A.Character Evidence Generally Not Admissible to Prove Conduct
Generally, evidence of a person’s character or a character trait, and evidence of any other crime, wrong, or act is not admissible to prove that on a particular occasion the person acted in accordance with the character or character trait. MRE 404(a); MRE 404(b). MRE 404 is a rule of legal relevance, which limits the use character evidence that is logically relevant under MRE 401 and MRE 402. Rock v Crocker, 499 Mich 247, 256 (2016). “Such evidence is strictly limited because of its highly prejudicial nature; there is a significant danger that the jury will overestimate the probative value of the character evidence.” People v Roper, 286 Mich App 77, 91 (2009). MRE 404 applies to both criminal and civil cases. Rock, 499 Mich at 256 n 5.
1.Exceptions
MRE 404(a)(2) contains exceptions for a defendant or victim in a criminal case:
“(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) in a homicide case, when self-defense is an issue, the defendant may offer evidence of the alleged victim's trait for aggression, and if the evidence is admitted, the prosecution may:
(i) offer evidence of the defendant’s same trait, and
(ii) offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor; and
(C) in a criminal-sexual-conduct case, the defendant may offer evidence of:
(i) the alleged victim’s past sexual conduct with the defendant, and
(ii) specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.” MRE 404(a)(2).
MRE 404(a)(3) contains exceptions for a witness:
“Evidence of a witness’s character may be admitted under [MRE 607], [MRE 608], and [MRE 609].”1 MRE 404(a)(3).
When relevant to an issue in the case, MRE 404(b)(2)2 sets out an exception where evidence of any other crime, wrong, or act may be admitted for purposes other than to prove propensity to commit the crime charged, irrespective of whether the other incident occurred prior to, contemporaneous with, or subsequent to the conduct at issue in the case. See also People v VanderVliet, 444 Mich 52, 74 (1993).3 Those purposes include proving:
•Motive,
•Opportunity,
•Intent,
•Preparation,
•Scheme, plan, or system in doing an act,
•Knowledge,
•Identity,
•Absence of mistake, or
•Lack of accident. MRE 404(b)(2).
Note that “under MRE 404(b), the other acts may be uncharged conduct and even conduct for which a defendant was acquitted.” People v Kelly, 317 Mich App 637, 646 n 3 (2016).
Statutes that permit the use of specific past acts of the accused in specified classes of criminal cases to prove conduct on the date charged include:
•Prior listed offenses committed against a minor. MCL 768.27a(1).4
•Prior domestic violence or sexual assault offenses. MCL 768.27b.5
In many MRE 404(b) cases, it may be necessary to discuss the “doctrine of chances,” which states that “as the number of incidents of an out-of-the-ordinary event increases in relation to a particular defendant, the objective probability increases that the charged act and/or the prior occurrences were not the result of natural causes.” People v Mardlin, 487 Mich 609, 616 (2010). In other words, “[i]f a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the absence of mistake or accident because it is objectively improbable that such events occur so often in relation to the same person due to mere happenstance.” Id. at 617.
In Mardlin, 487 Mich at 612, the defendant’s home was damaged by fire after which he filed an insurance claim for the damage to his home. The defendant was charged with arson after an investigation showed that the fire had been intentionally set. Id. During the previous 12 years, the defendant had also been “associated with four previous home or vehicle fires—each of which also involved insurance claims and arguably benefited defendant in some way[.]” Id. at 613. The Michigan Supreme Court concluded that evidence of the previous fires was admissible “precisely because they constituted a series of similar incidents—fires involving homes and vehicles owned or controlled by defendant—the frequency of which objectively suggested that one or more of the fires was not caused by accident.” Id. at 619. The evidence “need not bear striking similarity to the offense charged if the theory of relevance does not itself center on similarity.” Id. at 620. The Court explained:
“Rather, ‘[w]here the proponents’ theory is not that the acts are so similar that they circumstantially indicate that they are the work of the accused, similarity between charged and uncharged conduct is not required.’ Different theories of relevance require different degrees of similarity between past acts and the charged offense to warrant admission. Thus, the ‘level of similarity required when disproving innocent intent is less than when proving modus operandi.’ ‘When other acts are offered to show innocent intent, logical relevance dictates only that the charged crime and the proffered other acts “are of the same general category.”’ Past events—such as fires in relation to an arson case—that suggest the absence of accident are offered on the basis of a theory of logical relevance that is a subset of innocent intent theories. As such, the past events need only be of the same general category as the charged offense.” Mardlin, 487 Mich at 622-623 (alteration in original), quoting People v VanderVliet, 444 Mich 52, 69, 79-80, 80 n 36 (1993).
Where the defendant claimed consent as a defense during his trial for charges arising from a sexual assault, the Court found evidence of additional sexual assault allegations that the defendant claimed were consensual to be relevant, explaining that “employing the doctrine of chances, it [was] extraordinarily improbable that eight unrelated women in four different states would fabricate reports of sexual assault after engaging in consensual sex with defendant.” People v Kelly, 317 Mich App 637, 646 n 4 (2016).
Committee Tip:
MRE 404(a) provides situations where character or propensity evidence is allowed under pertinent exceptions to the rule. MRE 404(b) does not provide additional exceptions. It retains the bar on character/conformity/propensity evidence and rather allows its evidentiary subject matter–crimes, wrongs, acts–to be used for non-character purposes such as those stated in the rule.
B.Presenting Character Evidence
“When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.” MRE 405(a). However, “these inquiries should not be made without: (1) the trial judge determining, in the absence of the jury, whether or not the criminal acts actually took place, the time of their commission, and a determination as to whether they were relevant to the issue being tried, and (2) the trial judge making a careful instruction to the jury as to the reasons testimony as to the criminal acts is being admitted.” People v Meshkin, ___ Mich ___, ___ (2022). Inquiries “without any basis in fact and without any of the necessary protections afforded by the trial court, are improper.” Id. at ___. Accordingly, a “trial court err[s] by allowing a groundless question to waft an unwarranted innuendo into the jury box.” Id. at ___ (cleaned up).
Evidence of the “reputation among a person’s associates or in the community concerning the person’s character” is not excluded by the hearsay rule. MRE 803(21). See Chapter 5 for information on hearsay.
a.Reputation in the Community
A character witness must have knowledge about the reputation of the individual about whom he or she is testifying. People v King, 158 Mich App 672, 678 (1987). “[T]estimony regarding a person’s character can only relate what the witness has heard others say about the person’s reputation, and cannot relate specific instances of the person’s conduct or the witness’s personal opinion as to the person’s character. Id. (a witness’s testimony that “they personally believed the defendant was honest, or related specific instances of the defendant’s trustworthy conduct . . . [did] not rise to the level of admissible character evidence”).
Reputation evidence is admissible when it is based on the party’s or the witness’s reputation in his or her residential or business community. People v Bieri, 153 Mich App 696, 712-713 (1986).6 “One’s community can be either where one lives or works, and a reputation may be established wherever one interacts with others over a period of time.” Id. at 713 (finding that jail could be considered a residential community where the amount of time that the individual spends there is sufficient to establish a reputation, and the witness in fact becomes acquainted with the individual’s reputation).
A party may call a witness “to offer testimony concerning their personal opinion of [a] person’s character[.]” People v Roper, 286 Mich App 77, 97 (2009). The witness’s opinion must be derived from their association with the person whose character is in question. See People v Dobek, 274 Mich App 58, 102 (2007) (an opinion by a psychologist based on psychological testing and interviews is not “traditional character evidence” that “fits within the language of and is admissible under . . . MRE 405(a)” because the opinion does not come from knowing the person and how he or she lived their life).7
Generally, MRE 405(a) does not permit a party to prove character through evidence of specific instances of conduct. People v Roper, 286 Mich App 77, 104 (2009). However, “a prosecutor may elicit testimony through a rebuttal witness concerning specific instances of conduct where a defendant places his character at issue on direct examination and then denies the occurrence of specific instances of conduct on cross-examination.” Id. at 102. Rebuttal evidence involving specific conduct may be introduced to prove a defendant’s character if all of the following are true:
•the defendant placed his or her character at issue during direct examination;
•the prosecution cross-examined the defendant regarding specific instances of conduct that “tend[ed] to show that the defendant did not have the character trait he or she asserted on direct examination”;
•the defendant denied in whole or in part the specific instances brought up by the prosecution during cross-examination; and
•the rebuttal testimony offered by the prosecution was limited to contradicting the defendant’s cross-examination testimony. Roper, 286 Mich App at 105.
2.Specific Instances of Conduct
“When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.” MRE 405(b).
Where the defendant was charged with two counts of first-degree murder, and his defense was that he was not present and did not commit the crime, evidence of specific instances of the defendant’s good conduct were inadmissible because “[n]either the charge nor the defense [made] character an essential element.” People v Williams, 134 Mich App 639, 642 (1984). “It is only in the narrow situation where character is an element of the offense that specific acts of conduct are admissible to show character under MRE 405(b).” Williams, 134 Mich App at 642.8 See also People v Orlewicz, 293 Mich App 96, 104-105 (2011) (where character was not an essential element of the defendant’s self-defense claim, evidence of PPOs issued against the victim were properly excluded as specific instances of conduct, but evidence of the victim’s MySpace page should have been admitted because it did not constitute a specific instance of conduct). The Orlewicz Court stated:
“While a social-networking or other kind of personal website might well contain depictions of specific instances of conduct, such a website must be deemed a gestalt and not simply a conglomerate of parts. When regarded by itself, a social-networking or personal website is more in the nature of a semipermanent yet fluid autobiography presented to the world. In effect, it is self-directed and self-controlled general-character evidence. Clearly, because people change over time, its relevance might be limited only to recent additions or changes; furthermore, it is obviously possible for people to misrepresent themselves, which could present a fact issue. But in the abstract, social-networking and personal websites constitute general reputational evidence rather than evidence concerning specific instances of conduct[.]” Orlewicz, 293 Mich App at 104-105.
Committee Tip:
Be cautious of basing character by reputation decisions on social media gestalt generalities. MRE 404(a) concerns relevant character and pertinent traits of character not satisfied by general reputation evidence - even in the form of social media.
“[E]vidence of [a] decedent’s specific acts of violence is admissible only to prove an essential element of self-defense, such as a reasonable apprehension of harm.” People v Edwards, 328 Mich App 29, 37 (2019). The trial court erred in precluding defendant from admitting “evidence of the decedent’s specific act of violence committed against him personally” because “defendant had to present evidence that he had a reasonable belief that he had to use deadly force to prevent his death or to prevent great bodily harm to himself,” and the evidence was “directly relevant to an ultimate issue in his defense.” Id. at 37-38. The trial court also erred in summarily denying the defendant’s request to admit evidence of “specific acts of violence by the decedent [against third persons] that [the defendant] knew about at the time of the shooting to show his reasonable apprehension of harm” because “the trial court was required to examine each allegation and then determine its admissibility.” Id. at 39-40 (remanded for the trial court to “determine whether each of the decedent’s violent acts against third persons is relevant to the self-defense claim,” and also “whether the evidence is admissible under MRE 403”).
Committee Tip:
It might be best to ask the proponent about the purpose for admission of specific instances of conduct. If they are known to defendant and formulate a state of mind, they are not character evidence. Specific instances of conduct, sought for admission otherwise, are limited by MRE 405(b).
C.Evidence of Defendant’s Character in Criminal Case
1.Offered by Defendant
While “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait,” “a defendant may offer evidence of the defendant’s pertinent trait[.]” MRE 404(a)(2)(A). While MRE 404(a)(2) “allows a criminal defendant an absolute right to introduce evidence of his character to prove that he could not have committed the crime[,]” People v Whitfield, 425 Mich 116, 130-131 (1986),9 a defendant may only present favorable evidence in the form of reputation or opinion testimony. MRE 405(a).
The trial court did not abuse its discretion in precluding defendant from presenting witnesses that would have testified as to her character and reputation for being a law-abiding citizen in her criminal trial of conducting an unlicensed gambling operation because defendant’s “truthfulness or general reputation for adhering to the law [had] no bearing on whether she intended to operate . . . in a manner that met the definition of a gambling operation,” especially where it had already been determined on appeal that her “intent to ‘break the law’ was not relevant to the illegal-gambling charges.” People v Zitka, 335 Mich App 324, 342 (2021) (the court did not err by excluding the evidence because defendant “sought to introduce this evidence only to make an irrelevant point”).
2.Offered by Prosecution
If “a defendant . . . offer[s] evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it[.]” MRE 404(a)(2)(A). If “the defendant does not offer character evidence, a prosecutor’s attempt to elicit character evidence regarding the defendant on cross-examination of another witness is not permitted” by MRE 404(a)(2)(A).10 People v Wilder, 502 Mich 57, 67-68 (2018) (remanding to the trial court to determine whether the error in admitting the evidence was harmless). However, “once the defendant presents testimony or other evidence that he or she has a good character trait, the defendant has opened the door; the prosecutor may then walk through it, armed with contrary evidence, on rebuttal, and the fact that the contrary evidence is damaging to the defense does not equate with error.” People v Steele, 283 Mich App 472, 486 (2009).
The prosecution is limited to rebutting the trait or traits introduced by the defendant. People v Johnson, 409 Mich 552, 561 (1980). “A defendant does not open the door to any and all evidence concerning his character merely by basing an argument on some aspects of his character. He opens the door only for evidence that his character is not what he claims it to be.” Id.
The trial court properly allowed the prosecution to present specific instances of defendant’s conduct to rebut evidence of his character for peacefulness after the defendant testified “I’m not the person that . . . would want to [react with violence], especially to a friend,” and denied that he reacted with violence to other situations in which he was confronted by an unhappy person. People v Roper, 286 Mich App 77, 94-105 (2009).
D.Evidence of Victim’s Character in Criminal Case
a.Offered by Defendant
“[I]n a homicide case, when self-defense is an issue, the defendant may offer evidence of the alleged victim’s trait for aggression, and if the evidence is admitted, the prosecution may: (i) offer evidence of the defendant’s same trait, and (ii) offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor[.]” A defendant asserting self-defense in a homicide case may offer “evidence of the alleged victim's trait for aggression.” MRE 404(a)(2)(B).
Character evidence of a deceased victim can be offered to prove that the victim acted in conformity with his or her violent reputation on a particular occasion, and thus, was the aggressor in the case at hand. People v Harris, 458 Mich 310, 315-316 (1998). If the defendant offers character evidence of the deceased victim to show that the defendant acted in self-defense, the evidence is being offered to show the defendant’s state of mind, and the defendant must have had knowledge of the victim’s violent reputation before the evidence will be admitted. Id. at 316. If, however, the character evidence is being offered to show that the victim was the probable aggressor, the defendant need not know of the victim’s reputation at the time. People v Orlewicz, 293 Mich App 96, 104 (2011). “[T]his type of character evidence may only be admitted in the form of reputation testimony, not by testimony regarding specific instances of conduct unless the testimony regarding those instances is independently admissible for some other reason or where character is an essential element of a claim or defense.” Id. (finding that social networking and personal websites may be used as character evidence because they are self-edited and thus “constitute general reputational evidence rather than evidence concerning specific instances of conduct”).
In cases where the defendant is claiming self-defense, a jury instruction on the alleged victim’s past acts or reputation may be appropriate. See M Crim JI 7.23. M Crim JI 7.23(1) addresses past violent acts committed by the alleged victim. M Crim JI 7.23(2) addresses the alleged victim’s reputation for cruelty and violence.
b.Offered by Prosecution
If self-defense is an issue in a homicide case and the defendant introduces evidence of the alleged victim’s trait for aggression, the prosecution may “offer evidence of the defendant's same trait” and “offer evidence of the alleged victim's trait for peacefulness to rebut evidence that the alleged victim was the first aggressor[.]” MRE 404(a)(2)(B)(i)-(ii).
Committee Tip:
When it comes to MRE 404(a)((2), the prosecutor is limited to rebutting the accused’s reputation or opinion character evidence and is not in a first strike position.
MCL 750.520j (Rape Shield Act)11 states:
“(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 [MCL 750.520b] to [MCL 750.520g] 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.
(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 subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”
“[A] specific instance of the victim’s sexual conduct [admissible under MCL 750.520j(1)(a)-(b)] must relate to a particular occurrence of the victim’s sexual conduct.” People v Sharpe, 502 Mich 313, 328 (2018).
See also MRE 404(a)(2)(C), which provides that the defendant in a criminal-sexual-conduct case may offer evidence of “the alleged victim’s past sexual conduct with the defendant,” and “specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.” MRE 404(a)(1) “only excludes character evidence used to prove conformity to a character trait”; it is error to exclude evidence under MRE 404(a)(2)(C) where a valid, nonpropensity explanation for the admission of the evidence has been articulated. Sharpe, 502 Mich at 332 n 11.
While “MCL 750.520j generally excludes evidence of a rape victim’s prior sexual conduct with others, and sexual reputation, when offered to prove that the conduct at issue was consensual or for general impeachment[,]” “in certain limited situations, such evidence may not only be relevant, but its admission may be required to preserve a defendant’s constitutional right to confrontation.” People v Butler, ___ Mich ___, ___ (2024) (quotation marks and citation omitted) (holding that “the defendant should be permitted to show that the complainant has made false accusations of rape in the past”).
“When applying the rape-shield statute, trial courts must balance the rights of the victim and the defendant in each case.” People v Benton, 294 Mich App 191, 198 (2011). If a trial court determines that evidence of a victim’s past sexual conduct is not admissible under one of the statutory exceptions, it must consider whether admission is required to preserve the defendant’s constitutional right to confrontation; if the evidence is not so required, the court “‘should . . . favor exclusion of [the] evidence[.]’” Id. at 197, quoting People v Hackett, 421 Mich 338, 349 (1984).
“The rape-shield law does not prohibit defense counsel from introducing ‘specific instances of sexual activity . . . to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged provided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative value.’” People v Shaw, 315 Mich App 668, 680 (2016), quoting People v Mikula, 84 Mich App 108, 115 (1978).
“There is no indication from our Legislature or in our caselaw that the rape-shield statute was designed to prevent a complainant’s disclosure of her own sexual history or its attendant consequences.” Sharpe, 502 Mich at 330-331. Accordingly, voluntarily-offered evidence of a complainant’s “pregnancy, abortion, and lack of sexual history to bolster her allegations of criminal sexual conduct against defendant” may be admissible; however “admission of this type of evidence may open the door to the introduction of evidence whose admission may otherwise have been precluded by the rape-shield statute.” Id. at 330, 331 n 10.
a.Evaluating Admissibility of Evidence of Complainant’s Prior Sexual Conduct: Trial Court Procedure
Trial courts must employ the following procedure when evaluating the admissibility of evidence of the complainant’s prior sexual conduct:
“The defendant is obligated initially to make an offer of proof as to the proposed evidence and to demonstrate its relevance to the purpose for which it is sought to be admitted. Unless there is a sufficient showing of relevancy in the defendant’s offer of proof, the trial court will deny the motion. If there is a sufficient offer of proof as to a defendant’s constitutional right to confrontation, as distinct simply from use of sexual conduct as evidence of character or for impeachment, the trial court shall order an in camera evidentiary hearing to determine the admissibility of such evidence in light of the constitutional inquiry previously stated. At this hearing, the trial court has, as always, the responsibility to restrict the scope of cross-examination to prevent questions which would harass, annoy, or humiliate sexual assault victims and to guard against mere fishing expeditions. Moreover, the trial court continues to possess the discretionary power to exclude relevant evidence offered for any purpose where its probative value is substantially outweighed by the risks of unfair prejudice, confusion of issues, or misleading the jury.” [Butler, ___ Mich at ___ (quoting Hackett, 421 Mich at 350-351).]
“‘[I]n ruling on the admissibility of the proffered evidence, the trial court should rule against the admission of evidence of a complainant’s prior sexual conduct with third persons unless that ruling would unduly infringe on the defendant’s constitutional right to confrontation.’” Butler, ___ Mich at ___ (quoting Hackett, 421 Mich at 351). The trial court is required to make an explicit finding on whether “defendant’s offer of proof was sufficient to require an in camera evidentiary hearing under Hackett.” Butler, ___ Mich at ___. “There must be a showing of at least some apparently credible and potentially admissible evidence that the prior allegation was false.” Id. at ___.
“Once a sufficient offer of proof is made, the in camera evidentiary hearing is not optional.” Id. at ___. In Butler, the Michigan Supreme Court held that “defendant’s offer of proof was sufficient, but an evidentiary hearing is required under Hackett before the trial court may admit the evidence.” Id. at ___ (holding that “the trial court erred by failing to conduct an in camera evidentiary hearing before granting admission of the evidence.”) However, “the ultimate question of admissibility at trial” requires determining whether defendant has satisfied the evidentiary burden of proving that the complainant’s prior allegations were false. Id. at ___ (stating “[s]ince the adoption of an appropriate standard [for making that determination] is a question of first impression in Michigan, we believe it is appropriate for the lower courts to assess this question in the first instance”).
b.Examples of Application of Character Evidence of Sexual Assault Victim
Past sexual conduct. “‘[P]ast’ sexual conduct refers to conduct that has occurred before the evidence is offered at trial.” People v Adair, 452 Mich 473, 483 (1996). In Adair, the defendant was charged with sexually assaulting his wife and sought to introduce evidence of specific incidents when he and his wife engaged in consensual sexual relations after the alleged assault. Id. at 477. In deciding whether subsequent sexual relations are sufficiently probative to be admitted, the court should consider (1) the length of time between the alleged assault and the subsequent sexual relations, and (2) whether the complainant and the defendant had a personal relationship before the alleged assault. Id. at 486-487. In explaining its reasoning, the Court stated:
“On a common-sense level, a trial court could find that the closer in time to the alleged sexual assault that the complainant engaged in subsequent consensual sexual relations with her alleged assailant, the stronger the argument would be that if indeed she had been sexually assaulted, she would not have consented to sexual relations with him in the immediate aftermath of sexual assault. Accordingly, the evidence may be probative. Conversely, the greater the time interval, the less probative force the evidence may have, depending on the circumstances.
“Even so, time should not be the only factor. The trial court should also carefully consider the circumstances and nature of the relationship between the complainant and the defendant. If the two did not have a personal relationship before the alleged sexual assault, then any consensual sexual relations after the alleged sexual assault would likely be more probative than if the two had been living together in a long-term marital relationship. Additionally, the trial court could find that there may be other human emotions intertwined with the relationship that may have interceded, leading to consensual sexual relations in spite of an earlier sexual assault. Depending on the circumstances, the trial court may find that these other considerations have intensified the inflammatory and prejudicial nature of subsequent consensual sexual conduct evidence and properly conclude that it should be precluded or limited.” Adair, 452 Mich at 486-487.
Viewing Lawful Pornography. “[E]vidence of viewing pornography,” “[w]ithout more, such as evidence that the viewer engaged in acts of sexual gratification,” “is not ‘sexual conduct’ subject to the exclusionary bar of the rape-shield statute, [MCL 750.520j].” People v Masi, 346 Mich App 1, 14, 27 (2023). Accordingly, “evidence of a victim viewing lawful pornography, without more, is not evidence of ‘sexual conduct’ subject to Michigan’s rape-shield statute.” Id. at 15.
Prior sexual abuse. “[E]vidence of prior sexual abuse of [a victim] falls within the rape-shield statute’s prohibition on evidence of specific instances of the victim’s sexual conduct.” Masi, 346 Mich App at 18 (cleaned up). This includes when the abuse involves forcing the victim to watch pornography, which unlike a victim watching pornography on their own accord, is itself “alleged criminal activity that [is] a component of the involuntary sexual conduct suffered by [the victim].” Id. at 18. Additionally, a trial court does not abuse its discretion in excluding evidence of prior sexual abuse where the victim suffered abuse at the hands of someone other than the defendant when the abuse is not “significantly similar” to the abuse inflicted by the defendant. Id. at 20.
Sexual contact with someone other than the defendant. “The trial court’s refusal to allow [testimony from the victim’s former boyfriend about his consensual sex with the victim before she was examined by a pediatrician who testified that he found extensive hymenal changes and a chronic anal fissure and that these findings were consistent with those of either a sexually active adult woman or an abused child] for purposes of the Ginther[12] hearing was erroneous because such testimony is permitted as an offer of proof if the applicability of the rape-shield statute is at issue.” People v Shaw, 315 Mich App 668, 679 n 7 (2016). Further, because the defendant’s guilt was the only likely explanation for the victim’s extensive hymenal changes and chronic anal fissure, “evidence of an alternative explanation for the hymenal changes and source for the chronic anal fissure would have been admissible under the exception to the rape-shield statute[.]” Id. at 680.
Sexual contact between complainants. “[E]vidence of sexual conduct between [complainants] falls squarely within the rape-shield statute’s exclusion for evidence of ‘specific instances of the victim’s sexual conduct,’ and the evidence does not fall within either of the statute’s narrow exceptions.” Masi, 346 Mich App at 21-22, quoting MCL 750.520j(1).
Evidence of abortion. Because evidence of an abortion is “not evidence of a specific instance of a victim’s sexual conduct,” it does not fall under the purview of MCL 750.520j. People v Sharpe, 502 Mich 313, 328 (2018). “Although this evidence necessarily implies that sexual activity occurred that caused [a] pregnancy, the pregnancy and abortion are not evidence regarding a specific instance of sexual conduct.” Id. at 328. Although the evidence was “not excluded under the rape-shield statute,” the Sharpe Court analyzed whether it was “otherwise admissible under the Michigan Rules of Evidence,” concluding that the trial court abused its discretion when it excluded evidence of the complainant’s abortion as inadmissible character evidence because the prosecutor identified a valid nonpropensity explanation for its admission. Id. at 331, 332 n 11 (evidence of the abortion “definitively demonstrat[ed] that sexual penetration occurred” and also “explain[ed] the lack of DNA evidence to identify the man who impregnated [the complainant]”).
Lack of sexual activity with people other than the defendant. Evidence that a complainant “did not engage in other sexual intercourse . . . does not fall within the plain language of the rape-shield statute, [MCL 750.520j,]” for exclusion at trial because the “evidence demonstrates an absence of conduct, not a ‘specific instance’ of sexual conduct.” Sharpe, 502 Mich at 330. However, because the evidence was “not excluded under the rape-shield statute,” the Sharpe Court analyzed whether it was “otherwise admissible under the Michigan Rules of Evidence.” Id. at 331. It concluded that the trial court abused its discretion when it excluded evidence of the complainant’s lack of other sexual partners as inadmissible character evidence because the prosecutor identified a valid nonpropensity explanation for its admission. Id. at 332 n 11 (evidence of the complainant’s lack of sexual partners eliminated the possibility that someone other than the defendant impregnated her).
Evidence of pregnancy. Because evidence of a pregnancy is “not evidence of a specific instance of a victim’s sexual conduct,” it does not fall under the purview of MCL 750.520j. Sharpe, 502 Mich at 328. “Although this evidence necessarily implies that sexual activity occurred that caused the pregnancy, the pregnancy . . . [is] not evidence regarding a specific instance of sexual conduct.” Id. Although the evidence was “not excluded under the rape-shield statute,” the Sharpe Court analyzed whether it was “otherwise admissible under the Michigan Rules of Evidence,” concluding that the trial court properly admitted evidence of the complainant’s pregnancy. Id. at 331, 334-335 (evidence of the pregnancy was probative of the issue of whether sexual penetration occurred).
E.A Witness’s Character for Truthfulness or Untruthfulness (Impeachment)
Evidence of a witness’s character may be admitted under MRE 607–MRE 609. MRE 404(a)(3). This section discusses MRE 608. See Section 3.7 for information on the credibility of a witness, MRE 607, and Section 3.9 for information on impeachment by evidence of a criminal conviction, MRE 609.
“By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.” MRE 608(b).
“A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.” MRE 608(a).
Where a party attacks a witness’s credibility, but not the witness’s character for truthfulness, the opposing party may not present evidence to bolster the witness’s truthful character. People v Lukity, 460 Mich 484, 490-491 (1999) (the trial court abused its discretion in admitting evidence of the complainant’s truthful character where the defense counsel asserted during his opening statement that the complainant had emotional problems which affected her ability to describe the alleged sexual assaults; MRE 608(a) was not implicated because the defendant’s opening statement did not attack the complainant’s truthful character).
It may be error for a court to allow character testimony that goes “beyond [the witness’s] reputation for truthfulness and encompasse[s] [the witness’s] overall ‘integrity.’” Ykimoff v W A Foote Mem Hosp, 285 Mich App 80, 102 (2009). In Ykimoff (a medical malpractice case), the defendant offered a surveillance videotape into evidence, showing the plaintiff engaging in certain activities, which “impliedly impugned plaintiff’s truthfulness, as it suggested that plaintiff’s residual injuries were not as extensive or limiting as alleged.” Id. However, admitting the evidence was harmless error because witness testimony tended to prove the same things that the videotape showed. Id. at 103.
2.Specific Instances of Conduct
MRE 608(b) prohibits extrinsic evidence of specific instances of a witness’s conduct to attack or support the witness’s character for truthfulness, except for a criminal conviction under MRE 609; however, on cross-examination, the court may allow inquiry into specific instances of conduct if they are probative of the character for truthfulness or untruthfulness of the witness or “another witness whose character the witness being cross-examined has testified about.” MRE 608(b).
A “complainant’s statements concerning a threat to make prior false allegations were not inadmissible hearsay because they were not offered for the truth of the matter asserted”; “[r]ather, the complainant’s out-of-court statements were offered to directly attack the complainant’s credibility.” People v Martinez, 507 Mich 855 (2021). Although absent an exception, “[c]haracter evidence is not admissible to prove an action in conformity therewith, . . . MRE 608 provides such an exception[, and t]he statements were admissible pursuant to MRE 608(b)[.]” Martinez, 507 Mich at 855. The “evidence was specific, highly relevant, and acknowledged by the complainant while under oath during the preliminary examination,” and “in light of the absence of other direct or circumstantial evidence supporting the defendant’s convictions, the exclusion of this impeachment evidence was not harmless error. The risk of prejudice is especially high in a case such as this in which the evidence essentially presents a one-on-one credibility contest between the complainant and the defendant because of the reasonable probability that this additional attack on the complainant’s credibility would have tipped the scales in favor of finding a reasonable doubt about the defendant’s guilt.” Id (cleaned up).
Where a witness was not called as a character witness and did not testify on direct examination about the plaintiff’s truthfulness or untruthfulness, the defendant was not permitted to cross-examine the witness about specific instances of the plaintiff’s conduct for the purpose of impeaching the plaintiff. Guerrero v Smith, 280 Mich App 647, 655 (2008). In Guerrero, the plaintiff testified about his limited marijuana use. Id. at 654. Defense counsel cross-examined one of the plaintiff’s witnesses in an effort to impeach the plaintiff’s testimony regarding his marijuana use. Id. The Court concluded that the witness’s testimony should not have been admitted because it did not satisfy the technical requirements of MRE 608(b)(2). Guerrero, 280 Mich App at 654. The Court stated:
“Before specific instances concerning another witness’s character for truthfulness or untruthfulness may be inquired into on cross-examination, the witness subject to cross-examination must already have testified on direct examination regarding the other witness’s character for truthfulness or untruthfulness.” Guerrero, 280 Mich App at 654-655.
3.Impeachment by Contradiction
Impeachment by contradiction “can be a proper purpose for the admission of other-acts evidence” under MRE 404(b), and it “usually occurs when a prosecutor seeks to cross-examine a defendant about prior convictions in order to impeach a defendant’s blanket denial on direct examination of ever engaging in conduct similar to the charged conduct.” People v Wilder, 502 Mich 57, 64 (2018). However, a defendant’s prior conviction(s) may also be admissible for purposes of impeaching a witness by contradiction. See id. at 64 n 9 (noting that “admissibility of defendant’s prior convictions to impeach by contradiction a witness’ testimony is governed by MRE 404(b),” which requires the evidence to be both logically and legally relevant; the questions asked in this case were not relevant to a proper purpose). See Section 2.4 for more information on the admission of other-acts evidence under MRE 404(b).