11.8Alternative Procedures to Obtain Testimony of Child or Developmentally Disabled Witness
In general, a trial court is given broad authority to employ special procedures to protect any victim or witness while testifying. MRE 611(a). Specifically, MRE 611 provides:
“(a) Control by the Court; Purposes. The court must exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.” See also MCL 768.29.
Note: MRE 611(a) contains no age or developmental disability restrictions and thus may be applied to all victims and witnesses. Moreover, MRE 611(a) contains no restrictions as to the specific type of procedures or protections that may be employed to protect victims and witnesses. Some of these procedures may include permitting the use of dolls or mannequins, providing a support person, rearranging the courtroom, shielding or screening the witness from the defendant, and allowing closed-circuit television or videotaped depositions in lieu of live, in-court testimony. See Section 11.8(B).
During child protective proceedings, the court may appoint an impartial person to address questions to a child witness. MCR 3.923(F).
MCL 712A.17b provides specific protections or procedures to a witness in addition to those afforded to a witness by law or court rule. MCL 712A.17b(18). The special statutory protections in MCL 712A.17b apply to witnesses who are either:
•under 16 years of age, or
•16 years of age or older and developmentally disabled. MCL 712A.17b(1)(e).
A developmental disability is defined in MCL 330.1100a(27). MCL 712A.17b(1)(b). However, the Juvenile Code limits this definition to “include[] only a condition that is attributable to a mental impairment or to a combination of mental and physical impairments, and . . . not include a condition attributable to a physical impairment unaccompanied by a mental impairment.” Id. Keeping these limitations in mind, MCL 330.1100a(27) defines developmental disability to mean one of the following:
“(a) If applied to an individual older than 5 years of age, a severe, chronic condition that meets all of the following requirements:
(i) Is attributable to a mental or physical impairment or a combination of mental and physical impairments.
(ii) Is manifested before the individual is 22 years old.
(iii) Is likely to continue indefinitely.
(iv) Results in substantial functional limitations in 3 or more of the following areas of major life activity:
(A) Self-care.
(B) Receptive and expressive language.
(C) Learning.
(D) Mobility.
(E) Self-direction.
(F) Capacity for independent living.
(G) Economic self-sufficiency.
(v) Reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.
(b) If applied to a minor from birth to 5 years of age, a substantial developmental delay or a specific congenital or acquired condition with a high probability of resulting in developmental disability as defined in subdivision (a) if services are not provided.”
If the age or disability requirements of MCL 712A.17b are met, the court may allow one or more of the following measures to protect a witness or a party:
(1) use of dolls or mannequins.
(2) provide support person.
(3) use of videotaped depositions.
(4) use of videorecorded statements.
(5) use of videoconferencing technology. MCR 3.923(E). See also MCL 712A.17b(3)-(5).
“If pertinent, the [child or developmentally disabled] witness shall be permitted the use of dolls or mannequins, including, but not limited to, anatomically correct dolls or mannequins, to assist the witness in testifying on direct and cross-examination.” MCL 712A.17b(3). See MCR 3.923(E).
“A [child or developmentally disabled] witness who is called upon to testify shall be permitted to have a support person sit with, accompany, or be in close proximity to the witness during his or her testimony.” MCL 712A.17b(4). See MCR 3.923(E). See also People v Rockey, 237 Mich App 74, 78 (1999) (trial court did not err in allowing a seven-year-old sexual assault victim to sit on her father’s lap while testifying where there was no evidence of nonverbal communication between the victim and her father); People v Jehnsen, 183 Mich App 305, 308-311 (1990) (trial court did not err in allowing four-year-old victim’s mother to remain in courtroom following the mother’s testimony despite engaging in “nonverbal behavior which could have communicated the mother’s judgment of the appropriate answers to questions on cross-examination[,]” where the trial court found no correlation between the mother’s conduct and the victim’s answers).1
A notice of intent to use a support person must be filed with the court and served on all the parties. MCL 712A.17b(4). The notice of intent must:
(1) name the support person;
(2) identify the relationship the support person has with the child or developmentally disabled witness; and
(3) give notice that the child or developmentally disabled witness may request that the support person sit with him or her during any stage of the proceeding. MCL 712A.17b(4).
A party may file a motion objecting to the use of a named support person. See MCL 712A.17b(4). If a party objects, the court must rule on the motion “before the date at which the [child or developmentally disabled] witness desires to use the support person.” Id.
“The court may allow the use of videotaped . . . depositions . . . to protect the child witness as authorized by MCL 712A.17b.” MCR 3.923(E). The court may order a videorecorded deposition of a child or developmentally disabled victim witness on motion of a party or in the court’s discretion. MCL 712A.17b(13).
“[I]f, upon the motion of a party or in the court’s discretion, the court finds on the record that psychological harm to the witness would occur if the witness were to testify at the adjudication stage, the court shall order to be taken a videorecorded deposition of a [child or developmentally disabled] witness that shall be admitted into evidence at the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(13).
If the court permits the use of a videorecorded deposition, “[t]he examination and cross-examination of the witness in the videorecorded deposition shall proceed in the same manner as permitted at the adjudication stage.” MCL 712A.17b(13).
Use of a child’s videotaped deposition did not deprive the respondent-parents of their due process rights to confrontation where an expert testified to the child’s inability to communicate if attorneys questioned her and that she may suffer trauma if forced to participate in cross-examination, and during the deposition, the respondent-parents’ counsel observed the child through a one-way window and submitted questions before and during the deposition. In re Brock, 442 Mich 101, 105-115 (1993).2 The Court found that although parents “have an important liberty interest in the management of their children that is protected by due process[,] . . . the child’s welfare is primary in child protective proceedings.” In re Brock, supra at 114-115. Thus, where “the spirit of confrontation and cross-examination [can] only be achieved by alternative, nontraditional procedures, deviation from traditional practices should be allowed.” Id. at 115.
“The court may allow the use of videotaped statements . . . to protect the child witness as authorized by MCL 712A.17b.” MCR 3.923(E). A videorecorded statement is “a witness’s statement taken by a custodian of the videorecorded statement[3] as provided in [MCL 712A.17b(5)].” MCL 712A.17b(1)(d). See Section 2.3(B) for additional information on the taking of a child’s videorecorded statement.
A videotaped statement must be admitted, in lieu of live testimony, for all stages of the proceeding except for trial. MCL 712A.17b(5). See In re Martin, 316 Mich App 73, 83-84 (2016) (reversing the trial court’s order of adjudication with respect to the respondent-father and the order terminating his parental rights where the trial court erroneously relied on the child’s videorecorded statement contained in a DVD instead of live testimony to adjudicate the respondent-father).4
“MCL 712A.17b(5) requires a trial court to admit videorecordings of a child’s forensic interview during a non-adjudicatory stage,” rather than a “forensic [interviewer’s] interpretation of [the child’s] statements.” In re Brown/Kindle/Muhammad, 305 Mich App 623, 632, 633 (2014).
“Each respondent and, if represented, his or her attorney has the right to view and hear the videorecorded statement at a reasonable time before it is offered into evidence.” MCL 712A.17b(7). The court may also order that the defense receive a copy of the videorecorded statement “[i]n preparation for a court proceeding and under protective conditions, including, but not limited to, a prohibition on the copying, release, display, or circulation of the videorecorded statement[.]” Id.
Note: MCL 712A.17b(7) permits “[a] custodian of the videorecorded statement [to] release or consent to the release or use of a videorecorded statement or copies of a videorecorded statement to a law enforcement agency, an agency authorized to prosecute the criminal case to which the videorecorded statement relates, or an entity that is part of county protocols established under . . . MCL 722.628.”
“A videorecorded statement that becomes part of the court record is subject to a protective order of the court for the purpose of protecting the privacy of the witness.” MCL 712A.17b(10).
5.Videoconferencing Technology or Other Electronic Equipment
“The court may allow the use of videoconferencing technology, speaker telephone, or other similar electronic equipment to facilitate hearings or to protect the parties.” MCR 3.923(E).
In order to preserve a respondent’s due process rights, including the right to confront witnesses against him or her face-to-face, the court must hear evidence and make particularized, case-specific findings that the procedure is necessary to protect the welfare of a child witness who seeks to testify. Maryland v Craig, 497 US 836, 855-856 (1990). See also In re Brock, 442 Mich at 110.5 However, Craig is limited “to the specific facts it decided”:
“[A] child victim may testify against the accused by means of one-way video (or a similar Craig-type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection.” People v Jemison, 505 Mich 352, 365 (2020).
The United States Supreme Court, in Craig, provided more detail:
“The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. . . . The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. . . . Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than ‘mere nervousness or excitement or some reluctance to testify’. . . .” (Internal citations omitted).
C.Notice of Intent to Use Special Procedure
A party must give notice of his or her intent to use certain alternative procedures. MCR 3.922(F)(1).
Within 21 days after the parties have been notified of a trial date (but no later than seven days before trial), the proponent must file with the court and serve all parties the written notice of intent. MCR 3.922(F)(1). The written notice of intent must indicate that the proponent intends to:
“(a) use a support person, including the identity of the support person, the relationship to the witness, and the anticipated location of the support person during the hearing.
(b) request special arrangements for a closed courtroom or for restricting the view of the respondent/defendant from the witness or other special arrangements allowed under law and ordered by the court.
(c) use a videotaped deposition as permitted by law.” MCR 3.922(F)(1).
A nonproponent party must provide written notice to the court of the intent to offer rebuttal testimony or evidence opposing the request, including the identity of any witnesses to be called, within seven days of receiving notice of the proponent’s intent (but no later than two days before trial). MCR 3.922(F)(2).
“The court may shorten the time periods provided in [MCR 3.922(F)] if good cause is shown.” MCR 3.922(F)(3).
1 These cases were decided under the authority of a similar statute, MCL 600.2163a, which only applies to criminal cases. Although MCL 712A.17b(4) and MCL 600.2163a(4) both permit the use of a support person, MCL 600.2163a also permits a courtroom support dog and extends these protections to certain vulnerable adult victim-witnesses.
2 The Michigan Supreme Court also concluded that the Sixth Amendment right to confrontation was inapplicable to child protective proceedings because that right only applies to criminal proceedings. In re Brock, 442 Mich at 108. For information on an individual’s Sixth Amendment right to confrontation in a criminal case, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 3.
3 “‘Custodian of the videorecorded statement’ means the investigating law enforcement agency, prosecuting attorney, or department of attorney general or another person designated under the county protocols established as required by . . . MCL 722.628.” MCL 712A.17b(1)(a).
4 For additional information on the admissibility of a child’s statement through a third-party witness, see Section 11.4(B).
5 The Michigan Supreme Court concluded that the Sixth Amendment right of confrontation was inapplicable to child protective proceedings because that right only applies to criminal proceedings. In re Brock, 442 Mich at 108.