Michigan Criminal Sexual Conduct Defense - Can I Call Character Witnesses?

A Michigan Criminal Sexual Conduct (CSC) case must follow the same procedures and rules as other types of criminal charges, but there are some special rules and principles that apply to CSC cases in particular. There are also certain situations where a rule or procedure that applies to all criminal cases generally takes on some unique features in a CSC case.

As a Michigan Criminal Defense law practice concentrating on defending specifically those accused of Criminal Sexual Conduct in Michigan, we are sometimes asked "If I am charged with Criminal Sexual Conduct, can I call a character witness in my defense?"

This seems to be a topic of confusion, because many lawyers often generalize and say things like "Evidence of character is inadmissible in Court." While it is generally the case that many instances of "character" evidence is inadmissible at trial, to say only that would be an over-generalization.

In-fact, if you are charged with CSC in Michigan and you have people willing to come forward and speak to your good character, you'll be pleased to know that the general rule has exceptions, and those exceptions are usually sufficient to allow your Criminal Sexual Conduct Defense Attorney to present what is necessary in terms of your good character, which is explained below.

But first, the general rule against allowing character evidence in Court is really only about trial and other hearings where testimony and other evidence is offered. In a trial or evidentiary hearing, what information may be presented is generally controlled by the Michigan Rules of Evidence (MRE). MRE 404(a) states:

"Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except..."

This means that generally, if the accuser, accused, or another witness involved in a case has a certain character trait (i.e., violence, sexual perversion, anything), evidence cannot be introduced to show that the person acted that way on a particular occasion (i.e., "He's a violent person, so you should find that he acted violently on this occasion.").

This is why we often hear lawyers say that you can't use character evidence in Court, but as you can see by looking at the last word in the above MRE, to say that is far too general, and there are exceptions that favor both the Prosecution and Defense.

So let's look at how your good character can be advanced depending on what stage of the case we're taking about...

PRELIMINARY & PRETRIAL STAGES

During the early stages of your case, you will have arraignment (where bond is set), probable cause conference (PCC), and preliminary examination in the local District Court. If your case is "bound-over" to the County Circuit Court, it will continue with arraignment on the information (AOI), pretrial conferences, and other types of hearings.

These are the hearings leading up to either a dismissal, plea deal, or trial, and with the exception of the preliminary exam and any "evidentiary hearings" where the MRE apply, none of these involve introducing any actual "evidence" in the formal sense. Outside of preliminary exam, evidentiary hearings and trials, there is no restriction on how many people can write letters or make statements in other forms to speak about your good moral character for honesty, lack of criminal propensity, lack of sexual perversion, good sexual morals - anything.

At this stage, the Judge is not typically going to receive and read such statements, but we have put them to good use by sharing them with the Prosecution in order to receive an excellent plea deal or dismissal in the right types of cases. However, only an experienced Michigan Criminal Sexual Conduct Attorney acting on your behalf should decide when this is appropriate, because although rare, even a statement that appears you to be helpful on its face could have unintended negative effects.

PRELIMINARY EXAM, EVIDENTIARY HEARINGS, AND TRIALS

These types of Court proceedings are different from the above because they involve witnesses testifying on the stand and documents, photos, or other exhibits being introduced. At these types of hearings, the Michigan Rules of Evidence (MRE) apply, except certain evidentiary hearings (such as those where your accuser has falsely accused someone of Sexual Assault before, or in the case of certain hearings on "Rape Shield" Motions.

Although we've already seen above that the general MRE on character evidence is that it cannot be used to show action in conformity on a particular occasion, the first exception to that rule is in MRE 404(a)(1), which states that the following is allowed:

"Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same..."

In other words, when you are the accused, you can call to the stand witnesses who know you well enough to testify that you are not the type of person who would commit the particular Criminal Sexual Conduct allegations being made against you. This is typically done only at trial.

For example, a grandfather on trial for First Degree Criminal Sexual Conduct for allegedly engaging in sexual penetration with a minor might call to the stand a witness who has personally witnessed him interact with many children throughout the years, has always seen the Defendant exercise appropriate judgment and care, and that there has never been any indication of a desire to sexually abuse children.

Likewise, a young man on trial for First Degree or Third Degree Criminal Sexual Conduct for allegedly having sex with an intoxicated woman by "force or coercion" after a date could call three ex-girlfriends to the stand who would all testify that he always exercised good sexual morals, was slow to engage in sexual activity until he knew them well, and always respected their boundaries without any use of force or aggression.

Or, a man who runs a business on trial for Second Degree Criminal Sexual Conduct or Fourth Degree Criminal Sexual Conduct for allegedly groping a female employee might call to the stand several other female employees who would testify that he has never made any advances toward him, and that he has always respected all of the women at the office.

There could be endless examples, but you get the picture. You should also know that there is such a thing as introducing evidence of good character for truthfulness and honesty, but that is an entirely different topic.

The Michigan Court of Appeals and Supreme Court have repeatedly reaffirmed your right to introduce this type of evidence of your good character. However, just because you could doesn't always mean you should. For one thing, basing an entire defense on calling character witnesses, or calling someone like your mother to the stand despite overwhelming evidence of guilt would likely be a huge error in judgment.

What is more, once you introduce evidence of your good character, you "open up the door" for the Prosecution not only to grill your character witnesses on cross-examination, but also to call any witnesses or offer other evidence they may have to rebut your character witnesses. Let's look at one example...

Joe is on trial for First Degree Criminal Sexual Conduct for alleged sexual abuse of a minor. Joe testifies in his own defense. Although Joe didn't plan it, one of the Prosecutor's questions on cross-examination upsets him, and he blurts out "I would never touch a child inappropriately!" Joe may have just unwittingly become his own character witness.

Now, on rebuttal after the Defense rests, the Judge is allowing the Prosecution to call to the stand on rebuttal the 25 year-old daughter of Joe's ex-girlfriend who hates Joe because of his break-up with her mother over 10 years ago. The daughter now claims Joe inappropriately touched her when she was younger, and scrams "He's a monster!" while crying her eyes out. Let's even pretend we have a crystal-ball, and the daughter is lying through her teeth, but there's no proof either way.

The Prosecution could have made this 25 year-old a part of their case anyway, but that requires them to give advanced notice under MCL 767.28a (see our article "When a Second Accuser Surfaces"). Even if we pretend the Prosecution never gave that advanced notice because they never intended to call this witness, the Judge may allow them to on rebuttal.

The point is, the use of character witnesses and character evidence in defending claims of Criminal Sexual Conduct are judgments that an attorney concentrating on Criminal Sexual Conduct is in the best position to make.

SENTENCING

First of all, remember that the whole point is to avoid ever having a Sentencing for Criminal Sexual Conduct in the first place. There will only be a Sentencing if you are found guilty of Criminal Sexual Conduct at trial or if you accept a plea deal (in which case, hopefully the sentence will have already been negotiated).

At Sentencing, the Defendant has the right to have the Judge consider any information that is favorable to him or her, referred to as "mitigating circumstances." This often comes in the form of "character reference letters" written on the Defendant's behalf from everyone and anyone who is in a position to write one, which are submitted to the Court and Prosecution (and sometimes Probation) in advance of Sentencing.

Just like at the Pretrial stage discussed above, these types of letters can cover a wide range of information because they are not limited by the MRE. But that being said, there are certain types of content and commentary that the Defendant's loved ones may want to offer, but which are nevertheless inappropriate for the Sentencing stage.

For example, Sentencing really is not the time for your advocates to be fighting the facts of the underlying allegations or expressing their opinion on the issue of guilt vs. innocence. If you or someone you know has been wrongfully convicted of Criminal Sexual Conduct, you must have faith that your appeals will follow (we are trial lawyers, not appeals lawyers, but there are great appellate attorneys out there), and you must know that Sentencing is governed by the standard Michigan Sentencing Guidelines.

Sentencing in the trial Court will never serve as the setting for your vindication from a wrongful conviction - stay focused on avoiding a conviction in the first place, and there is no doubt that character witnesses can offer value when handled with proper care.

If you or someone you know is facing Criminal Sexual Conduct charges in Michigan, contact Prain Law, PLLC immediately - it's what we do! Call Prain Law at (248) 731-4543, or use our email Contact Form anytime.

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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.