When doing defense in criminal sexual conduct (CSC) cases, one technique that can assist in the litigation is the “Rape Shield Notice.” When accepted by the court, this notice will allow the sexual history of the complaining witness to be brought to the attention of the jury. According to the Michigan Rules of Evidence and the Federal Rules of Evidence, when someone claims to be a victim of a CSC, the question becomes whether or not their sexual history should come into admissibility.
Michigan’s Rape Shield Statute (MCL 750.520 j) states: (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual behavior, 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.
To discuss this issue in greater depth, we spoke to several criminal defense attorneys in Kent County that have experience with this issue.
Scott Grabel is the founder of Grabel and Associates and has built a firm that is known as the top criminal defense team in the state of Michigan. When asked about Rape Shield and the exceptions, Grabel stated, “When we want to bring in an exception to the Rape Shield statute, the first thing to note is the timing of your notice is critical. In Kent County, the proper course of action is to speak to the prosecutor and put them on notice before filing anything. The family of the complaining witness will most likely be offended, and defense counsel runs the risk of offending the judge in this matter. However, by filing the notice, defense counsel makes an appealable issue and displays that an aggressive advocate is fighting for the defendant.”
Joe Brugnoli is an Associate for Grabel and Associates and has built a reputation as one of the top criminal defense lawyers in the Grand Rapids, Michigan area. When asked about rape shield, Brugnoli provided commentary when he said, “It’s a strategic move but to substantiate the allegation, we need to not only take the client’s word for the sexual history but to do your research. I have employed private investigators, researched social media history and uncover all aspects when the proposition presents itself. Being diligent in this regard can lead to a dismissal and the best possible result.”
William Amadeo is a partner at McManus and Amadeo in Ann Arbor, Michigan and a Senior Associate for Grabel and Associates. Amadeo’s firm just expanded to the Grand Rapids area, and his team has started to gain recognition in Kent County. When asked about rape shield, Amadeo was quoted as saying, “Like most things in the Michigan criminal court, we are faced with a tug of war between Michigan Rule of Evidence (MRE) 401 and 403. The aspect of unfair prejudice comes into play in all CSC cases, and when you want to put the victim on trial, you run the risk of alienating a Kent County jury and our circuit court. While rape shield notice comes into effect in many CSC cases, people like Nick Sanderson and Dino Newville have provided amazing insights on all of my criminal cases in Kent County and having those type of people on our team has led to success in a short amount of time.”
While the Rape Shield Notice is a tool that should be carefully utilized, understanding the dynamics of the court that you are in makes a big difference. Criminal law, much like most things in life, always leads to one essential truth: know your audience. A rape shield notice can be a fantastic tool, or it could destroy your defense. Knowing how and when to use the advice is the key to success in Kent County, Michigan.