September 8, 2004, Introduced by Rep. Meyer and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 20, 20a, 21, 21a, and 36 of chapter VIII
(MCL 768.20, 768.20a, 768.21, 768.21a, and 768.36), section 20a
of chapter VIII as amended by 1983 PA 42, section 21a of
chapter VIII as amended by 1994 PA 56, and section 36 of
chapter VIII as amended by 2002 PA 245.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 CHAPTER VIII
2 Sec. 20. (1) If a defendant
in a felony criminal case
3 proposes to offer in his or her defense testimony to establish an
4 alibi at the time of the alleged offense, the defendant shall at
5 the time of arraignment on the information or within 15 days
6 after that arraignment but not less than 10 days before the trial
7 of the case, or at another time as the court directs, file and
1 serve upon the prosecuting attorney a notice in writing of his or
2 her intention to claim that defense. If a juvenile facing trial
3 for an offense that would be a crime if committed by an adult
4 proposes to offer in his or her defense testimony to establish an
5 alibi at the time of the alleged offense, the juvenile shall at
6 the preliminary hearing on the petition or within 15 days after
7 that hearing, but not less than 10 days before the trial of the
8 case, or at another time as the court directs, file and serve
9 upon the prosecuting attorney a notice in writing of his or her
10 intention to claim that defense. The notice shall contain, as
11 particularly as is known to the defendant or the defendant's
12 attorney or the juvenile or the juvenile's attorney, the names of
13 witnesses to be called in behalf of the defendant or juvenile to
14 establish that defense.
The defendant's notice shall include
15 specific information as
to the place at which the accused
16 defendant or juvenile claims to have been at the time of the
17 alleged offense.
18 (2) Within 10 days
after the receipt of the defendant's
19 notice required under subsection (1) but not later than 5 days
20 before the trial of the
case, or at such other another time as
21 the court may direct, the prosecuting attorney shall file and
22 serve upon the defendant or
juvenile a notice of rebuttal which
23 shall contain that contains, as particularly as is known to
the
24 prosecuting attorney, the names of the witnesses whom the
25 prosecuting attorney proposes to call in rebuttal to controvert
26 the defendant's alibi
defense at the trial of the case.
27 (3) Both the The
defendant, the juvenile, and the
1 prosecuting attorney shall
be are under a continuing duty to
2 disclose promptly the
names of additional witnesses which that
3 come to the their
attention of either party subsequent to
4 filing their respective notices as provided in this section.
5 Upon motion with notice to the other party and upon a showing by
6 the moving party that the name of an additional witness was not
7 available when the notice
required by subsections subsection
8 (1) or (2) was filed and could not have been available by the
9 exercise of due diligence, the additional witness may be called
10 by the moving party to testify as a witness for the purpose of
11 establishing or rebutting an alibi defense.
12 (4) As used in this section, "juvenile" includes an
13 individual who may be within the jurisdiction of the family
14 division of circuit court under section 2(a)(1) of chapter XIIA
15 of the probate code of 1939, 1939 PA 288, MCL 712A.2.
16 Sec. 20a. (1) If a
defendant in a felony criminal case or
17 a juvenile facing trial for an offense that would be a crime if
18 committed by an adult proposes to offer in his or her defense
19 testimony to establish his or her insanity at the time of an
20 alleged offense, the defendant or juvenile shall file and serve
21 upon the court and the prosecuting attorney a notice in writing
22 of his or her intention to assert the defense of insanity not
23 less than 30 days before the date set for the trial of the case,
24 or at such other another
time as the court directs.
25 (2) Upon receipt of a notice of an intention to assert the
26 defense of insanity, a court shall order the defendant or
27 juvenile to undergo an examination relating to his or her claim
1 of insanity by personnel of the center for forensic psychiatry or
2 by other qualified personnel, as applicable, for a period not to
3 exceed 60 days from the
date of the order. When If the
4 defendant or juvenile is to be held in jail or detention pending
5 trial, the center or the other qualified personnel may perform
6 the examination in the jail or at the juvenile detention
7 facility, or may notify the sheriff to transport the defendant or
8 juvenile to the center or facility used by the qualified
9 personnel for the examination, and the sheriff shall return the
10 defendant to the jail or the juvenile to the juvenile detention
11 facility upon completion
of the examination. When If the
12 defendant or juvenile is at liberty pending trial, on bail or
13 otherwise, the defendant or juvenile shall make himself or
14 herself available for the examination at the place and time
15 established by the center or the other qualified personnel. If
16 the defendant or juvenile, after being notified of the place and
17 time of the examination, fails to make himself or herself
18 available for the examination, the court may, without a hearing,
19 order his or her commitment to the center.
20 (3) The defendant or juvenile may, at his or her own expense,
21 or if indigent, at the expense of the county, secure an
22 independent psychiatric evaluation by a clinician of his or her
23 choice on the issue of his or her insanity at the time the
24 alleged offense was committed. The defendant or juvenile shall
25 notify the prosecuting attorney at least 5 days before the day
26 scheduled for the independent evaluation that he or she intends
27 to secure such an evaluation. The prosecuting attorney may
1 similarly obtain independent psychiatric evaluation. A clinician
2 secured by an indigent
defendant shall be or juvenile is
3 entitled to receive a reasonable fee as approved by the court.
4 (4) The defendant or juvenile shall fully cooperate in his or
5 her examination by personnel
of the center for forensic
6 psychiatry psychiatry's personnel or by other qualified
7 personnel, and by any other independent examiners for the
8 defense and prosecution
defendant, the juvenile, or the
9 prosecutor. If he or she fails to cooperate, and that failure is
10 established to the satisfaction of the court at a hearing prior
11 to trial, the defendant or juvenile shall be barred from
12 presenting testimony relating to his or her insanity at the trial
13 of the case.
14 (5) Statements made by the defendant or juvenile to
15 personnel of the center for forensic psychiatry psychiatry's
16 personnel, to other qualified personnel, or to any independent
17 examiner during an
examination shall is not be admissible
18 or and does not have probative value in court at
the trial of
19 the case on any issues other than his or her mental illness or
20 insanity at the time of the alleged offense.
21 (6) Upon conclusion of the examination, the center for
22 forensic psychiatry,
or the other qualified personnel, and
23 any or independent examiner , shall
prepare a written report
24 and shall submit the report to the prosecuting attorney and
25 defense counsel for the defendant or the juvenile.
The report
26 shall contain all of the following:
27 (a) The clinical findings of the center, the qualified
1 personnel, or any independent
examiner.
2 (b) The facts, in
reasonable detail, upon on which the
3 findings were based.
4 (c) The opinion
of the center or center's, qualified
5 personnel personnel's, and or the
independent examiner
6 examiner's opinion on the issue of the defendant's or juvenile's
7 insanity at the time the alleged offense was committed and
8 whether the defendant or juvenile was mentally ill or mentally
9 retarded at the time the alleged offense was committed.
10 (7) Within 10 days after the receipt of the report from the
11 center for forensic psychiatry or from the qualified personnel,
12 or within 10 days after the receipt of the report of an
13 independent examiner secured by the prosecution, whichever occurs
14 later, but not later than 5 days before the trial of the case, or
15 at such other another
time as the court directs, the
16 prosecuting attorney shall file and serve upon the defendant or
17 juvenile a notice of
rebuttal of the defense of insanity which
18 that shall contain the names of the witnesses whom the
19 prosecuting attorney proposes to call in rebuttal.
20 (8) The report of the
center for forensic psychiatry, the
21 qualified personnel, or any
independent examiner may be
22 admissible in evidence
upon the stipulation of the prosecution
23 and defense parties.
24 (9) As used in this
section: , "qualified personnel" means
25 either of the
following: (a) Personnel
26 (a) "Center" means the center for forensic psychiatry.
27 (b) "Juvenile" includes an individual who may be within the
1 jurisdiction of the family division of circuit court under
2 section 2(a)(1) of chapter XIIA of the probate code of 1939, 1939
3 PA 288, MCL 712A.2.
4 (c) "Qualified personnel" means personnel meeting standards
5 determined by the
department of mental community health under
6 rules promulgated pursuant
to Act No. 306 of the Public Acts of
7 1969, being sections
24.301 to 24.315 of the Michigan Compiled
8 Laws under the administrative procedures act of 1969,
1969
9 PA 306, MCL 24.201 to 24.328.
10 (b) Until the
rules to which subdivision (a) refers,
11 excluding emergency
rules, are in effect, personnel of the
12 psychiatric clinic of
the recorder's court of the city of
13 Detroit.
14 Sec. 21. (1) If the defendant or juvenile fails to file and
15 serve the written notice prescribed in section 20 or 20a of this
16 chapter, the court shall exclude evidence offered by the
17 defendant or juvenile for the purpose of establishing an alibi or
18 the insanity of the defendant defense.
If the notice given
19 by the defendant or juvenile does not state, as particularly as
20 is known to the defendant or the defendant's attorney or the
21 juvenile or the juvenile's attorney, the name of a witness to be
22 called in behalf of the defendant or juvenile to establish a
23 defense specified in section 20 or 20a of this chapter, the court
24 shall exclude the witness
testimony of a witness which is
25 offered by the defendant or juvenile for the purpose of
26 establishing that defense.
27 (2) If the prosecuting attorney fails to file and serve a
1 notice of rebuttal upon the defendant or juvenile as provided in
2 section 20 or 20a of this chapter, the court shall exclude
3 evidence offered by the prosecution in rebuttal to the
4 defendant's or juvenile's evidence relevant to a defense
5 specified in section 20 or 20a of this chapter. If the notice
6 given by the prosecuting attorney does not state, as particularly
7 as is known to the
prosecuting attorney, the witness's name of a
8 witness to be called in rebuttal of the defense of to
rebut
9 the alibi or insanity defense, the court shall exclude the
10 witness testimony of
a witness which is offered by the
11 prosecuting attorney for the purpose of rebutting that defense.
12 (3) As used in this section, "juvenile" includes an
13 individual who may be within the jurisdiction of the family
14 division of circuit court under section 2(a)(1) of chapter XIIA
15 of the probate code of 1939, 1939 PA 288, MCL 712A.2.
16 Sec. 21a. (1) It is an affirmative defense to a prosecution
17 for a criminal offense or for an offense committed by a juvenile
18 that would be a crime if committed by an adult that the defendant
19 or juvenile was legally insane when he or she committed the acts
20 constituting the offense. An individual is legally insane if, as
21 a result of mental illness or of being mentally retarded as those
22 terms are defined in
section 400a of the mental health code, Act
23 No. 258 of the Public
Acts of 1974, being section 330.1400a of
24 the Michigan Compiled
Laws, or as a result of being mentally
25 retarded as defined in
section 500(h) of the mental health code,
26 Act No. 258 of the
Public Acts of 1974, being section 330.1500 of
27 the Michigan Compiled
Laws 1001a of the mental health
code, 1974
1 PA 258, MCL 330.2001a,
that person individual lacks substantial
2 capacity either to appreciate the nature and quality or the
3 wrongfulness of his or her conduct or to conform his or her
4 conduct to the requirements of the law. Mental illness or being
5 mentally retarded does not otherwise constitute a defense of
6 legal insanity.
7 (2) An individual who was under the influence of voluntarily
8 consumed or injected alcohol or controlled substances at the time
9 of his or her alleged offense is not considered to have been
10 legally insane solely because of being under the influence of the
11 alcohol or controlled substances.
12 (3) The defendant or juvenile has the burden of proving the
13 defense of insanity by a preponderance of the evidence.
14 (4) As used in this section, "juvenile" includes an
15 individual who may be within the jurisdiction of the family
16 division of circuit court under section 2(a)(1) of chapter XIIA
17 of the probate code of 1939, 1939 PA 288, MCL 712A.2.
18 Sec. 36. (1) If the defendant or juvenile asserts a defense
19 of insanity in compliance with section 20a of this chapter, the
20 defendant may be found "guilty but mentally ill" or the juvenile
21 may be found "responsible but mentally ill" if, after trial, the
22 trier of fact finds all of the following:
23 (a) The defendant is guilty beyond a reasonable doubt of an
24 offense or the juvenile is responsible for an offense that would
25 be a crime if committed by an adult.
26 (b) The defendant or juvenile has proven by a preponderance
27 of the evidence that he or she was mentally ill at the time of
1 the commission of that offense.
2 (c) The defendant or juvenile has not established by a
3 preponderance of the evidence that he or she lacked the
4 substantial capacity either to appreciate the nature and quality
5 or the wrongfulness of his or her conduct or to conform his or
6 her conduct to the requirements of the law.
7 (2) If the defendant or juvenile asserts a defense of
8 insanity in compliance with section 20a of this chapter and the
9 defendant or juvenile waives his or her right to trial, by jury
10 or by judge, the trial judge, with the approval of the
11 prosecuting attorney, may accept a plea of guilty but mentally
12 ill in lieu or
responsible but mentally ill instead of a plea
13 of guilty, a plea of responsible, or a plea of nolo contendere.
14 The judge shall not accept a plea of guilty but mentally ill or
15 responsible but mentally ill until, with the defendant's or
16 juvenile's consent, the judge has examined the report or reports
17 prepared in compliance with section 20a of this chapter, the
18 judge has held a hearing on the issue of the defendant's or
19 juvenile's mental illness at which either party may present
20 evidence, and the judge is satisfied that the defendant or
21 juvenile has proven by a preponderance of the evidence that the
22 defendant or juvenile was mentally ill at the time of the offense
23 to which the plea is entered. The reports shall be made a part
24 of the record of the case.
25 (3) If a defendant or juvenile is found guilty but mentally
26 ill or responsible but mentally ill or enters a plea to that
27 effect which that
is accepted by the court, the court shall
1 impose any sentence that could be imposed by law upon a defendant
2 who is convicted of the same offense or upon a juvenile found
3 responsible for the same offense. If the juvenile is committed
4 to the custody of the family independence agency or to a juvenile
5 facility, the juvenile shall undergo further evaluation and be
6 given treatment that is psychiatrically indicated for the
7 juvenile's mental illness or retardation. If the defendant is
8 committed to the custody of the department of corrections, the
9 defendant shall undergo further evaluation and be given such
10 treatment as is psychiatrically indicated for his or her mental
11 illness or retardation. Treatment may be provided by the
12 department of corrections or by the department of community
13 health as provided by law. Sections 1004 and 1006 of the mental
14 health code, 1974 PA 258, MCL 330.2004 and 330.2006, apply to the
15 discharge of the defendant from a facility of the department of
16 community health to which the defendant has been admitted and to
17 the return of the defendant to the department of corrections for
18 the balance of the defendant's sentence. When a treating
19 facility designated by either the department of corrections or
20 the department of community health discharges the defendant
21 before the expiration of the defendant's sentence, that treating
22 facility shall transmit to the parole board a report on the
23 condition of the defendant that contains the clinical facts, the
24 diagnosis, the course of treatment, the prognosis for the
25 remission of symptoms, the potential for recidivism, the danger
26 of the defendant to himself or herself or to the public, and
27 recommendations for future treatment. If the parole board
1 considers the defendant for parole, the board shall consult with
2 the treating facility at which the defendant is being treated or
3 from which the defendant has been discharged and a comparable
4 report on the condition of the defendant shall be filed with the
5 board. If the defendant is placed on parole, the defendant's
6 treatment shall, upon recommendation of the treating facility, be
7 made a condition of parole. Failure to continue treatment except
8 by agreement with the designated facility and parole board is
9 grounds for revocation of parole.
10 (4) If a defendant who is found guilty but mentally ill or a
11 juvenile who is responsible for an offense that would be a crime
12 if committed by an adult is placed on probation under the
13 jurisdiction of the sentencing court as provided by law, the
14 trial judge, upon recommendation of the center for forensic
15 psychiatry, shall make treatment a condition of probation.
16 Reports as specified by the trial judge shall be filed with the
17 probation officer and the sentencing court. Failure to continue
18 treatment, except by agreement with the treating agency and the
19 sentencing court, is grounds for revocation of probation. The
20 period of probation for a defendant shall not be for less than
21 5 years and shall not be shortened without receipt and
22 consideration of a forensic psychiatric report by the sentencing
23 court. The period of probation for a juvenile shall extend to
24 the juvenile's twenty-first birthday. The period of probation
25 for a juvenile shall not be shortened without receipt and
26 consideration of a forensic psychiatric report by the sentencing
27 court. Treatment shall be provided by an agency of the department
1 of community health or, with the approval of the sentencing court
2 and at individual expense, by private agencies, private
3 physicians, or other mental health personnel. A psychiatric
4 report shall be filed with the probation officer and the
5 sentencing court every 3 months during the period of probation.
6 If a motion on a petition to discontinue probation is made by the
7 defendant or juvenile, the probation officer shall request a
8 report as specified from the center for forensic psychiatry or
9 any other facility certified by the department of
community
10 health for the performance of forensic psychiatric evaluation.
11 (5) As used in this section, "juvenile" includes an
12 individual who may be within the jurisdiction of the family
13 division of circuit court under section 2(a)(1) of chapter XIIA
14 of the probate code of 1939, 1939 PA 288, MCL 712A.2.
15 Enacting section 1. This amendatory act does not take
16 effect unless all of the following bills of the 92nd Legislature
17 are enacted into law:
18 (a) Senate Bill No. ________ or House Bill No. 6130
19 (request no. 02327'03).
20 (b) Senate Bill No. _______ or House Bill No. 6131
21 (request no. 02328'03).