New jury instruction on juror behavior

MCivJI 2.06 has been revised to instruct jurors that they may not -

1. discuss the case with others, or among themselves
   
2. read or watch news reports about the case
   
3. use a computer or other electronic device while in the courtroom or in the jury room
4. use a computer or other electronic device at any time to obtain information about the case
5. visit the scene of the occurrence
   
6. do any investigations or experiments on their own.
   

Interestingly, the instruction does not mention posting by jurors of information about the trial on a web site or social interaction site.

Effective 9-1-09. This amendment corresponds to the amendment of MCR 2.511.

Two other instructions, 2.07 and 2.12, were deleted, since their provisions are now incorporated in this one.

Newly adopted

Amendments that were initially listed here as proposed, and later adopted.

Notices of intent and affidavits in medmal cases - placing time limits on challenges to the sufficiency of these filings

Attire and appearance of parties and witnesses

Use of electronic equipment by jurors

Disqualification of Supreme Court justices

Use of electronic equipment by jurors

Court rule affected - MCR 2.511
Admin no. - 2008-33
Issued - June 30, 2009
Effective - September 1, 2009

The Court has announced an amendment to Rule 2.511, "Impanelling the Jury", which adds requirements as a new subsection (H)(2) for instructions to jurors about their use of electronic equipment:

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not
(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;
(b) read or listen to any news reports about the case;
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below;
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.

Although no one would reasonably disagree with the content of these instructions, it is quizzical that this was adopted as an amendment to the court rule, when there is a separately-constituted committee charged with considering amendments to the Model Civil Jury Instructions.

The Court's staff comment notes that some of these rules do not apply to courts participating in the jury reform pilot project, where jurors are permitted to discuss the case while the proofs are under way. The comment appears to relate to subrule 2(a) only.

Link

Garnishments after judgment

Court rule affected - MCR 3.101
Admin no. - 2008-41
Issued - 5-19-09
Effective - 9-1-09

Makes two amendments to the cited rule.

Adds a new (H)(1)(c), which states:

A bank or other financial institution, as garnishee, shall not withhold exempt funds of the debtor from an account into which only exempt funds are directly deposited and where such funds are clearly identifiable upon deposit as exempt Social Security benefits, Supplemental Security Income benefits, Railroad Retirement benefits, Black Lung benefits, or Veterans Assistance benefits.

The second adds subrule (I)(6):

A bank or other financial institution, as garnishee, shall not withhold exempt funds of the debtor from an account into which only exempt funds are directly deposited and where such funds are clearly identifiable upon deposit as exempt Social Security benefits, Supplemental Security Income benefits, Railroad Retirement benefits, Black Lung benefits, or Veterans Assistance benefits.

This directs banks, etc., not to withhold (turn over to the judgment creditor) funds if:

• the funds are exempt
  
• they are directly deposited, and
  
• they are clearly identifiable upon deposit as exempt funds of the categories listed.

The amendment requires that the account include only exempt funds, and requires that they be "clearly identifiable" as such.

E-filing in Midland Circuit

Admin no. - 2002-37, Admin Order 2009-4
Issued - May 19, 2009

Another e-filing pilot project, this time covering asbestos cases in Midland County.

NOI and Affidavit of merit - medical malpractice cases

Court rule affected - MCR 2.112 and 2.118
Admin no. - 2009-13
Effective - 5-1-10

Another amendment dealing with notices of intent and affidavits in medical malpractice cases - see the previous proposal. This one adds a new subsection (L) to 2.112, requiring that:

• Any challenges to the sufficiency of a notice of intent be filed by a defendant on or before the date of filing his first response (answer or motion)
  
• Any challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the affiant, be filed within 63 days of the filing of the affidavit. If the court finds the affidavit deficient, it shall allow it to be amended unless it finds that amendment would not be justified.
  

It also adds language to 2.118(D) specifying that an amendment of an affidavit of merit or meritorious defense would relate back to the date of the original filing.

Like the previous proposal, this one is designed to neutralize an entire series of rulings from the Supreme Court which have led to dismissals for failure to comply with the affidavit rules.
Link (to proposal)
Link to order adopting

Attire and appearance by parties and witnesses

Court rule affected - MRE 611
Admin no. - 2007-13
Issued - 8-25-09
Effective - 9-1-09

Added a new subsection (b) and shifted the remaining paragraphs down:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

The staff comment includes:

The proposal was suggested in response to a case in which a district judge was sued for dismissing a plaintiff’s case following the plaintiff’s refusal to remove her hijab during testimony. The plaintiff subsequently sued the district judge in federal court, alleging a violation under 42 USC 1983 (Muhammad v Paruk, 553 F Supp 2d 893 [ED Mich, 2008]). The federal court declined to exercise jurisdiction and dismissed the case, which has since been appealed. In declining to exercise jurisdiction, the federal court noted that state court review “would have avoided many of the federalism concerns” cited by the court, which prompted consideration of this proposal by the Michigan Supreme Court.

Since the proposed rule affects procedure, not evidence, it probably does not belong in the Rules of Evidence.

Link