Michigan Criminal Sexual Conduct Attorneys are often asked the question "What if I'm facing Criminal Sexual Conduct and my accuser has falsely accused someone before? Can I use that in my defense?"
Well, this is actually a rather complicated area of the Michigan Criminal Sexual Conduct laws, but there are in-fact some very specific procedures that have to be followed when this issue arises, and it seems to be an area of the CSC laws that is confusing at worst, and constantly evolving at best. Here, we break-down the basics in a way that will help you gain an understanding of what can happen when there is evidence that the accuser has falsely accused someone of CSC before.
RELATED - 2024 Update - Michigan Supreme Court rules on procedure for prior false accusations of Criminal Sexual Conduct.
At Prain Law, PLLC, we specifically concentrate our practice on defending people accused of Michigan Criminal Sexual Conduct (CSC) charges. These charges include:
- First Degree Criminal Sexual Conduct (as with all Degrees of CSC, it is also referred to as Criminal Sexual Conduct 1st Degree, MCL 750.520b
- Criminal Sexual Conduct 2nd Degree, MCL 750.520c
- Criminal Sexual Conduct 3rd Degree, MCL 750.520d, and
- Criminal Sexual Conduct 4th Degree, MCL 750.520e.
Every day, somewhere in Michigan, we're defending someone against a CSC charge. In our experience, a "general practitioner" Criminal Defense Attorney who takes all kids of cases is very unlikely to know the particular laws and procedures that we will discuss below, and knowledge and experience like this when it comes to CSC in particular could be the difference for you between severe penalties and a verdict of NOT GUILTY of Criminal Sexual Conduct.
Now, let's get to the point - here's exactly what you need to know if you or someone you care about is accused of Criminal Sexual Conduct, and the person doing the accusing has falsely accused someone (including you) of Sexual Assault before:
- Your Michigan Criminal Sexual Conduct Lawyer needs to file a Motion asking to admit the prior false allegation or allegations into evidence. You would think there would be no question that, being accused of such a serious crime, you'd absolutely have the right to let the Jury know that your accuser has falsely accused someone else in the past. But in-fact, the burden is on you, the Defendant, to bring forward the basic facts of the prior false allegation(s) and ask the Court to allow you to bring it up at trial. This is an example of how the law isn't always fair, and doesn't always follow common-sense.
- Prior false allegations of Sexual Assault by the accuser (or "Complainant") in a CSC case are NOT covered by the Michigan "Rape Shield" law, MCL 750.520j. The so-called Rape Shield law is a Michigan statute that prevents a Defendant from bringing up his or her accuser's past sexual conduct at trial, subject to certain, limited exceptions. You can read more about the Michigan Rape Shield law by clicking here, but what is important to know is that the Michigan appellate Courts have repeatedly said that Rape Shield does not apply to prior false allegations of Sexual Assault / Rape by the accuser. However, it can be confusing, because the Michigan procedure for admitting evidence of a prior false allegation in a CSC case is very similar to that used when a Defendant asks to introduce evidence under one of the Rape Shield exceptions.
- The Motion your Defense Attorney needs to file has to contain an "offer of proof," meaning a statement of facts from which the Judge can reach a preliminary determination that you actually have a basis for believing the prior allegation was in-fact made, and that it was false (in other words, that is is "relevant"). There are many rulings by our appellate Courts that make it clear that if the person accusing you has falsely accused before, as part of your Constitutional rights (the Sixth Amendment right of confrontation), you should be allowed to introduce this evidence in your defense, because it bears directly on the credibility of your accuser. In other words, if they in-fact did falsely accuse someone before, it is highly "relevant" to your defense. The distinction here is that a sufficient "offer of proof" will do more than just raise a mere suspicion that the accuser might have falsely accused before - it will offer specific facts, to the extent possible at this stage, to describe the particulars of each specific prior false Sexual Assault allegation.
- Even where there is a sufficient offer of proof in the Motion described above, there's still another step. If the Judge decides the offer of proof is sufficient, then the Court will schedule s special type of hearing called an "in camera evidentiary hearing." "Evidentiary" means that evidence is being introduced, most often in the form of witnesses testifying on the stand and Exhibits being introduced. "In camera" means that it is closed to the public to protect people's privacy. At this hearing, the Defense must call witnesses who know about the prior false allegation(s) to show the Judge to their satisfaction that the prior allegation(s) were in-fact made, and that they were false. As recent as February 18, 2021, the Michigan Court of Appeals ruled on a case called People v. Hall, Case No. 347290, a case where they found there was not a sufficient offer of proof when even witnesses that would appear to be on the Defendant's side told vastly different accounts of the supposed prior false allegation.
- For example, at the in camera evidentiary hearing, witnesses may testify that the accuser accused someone else in particular, that the matter was investigated by Police, that the accused passed a Polygraph (lie detector), and that no charges were brought. Sometimes, this may even include testimony from people who have heard the accuser admit that the prior allegation was false. However, the fact that the accuser refuses to admit lying and falsely accusing someone of Rape or Sexual Assault is to be expected - it is not required that there be absolute or "concrete" proof of falsity, nor is it required that the accuser admit that they lied. However, there has to be something of substance. The difference between this in camera evidentiary hearing and the Motion, above, is that the Motion is only on paper initially, and the evidentiary hearing is based on live testimony and other evidence in Court.
- At the conclusion of the in camera evidentiary hearing, if there is enough proof that a prior allegation was made and that it was false, even if the two sides disagree, the Judge generally must allow your CSC Attorney to bring up the prior allegation at trial, because it is part of your Constitutional rights. Depending on the amount and type of evidence supporting the prior false allegation, the Judge has certain limited discretion to specify how and with what evidence it may be displayed to the Jury at the actual trial.
- Finally, you should understand that this is a complex and confusing area of the Michigan Criminal Sexual Conduct laws, and it really requires a deep understanding and a great deal of practical experience in litigating CSC cases involving prior false allegations. Not only is it complex, but it is also constantly evolving, and it can even appear that different rulings from the Michigan Court of Appeals and the Michigan Supreme Court actually conflict with each other. For example, just since the start of 2021 alone, there have been new rulings. In one case, People v. Martinez, Case No. 160060, decided January 22, 2021, the Michigan Supreme Court upheld the accused's right to introduce evidence of his accuser's prior threat to accuse her biological father (not the Defendant) of Criminal Sexual Conduct in a case where it turned out that what she threatened to accuse her father of ended up being strikingly similar to what she actually ended up accusing Mr. Martinez of. Unfortunately for Martinez, he was convicted and the Court of Appeals essentially said it didn't matter that he was denied the right to present this evidence at trial. The Supreme Court disagreed, reversed his convictions, and instead said they found it to be "highly relevant" to the accuser's credibility - that Martinez should have had the right to introduce this in his defense at trial.