What to Expect as a Witness in a Michigan Criminal Sexual Conduct Case

A witness in a Michigan criminal sexual conduct (CSC) case is brought to court by a subpoena, testifies under oath at a preliminary examination, a trial, or both, and is protected by several statutes that limit what can be asked and what becomes public.^[1][4][10] This page is for complaining witnesses and for anyone else called to testify, such as a family member, friend, nurse or teacher.

If you are in immediate danger, call 911. The National Sexual Assault Hotline is free, confidential and open 24/7: call 800.656.HOPE (4673), chat at RAINN.org/hotline, or text HOPE to 64673.^[11] Michigan's VOICES4 hotline is free, confidential and anonymous, and takes calls and texts at 855-864-2374.^[12][13]

This page explains the process and the rights that apply. It does not suggest what any witness should say. A witness testifies under oath, and the model jury instructions describe an oath as a solemn promise to tell the truth.^[14]

Who is in charge of the case?

A complaining witness does not decide whether a criminal case goes forward. The Court of Appeals has said that a crime victim may not determine whether the prosecution of a crime should go forward or be dismissed.^[9] In People v Morrow, the same court held that a prosecutor could rely on a complainant's earlier sworn preliminary-examination testimony after she gave a different account, and that it was for the jury to decide which account was true.^[15]

The prosecutor's own power to end a case is limited too. Under MCL 767.29, a prosecuting attorney "shall not enter a nolle prosequi upon an indictment, or discontinue or abandon the indictment, without stating on the record the reasons for the discontinuance or abandonment and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes."^[8] Before finalizing any negotiation that may result in a dismissal, a plea or sentence bargain, or pretrial diversion, the prosecuting attorney must offer the victim the opportunity to consult and give the victim's views.^[16] The statute gives an opportunity to be consulted; it does not say the victim's views control the outcome.^[16] The charging decision is covered in Who decides to charge a sex crime.

Who is my contact at the prosecutor's office?

The Crime Victim's Rights Act requires two early written notices. Within 24 hours after first contact, the investigating police agency must give a victim written information that includes the address and telephone number of the prosecuting attorney.^[17] Then, not later than 7 days after the defendant's arraignment and not less than 24 hours before a preliminary examination, the prosecuting attorney must give each victim a written notice in plain English.^[3] That notice must cover the procedural steps in a criminal case, a specific list of the victim's rights, a convenient means of telling the prosecuting attorney that the victim chooses to exercise them, crime victim compensation, suggested procedures if the victim is subjected to threats or intimidation, and the person to contact for further information.^[3]

The statute does not give that contact person a job title, and how each prosecutor's office staffs the role varies by county. If the victim requests, the prosecuting attorney must give notice of any scheduled court proceedings and any changes in the schedule.^[3] On request, the prosecuting attorney must also confer with the victim before the jury is selected and before trial.^[18]

These sections are in the article of the Act that applies to a "crime," which that article defines as an offense punishable by imprisonment for more than 1 year or expressly designated by law as a felony.^[19] The Act has separate articles, with their own definitions, for other kinds of cases.^[19] The statute directs these notices to victims.^[3] A witness who is not the complainant can ask the office that issued the subpoena who to call with scheduling questions.

What does a subpoena require?

A subpoena is a court's written command to appear. Under the Michigan Court Rules, the court in which a matter is pending may by order or subpoena command a witness to appear to testify in open court on a date and time certain, and from day to day thereafter until excused by the court.^[1] The subpoena rule sits in the civil chapter of the court rules, which the criminal chapter carries over except where a rule or statute provides otherwise.^[1] Either side can use it: at a preliminary examination, for example, the court must allow both the prosecutor and the defendant to subpoena and call witnesses.^[20]

Question	What the rule says
How much notice?	The subpoena must be issued far enough ahead to give reasonable notice of the date and time; unless the court orders otherwise, it must be served at least 2 days before the appearance.[21]
What if the date changes?	The party that had the subpoena issued must take reasonable steps to keep the witness informed of adjournments.[21]
What if attending is impossible?	If the served witness notifies the party that it is impossible to be present as directed, the party must either excuse the witness for that time or notify the witness that a special hearing may be held to decide the issue.[21]
What must the subpoena say about not obeying?	That failure to obey may subject the person to penalties for contempt of court.[2]

What can happen if a subpoenaed witness does not appear or will not testify?

The legal exposure is contempt of court, and the rule and statutes describe it in specific terms.

• Not appearing. If a person fails to comply with a properly served subpoena, the failure may be considered a contempt of court by the court in which the case is pending.^[2] The contempt statute gives courts of record power to punish, by fine or imprisonment or both, a subpoenaed witness who refuses or neglects to obey the subpoena or to attend.^[22]
• Appearing but refusing. If a person refuses to be sworn, or refuses to testify about a matter that is not privileged after the court orders it, the refusal may be considered a contempt of court.^[2] The statute likewise covers a witness who refuses to be sworn or, when sworn, to answer any legal and proper question.^[22]
• The punishment the statute allows. Except as otherwise provided by law, punishment for contempt may be a fine of not more than $7,500, or imprisonment, or both, in the court's discretion.^[23] The imprisonment may not exceed 93 days, except in cases where the commitment is for the omission to perform an act or duty that is still within the person's power to perform; in that case the imprisonment ends when the person performs the act or duty or no longer has the power to perform it, and pays the fine, costs and expenses of the proceedings.^[23] The statute does not itself say which situations fall within that exception.^[23]

The rule and the statute both say "may": they give the judge a power and do not prescribe an automatic result.^[2][23] The refusal provision is written for a refusal to testify about a matter that is "not privileged."^[2] A witness who has questions about a privilege, or about personal legal exposure, can consult a lawyer of the witness's own choosing.

Where and when will I testify?

In a felony CSC case a witness may be called at the preliminary examination in district court and again at trial in circuit court. At the preliminary examination a verbatim record is made and witnesses are examined and cross-examined under the rules of evidence.^[20] The stages are laid out in Preliminary examination in CSC cases, Timeline of a felony CSC case and What happens at a CSC trial, which also cover when a courtroom can be closed to the public.

The court must provide a waiting area for the victim separate from the defendant, the defendant's relatives and defense witnesses if one is available and practical; if not, the court must provide other safeguards to minimize contact.^[24] A victim has the right to be present throughout the trial unless the victim will be called as a witness; in that case the court may, for good cause, order the victim sequestered until the victim first testifies, and not afterward.^[25] When news media ask to film or record, the judge has sole discretion to exclude coverage of certain witnesses, expressly including victims of sex crimes and their families.^[26]

What is perjury?

To prove perjury in a court proceeding, Michigan's model jury instruction lists four elements: the person was legally required to take an oath in a proceeding in a court of justice; the person took that oath; while under oath the person made a false statement; and the person knew the statement was false when making it.^[14] Perjury in a court proceeding is a felony punishable by imprisonment for not more than 15 years, with a higher maximum where it is committed on the trial of an indictment for a capital crime.^[27] Those are statutory maximums.^[27]

What limits apply to the questions?

The rape-shield statute

MCL 750.520j applies in prosecutions for CSC in the first through fourth degree and assault with intent to commit CSC. Evidence of specific instances of the victim's sexual conduct, opinion evidence of it, and reputation evidence of it may not be admitted unless, and only to the extent that, the judge finds that it falls within one of two categories, is material to a fact at issue, and that its inflammatory or prejudicial nature does not outweigh its probative value.^[4] The two categories are evidence of the victim's past sexual conduct with the accused, and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy or disease.^[5]

A defendant who proposes to offer such evidence must file a written motion and offer of proof within 10 days after the arraignment on the information, and the statute says the court "may order an in camera hearing" (a hearing in private) to decide admissibility.^[28] As the Sexual Assault Benchbook describes the Michigan Supreme Court's decision in People v Hackett, the trial court must order that hearing if the offer of proof is sufficient and the defendant's constitutional right of confrontation is implicated, and should deny the motion if the showing of relevance is insufficient.^[29] The statute applies to the prosecution's evidence as well, and evidence the prosecution introduces may open the door to evidence that would otherwise be kept out.^[30] The full rule is in Michigan's rape-shield law.

Address and workplace

Where a victim reasonably fears violence or intimidation by the defendant, the prosecuting attorney may move that the victim not be compelled to testify about the victim's address, place of employment or other personal identification without consent, and the hearing on that motion must be in camera.^[31]

Polygraphs

A law enforcement officer may not request or order a CSC victim to take a polygraph examination, and may not inform a victim of the option unless the victim asks about it or the statute otherwise provides.^[32]

Who qualifies for a support person and other courtroom arrangements?

MCL 600.2163a provides specific accommodations, and it defines exactly who gets them. The section's "witness" is an alleged victim of a listed offense who fits one of three groups.^[7]

Who	What the statute provides	In which cases
Alleged victim under 16, or 16 or older with a developmental disability	A support person to sit with or near the witness during testimony, and the section's other arrangements[6][33]	Prosecutions and proceedings under MCL 750.136b, 750.145c, 750.520b to 750.520e and 750.520g, which include CSC in the first through fourth degree and assault with intent to commit CSC[6][7]
Alleged victim under 18, or 18 or older with a developmental disability	A courtroom support dog and its handler[6][33]	The same prosecutions[7]
Vulnerable adult	The section's protections for a "witness"[7]	Prosecutions under six listed Penal Code sections and prosecutions for an assaultive crime as defined in MCL 770.9a[7]

For this section, "developmental disability" includes only a condition attributable to a mental impairment or to a combination of mental and physical impairments, and "vulnerable adult" includes a person 18 or over who, because of age, developmental disability, mental illness or physical disability, requires supervision or personal care or lacks the personal and social skills required to live independently.^[34]

The other arrangements are not automatic. On a party's motion made before the preliminary examination or before trial, the court orders special arrangements only if it finds on the record that they are necessary to protect the welfare of the witness; they include excluding people not necessary to the proceeding during the testimony and seating the defendant as far from the witness stand as is reasonable.^[35][36] Testimony outside the defendant's physical presence, by closed-circuit television or other electronic means, requires a finding on the record that the witness is or will be psychologically or emotionally unable to testify in court even with the other protections.^[37] Each arrangement and its required findings are set out in Child witnesses in Michigan courts.

An adult complainant who has no developmental disability and is not a vulnerable adult is not a "witness" as this section defines the word.^[7] The section states that it is in addition to other protections or procedures afforded to a witness by law or court rule, and whether a judge permits an advocate to sit nearby in other cases varies by court.^[38]

What protects my name and address?

• Name suppression early in the case. In a prosecution for CSC in the first through fourth degree or assault with intent to commit CSC, if the victim, the accused or counsel asks, the magistrate must order the names of the victim and the accused and the details of the alleged offense suppressed until the accused is arraigned on the information, the charge is dismissed, or the case otherwise ends, whichever comes first.^[39] The Michigan Supreme Court has held that such an order directs court personnel to keep the official file from public disclosure and imposes no restraint on non-parties who publish information.^[40]
• Contact details. The victim's home and work addresses and telephone numbers must not be in the court file or ordinary court documents, except in a trial transcript or where an address identifies the place of the crime, and they are exempt from the Freedom of Information Act.^[10]

These provisions are written for court files and public-records requests; none of them says that testimony given in open court is confidential.^[40][10] Further protections, including those for images and for victims who were under 18, are in Privacy and rights of victims in sex crime cases.

Are conversations with a counselor protected?

Under MCL 600.2157a, a confidential communication made in connection with a consultation between a victim and a sexual assault or domestic violence counselor, and any report or working paper from it, is not admissible as evidence in any civil or criminal proceeding without the victim's prior written consent.^[41] Three limits are written into the statute:

• The counselor it covers is a person employed at, or volunteering for, a sexual assault or domestic violence crisis center who in that capacity provides advice, counseling or other assistance to victims and their families.^[42]
• The bar on admission applies "except as provided by section 11 of the child protection law."^[42] That section abrogates legally recognized privileges, other than attorney-client and a confession or similarly confidential communication to a member of the clergy, as grounds for excusing a required report of suspected child abuse or for excluding evidence in a civil child protective proceeding resulting from such a report.^[43]
• The section defines "sexual assault" as "assault with intent to commit criminal sexual conduct."^[44]

How a court handles a defense request for other privileged records, such as therapy records, is explained in Counseling and medical records in CSC cases.

What if someone pressures or threatens a witness?

MCL 750.122 prohibits using threat or intimidation to discourage a person from attending or testifying, to influence testimony, or to encourage a person to avoid legal process, withhold testimony or testify falsely.^[45] It applies whether or not a proceeding is pending or a subpoena has been served.^[46] Retaliating, or threatening to retaliate, against a person for having been a witness is a felony punishable by up to 10 years or a fine of up to $20,000, or both.^[47] A witness who is threatened can report it to the police and to the prosecutor's contact person.

Work and practical support

An employer who threatens to discharge or discipline, or who discharges or disciplines, a victim because the victim is subpoenaed or requested by the prosecuting attorney to attend court to testify commits a misdemeanor punishable by up to 90 days in jail or a fine of up to $500, or both, and may be punished for contempt.^[48] Under the Earned Sick Time Act, an employee who is a victim of sexual assault, or whose family member is, may use earned sick time to participate in criminal proceedings related to the assault.^[49]

Some practical points about the day itself, none of them legal rules: bring the subpoena and a photo ID, allow time for courthouse security, and be prepared to wait, because a hearing may not start at the time printed on the notice.

The state hotline is open to survivors, to people supporting a survivor, and to anyone seeking information about local services.^[12] Local programs are listed in Where to get help after sexual assault in West Michigan, and the wider set of rights is in Rights of sexual assault survivors.