Identity, Alibi and DNA in Michigan Sex Crime Cases

In every Michigan criminal case the prosecutor has to prove that the person on trial is the person who committed the offense. The model jury instructions say the prosecutor must prove beyond a reasonable doubt that the defendant was actually there when the alleged crime was committed, and that the defendant does not have to prove he or she was somewhere else.^[1]

This page covers three related subjects: identity as part of the prosecutor's burden, the written notice Michigan requires before alibi evidence is offered, and the statutes that govern DNA samples before and after a conviction. It describes the legal rules only. The science of DNA comparison is outside the sources used for this guide, and this page makes no statements about it.

This page explains the law. It is not legal advice and is not a recommendation to rely on any defense.

Is identity a defense or part of the prosecutor's case?

It is part of the prosecutor's case. The burden-of-proof instruction given in every trial tells jurors that the prosecutor must prove each element beyond a reasonable doubt and that the defendant is not required to prove innocence or to do anything.^[7]

Where identity is in issue, the model identification instruction, M Crim JI 7.8, tells jurors the prosecutor must prove beyond a reasonable doubt that the crime was committed and that the defendant was the person who committed it.^[8] It asks them to think about such things as how good a chance the witness had to see the person at the time, how long the witness was watching, whether the witness had seen or known the person before, how much time had passed before the identification, and how sure the witness was.^[8] Its Use Note says the instruction should be given, upon request, in every case in which identity is in issue.^[8] Whether identity was at issue at trial also matters later, because it is one of the showings for post-conviction DNA testing.^[6]

The same instruction tells jurors to examine identification testimony carefully, and that they may use it alone to convict as long as they believe it and find that it proves beyond a reasonable doubt that the defendant was the person who committed the crime.^[8] By statute, the testimony of a victim need not be corroborated in prosecutions under MCL 750.520b to 750.520g.^[9] Witness credibility is a question for the fact-finder.^[10]

What is an alibi, and what notice does it require?

An alibi is a claim that the defendant was somewhere else when the alleged offense was committed. In a felony case, Michigan's statute calls for advance written notice.^[2]

Step	Rule
Defendant's notice	Filed and served on the prosecuting attorney at the time of arraignment on the information or within 15 days after it, but not less than 10 days before trial, or at such other time as the court directs.[2]
Contents	The names of the witnesses to be called, as particularly as known, and specific information as to the place at which the accused claims to have been.[11]
Prosecutor's notice of rebuttal	Filed and served within 10 days after receipt of the defendant's notice, but not later than 5 days before trial, or at such other time as the court may direct.[11]
Witnesses learned of later	Both sides are under a continuing duty to disclose promptly the names of additional witnesses. On motion, and on a showing that the name was not available when the notice was filed and could not have been available by the exercise of due diligence, the additional witness may be called.[12]
If the defendant gives no notice	The court shall exclude evidence offered by the defendant for the purpose of establishing an alibi.[3]
If a notice does not name a witness as particularly as is known	The court shall exclude the testimony of that witness offered to establish the defense.[12]
If the prosecutor gives no rebuttal notice	The court shall exclude evidence offered by the prosecution in rebuttal.[3]

The table gives the statute's words; case law on how courts apply the exclusion sanction was not reviewed for this guide.^[3] The notice rule does not move the burden. Jurors are still told that the defendant does not have to prove he or she was somewhere else, and that a reasonable doubt about whether the defendant was actually present means a verdict of not guilty.^[1][13]

The dates in the alibi statute run from the circuit court arraignment; where that falls in a case is shown in the timeline of a felony CSC case.

How is DNA collected in a sex-offense case?

From the accused

A person arrested for committing or attempting to commit a felony provides samples for DNA identification profiling.^[14] The person is told in writing that, except as otherwise provided by law, the sample or profile must be destroyed or expunged if the charge is dismissed or results in acquittal, or no charge is filed within the limitations period, and that the burden to request that is on the arresting law enforcement agency and the prosecution, not on the individual.^[4]

Profiles in the state database may be disclosed only for listed purposes: to a criminal justice agency for law enforcement identification purposes, in a judicial proceeding as authorized or required by a court, to a defendant in a criminal case if the profile is used in conjunction with a charge against the defendant, and for research with personal identifications removed.^[15]

From a sexual assault evidence kit

If a person tells hospital staff that within the preceding 120 hours he or she has been the victim of criminal sexual conduct, the attending health care personnel immediately inform the person of the availability of a sexual assault medical forensic examination, including a sexual assault evidence kit.^[16] Kits released to police are to be analyzed within 90 days after the laboratory receives all necessary evidence, "provided that sufficient staffing and resources are available to do so."^[17] DNA profiles from analyzed kits are uploaded only into the state and national databases the State Police specify.^[18]

The act addresses what a missed deadline means for an accused person: a person accused or convicted of committing a crime against the victim has no standing to object to any failure to comply with the act.^[19] See Sexual assault kit testing deadlines and DNA evidence in sex crime cases.

How does DNA affect the time limit for charges?

The limitations statute has a DNA provision. For second-, third- and fourth-degree CSC and assault with intent to commit CSC, if evidence of the offense contains DNA that is determined to be from an unidentified individual, an indictment against that individual may be found and filed at any time after the offense is committed.^[20] Once the individual is identified, meaning the legal name is known and the individual has been determined to be the source of the DNA, a period of years runs from the identification.^[20]

DNA also appears in the other-acts statute. Under MCL 768.27b, an act more than 10 years before the charged offense is inadmissible under that section unless one of four things applies, and one of them is that testing of evidence connected to the earlier assault resulted in a DNA identification profile associated with the defendant.^[21] See the statute of limitations defense and Prior sexual assault evidence under MCL 768.27b.

Post-conviction DNA testing under MCL 770.16

Michigan has a statute that lets some convicted people ask a court to order DNA testing and, depending on the result, a new trial.

Who may petition

• A defendant convicted of a felony at trial before January 8, 2001 who is serving a prison sentence for that conviction.^[5]
• A defendant convicted of a felony at trial on or after January 8, 2001 who establishes that DNA testing was done in the case, that the results were inconclusive, and that testing with current DNA technology is likely to result in conclusive results.^[5]

The statute's wording is "convicted of a felony at trial."^[5] The petition is filed in the circuit court for the county in which the defendant was sentenced and served on that county's prosecuting attorney.^[22]

What has to be shown

The court shall order DNA testing if the defendant does all of the following:^[6]

1. Presents prima facie proof that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime.^[6]
2. Establishes by clear and convincing evidence that a sample of the identified biological material is available for DNA testing.^[6]
3. Establishes by clear and convincing evidence that the material was not previously subjected to DNA testing or, if previously tested, will be subject to DNA testing technology that was not available when the defendant was convicted.^[6]
4. Establishes by clear and convincing evidence that the identity of the defendant as the perpetrator was at issue during the trial.^[6]

If the court determines the applicant is indigent, the state bears the cost of testing ordered under the section.^[6]

What happens after the results

Result	What the statute provides
Inconclusive, or the defendant is the source	The court shall deny the motion for new trial, and the defendant's DNA profile is provided to the State Police.[23]
The defendant is not the source	The court appoints counsel and holds a hearing to determine by clear and convincing evidence all three of the following: that only the perpetrator could be the source of the material; that the material was collected, handled, and preserved by procedures that allow the court to find it is not contaminated or too degraded for its profile to be matched to the sample initially collected; and that the exclusion, balanced against the other evidence in the case, is sufficient to justify the grant of a new trial.[22]

On the prosecutor's motion the court orders retesting and stays the motion for new trial pending the results.^[22] The court states its findings, and an aggrieved party may appeal by application for leave to the Court of Appeals.^[22]

The statute has two further provisions. The investigating law enforcement agency preserves identified biological material for the period of time that any person is incarcerated in connection with the case.^[24] If the victim's name is known, the prosecuting attorney gives the victim written notice of the petition.^[24]

What people get wrong

"A defendant who says he or she was elsewhere has to prove it." The burden stays with the prosecutor.^[1]

"An alibi can be raised at any time." The statute sets a notice deadline and provides for exclusion of the evidence if notice is not given.^[2][3]

"No DNA means no case." By statute, the testimony of a victim need not be corroborated in prosecutions under MCL 750.520b to 750.520g.^[9]

"Anyone convicted can demand new DNA testing." The statute is limited to convictions at trial, to cases where identity was at issue, and to the showings it lists.^[5][6] The other defenses and their limits are summarized in Defenses to sex crime charges; device and account evidence is covered in Digital evidence in sex crime cases.