One tool that a defense lawyer can utilize in defending their client is past sexual history between themselves and the complaining witness. While using the account of the party claiming to be the victim and the individual defending their freedom can present a great option, many courts are reluctant to allow such evidence into admissibility.
750.520j Evidence of a victim’s sexual conduct.
(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
Past Sexual Conduct with the actor.
Many criminal sexual conduct cases in Michigan come from those that were in a relationship. When we look at presenting such evidence into admissibility, a “Rape Shield Notice” the history of the parties can play a vital role in defense of the actor. This becomes an area where the Michigan Rules of Evidence through Hearsay can handcuff the criminal defendant. It is not enough to claim that there was a sexual history between the parties; a defendant will need to substantiate this and put the court and the prosecution on notice of such a defense.
Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
The other exception that the court will entertain is the concept of the source of semen, pregnancy or disease. This is the exception that is tested on the Michigan Bar Exam and the Multistate Bar Exam (MBE) across the United States. This is a defense where counsel argues that the defendant will be significantly prejudiced without the admission of these factors.
Time Frame for Rape Shield Notice
Turning back to the statute, we see that there are stringent timing requirements for the admission of this evidence: (2) If the defendant proposes to offer evidence described in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in paragraph (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed testimony is allowable under subsection (1).
One of the most significant issues that come into play when the argument of ineffective assistance of counsel is presented to the Michigan Court of Appeals in CSC Defense is counsel not providing Rape Shield Notice promptly. While a jurisdiction such as Wayne County may be forgiving to an untimely filing, an authority such as Caro will penalize the defense counsel for lack of a timely filing.