COURT FOR THE COUNTY OF 
| Chapter 7: Discovery |
There are two authorities for discovery in criminal cases: (1)
Michigan Supreme Court Administrative Order No. 1994-10 provides that criminal discovery court rules prevail over conflicting statutes providing for criminal discovery.
In every case, in addition to requesting the discovery provided for by court rule, or other authority, you should think critically and creatively about what discovery you need. Where there is specific information that you need that is not provided for by court rule, submit a specific discovery motion in addition to your general discovery requests, and ask the court to order it.
Be aware also that "reciprocal" discovery, allowing prosecution access to defense information, was recently codified. MCL 767.94a; MSA 28.1023(194a). A supplement to the general discovery provisions of MCR 6.201, the statute requires defense disclosure of certain witness names and addresses, the nature of any defense to be established through witnesses, and expert witness's reports and statements.
The trial judge has the discretion to order production of your client's written confession. People v Bellanca, 20 Mich App 1 (1969), remanded 386 Mich 708 (1972). If a witness is testifying from records or documents, defense counsel has a right to examine those records or documents. People v Robinson, 41 Mich App 259 (1972). Where police conduct blood-typing tests, the results must be made available to your client upon request, where the evidence is material to guilt or innocence. People v Price, 112 Mich App 791 (1982).
In order to get discovery, your client must show that the evidence or information to be discovered is necessary to the preparation of his defense and in the interest of a fair trial. Discovery should be granted absent a more compelling showing by the prosecution of facts tending to prove that such an order would unfairly hamper the prosecution, and do a disservice to the public interest. People v Johnson, 356 Mich 619 (1959). Defendant's access to pretrial discovery should be encouraged if it will aid in determination of the truth and insure the defendant's right to a fair trial. People v Hayward, 98 Mich App 332 (1980). You must show that this evidence or information cannot be obtained any other way. Defendants are not entitled to discovery of information that can be obtained from public records. People v McIntosh, 400 Mich 1 (1977). If information can be obtained on cross-examination there is no need for disclosure. People v Maranian, 359 Mich 361 (1960).
Your client has a due process right to obtain evidence in the possession of the prosecutor if it is favorable to the accused and material to guilt or punishment. Brady v Maryland, 373 US 83; 83 SCt 1194; 10 LEd2d 215 (1963); People v Carter, 415 Mich 558 (1982). "Material" is defined as exculpatory evidence that would raise a doubt about your client's guilt. US v Agurs, 427 US 97; 96 SCt 2392; 49 LEd2d 342 (1976). The prosecutor must disclose such evidence to your client whether or not it is requested.
7-2 Discovery in Misdemeanor Cases
While the reciprocal discovery provision of
1. names and addresses of all lay/expert witnesses;
2. written/recorded statements by lay witnesses (statements made by your client are exempted);(1)
3. reports produced by/for expert witnesses the party intends to call at trial;
4. criminal records the party intends to use to impeach witnesses;
5. documents, photographs, other papers; and
6. description of and opportunity to inspect any tangible physical evidence. Where good cause can be shown, the court may order that party be given an opportunity to test such evidence without destruction.
1. any exculpatory evidence/information known to him or her;(2)
2. police reports concerning the case, except parts of the report that concern continuing investigations;
3. written/recorded statements by your client, a co-defendant or accomplice, even if they are not prospective witnesses at trial;
4. affidavits, warrants and returns pertaining to searches and seizures in connection with the case; and
5. plea agreements, grants of immunity or other agreements for testimony in connection with the case.
The prosecution has the duty as recognized in the case law to disclose:
1. any deals made with prosecution witnesses, People v Atkins, 397 Mich 163 (1976); Rovario v US, 353 US 53; 77 SCt 623; 1 LEd2d 639 (1957);
2. copies of police reports, In re Bay Prosecutor, 109 Mich App 476 (1981); City of Harbor Springs v McNabb, 150 Mich App 583 (1986); People v Denning, 140 Mich App 331 (1985);
3. witness statements, People v Walton, supra, Jencks v US, 353 US 657 (1957); People v Hayward, 98 Mich App 332 (1980);
4. juvenile, psychiatric, and social services reports of the complainant, People v Brocato, 17 Mich App 277 (1969); Warner v Mitts, 211 Mich App 557 (1995);
5. presentence reports of accomplice witnesses, People v Hooper, 157 Mich App 653 (1987);
6. the defendant's statements, People v Pace, 102 Mich App 522 (1980); People v Turner, 120 Mich App 5 (1982); and
7. the personnel files of testifying police officers, US v Henthorn, 931 F2d 29 (CA9, 1991).
The Court of Appeals held in People v Mack, 218 Mich App 359 (1996), that the prosecution must disclose criminal histories of prosecution witnesses available through the LEIN, but the Supreme Court ordered that the decision had no precedential force or effect. 455 Mich 864 (1997).
If some parts of a document are discoverable and others are not, the party must disclose the discoverable
parts and excise the remainder, but must notify the other party of the excision. The court will conduct an
in camera inspection to determine whether the excision was justifiable.
On motion and showing of good cause, the court may enter a protective order. In issuing a protective
order, courts consider the parties' interests in a fair trial, the risk to any person of harm, undue annoyance,
intimidation or threats, the risk that evidence will be fabricated, and the need for secrecy regarding the
identity of informants or law enforcement matters.
Parties must also disclose "additional information or material subject to disclosure under this rule," without
a request.
Your client has a due process right to obtain evidence in the possession of the prosecution if it is favorable to the accused and material to guilt or punishment. Brady v Maryland, 373 US 83; 83 SCt 1194; 10 LEd2d 215 (1963); People v Carter, 415 Mich 558 (1982). "Material" is defined as exculpatory evidence that would raise a doubt about your client's guilt. US v Agurs, 427 US 97; 96 SCt 2392 49 LEd2d 342 (1976). The prosecutor must disclose such evidence to your client whether or not it is requested. Evidence is also material under the Brady doctrine if it impeaches the credibility of a key government witness. US v Bagley, 473 US 667; 105 SCt 3375; 87 LEd2d 481 (1985). Whether undisclosed evidence is material must be determined on the evidence "considered collectively, not item by item." Kyles v Whitley, 514 US 419; 115 SCt 1555; 131 LEd2d 490 (1995).
Discovery is not limited to that information which is admissible at trial. The focus is on whether fundamental fairness requires access to the requested information. People v Walton, 71 MA 478 (1976).
The prosecution cannot refuse to bear the costs of copying discovery materials for an indigent defendant. People v Owens, 74 Mich App 191 (1977). An indigent defendant is also entitled to a free transcript of his prior mistrial. People v Glass, 38 Mich App 735 (1972).
There is no right to discovery of information or evidence that is protected from disclosure by constitutional or statutory privilege, including evidence protected by the right against self-incrimination. MCR 6.201(C)(1).
Any communications between attorneys and their clients, members of the clergy and the members of their churches and doctors and their patients, are privileged and confidential when those communications are necessary to enable attorneys, the clergy and doctors to serve in these capacities. MCL 767.5a(2); MSA 28.945(1). Husbands and wives cannot be examined as witnesses for or against each other, and communications made between them during the marriage are privileged. MCL 600.2162; MSA 27A.2162. This privilege applies to communications between former spouses during the marriage. MCL 600.2162(2); MSA 27A.2162(2). There are certain circumstances when they can testify for and against each other, and when their communications are not privileged. MCL 600.2162(l)(a)-(g); MSA 27A.2162(l)(a)-(g). The records of psychologists, MCL 330.1750; MSA 14.800(750), sexual assault counselors, MCL 600.2157(a); MSA 27A.2157(1), social workers, MCL 339.1610; MSA 18.425(16), and juvenile diversion officers, MCL 722.826-722.829; MSA 25.243(56)-25.243(59), are also privileged.
Work product of the prosecutor and defense counsel is privileged from discovery. People v Gilmore, 222 Mich App 442, 452 (1997).
However, if your client can demonstrate that he or she has a good faith belief, grounded in articulable fact,
that there is a reasonable probability that the records protected by privilege are likely to contain material
information necessary to the defense, the trial court shall conduct an in camera inspection of the records.
1. If the records are protected by absolute privilege and the privilege holder does not waive it for in
camera inspection, the court shall suppress or strike this person's testimony.
2. If the court is satisfied, it will make available to you such evidence as is necessary to your client.
3. The belief must be based on specific articulable fact. Your client must show that the information is necessary to his defense. Your client must show his good faith basis for believing that such evidence exists, the content of the evidence he thinks he will find, and how it will favorably affect his case. Stanaway, 446 Mich at 681.
If a party fails to comply with a discovery request or order, the court has the discretion to order the
exclusion of testimony or evidence for both substantive and impeachment purposes, People v Turner, 120
Mich App 23 (1982); In re Bay Prosecutor, 109 Mich App 476 (1981). It may order other remedies,
including dismissal,
Prosecutors must comply with a discovery request within seven days of the request. Defendants must
comply within fourteen days of the request.
7.3.a Motion for Discovery [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
, by 
attorney, moves this Court, pursuant to
1. The names and addresses of all lay and expert witnesses that the prosecution intends to call at trial.
2. Accurate copies of all written and recorded statements by witnesses that the prosecution intends to call at trial.
3. Accurate copies of all reports produced by or for expert witnesses the prosecution intends to call at trial.
4. Accurate copies of the criminal records of 
and all the prosecution's witnesses.
5. Accurate copies of all documents, photographs, or other papers in the control or custody of the prosecution relating to or concerning this case.
6. Description of and an opportunity for Defendant's counsel to inspect any tangible evidence in the custody and/or control of the prosecution.
7. Any exculpatory evidence or information known to the prosecution.
8. Accurate copies of all police reports, dispatch tapes, field notes or other writings in the custody and/or control of the prosecution concerning this case.
9. Accurate copies of all affidavits, warrants and returns pertaining to searches and seizures in connection with this case.
10. Accurate copies of all plea agreements, grants of immunity or other agreements for testimony in connection with this case.
11. Accurate copies of all written or recorded statements made by 
to police or the
prosecution in the custody and/or control of the prosecution.
Respectfully submitted,
___________________
Attorney for Defendant
7.3.b Motion to Compel Discovery [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
, by 
attorney, moves this Court to enter an order compelling the prosecution to
produce 
and to grant Defendant other relief that the Court deems appropriate. This
motion is based on
1. On 
, the Court entered an order requiring the prosecution to provide defense
counsel with 
by 
.
2. The prosecution did not comply with the Court's order(s).
3. On 
, defense counsel notified the prosecution that defense counsel had not received the
discovery that the Court had ordered. 
4. 
5. 
6. The prosecution has disobeyed the discovery order(s) of the Court, making it impossible for defense counsel to prepare a defense for the Defendant.
For these reasons, 
requests that this Court grant 
or, in the
alternative, grant 
motion to compel discovery and order other relief the Court deems appropriate.
Respectfully submitted,
_______________________
Attorney for Defendant
7.3.c Motion for Disclosure of Informant [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
Defendant.
______________________________________/
, by 
attorney, moves this Court to enter an order requiring the prosecution to
disclose whether it has secured, directly or indirectly, any evidence through the use of paid or unpaid, identified or
unidentified informants. If so, 
further requests that the Court enter an order requiring the
prosecution to provide 
with the following:
a. the identity of the informant;
b. accurate copies of any written or recorded statement made by any person relative to the prosecution of this case, made to or heard by the informant; and
c. accurate copies of any summaries, conversations, communications, or written memoranda made
by such informant relative to 
or any other person relative to the prosecution of
this case.
This motion is based on the following:
1. The trial court has the discretion to grant additional discovery when it is necessary to the preparation of a proper defense and in the interest of a fair trial. People v Johnson, 356 Mich 619 (1959).
2. The disclosure of this information is necessary to the preparation of 
defense, since
fairness to the Defendant and an adequate opportunity to prepare 
defense includes preparation
for cross-examination of witnesses. Defendant must be given access to all relevant information, to secure
right to a fair trial under the Michigan and United States Constitutions. People v Walton, 71
Mich App 478 (1976). Defendants have a due process right to obtain evidence in the possession of the
prosecutor if it is favorable to the accused and material to guilt or innocence. Brady v Maryland, 373 US
83; 83 SCt 1194; 10 LEd2d 215 (1963); People v Carter, 415 Mich 558 (1982).
3. Finally, where the disclosure of an informant's identity and the contents of his communications is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the prosecution's privilege to withhold this information must give way. Rovario v United States, 353 US 53, 59-61; 77 SCt 623; 1 LEd2d 639 (1957); People v Underwood, 447 Mich 695, 704 (1994).
4. 
has no other means of obtaining this information.
For these reasons, 
requests that this Court enter an order requiring the prosecution to
disclose the information listed above.
Respectfully submitted,
___________________
Attorney for Defendant
7.3.d Motion for Disclosure of Witness Agreements [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
Defendant.
_____________________________________/
, by 
attorney, moves this Court to enter an order requiring the prosecution to
disclose the following to 
:
a. the substance of any and all statements, offers, inducements or discussions had with any of the prosecution's witnesses or with any witness's counsel, or anyone from the office of the prosecutor's office, the Federal Bureau of Investigation, the Michigan State Police, the local Sheriff, local police, or staff of the Michigan Department of Corrections indicating a promise or a suggestion of lenience, compensation, assurance not to prosecute, or assurance to proceed in only certain causes or counts of an indictment, or upon lesser or reduced charges; and
b. any other offer of benefit occurring to any individual in exchange for their cooperation, assistance, or testimony in this case.
This motion is based on the following:
1.
2. The disclosure of this information is necessary to the preparation of 
defense, People
v Walton, 71 Mich App 478 (1976) [fairness to defendant and adequate opportunity to prepare defense,
including preparation for cross-examination of witnesses, require defendant to be given access to all
relevant information], and to secure 
right to a fair trial under the Michigan and
United States Constitutions, Brady v Maryland, 373 US 83; 83 SCt 1194; 10 LEd2d 215 (1963) [defendants
have a due process right to obtain evidence in the possession of the prosecutor if it is favorable to the
accused and material to guilt or innocence]; People v Carter, 415 Mich 558 (1982).
3. 
has no other means of obtaining this information.
4. Nondisclosure of a government promise to a witness that the witness will not be prosecuted if he cooperates with the government is a due process violation. Giglio v United States, 405 US 150; 92 SCt 763; 31 LEd2d 104 (1972); People v Atkins, 397 Mich 163 (1976).
For these reasons, 
requests that this Court enter an order requiring the prosecution
to disclose the information listed above.
Respectfully submitted,
___________________
Attorney for Defendant
7.4 Motion for Bill of Particulars [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
, by 
attorney, moves this Court to enter an order requiring the prosecution to
provide the Defendant with a bill of particulars.
This motion is based on
1.
2. On 
, following a preliminary examination, 
was bound
over on the charge of 
.
3. In order to prepare adequately for trial, counsel for 
needs to be informed of the exact
factual basis that the prosecution intends to present for each element of the 
.
For these reasons, 
requests that this Court grant 
motion for a bill of
particulars.
Respectfully submitted,
______________________
Attorney for Defendant
1. 1 Counsel's notes of an interview with a witness to be called at trial do not constitute a statement for purposes of mandatory disclosure under this rule. People v Holtzman, 234 Mich App 166 (1999).
2. 2 See People v Wimberly, 384 Mich 62 (1970) [prosecutor has the duty to turn over all evidence relevant to defendant's guilt or innocence]; People v Taylor, 159 Mich App 468 (1987) [prosecution has the duty to disclose evidence favorable to the defense].
3. 3 MCL 767.44; MSA 28.984 provides that "the prosecutor, if seasonably requested . . . shall furnish a bill of particulars setting up specifically the nature of the offense charged." The statute also has examples of the bill of particulars' appearance.