Criminal Sexual Conduct Dismissed if Alleged Victim Doesn’t Show-up?

Criminal Sexual Conduct

CSC charges can be dismissed under the right circumstances. But what about the common belief that your CSC charges will be dismissed if the alleged victim doesn’t show-up in court? Is it really true?

Criminal Sexual Conduct charges in Michigan can send you to Prison for the rest of your life.  You can even be sentenced to a mandatory minimum of 25 years, such as in the case of Criminal Sexual Conduct in the First Degree involving someone under 13 years of age.  With so much gossip circulating about cases being dismissed because alleged victims fail to appear in Court, it’s natural to wonder whether or not your Criminal Sexual Conduct (CSC) charge could be dismissed if you should be so lucky as to have your accuser not show-up in Court.  

In this article, Michigan Criminal Sexual Conduct Attorney Brian J. Prain explains what you should expect.    

At the outset, it should be noted that because of the nature of CSC cases and the effort that Prosecutors put forth in the beginning to ensure that the alleged victim is willing to cooperate (sometimes ethically, sometimes not), it is extremely rare that the alleged victim in a CSC case would fail to appear in Court.  But let’s imagine they do fail to appear…

The Type of Hearing Matters: First, whether or not your Criminal Sexual Conduct charge would be dismissed depends on the type of hearing at which the alleged victim doesn’t appear.  If it isn’t the type of hearing where the alleged victim is required to testify, then the charges will certainly not be dismissed.  These types of hearings that don’t involve testimony include Arraignments, Probable Cause Conferences, Pretrial Conferences, certain Motions and Evidentiary Hearings, Settlement Conferences, Docket Conferences, Calendar Conferences, Sentencings, and most others.  

Under the Sixth Amendment, you have a Constitutional right of “confrontation.”  The Sixth Amendment says that a person charged with CSC or any crime has the right “to be confronted with the witnesses against him.”  This is called the “Confrontation Clause,” and it means that assuming we’re dealing with the type of hearing where the Prosecution is required to have the alleged victim testify as a witness against you, you then have the right, either yourself or through your Criminal Sexual Conduct Defense Attorney, to question and cross-examine them – to ask them questions to show that they are not credible.  

If the Prosecution cannot produce the witness, then you would be denied this right, and the Judge usually has two choices: either give the Prosecution more time and another chance to get them there, or your CSC charges must be dismissed (usually “without prejudice,” meaning you could still be re-charged wth CSC in the future).  Hearings of this type include Preliminary Examinations and Trials.

Exception to the Confrontation Clause: The Supreme Court, however, has created an exception to the rule that the alleged victim must be present for you to question them.  In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court said that your CSC charges can go forward all the way to a verdict in a Trial, even if the alleged victim doesn’t show-up at Trial to testify.  They can prosecute you by introducing just the previous statements and any testimony that the alleged victim has already given if certain requirements are met (see below).  

“Testimonial” Statements Only: The first requirement is that for the alleged victim’s statements to be introduced into evidence when they don’t show, the statements must be “testimonial.”  Another Supreme Court case, Davis v. Washington, 547 U.S. 813 (2006), says that “testimonial” means that “the circumstances objectively indicate that the primary purpose of the statement is to establish or prove past events potentially relevant to later criminal prosecution, rather than to meet an ongoing emergency.”  For example, frantic statements made to a 911 operator during an ongoing alleged home invasion and rape for the purpose of getting an emergency police response would not be “testimonial,” but a statement to a police officer following his arrival well after the suspect has fled while the officer takes notes would clearly be “testimonial.”  If the alleged victim does not appear at Trial, the Prosecution can introduce only her statements that qualify as “testimonial.”  

Alleged Victim or Witness Must be “Unavailable”: The easiest thing for the Prosecutor to do, it seems, would be just to tell the alleged victim not to show-up at Trial or put forth little to no effort to get them there, introduce their prior testimonial statements where they claim you committed Criminal Sexual Conduct on them, and thereby avoid your right to confront them and risk the chance that you’ll expose them as a liar.  But that would make your Sixth Amendment right of Confrontation totally worthless and actually give the government an incentive not to have them appear.  So obviously it doesn’t work that way…  

The Prosecution has to prove that the alleged victim is actually “unavailable.”  Unavailable means that they cannot testify because they are: exempted by Court ruling or privilege, have refused to testify (subject to contempt of court, of course), have suffered lack of memory, are dead, are disabled by physical or mental illness, or are absent and the Prosecution is unable to get them there by Subpoena or other reasonable means.  This is in Michigan Rule of Evidence (“MRE”) 804(a).  

Prosecutor Must Show Due Diligence Efforts: Just because a witness in a Criminal Sexual Conduct case doesn’t want to show-up in Court, in order to send you to Trial without them, the Prosecution must show that they actually took meaningful steps to try to get them to Court.  These meaningful steps are called “due diligence,” and a good Michigan CSC Defense Attorney would invoke the case of People v. Dye and argue to the Judge that the Prosecution should have to SHOW their due diligence efforts at a special hearing where the Prosecutor themselves and even Police should be required to testify as to what they did to try to get the would-be victim of Criminal Sexual Conduct into Court.  The law does not require them to do everything under the sun, but the law expects that if there are measures they could have taken (i.e. going to their work, talking to their family, or looking at public records to find out what address they might be at), those measures should be taken or the Prosecution cannot claim that they exercised “due diligence.”  The U.S. Supreme Court gave a great discussion of due diligence in a Sexual Assault charge in the case of Hardy v. Cross, 565 U.S. ___ (2011).  There are many other examples covering what is and is not “due diligence.”  

Prior Opportunity to Cross-Examine: As a final requirement before you can be sent to Trial on Criminal Sexual Conduct charges in Michigan when the alleged victim doesn’t show up on the day of Trial, it has to be true that you had a prior opportunity to cross-examine them.  This topic is very complicated and could (and does) take up volumes in the law books.  But in a simple sense, here’s what it means: if it’s the day of your Trial on Michigan Criminal Sexual Conduct charges and your alleged victim does not appear in Court, the Prosecution cannot go forward against you and would instead have to dismiss unless you had a chance to have your lawyer grill them on the witness stand at some previous hearing in Court.  This is true for every type of statement of the alleged CSC victim that they want to have read to the Jury.

In Michigan CSC charges, this usually means the Preliminary Exam.  If the alleged victim appeared and was cross-examined by you or your lawyer at the Preliminary Exam, then this requirement has probably been met at least as to some of the statements from the transcript that the Prosecution wants to have read to the Jury.  Notice that it says “opportunity” to cross-examine.  Therefore, if you had the opportunity for a Preliminary Exam but waived it as most “lazy” Michigan Criminal Sexual Conduct lawyers do, then you may be out of luck.  Michigan law adds the requirement that in the case of a Preliminary Exam transcript, it must also have “sufficient indicia of reliability.”

Are you thoroughly confused yet?  Don’t worry, that would be normal.  This is why you need an aggressive Michigan Criminal Sexual Conduct Defense Attorney in your corner.  What you need to know for now is that just because your alleged CSC victim “doesn’t show-up” or “fails to appear,” it most certainly doesn’t mean you’re getting a dismissal.  Hardly.  First, it has to be the right type of Court hearing.  Then, each and every one of the above requirements must stack-up in your favor.  And finally, the Prosecutor can always simply ask for more time, and it is within the Judge’s discretion to grant it.  

A competent and skilled Sexual Assault Attorney knows that hoping for a dismissal because the rumor is “she’s not gonna show up” is NOT a strategy for defending Criminal Sexual Conduct charges – it’s a way to make sure you’ll only get caught wth your “pants down” and make certain that you’ll end up in checkmate.  

Facing Criminal Sexual Conduct charges in Michigan?  Don’t lose the game.  Know the road ahead.  The next call you make could save your freedom, future, and reputation.        
At PrainLaw, PLLC, we specifically concentrate on defending those accused of crimes involving assault, including sexual assault and CSC crimes.  These are some of the most serious criminal charges a person can face, and a conviction almost always means Prison time.  Criminal Defense Attorney Brian J. Prain, was recently named one of the Top 20 Criminal Defense Lawyers in Detroit for 2016.  Brian has also been named Top 10 Criminal Defense Lawyer Under 40 by both the NACDA and AIOCLA, Top 10 Trial Lawyer Under 40 by The National Trial Lawyers, and Top 100 Criminal Defense Lawyers by The National Trial Lawyers, Premier 100 by the National Academy of Jurisprudence, and one of the Nation’s Top 1% by the National Association of Distinguished Counsel.  Brian can be found in Super Lawyers Magazine and Hour Detroit Magazine.  Brian’s firm, PrainLaw, PLLC has been named by the American Institute of Criminal Law Attorneys as one of the “Ten Best Law Firms” for client satisfaction.
If you are facing a Michigan Criminal Sexual Conduct charge, call PrainLaw, PLLC anytime at (248) 763-0641 or (844) CRIM-HELP.  You can also reach us using the Contact Form, below: