Discovery in Michigan Domestic Violence Cases: What Evidence Each Side Must Share

Discovery is the exchange of evidence between the prosecution and the defense before trial. In Michigan criminal cases it is governed by MCR 6.201. On request, the prosecuting attorney must provide the defense with any exculpatory information, police reports and interrogation records, and any written or recorded statements by the defendant.^[1] The same rule applies in misdemeanor proceedings through MCR 6.610(E).^[2]

This page sets out what each side has to share, the deadlines, what cannot be obtained, and how the rule applies to the kinds of evidence a domestic violence case can involve: reports, 911 audio, body-camera video, photographs and witness statements.

What must the prosecutor give the defense?

The prosecutor's own disclosure duties are in MCR 6.201(C). On request, the prosecuting attorney must provide each defendant:^[1]

• any exculpatory information or evidence known to the prosecuting attorney;^[1]
• any police report and interrogation records concerning the case, except portions that concern a continuing investigation;^[1]
• any written or recorded statements, including electronically recorded statements, by the defendant, a codefendant or an accomplice;^[1]
• any affidavit, warrant and return for a search or seizure connected with the case;^[1]
• any plea agreement, grant of immunity or other agreement for testimony connected with the case.^[1]

A note on citations. In the current rule, prosecutor disclosure is MCR 6.201(C). Material written before the current lettering cites prosecutor disclosure as MCR 6.201(B) and the remedies subrule as MCR 6.201(J); remedies are now in subrule (K).^[1][6] Subrule (B) now holds a notice requirement for a defendant who intends to offer expert evidence of mental illness or intellectual disability bearing on specific intent.^[7]

What must both sides exchange?

MCR 6.201(A) is reciprocal. On request, a party must provide the other side with:^[8][2]

• the names and addresses of all lay and expert witnesses the party may call at trial, or the name with the witness made available for interview;^[8]
• any written or recorded statement, including an electronically recorded statement, by a lay witness the party may call, except that a defendant need not provide the defendant's own statement;^[8]
• expert witnesses' qualifications and reports or summaries;^[8]
• any criminal record the party may use at trial to impeach a witness, and a description or list of the known criminal convictions of any witness the party may call;^[8]
• a description of, and an opportunity to inspect, tangible physical evidence the party may introduce, including documents and photographs.^[8]

Does discovery apply in a misdemeanor case?

Yes, and this is a point on which older material is wrong. MCR 6.610(E) provides that MCR 6.201, except subrule (A), applies in all misdemeanor proceedings.^[2] The amendment took effect May 1, 2020.^[9]

The exception for subrule (A) works like a switch that the defense controls. Subrule (A) applies in a misdemeanor case only if the defendant elects to request discovery under it; if the defendant does and the prosecutor complies, the defendant must then comply with subrule (A) as well.^[2]

	Felony case	Misdemeanor case
Prosecutor's disclosures on request: exculpatory information, police reports, defendant's statements (MCR 6.201(C))	Apply[1]	Apply[1][2]
Reciprocal exchange of witness lists, witness statements and physical evidence (MCR 6.201(A))	Applies on request[8]	Applies only if the defendant elects to request it; the defendant then owes the same[2]
Deadline	21 days from the request unless the court orders otherwise[3]	The same rule applies[3][2]

How the rule applies to common domestic violence evidence

The police report

Police reports and interrogation records concerning the case are on the list of what the prosecutor must provide on request.^[1] After a domestic violence incident, an officer must prepare a standard domestic violence report that includes, among other things, a narrative, a description of injuries, and any previous domestic violence incidents between the two people.^[10] The notice police give a victim after a domestic violence incident explains how the victim can get a copy of the incident report from the police agency.^[11] That route is described in How to get the police report.

911 recordings and body-camera video

MCR 6.201 does not mention 911 recordings or body-camera video by name. It covers recorded statements of witnesses a party may call, recorded statements by the defendant, tangible evidence a party may introduce, and exculpatory information.^[8][1] A recording is covered to the extent it fits one of those categories.

Retention matters. A police agency must keep an evidentiary body-camera recording for at least 30 days, and must keep recordings that are the subject of an ongoing criminal investigation or prosecution until the proceeding is complete.^[12] A body-camera recording made in a private place, such as inside a home, is exempt from disclosure under the Freedom of Information Act, with limited exceptions for the person recorded and certain others.^[13] See 911 calls as evidence and Body-camera footage.

Photographs, medical records and messages

Each side must, on request, describe and allow inspection of tangible physical evidence it may introduce, including documents and photographs.^[8] How these items are admitted is covered in Photographs and medical records and Text messages and social media evidence.

Statements to police and prior acts

Two domestic violence evidence statutes carry their own disclosure deadlines. A prosecutor who intends to offer a statement under MCL 768.27c, or evidence of other acts of domestic violence under MCL 768.27b, must disclose the evidence, including witness statements or a summary of the expected testimony, at least 15 days before the scheduled trial date, unless the court allows later disclosure for good cause.^[14][15] Other-acts evidence offered under the Rules of Evidence has a different rule: written notice at least 14 days before trial.^[16]

What cannot be obtained in discovery?

Depositions

Depositions and other civil discovery proceedings may not be taken for purposes of discovery in a criminal case.^[4] The criminal rules therefore give the defense no deposition at which to question a witness under oath before a hearing or trial. In a felony case, cross-examination at the preliminary examination is permitted.^[17]

Privileged records

There is no right to discover privileged information. If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that privileged records contain material information necessary to the defense, the trial court conducts an in camera inspection, meaning the judge reads the records privately. If the privilege is absolute and the holder refuses to waive it for that inspection, the court must suppress or strike the privilege holder's testimony.^[5]

Counseling records are one example. A confidential communication between a victim and a sexual assault or domestic violence counselor is not admissible in any civil or criminal proceeding without the victim's prior written consent.^[18]

The victim's address and phone number

In felony cases the victim's home and work addresses and telephone numbers must not be in the court file or ordinary court documents, except in a trial transcript or where an address identifies the place of the crime.^[19] On motion and for good cause, the court may also enter a protective order limiting discovery, weighing the parties' interest in a fair trial against the risk to any person of harm, undue annoyance, intimidation, embarrassment or threats.^[20] See Address confidentiality and safety tools.

Deadlines and the continuing duty

Unless the court orders otherwise, the prosecuting attorney must comply within 21 days of a request under the rule, and a defendant must comply within 21 days of a request. Both sides have a continuing duty to disclose newly discovered material promptly, without a further request.^[3]

The rule is triggered by a request. In district court, the judge may also require pretrial motions, including motions about discovery, to be filed and argued by the pretrial conference.^[21]

Exculpatory evidence: the rule and the Constitution

Evidence that tends to help the accused is covered twice. Under the court rule, the prosecuting attorney must provide on request any exculpatory information or evidence known to the prosecuting attorney.^[1]

Under the Due Process Clause, as the Michigan Supreme Court applied Brady v Maryland in People v Chenault, the prosecution's suppression of evidence favorable to the accused violates due process where the evidence is material to guilt or to punishment, whether the prosecution acted in good faith or bad faith. A defendant must show that the prosecution suppressed evidence, that the evidence is favorable to the accused, and that, viewed in its totality, it is material.^[22]

What happens when a side does not comply?

If a party fails to comply with the discovery rule, the court, in its discretion, may order the party to provide the discovery or permit inspection, grant a continuance, prohibit the party from introducing the undisclosed material in evidence, or enter another order it considers just under the circumstances.^[23]

Discovery is not the same as a public records request

People sometimes try to gather evidence through the Freedom of Information Act instead. Two limits apply. Court records are not subject to FOIA because the judiciary is exempt from it, although court records are public unless a statute, court rule or court order restricts access.^[24] And a body-camera recording retained in connection with an ongoing criminal investigation is exempt from FOIA to the extent disclosure would, among other things, interfere with law enforcement proceedings or deprive a person of a fair trial.^[13] During a pending case, discovery under the court rules is the route the rules provide for the defense.^[1][2]

What people get wrong

"There is no discovery in misdemeanor cases." Outdated since May 1, 2020.^[2][9]

"The prosecutor has to hand everything over automatically." The disclosure duties in MCR 6.201 are written to apply "upon request."^[1] The constitutional duty not to suppress favorable, material evidence is separate from the rule.^[22]

"The defense can depose the accuser." Michigan does not allow discovery depositions in criminal cases.^[4]

"Asking for witness lists costs the defense nothing." In a misdemeanor case, a defendant who elects to request discovery under MCR 6.201(A) must also comply with that subrule once the prosecutor does.^[2]

For how the evidence is used once it is in hand, start with Evidence used in Michigan domestic violence cases.