In a criminal sexual conduct case, the prosecutor is allowed to introduce evidence of previous actions by the defendant. Lawyers call this “other bad acts.” For example, the prosecutor can offer evidence that the defendant touched someone sexually three years ago, but was never charged. The alleged victim at that time can now be used by the prosecutor in the defendant’s current case to show a pattern of behavior.

The basis for the use of this evidence is MRE 404(B).

However, the science suggests that use of this evidence is extremely prejudicial in most criminal cases and the statistical chance of an acquittal drops dramatically. See e.g. The American Jury 160 (1966), H. Kalven & H. Zeisel The reason for this is because of “the deep tendency of human nature to punish [the defendant] because he is a bad man and may as well be condemned now that he is caught.” C. Wright & K. Graham, Federal Practice Procedure, Sec. 409 (1998); See also People v Whitfield, 424 Mich App 116 Fn5 (1996)

The prosecutors love this rule, because when the current case against the defendant is weak, they can throw in garbage evidence from the past to inflame the jury.

When the prosecutor pulls that trick, the defense tries to keep that evidence out under a different rule, MRE 403. The rule says that evidence of past acts that may be relevant, still must be kept out, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

So if your judge is nothing more than a judge wearing a prosecutor’s robe, then the “bad acts” evidence is likely to get to the jury. If your judge is fair, then he or she will determine whether or not the prior bad acts are similar enough to warrant admission in the current case. The critical analysis as to the similarity of the bad acts are:

  • the closeness and time of the prior acts to the current charged defense,
  • the frequency of the prior bad acts,
  • the presence or absence of intervening events and the need for any additional testimony to explain the prior bad acts.

See e.g. United States v Guardia, 135 F3d 874, 1331 (USCA 10 1998)

When there is “other acts evidence” it is critical to understand the factual background of the accuser or the facts at the time and how they may relate to the current charges. Therefore, many times it is important to file Stanaway motions.