On March 25, 2024, the Michigan Supreme Court issued an Opinion in an important case affecting other Criminal Sexual Conduct (CSC) cases.
Recently, Prain Law, PLLC posted about this same case, People of the State of Michigan v. Karl Derell Butler, when oral arguments by the attorneys were concluded and the Supreme Court had yet to publish its decision.
That decision has now been issued. In this article, we follow-up on our earlier post and break-down what we learn from this decision about the ability of those facing Michigan Criminal Sexual Conduct charges to introduce evidence at trial that their accuser has allegedly falsely accused someone else of CSC in the past.
A person can be charged and convicted of Criminal Sexual Conduct based solely on the word of their accuser without any corroborating evidence. So if you are accused of Criminal Sexual Conduct, it goes without saying that evidence that your accuser has falsely accused another person in the past can be a game-changer because it impacts their credibility.
Therefore, you might assume that you automatically have a right to introduce evidence at your trial of their prior false allegation (or false allegations). But as we explained in our other recent article, the Defendant actually must ask the Court for permission to introduce this evidence, and there is a specific procedure the Court must follow in determining whether it will ultimately allow this evidence at trial or not.
However, this procedure is arguably a bit unclear and confusing under the current state of our law. As we previously described, during the January 11, 2024 oral arguments in the Butler case, the Supreme Court Justices and attorneys focused on trying to better define the parts of this procedure that may have been unclear, including what level of proof is required and whether that level may change depending on the nature of the case and any defenses raised.
The Butler case involved three Defendants charged with Criminal Sexual Conduct 1stDegree, an offense subjecting them to a possible sentence of up to life. The person accusing all three Defendants (i.e., the “Complainant”) was the same individual, and Butler contends that although he did engage in sexual activity with the Complainant, the sexual activity was consensual (this is obviously different from a case where the defense is that no sexual activity occurred at all).
Butler and his two Co-Defendants brought a Motion (in other words, a written request) asking the trial Court to allow them to introduce evidence that a few months before the alleged sexual assault that led to the charges against Butler and his Co-Defendants, the Complainant had accused two other people of a sexual assault, and that it was allegedly false. Like in Butler, the two formerly accused individuals asserted that their sexual contact with the Complainant was consensual. That prior accusation by the Complainant resulted in a police investigation, and the two were never charged with any crimes.
At their upcoming trial, Butler and his Co-Defendants sought to introduce testimony of the two people the Complainant accused before, police who investigated that matter, and two others present during the immediate aftermath of this prior alleged assault to show that the Complainant falsely accused other people before.
The Prosecution argued that the evidence the Defendants in Butler wanted to introduce was prohibited by Michigan’s “Rape Shield” statute, MCL 750.520j, a law that generally prohibits evidence of a Complainant’s prior sexual conduct with several exceptions. In-fact, our Courts have already stated that Rape Shield does not apply to false allegations of sexual assault, but in Butler, the Supreme Court stated that the Defendant did not contest the applicability of Rape Shield (appellate Courts typically do not address issues that the parties do not raise).
After initially denying the request, the Judge in Butler was asked to reconsider. Upon undertaking a review of Police Reports from the Complainant’s prior allegation, the Judge decided to allow evidence of the prior allegations, including testimony of the two individuals who maintained their innocence and were never charged. The Judge withheld a final determination of exactly what specific testimony would be allowed until the trial so that could be decided in the context of how the other evidence in the case developed.
The Prosecution appealed this decision, and the Court of Appeals reversed the trial Judge, so the Defendants appealed that decision to the Michigan Supreme Court. The issues and arguments in the Butler case in the Supreme Court have focused not just on what should happen in the Butler case, but also upon clarifying the procedure in general that applies to deciding whether evidence of prior allegedly false allegations of sexual assault can be used by the accused in a Criminal Sexual Conduct trial.
The basic procedure applied to these situations comes from a much older Michigan Supreme Court case, People v. Hackett, 421 Mich 338 (1984).
- First, the Defendant has to make an initial “offer of proof” (a description) of the evidence of the alleged prior false allegation and how it is relevant. If the Defendant’s offer of proof is insufficient, the request to admit the evidence will be denied.
- Second, (only) if the offer of proof described above is sufficient in terms of the Defendant’s Constitutional right of Confrontation (meaning the right to question and call one’s credibility into question, arising out of the 6th Amendment, as opposed to just their character or general “impeachment”), then the Court shall conduct a hearing where testimony and evidence is received, but is closed to the general public (called an in camera evidentiary hearing).
- Finally, at the conclusion of this in camera hearing, the Judge will ultimately decide if the evidence will be allowed at trial or not, taking into consideration the Defendant’s important Constitutional rights. There has to be at least some “apparently credible and potentially admissible evidence that the prior allegation was false” – it isn’t enough just to show that a prior allegation was made without a basis for also believing that it was false.
Again, the Supreme Court held oral arguments in the Butler case on January 11, 2024, and now the Supreme Court has issued its 8-page decision (called an “Opinion”).
So did the Michigan Supreme Court finally set down a comprehensive set of rules governing the procedure for prior false allegations of sexual assault? A fair answer would seem to be “Not quite yet.” Attempting to keep it simple, here is what the Supreme Court decided…
The Supreme Court found that after the trial Court examined the Police Reports and made a ruling that certain evidence would be admissible, it fulfilled the first step above, meaning the trial Court must have felt the Defendants’ offer of proof was sufficient. The Supreme Court implied that the trial Court made that finding as to the first step, but cautioned that the trial Court should have made an explicit finding as to that step to make it clearer.
However, the Supreme Court held that the trial Court failed to satisfy the second step, above – conducting an in camera evidentiary hearing before deciding ultimate admissibility. During oral arguments back in January, Supreme Court Justices questioned whether just reviewing the Police Reports could satisfy the requirement of an in camera evidentiary hearing. An “evidentiary hearing” typically refers to something that looks like a “mini-trial” – witnesses on the stand, direct and cross-examination, an official record of testimony, exhibits being entered into the hearing record, etc., albeit without a Jury present. In Butler, the Prosecution and Defense apparently did agree that the Judge could just review the Police Reports, but now the Supreme Court is clear that regardless, the law requires something in the nature of the mini-trial like procedure described above.
But a big lingering question has been “Exactly how much evidence must a Defendant produce that the prior allegation was, in-fact false? What is the Defendant’s burden of proof of falsity required to introduce evidence of a prior alleged false allegation of sexual assault in a Criminal Sexual Conduct case?”
The Supreme Court did not directly answer this question. The Supreme Court pointed out that Courts in different States across the country have arrived at different standards. Instead of directly stating what the burden of proof of falsity is, the Supreme Court said “[s]ince the adoption of an appropriate standard is a question of first impression in Michigan, we believe it is appropriate for the lower courts to assess this question in the first instance.”
In other words, the Supreme Court is sending (or “remanding”) the Butler case back to the Court of Appeals with instructions to then in turn remand it back to the trial Court to conduct an in camera evidentiary hearing and address the following questions and issues:
- 1) What the appropriate standard of proof is for the admissibility of evidence of prior false allegations of sexual assault by the Complainant;
- 2) Whether, after the in camera hearing, the Defendant in this particular case has presented sufficient proof of the falsity of the Complainant’s prior allegations; and
- 3) If necessary, make a preliminary decision as to whether and to what extent the evidence is otherwise admissible under the Michigan Rules of Evidence.
This means that although it is uncertain as of now, it is possible that after the trial Court holds its hearing and decides these issues, the losing party could challenge that decision again – so perhaps the Michigan Court of Appeals and/or Supreme Court will be weighing in on these issues with more specificity in the future.