Prior Bad Acts in Michigan Sex Crimes


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.