When Discovery Comes With an Invoice: A Recent Interlocutory Appeal Out of the 16th District Court
Most people charged with a misdemeanor in Michigan assume that when defense counsel asks for the 911 calls, the in-car video, body camera footage, and stationhouse videos of an arrest, the recordings will be produced. That assumption is reasonable. The arresting agency captured the encounter, the prosecutor has access to the file, and the Michigan Court Rules require disclosure on request. In the overwhelming majority of Michigan jurisdictions, that is exactly how it works. In a small number of municipal courts, however, the same request is met with an invoice — or with an offer to view the video at the prosecutor's office under supervision, on the government's schedule, and only once. I have spent years objecting to this practice in different forums, and today I filed an Application for Leave to File an Interlocutory Appeal in the Michigan Court of Appeals to challenge it head-on in a misdemeanor case arising out of the 16th District Court in Livonia.
I want to write about the issue here, in plain terms, because it affects more people than the lawyers and judges who routinely litigate it. A drunk driving arrest is, for most clients, the single most frightening event of their adult lives. When I tell a client that the city has refused to release the bodycam video unless we pay the police department or sit through a chaperoned viewing, the disbelief is genuine. The case I just appealed is a representative example of the problem, and the legal framework that should resolve it is, in my view, not particularly close.
The Practical Problem
The defense in any operating-while-intoxicated case lives or dies by the recordings. Patrol-car video, body camera footage, station-house cameras, and 911 calls bear on every contested issue: the basis for the stop, the manner in which field sobriety tests were administered, the conduct of any vehicle search, what was said during the implied-consent advisement, and the client's condition and demeanor from the first moments of contact through the breath test. Without those recordings in hand — to study, slow down, replay, share with an expert, and use to prepare cross-examination — the defense is operating on the officer's word and the officer's report. That is not what the Michigan Court Rules contemplate.
In the case I appealed, I served a written demand for exculpatory discovery on behalf of my client. The demand was deliberately narrow. It invoked only MCR 6.201(B) and MCR 6.610(E). It did not invoke the broader mutual-discovery provisions of MCR 6.201(A). It identified the bodycam, the patrol-car video, the station-house video, and the 911 recording as exculpatory and placed the prosecutor on notice under Brady v Maryland, 373 US 83 (1963), Arizona v Youngblood, 488 US 51 (1988), Kyles v Whitley, 514 US 419 (1995), and MRPC 3.8(d). The prosecutor never disputed that the materials are exculpatory. She acknowledged having them in her office. She nonetheless refused to produce them, taking the position that I had to coordinate with the Livonia Police Department and pay a $19.81 fee to the police to obtain a release of the recordings through Evidence.com — or, alternatively, come to her office and watch them in person on her computer.
The Governing Rules: MCR 6.201(B) and MCR 6.610(E)
The starting point for any analysis is the text. MCR 6.610(E), effective May 1, 2020, brought criminal discovery into Michigan's misdemeanor practice. It provides that the provisions of MCR 6.201, except for MCR 6.201(A), apply in misdemeanor proceedings. MCR 6.201(A) — the broader mutual-discovery provision — applies only when the defendant affirmatively requests it. The Staff Comment to the rule explains that this design is borrowed from the federal model: the defense's reciprocal duty is triggered only when the defense first requests discovery from the prosecution under MCR 6.201(A), and the prosecution complies.
MCR 6.201(B) is the provision that controls when a request is limited to exculpatory material. By its plain text, "the prosecuting attorney must provide each defendant" the listed categories: any exculpatory information or evidence known to the prosecuting attorney; any police report and interrogation records concerning the case; any written or recorded statements of the defendant, codefendant, or accomplice; any affidavit, warrant, or return relating to a search or seizure; and any plea or immunity agreement. As the Court of Appeals has observed, the language of MCR 6.201 is unambiguous. People v Jack, 336 Mich App 316, 322, 324 (2021), citing People v Phillips, 468 Mich 583, 589 (2003).
The obligation runs to the prosecuting attorney. It is not framed as a duty of the police department, and it cannot be reassigned by local form order. The United States Supreme Court addressed the scope of prosecutorial responsibility for evidence held by law enforcement in Kyles v Whitley, 514 US 419 (1995), where the Court explained that the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf, including the police, and that the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable. Kyles, 514 US at 437–438. MRPC 3.8(d) reinforces the same point at the level of professional responsibility. It requires a prosecutor to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the degree of the offense." Timely disclosure is not the same as disclosure conditioned on payment to a third party.
Supervised Viewing Is Not Production
One of the alternatives offered in the case I appealed was that I could come to the prosecutor's office and watch the recordings. I want to explain why I do not regard that offer as compliance, because I see versions of it in other jurisdictions as well.
The Michigan Court of Appeals addressed a factually parallel arrangement more than four decades ago. In Bay County Prosecutor v Bay County Dist Judge, 109 Mich App 476 (1981), the prosecutor refused to provide copies of police reports to defense counsel, instead reading portions aloud in court and offering to allow counsel to see them. The Court rejected that practice, explaining that "[h]aving the report read to the attorney immediately arouses suspicion that the material is being edited or censored. Moreover, such brief exposure to the report, be it in the prosecutor's office or the courtroom, does not lend itself to the type of study, contemplation, and analysis that the preparation of a criminal matter of this nature requires." Bay County Prosecutor, 109 Mich App at 485–486.
The medium has changed. The reasoning has not. A bodycam recording cannot be reviewed once, in real time, in someone else's office, and then meaningfully used to prepare a cross-examination. The recordings need to be paused, rewound, compared frame by frame against the police report, and shared with experts whose work I rely on in field-sobriety and breath-testing litigation. Supervised, one-time viewing under conditions controlled by the producing party is not what MCR 6.201(B) means by "provide." It is a unilateral inspection privilege, and the case I cite above describes the same practice in different packaging.
The Local "Policy" Problem
The 16th District Court memorializes its discovery practice in a standard pre-signed form titled "ORDER GRANTING MUTUAL DISCOVERY MISDEMEANOR CASES ONLY." The order is generated by a clerk upon the filing of a defense appearance. It declares the police department to be "the prosecutor's agent for providing discovery," directs that any photocopies are at counsel's expense, authorizes redactions, and imposes reciprocal disclosure obligations on the defense regardless of whether the defense has invoked MCR 6.201(A).
This is, in operation, a local rule. And under MCR 8.112, "[a] trial court may adopt rules regulating practice in that court if the rules are not in conflict with these rules and regulate matters not covered by these rules." A local form order that conflicts with the Michigan Court Rules — by reassigning the prosecutor's disclosure duty, by conditioning production on payment, or by triggering reciprocal obligations the defense never requested — is not a permissible local rule. It is an unauthorized one. The Michigan Supreme Court has repeatedly emphasized that questions of court rule interpretation are reviewed de novo. Brackett v Focus Hope, Inc, 482 Mich 269, 275 (2008); Estes v Titus, 481 Mich 573, 578–579 (2008).
This is not new ground in Wayne County. In People of the City of Livonia v Jun, No. 12-011442-01-AR, slip op (Mich Cir Ct, Wayne Cnty, Jan 3, 2013) (Skutt, J.), the Wayne County Circuit Court struck the same form order as inconsistent with the court rules and lacking authority. The same form has continued in use through the adoption of MCR 6.610(E) in 2020 and remains in use today. The redaction practice that the form authorizes also raises a separate problem in light of People v Jack, 336 Mich App 316 (2021), and ADM File No. 2021-29, effective May 1, 2026, which together set out the categories within which redactions of personal identifying information are permitted under MCR 1.109(D)(9)(a). Routine, automatic redactions made by a police department without prosecutorial review or judicial oversight are not what those authorities contemplate.
Charging for Exculpatory Evidence
The fee component deserves separate attention. The Livonia Police Department invoiced under the Freedom of Information Act, even though no FOIA request had been made. Criminal discovery is not a public-records request. The FOIA statutes, MCL 15.234 and MCL 15.240, govern public-records production and the recovery of associated costs. They were not enacted to govern, and do not govern, the prosecutor's obligation to produce exculpatory material under MCR 6.201(B).
The Michigan Supreme Court held in People v Cunningham (Cunningham II), 496 Mich 145 (2014), that courts may impose costs in criminal cases only where those costs are specifically authorized by statute. The Court rejected the proposition that the general cost provision of MCL 769.1k(1)(b)(ii) furnished independent authority to impose costs of any description, holding that the provision "provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute." People v Konopka, 309 Mich App 345 (2015), upheld the Legislature's curative amendment to MCL 769.1k(1)(b)(iii) but kept the analysis tightly tethered to court operating costs imposed at sentencing — not to pre-trial fees paid to a police department.
The statutory cost scheme that applies to a charge under MCL 257.625 includes specific categories: prosecution costs and community-service supervision costs under MCL 257.625(13) and (14), screening and rehabilitative service costs under MCL 257.625b(5), vehicle storage costs under MCL 257.904e(1), and emergency-response costs under MCL 769.1f. None of these authorizes a pre-conviction discovery fee paid to the police. MCL 763.8(5), which governs audiovisual recordings of custodial interrogations, comes the closest to addressing recorded evidence in criminal discovery. It directs that, on a request for discovery, the prosecutor "shall provide a copy of the recorded statement to the defense counsel of record." It does not authorize a fee for that copy.
I explain this to clients in straightforward terms. Brady v Maryland is not an indigency doctrine. The question is not whether a defendant can afford a fee. The question is whether any source of law permits the fee in the first place. On the materials I have reviewed, I do not see one.
Why I Pursued the Interlocutory Appeal
Most discovery disputes wait for final judgment. This one cannot. The Michigan Supreme Court recognized in People v Scott, 513 Mich 180 (2024), that interlocutory review is a precautionary procedure designed to correct a significant error that may otherwise require reversal of an entire case on final review. A trial conducted without the bodycam, the patrol-car video, and the 911 recording is a trial conducted on the officer's narrative alone. Even a successful appeal after conviction does not restore the lost preparation time, the lost expert review, or the lost cross-examination. The harm of going to trial without exculpatory recordings is, in any meaningful sense, irreparable.
The 16th District Court has, on the record, characterized its practice as a "policy." That candor is helpful, because it surfaces what is at issue: not a contested factual dispute about a particular case, but a systemic procedure that affects every misdemeanor defendant who appears there. Whether the Court of Appeals grants leave is, of course, a discretionary decision, and I will not predict the outcome.
A Closing Note for Other Practitioners
If you practice in a jurisdiction that conditions discovery on a fee or on supervised viewing, the issues are worth raising on the record. Limit the demand to MCR 6.201(B) when the goal is exculpatory material. Identify the materials specifically. Place the prosecutor on notice under Brady, Kyles, and MRPC 3.8(d). Object to any form order that imposes reciprocal obligations the defense has not requested under MCR 6.201(A). Object to any redactions that exceed the categories permitted by MCR 1.109(D)(9)(a) and ADM File No. 2021-29. And do not concede that the police department is the prosecutor's agent for discovery production; under Kyles and MRPC 3.8(d), the duty is the prosecutor's, and the rules do not authorize its transfer.
The questions in this appeal are not new, the rules are not ambiguous, and, in my view, the practice at issue is not consistent with what the Supreme Court adopted when it promulgated MCR 6.610(E). Each case still turns on its own record, and I will continue to litigate the issue case by case as it appears. I will report the result of this appeal once it is decided.
