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Past Sexual Conduct and Past Sexual Crimes Rule of Evidence

HOW TO KNOW WHAT IS OR IS NOT ADMISSABLE WHEN CHARGED WITH A SEX CRIME CHARGE

Navigating a sex crime charge can be devastating for both the defendant and the complainant.

While the burden of proof lies with the prosecution, the jurors always have a general presumption of guilt on the defendant, in most sex offense cases. This means that the defense will have a harder time introducing reasonable doubt in the prosecution’s case to change the juror’s presumption.

The prosecution and the defense will depend on evidence to build their cases. With that said, not every piece of information may be admissible in court.

The admissibility of evidence will be dependent on its adherence to the rules of evidence. That is why it is important to enlist the services of the best sex offender lawyers in Michigan if you are faced with a sex crime charge or are under investigation of alleged sexual misconduct.

Past Sexual Conduct and Past Sexual Crimes Rule of Evidence

For any piece of evidence to be admissible in a civil or criminal proceeding, it must meet three basic prerequisites:

● Relevance
● Materiality
● Competence

Relevance

An item of evidence may be considered relevant if it can help prove or disprove a fact in a case. A particular item of evidence does not have to make the fact it seeks to prove or disprove certain or highly probable. The only requirement is that it increases the likelihood of proving or disproving a fact in a case. However minor an item of evidence may be, it can be admissible if it adds weight to a case and does not fall under an exclusionary rule.

Materiality

An item of evidence is considered material if it is offered to prove a fact in a case. For example, a party could offer evidence through an eyewitness that it was raining at the time of interest in the case. While the rain may not be material to the offense in question, it could help prove a particular fact, for example, muddied clothes.

Competence

Evidence is considered competent when what it seeks to establish meets traditional evidence reliability requirements. In general, competent evidence is offered to prove a relevant fact to the case. In such circumstances, this may be admissible even if it would be inadmissible under other circumstances. For example, while a person’s prior improper conduct may not be admissible in a case as proof of an inclination of wrongdoing on the part of an individual, it may be permissible for showing:

● Motive
● Intent
● Plan
● Lack of Mistake

The Court Has Discretion on Allowing or Disallowing Evidence

If the court considers the probative value of an item of evidence insignificant or as having a negligible impact on the case, but has the potential of being improperly used by the fact finder, it can deny the admissibility of the evidence.

Past Sexual Behavior and Past Sexual Crimes Rule of Evidence

Like other crimes, criminal sexual conduct cases have rules of evidence mostly aimed at protecting the complainant of alleged sexual misconduct in a civil or criminal proceeding.

Traditionally the victim’s sexual behavior was admissible in court as evidence of the alleged victim’s propensity to consent to sexual advances and was used as a ground to impeach their evidence.

As a result, a group of women in the 1970s who were looking for changes in the rules of evidence for sexual offenses were instrumental in the law changing.

Michigan became the first state in America to adopt a rape shield law to protect alleged victims of sexual crimes. With time, all states in America adopted different forms of rape shield law to protect the alleged victim from unfair prejudice, resulting from their past sexual activity.

The rape shield law became the first law to create rules of evidence in a sex crime case. Later, the American Supreme Court built on the rape shield law by creating Federal Rule 412, Sex Offense Cases: The alleged victim’s sexual predisposition. This rule is, in many ways, a “newer version” of the rape shield law.

Rape Shield Law – MCL 768.27a (Michigan State Law)

Until 1977, there was no rules designed to govern the admissibility of a victim’s sexual behavior in a sexual offense case.

Admitting the evidence of a victim’s sexual behavior was based on the belief that “morally loose” women were likely to consent to sex and that their credibility as witnesses did not hold as much weight.

By the 1970s, however, some judges had started excluding such evidence cases under the principle of general relevance.

Adopting the rape shield law, MCL 768.27a, across states meant that the following evidence would not be admissible:

  • Evidence offered to prove the complainant’s sexual disposition based on their past sexual behavior
  • Evidence offered to prove the defendant engaged in other sexual behavior that is not material to the case

Exemptions

The court may allow the following evidence of an alleged victim’s sexual behavior:

  • Evidence offered to prove a sexual relationship between the defendant and the alleged victim before the alleged sexual misconduct
  • Evidence offered to prove a possible alternative source of pregnancy, semen, injury, and other physical evidence
  • Evidence offered to prove the alleged victim’s motivation for making false claims, including if they have had made false allegations of sexual assault in the past

Federal Rule 412: Sex Offense Cases: The Victim’s Sexual Predisposition or Behavior

The Federal Rule 412 sex offense provision is the newer and more elaborate version of the rape shield law.

Under this rule, other sexual behavior of an alleged victim that is not material to the case in question is inadmissible in a sexual misconduct case.

Prohibited uses of such evidence include pieces of evidence offered to prove a defendant’s engagement in other sexual behavior or one offered to prove their sexual predisposition.

Application of the Federal Rule 412 Sex Offense Provision

Under Rule 412, the following evidence is inadmissible in a civil or criminal proceeding involving a victim’s sexual behavior:

  • Evidence meant to prove that a complainant engaged in other sexual behavior
  • Evidence to prove an alleged victim’s sexual disposition

Application of Federal Rule 412 in a Criminal Case

In criminal cases, the court may allow admission of the following evidence:

  1. Evidence offered to prove that someone other than the person accused of sexual misconduct was the source of the pregnancy, injury, semen, or other physical evidence material to the case

Often proving that someone else was responsible for the offense other than the defendant calls for working with an expert witness. For example, proving the source of semen or pregnancy would require an analysis of the DNA profile of the semen or the child.

Additionally, opinion evidence to prove that other physical evidence found on the alleged victim or the scene of a crime point to someone else other than the defendant as the perpetrator of the crime in question may be required.

  1. Evidence offered to prove other sexual behavior between the defendant and the alleged victim

A prior sexual relationship bettween the complainant and the suspect may be permissible if it is relevant to the case in question and could be used by the defense to prove consent or that the person accused of the offense could reasonably have misconstrued an action of the alleged victim as consent based on their past sexual relationship.

With that said, such evidence only applies if the defendant consents that a sexual encounter happened. If not, the evidence of past sexual behavior of an alleged victim offered is not relevant in the case and, thus, cannot be admissible as evidence.

Under circumstances where more than one defendant is involved, evidence of an victim’s prior sexual behavior may only apply to the defendant with whom they had a relationship.

While the court may admit evidence of the victim’s past sexual conduct offered in a case, only evidence of specific instances of sexual behavior to prove consent may be permissible. Other extra details of the said sexual encounter that doesn’t serve to prove consent or that are aimed to humiliate the complainant may not be included.

  1. The past behaviors in question offer evidence to prove that if excluded, the defendant’s constitutional rights would be violated

The law operates on the premise that the defendant is innocent until proven guilty. This means that the defendant’s rights are just as important as those of the alleged victim.

Under some circumstances, it may be impossible to exclude evidence without violating a defendant’s rights to a fair trial. Under such circumstances, the court may admit evidence of specific instances of an alleged victim’s sexual behavior if admitting the evidence of specific instances of sexual behavior offers evidence that doing so ensures the defendant’s constitutional rights are upheld.

Applicability of the Federal Rule 412 in a Civil Case

In civil cases, the court may admit evidence of an alleged victim’s sexual predisposition if its probative value significantly outweighs the harm the said evidence would cause the alleged victim or unfair prejudice to the parties involved in the case.

Additionally, the court may also admit evidence of specific instances of sexual behavior of an alleged victim under Federal Rule 412 if they (the complainant) have placed their reputation in controversy.

Procedure for Admitting Evidence – Federal Rule 412 & MCL 768.27a

While some circumstances allow the admission of specific instances of a victim’s past sexual behavior in a sexual offense case, admission is not automatic.

The court has the discretion to determine admissibility of an alleged victim’s sexual history as evidence.

If any party wishes to introduce evidence of the victim’s past sexual behavior under sex offense cases provisions, that party must:

For Federal Rule 412:

  • File a motion stating the intention to have the evidence of specific instances admitted at least 14 days before the trial date, unless the court sets a different date
  • Indicate in the motion specific instances of sexual behavior of an alleged victim they wish to have admitted as evidence and the purpose for having it admitted
  • Serve all the parties involved in the case with the motion and its contents
  • Notify the complainant, their guardian, or representative

For MCL 768.27a:

  • File a motion stating the intention to have the evidence of specific instances admitted at least 10 days before the arraignment date, unless the court sets a different date
  • Indicate in the motion specific instances of sexual behavior of an alleged victim they wish to have admitted as evidence and the purpose for having it admitted
  • Serve all the parties involved in the case with the motion and its contents

Whether the evidence is being offered at the state or federal level, before the court can determine admissibility of an item of evidence in a case, it must conduct an in-camera hearing.

The purpose of the hearing is to determine admissibility of the evidence offered and give the complainants, and all the parties involved, an opportunity to be heard.

After the in-camera hearing, the court can rule the evidence admissible or inadmissible by weighing the item of evidence’s probative value against the harm it would cause the claimant and their case.

Suppose the court determines that the probative value of the evidence outweighs the potential unfair prejudice on the alleged victim’s case. In that case, the judge will admit the evidence as long as it does not violate any other rules of evidence. If not, the judge will rule it inadmissible.

Under Federal Rule 412, if the court rules in favor of admitting the evidence, the motion and its related materials must be sealed and remain under seal, unless the court rules otherwise. This means that the evidence and the motion will only be accessible by:

● The Parties in the Case
● The Court and Agents
● The Defendant’s Attorney
● The Government

Basically, while the court may accept evidence collected, the questions asked during the in-camera hearing will not be repeated in court, nor the evidence resubmitted.

Under Michigan State Law, MCL 768.27a, however, the requested evidence will be argued in a motion before the court, and the motion can be heard by the public. If the court grants the request to have certain evidence of sexual acts in at trial, the public is not specifically barred from hearing the testimony.

Evidence of Defendant’s Prior Criminal Sexual Misconduct

While the rules of evidence for sex crime complainants under Federal Rule 412 sex offense cases provision prohibit the use of victim’s sexual behavior as evidence, the same cannot be said of the person accused of sexual offenses.

Under federal and most states’ rules of evidence, a defendant’s past sexual misconduct is admissible as evidence of their sexual predisposition.

Under Federal Rules 413, 414, and 415, the prosecutor is at liberty to introduce a defendant’s past sexual misconduct if the sexual history is relevant to any matter pertaining to the offense in question.

With that said, if the prosecution plans to introduce evidence of sexual predisposition of the defendant, they must do so within the framework of the rule of evidence.

A defendant’s past sexual misconduct is only admissible in court if the defendant is notified at least 15 days prior to the trial commencement date or a date set by the court, and if it does not violate any rule of evidence.

Under the Michigan Rules of Evidence statute, evidence of an offense that occurred more than 10 years from the offense charged is NOT admissible in court as proof of a defendant’s sexual predisposition, unless:

  • The past offense involves a sexual offense, including child sexual abuse, and was reported to the police within five years from the date of the assault
  • A sexual offense where a rape kit was collected
  • Sexual offense that has DNA evidence to prove it
  • Admission of the evidence is in the interest of justice

Let Criminal Defense Attorney Nicole Blank Becker Help You with Your Sexual Assault Charge

A conviction with a sex crime can be devastating and tend to leave an indelible mark on the life of a convicted offender.

The difference between getting a conviction and beating your sexual offenses charges largely depends on your choice of attorney. If you are under investigation or charged with a sexual offense charge, for any form of sexual offense in Michigan or any state, Nicole Blank Becker of Blank Law, PC is the defense lawyer to call.

Nicole work side-by-side

Nicole has more than two decades of experience in criminal law and is solely focused on sex crimes. She was the Cheif of the Sex Crimes Unit as a prosecutor for years, meaning she has deep insight and knowledge into the detailed laws surrounding sex crimes.

Contact Blank Law, PC at (248) 515-6583 or fill out this online form to book your free consultation and have Nicole Blank Becker on your case.

3150 Livernois Rd. Suite 126
Troy, MI 48083
(248) 515-6583
law@nicoleblankbecker.com

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