Grievance Administrator v. Dew , 459 Mich. 1232 ( 1998 )

In lieu of granting leave to appeal, the case is remanded to the Attorney Discipline Board to write an opinion that provides a rationale for its conclusion that the “dismissal is the appropriate result under all of the facts and circumstances in this case.” MCR 7.302(F)(1). The opinion is to be filed with the Clerk of the Supreme Court. Jurisdiction is retained.

Order Entered December 10, 1998:

Proposed Amendments op MRE 803A and MCR 5.972. On order of the Court, this is to advise that the Court is considering amendments of Rule 803A of the Michigan Rules of Evidence, and Rule 5.972 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives.

As whenever this Court publishes an administrative proposal for comment, we emphasize that publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.

[The present language would be amended as indicated below:]

Rule 803A. Hearsay Exception; Child’s Statement About Sexual Act.

A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided:

(l)-(4) [Unchanged.]

If the declarant made more than one corroborative statement about the incident, only the first is admissible under this rule.

A statement may not be admitted under this rule unless the proponent of the statement makes known to the adverse party the intent to offer the statement, and the particulars of the statement, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the statement.

This rule applies in criminal, aaddelinquency, and child protective proceedings only.

Rule 5.972. Trial.

(A)-(B) [Unchanged.]

(C) Evidence; Standard of Proof.

IT)- Except as otherwise provided in these rules, the rules of evidence for a civil proceeding and the standard of proof by a preponderance of evidence apply at the trial, notwithstanding that the petition contains a request to terminate parental rights.

(2)-A-statcment-madc by a child under ten years of age describing an act of child abuse as-defined in section-2(c) of the child protection law; MCL 722.622(c); MSA 25.248(2)(c), performed with or-on the child, not otherwise- admissible under an exception to the hearsay rule, may be admitted into evidence at-fitc trial-if-thc court has foundrin a hearing held prior to-trial, that the nature and cireumst-anecs-3urrounding-t-hc giving-of the statement provide-adequatc indicia of-trustworthiness, and that there Í3 sufficient corroborative-evidence of the act.

Staff Comment-. The proposed amendments of MRE 803A and MCR 5.972 would move the so-called “tender years” exception to the hearsay rule in child-protective proceedings from the Michigan Court Rules to the Michigan Rules of Evidence.

The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.

Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered and your assistance is appreciated by the Court.

A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file number 98-18.