9.3Discovery

MCR 6.201 governs the scope of criminal discovery in Michigan. People v Phillips, 468 Mich 583, 588-589 (2003). See also AO 1994-10 (stating that discovery in criminal cases is governed by MCR 6.201, not MCL 767.94a). Either the subject of discovery must be set out in MCR 6.201, or the party seeking discovery must show good cause why the trial court should order the requested discovery. People v Greenfield (On Reconsideration), 271 Mich App 442, 448 (2006).

“The provisions of MCR 6.201, except for MCR 6.201(A), apply in all misdemeanor proceedings.” MCR 6.610(E)(1). “MCR 6.201(A) only applies in misdemeanor proceedings . . . if a defendant elects to request discovery pursuant to MCR 6.201(A). If a defendant requests discovery pursuant to MCR 6.201(A) and the prosecuting attorney complies, then the defendant must also comply with MCR 6.201(A).” MCR 6.610(E)(2).

“Except as otherwise provided in MCR 2.302(B)(6)^[1], electronic materials are to be treated in the same manner as nonelectronic materials under [MCR 6.201].” MCR 6.201(K). “Nothing in [MCR 6.201] shall be construed to conflict with MCL 600.2163a.”² MCR 6.201(K).

A.Mandatory Disclosure

MCR 6.201(A)³ governs mandatory disclosure and provides that “[i]n addition to disclosures required by provisions of law other than MCL 767.94a,^[4] a party upon request must provide all other parties:

(1) the names and addresses of all lay and expert witnesses whom the party may call at trial; in the alternative, a party may provide the name of the witness and make the witness available to the other party for interview; the witness list may be amended without leave of the court no later than 28 days before trial;^[5]

(2) any written or recorded statement, including electronically recorded statements, pertaining to the case by a lay witness whom the party may call at trial, except that a defendant is not obliged to provide the defendant’s own statement;

(3) the curriculum vitae of an expert the party may call at trial and either a report by the expert or a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion;

(4) any criminal record that the party may use at trial to impeach a witness;

(5) a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial; and

(6) a description of and an opportunity to inspect any tangible physical evidence that the party may introduce at trial, including any document, photograph, or other paper, with copies to be provided on request. A party may request a hearing regarding any question of costs of reproduction, including the cost of providing copies of electronically recorded statements. On good cause shown, the court may order that a party be given the opportunity to test without destruction any tangible physical evidence.”

1.Written/Recorded Statements Under MCR 6.201(A)(2)

“Under [MCR 6.201(A)(2)], a party must provide to all other parties upon request any written or recorded statement by a lay witness whom the party intends to call as a witness at trial, except that a defendant is not obliged to provide his [or her] own statement.” People v Tracey, 221 Mich App 321, 324 (1997).

“An attorney’s interview notes with witnesses intended to be called at trial are not ‘statements’ within the definition provided by [Michigan] discovery rules. Accordingly, neither side is obligated to provide these notes pursuant to a request under MCR 6.201(A)(2).” People v Holtzman, 234 Mich App 166, 189 (1999).

2.Inspections of Physical Evidence Under MCR 6.201(A)(6)

“MCR 6.201(A)(6) [(in part, authorizing the court to order a party be given the opportunity to retest tangible physical evidence)] does not provide the trial court with the authority to order the [Michigan State Police (MSP)] to retest its own evidence.” People v Green, 310 Mich App 249, 256-257 (2015). “Rather, it merely provides the court with the authority to provide [the] defendant with the opportunity to test any tangible physical evidence.” Id. at 257 (trial court abused its discretion in ordering an MSP lab analyst to retest a vial of the defendant’s blood that had already been tested by the analyst; trial court could only order that the defendant be given the opportunity to retest his blood sample).

B.Discovery of Information Known to the Prosecuting Attorney

MCR 6.201(B)⁶ governs discovery of information known to the prosecuting attorney, and provides that “[u]pon request, the prosecuting attorney must provide each defendant:

(1) any exculpatory information or evidence known to the prosecuting attorney;^[7]

(2) any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation;

(3) any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case, even if that person is not a prospective witness at trial;

(4) any affidavit, warrant, and return pertaining to a search or seizure in connection with the case; and

(5) any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.”

“[A]bsent an applicable exception provided for in MCR 6.201, a prosecutor is required to produce unredacted police reports under MCR 6.201(B)(2).” People v Jack, 336 Mich App 316, 326 (2021). In Jack, the prosecutor “provided a redacted police report” that omitted “addresses, phone numbers, and birthdates of several witnesses who were also included on the prosecutor’s witness list,” arguing that “MCR 6.201(A)(1) allows a prosecuting attorney to redact witness contact information from police reports otherwise discoverable under MCR 6.201(B)[.]” Jack, 336 Mich App at 320, 322. “MCR 6.201(A)(1) and MCR 6.201(B)(2) are two separate provisions that deal with two distinct disclosure requirements. MCR 6.201(A)(1) exclusively concerns a party’s obligation to provide a list of the names and addresses of all witnesses whom may be called at trial or, in the alternative, the party can provide the names of the witnesses and make them available for interviews. On the other hand, MCR 6.201(B)(2) concerns the prosecutor’s obligation to provide police reports and interrogation records. The information required to be disclosed under [MCR 6.201(A)(1) and MCR 6.201(B)(2)] is separate and distinct, and the prosecution must comply with the separate requirements of each section of the court rule. Jack, 336 Mich App at 325-326 (noting “the prosecutor may request a protective order under MCR 6.201(E)^[8] or pursue a modification under MCR 6.201(I)^[9]” on remand). “[R]edaction of police reports and interrogation records is permitted only when the information relates to an ongoing investigation.” Jack, 336 Mich App at 324.

Because “contact information of crime victims in discoverable police reports” “is not automatically shielded,” “a trial court must determine in each case whether there is good cause to enter a protective order under MCR 6.201(E) or to modify the discovery rules under MCR 6.201(I).” People v Antaramian, 346 Mich App 710, 713 (2023). “[MCL 780.758(2) of the CVRA] does not permit a prosecutor’s office to automatically redact victim contact information from police reports before discovery in a criminal case.” Antaramian, 346 Mich App at 720. “MCL 780.758(3) similarly does not authorize a prosecutor’s office to implement a policy for redacting victim contact information in police reports produced during discovery.” Antaramian, 346 Mich App at 721. “Even the provisions under MCL 780.581(1) . . . are not automatic.” Antaramian, 346 Mich App at 721, 722. “[MCR 6.201(E)] provides the prosecutor with an avenue to seek judicial permission to withhold otherwise presumptively discoverable contact information.” Antaramian, 346 Mich App at 722 (noting the “Prosecutor’s Office could . . . seek redaction on a case-by-case basis”). The Court of Appeals opined that the “trial court compounded the error by accepting the prosecution’s generalized allegations, essentially affirming the automatic redaction policy of the prosecutor’s office [, which] is not permitted under the plain language of the court rule.” Id. at 723-724. The “trial court must articulate good cause stemming from the facts of [the] case to enter a protective order addressing each proposed redaction.” Id. at 724.

“‘The focus of required disclosure [under MCR 6.201(B)(5) and Brady v Maryland, 373 US 83 (1963),] is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony.’” People v Bosca, 310 Mich App 1, 32-33 (2015), rev’d in part ___ Mich ___ (2022) (holding that where the details of a witness’s plea agreement were read into the trial court record and defense counsel was given the opportunity to cross-examine the witness, “the prosecution made the requisite disclosure sufficient to permit the jury to evaluate [the witness’s] credibility”; although “[the] defendant contend[ed] that the trial court ultimately was more lenient (than the prosecution had recommended) in its sentencing of [the witness], there [was] no demonstration that the more lenient sentencing was the result of any undisclosed sentencing agreement”) (citations omitted and alteration added).

“For due process purposes, there is a crucial distinction between failing to disclose evidence that has been developed and failing to develop evidence in the first instance.” People v Thurmond, ___ Mich App ___, ___ (2023) (citation omitted). “Although the prosecution is required to disclose evidence that has been developed, it is not required to develop evidence that defendant hopes will provide him with a defense.” Id. at ___ (cleaned up). Put differently, “due process does not generally require the prosecution to seek and find exculpatory evidence, or search for evidence that will support a defendant’s case[.]” People v Dimambro, 318 Mich App 204, 213 (2016), citing People v Coy, 258 Mich App 1, 21 (2003). However, “‘the individual prosecutor [does have] a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police[.]” Dimambro, 318 Mich App at 213, quoting Kyles v Whitley, 514 US 419, 437 (1995) (first alteration in original).

C.Prohibited Discovery

MCR 6.201(C)¹⁰ governs prohibited discovery, and provides that “[n]otwithstanding any other provision of this rule, there is no right to discover information or evidence that is protected from disclosure by constitution, statute, or privilege, including information or evidence protected by a defendant’s right against self-incrimination, except as provided in [MCR 6.201(C)(2)].”

“If a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in camera inspection of the records.

(a) If the privilege is absolute, and the privilege holder refuses to waive the privilege to permit an in camera inspection, the trial court shall suppress or strike the privilege holder’s testimony.

(b) If the court is satisfied, following an in camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel. If the privilege is absolute and the privilege holder refuses to waive the privilege to permit disclosure, the trial court shall suppress or strike the privilege holder’s testimony.

(c) Regardless of whether the court determines that the records should be made available to the defense, the court shall make findings sufficient to facilitate meaningful appellate review.

(d) The court shall seal and preserve the records for review in the event of an appeal

(i) by the defendant, on an interlocutory basis or following conviction, if the court determines that the records should not be made available to the defense, or

(ii) by the prosecution, on an interlocutory basis, if the court determines that the records should be made available to the defense.

(e) Records disclosed under this rule shall remain in the exclusive custody of counsel for the parties, shall be used only for the limited purpose approved by the court, and shall be subject to such other terms and conditions as the court may provide.” MCR 6.201(C)(2).

“[D]efendants generally have no right to discover privileged records absent certain special procedures, such as an in camera review of the privileged information conducted by the trial court.” People v Davis-Christian, 316 Mich App 204, 207-208 (2016), citing MCR 6.201(C)(1)-(2). “[A] defendant’s ‘generalized assertion of a need to attack the credibility of his accuser [does] not establish the threshold showing of a reasonable probability that the records contain information material to his defense sufficient to overcome the various statutory privileges.’” People v Allen, 331 Mich App 587, 602 (2020), vacated in part on other grounds 507 Mich 856 (2021)¹¹ (alteration in original), quoting People v Stanaway, 446 Mich 643, 650 (1994).

1.In Camera Reviews

“In a criminal sexual conduct prosecution, an in camera review ‘promotes the state’s interests in protecting the privacy rights of the alleged rape victim while at the same time safeguards the defendant’s right to a fair trial.’” People v Davis-Christian, 316 Mich App 204, 208 (2016), quoting People v Hackett, 421 Mich 338, 350 (1984) (holding that the trial court abused its discretion when it disregarded the court rule and controlling caselaw and articulated its own standard for allowing in camera reviews).

“‘The defendant is obligated initially to make an offer of proof as to the proposed evidence [of a complainant’s prior sexual conduct] and to demonstrate its relevance to the purpose for which it is sought to be admitted.’” People v Butler, ___ Mich ___, ___ (2024), quoting Hackett, 421 Mich at 350. When a defendant seeks to introduce evidence that a complainant has made prior false accusations of rape, “[t]here must be a showing of at least some apparently credible and potentially admissible evidence that the prior allegation was false.” Butler, ___ Mich at ___. “‘Unless there is a sufficient showing of relevancy in the defendant’s offer of proof, the trial court will deny the motion.” Id. at ___, quoting Hackett, 421 Mich at 350. The trial court is required to make an explicit finding on whether “defendant’s offer of proof was sufficient to require an in camera evidentiary hearing under Hackett.” Butler, ___ Mich at ___.

“‘If there is a sufficient offer of proof as to a defendant’s constitutional right to confrontation, as distinct simply from use of sexual conduct as evidence of character or for impeachment, the trial court shall order an in camera evidentiary hearing to determine the admissibility of such evidence in light of the constitutional inquiry previously stated.’” Id. at ___, quoting Hackett, 421 Mich at 350. “Once a sufficient offer of proof is made, the in camera evidentiary hearing is not optional.” Butler, ___ Mich at ___. “‘At this hearing, the trial court has, as always, the responsibility to restrict the scope of cross-examination to prevent questions which would harass, annoy, or humiliate sexual assault victims and to guard against mere fishing expeditions. Moreover, the trial court continues to possess the discretionary power to exclude relevant evidence offered for any purpose where its probative value is substantially outweighed by the risks of unfair prejudice, confusion of issues, or misleading the jury.’” Id. at ___, quoting Hackett, 421 Mich at 350-351. In Butler, “defendant’s offer of proof was sufficient,” but “the trial court erred by failing to conduct an in camera evidentiary hearing before granting admission of the evidence.” Butler, ___ Mich at ___ (holding that “an evidentiary hearing is required under Hackett before the trial court may admit the evidence.”) The Court noted that “the ultimate question of admissibility at trial” rests on “defendant’s evidentiary burden to prove that the prior allegations were false.” Id. at ___ (leaving issue of first impression—adoption of an appropriate standard for defendant’s evidentiary burden—for the lower courts to first assess).

See also People v Stanaway, 446 Mich 643 (1994), on which the current version of MCR 6.201 is based. See MCR 6.201, staff comment to 1996 amendment.

Courts must reject “any attempt by a criminal defendant to articulate ‘a generalized assertion of a need,’ . . . to undermine and attack the credibility of his accuser as a justification for an in camera review of records subject to the counselor-patient privilege.” People v Wisniewski, ___ Mich App ___, ___ (2025), quoting Stanaway, 446 Mich at 650. “Instead, a defendant is required to meet the threshold showing of establishing a reasonable probability that the records contained information material to his defense to overcome the statutory privileges at issue.” Id. at ___ (cleaned up). In Wisniewski, “defendant speculated that the privileged counseling records could contain information helpful to his defense, but he did not identify any specific articulable facts or good-faith basis to indicate that [the victim’s] counseling records actually would contain such helpful information.” Id. at ___. “Aside from self-serving and conclusory allegations that [the victim had] an unspecified mental-health condition, and that her demeanor at the preliminary examination was unusual, defendant [failed to] put forth concrete facts establishing a reasonable probability that her counseling records contained information material to his defense.” Id. at ___ (noting that while the victim “did appear to stumble and struggle upon rapid-fire and aggressive questioning from defense counsel,” her preliminary examination testimony was “largely . . . clear, cogent, and articulate”). Accordingly, “the trial court did not abuse its discretion by denying defendant’s motion for an in camera review of [the victim’s] counseling records as defendant did not establish a reasonable probability that the privileged records were likely to contain material information necessary to his defense.” Id. at ___.

2.Work-Product Privilege

“[T]he work-product privilege applies in the context of criminal proceedings to the work product of the prosecutor.” Gilmore, 222 Mich App at 453. And “to the extent that the prosecutor may be entitled to discovery of materials in defense counsel’s possession . . . the work-product privilege would apply with equal force.” Id. at 453 n 9.

D.Excision

“When some parts of material or information are discoverable and other parts are not discoverable, the party must disclose the discoverable parts and may excise the remainder.” MCR 6.201(D).¹² “The party must inform the other party that nondiscoverable information has been excised and withheld.” Id. “On motion, the court must conduct a hearing in camera to determine whether the reasons for the excision are justifiable.” Id. “If the court upholds the excision, it must seal and preserve the record of the hearing for review in the event of an appeal.” Id.

E.Protective Orders

“On motion and a showing of good cause, the court may enter an appropriate protective order.” MCR 6.201(E).¹³ “In considering whether good cause exists, the court shall consider[:]

•the parties’ interests in a fair trial;

•the risk to any person of harm, undue annoyance, intimidation, embarrassment, or threats;

•the risk that evidence will be fabricated; and

•the need for secrecy regarding the identity of informants or other law enforcement matters.” MCR 6.201(E) (bullets added).

“On motion, with notice to the other party, the court may permit the showing of good cause for a protective order to be made in camera.” MCR 6.201(E). “If the court grants a protective order, it must seal and preserve the record of the hearing for review in the event of an appeal.” Id.

F.Timing of Discovery

“Unless otherwise ordered by the court, the prosecuting attorney must comply with the requirements of [MCR 6.201] within 21 days of a request under [MCR 6.201] and a defendant must comply with the requirements of [MCR 6.201] within 21 days of a request under [MCR 6.201].” MCR 6.201(F).¹⁴

G.Copies

“Except as ordered by the court on good cause shown, a party’s obligation to provide a photograph or paper of any kind is satisfied by providing a clear copy.” MCR 6.201(G).¹⁵

H.Continuing Duty to Disclose

“If at any time a party discovers additional information or material subject to disclosure under [MCR 6.201], the party, without further request, must promptly notify the other party.” MCR 6.201(H).¹⁶ See also People v Aldrich, 246 Mich App 101, 133 n 7 (2001) (“[p]rosecutors have a ‘continuing’ duty to disclose . . . material evidence”).

I.Modification

“On good cause shown, the court may order a modification of the requirements and prohibitions of [MCR 6.201].” MCR 6.201(I).¹⁷ 

J.Failure to Comply with Discovery Requirements

“If a party fails to comply with [MCR 6.201], the court, in its discretion, 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 under the circumstances.” MCR 6.201(J).¹⁸ “Parties are encouraged to bring questions of noncompliance before the court at the earliest opportunity.” Id. An attorney who willfully violates a discovery rule or a court order issued pursuant to a discovery rule may be subject to court-ordered sanctions, including contempt of court. Id.; see MCL 600.1701(g).¹⁹ A court’s order under MCR 6.201(J) is reviewable for abuse of discretion. MCR 6.201(J).

K.Suppression of Evidence - Brady Violation

“‘[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process [(i.e. a Brady violation)] where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,’” and irrespective of whether defense counsel exercised “reasonable diligence” to discover the evidence. People v Chenault, 495 Mich 142, 149, 152, 155 (2014), quoting Brady v Maryland, 373 US 83, 87 (1963), and overruling People v Lester, 232 Mich App 262 (1998).²⁰ In order to establish a Brady violation, a defendant must establish that “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is material.” Chenault, 495 Mich at 155, citing Strickler v Greene, 527 US 263, 281-282 (1999).

1.Materiality

"[F]undamental fairness requires the government to disclose evidence that calls an individual's guilt into question when it charges them with a crime"—"[t]he legal test for determining whether relief follows the government's failure to give an accused exculpatory information" is whether the suppressed evidence was "material." People v Christian, ___ Mich ___, ___ (2022). “To establish materiality[ of alleged Brady evidence], a defendant must show that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’” People v Chenault, 495 Mich 142, 150 (2014), quoting United States v Bagley, 473 US 667, 682 (1985). However, in evaluating the materiality of suppressed evidence, “‘[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he [or she] received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’” Chenault, 495 Mich at 157, quoting Kyles, 514 US at 434. “A defendant need not demonstrate by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Christian, ___ Mich at ___ (cleaned up). See Smith v Cain, 565 US 73, 75-76 (2012) (the petitioner established a Brady violation where a police investigator’s undisclosed notes contained statements directly contradicting an eyewitness’s trial testimony; because the eyewitness’s testimony constituted the sole evidence linking the petitioner to the crime, the evidence was “material” within the meaning of Brady, 373 US at 87); Dimambro, 318 Mich App at 221 (expert testimony regarding undisclosed medical examiner photographs “demonstrate[d] that there [was] a reasonable probability that the outcome of the trial might have been different had the photographs been disclosed to the defense” where the photographs may have revealed that the child-victim’s injuries were not intentionally inflicted).

2.Favorable Evidence

“Evidence is favorable to the defense when it is either exculpatory or impeaching. When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule of Brady.” People v Dimambro, 318 Mich App 204, 216 (2016) (cleaned up).

“[T]he United States Supreme Court has not specifically delineated the outlines of what constitutes ‘favorable evidence’” under Brady, and “even the most generous reading of the ‘favorable evidence’ standard would [not] require the prosecution to disclose evidence whose utility lay only in helping a defendant contour a portion of his cross-examination of a key state witness.” People v Banks, 249 Mich App 247, 255 (2002); see also People v Dickinson, 321 Mich App 1, 5-6 (2017).

3.Scope of Brady Duty

The Brady duty extends to impeachment evidence and exculpatory evidence. Youngblood v West Virginia, 547 US 867, 869 (2006). A Brady violation even occurs when the government fails to turn over evidence that is known only to the police, and not to the prosecutor. Youngblood, 547 US at 869-870.

4.Caselaw

The suppression by the prosecution of "the transcript of an interview with its most important witness," where "[t]he transcript reveal[ed] that what the witness said in the interview differed from a later interview and the testimony he provided at both the preliminary examination and at trial" meet the materiality threshold "[b]ecause the suppressed evidence undermine[d] the prosecution's star witness's testimony—testimony which [was] the thread that tie[d] together the rest of the evidence[.]" People v Christian, ___ Mich ___, ___ (2022). "The transcript [was] material because the defendants . . . demonstrated a reasonable probability that had it been disclosed, the result of the trial would have been different" because "[i]t would have been powerful impeachment evidence of . . . the prosecution's central witness, making the defendants' argument that he was fabricating his story more likely." Id. at ___. "And if the jury did not believe [the central witness], the other evidence would also be less believable." Id. at ___ (holding that defendants were entitled to a new trial "[b]ecause the prosecution suppressed evidence that was both favorable and material to the defense).

Where defendant was charged with arson, “the disclosure of the fire chiefs’ changes in opinion [regarding the fire’s point of origin] for the first time at trial amount[ed] to a Brady violation.” People v Burger, 331 Mich App 504, 518 (2020). The change in opinion “was favorable to defendant because it was consistent with [the testimony of defendant’s expert] and provided a basis to impeach the fire chiefs’ testimony.” Id. “Although the evidence suppressed by the prosecution was favorable to defendant and material to the case,” defendant failed to establish that he was entitled to relief “because [he did] not show[] that earlier disclosure would have affected the outcome of trial.” Id. at 519 (noting “defendant was able to present [expert] testimony, which concluded the chiefs’ reports were deficient”).

In People v Dimambro, 318 Mich App 204, 211, 222 (2016), the Michigan Court of Appeals held that, where autopsy photographs that were under the control of the medical examiner were not turned over to either the prosecution or the defense until after the defendant’s trial, “the prosecution’s failure to disclose the . . . photographs constituted a Brady violation” requiring a new trial; “whether inadvertent or not, . . . the prosecution suppressed the photographs for Brady purposes, despite the fact that the medical examiner had sole possession of them[.]” “[G]iven a county’s medical examiner’s duty [under the county medical examiners act, MCL 52.201 et seq.,] to act on the government’s behalf in cases involving violent or unexpected deaths in Michigan, . . . (1) the medical examiner may be understood as acting on the government’s behalf in a particular case,  . . . and (2) responsibility for evidence within the medical examiner’s control may be imputed to the government, even if unknown to the prosecution.” Dimambro, 318 Mich App at 215 (quotation marks and citations omitted).

L.Determining a Remedy²¹

“When determining an appropriate remedy for a discovery violation, the trial court must balance the interests of the courts, the public, and the parties in light of all the relevant circumstances[.]” People v Jackson, 292 Mich App 583, 591 (2011) (internal quotation omitted). For example, where the prosecution’s failure to disclose a transcript of a witness’s prior statements, given pursuant to an investigative subpoena, violated MCR 6.201(A)(2) but did not constitute a Brady violation, precluding the prosecution from questioning the witness regarding the statements and allowing defense counsel to review the transcript before cross-examining the witness did not constitute an abuse of discretion. Jackson, 292 Mich App at 590-592.

If an inadvertent discovery violation is established, a trial court may grant a continuance, if requested, to alleviate any harm by allowing both parties to prepare for the new evidence without requiring the exclusion of relevant evidence. People v Elston, 462 Mich 751, 764 (2000). See also People v Banks, 249 Mich App 247, 252 (2002), where the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial based on the prosecution’s inadvertent failure to disclose a police report because the defendant’s credibility and case were not completely destroyed by the discovery violation under the facts of the case.