DISTRICT COURT UPDATE
Summons Article, December, 2007
written by
Hon. M. Randall Jurrens

District  Court  Update

A diminution in the quality of evidence necessary to support a defendant’s bindover on felony controlled substance charges is the subject of this month’s update.

You may recall that a few years ago the Michigan legislature did away with requiring Michigan State Police crime lab technicians to appear at preliminary exams, MCL 600.2167.  Under this statute, crime lab technicians’ written reports are admissible without their appearance or testimony (unless the defendant makes a timely written request, in which event the technician may testify by video or voice communication equipment).

Now, by adding a new section to the chapter on preliminary exams in the Code of Criminal Procedure, MCL 766.11b, effective 12-29-07, the legislature has further effected evidentiary standards applicable to preliminary exams:  “Evidence of the results of properly performed drug analysis field testing is admissible in a preliminary examination”.

Moreover, just in case it was unclear whether field tests (now admissible by legislative fiat) can singularly support the ultimate finding of probable cause, the statute further provides that “field testing is sufficient to establish that the substance tested is a controlled substance”.

Although a marked change in criminal law / procedure / evidence, this addition to the criminal procedure code does contain some limitations:  (a) the field test must by “properly performed”, (b) the test results may be used “solely to establish that the substance tested is a controlled substance”, and (c) admissibility of the results is limited to preliminary exams (i.e. laboratory analysis of the substance is still required at trial).

The new legislation appears prompted by a laboratory backlog (24,000 pending samples) that has resulted in state-wide delays in felony prosecutions (and some dismissals).  The statute purposes to enable the timely processing of exams in drug cases, to reduce the need for crime labs to expedite analyses of suspected controlled substances, and to minimize the time lab personnel devote to testifying in court.

But however well intended, this legislative solution to an admittedly serious practical problem itself creates issues (some obvious, others more subtle) that may require judicial review before success is declared.    

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