Discovery in Criminal Cases--criminal records

In People v Sluck, Unpub Per Curiam, (#302215, 11/1/2012) the Court of Appeals held that a prosecutor can be compelled to compile a list of its own witnesses’ criminal records by a review of its own files. In Sluck the defendant had relied on MRE 6.201(A) and requested, in part, that the prosecution disclose the complainant’s criminal history; the prosecuting attorney indicated at the motion hearing that her office had the information in its possession.

Discovery in criminal cases is governed by MCR 6.201.  

MCR 6.201(A), titled “Mandatory Disclosure,” provides in relevant part: [i]n addition to disclosures required by provisions of law other than MCL 767.94a, a party upon request must provide all other parties . . . * * * (4) any criminal record that the party may use at trial to impeach a witness; [and] (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 . . . . [Emphasis added.]  Because disclosure under MCR 6.201(A) is mandatory, when a party requests information under the court rule, that information must be provided to the requesting party. People v Laws, 218 Mich App 447, 454-455 (1996).

This includes the possibility of juvenile adjudications.  Although not generally admissible at trial, records of juvenile adjudications of a witness other than the accused may be admissible at a criminal trial under MRE 609(e) if “conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the case or proceeding.” Crimes “admissible to attack the credibility of an adult” are covered by MRE 609(a), and are defined as those crimes an essential element of which is dishonesty or false statement, or those crimes an essential element of which involves theft, are punishable by over a year in prison, and which have “significant probative value on the issue of credibility.” People v Parcha, 227 Mich App 236, 241-242 (1997).   And, necessarily, a trial court must have access to criminal records or juvenile adjudications in order to perform its gate-keeping function to determine if they are admissible under MRE 609. Laws, 218 Mich App at 452 (a trial court may conduct an in-camera review to determine if evidence is discoverable); People v Small, 467 Mich 259, 264 (2002), quoting MCL 768.29 (“[i]t shall be the duty of the judge to control all proceedings . . . and to limit the introduction of evidence . . . to relevant and material matters . . .”).

On appeal the people argued in Sluck that Elkhoja II, infra and the LEIN statute prohibited the people from conducting a lien search in behalf of the defendant.  In People v Elkhoja, 658 NW2d 153 (2003) (Elkhoja II), the Supreme Court issued an order that adopted the dissent in People v Elkhoja, 251 Mich App 417 (2002) (Elkhoja I) that in conjunction with MCL 6.201(A)(5), and the LEIN statute a prosecutor cannot be compelled to conduct a LEIN search on behalf of a defendant.  However, the Court of Appeals in Sluck held that this does not prevent the trial court from compelling a prosecutor to compile a list of its own witnesses’ criminal records by review of its own files without resorting to an independent search of the LEIN database. Records of criminal convictions, unearthed by the prosecution in prior cases, are “known” to the prosecution for purposes of MCR 6.201. To hold otherwise would allow prosecutors to remain willfully ignorant of valuable impeachment evidence to which defendants are otherwise entitled.