Discovery is not permitted in misdemeanor cases, but the district court judge ordered it in a case where the client and I intended to present expert testimony. We intended to produce Dr. Ron Henson, an expert witness from Illinois regarding the impact that GERD has on the accuracy and reliability of a breath test. This is not exactly controversial, since numerous studies have shown that gastroesophygeal reflux disease can inflate breath test scores. The prosecutor called it "junk science" and demanded that we produce expert witness reports and articles.
The prohibition against reciprocal discovery has been a longstanding rule in Michigan. While a criminal defendant is entitled to discovery under constitutional principals and due process requirements, the prosecution is not entitled to discovery in misdemeanor cases. This was set forth in the Michigan Supreme Court’s Administrative Order No.1999-3:
ADMINISTRATIVE ORDER NO. 1999-3
Discovery in Misdemeanor Cases
On order of the Court, in the case of People v Sheldon, 234 Mich App 68; 592 NW2d 121 (1999) (COA Docket No. 204254), the Court of Appeals ruled that MCR 6.201, which provides for discovery in criminal felony cases, also applies to criminal misdemeanor cases. That ruling was premised on an erroneous interpretation of our Administrative Order No. 1994-10. By virtue of this Administrative Order, we wish to inform the bench and bar that MCR 6.201 applies only to criminal felony cases. Administrative Order No. 1994-10 does not enlarge the scope of applicability of MCR 6.201. See MCR 6.001(A) and (B).
Further, the Michigan Supreme Court has held that the statutory provisions of MCL 767.94a do not control discovery in criminal cases. As the Court held in People v. Phillips, 468 Mich 583; 663 NW2d 463 (2003):
The question that logically must be answered first is whether the court rule, MCR 6.201, or the statute, MCL 767.94a, controls discovery in a criminal case. Both the prosecutor and defendant maintain that the court rule governs. We agree that the court rule is currently the governing provision. As both parties correctly point out, in conjunction with issuing MCR 6.201, this Court issued Administrative Order No. 1994-10. The administrative order provided that "discovery in criminal cases heard in the courts of this state is governed by MCR 6.201, and not by MCL 767.94a; MSA 28.1023 (194a)." AO 1994-10. . . . MCR 6.201, not MCL 767.94a, governs discovery in criminal cases.
In addition to the above authority, I produced a number of cases for the lower court to consider. All of those cases held that the prosecutor lacked authority. Nonetheless, the district court judge ruled that we had to produce various materials for the prosecutor to review. I appealed.
On July 21, 2015, the Wayne County Circuit Court, sitting as the appellate court, ruled that the Westland prosecutor and the Westland Judge were wrong!
A copy of the order is attached for my fellow criminal defense attorneys to read, review, and freely use to defeat prosecutors who routinely demand discovery from the defense. This is the second appeal that I have won on this issue, with the 16th District Court in Livonia being reversed a couple of years ago.