Discovery: getting the police reports, video and test records

Discovery is the process of getting the evidence the other side has. In a Michigan OWI case it is governed mainly by MCR 6.201, which lists what a party "upon request must provide," and by the constitutional duty to disclose favorable evidence.^[7][6] The OWI statute adds its own rule for chemical test results requested in writing.^[8]

This page explains what the rule covers, the timing, video retention, breath-test records and what a court can do if discovery is not provided. It does not say what any particular file will contain.

Discovery in misdemeanor and felony cases

MCR 6.201 is part of the criminal procedure rules that govern felony cases in circuit court.^[9] For district-court misdemeanor cases, MCR 6.610(E) brings it in: every part of MCR 6.201 except subrule (A) applies in all misdemeanor proceedings, including the prosecutor's duties under 6.201(C), the 21-day timing rule and the remedies for noncompliance.^[10] The mandatory reciprocal disclosures in 6.201(A) apply only "if a defendant elects to request discovery," and if the defendant requests and the prosecutor complies, the defendant must also comply.^[4][10]

What the prosecutor must provide on request

Under MCR 6.201(C), on request the prosecuting attorney must provide each defendant:^[1][11]

• any exculpatory information or evidence known to the prosecutor;^[1]
• any police report and interrogation records concerning the case, except parts that concern a continuing investigation, with identifying numbers and protected information allowed to be redacted;^[1][11]
• 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, which in an OWI case can include a warrant for a blood draw;^[1][12]
• any plea agreement, grant of immunity or other agreement for testimony.^[11]

Where 6.201(A) applies (in a misdemeanor, only after the defendant requests it), both sides' mandatory disclosures include witness names and addresses, lay witnesses' written or recorded statements, an expert's CV and report or a description of the opinion and its basis, criminal records to be used for impeachment, and a description of and opportunity to inspect tangible physical evidence, with copies on request.^[7] There is no right to discover material protected by constitution, statute or privilege, except through a court's in camera procedure.^[11]

Redacted or withheld parts

When only some parts of a document are discoverable, the party must disclose those parts and may excise the rest, but must tell the other side that information was excised and withheld.^[13] On motion, the court must hold an in camera hearing to decide whether the reasons for the excision are justified.^[13]

Timing

Item	Time limit
Response to a 6.201 request	Within 21 days, unless the court orders otherwise[2]
Amending a witness list without leave (where 6.201(A) applies)	No later than 28 days before trial[7][10]
Newly found material	Prompt notice without a further request[3]
Chemical test results on written request	At least 2 days before trial[8]
Forensic lab report and certificate	Served within 14 days after the prosecution's expert receives it[14]

The deadlines page lists these with the other time limits in the case. Discovery questions can also be raised at the pretrial conference.

Chemical test results

MCL 257.625a(8) requires the prosecution, on written request, to furnish test results "at least 2 days before the day of the trial," and "failure to fully comply with the request bars the admission of the results into evidence by the prosecution."^[8] A forensic lab report served under MCR 6.202 may come in without the analyst testifying unless the defense files a written objection within 14 days of receiving notice; for good cause the court must extend that time.^[14]

Labs must verify calibration with control samples each day tests are run and keep the control results at least 1 year.^[15] On good cause, the court may order that a party be given the chance to test tangible physical evidence without destroying it.^[1] In Green, the Court of Appeals held that this rule does not let a court order the State Police to retest its own evidence.^[16] See independent chemical tests.

Breath-test instrument records

The State Police publish data on evidential breath tests for each Intoxilyzer 9000: "By entering the instrument serial number, one can review subject tests conducted using that instrument," with personal information redacted.^[17] Instruments that check a known alcohol standard with each test must be inspected, verified for accuracy and certified at least twice a year.^[18] Officers must be certified on the instrument and recertify every two years.^[17] Before the Intoxilyzer 9000, Michigan used the DataMaster DMT; in 2020 the State Police found that a contractor's technicians had falsified service records for some DataMaster instruments.^[19] See breath test machines and challenging breath test results.

Body-camera and dash-camera video

Under MCL 780.316, a law enforcement agency must keep an evidentiary body-camera recording for at least 30 days from when it is made, and recordings that are the subject of an ongoing criminal investigation or prosecution until it is complete.^[5] The statute "does not create a presumption" that a missing recording would corroborate either the prosecution's or the defendant's version of events.^[20]

In Jones, a dash-camera case, a department policy destroyed traffic-stop recordings six months after the stop, and the Court of Appeals held that "absent intentional suppression or a showing of bad faith, a loss of evidence that occurs before a defense request for its production does not require reversal."^[21] Recorded statements by the defendant, including electronically recorded ones, fall within the prosecutor's disclosure duty on request.^[1]

Brady: favorable evidence

The Michigan Supreme Court, applying Brady v Maryland, holds that the prosecution's suppression of evidence favorable to the accused "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."^[6] To show a violation, a defendant must establish that the prosecution suppressed evidence, that it is favorable to the accused, and that, viewed in its totality, it is material.^[6]

If discovery is not provided

Under MCR 6.201(K), when a party fails to comply, the court "may order the party to provide the discovery or permit the inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just."^[22] Willful violations by counsel may bring sanctions, and the court's order is reviewable only for abuse of discretion.^[22]

Evidence gathered in discovery may support a motion to suppress; the evidence guide covers how each kind of evidence is used at trial, and the documents checklist lists the papers to keep.