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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

In <a href="http://publicdocs.courts.mi.gov:81/opinions/final/coa/20160630_c329924_35_329924.opn.pdf" target="_blank" rel="noreferrer noopener">People v. Davis-Christian</a> (329924), the Court of Appeals rearticulated the proper procedure for a defendant to access a victim’s privileged records previously outlined in People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994) and MCR 6.201(C)(1) and (2).  Specifically, the court held that in order for the court to grant an in camera review of the material, the defendant must first establish, in “articulable fact”, that there is reasonable probability that the records contain information material to the defendant’s defense.  The material may only be disclosed to the defense if the court determines, after an in camera review, that the records indeed reveal this type of evidence necessary to the defense.  Here, the trial court had abused its discretion by granting in camera review of a sexual assault victim’s counseling records without first requiring the defense to establish a reasonable probability that the evidence was material to the defense.

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The defendant here is charged with three counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. The defendant was also charged with one count of accosting a child for immoral purposes after he showed the complainant ‘Internet Pornography’. In response, the defendant sought an order from the trial court permitting him access to the victim’s counseling records arguing that the records likely included impeachment material necessary for his defense. Specifically, defendant asserted that, the victim had sought counseling in the same year for a prior instance of sexual abuse by a non-party. If so, the defendant argued that the minor victim’s exposure to pornography can be attributed to the prior instance of sexual abuse which is inconsistent with her assertion that the defendant exposed her to pornography.

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The COA held that the trial court’s decision was inconsistent with the Michigan Supreme Court’s holding in People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994), which prohibits disclosure of such privileged records when the party seeking disclosure is on an arbitrary fishing expedition.&nbsp; The COA noted that premise underlying the defense’s argument for accessing the records was invalid because the complainant was never claimed the defendant was the first to show her pornography or that she had never seen it before. She simply claimed that the defendant had shown her internet pornography. The COA concluded that the defendant’s attempt to associate the two incidents was clearly “fishing” for evidence and not grounds for the disclosure.

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Madelaine C. Lane

Labor and Employment

No fishing allowed: Defendants may not access victim’s privileged records unless they have good faith basis to believe records contain information material to defense

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No fishing allowed: Defendants may not access victim’s privileged records unless they have good faith basis to believe records contain information material to defense

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