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Your Prior Conduct— Its Impact On Sexual Assault & Domestic Violence

This blog will discuss how evidence of a defendant’s past conduct can be used against him in a subsequent criminal prosecution for any crimes linked to Domestic Violence or Sexual Assault.  This unfair evidentiary rule is a direct reflection of the difficult political climate for Domestic Violence and Sexual Assault cases that has existed for several years.

This climate has created a statute and court rule that allows prosecutors to win convictions based not on what the accused did this time, but rather on an accused’s prior conduct.  This is true even though historically using bad character to prove conduct of the defendant was not admissible at trial.  This fundamental change in policy has been occurring over the last two decades.  For individuals charged with Domestic Violence or Criminal Sexual Conduct, it is important that they understand just how powerful their past conduct can be to an aggressive prosecutor looking to convict them.

History.  The general rule of evidence is that the past conduct of a defendant cannot be used to show the conduct of a defendant in a new or subsequent prosecution.  Michigan Rule of Evidence (MRE) 404(b).  For example, under this general rule of evidence, if a defendant has a history of robbing banks, then that history cannot be introduced to the jury to prove the defendant robbed a bank on this occasion.

Courts have long rejected this type of evidence of a defendant’s past conduct reaching the jury because its probative value — what it tends to prove — is outweighed by the prejudicial effect it would have on the jury’s evaluation.  In the case of our bank robber, if the jury were allowed to hear evidence of how the defendant robbed sixteen other banks, then they likely would not consider any other evidence of whether or not he robbed the seventeenth bank.  Instead, the jury would more than likely jump to the conclusion that the defendant robbed sixteen banks, so he must have robbed the seventeenth bank.  This type of prejudicial effect on the jury’s thought process where it jumps to conclusions without considering other evidence has traditionally been viewed negatively by American Courts. This is why MRE 404(b) was created to restrict the admission of evidence of a defendant’s past conduct.

A New World Order.  Even though MRE 404(b) had been in place for decades, in 2006 the Michigan Legislature passed a statute, MCL 768.27b, that rejected the notion that a defendant’s past conduct cannot be used to prove he committed a new crime — at least when it comes to Domestic Violence and Sexual Assault.  MCL 768.27b guts the protections a defendant would receive from MRE 404(b) by permitting the introduction of a defendant’s past history “…in a criminal action in which the defendant is accused of an offense involving domestic violence or sexual assault…”  Id.  The only legal requirement for the past conduct to me admissible is that it be relevant: “If the conduct evidence of the defendant’s commission of other acts of domestic violence or sexual assault” is relevant, then the jury gets to hear it.  Id.

 MCL 768.27b(1) contains only two limiting provisions for the use of evidence of the defendant’s past history of domestic violence or sexual assault: (1) the event must have occurred within ten years of the current crime; and (2) it must be pass the inquiry under MRE 403, that is that the evidence cannot be substantially more prejudicial than probative.  Even the ten-year limit can be skirted by prosecutors who can demonstrate to a court that “admitting the evidence is in the interest of justice.”  MCL 768.27b(4).

The Court of Appeals rejected an argument that a prosecutor need only prove the proposed evidence would have been admissible but for it occurring more than ten years earlier.  People v. Rosa, 322 Mich. App. 726, 731, 913 N.W.2d 392 (2018).  In Rosa, the Court of Appeals held that “prior acts older than 10 years are admissible under MCL 768.27b only if that evidence is uniquely probative or that without its admission, the jury is likely to be misled.  Id.  If a prosecutor can clear the “interest of justice” hurdle, then even evidence more than ten years old can be admitted.  The only remaining issue under MCL 768.27(b) is whether the proposed evidence would be admitted under MRE 403.

 MRE 403 creates a general category that courts can use to limit the introduction of any and all relevant evidence, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”  It is interesting to note that “unfair prejudice” is the exact problem MRE 404(b) sought to avoid, but the Legislature still enacted MCL 768.27b.

Although this broad category created by MRE 403 would appear on the surface to protect a defendant from having his past conduct introduced to the jury, the application of the statute by the Michigan Appellate Courts has been to the detriment of defendants.  Consider the Court of Appeals holding in 2012 that “the Michigan Legislature allows trial courts to admit relevant evidence of other domestic assaults to prove any issue, even the character of the accused…”  People v. Pattison, 276 Mich. App. 613, 615, 741 N.W.2d 558, 559 (2007).  The Court of Appeals has suggested that there are no limits on the use of a defendant’s past conduct as it relates to Domestic Violence or Sexual Assault under MCL 768.27b.

Practical Application.  The application of MRE 404(b) and MCL 768.27b creates a nightmare for defendants charged with Domestic Violence or any type of Sexual Assault.  By opening the door to a world where prosecutors can use evidence of a defendant’s past Domestic Violence or Sexual Assault, MCL 768.27b eliminates much of the safeguard contained within MRE 404(b).

Change our example from earlier in this blog from a bank robber to a defendant facing charges for Domestic Violence or Sexual Assault.  Under the evidence standards created by MCL 768.27b, we already know a defendant charged with Domestic Violence could have his past used against him.  If our defendant had a bad break-up where the police came out to his home to investigate a call from his girlfriend but did not charge him eight years earlier, then under MCL 768.27b a prosecutor in a new Domestic Violence case would be able to introduce evidence of the prior incident to try and convict him now.  The implications to our defendant are overwhelming, especially if we change the scenario to involve more serious crimes, such as felonious assault and even murder.  In each of these common scenarios, evidence of past acts of Domestic Violence by our defendant could lead to him being convicted in the new case because of the far-reaching impact of MCL 768.27b.

The same type of problem holds true for a defendant facing Sexual Assault charges.  Consider a defendant charged with Criminal Sexual Conduct in the 1st Degree in violation of MCL 750.520b(1)(f).  To gain a conviction for CSC 1st Degree, one common way for the prosecutor to prove his/her case is to show the defendant penetrated his victim through “force or coercion”.  The definitions for “force” and “coercion” include physical violence or a threat of physical violence by the defendant against the victim.  To prove the defendant used physical violence or a threat of physical violence, prosecutors can and do rely on the exception created by MCL 768.27b to avoid the limits of MRE 404(b) to introduce evidence of a defendant’s past Domestic Violence or sexual assault allegations to convict him of the new charge of CSC 1st Degree.  This type of evidence could include the victim, or a prior ex-girlfriend with an ax to grind against the defendant, testifying to how he choked her or became rough during sexual intercourse.  The limits of how a prosecutor may use MCL 768.27b to admit damning and prejudicial testimony exceeds one’s imagination.  If a prosecutor can show how the evidence is relevant, then you can bet they will try to introduce it to gain a conviction—especially for CSC 1st Degree with a mandatory-minimum sentence of 25 years in prison.

What you should do.  There are a number of problems created for defendants by the broad implications of MCL 768.27b — far too many to cover here.  What you should know is that if you are charged with Domestic Violence or Sexual Assault, and you have any type of past history – whether it resulted in a criminal charge or not – then a prosecutor will use MCL 768.27b to introduce evidence of your past conduct and to secure a conviction against you now.  Do not wait to get competent legal advice or think that a court-appointed attorney will defend you.

Call Mark A. Satawa, today!  Mark can help you maneuver the pitfalls created by MCL 768.27b so that you don’t end up convicted of a new charge based on your past conduct.  Satawa Law. Defending your rights, protecting your future.

Mark Satawa

Mark Satawa is a criminal defense attorney specialized in forensic DNA,
sex crimes, child abuse, shaken baby, medical child abuse, white collar,
and federal crimes.