A.Rule 402: Relevant Evidence1
“Generally, relevant evidence is admissible. MRE 402[.]” People v Sharpe, 502 Mich 313, 331 (2018). “Relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403.”2 Sharpe, 502 Mich at 331.
Evidence of a complainant’s pregnancy, abortion, and lack of other sexual partners may be relevant under MRE 402. Sharpe, 502 Mich at 332. The Sharpe Court explained: “The evidence of [the complainant’s] pregnancy and abortion definitively demonstrates that sexual penetration occurred.” Id. at 333. That evidence is highly probative because if the jury believes that the complainant had not engaged in sexual intercourse with anyone but the defendant during the specified time period, then the defendant was the man who sexually assaulted the complainant. Id.
B.Rule 403: Probative Value and Unfair Prejudice3
“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” MRE 403.
Evidence of the complainant’s abortion was admissible because its probative value was not substantially outweighed by the danger of unfair prejudice. People v Sharpe, 502 Mich 313, 333 (2018) (noting that “abortion evidence . . . is not so inherently prejudicial in today’s society as to render it inadmissible”). “[I]t also serves the purpose of explaining why the prosecutor is unable to offer DNA evidence to prove the identity of the man who impregnated [the complainant].” Id. at 334. Similarly, evidence that the complainant had no sexual partners other than the defendant during the relevant period of time was admissible because the evidence was highly probative of establishing that the defendant was the man who sexually assaulted the complainant. Id.
C.Rule 404: Character Evidence4
Except as otherwise indicated, “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion[.]” MRE 404(a). In criminal sexual conduct cases, two types of evidence bearing on a victim’s character may be introduced:
“(i) [evidence of] the alleged victim’s past sexual conduct with the defendant; and
(ii) [evidence of] specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.” MRE 404(a)(2)(C).
“MRE 404(a) only excludes character evidence used to prove conformity to a character trait”; it is error to exclude evidence under MRE 404(a)(3)5 where a valid, nonpropensity explanation for admission of the evidence has been articulated. See People v Sharpe, 502 Mich 313, 332 n 11 (2018).
Evidence of a complainant’s virginity to show that the complainant was not likely to have consented to the alleged sexual assault was inadmissible where the evidence was introduced to show that “[she] was acting in conformity with her prior lack of sexual activity.” People v Bone, 230 Mich App 699, 703 (1998).6