In Michigan criminal sexual conduct cases, an issue that frequently arises for attorneys is obtaining a copy of the child’s video recorded statement. Michigan law provides that witnesses who are under 16 years of age, 16 or over but having a developmental disability and vulnerable adults are to be interviewed according to the Michigan Forensic Interview Protocol. Many of the child advocacy centers that do these interviews also video record them. When they are video recorded, MCL 600.2163a governs how they may be used, released to defense counsel and the legal limitations. This is to prevent the videos from becoming widespread on the Internet and disseminated in an inappropriate way.
Many times, prosecutors tell criminal defense attorneys they cannot obtain their own copy of the video. This is simply incorrect. First, this video evidence is part of the mandatory discovery under the Michigan Court rules. MRC 6.201 requires that the prosecution produce copies of all statements, including recorded statements of a witness, upon proper request of the defendant and this is mandatory discovery. It should be noted that the amended version of MCR 6.201, effective January 1, 2011, explicitly states that electronically recorded statements are to be provided as mandatory discovery.
Second, MCL 600.2163a(9) explicitly allows that a copy of a video recorded statement by an alleged victim may be given to the defense under protective conditions. While the statute governing the reproduction of these video recorded statements does not require that Defense Counsel show good cause to release copies to the Defense, there are a number of reasons that defense attorneys need to obtain their own copies of the DVDs. These reasons include, for example, the following:
- The video is many times the only source of information regarding the complainant’s statement in this case;
- Attorneys need to have a transcript of the interview prepared for the purpose of cross-examination and impeachment;
- In order to review the DVDs with Defendant’s expert regarding the forensic interview protocol and to see if these interviews were done according to protocol; and,
- To prepare effectively for playback in the courtroom if the same is necessary during trial.
It is simply not feasible for an attorney to get familiar with the interview when they are required to go to the prosecutor’s office to watch the video. In the event that this discovery is denied, Defendant would be denied discovery mandated by the Supreme Court and the Constitutions of Michigan and the United States. If you are facing charges of criminal sexual conduct, it is imperative to hire a lawyer who knows how to properly request a copy of the DVD under protective conditions. If your attorney is not willing to obtain a copy to prepare for your defense, you should seriously consider hiring a new lawyer. This evidence is frequently the most important and critical evidence in the case.