In our practice concentrating on representing those accused of Criminal Sexual Conduct (CSC) charges, some common questions we get revolve around “character evidence,” such as:
What exactly is “character evidence”?
Can character evidence be used in my Criminal Sexual Conduct case?
Essentially, character evidence is evidence offered in Court for the purpose of convincing the Judge or Jury to believe that during a specific time or event, some person involved in the case (the Defendant, the accuser, or some other witness) acted the way they usually act. In other words, evidence that would tend to make us believe that during a specific time or event that is important to the case, this person acted in conformity with their normal character.
Character evidence can take many different forms: character for truthfulness or untruthfulness, character for violence or passiveness, character for promiscuity or good sexual morals, and so on.
In order to decide various issues in a case, there might be reasons why a Judge or Jury would consider it important to know about someone’s character for one or more traits, like some of those listed above. And it is not hard to understand why.
Ironically, the default rule in Michigan is that barring certain exceptions, most character evidence is not admissible in Court.
If Johnny has been caught stealing jewelry three times in the past, then it might be reasonable to assume he stole the missing ring on the date in question. But making an assumption like that in a Court of Law can be dangerous and misleading, especially given a lack of specific proof that Johnny actually stole the jewelry this time.
Therefore, Courts have to be very careful about when and what character evidence should be allowed to keep things fair. A Michigan Rule of Evidence states that:
“[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”
You should realize that character evidence only refers to that used “to prove that on a particular occasion the person acted in accordance with the character or trait.” In other words, something is only considered character evidence when it is being offered to essentially say “this person has done XYZ before, so you should believe they did it again this time.” This is referred to as making a “propensity” inference.
Evidence about wrongful things that the Defendant or another person has allegedly done in the past (called “other acts”) might seem like character evidence but is not because it’s being offered for some other purpose, like proving a person’s identity, their intent, their motive. A great deal of this “other acts” evidence is allowed in Court.
Note also that under the Rules of Evidence, evidence of a persons habits are not the same as their character traits. A character trait means something like: “Suzy is a violent person”, “Joe is a liar”; or “Mike is a passive man,” etc. A habit means something like: “John always sets his alarm for 5:00”; “Tim always puts his keys there”; or “Jane always runs on Sunday.”
As alluded to above, there are certain exceptions to the general rule that character evidence is not admissible in Court, and many of those exceptions directly affect Criminal Sexual Conduct cases.
For example, the accused Defendant in a criminal case may offer evidence of their own “pertinent trait.” As an example (in theory, subject to the ultimate ruling of the Judge), a Defendant charged with Third Degree Criminal Sexual Conduct (MCL 750.520d) for allegedly engaging in sexual penetration by “force or coercion” could offer evidence at trial of his character for certain good sexual morals. He could introduce evidence including calling witnesses to the stand who have personal knowledge of facts tending to show his good sexual morals. Perhaps he calls two past girlfriends who testifiy that during intimate relations, the Defendant was never forceful or aggressive - that he was always very reserved, respectful, and made efforts to obtain consent at every stage of their interactions.
Whether or not it’s a wise choice for any particular Defendant to offer that evidence is the type of decision an experienced Michigan Criminal Sexual Conduct Attorney will carefully consider. Just because someone couldoffer certain evidence doesn’t necessarily mean they should…
If evidence of a Defendant’s good character is admitted by the Judge, the Prosecution is then allowed to offer evidence to rebut it. So in the above example, for it to be wise for the Defendant to call the two exes to testify in the first place, he’d need to be sure there aren’t two others who would come and claim the opposite because that net effect is likely very poor for his defense.
But depending on the type of Criminal Sexual Conduct case, the Prosecution might not even have to wait until a Defendant first successfully introduces evidence of his good sexual morals before being able to offer negative character evidence against the Defendant.
Generally speaking, if someone is charged with stealing, the likelihood of a Court allowing a Jury to hear evidence that they stole other things in the past (even if there was a past criminal conviction) is low. This is because a Jury could be so distracted and swayed by hearing about the past thefts that they fail to give appropriate weight to the evidence (or lack thereof) of theft on the date in question.
But in Criminal Sexual Conduct cases, the rules are often very different because of special laws that apply. This is one of many ways those accused of Criminal Sexual Conduct have a harder road than those accused of other crimes.
One example of this is a Michigan law, MCL 768.27a, which establishes that where a Defendant is charged with Criminal Sexual Conduct where the alleged victim is a minor, then assuming the Prosecution follows certain rules, evidence that the Defendant allegedly committed certain other acts of sexual abuse on a minor can be admitted, even if there were no charges brought and no conviction obtained. This law allows for the Prosecution to use this even where their only purpose is to convince the Jury to make a propensity inference which normally isn’t allowed (i.e., “he did it before, so you should believe he did it again this time.”).
The Defense can still object to this evidence, however. Michigan case law has set forth a list of multiple factors for a Judge to consider in deciding whether that type of evidence should be prohibited in situations where the value of the evidence in terms of reaching a just verdict would be outweighed by the risks of the Jury being confused or focusing too much attention on it. Again, an experienced Michigan Criminal Sexual Conduct Lawyer will know how to navigate these situations.
Michigan also has a similar law, MCL 768.27b, which now also allows the Prosecution to attempt to use evidence of prior alleged Sexual Assaults by the Defendant as evidence in a Criminal Sexual Conduct case and to make the “he did it before, so you should believe he did it again this time” argument. Again, admission of the evidence is not automatic – the Prosecution and the evidence have to meet certain requirements, and the Defense can still object.
A complete discussion of character evidence could easily fill volumes. This is a general overview, but there are a few other points worth making, which are discussed below.
An entirely different brand of character evidence deals with character for truthfulness or untruthfulness. If an accuser, Defendant, or other witness testifies, other witnesses may be called to speak to their character for truthfulness or untruthfulness. This may come in the form of their personal opinion or testimony about reputation for being truthful or not within a particular group. This can be very powerful evidence. Of course, once someone’s credibility has been attacked in this way, the other side can call witnesses to rebut that (you should be noticing a trend here).
Judges have discretion over whether a witness on the stand may be cross-examined about specific events that speak to their own truthfulness or the truthfulness of another person whose truthfulness they’ve testified about. There is a specific Rule that sometimes allows for a witness to be “impeached” (or have their credibility attacked) by showing the Jury that within a certain timeframe, they’ve been convicted of a crime involving an element of dishonesty, a false statement, or certain serious theft crimes.
Finally, a Defendant in a Criminal Sexual Conduct case who meets certain requirements can introduce evidence that their accuser has made prior false allegations of Sexual Assault. We’ve written about this extensively, and you can read about it in our blogs. This type of evidence is not excluded by Michigan’s “Rape Shield” law, MCL 750.520j.
Like the last several types of evidence described above, evidence of an accuser’s prior false allegations of Sexual Assault soft of bridges the gap between “character” and “impeachment” of credibility. Evidence of prior false allegations of sexual assault can be considered “character” in the sense that it is offered to show a propensity - that “he/she falsely accused before, so you should consider that they’re falsely accusing again this time,” yet it is also obviously an attack on the accuser’s overall credibility at the same time.
If you are accused of a Michigan Criminal Sexual Conduct (CSC) offense, contact Prain Law, PLLC to learn how we can help. Prain Law, PLLC specifically concentrates its practice on defending those accused of CSC in Michigan.