How Your Past Can Come Back to Haunt You in Criminal Sexual Conduct Cases

A jury is given an oath at the beginning of trial that reads: “….you will render a true verdict, only on the evidence introduced and in accordance with the instructions of the court, so help you God.” Subsequently in the instructions the jury is instructed, “When it is time for you to decide the case, you are only allowed to consider the evidence that was admitted in the case.” You may have deduced at this point the significance of what evidence is admitted, and when that evidence includes prior questionable sexual  or criminal conduct, what are referred to as “prior bad acts” then a jury can reach the wrong verdict for the wrong reasons.

Criminal Sexual Conduct and the Exception to Rule of Prior Bad Acts.

Generally, evidence of your prior bad acts is not admissible pursuant to Michigan Rules of Evidence (MRE) 404b. But your past can come back to haunt you when it falls under one of the permitted and enumerated exceptions that we’ll address below. Michigan Compiled Laws sec. 768.27a is not an enumerated exception under 404b, but by legislation permits the admission of other ‘listed’ prior bad acts involving a minor when the defendant is charged with criminal sexual conduct involving a minor. Further, our Michigan Supreme Court has held that MCL 768.27a prior bad acts is not prohibited by 404b but only must meet the threshold of MRE 403 and to use the People v. Watkins balancing test. One of the most important roles for a Trial Attorney is not their well-crafted opening statement or questioning of witnesses, but what happens before the trial ever begins, and specifically preventing potentially damaging evidence from ever getting to the jury.

What Evidence is Admitted?

The Michigan Court Rules (MCR), the Michigan Rules of Evidence (MRE), legislation known as statutes under Michigan Codified Laws (MCL), and prior case law known as precedent are the four methods of support in admitting or prohibiting evidence into a trial.  Generally, evidence is admissible if it is relevant, meaning that it assists the trier of fact, or a juror, that any fact or issue of consequence is more probable or less probable. Simply, if you had this information, then it would help you make the right decision. This is based on case law but also outlined in MRE 401.

However, there are limitations to what evidence is admissible even if it may be considered relevant. For example, evidence of prior criminal actions or wrongs is governed by MRE 404(b)(1) and prohibits the admission of ‘prior bad acts’ to protect against unfair prejudice. The argument is that a jury would convict not solely on the evidence of the crime charged, but convict because of prior activity of the defendant. The legal term of art is that it is ‘more prejudicial than probative’, or in common language it unfairly hurts more than it helps.  However, there are some exceptions.

What are the Exceptions?

The Rule: MRE 404b does not permit evidence to be admitted for the purpose of arguing he/she committed that crime therefore they committed this crime. The Exception: the evidence may be admissible however if it is to prove motive, opportunity, intent, preparation, scheme, plan, knowledge, absence, or the absence of mistake.

This legal issue is significant in any criminal case because of the inherent prejudice that is attached, and even more so in criminal sexual conduct cases involving a minor. If a prosecutor intends to admit such evidence, and arguably for one of the accepted exceptions, it is necessary to file a motion and be argued in a Pretrial Evidentiary Hearing.  This is an issue that must be resolved prior to the Trial itself due the impact or influence it has for one party or the other. Failure to provide proper notice are grounds to prevent the admission of such evidence, and a failure to object to the notice required and the admission would be a costly mistake and a mistake that could be the difference between conviction or acquittal.

Due to multiple and significant requests by the Prosecuting Attorneys in Michigan, legislation was enacted to assist them in obtaining convictions in cases specific to criminal sexual conduct involving minors. Prosecutors expressed constant legal issues successfully introducing prior bad acts involving minors in cases alleging criminal sexual conduct involving minors, and the enactment of this statute became a carved-out legislation exception to that legal evidential hurdle.

‘Notwithstanding [MCL 768.27], in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.’

Similar to 404b Motions, Notice and Support are required to be addressed at a Pretrial Evidentiary Hearing seeking admission of evidence pursuant to MCL 768.27a.  The analysis however is not a 404b evaluation to exclude or prohibit evidence but must be evaluated under 403. The trial court is instructed to analyze whether the probative value of this potential evidence is substantially outweighed by its prejudicial effect. However, while using MRE 403, the court must weigh the probative value in slightly different terms, wherein its tendency to show defendant’s propensity to commit sex crimes against children—in favor of admission. If the trial court finds that evidence submitted under MCL 768.27a is (1) relevant, (2) constitutes evidence of a “listed offense” under the statute, and (3) has probative value that is not substantially outweighed by unfair prejudice under MRE 403, the evidence must be admitted.  In what may be considered a complimentary evaluation our Supreme Court has outlined considerations for the trial court to use, which should be stated on the record, and is known as the Watkins Standard.

What is the Watkins Standard?

Using 403 analysis the trial court should evaluate and the attorneys will need to argue the following issues to determine whether the evidence should be excluded from being presented to the Jury. These are known as ‘considerations’ but have been determined to not be an exhaustive or a limited list.

  1. the dissimilarity between the other acts and the charged crime,
  2. the temporal proximity of the other acts to the charged crime,
  3. the infrequency of the other acts,
  4. the presence of intervening acts,
  5. the lack of reliability of the evidence supporting the occurrence of the other acts, and
  6. the lack of need for evidence beyond the complainant’s and the defendant’s testimony.

Is this limited to Prior Convictions?

No, and that is a major concern with this law.  A prior conviction at minimum has some reliability and significance to the issue, but the precedent on this issue has continually held that even prior allegations may qualify under MCL 768.27a.. Interestingly, 768.27b, which permits prior domestic violence evidence also includes a 10 year requirement, that being it must have occurred within a 10 year period, but 768.27a has no such time requirement.  The Temporal Proximity is one of the considerations that can address the time lapse between the alleged bad acts but is not dispositive by itself.  This means an allegation alone, even with no prior investigation, arrest, charge, conviction, or evidence, is potentially admissible. Therefore, you may be faced with not only defending the case you are charged with, but also potentially defending the case you were never charged with or re-defending if it was previously dismissed.

Arguably this statute is unconstitutional, and without question creates a significant and unfair prejudice, but Michigan case law currently supports its implementation and use in criminal sexual conduct cases involving a minor.  If you are facing such allegations contact the sex crimes trial attorneys at the Barone Defense Firm to protect your rights and your freedom.

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