Child Witnesses in Michigan Courts: Protections Under MCL 600.2163a

A child may testify in a Michigan court. Every person is competent to be a witness unless the court finds, after questioning, that the person lacks sufficient physical or mental capacity or sense of obligation to testify truthfully or understandably.^[1] A separate statute, MCL 600.2163a, gives certain young and vulnerable witnesses a set of accommodations while they testify.^[2][4]

If a child is in immediate danger, call 911. The National Sexual Assault Hotline offers free, confidential support 24/7 at 800-656-HOPE (4673).^[7] Michigan's VOICES4 Hotline is free, confidential and anonymous, with advocates available 24/7 by call or text at 855-864-2374.^[8]

This page sets out who qualifies, what each accommodation is, what the court has to find before ordering it, and how a recorded interview may be used.

Is a young child allowed to testify?

Yes. The rule of evidence presumes competence, and the exception depends on a finding by the court after questioning the witness.^[1] Michigan once had a statute about witnesses under 10; it was repealed in 1998.^[1]

The model jury instruction reflects the current rule: for a witness who is a young child, a promise to tell the truth takes the place of an oath to tell the truth.^[9] How much weight to give any witness's testimony is for the jury.^[10]

Who qualifies for the protections in MCL 600.2163a?

The statute defines a "witness" as an alleged victim of a listed offense who falls in one of three groups.^[2]

Group	Eligible for
An individual under 16 years of age, or 16 or older with a developmental disability	A support person or other considerations under the section[2]
An individual under 18 years of age, or 18 or older with a developmental disability	A support dog under the section[2]
A vulnerable adult	The section's protections, in the prosecutions the statute lists for that group, which include prosecutions for an assaultive crime as defined in MCL 770.9a[2][3]

For the two age and developmental-disability groups, the section applies only to prosecutions and proceedings under MCL 750.136b, 750.145c, 750.520b to 750.520e (the four degrees of criminal sexual conduct) and 750.520g (assault with intent to commit criminal sexual conduct).^[3] For a vulnerable adult it applies to prosecutions under six listed Penal Code sections and to prosecutions for an assaultive crime as defined in MCL 770.9a, a definition that lists all four CSC degrees and assault with intent to commit CSC.^[3][11]

Two of the terms are narrower than they sound. "Developmental disability" here includes only a condition attributable to a mental impairment or to a combination of mental and physical impairments, not a physical impairment alone.^[12] "Vulnerable adult" is borrowed from the Penal Code, where it includes an individual age 18 or over who, because of age, developmental disability, mental illness, or physical disability, requires supervision or personal care or lacks the personal and social skills required to live independently.^[12]

The statute defines "witness" as "an alleged victim of an offense listed under subsection (2)."^[3] A child who is a witness to something but is not the alleged victim is outside that definition.^[3] The section also says it is in addition to other protections or procedures afforded to a witness by law or court rule.^[13]

What are the accommodations?

Accommodation	What the statute says	When it applies
Support person	The court shall permit a support person to sit with, accompany, or be in close proximity to the witness during testimony.[4]	Notice is required only for use at trial.[14]
Courtroom support dog	The court shall also permit a courtroom support dog and its handler to sit with, or be in close proximity to, the witness.[4]	Notice is required only for use at trial.[14]
Dolls or mannequins	If pertinent, the court shall permit the witness to use them to assist in testifying.[15]	On direct and cross-examination.[15]
Clearing the courtroom at the preliminary examination	All persons not necessary to the proceeding are excluded during the witness's testimony.[16]	Preliminary examination, on a party's motion made before it and a finding on the record that it is necessary to protect the welfare of the witness.[16]
Seating arrangement	The defendant is seated as far from the witness stand as is reasonable and not directly in front of it.[16][17]	Preliminary examination and trial, on the same kind of motion and finding. The defendant must still be able to hear and see the witness and communicate with counsel.[16][17]
Clearing the courtroom at trial, with a video feed	Unnecessary persons are excluded and the testimony is broadcast by closed-circuit television to the public in another location out of sight of the witness.[17]	Trial, on a party's motion made before trial and a finding on the record.[17]
Questioner's stand or podium	A stand or podium in front of the witness stand is used for all questioning of all witnesses by all parties.[17]	Trial, on a party's motion made before trial and a finding on the record.[17]
Testimony outside the defendant's physical presence	By closed circuit television or other electronic means that allows the trier of fact and the defendant to observe the witness.[5]	A court proceeding, only on the finding described below.[5]

Support person and support dog

The wording is mandatory: the court "shall permit" both.^[4] A notice of intent is filed and served only if the support person or dog is to be used during trial; it is not required for any other courtroom proceeding.^[14] The notice names the support person or dog and the support person's relationship to the witness, and the court rules on a motion objecting to the named support before the date the witness wants to use it.^[15] A "courtroom support dog" is itself a defined term, limited to dogs with the training, certification or prior courtroom service the statute describes.^[15] This courtroom support person is a different thing from a support person in the interview room, which the state forensic interviewing protocol discourages.^[18]

Courtroom arrangements

At both stages the arrangements depend on a party's motion made beforehand and on a finding, made on the record, that they are necessary to protect the welfare of the witness.^[16][17] In deciding, the court considers the age of the witness, the nature of the offense, the desire of the witness or the witness's family or guardian to have the testimony taken in a room closed to the public, and the physical condition of the witness.^[16][17]

At the preliminary examination a court that grants the motion orders both arrangements listed for that stage, and a transcript of the witness's testimony must be made available to any person on request and payment of the fees.^[16] At trial the court orders 1 or more of three: exclusion of unnecessary persons with a closed-circuit broadcast to the public elsewhere, the seating arrangement, and the questioner's podium.^[17] At trial the defendant's position must be the same for all witnesses and must allow the defendant to hear and see all witnesses and communicate with the defendant's attorney.^[17]

The accused has a constitutional right to a public trial.^[19] Outside a specific statute, the general court rule lets a court limit public access to a proceeding only if a specific interest outweighs the right of access, the limit is narrowly tailored with no less restrictive means, and the court states its reasons on the record.^[20]

Testifying outside the defendant's presence

This accommodation has its own threshold. On a party's motion or in its own discretion, the court has to find on the record that the witness "is or will be psychologically or emotionally unable to testify at a court proceeding even with the benefit of the protections" the statute otherwise gives.^[5] If it does, it shall order that the witness may testify outside the physical presence of the defendant by a method that lets the judge or jury and the defendant observe the witness when questioned by the parties.^[5]

The witness's examination and cross-examination proceed in the same manner as if the witness testified at the court proceeding, and the court shall permit the defendant to hear the testimony and to consult with the defendant's attorney.^[13]

The accused has a constitutional right to be confronted with the witnesses against him or her.^[19] In People v Jemison (2020), a case about an adult expert witness, the Michigan Supreme Court said that for testimonial evidence the face-to-face requirement may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine.^[21] As the Sexual Assault Benchbook describes it, the court decided that Maryland v Craig, as applied in cases involving child victims, did not except adult expert witnesses from that requirement.^[22] How the confrontation right applies to a particular child's remote testimony is a question for the court in that case.

How may a recorded forensic interview be used?

A recorded interview of a qualifying witness is called a "videorecorded statement." The questioning in it is to be in accordance with the forensic interview protocol implemented under the Child Protection Law.^[23] The recording states the date and time, identifies the persons present in the room, and shows a running time clock.^[24]

The statute lists the only purposes for which it may be considered in court:^[6]

• Admission as evidence at all pretrial proceedings, except that it cannot be introduced at the preliminary examination instead of the live testimony of the witness.^[6]
• Admission for impeachment purposes.^[6]
• Consideration by the court in determining the sentence.^[6]
• Use as a factual basis for a no contest plea or to supplement a guilty plea.^[6]

The defendant and defense attorney have the right to view and hear the recording before the preliminary examination, and the court may order a copy given to the defense under protective conditions.^[25] On request, the prosecuting attorney also provides reasonable access and means to view and hear it at a reasonable time before the pretrial or trial.^[26] Otherwise the recording is closely held: no one, including the witness's parent or guardian, may release it except as the statute provides, it is exempt from the Freedom of Information Act and from disclosure under the discovery court rules, and the statute does not prohibit release of a transcript.^[26] A person who intentionally releases a videorecorded statement in violation of the statute is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500, or both.^[27] The interview itself is covered in Forensic interviews of children.

Can a child's earlier statements be used along with the testimony?

Sometimes, under a specific hearsay rule that applies in criminal and delinquency proceedings. Under MRE 803A, a statement by a child who was under the age of ten when it was made, describing an incident that included a sexual act performed with or on the child by the defendant or an accomplice, is admissible "to the extent that it corroborates testimony given by the declarant during the same proceeding" if five listed conditions are met, including that the statement was spontaneous and without indication of manufacture and that advance notice was given.^[28][29] If the child made more than one corroborative statement about the incident, only the first is admissible under that rule.^[30] The details are in the tender-years rule, and statements made to medical providers are covered in Statements to doctors and nurses.

Other protections for young witnesses

• Early testimony. On the prosecutor's request, the preliminary examination begins immediately for the sole purpose of taking and preserving the testimony of a victim who is present, and that victim is not called again at the adjourned examination absent good cause.^[31]
• Scheduling. A speedy trial may be scheduled for a case in which the prosecuting attorney declares the victim to be a victim of child abuse, including sexual abuse, or of first-, second- or third-degree criminal sexual conduct; on the prosecutor's motion the chief judge sets a hearing within 14 days, and if the motion is granted the trial is not scheduled earlier than 21 days from the hearing.^[32][33]
• Identity. For a victim of criminal sexual conduct who was less than 18 years of age when the crime was committed, the victim's name and address and other identifying information are exempt from disclosure under the Freedom of Information Act.^[34]
• Cameras. Under the Supreme Court's administrative order on media coverage, the judge has sole discretion to exclude coverage of certain witnesses, including victims of sex crimes and their families.^[35]

What people get wrong

"Children under 10 can't testify." The age statute was repealed in 1998, and the rule now presumes that every person is competent.^[1]

"The video will be played so the child doesn't have to take the stand." The statute does not list that use, and it bars substituting the recording for live testimony at the preliminary examination.^[6]

"Any victim can have a support dog or testify from another room." The statute's definition is limited by age, developmental disability, or vulnerable-adult status.^[2] Remote testimony also depends on a finding made on the record.^[5]

For what a parent can do when a child first speaks about abuse, see When a child discloses sexual abuse. The limits on what experts may say about a child's account are in Expert witnesses in child sexual abuse cases, and the rights that apply to complainants of any age are in Privacy and rights of victims.