Prior Bad Acts in Michigan Sex Crimes

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Lansing Michigan Criminal Sexual Conduct (CSC) Defense Lawyer

Ordinarily, prosecutors are not allowed to introduce evidence that a defendant committed the same or similar act to the one he is currently charged with to show a propensity towards such behavior or that the defendant acted in conformity with that propensity. In other words, if a defendant is on trial for stealing a toaster, the court will not allow evidence that defendant stole toasters in the past to show that since he did it before than he probably did it this time. Also, the prosecutor cannot introduce the evidence just to show that the defendant has a poor disposition of character. There are various reasons for this.

First, a defendant should be tried solely on the evidence of the current charge and not any past indiscretions. Second, the danger is that the jury may overreact and convict the defendant based upon his past bad conduct rather than the evidence presented on the current charge. That’s what the law refers to as evidence that is more prejudicial than probative. The potential harm to the defendant outweighs any benefit it gives to the prosecution or helping the jury understand the case.

MCL 768.27a and MRE 404(b)

Under Michigan Rules of Evidence 404(b), the prosecutor is precluded from introducing evidence of prior bad acts to show propensity or that the defendant acted in conformity with that propensity. However, Michigan has a law (MCL 768.27a) that allows them to do just that in sex offense cases against a minor, even though it directly conflicts with the rules of evidence. It also violates the fundamental rules of fairness as it is inherently prejudicial to the defendant. Prosecutors can introduce such evidence of prior sexual misconduct to not only show propensity towards committing sexual offenses, but to show the disposition of the defendant’s character. In other words, to show that he’s a bad guy. Not only does he have to defend against the evidence on the current charge, but against allegations of past misconduct, some of which may never have been reported or proven in court.

Prior Bad Acts Balanced Between Relevance and Unfair Prejudice

Michigan Rules of Evidence 403 still applies to MCL 768.27a. That means that the prior bad acts can be barred by the court if the relevance of introducing them is outweighed by the danger of unfair prejudice to the defendant. Essentially, the prior bad acts will be barred from being introduced as evidence at trial if the unfair prejudice substantially outweighs its probative or beneficial value. The danger to the defendant is that the jury will convict because of defendant’s prior misconduct instead of the facts presented at trial.

Reasons Why the Court May Exclude Evidence of Defendant’s Prior Sexual Misconduct

  • There is a dissimilarity between the prior acts and the charged offense
  • The prior bad acts occurred a long time ago compared to the time the charged offense allegedly occurred
  • The infrequency of the prior bad acts
  • The presence of intervening facts
  • The lack of reliability of the evidence supporting the prior bad acts
  • There is a lack of need for evidence beyond the complaining witness and defendant’s testimony

No 10-Year Limitation on Introducing Evidence of Prior Bad Acts

Unlike MCL 768.27b for domestic violence cases, there is no 10-year limit for introducing evidence of prior bad acts. The age of the prior sexual offenses can be taken into consideration when deciding whether they should be admitted, but there is not a ban on the prior offenses simply because of how long ago they occurred. The court weighs the propensity inference in favor of the probative value, not the prejudicial effect. Again, this is inherently unfair to the defendant, the one whose life and freedom is on the line.

Lansing Michigan Sex Crimes Defense Attorney

If you have been charged with a sex offense or criminal sexual conduct (csc), you need to have someone with experience defending against sex crime allegations and opposing evidence of prior misconduct which can grossly prejudice the jury against the defendant. If you are facing rape charges or other sex crimes, contact Austin Legal Services, PLC to speak to a Michigan sex crimes attorney. Call (517) 614-1983 for a free, no obligation consultation today!

Defending criminal sexual conduct (csc) charges, rape allegations, and opposing evidence of prior sex offenses throughout Michigan in the counties of Ingham, Eaton, Clinton, Jackson, Livingston, Kent, Calhoun, Shiawassee in the cities of Lansing, East Lansing, Mason, St. Johns, Charlotte, Jackson, Corunna, Durand, Grand Rapids, Battle Creek, Kalamazoo.

 

 

Michigan Sex Crimes—Criminal Sexual Conduct (CSC)

Criminal Sexual Conduct (CSC)

Lansing Michigan Sex Crimes Attorney

Being accused of rape or molestation is a terrifying experience. This is the type of crime where even the mere accusation has the ability to permanently harm someone’s life and reputation. The irrevocable damage can be very destructive in terms of how family, friends, co-workers, and employers view you. Even if the accusations turn out to be false, they often leave behind an indelible stain. These cases can be very emotional for those involved, including juries, judges, prosecutors, and investigators. If you have been charged, accused, or under investigation for rape, molestation, or other sex crimes, you need an experienced criminal defense attorney on your side.

Michigan Criminal Sexual Conduct (CSC), aka “Rape”

Michigan calls its rape statute Criminal Sexual Conduct (CSC). It is divided into four degrees with the first and third degrees requiring penetration, while the second and fourth degrees require sexual touching. The most severe sentence is CSC 1st degree which carries up to life in prison and CSC 4th degree is the lowest which is a high-court misdemeanor carrying up to two years in prison. If convicted, you will have to comply with the Sex Offender Registry Act (SORA) unless there is an exception to your case.

Sex Offender Registry Act (SORA)

If you are convicted of criminal sexual conduct, most likely you will have to comply with the sex offender registry unless an exception applies such as the complaining witness (“victim”) was between the ages of 13 and 16, there was no more than a four-year age difference between the complaining witness and the defendant, and the act was consensual. If you are currently on the sex offender registry, you may be able to petition for removal through the Romeo and Juliet provisions or other amendments.

Corroboration of the Allegation is Not Necessary

A common misconception in rape cases is that independent evidence, such as a medical report or rape kit, must support the allegation of the complaining witness. Sadly, that is not the case. Juries are instructed that corroboration is not necessary and that they can convict based on testimony alone. Prosecutors often play on juries’ emotions and sympathy for the “victim,” especially in weak cases or cases involving minors. Sex crimes are vastly different than other criminal charges because the outcomes can be affected by false allegations and emotionalism.

Special Accommodations in Sex Crime Cases

Sex crimes are different in a lot of ways. They are unique as they have double punishment for the same offense with the sex offender registry and prosecutors are permitted to give complaining witnesses special accommodations in the courtroom, even if it is highly prejudicial to the defendant. In cases involving minors (and sometimes adults) prosecutor are permitted to use barriers in the courtroom to block the complaining witness from seeing the defendant while testifying or re-arranging counsel tables. If the complaining witness is a minor, they are also offered a support person or someone to keep them company and sit next to them while testifying.

Prior Bad Acts or Past Offenses Can be Used Against the Defendant

Another reason how sex crimes are different is that the prosecutor is allowed to do something that they are not permitted to do in any other case—they can introduce evidence that a defendant committed sexual offenses in the past (even if they were unreported and not prosecuted) in cases involving minors and offer it to the jury for propensity. In other words, the prosecutor can introduce such evidence to show that since the defendant misbehaved in the past, they can use that to conclude he had a propensity towards such misbehavior. Like its federal counterpart, the Michigan Rules of Evidence 404(b) precludes a prosecutor from introducing evidence of prior bad acts to show that the defendant acted in conformity with such bad behavior when he committed the current offense.

The main reason is that we want the jury to decide the case based upon the evidence presented on the current charge and not have their minds poisoned by acts a defendant may have committed years ago. Even acts that he was acquitted of in court can be used against a defendant! Prosecutors are allowed to do this because a special statute allows them to. Thankfully, it does have its limitations and the defense can still argue the evidence should be kept out because its irrelevant and other evidentiary reasons.

Criminal Sexual Conduct (CSC) Charges

CSC 1st Degree

Involves sexual penetration and any of the following: Victim is less than 13 years old

  • Victim is 13-15 years old and a blood relative of defendant, lives in defendant’s home, or the defendant is in an authority position over victim
  • Multiple actors are involved and force or coercion is used
  • A weapon was involved
  • Victim suffers personal injury and force or coercion is used
  • Victim suffers personal injury and is incapacitated
  • Defendant was in the process of committing another felony
  • Victim is 16-17 and a student at a public or private school and defendant is a teacher, substitute teacher, coach, or administrator
  • Defendant is a person of authority over the victim

This is a felony punishable by up to any term of years up to life in prison.

CSC 2nd Degree

Involves sexual contact with the genital area, groin, inner thigh, buttocks, or breasts and any of the circumstances listed in CSC 1st.

This is a felony punishable by up to 15 years in prison.

CSC 3rd Degree

Involves sexual penetration and any of the following: Victim is 13-15 years old

  • Force or coercion is used
  • Victim is incapacitated
  • Victim is 16-17 and a student at a public or private school and defendant is a teacher, substitute teacher, coach, or administrator

This is a felony punishable by up to 15 years in prison.

CSC 4th Degree

Involves sexual contact and any of the following:

  • Force or coercion is used
  • Victim is incapacitated
  • Defendant works for the Michigan Department of Corrections (MDOC) and the victim is an inmate of the MDOC
  • Victim is 16-17 and a student at a public or private school and defendant is a teacher, substitute teacher, coach, or administrator
  • Defendant used unethical conduct while treating the victim during a medical exam

This is a high court misdemeanor (procedurally treated like a felony) and is punishable by up to two years in prison.

Lansing Michigan Criminal Sexual Conduct Defense Attorney

Being charged with rape can have life-altering consequences that may be irreversible. If you have been charged with rape, accused of rape, or under investigation for rape do not speak to the police or take any polygraph tests! Contact Austin Legal Services, PLC to speak to a Michigan sex crimes defense attorney at (517) 614-1983 today!

Defending sex crimes and allegations of rape, CSC, and molestation throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Calhoun, Kalamazoo, Washtenaw, Barry, Genesee, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Jackson, Battle Creek, Kalamazoo, Ann Arbor, Hastings, Flint, Corunna, Durand.

 

Special Accommodations in Sex Crime Cases

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Lansing Michigan Criminal Sexual Conduct (CSC) Defense Lawyer

Being charged with a sex crime is a frightening and humiliating experience for most defendants. Even the mere allegation has the power to forever change someone’s life. Not only is prison time almost a given in most cases, but there are additional punishments such as being labeled a sex offender and being compelled to register under the Sex Offender Registration Act (SORA) and the public scorn that goes along with it. Not only are sex crimes unique with its “dual punishment” but the courtroom procedures are specifically altered as well. These are known as “special accommodations.”

Screenings or Shielding

In some cases, the court may allow the complaining witness (“victim”) to be shielded from the defendant while testifying. This could be accomplished by simply having the defendant and prosecutor switch tables so the witness is not direct in view of the defendant, or it could involve placing a barrier in between the witness and the defendant, such as a chalkboard. However, the defendant must still be able to see and hear the witness and be able to communicate with his attorney. Sometimes the court may exclude all unnecessary persons from the courtroom.

The court will base its decision on a number of factors “necessary to protect the welfare of the witness.” The court takes into consideration the age of the witness and the nature of the offense. If the witness and/or the witness’s family or guardian desire to have the witness testify in a room closed to the public, the court will be taken into consideration. Often these occur when the complaining witness is a child or minor. At trial, the same accommodations can be given in addition to the attorneys being ordered to stand at the podium infront of the witness stand to ask questions of all witnesses.

According to MCL 600.2163a(9)(a)-(c), the judge must consider these factors on the record when making his decision. The prosecutor must give notice to the defendant that they are seeking to use a shield or screening so the defendant has an opportunity to object. However, such objections usually fall on deaf ears as caselaw supports these special accommodations although they can be highly prejudicial by suggesting to the jury that the defendant is someone to be feared and the witness is right to be fearful of him. It elevates the rights of a witness above the Constitutional rights of the defendant.

Support Person

The prosecution may also seek to allow a support person to accompany the complaining witness when testifying. Under MCL 600.2163a(4) and MCL 712A.17b(4), a child or developmentally disabled witness must be permitted to have a support person with them or be in close proximity to the witness while testifying. This applies to all stages of proceedings, not just trial. The prosecutor must serve a Notice of Intent upon the defendant and all other parties stating the name of the support person and their relationship to the witness. The support person is just to comfort the witness by their presence; they are not allowed to coach the witness or speak to them while they are testifying. The court and defense counsel should be cognizant of the potential for unduly suggestive nonverbal communication between the support person and the witness.

Michigan Sex Crimes Defense Lawyer

Being charged with a sex crime can have a devastating impact on your life and the lives of those around you. Even if you are just being investigated, you need legal representation. Never, ever agree to talk to the police, CPS, or take a polygraph without first consulting with a lawyer. If you are facing criminal sexual conduct (csc) charges, call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan CSC defense lawyer.

Defending sex crimes, CSC charges, and SORA violations throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Shiawassee, Washtenaw, Kent, Barry in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Jackson, Corunna, Durand, Ann Arbor, Grand Rapids, Hastings.