427, 6.445,
and the rules in subchapters 6.600-6.800 govern matters of procedure in criminal cases
cognizable in the district courts.
(C) Juvenile Cases. 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[; MSA 28.860(6)].
(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, or
(3) when a statute or court rule provides a like or different procedure.
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 6.004 Speedy Trial
(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.
(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 [6 months]
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
[6 month] 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)[; MSA 28.969(1)(2), the prosecutor must
make a good faith effort to bring a criminal charge]
the inmate shall be brought to trial within 180 days
[of either of the following:]
[(a)] [the time from which the prosecutor knows
that the person charged with the offense is incarcerated in a
state prison or is detained in a local facility awaiting
incarceration in a state prison, or]
[(b)] [the time from which the Department of
Corrections knows or has reason to know that a criminal
charge is pending against a defendant incarcerated in a state
prison or detained in a local facility awaiting incarceration in
a state prison.
For purposes of this subrule, a person is charged with
a criminal offense if a warrant, complaint, or indictment has
been issued against the person.]
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 cases covered by subrule (1)(a), the defendant is
entitled to have the charge dismissed with prejudice if the prosecutor fails
to make a good faith effort to bring the charge to trial within the 180-day
period. When, in cases covered by subrule (1)(b), the prosecutor's failure to
bring the charge to trial is attributable to lack of notice from the
Department of Corrections, the defendant is entitled to sentence credit for
the period of delay. Whenever the defendant's constitutional right to a
speedy trial is violated, the defendant is entitled to dismissal of the charge
with prejudice.] 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 subsequent court
proceedings, and
(2) that the court will appoint a lawyer at public expense if the
defendant wants one and is financially unable to retain one.
The court must question the defendant to determine 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. The 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; and
(5) 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.
(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. If the court determines that the
defendant is financially unable to retain a lawyer, it must promptly appoint
a lawyer and promptly notify the lawyer of the appointment. 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.
(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 appoint 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 to appoint 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, they
may not be represented by the same lawyer or by lawyers associated in the practice of
law. [the court 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 just require.
(H)](G)Scope of Trial Lawyer's Responsibilities. The responsibilities of the
trial lawyer appointed to represent the defendant include
(1) representing the defendant in all trial court proceedings
[including] through initial sentencing[ and
proceedings leading to possible revocation of youthful trainee status],
(2) filing of interlocutory appeals the lawyer deems appropriate,
(3) responding to any preconviction appeals by the prosecutor,
(4) unless an appellate lawyer has been appointed, filing of
postconviction motions the lawyer deems appropriate, including motions
for new trial, for a directed verdict of acquittal, to withdraw plea, or for
resentencing.
([I) Plan for Appointment. In each county, the court with trial jurisdiction over felony
cases must adopt and publish a plan to govern the process of selecting and appointing
lawyers to represent indigent defendants and file it with the supreme court clerk and the
state court administrator under MCR 8.112(B)(3)].
[(J)](H) 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 appoint one for the
witness at public expense.
Rule 6.006 Video Proceedings
(A) Defendant at a Separate Location. District and circuit courts may use
two-way interactive video technology to conduct the following proceedings between a
courtroom and a prison, jail, or other location: initial arraignment on the warrant,
arraignments on the information, pretrials, pleas, sentencing for misdemeanor offenses,
show cause hearings, waivers and adjournments of extradition, referrals for forensic
determination of competency, and waivers and adjournments of preliminary
examinations.
(B) Defendant in the Courtroom. So long as the defendant is either present
in the courtroom or has waived his or her right to be present, district and circuit courts
may use two-way interactive video technology to take testimony from a person at another
location in the following proceedings:
(1) preliminary examinations, evidentiary hearings,
sentencings, probation revocation proceedings, and proceedings to revoke a
sentence that does not entail an adjudication of guilt, such as youthful
trainee status, and
[]
(2) trials, with the consent of the parties, or where the court
determines that so proceeding would not violate the rights of the defendant
to confrontation of the witnesses against him or her.
(C) Mechanics of Use. The use of two-way interactive 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 by the court in the same fashion it records proceedings that occur in the
courtroom.
Rule 6.102 Arrest on a Warrant
(A) Issuance of Warrant. A court must issue an arrest warrant, or a summons in
accordance with MCR 6.103, 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) 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.
(D) Warrant Specification of Interim Bail. Where permitted by law, the
[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.
(E) 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.
(F) 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.
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).
(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 rule 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)[; MSA 28.860(3)].
(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 court will appoint a lawyer for the accused;
(3) advise the accused of the right to a lawyer at all subsequent court
proceedings and, if appropriate, appoint a lawyer;
(4) set a date within the next 14 days for the accused's preliminary
examination and inform the accused of the date;
(5) determine what form of pretrial release, if any, is appropriate; and
(6) ensure that the accused has been fingerprinted 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 6.106 Pretrial Release
(A) In General. At the defendant's first appearance before a court, 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.
(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) satisfy any injunctive order made a condition of
release; or
(n) 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.
(o) comply with any provisions limiting or
prohibiting contact with any other person. If an order under
this paragraph limiting or prohibiting contact with any other
person is in conflict with another court order, the order under
this paragraph shall take precedence over the other court
order until the conflict is resolved.
(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 a bond that, at the defendant's option, is executed
(i) by a surety approved by the court, or
(ii) by the defendant, or by another who is not a
licensed surety, and secured by
[A] a cash deposit, or its equivalent, for the
full bond amount, or
[B] a cash deposit of 10 percent of the bond
amount, or, with the court's consent,
[C] designated real property; or
(b) post a bond that, at the defendant's option, is executed
(i) by a surety approved by the court, or
(ii) by the defendant, or by another who is not a
licensed surety, and secured by
[A] a cash deposit, or its equivalent, for the
full bond 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 [the
defendant requests a custody hearing] 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 bond, and return the cash (or its equivalent) posted
in the full amount of a bond, or, if there has been a deposit of
10 percent of the bond 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 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 bond has been ordered, to anyone
who posted bond.
(b) If the defendant does not appear and surrender to the
court within 28 days after the revocation date or does not
within the period satisfy the court that there was compliance
with the conditions of release 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 and anyone
who posted bond for the entire amount of the bond and costs
of the court proceedings.
(c) The 10 percent bond 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 or recorder's 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 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[, or, if the grand jury convened on the order of the Recorder's
Court for the City of Detroit, then to the chief judge of that court].
(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 him or her 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 6.110 The Preliminary Examination
(A) Right to Preliminary Examination. Where a preliminary examination is
permitted by law, the [The] people and the defendant are entitled to a prompt
preliminary examination. If the court permits the defendant to waive the preliminary
examination, it must bind the defendant over for trial on the charge set forth in the
complaint or [indictment] any amended complaint.
(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
[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)] [The issues whether the preliminary examination was
timely held or the requisite record showing for delay was made must be
raised, if at all, in a written or oral motion no later than immediately before
the commencement of the preliminary examination. To challenge the denial
of a timely motion, the defendant must before the trial either file a timely
application for leave to appeal with the trial court or, within 21 days after
the filing of the information in the trial court, file a motion to dismiss in the
trial court. If relief is denied by the trial court, a defendant who wishes to
obtain further review must file a timely application with the Court of
Appeals, and, if relief is denied by the Court of Appeals, a further timely
application with the Supreme Court. A defendant may not after conviction
seek relief on the basis of a violation of subrule (B)(1).]
(C) Conduct of Examination. Each party may subpoena witnesses, offer proofs, and
examine and cross-examine witnesses at the preliminary examination. [Except as
otherwise provided by law, the court must conduct the examination in accordance with
the rules of evidence]. A verbatim record must be made of the preliminary
examination.
(D) Exclusionary Rules. Objections to evidence on the ground that it was
acquired by unlawful means are not properly made at the preliminary examination.
[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
(1)] [a prior evidentiary hearing, or]
[(2)] [a prior evidentiary hearing supplemented with a hearing
before the trial court, or]
[(3)] [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. 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. 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 Pleas of Guilty or Nolo Contendere at Preliminary
Examination
(A) If the defendant, the defense attorney, and the prosecutor consent on
the record, a plea of guilty or nolo contendere may be taken by a district judge in criminal
cases cognizable in the circuit court after bindover immediately following the conclusion
or waiver of a preliminary examination. Following a plea, the case shall be transferred to
the court with trial jurisdiction over the case.
(B) Pleas taken pursuant to this rule shall be taken in conformity with
MCR 6.301 and 6.302, and, once taken, shall be governed by MCR 6.310 and 6.311.
(C) Each court intending to utilize this rule shall submit a Local
Administrative Order to the State Court Administrator pursuant to MCR 8.112(B) to
implement the rule.
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 [may be] is returned and filed without preliminary
examination. When this occurs, the indictment [may substitute for the complaint
and] 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[; MSA 28.985,] 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 [must be attached to the information] of all witnesses
known to the prosecutor who might 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[; MSA 28.1085] must list the prior
convictions that may be relied upon for purposes of sentence enhancement. The notice
must be filed within 21 days after the [defendant is arraigned or has waived
arraignment on the information charging the underlying felony, or before trial begins, if
the defendant is tried within the 21-day period] defendant's arraignment on the
information charging the underlying offense or, if arraignment is waived, 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. This provision does not apply to the untimely filing
of a notice of intent to seek an enhanced sentence.
(H) Amendment of Information. The court before, during, or after trial may permit the
prosecutor to amend the information 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. Unless the defendant pleads
guilty at the arraignment or the parties otherwise agree, the court must order the court
reporter to transcribe and file the record of the preliminary examination. The order must
also provide for the payment of the reporter's fees.
]
(D) 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 arraignments for defendants represented by an attorney, provided other
arrangements are made to give the defendant a copy of the information.
Rule 6.201 Discovery
(A) Mandatory Disclosure. In addition to disclosures required by provisions of law
other than MCL 767.94a[; MSA 28.1023(194a)], a party upon request must
provide all other parties:
(1) the names and addresses of all lay and expert witnesses whom the
party [intends to] 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 pertaining to the case by
a lay witness whom the party [intends to] may call at trial,
except that a defendant is not obliged to provide the defendant's own
statement;
[(3)] [any report of any kind produced by or for an expert witness
whom the party intends to call at trial;]
(3) if a party may call an expert, a curriculum vitae 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 [intends to] may use
at trial to impeach a witness;
[(5)] [any document, photograph, or other paper that the party
intends to introduce at trial; and]
(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 [intends to] may introduce at
trial, including any document, photograph, or other paper, copies to be
provided on request. A party may request a hearing regarding any question
of costs of reproduction. On good cause shown, the court may order
that a party be given the opportunity to test without destruction
[such] 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 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] 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] 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] 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 [7] 21
days of a request under this rule and a defendant must comply with the requirements of
this rule within [14] 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 [that testimony or evidence be excluded, or may order another remedy]
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. Wilful 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.
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 [the] 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;
(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 tried by the court without a jury, if the
defendant chooses and the prosecutor and court consent;]
[(c)](b) to be presumed innocent until
proved guilty;
[(d)](c) to have the prosecutor prove beyond
a reasonable doubt that the defendant is guilty;
[(e)](d) to have the witnesses against the
defendant appear at the trial;
[(f)](e) to question the witnesses against the
defendant;
[(g)](f) to have the court order any
witnesses the defendant has for the defense to appear at the
trial;
[(h)](g) to remain silent during the trial;
[(i)](h) to not have that silence used against
the defendant; and
[(j)](i) to testify at the trial if the defendant
wants to testify.
The requirements of this section may be satisfied by a writing on a
form approved by the State Court Administrator. If a court uses a writing,
the court shall address the defendant and obtain from him or her 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.
(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; and
(5) any appeal from the conviction and sentence pursuant to the plea
will be by application for leave to appeal and not by right, and
defendant will not necessarily have counsel appointed to prepare the
application.
[(6)] [if the plea is accepted, the defendant is not entitled to
have counsel appointed at public expense to assist in filing an application
for leave to appeal or to assist with other postconviction remedies unless
the defendant is financially unable to retain counsel and
(a)] [the defendant's sentence exceeds the
guidelines,
(b)] [the plea is a conditional plea under MCR
6.301(C)(2),
(c)] [the prosecuting attorney seeks leave to
appeal, or
(d)] [the Court of Appeals or the Supreme Court
grants leave to appeal.]
(C) A Voluntary Plea.
(1) The court must ask the prosecutor and the defendant's lawyer
whether they have made a plea agreement.
(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 specific sentence disposition 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 the sentence agreed to or recommended by the
prosecutor; 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 the sentence disposition or
recommendation agreed to by the prosecutor, and that if the
court chooses not to follow it, the defendant will be allowed
to withdraw from the plea agreement.
(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[, but not insane,] 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 [of] 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) a reasonable doubt exists about the defendant's legal sanity at
the time of the offense.] 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 [Before Acceptance or Sentence
]
(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. [On]
After acceptance but before sentence,
(1) a plea may be withdrawn on the defendant's motion
or with the defendant's consent[, the court] only in the
interest of justice, [may permit an accepted plea to be withdrawn before
sentence is imposed unless] 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 [MCR 6.311(B)]
subrule (C).
(2) the defendant is entitled to withdraw the plea if
(a) the plea involves a prosecutorial sentence
recommendation or agreement for a specific sentence, and the
court states that it is unable to follow the agreement or
recommendation; 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.
(C) Motion to Withdraw Plea After Sentence. The defendant may file a
motion to withdraw the plea within 6 months after sentence. Thereafter, the defendant
may seek relief only in accordance with the procedure set forth in subchapter 6.500. 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 6.311] [Challenging Plea After Sentence
(A)] [Motion to Withdraw Plea. The defendant may file a motion to
withdraw the plea within the time for filing an application for leave to appeal. After the
time for filing an application for leave, the defendant may seek relief in accordance with
the procedure set forth in subchapter 6.500.]
[
(B)] [Remedy. 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.
(C)] [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.
]
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 [had] been arraigned or waived an arraignment on the
information, or, in a court where arraignment on the information has been eliminated
under rule 6.113(D), 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 [trial] tried by the court. A verbatim record must be made of the
waiver proceeding.
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 conduct the examination of
prospective jurors or permit the lawyers to do so. If the court conducts the examination, it
may permit the lawyers to supplement the examination by direct questioning or by
submitting questions for the court to ask. 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) Instructions and] Oath After Selection. After the jury is selected and
before trial begins, the court must have the jurors sworn[ and should give them
appropriate pretrial instructions].
Rule 6.414 Conduct of Jury Trial
(A) Before trial begins, the court should give the jury appropriate pretrial
instructions.
[(A)](B) Court's Responsibility. The trial court must control the
proceedings during trial, limit the evidence and arguments to relevant and proper matters,
and take appropriate steps to ensure that the jurors will not be exposed to information or
influences that might affect their ability to render an impartial verdict on the evidence
presented in court. The court may not communicate with the jury or any juror pertaining
to the case without notifying the parties and permitting them to be present. The court
must ensure that all communications pertaining to the case between the court and the jury
or any juror are made a part of the record.
[(B)](C) Opening Statements. Unless the parties and the court agree
otherwise, the prosecutor, before presenting evidence, must make a full and fair
statement of the prosecutor's case and the facts the prosecutor intends to prove.
Immediately thereafter, or immediately before presenting evidence, the defendant may
make a like statement. The court may impose reasonable time limits on the
opening statements.
[(C)](D) Note Taking by Jurors. The court may permit the jurors to
take notes regarding the evidence presented in court. If the court permits note taking, it
must instruct the jurors that they need not take notes and that they should not permit note
taking to interfere with their attentiveness. The court also must instruct the jurors
[both] to keep their notes confidential except as to other jurors during
deliberations [and to destroy their notes when the trial is concluded].
The court may, but need not, allow jurors to take their notes into deliberations. If the
court decides not to permit the jurors to take their notes into deliberations, the court must
so inform the jurors at the same time it permits the note taking. The court shall ensure
that all juror notes are collected and destroyed when the trial is concluded.
(E) Juror Questions. The court may, in its discretion, permit the jurors to
ask questions of witnesses. If the court permits jurors to ask questions, it must employ a
procedure that ensures that inappropriate questions are not asked, and that the parties
have the opportunity to object to the questions.
[(D)](F) View. The court may order a jury view of property or of a
place where a material event occurred. The parties are entitled to be present at the jury
view. During the view, no persons other than, as permitted by the trial judge,
the officer[ designated by the court] in charge of the jurors, or any person
appointed by the court to direct the jurors' attention to a particular place or site, and the
trial judge, may speak to the jury concerning a subject connected with the trial; any
such communication must be recorded in some fashion.
[(E)](G) Closing Arguments. After the close of all the evidence, the
parties may make closing arguments. The prosecutor is entitled to make the first closing
argument. If the defendant makes an argument, the prosecutor may offer a rebuttal
limited to the issues raised in the defendant's argument. The court may impose reasonable
time limits on the closing arguments.
[(F)](H) Instructions to the Jury. Before closing arguments, the court
must give the parties a reasonable opportunity to submit written requests for jury
instructions. Each party must serve a copy of the written requests on all other parties. The
court must inform the parties of its proposed action on the requests before their closing
arguments. After closing arguments are made or waived, the court must instruct the jury
as required and appropriate, but [with the parties' consent] at the discretion
of the court, and on notice to the parties, the court may instruct the jury before the
parties make closing arguments, and give any appropriate further instructions after
argument. After jury deliberations begin, the court may give additional instructions
that are appropriate.
[(G)](I) Materials in Jury Room. The court may permit the jury, on
retiring to deliberate, to take into the jury room a writing, other than the charging
document, setting forth the elements of the charges against the defendant and any
exhibits and writings admitted into evidence. On the request of a party or on its own
initiative, the court may provide the jury with a full set of written instructions, a full set
of electronically recorded instructions, or a partial set of written or recorded instructions
if the jury asks for clarification or restatement of a particular instruction or instructions or
if the parties agree that a partial set may be provided and agree on the portions to be
provided. If it does so, the court must ensure that such instructions are made a part of the
record.
[(H)](J) Review of Evidence. If, after beginning deliberation, the jury
requests a review of certain testimony or evidence, the court must exercise its discretion
to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable
request. The court may order the jury to deliberate further without the requested review,
so long as the possibility of having the testimony or evidence reviewed at a later time is
not foreclosed.
Rule 6.419 Motion for Directed Verdict of Acquittal
(A) Before Submission to Jury. After the prosecutor has rested the prosecution's
[case in chief] case-in-chief and before the defendant presents proofs,
the court on its own initiative may, or on the defendant's motion must, direct a verdict of
acquittal on any charged offense as to which the evidence is insufficient to support
conviction. The court may not reserve decision on the defendant's motion. If the
defendant's motion is made after the defendant presents proofs, the court may reserve
decision on the motion, submit the case to the jury, and decide the motion before or after
the jury has completed its deliberations.
(B) 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.
(C) Bench Trial. In an action tried without a jury, after the presentation of
the plaintiff's evidence, 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.
[(C)](D) 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.
[(D)](E) 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.
Rule 6.420 Verdict
(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.
[(C)](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. 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:
(1) a description of the defendant's prior criminal convictions and juvenile
adjudications,
(2) a complete description of the offense and the circumstances surrounding it,
(3) a brief description of the defendant's vocational background and work
history, including military record and present employment status,
(4) a brief social history of the defendant, including marital status, financial
status, length of residence in the community, educational background, and other pertinent
data,
(5) the defendant's medical history, substance abuse history, if any, and, if
indicated, a current psychological or psychiatric report,
(6) information concerning the financial, social, psychological, or physical
harm suffered by any victim of the offense, including the restitution needs of the victim,
(7) if provided and requested by the victim, a written victim's impact statement
as provided by law,
(8) any statement the defendant wishes to make,
(9) a statement prepared by the prosecutor on the applicability of any
consecutive sentencing provision,
(10) an evaluation of and prognosis for the defendant's adjustment in the
community based on factual information in the report,
(11) a specific recommendation for disposition, and
(12) any other information that may aid the court in sentencing.
Regardless of the sentence imposed, the court must have a copy of the presentence report
and of any psychiatric report sent to the Department of Corrections. If the defendant is
sentenced to prison, the copies must be sent with the commitment papers.
(B) Presentence Report; Disclosure Before Sentencing. The court must provide
copies of the presentence report to [permit] the prosecutor[,]
and the defendant's lawyer, or the defendant if not represented by a
lawyer, [and the defendant to review the presentence report] at a reasonable
time before the day of sentencing. 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) Presentence Report; Disclosure After Sentencing. After sentencing, the court, on
written request, must provide the prosecutor, the defendant's lawyer, or the defendant not
represented by a lawyer, with a copy of the presentence report and any attachments to it.
The court must exempt from disclosure any information the sentencing court exempted
from disclosure pursuant to subrule (B).
(D) [Imposition of Sentence.
(1)] Sentencing Guidelines. The court must use the sentencing
guidelines, as provided by law. Proposed scoring of the guidelines shall accompany
the presentence report. Not later than the date of sentencing, the court must complete
a sentencing information report on a form to be prescribed by and returned to the
State Court Administrator [state court administrator].
(E) [(2)]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[, complying on the record,] 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)(3)](E)(2),
(c) give the defendant, the defendant's lawyer, the prosecutor, and the
victim an opportunity to advise the court of any circumstances they believe the court
should consider in imposing sentence,
(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 its reasons for departure [imposing the sentence given], and
(f) [if a victim of the crime has suffered harm and the court does not
order restitution as provided by law or orders only partial restitution, state the reasons for
its action] order that the defendant 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.
[(3)](2) Resolution of Challenges. 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 or
determines that it will not take the challenged information into account in sentencing, it
must direct the probation officer to
(a) correct or delete the challenged information in the report, whichever is
appropriate, and
(b) provide defendant's lawyer with an opportunity to review the
corrected report before it is sent to the Department of Corrections.
[(E)](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 made within 42 days after
sentencing or it may be denied as untimely.
(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] If the defendant is financially unable to retain a
lawyer, the court must advise the defendant of the right to appointed counsel
[appoint a lawyer] to represent the defendant on appeal if
(i) the defendant's sentence exceeds the upper limit of the
minimum sentence range of the applicable sentencing guidelines,
(ii) the defendant seeks leave to appeal a conditional plea under
MCR 6.301(C)(2),
(iii) the prosecuting attorney seeks leave to appeal, or
(iv) the Court of Appeals or the Supreme Court grants the
defendant's application for leave to appeal.
(c) If the defendant is financially unable to retain a lawyer, the court, in
its discretion, may appoint a lawyer to represent the defendant on appeal if all the
following apply:
(i) the defendant seeks leave to appeal on the basis of an alleged
improper scoring of an offense variable or a prior record variable,
(ii) the defendant objected to the scoring or otherwise preserved
the matter for appeal, and
(iii) the sentence constitutes an upward departure from the upper
limit of the minimum sentence range that the defendant alleges should have been scored;
and
(d) the request for a lawyer must be made within 42 days after
sentencing or it may be denied for untimeliness, unless the entitlement to
counsel arises under (b)(iii) or (iv).
[With regard to paragraphs (b) and (c), the court is required to give only the
advice that is applicable to the particular circumstances.]
Upon sentencing, the court shall give the defendant a form developed by the State
Court Administrative Office that the defendant may complete and file as an application
for leave to appeal.
(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
returned to the court within 42 days after sentencing if the defendant wants the court to
appoint a lawyer. The 42-day time limit does not apply if the entitlement to counsel arises
under subrule (2)(b)(iii) or (iv).
[(4)] [When imposing sentence in a case in which sentencing
guidelines enacted in 1998 PA 317, MCL 777.1 et seq.; MSA 28.1274(11), 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.
(F)](G) Appointment of Lawyer; Trial Court Responsibilities in
Connection with Appeal.
(1) Appointment of Lawyer.
(a) Unless there is a postjudgment motion pending, the court must rule
on a defendant's request for a lawyer within 14 days after receiving it. If there is a
postjudgment motion pending, the court must rule on the request after the court's
disposition of the pending motion and within 14 days after that disposition.
(b) In a case involving a conviction following a trial, if the defendant is
indigent, the court must enter an order appointing a lawyer if the request is filed within
42 days after sentencing or 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.
(c) In a case involving a conviction following a plea of guilty
or nolo contendere, see subrule (F)(2).
[(c)](d) Scope of Appellate Lawyer's Responsibilities.
The responsibilities of the appellate lawyer appointed to represent the defendant include
representing the defendant
(i) in available postconviction proceedings in the trial court the
lawyer deems appropriate,
(ii) in postconviction proceedings in the Court of Appeals,
(iii) in available proceedings in the trial court the lawyer deems
appropriate under MCR 7.208(B) or 7.211(C)(1), and
(iv) as appellee in relation to any postconviction appeal taken by
the prosecutor.
(2) Order to Prepare Transcript. The appointment order also must
(a) direct the court reporter to prepare and file, within the time limits
specified in MCR 7.210,
(i) the trial or plea proceeding transcript,
(ii) the sentencing transcript, and
(iii) such transcripts of other proceedings, not previously
transcribed, that the court directs or the parties request, and
(b) provide for the payment of the reporter's fees.
The court must promptly serve a copy of the order on the prosecutor,
the defendant, the appointed lawyer, the court reporter, and the Michigan Appellate
Assigned Counsel System.
(3) Order as Claim of Appeal; Trial Cases. In a case involving a conviction
following a trial, if the defendant's request for a lawyer, timely or not, was made within
the time for filing a claim of appeal, the order described in (F)(1) and (2) must be entered
on a form approved by the State Court [Administrator's] Administrative
Office, entitled "Claim of Appeal and Appointment of Counsel," and the court must
immediately send to the Court of Appeals a copy of the order and a copy of the judgment
being appealed. The court also must file in the Court of Appeals proof of having made
service of the order as required in subrule (F)(2). 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.
Rule 6.427 Judgment
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; and
(10) whether the conviction is reportable to the Secretary of State pursuant to
[MCL 257.732; MSA 9.2432] statute, and, if so, the defendant's
Michigan driver's license number.
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 Reissuance of Judgment.
If the defendant did not appeal within the time allowed by MCR 7.204(A)(2) and
demonstrates that the attorney or attorneys retained or appointed to represent him or her
on direct appeal from the judgment either disregarded the defendant's instruction to
perfect a timely appeal of right, or otherwise failed to provide effective assistance, and,
but for counsel's deficient performance, the defendant would have perfected a timely
appeal of right, the trial court shall issue an order restarting the time in which to file an
appeal of right.
Rule 6.429 Correction and Appeal of Sentence
(A) Authority to Modify Sentence. The court may correct an invalid sentence, but the
court may not modify a valid sentence after it has been imposed except as provided by
law.
(B) Time for Filing Motion.
(1) A motion [for resentencing] to correct an invalid sentence
may be filed by either party within 42 days after entry of the judgment.
(2) If a claim of appeal has been filed, a motion [for resentencing]
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 fails to file a timely claim of appeal, the defendant may file
a motion [for resentencing] to correct an invalid sentence within [the
time for filing an application for leave to appeal] 6 months of entry of the
judgment of conviction and sentence.
(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 Presentence Report and Sentencing Guidelines.
A party may not raise on appeal an issue challenging the accuracy of the presentence
report or the scoring of the sentencing guidelines unless the party has raised the issue at
or before sentencing, in a proper motion for resentencing, or in a proper motion to
remand filed in the court of appeals [or demonstrates that the challenge was
brought as soon as the inaccuracy could reasonably have been discovered]. Any
other challenge may be brought only by motion for relief from judgment under
subchapter 6.500.
Rule 6.431 New Trial
(A) Time for Making Motion.
(1) A motion for a new trial may be filed within 42 days after entry of the
judgment, or if counsel is appointed following a timely request for counsel, within
42 days after the appointment of counsel.
(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 fails to file a timely claim of appeal, the
defendant may file a motion for a new trial within the time for filing an application for
leave to appeal.]
[(4)](3) 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(F)(2), 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] why 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, on order of the court 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] why 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, the clerk,
on order of the court, must provide the defendant with copies of such materials
without cost to the defendant.
(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 6.440 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]
his or her 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 6.445 Probation Revocation
(A) Issuance of Summons; Warrant. 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 6.103(B) and (C) 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, 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. [With the consent of the court that granted probation, the]
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 of the maximum possible prison sentence
for the offense,
[(1)](2) 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)](3) advise the probationer of the maximum possible jail or
prison sentence for the offense,
[(3)](4) ascertain that the plea is understandingly, voluntarily,
and knowingly made, and
[(4)](5) establish factual support for a finding that the
probationer is guilty of the alleged violation.
(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. The court may not sentence the
probationer to prison without having considered a current presentence report and having
complied with the provisions set forth in MCR 6.425(B), ([D)(2)]
(E)(1), and [(D)(3)] (E)(2).
(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 conviction occurred at a
contested hearing, or
(b) the probationer is entitled to file an application for leave to appeal, if
the conviction was the result of a plea of guilty.
(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 6.501 Scope of Subchapter
(A) Subchapter Not Applicable to Persons Not In Custody. A judgment of
conviction and sentence entered by the circuit court or the Recorder's Court for the City
of Detroit may be reviewed under this chapter only if the person filing the motion is in
custody pursuant to the judgment under which relief is sought.
(B) Subchapter Not Applicable to Judgments Still Subject to Appellate
Review. A judgment of conviction and sentence entered by the circuit court or the
Recorder's Court for the City of Detroit still subject to appellate review under
subchapters 7.200 or 7.300 may not be reviewed under this subchapter.
(C) Subchapter Only Method of Review For Judgments Not Subject to
Appellate Review. Unless otherwise specified by these rules, a judgment of
conviction and sentence entered by the circuit court or the Recorder's Court for the City
of Detroit not subject to appellate review under subchapters 7.200 or 7.300 may be
reviewed only in accordance with the provisions of this subchapter.
(D) Consideration of Mislabeled Requests for Relief. A motion or other
pleading seeking relief from the trial court from a judgment of conviction and sentence
not subject to appellate review under subchapters 7.200 or 7.300 but not captioned as a
motion brought under this subchapter shall be considered by the trial court as having
been filed under 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 2.114.
Except as otherwise ordered by the court, the combined length of the
motion and any memorandum of law in support may not exceed 25 pages
double spaced, exclusive of attachments and exhibits. An expansion of the
pages permitted shall apply also to any answer ordered by the court.
The motion must be substantially in the form approved by the State Court
Administrator, 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 does not substantially comply with the
requirements of these rules, the court may direct that it be returned to the defendant with
a statement of the reasons for its return. 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[, or memorandum of law] 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. The court shall return without
filing any successive motions for relief from judgment. A defendant may
not appeal the denial or rejection of a successive motion.]
[(2)] [A defendant may file a second or subsequent motion based on a
retroactive change in law that occurred after the first motion for relief from judgment or a
claim of new evidence that was not discovered before the first such motion. The clerk
shall refer a successive motion that asserts that one of these exceptions is applicable to
the judge to whom the case is assigned for a determination whether the motion is within
one of the exceptions.
]
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[, together with two copies,] 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 [clerk] 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 re-assignment 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 [and direct
further proceedings as to others] while directing a response or
further proceedings to 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 6.506 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 25 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 6.508 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 unless
[if] the motion establishes
(1) with regard to a conviction following a trial, the
probability of a different result on retrial because of
(a) a fully retroactive change in the law; or
(b) an irregularity so offensive as to seriously
affect the fundamental fairness, integrity, or public reputation
of judicial proceedings; or
(2) in any case,
(a) that by clear and convincing evidence not presented at any
previous proceeding, taken together with all the evidence, the defendant is actually
innocent; or
(b) that the sentence imposed on the defendant exceeded that
authorized by law.
[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;
(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, but for the alleged error, the defendant
would have had a reasonably likely chance of
acquittal;]
[(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) Time Limitation.
(1) If brought under subsection (D)(1), the motion must be filed
within 1 year
(a) after the fully retroactive change in the law
is established when relief is sought under subsection
(D)(1)(a);
--
(b) after the judgment of conviction is final
when relief is sought under subsection (D)(1)(b), unless the
facts on which the claim is predicated were unknown to the
defendant and could not have been discovered earlier with
due diligence, in which case the claim must be brought within
1 year of the discovery of these facts.
(2) If brought under subsection (D)(2), the
motion must be filed within 1 year
(a) of the discovery of the new evidence, or the discovery of
the significance of existing evidence, when relief is sought under subsection
(D)(2)(a);
(b) after the judgment of conviction is final when relief is
sought under subsection (D)(2)(b).
(F) Restoration of Appeal by Right. If the motion seeks a renewed
opportunity for an appeal of right from a judgment of conviction and sentence that the
defendant did not appeal within the time allowed by MCR 7.204(A)(2) and demonstrates
that the attorney or attorneys retained or appointed to represent the defendant on direct
appeal from the judgment either
(1) disregarded the defendant's instruction to perfect a timely
appeal of right; or
(2) otherwise failed to provide effective assistance and, but
for counsel's deficient performance, the defendant would have perfected a
timely appeal of right,
the trial court shall issue an order restarting the time in which to file an appeal of
right.
[(E)](G) 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.
Rule 6.509 Appeal
(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. The 12-
month time limit provided by MCR 7.205(F)(3)[,] 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 Prosecuting Attorney. If the motion for relief from
judgment was summarily dismissed without order for response by the prosecutor, relief
may not be granted by an appellate court unless it first directs a response to the
application be filed by the prosecuting attorney.
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, [or] 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, he or she 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 and to a
trial;
(ii) (if subrule [D][2] applies) to an
appointed attorney; and
(iii) [(unless he or she is charged under an ordinance that does
not correspond to a criminal statute or permit a jail sentence)] 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
[
(a)] 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.[]
[(b)] [the court determines that it might sentence the
defendant to jail.]
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.
(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) Pleas of Guilty and No Contest. Before accepting a plea of guilty or no contest 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 him or her, shall establish support for a finding
that defendant is guilty of the offense charged or the offense
to which he or she is pleading, or
(b) if the defendant pleads nolo contendere, the court shall
not question him or her about his or her 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
[(a)] the offense charged requires on conviction a
minimum term in jail, [or]
[(b)] [the court determines that it might sentence
the defendant to jail,] the court shall inform the defendant
that if the defendant is indigent he or she 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.
[
A subsequent charge or sentence may not be enhanced because of this
conviction unless a defendant who is entitled to appointed counsel is
represented by an attorney or waives the right to an attorney.]
(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 he or she will not have a
trial of any kind and that he or she gives up the following
rights that he or she would have at trial:
(i) the right to have witnesses called for his
or her defense at trial,
(ii) the right to cross-examine all witnesses
called against him or her,
(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 his or her 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.
If the court uses a writing pursuant to subrule (E)(4)(b) or (c), the court
shall address the defendant and obtain from him or her 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.
[(6)](7) A plea of guilty or no contest 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 he or she 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 no contest;
(b) the defendant acknowledges guilt or no contest, in
a writing to be placed in the district court file,
[the] [court notifies] [the defendant]
and waives in writing[, in advance of a plea, of
the following:
(i)] [the sentence to be imposed in
the particular case, and]
[
(ii)] the rights enumerated in subrule
(3)(b); and
(c) the court is satisfied that the waiver is
voluntary [the defendant acknowledges
guilt or no contest, and the sentence to be
imposed, in a writing to be placed in the district
court file].
[(7)](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 7.103(B)(6).
(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.
[(8)](9) The [state court administrator] State Court
Administrator shall develop and approve forms to be used under
subrules (E)(4)(b) and (c) and (E)[(6)](7)(b) [and (c)].
(F) Discovery.
(1) Once a case is set for trial, a party must on request provide all
other parties:
(a) 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, and
(b) if a party may call an expert, a curriculum vitae
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.
(2) Upon request, the prosecuting attorney must provide each
defendant:
(a) any exculpatory information or evidence known to the
prosecuting attorney;
(b) any written or recorded statements by a defendant,
codefendant, or accomplice pertaining to the case, even if that person is not
a prospective witness at trial;
(c) any affidavit, warrant, and return pertaining to a
search or seizure in connection with the case.
[(F)](G) Sentencing.
(1) At the sentencing, the court shall:
(a)[(1)] require the presence of the defendant's attorney,
unless the defendant does not have one or has waived the attorney's presence;
(b)[(2)] give the defendant's attorney or, if the
defendant is not represented by an attorney, the defendant an opportunity to review the
presentence report, if any, and to advise the court of circumstances defendant believes
should be considered in imposing sentence; and
(c)[(3)] inform the defendant of credit to be given for
time served, if any.
(2) 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.
(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.
[(G)](I) Arraignment; [Circuit Court] 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) [read the complaint or warrant into the record] 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 [be released on bond]
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.
[(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.
]
[]
Rule 6.615 Misdemeanor Traffic Cases
(A) Citation; Complaint; Summons; Warrant.
(1) A misdemeanor traffic case may be begun by one of the following
procedures:
(a) Service by a law enforcement officer on the defendant
of a written citation, and the filing of the citation in the
district court.
(b) The filing of a sworn complaint in the district court
and the issuance of an arrest warrant. A citation may serve as
the sworn complaint and as the basis for a misdemeanor
warrant.
(c) Other special procedures authorized by statute.
(2) The citation serves as a summons to command
(a) the initial appearance of the defendant; and
(b) a response from the defendant as to his or her guilt of the
violation alleged.
[
(3)] [A single citation may not allege both a misdemeanor and a
civil infraction.]
(B) Appearances; Failure to Appear. If a defendant fails to appear or otherwise to
respond to any matter pending relative to a misdemeanor traffic citation, the court shall
proceed as provided in this subrule.
(1) If the defendant is a Michigan resident, the court
(a) must initiate the procedures required by MCL
257.321a[; MSA 9.2021(1)] for the failure to answer
a citation; and
(b) may issue a warrant for the defendant's arrest [after
a sworn complaint is filed with the court].
(2) If the defendant is not a Michigan resident,
(a) the court may mail a notice to appear to the defendant
at the address in the citation;
(b) the court may issue a warrant for the defendant's
[arrest after a sworn complaint is filed with the court];
and
(c) if the court has received the driver's license of a
nonresident, pursuant to statute, it may retain the license as
allowed by statute. The court need not retain the license past
its expiration date.
(C) Arraignment. An arraignment in a misdemeanor traffic case may be conducted by
(1) a judge, or
(2) a district court magistrate as authorized by statute and by the judges
of the district.
(D) Contested Cases.
(1) A contested case may not be heard until a citation is filed with the
court. If the citation is filed electronically, the court may decline to hear the
matter until the citation is signed by the officer or official who issued it,
and is filed on paper. A citation that is not signed and filed on paper, when
required by the court, [will] may be dismissed with
prejudice.
(2) A misdemeanor traffic case must be conducted in compliance with
the constitutional and statutory procedures and safeguards applicable to
misdemeanors cognizable by the district court.
(E) Appeal. An appeal from a misdemeanor trial is governed by subchapter 7.100.
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 [completed]
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 [party in a criminal case] defendant is
entitled to three peremptory challenges. [In a case involving two or more
jointly tried defendants, 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.
Staff Comment: On March 12, 2002, the Court appointed the Committee
on the Rules of Criminal Procedure to review the Rules to determine whether any of the
provisions should be revised. The Committee has completed its work and is
recommending numerous amendments, plus some new rules. It is the Court's conclusion
that the Committee's work merits further consideration. The work of the Committee has
been thorough and exhaustive, and the proposed amendments and new rules are
essentially in the form recommended by the Committee, although technical and stylistic
changes have been made. Additional amendments that were not recommended by the
Committee are found at Rules 6.106(D), 6.201(A), and 6.201(B). These
recommendations include the adoption of new MCR 6.106(D)(2)(o) and MCR
6.201(A)(5), and the addition of the words "and interrogation records" to MCR
6.201(B)(2).
The Court would like to draw particular attention to the Committee's
recommendation for a new MCR 6.006 concerning "Video Proceedings." In general, it
permits the use of two-way interactive video technology to conduct various proceedings
where the participants are at two different locations. While most preliminary matters can
certainly be held in the physical absence of the defendant, a potentially controversial
aspect of the rule is MCR 6.006(B)(2), which concerns conducting a trial in the absence
of the defendant, without his or her consent, "where the court determines that so
proceeding would not violate the rights of the defendant to confrontation of the witnesses
against him or her." The Committee's Comment acknowledges the confrontation clause
problem discussed in Maryland v Craig, 497 US 836; 110 S Ct 3157; 111 L Ed 2d 666
(1990), and cites examples where the Committee believes proceeding in such a fashion
may be appropriate. The Court is concerned about the confrontation clause implications
of this proposal and invites comments concerning this and any related issues.
Another issue raised by the Committee's recommendations deals with the statutory
conflict that would arise by adopting the proposed changes to MCR 6.110(B) and MCR
6.302(B)(6). Specifically, the Committee's proposal to amend MCR 6.110(B) to permit
an adjournment of the preliminary examination with the consent of the parties, conflicts
with MCL 766.7. Likewise, the Committee's proposal to amend MCR 6.302(B)(6) to
strike the language requiring that the defendant be advised at the time the plea is taken of
his or her right to appointed appellate counsel conflicts with MCL 770.3a(4). The
adoption of these rule changes might give rise to the constitutional question of whether
the rule or the statute would control under McDougall v Schanz, 461 Mich 15 (1999).
Public comment on these proposed amendments should specifically address the issue of
whether the rules or the statutes would control under McDougall.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State
Court Administrator so that they can make the notifications specified in MCR 1.201.
Comments on these proposals may be sent to the Supreme Court Clerk in writing or
electronically by May 1, 2004, at P.O. Box 30052, Lansing, MI 48909, or
MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2003-
04. Your comments and the comments of others will be posted at
www.courts.michigan.gov/supremecourt/resources/administrative/index.htm.