What Happens at a Criminal Sexual Conduct Trial in Michigan

A criminal sexual conduct (CSC) trial in Michigan follows the same stages as any felony trial, but the jury receives instructions written specifically for sex-offense cases. Jurors are told that the accused is presumed innocent, that the prosecutor has to prove each element beyond a reasonable doubt, and that the defendant is not required to prove innocence or to do anything.^[1] Depending on the issues in the case, they may also be instructed on a single witness's testimony, the absence of resistance, and consent.^[3][8][9]

The order of a trial (jury selection, opening statements, witnesses, closing arguments, verdict) is covered in the sister guide's pages on what happens at a trial and bench trial or jury trial. This page keeps to what is specific to CSC.

What does the prosecutor have to prove?

Every crime is made up of elements, and the model instruction tells jurors that if the prosecutor has not proven every element beyond a reasonable doubt they must find the defendant not guilty.^[1] Its Use Note says the instruction must be given in every case.^[1]

In a CSC case the elements depend on the degree charged. First- and third-degree offenses involve sexual penetration, which the statute defines to include any intrusion, however slight, and second- and fourth-degree offenses involve sexual contact, which includes the intentional touching of the victim's or actor's intimate parts, or of the clothing covering the immediate area of those parts, if the touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or done in a sexual manner for revenge, to inflict humiliation, or out of anger.^[10][11] Each degree then adds its own circumstances; see the overview of the CSC statutes and penetration versus contact.

Where a first-degree charge alleges that the defendant was 17 or older and the complainant under 13, the ages matter to the sentence, and the instruction's Use Note says a separate instruction is given because facts that trigger a mandatory minimum sentence are to be admitted by the defendant or proved beyond a reasonable doubt to the trier of fact.^[12]

What is the jury told about the complainant's testimony?

No corroboration needed

By statute, the testimony of a victim need not be corroborated in prosecutions for first- through fourth-degree CSC and assault with intent to commit CSC.^[2] The matching instruction, M Crim JI 20.25, says: "it is not necessary that there be evidence other than the testimony of [name complainant], if that testimony proves guilt beyond a reasonable doubt."^[3]

Two features of that instruction are easy to miss. It is conditional on the testimony proving guilt beyond a reasonable doubt, and its Use Note describes it as a permissive instruction that is especially appropriate where the defense has argued lack of corroboration.^[3] It does not tell jurors whom to believe.^[3]

No resistance needed

A victim need not resist the actor in a CSC prosecution.^[4] The matching instruction, M Crim JI 20.26, tells jurors that "the prosecutor does not have to show that [name complainant] resisted the defendant."^[8] Like the corroboration instruction, its Use Note calls it permissive and says it is especially appropriate where the defense has argued lack of resistance.^[8]

Credibility is the jury's call

Witness credibility is a question for the fact-finder.^[13] The general credibility instruction applies to every witness, whichever side calls them: jurors are free to believe all, none, or part of any person's testimony, and are given questions to think about, such as whether the witness has any bias or personal interest and how reasonable the testimony seems in light of the other evidence.^[14] They are also reminded that people may testify honestly but simply be wrong about what they saw or remembered.^[15] See One-witness cases and corroboration.

How is consent presented to the jury?

Where consent is in issue, M Crim JI 20.27 defines it: a person consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced.^[9] If jurors find that the evidence raises a reasonable doubt as to whether the complainant consented freely and willingly, they must find the defendant not guilty.^[9]

The instruction is not for every case. Its Use Note says it should be given only where there is evidence of consent, and that it should not be given where the complainant is below the age of consent.^[16] The law on this is in The consent defense in CSC cases.

What limiting instructions come up in sex-offense trials?

Evidence	What jurors are told
Other acts of child sexual abuse (M Crim JI 20.28a)	They must first find the defendant actually committed those acts, may then consider them in deciding the charged offense, and must not convict solely because they think the defendant is guilty of other bad conduct.[17]
Uncharged sexual acts with the same complainant (M Crim JI 20.28)	To consider the evidence for one limited purpose: to help judge the believability of the complainant's testimony about the charged acts.[18]
Behavioral expert testimony (M Crim JI 20.29)	That it cannot be used to show the crime was committed or that the defendant committed it, and is not an opinion that the complainant is telling the truth.[19]
A statement made in custodial interrogation for a major felony that was not recorded as the statute requires	That it is the law of the state to record such statements and that they may consider the absence of a recording in evaluating the evidence about the statement.[20]
A witness's earlier inconsistent statement (M Crim JI 4.5)	That they may use it to decide how believable the witness's testimony in court was, and, if it was made under oath, as evidence of the truth of what was said.[21]

The rules that decide whether such evidence comes in at all are in Other-acts evidence under MCL 768.27a, the rape-shield law and Expert witnesses in child sexual abuse cases.

What does the jury have to agree on?

A jury verdict must be unanimous.^[5] In CSC cases that general rule raises two recurring questions.

Several acts

If more than one specific act of criminal sexual conduct is claimed, the Use Note to the first-degree instruction says the trial court should instruct the jury that its verdict as to each alleged act must be unanimous.^[22]

Under People v Cooks (1994), as the Criminal Proceedings Benchbook quotes it, when the prosecution offers evidence of multiple acts, each of which would satisfy a single charged offense, the court instructs the jury that it must unanimously agree on the same specific act if the acts are materially distinct or if there is reason to believe jurors may be confused or disagree about the factual basis of guilt.^[6] When neither of those factors is present, the same passage says, a general instruction that the verdict must be unanimous does not deprive the defendant of the right to a unanimous verdict.^[23]

Several aggravating circumstances

The rule is different for aggravating circumstances attached to one act. If jurors all agree the defendant committed the sexual act alleged, it is not necessary that they all agree on which aggravating circumstance accompanied it, as long as they all agree the prosecutor has proved at least one beyond a reasonable doubt.^[24]

A single act of penetration accompanied by more than one aggravating circumstance gives rise to only one charge for purposes of trial, conviction and sentencing.^[25] Convictions of first- and second-degree CSC on the same facts have been held not to violate double jeopardy, because each requires proof of a fact the other does not.^[26]

Can the jury consider a lesser offense?

Only a necessarily included one. In People v Nyx (2007) the Michigan Supreme Court read MCL 768.32(1) to preclude a judge or jury from convicting of a cognate lesser offense even if the crime is divided into degrees.^[7]

• Second-degree CSC is a cognate lesser offense of first-degree CSC, in the words of a plurality opinion, because it is possible to commit the first without having committed the second.^[27]
• Assault with intent to commit CSC involving sexual penetration is a necessarily included lesser offense of first- and third-degree CSC, and assault with intent to commit second-degree CSC is a necessarily included lesser offense of second-degree CSC.^[28]

When a lesser offense is submitted, jurors are told to consider the principal offense first; if they find the defendant not guilty of it or cannot agree, they may consider the lesser offense.^[29] The sources used for this library do not say whether fourth-degree CSC is a lesser included offense of the higher degrees, so this page states no rule on that point.

Courtroom arrangements

The accused has a right to a speedy and public trial by an impartial jury.^[30] The victim has the right to be present throughout the trial unless he or she is going to be called as a witness, in which case the court may, for good cause shown, order sequestration until the victim first testifies.^[31]

Media may ask to cover a trial, but the judge has sole discretion to exclude coverage of certain witnesses, including victims of sex crimes and their families.^[32] Special arrangements for young witnesses are in Child witnesses in Michigan courts.

After the verdict

An acquittal bars a second prosecution for the same offense.^[33] It does not erase every record: the statute that calls for destruction of fingerprints and the arrest card after a not-guilty finding does not apply to a person who was arraigned for criminal sexual conduct in any degree.^[34] A DNA sample is treated differently and is to be destroyed or expunged if the charge was dismissed or resulted in acquittal.^[35]

After a conviction, a person convicted of a listed offense registers before sentencing.^[36] See sentencing guidelines for CSC.

What people get wrong

"Without physical evidence there is no case." The statute says corroboration is not needed.^[2]

"The judge tells the jury to believe the complainant." The instruction is permissive and applies only if the testimony proves guilt beyond a reasonable doubt.^[3]

"The jury can always compromise on a lower degree." Only necessarily included offenses qualify.^[7] The legal defenses a jury or judge may hear are summarized in Defenses to sex crime charges, and the alternative to trial is covered in Plea bargains in CSC cases.