Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Police Reports

Defense Has Right to an Unredacted Police Report

As a criminal attorney one of my great frustrations is that we are not treated by the system as being as trustworthy as our civil counterpart. In civil cases, sensitive information is routinely shared with the other side subject to a protective order, e.g. we agree under the pain of contempt not to further distribute the items. In civil cases, we can send written questions to our opponent about the nature of their case. We can bring witnesses into our office to ask questions and we can demand the right to inspect documents before trial. In criminal cases, we are normally stuck with police reports and very limited additional information about the state’s case. A recent Court of Appeals case improves the situation somewhat.
In People v Jack, the Court of Appeals was tasked with the question of whether the State could keep witness contact information from the defense. The American Bar Association and federal courts have long held that a witness in a criminal case does not belong to either side, yet prosecutors’ continually attempt to frustrate defense access to prosecution witnesses.
The defense is entitled to a copy of the police reports under Michigan Court Rule (“MCR”) 6.201(B)(2). In Jack, the State provided redacted police reports to the defense which excluded the contact information for their witnesses. The defense requested unredacted versions of the report and the State refused. The defense filed a motion to compel the production of these reports. “The trial court noted that the police reports could be redacted if they concerned a continuing investigation, as provided by MCR 6.201(B)(2), or the prosecutor could seek a protective order,” and therefore allowed the production.
The prosecution appealed the matter to the Court of Appeals which upheld the trial court 2-1. The majority held that the Court Rule presumptively entitles a criminal defendant to the disclosure of unredacted police reports. If the state has individualized cause in a particular case to withhold such information, they have a duty to file a motion for a protective order. They simply cannot refuse to produce the non-redacted documents and shift the burden to the defense.
Dissenting Judge Boonstra disagreed. He held that the Court Rules allow such redactions and that the defendant’s redress would be to file a motion for an in camera hearing under MCR 6.201(D) to determine whether the redactions are warranted.
The People are still within the time limit to appeal to the Michigan Supreme Court.