Criminal Sexual Conduct ("CSC") cases sometimes involve the concept of "other acts" evidence. This generally means evidence of other "crimes, wrongs, or acts" that the defendant is not on trial for, but the prosecution nevertheless wants to use against them at trial. For example, suppose someone is on trial for First Degree Criminal Sexual Conduct for "sexual penetration" of the alleged victim under 13 years old. In that case, the prosecution may want to offer evidence that the defendant allegedly did a similar act to someone else.
Prosecution Use of “Other Acts” Evidence in Michigan
Evidence from "other acts" may sometimes be used for other purposes, such as showing motive, opportunity, intent, or acting according to a common scheme; however, "other acts" evidence is typically not admissible to show that a person's character makes them more likely to have committed the offense for which they are charged. In other words, the prosecution is not allowed to offer evidence of alleged "other acts" that the defendant is not on trial for to argue habitual action. The prosecution cannot say, "the defendant did it before, so they are guilty in this separate instance."
What Does the Law Say About “Other Acts” Evidence?
There are some minimal exceptions to this default rule, and one of them concerns Michigan Criminal Sexual Conduct charges. Per MCL 768.27a, if a person is charged with Criminal Sexual Conduct against someone under 18 years old, the facts from that case can be used as "other acts" evidence. The law allows the admission of details about these specific acts of Criminal Sexual Conduct against a minor because it is considered to have relevant bearing on the case. If the prosecution intends to offer this evidence, they must disclose it to the defendant at least 15 days before trial (or later if "good cause" is shown.) The law does not require the alleged prior act to have resulted in a criminal charge or a police investigation.
Effective early 2019, this was expanded beyond just certain types of alleged prior acts against persons under 18. According to MCL 768.27b, any case where the defendant is charged with a sexual assault, evidence of another act of Sexual Assault is admissible for any purpose for which it is relevant. In these instances, "listed offenses" under the Sex Offenders Registration Act are essentially other CSC charges.
This rule is pulled from the outer limits of the Michigan Rules of Evidence. It is further explained in subsection (4) of MCL 768.27b, which further states:
"Evidence of an act occurring more than ten years before the charged offense is inadmissible under this section unless the court determines that one or more of the following apply:
(a) The act was a sexual assault that was reported to law enforcement within five years of the date of the sexual assault.
(b) The act was a sexual assault, and a sexual assault evidence kit was collected.
(c) The act was a sexual assault, and the testing of evidence connected to the assault resulted in a DNA identification profile that is associated with the defendant.
(d) Admitting the evidence is in the interest of justice."
Especially when considering these exceptions, there is a broader scope of alleged "other acts” sexual assault that can be admitted in Criminal Sexual Conduct trials.
Similarly, under Subsection (2) of this statute:
"If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown."
Recent Court Cases Regarding “Other Acts” Evidence
On March 24, 2022, the Michigan Court of Appeals ruled in People v. Murray, Docket No(s) 355736, 355737. In that case, the defendant was convicted of First-Degree Criminal Sexual Conduct, MCL 750.520b, Second Degree Criminal Sexual Conduct, MCL 750.520c, and Third-Degree Criminal Sexual Conduct, MCL 750.520d, for Sexual Assaults claimed by his daughter and wife (currently his ex-wife.) The trial court in Murray allowed the prosecution to introduce "other acts" evidence even though they did not strictly comply with the above requirements within the 15-day period. Reviewing the trial court's decision to admit the evidence anyway, the Court of Appeals essentially said that in that case, the defense had enough information to be on notice regardless, the defendant didn't substantively challenge the admissibility of the evidence, and that it would not have changed the outcome or the defense strategy anyway.
If you are accused of Criminal Sexual Conduct in Michigan, contact Prain Law, PLLC at (248) 731-4543. Prain Law concentrates on defending those charged with CSC in Michigan.