Order
Entered:

        November 7, 1995


94-53

Proposed Amendment of
MCR 6.201(C)

        On order of the Court, this is to advise that the Court is
considering an amendment of Rule 6.201(C) of the Michigan Court
Rules. Before determining whether the proposal should be adopted,
changed before adoption, or rejected, this notice is given to
afford any interested person the opportunity to comment on the form
or the merits of the proposal. We welcome the views of all who wish
to address the proposal or who wish to suggest alternatives.
        As whenever this Court publishes an administrative proposal
for comment, we emphasize that 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.

[The present language would be amended as indicated below.]

ICLE Editor's Note:

Rule 6.201       Discovery
(A)-(B) [Unchanged.]
(C)     Prohibited Discovery.
        (1)       Notwithstanding any other provision of
                         this rule, there is no right to discover
                         information or evidence that is protected
                         from disclosure by constitution, statute,
                         or privilege, including information or
                         evidence protected by a defendant's right
                         against self-incrimination, except as
                         provided in subrule (2).
        (2)   If a defendant demonstrates a good-faith belief,
                 grounded in articulable fact, that there is a
                 reasonable probability that records protected by
                 statutory privilege are likely to contain
                 material information necessary to the defense,
                 the trial court shall conduct an in camera
                 inspection of the records.
                 (a)     If the privilege is absolute, and the
                         privilege holder refuses to waive the
                         privilege to permit an in camera
                         inspection, the trial court shall
                         suppress the privilege holder's
                         testimony.
                 (b)     If the court is satisfied, following an
                         in camera inspection, that the records
                         reveal evidence necessary to the defense,
                         the court shall direct that the evidence
                         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 the privilege
                         holder's testimony.
                 (c)     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.
                 (d)     Regardless of whether the court
                         determines that the records should be
                         made available to the defense, the court
                         shall make written findings sufficient to
                         facilitate meaningful appellate review.
                 (e)     Materials disclosed under this rule shall
                         remain in the exclusive custody of
                         counsel for the parties, shall be used
                         only for the purpose of conducting the
                         case, and shall be subject to such other
                         terms and conditions as the court may
                         provide.
(D)-(I) [Unchanged.]

Staff Comment: Consistent with People v Stanaway, 446 Mich 643
(1994), the proposed amendment of MCR 6.201(C) would govern the in
camera inspection of confidential records protected by statutory
privilege.

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

        ________________________________________________
        Publication of this proposal does not mean that
        the Court will issue an order on the subject, nor
        does it imply probable adoption in its present
        form. Timely comments will be substantively
        considered and your assistance is appreciated 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 this
proposal may be sent to the Supreme Court clerk within 60 days
after it is published in the Michigan Bar Journal. When filing a
comment, please refer to our file No. 94-53.