When you are a Criminal Defense attorney, police reports are a big deal. They are very important documents. While they are, in my opinion, not always accurate and they obviously come from a biased source, having access to police reports is essential. They are useful in so many different ways. These reports contain the blue-print for a prosecutor’s case. Additionally, they help us find other potential issues which may need further examination through discovery requests. How do we get access to police reports? The answer is found in Michigan’s court-rules and laws.
Criminal law, in some ways, is more “civil” than civil law. The goals are very different. In some aspects, in my opinion, the rules are fairer. Prosecutors, if I ask them to, have to give me certain stuff and I have the option to ask for a court-order if they do not. Prosecutors do not have the option to bury me with huge interrogatory requests or ambush me with short-notice depositions. They cannot, unless it’s an usual circumstance, force my client to answer questions prior to trial. Further, prosecutors are required to turn over key chunks of their case to defense counsel upon request. This is all possible because of the discovery rules for criminal cases under Michigan law.
Discovery, broadly stated, is the process whereby the parties in both civil and criminal cases allow the respective sides to examine their potential evidence, take witness testimony, ask for documents, see potential exhibits, examine video/audio evidence, or other steps to examine their respective cases. The Michigan Court Rules and laws contain guidelines for appropriate steps and procedures. Ultimately, the presiding judge, subject to potential appellate review, has the final say over these matters.
With criminal cases under Michigan law and court-rules, discovery is different, depending on the type and severity of the charge. The court rules and applicable statutes explicitly require both the prosecutor and defense to turn over certain types of information, especially with felony charges. This is in stark contrast to civil cases. With civil cases, judges generally have much more discretion and may even prohibit discovery unless they grant a court-order (district court civil-litigation, for example) to start the process.
With felony charges, prosecutors are required to turn over certain types of information to the defense, if requested to do so, as required pursuant to sub-chapter 6.200 et. al. of the Michigan Court Rules. In particular, MCR 6.201(A) requires that the prosecutor, among other things, turn over witness lists, witness statements, the curriculum vitae of all expert witnesses, and this rule requires that the prosecutor allow the defense to inspect “any tangible physical evidence that the party may introduce at trial.” MCR 6.201(A)(6).
MCR 6.201(B) is key rule because it requires a prosecutor to provide “any exculpatory information or evidence known to the prosecuting attorney,”MCR 6.201(B)(1). It also all police reports, written or recorded statements, regardless of whether the person testifies, of the defendant, co-defendant, or accomplice relating to a case, copies of warrants, and copies of any agreements related to the procurement of potential testimony in the case. This particular rule is absolutely vital. MCR 6.201(B)(2-5).
Discovery is also reciprocal. MCL 767.94a requires that the defense turnover certain types of potential evidence to the prosecutor as well.
There are limits to discovery. MCR 6.201(C) lists some of the restrictions and the rest of the court-rules under this sub-chapter deal with the procedures to resolve any disputes over discovery. Some information, for example, may be redacted or protected by court-order, there are certain time-frames involved, and other considerations as well. MCR 6.201(D & E, et. al).
With misdemeanor charges, though, discovery is not as clearly and explicitly defined. Most prosecutors will turn over essentially the same documents as they would for a felony charge; however, some courts request a properly filed motion by the defense first. Regardless of the charge, defense counsel usually needs to file a formal request with the prosecutor to receive discovery.
This “request” usually is made through a “discovery demand” often filed when defense counsel files an appearance on behalf of an alleged defendant in a pending criminal case. However, either the prosecution or defense may file additional motions requesting discovery as the case proceeds and ask for a court-order. MCR 6.201(D & E, et. al).
These mandatory discovery requirements, especially the provision requiring prosecutors to turn over exculpatory evidence, are essential for the criminal justice system. When prosecutors fail to turn over exculpatory evidence, the odds of a wrongful conviction may rise exponentially.
It is not a perfect system, of course. There have been tragic examples of situations where prosecutors failed to disclose exculpatory evidence, defense attorneys played games with discovery, or other various types abuses. Gamesmanship with discovery is certainly not dead.
However, Michigan, at least, has rules that put the emphasis on the prosecutor to level the playing field a little bit.
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Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.
If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.
If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.