At Prain Law, PLLC, we concentrate on defending those accused of Criminal Sexual Conduct charges ("CSC" for short). Michigan Criminal Sexual Conduct Attorney Brian J. Prain has won countless verdicts of NOT GUILTY of Criminal Sexual Conduct in jury trials for his clients (stay tuned for an upcoming article about the recent victory - NOT GUILTY of all counts of Criminal Sexual Conduct 1st Degree on July 26, 2024).
Criminal Sexual Conduct cases are very unique in the world of criminal charges. Here, we’re going to take a brief look at one particular aspect of CSC cases – whether the Prosecution has to prove that the alleged crime occurred on a particular date as opposed to just "sometime last year" or sometime years ago," etc. In other words, What if the accuser in a Criminal Sexual Conduct case can’t even identify a specific date? Can the case still go forward, and can someone be convicted under those circumstances?
In a trial for most types of criminal charges, the Prosecution has to prove beyond a reasonable doubt that the alleged crime occurred on the day that they claimant did, and that it occurred within the geographical area giving the court jurisdiction, i.e., the City or County in which the Prosecution is being brought.
For example, barring unusual circumstances, in a trial on one of the various types of homicide charges in Oakland County, the jury will be read a standard Jury Instruction that reads as follows:
"The Prosecutor must also prove beyond a reasonable doubt that the crime occurred on or about January 1, 2024 within Oakland County."
That is called Michigan Criminal Jury Instruction 3.10, Time and Place (Venue), and some variation of it is read in every trial.
However, there is a special version of that instruction that applies in Criminal Sexual Conduct cases, Michigan Criminal Jury Instruction 3.10a, Time and Place (Venue) - Criminal Sexual Conduct Cases. If we imagine a prosecution for CSC in Wayne County, this instruction would read as follows:
"The Prosecutor must also prove beyond a reasonable doubt that the crime occurred within Wayne County.
Time, however, is not an element of the crime of Criminal Sexual Conduct. The Prosecutor does not have to prove the date or time of the offense beyond a reasonable doubt."
These standard jury Instructions used in criminal cases come as part of a big set or "book," and the individual instructions contain "use notes" to help the attorneys and Judge know when, how, and in what situation’s to properly use each instruction, including when to use one particular instruction instead of another.
Interestingly, although many Judges and attorneys may not even be aware, when looking beyond the use notes to the actual case decisions from the Michigan Court of Appeals and Michigan Supreme Court (which become part of the law), we see that this unique instruction that the Prosecution does not have to prove a particular date in a CSC case only expressly applies in cases where the alleged victim is a minor.
Thus, we believe that attorneys defending those accused of Criminal Sexual Conduct in cases where the accuser is an adult, this special instruction 3.10a does not apply, the regular instruction 3.10 should be read instead, and thus the Prosecution should be required to prove beyond a reasonable doubt that the alleged offense occurred on a particular date whenever possible.
We suspect that many attorneys may let this issue slip because they rely solely on the use notes with the Jury Instructions without delving into the case law.
Why does this matter? Because if the law says that the Prosecutor has to prove certain facts beyond a reasonable doubt in order to obtain a conviction, then zealously defending the client obviously means doing everything possible to hold the Prosecution to their full burden. If they can’t establish one or more necessary facts or "elements" of a CSC charge is beyond a reasonable doubt, then the Defendant is entitled to a verdict of Not Guilty of CSC by law. In theory then, this could be the difference between a conviction and an acquittal.
The Michigan case law as it relates to proving a specific date in a Criminal Sexual Conduct case is somewhat complex. But essentially, it stands for the proposition that (at least in an adult accuser case) if a particular date can be ascertained as to when the alleged CSC supposedly occurred, then the Prosecution should have to prove that it in-fact occurred on that date.
If someone is accused of CSC where the alleged victim is an adult who alleges that the incident occurred on a specific date (or a date that can reasonably be ascertained from other facts and circumstances in the case), then the Prosecution should have to prove that, and the regular Time and Place instruction should be read just like in any other case.
This is one unique situation where, simply looking at the "use notes" for the standard Jury Instructions alone may not give a full an accurate picture of the law that applies in all cases.
In one recent case where the alleged victim was an adult accusing our client of Rape (or in modern terms, Criminal Sexual Conduct 3rd Degree, MCL 750.520d) and unlawful "sexual contact" (Criminal Sexual Conduct 4th Degree, MCL 750.520e), Michigan Criminal Sexual Conduct Lawyer Brian J. Prain made this exact argument and the Court agreed. That case later ultimately went onto a full jury trial and resulted in a verdict of NOT GUILTY of all Counts of CSC.
In all, this is a good example of how having an attorney who specifically concentrates on Criminal Sexual Conduct cases, as opposed to just a “general practice“ criminal defense attorney, can be essential to pick-out these little, often missed details that can make a difference. And make no mistake - even the innocent need every advantage they can get when facing a CSC charge.