Legislative Analysis
Phone: (517) 373-8080
REQUIRE PERSONAL INFORMATION OF VICTIMS
http://www.house.mi.gov/hfa
AND WITNESSES TO BE CONFIDENTIAL
Analysis available at
House Bill 4738 as reported from committee http://www.legislature.mi.gov
Sponsor: Rep. Kelly Breen
House Bill 4739 as reported from committee
Sponsor: Rep. Denise Mentzer
Committee: Judiciary
Complete to 6-29-23
BRIEF SUMMARY: House Bill 4738 would amend the Code of Criminal Procedure, and House Bill
4739 would amend the William Van Regenmorter Crime Victim’s Rights Act, to require
prosecuting attorneys to redact the personal information of witnesses and victims of crimes
from certain court documents and to allow disclosure of the personal information to the defense
counsel or the defendant (if not represented by counsel) only upon an order of the court. An
unauthorized disclosure would be a misdemeanor offense.
FISCAL IMPACT: Since the potential number of new misdemeanor crimes for unlawfully disclosing
confidential information is unknown, the fiscal impact of the bills is indeterminate. (See Fiscal
Information, below, for more information.)
THE APPARENT PROBLEM:
Generally speaking, the rules of discovery govern the types of information that one party to a
criminal proceeding must provide to another upon request. For instance, Rule 6.201 of the
Michigan Court Rules (MCR 6.201) mandates that the names and addresses of witnesses who
may be called to testify at trial must be turned over to the other party or parties upon request,
although in the alternative a party could just provide the name and make that witness available
to the other party for an interview. The rule also requires certain information known to the
prosecuting attorney, such as a police report, to be provided to each defendant. However, if
good cause can be shown that disclosing certain information to another party may, among other
things, pose a risk of harm, intimidation, embarrassment, or threats to any person, a court can
grant a motion to enter a protective order that excludes the information from the mandatory
disclosure requirements.
According to committee testimony, some prosecutors have routinely redacted the contact
information of witnesses from police reports before providing the documents to the defense
without first seeking a protective order from the court. A few years ago, this practice was
challenged in a criminal case, and the trial court granted the defendant’s motion to compel the
prosecution to provide an unredacted police report on the basis that Michigan court rules do
not authorize redacting police reports absent a protective order. The prosecution appealed the
trial court’s order to the state Court of Appeals, which held that “the prosecution cannot redact
witness contact information from police reports produced during discovery absent a showing
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 of good cause under MCR 6.201(E) or (I).” 1 Earlier this year, in a case based on “whether the
contact information of crime victims in discoverable police reports is entitled to heightened
protection,” the Court of Appeals held that such “information is not automatically shielded”
and that “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).”2
According to committee testimony, the impact from the case regarding protecting witness
information is already being felt in the increased fear and hesitancy of witnesses to come
forward and testify and also in delays of prosecution while prosecutors file motions to suppress
the personally identifiable information contained in unredacted police reports. With the more
recent decision concerning the protection of victim information, members of law enforcement
and victim advocates are concerned that the ruling will further discourage victims from
reporting crimes against them.
Legislation has been offered to require prosecutors to redact certain personal information of
victims and witnesses and require a defendant to move the court for the release of redacted
information.
THE CONTENT OF THE BILLS:
The William Van Regenmorter Crime Victim’s Rights Act identifies various rights afforded to
victims of a crime, including not having certain information in the court file or ordinary court
documents, with some exceptions, and exempting certain information from disclosure under
the Freedom of Information Act (FOIA). The Code of Criminal Procedure, among other things,
provides for proceedings before trial and the filing of informations, including the required
prosecutorial disclosure of the names of certain witnesses.
The bills would each add a new section to their respective acts to require the prosecuting
attorney to keep the personal information of any victim or witness confidential unless the
personal information is a part of the res gestae of the charged crime. 3 Personal information
would have to be redacted by the prosecuting attorney from a document provided to the
defendant or the defendant’s counsel, as well as from a document submitted by the prosecutor
as an ordinary court document or that will be entered into the court file.
Personal information would mean the following information of an individual, but
would not include the location of a charged crime:
• Home address.
• Telephone number and cell phone number.
• Driver’s license number or official state personal identification card number.
1
People v Jack, 336 Mich App 316 (March 11, 2021) https://www.courts.michigan.gov/493adb/siteassets/case-
documents/uploads/opinions/final/coa/20210311_c354524_32_354524.opn.pdf
2
People v Antaramian. Mich App, Docket No. 362604 (May 11, 2023)
https://www.courts.michigan.gov/49ba43/siteassets/case-
documents/uploads/opinions/final/coa/20230511_c362604_34_362604.opn.pdf
3
Res gestae is Latin for “things done” or “things transacted.” It refers to the facts and events that constitute an alleged
crime or litigated issue. The phrase has often been used in the context of determining what testimony can be admitted
as evidence and what is inadmissible under the hearsay rule. In the context of these bills, it would appear to signify
information that is part of the facts of the alleged crime.
House Fiscal Agency HBs 4738 and 4739 as reported Page 2 of 6
 • Social Security number.
• Date of birth.
• Place and address of employment and employee identification number.
• Mother’s maiden name.
• Demand deposit account, savings account, or checking account number or
other financial identification information.
• Credit card number.
• Email address.
• Internet identifier, defined to mean a designation used for self-identification or
routing used in posting on the internet or in other internet communications.
• Home address, telephone number, and cell phone number of a family member.
The bills would not alleviate the obligation otherwise required under law to make a victim or
witness available for interview by the other party.
In addition, the bills would not authorize the disclosure of the confidential address of a program
participant under the Address Confidentiality Program Act or preclude the release of
information to a victim advocacy organization or agency for the purpose of providing victim
services. (Among other things, the Address Confidentiality Program Act provides a participant
with a designated address to use for various legal purposes instead of the participant’s actual
home address, which is kept confidential.)
On motion by the defendant, and subject to the above provision, the court could order the
prosecuting attorney to provide personal information of a witness or a victim to the defendant
or the defendant’s counsel. The motion would have to meet the following requirements:
• Explain the limited purpose for which the personal information is sought.
• Demonstrate that the personal information requested is reasonably necessary to provide
an adequate defense.
If the motion were granted, the order would have to do all of the following:
• Limit the disclosure of the personal information to the extent the disclosure is
reasonably necessary to provide an adequate defense.
• Specify the limited purpose for which the personal information may be used.
• Prohibit the reproduction, copying, or dissemination of the personal information not
authorized in the order.
• Except as provided below, require the personal information to remain in the exclusive
custody of the defendant (if not represented by counsel) or the defendant’s counsel.
• Include conditions and terms for the defendant (if not represented by counsel) or the
defendant’s counsel to provide the personal information to the counsel’s or defendant’s
agent, employee, or expert witness if necessary for a limited purpose approved by the
court.
A person who is required to keep confidential or redact personal information under the bills
and who intentionally and willfully discloses that personal information in violation of the bills
would be guilty of a misdemeanor punishable by imprisonment for up to 93 days or a fine of
up to $500, or both.
HB 4738 (Code of Criminal Procedure): Proposed MCL 767.40b
HB 4739 (Crime Victim’s Rights Act): Proposed MCL 780.758a
House Fiscal Agency HBs 4738 and 4739 as reported Page 3 of 6
BACKGROUND:
Section 2(1)(m) of the William Van Regenmorter Crime Victim’s Rights Act defines the term
victim, for purposes of that act, to mean any of the following:
• Except as provided below, an individual who suffers direct or threatened physical,
financial, or emotional harm as a result of the commission of a crime.
• Except for the purpose only of submitting or making an impact statement as provided
below, the following individuals other than the defendant if the victim is deceased:
o The spouse of the deceased victim.
o A child of the deceased victim if the above does not apply and the child is 18
years of age or older.
o A parent of the deceased victim if the above do not apply.
o The guardian or custodian of a child of the deceased victim if the above do not
apply and the child is less than 18 years of age.
o A sibling of the deceased victim if the above do not apply.
o A grandparent of the deceased victim if the above do not apply.
• A parent, guardian, or custodian of a victim who is less than 18 years of age if the
parent, guardian, or custodian so chooses and is neither the defendant nor incarcerated.
• A parent, guardian, or custodian of a victim who is mentally or emotionally unable to
participate in the legal process if the parent, guardian, or custodian is neither the
defendant nor incarcerated.
• For the purpose only of submitting or making an impact statement, if the individual
who suffers direct or threatened physical, financial, or emotional harm as a result of
the commission of a crime is deceased, is so mentally incapacitated that they cannot
meaningfully understand or participate in the legal process, or consents to the
individual’s designation as a victim, the following individuals other than the defendant:
o The spouse of the victim.
o A child of the victim if the child is 18 years of age or older.
o A parent of the victim.
o The guardian or custodian of a child of the victim if the child is less than 18
years of age.
o A sibling of the victim.
o A grandparent of the victim.
o A guardian or custodian of the victim if the victim is less than 18 years of age
at the time of the commission of the crime and the guardian or custodian is not
incarcerated.
House Bills 4738 and 4739 are reintroductions of House Bills 4798 and 4974, respectively, of
the 2021-22 legislative session. Those bills were passed by the House of Representatives.
FISCAL INFORMATION:
The bills would have an indeterminate fiscal impact on local units of government. Information
is not available on the number of persons that would be convicted under provisions of the bills.
New misdemeanor convictions would increase costs related to county jails and/or local
misdemeanor probation supervision. The costs of local incarceration in a county jail and local
misdemeanor probation supervision vary by jurisdiction. The fiscal impact on local court
systems would depend on how provisions of the bill affected caseloads and related
House Fiscal Agency HBs 4738 and 4739 as reported Page 4 of 6
 administrative costs. Increased costs could be offset, to some degree, depending on if additional
court-imposed fee revenue is generated. Any increase in penal fine revenue would increase
funding for local libraries, which are the constitutionally designated recipients of those
revenues.
There would be no fiscal impact on local prosecutors’ offices or the Prosecuting Attorneys
Coordinating Council (PACC).
ARGUMENTS:
For:
Few would dispute that the due process rights afforded to persons accused of committing a
crime are central to the justice system. However, protecting the safety of those who come
forward as victims or witnesses to a crime is equally important. In recent years, cases of victim
and witness intimidation have increased, with some being killed shortly before they are
scheduled to testify. The practice by prosecutors of redacting information such as addresses
and phone numbers of victims and witnesses has recently been overturned by two Michigan
Court of Appeals decisions. As a result, prosecutors now must seek protective orders to
suppress the contact information of victims and witnesses. According to committee testimony,
the first court ruling regarding witness information has already affected prosecutions, with
more witnesses being reluctant to come forward, as well as increasing the costs of prosecution
associated with filing the motions for the protective orders. Now, there is concern that fewer
victims will come forward or testify for fear of retaliation and harm to them or their families.
Supporters argue that the bills would provide an appropriate balance between automatic
disclosure of information that could place a witness or victim in harm’s way and automatic
redaction of information that may be necessary for a person to defend themselves. The bill’s
language would establish clear guidelines as to the types of information that would be subject
to disclosure limitations, protect the information of persons who participate in the state’s
address confidentiality program, and still preserve a defendant’s ability to obtain information
relevant to their defense.
Against:
Critics of the bills argue that current laws and court rules already provide the balance between
due process protections and protection of witnesses and victims. Many courts routinely provide
unredacted police reports to defense attorneys, who redact the report before providing or
showing it to their clients. Prosecutors carry the burden of proof in criminal cases and should
rightly carry the burden of obtaining protective orders if they feel it is justified, rather than
automatically not disclosing certain information without a clear showing of cause to do so. As
it is now, if the defense cannot get a witness’s contact information from the prosecution to set
up an interview, it must hire investigators to find it themselves—a costly option for most
defendants and a burden on public defenders, who often have limited resources. Requiring a
defense attorney to file a motion in order obtain a witness’s or victim’s contact information
could require the defense to reveal its strategy or reveal client confidences. Further, restricting
timely access to information already held by prosecutors, as the bills would do, would impinge
on a defendant’s Sixth Amendment rights to effective assistance of counsel.
House Fiscal Agency HBs 4738 and 4739 as reported Page 5 of 6
POSITIONS:
Representatives of the Department of the Attorney General testified in support of the bills.
(6-14-23)
The following entities indicated support for the bills:
• Michigan Domestic and Sexual Violence Prevention and Treatment Board (6-21-23)
• Prosecuting Attorneys Associat