Preliminary exam procedure; MCR 6.110; Relevance; MRE 401 & 402; People v Morgan; Evidence of an alleged victim’s past sexual conduct & instances of sexual activity; MRE 404(a)(2)(C); People v Makela; Applicability of the rape-shield statute’s (MCL 750.520j) procedural requirements; People v Masi; Applicability of harmless error analysis

In an interlocutory appeal, the court held that under the plain language of MCL 750.520j, the statute’s post-arraignment procedural requirements do not apply during a preliminary exam. Thus, it reversed the district court’s order ruling to the contrary. Both the statute and MRE 404(a)(2)(C) allow admission of evidence of an alleged CSC “victim’s past sexual conduct with the defendant or evidence of a specific instance of sexual activity showing the source or origin of semen, pregnancy, or disease.” But in contrast to MRE 404, “the statute imposes the procedural requirement of filing a written motion and offer of proof when seeking to admit” such evidence. The court found that “the clear and unambiguous language of the statute provides that a written motion and offer of proof anticipated under MCL 750.520j is required only after arraignment on the information occurs, and because this arraignment occurs only after the defendant is bound over to the circuit court, the written motion and offer of proof provision of MCL 750.520j is a procedural step that is imposed by the statute only after a preliminary examination either occurs or is waived.” The court noted that it held in Makela “that the applicable authority for determining whether evidence of the complainant’s past sexual activity was admissible during a preliminary” exam was MRE 404(a)(2)(C), not MCL 750.520j, which it “observed did not appear ‘on its face’ to apply to preliminary” exams. It concluded here that the district court erred in ruling that the statute’s procedural requirements applied during the preliminary exam. Finally, while the prosecution argued that any error by the district court was harmless under MCL 769.26, the court concluded that a harmless error analysis did not apply here.