6.16Crime Victim’s Impact Statement¹

A crime victim has a constitutional right “to make a statement to the court at sentencing.” Const 1963, art 1, § 24. See also MCL 780.751 et seq. (Crime Victim Rights Act); MCR 6.425(D)(1)(c)(iv) (requiring the sentencing court to give the victim an opportunity to address the court); People v Cobbs, 443 Mich 276, 285 (1993) (recognizing a crime victim’s right of allocution at sentencing).

A crime victim who is physically or emotionally unable to make an oral impact statement at the defendant’s sentencing hearing may designate any other person (who is at least 18 years of age and who is not the defendant and who is not incarcerated) to make the impact statement on the victim’s behalf. MCL 780.765(1) (felonies); MCL 780.793(1) (juveniles); MCL 780.825(1) (serious misdemeanors). The victim may elect to remotely provide the oral impact statement. MCL 780.765(1); MCL 780.793(1); MCL 780.825(1).

A.Defendant Must Be Present

Generally “the defendant must be physically present in the courtroom at the time a victim makes an oral impact statement under [MCL 780.765(1)].” MCL 780.765(2). However, the court has discretion to exclude the defendant if it determines “that the defendant is behaving in a disruptive manner or presents a threat to the safety of any individuals present in the courtroom[.]” Id. In determining whether the defendant should remain physically present in the courtroom, “the court may consider any relevant statement provided by the victim regarding the defendant being physically present during that victim’s oral impact statement.” Id. See also MCL 780.793; MCL 780.825. Pursuant to MCL 769.25(8) or MCL 769.25a(4)(c), the right to make an oral impact statement under MCL 780.765 extends to a sentencing or resentencing hearing under either of those provisions.

B.Court’s Authority to Exempt from Disclosure Statements in PSIR

In addition to the victim impact statement given at the sentencing hearing, “[t]he victim has the right to submit or make a written or oral impact statement to the probation officer for use by that officer in preparing a presentence investigation report concerning the defendant,” and, if requested by the victim, a written statement must be included in the PSIR. MCL 780.764. See also MCL 771.14(2)(b); MCL 780.792; MCL 780.824.

The prosecuting attorney has an obligation to inform the victim that the entire PSIR will be available to the defendant unless the court exempts certain portions from disclosure. MCL 780.763(1)(e). See also MCL 780.823(1)(e). The court has authority to exempt from disclosure “sources of information obtained on a promise of confidentiality.” MCL 771.14(3). See also MCR 6.425(B). When information is exempted from disclosure, the court must state on the record its reasons for the exemption, inform the parties of the nondisclosure, and include a notation in the PSIR indicating the exemption. MCL 771.14(3); MCR 6.425(B).

C.Statements in PSIR

The sentencing court can consider victim impact statements included in the PSIR. See People v Fleming, 428 Mich 408, 418 (1987) (noting defendants did not challenge the victims’ versions of the crime in the presentence report). Further, at a resentencing hearing, the trial court appropriately considered a victim impact statement that was added to the PSIR after the original sentencing hearing. People v Davis, 300 Mich App 502, 509-510 (2013).