Criminal Sexual Conduct - Accessing Privileged Information in Your Defense

There are many different reasons why someone might falsely accuse someone of Sexual Assault. They may be out for money, revenge, attention, sympathy, or a variety of other objectives. Even though the Defense has no obligation to prove anything, one of the objectives of a successful defense to a false allegation—leading to charges of Criminal Sexual Conduct—is to bring facts to light that exposes the accuser's motive.

But what if important exculpatory evidence is contained within records that are subject to a privilege, such as medical, counseling, or therapy records?

"Exculpatory" evidence means evidence that tends to show innocence - evidence you'd want to use in your defense if you are accused of Criminal Sexual Conduct. For example, imagine a situation where someone has been charged with the Michigan offense of Second Degree Criminal Sexual Conduct, MCL 750.520c after being accused by someone he knows of unlawful "sexual contact." The Defendant adamantly maintains his innocence, and he is aware that the accuser has a history of falsely accusing others.

The only problem is, the facts establishing the prior false allegations are contained in a combination of counseling and medical records that would likely indicate that these things did not happen (as one example, where a child alleges certain types of sexual penetration causing injury, but a medical examination indicated otherwise). Because those types of records are subject to legal privileges, the doctors, counselors, and other providers holding the records are under a legal duty not to disclose those records to anyone without the authorization/waiver of the patient or their legal guardian, so they cannot simply be Subpoenaed to Court.

Does the Defendant have any right to obtain the records, especially when his very freedom and future are at stake with a charge such as Second Degree Criminal Sexual Conduct (CSC) or any other Sex Crime?

In fact, Michigan has a legal procedure specifically for these situations. On the one hand, it is extremely important in our society that people feel encouraged to seek the medical treatment they need while knowing that their personal information will be kept private. Any of us who have ever been to a doctor can certainly appreciate that fact and would respect the importance of this. On the other hand, a person accused of CSC (or any crime for that matter) has a Constitutional right to present evidence in his or her defense. The legal procedure in Michigan attempts to balance these competing interests.

In 1994, the Michigan Supreme Court decided the cases of People v. Stanaway and People v. Caruso, 446 Mich 643 (1994). Defendant Stanaway was charged with three Counts of Third Degree Criminal Sexual Conduct, and the alleged victim was known to have discussed the alleged incidents with a social worker and a sexual assault counselor. Stanaway's attorney argued that the Court should grant access to the social worker and counselors' records because they might contain inconsistent statements that could lead to exculpatory evidence.

The Court found that this type of generalized assertion by Stanaway that the records "might" lead to exculpatory evidence, without being able to articulate a reason why that was likely to be the case, was not enough and the Defendant was not entitled to the records.

Defendant Caruso was charged with Second Degree Criminal Sexual Conduct, and like Stanaway, he also sought privileged records pertaining to the alleged victim. But unlike Stanaway, Caruso's attorney was able to articulate some specific facts supporting a belief that if the records were produced, they would likely contain exculpatory information - namely, that the alleged victim was a troubled, maladjusted child, and that past sexual trauma led to a false allegation against Caruso.

The Court found that Caruso's specific articulation of facts may have been enough to warrant the in-camera review ordered by the trial Court (meaning a private review of the records by the Judge only to see if they indeed contained the alleged exculpatory information).

Overall, the Stanaway and Caruso Opinion by the Michigan Supreme Court is far too long to fully review here, but ultimately, the Court ruling came down to this principle:

"We hold that where a defendant can establish a reasonable probability that the privileged records are likely to contain material information necessary to his defense, an in camera review of those records must be conducted to ascertain whether they contain evidence that is reasonably necessary, and therefore essential, to the defense. Only when the trial court finds such evidence, should it be provided to the defendant."

This procedure is also codified in Michigan Court Rule ("MCR") 6.201(C). If a Court rules that the records are to be produced for inspection, and the alleged victim (i.e., the person holding the privilege) refuses to waive their privilege as necessary to grant access, then the Court "shall suppress or strike the privilege holder's testimony," which could effectively end the case for the Prosecution.

If you or someone you know is accused of Criminal Sexual Conduct in Michigan, contact Prain Law, PLLC immediately. Unlike the many "general practice" criminal defense law practices, Prain Law concentrates specifically on defending those accused of Criminal Sexual Conduct and a very limited number of other, similar assaultive crimes.

(**Please note, Prain Law only defends and consults regarding new (pending) CSC investigations and cases, and does not handle appeals, expungements, anything after a plea has been taken, a trial has been completed (except those seeking counsel for re-trials after successful appeals), or a sentence has been imposed).

You can contact Prain Law at (248) 731-4543 or using our Contact Form to request a free consultation.


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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.