May 2012

Complainant’s Prior Statements Ruled Admissible in Rape Case

The never ending assault on the rights of citizens accused of a sex crime continues, as the Michigan Court of Appeals recently allowed the Prosecution to bolster the credibility of a complaining witness in a sex crime accusation by affirming the conviction of a man who had the Prosecutor read the complainant’s entire witness statement into the record, word for word.

In general, the Michigan Rules of Evidence (MRE) prevent the introduction of hearsay statements at trial. One exception to this rule, MRE 801(d)(1)(B), applies to statements that are offered in rebuttal to a party’s claim that a witness suddenly changed his or her previous testimony at trial. This has always been interpreted as a very narrow exception – specifically, the rebuttal hearsay is admissible if it is “consistent with the [witness’s] testimony and is offered to rebut an express or implied charge against the [witness] of recent fabrication or improper influence or motive.”

Last November, the Michigan Court of Appeals affirmed a sexual assault conviction that the defense claimed was tainted by improperly admitted hearsay. The defendant, Calvin Williams, was convicted after a bench trial of two counts of criminal sexual conduct in the first degree [MCL 750.520b(1)(b)(i)] and one count of criminal sexual conduct in the second degree [MCL 750.520c(1)(b)(i)]. At trial, Wayne Circuit Court Judge Vera Massey Jones allowed a police officer, called by Williams’ attorney, to read into the record the full statement taken from the victim in the case. The victim previously testified at trial about the nature of her assault. The defense tried to impeach her credibility by noting two inconsistencies between her testimony and what she previously told the police. The defense then called the police officer to confirm the inconsistencies.

On cross-examination, the prosecution asked the police officer to read the entire “narrative portion” of the victim’s statement, which confirmed her trial testimony except for the two inconsistencies. Judge Jones held this was admissible under the prior consistent statement hearsay exception.

All three judges who heard Williams’ appeal agreed there was no reversible error and let Williams’ conviction stand. There was disagreement, however, over whether Judge Jones properly admitted the narrative statement. Judges Kirsten Frank Kelly and Patrick M. Meter, in an unsigned opinion, said this was a proper case of using otherwise inadmissible hearsay to rehabilitate a witness whose credibility had been challenged by the defense:

Defense counsel highlighted that the complainant’s story changed from her initial statements to the statements she made in court and thus implied that the complainant fabricated parts of her story. In response, the prosecution demonstrated to the trial court, with the consistent statements she made to [the police], that the complainant did not change or fabricate her story in several respects, implicitly leaving the trial court with the impression that there may have been other reasons for the inconsistencies.

Judge Elizabeth L. Gleicher disagreed sharply with the majority’s finding that that this was a proper use of this very narrow hearsay exception. She explained the prior consistent statement exception “is not a free ticket to bolster a witness’s testimony after she has been impeached,” but rather a “narrow avenue for rebutting a claim that a witness changed her testimony.” MRE 801(d)(1)(B) only applies where a party alleges, implicitly or explicitly, that there was “recent fabrication” of inconsistent testimony on the stand. Judge Gleicher noted that Williams’ attorney “never even hinted that the complainant had consciously altered her trial testimony or intended to fabricate a new story.” Furthermore, Judge Gleicher said the exception only applied when the offered hearsay bolstered the witness’ trial testimony. In this case, the narrative statement “was inconsistent with the complainant’s in-court testimony.” Unlike the majority, Judge Gleicher said the exception could only be used to “rebut,” not rehabilitate.

Although she concluded the narrative statement should have been excluded at trial, Judge Gleicher agreed with her colleagues there was insufficient grounds to overturn Williams’ conviction. Judges Kelly and Meter concluded:

The trial court did not state that it believed the complainant’s story because of the introduction of the statement she made to [the police]. To the contrary, the trial court implicitly stated that it had doubts about one portion of her story because of the inconsistencies between the complainant’s in-court testimony and the statement she made to [the police]. The record fails to demonstrate that the introduction of the statement to Turner improperly bolstered the complainant’s credibility. Moreover, the complainant’s testimony was supported by the testimony of other witnesses.

Although this was deemed an “unpublished” opinion by the Court of Appeals, Judge Gleicher’s concurrence reinforces the need for constant vigilance in following the Rules of Evidence in every sex crimes accusation. While the Court determined the failure to follow these rules was not “outcome-determinative” in this case, it may well be in others. That’s why it’s essential to have the assistance of competent counsel when you or a loved one is charged with any serious crime, but particularly a sex crime.

Mark A. Satawa practices in the area of criminal defense, specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers (, the Criminal Defense Attorneys of Michigan (, and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases.

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