6.6Other-Acts Evidence Under § 768.27b

In a criminal action against a defendant for an offense involving domestic violence, sexual assault, prostitution,¹ or human trafficking,² evidence that a defendant committed other acts of domestic violence, sexual assault, prostitution, or human trafficking is admissible “for any purpose for which [the evidence] is relevant, if [the evidence] is not otherwise excluded under [MRE 403],” and, unless any condition stated in the statute applies, the act of domestic violence or sexual assault occurred not “more than 10 years before the charged offense[.]” MCL 768.27b(1), (4)(a)-(d).³ The statutory provisions of MCL 768.27b “do[] not limit or preclude the admission or consideration of evidence under any other statute, including, but not limited to, under [MCL 768.27a], rule of evidence, or case law.” MCL 768.27b(3).⁴

A.Notice

MCL 768.27b(2) requires the prosecuting attorney to disclose an intent to offer evidence under this statute, “including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered, to the defendant not less than 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown.”

B.Caselaw

The following appellate cases address the admissibility of other acts evidence under MCL 768.27b.

•People v Berklund, ___ Mich App ___ (2024):

“[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of sexual assault is admissible under MCL 768.27b(1) so long as the evidence is not excluded by MCL 768.27b(4) or MRE 403, and is relevant.” Berklund, ___ Mich App at ___, citing MCL 768.27b(1). On interlocutory appeal by leave granted, defendant unsuccessfully “challenge[d] the trial court’s decision under MCL 768.27b(1) to allow the prosecution to introduce evidence that defendant previously committed sexual assault.” Berklund, ___ Mich App at ___. Defendant, who faced a charge of assault with intent to commit great bodily harm less than murder or by strangulation (MCL 750.84(1)(a) or (b)) against a person who used to live with defendant and his wife, argued that the evidence of his prior sexual assault was only admissible under MCL 768.27b(1) if he were on trial for another sexual assault, not when he was on trial for domestic violence. Berklund, ___ Mich App at ___. The Court disagreed, stating that “the manner in which the Legislature chose to construct MCL 768.27b makes plain that it intended for evidence that a defendant previously committed an offense involving sexual assault to be admissible in a current prosecution in which the defendant is accused of an offense involving domestic violence, and vice versa.” Id. at ___.

•People v Propp (Propp II), 508 Mich 374 (2021), reversing in part and vacating in part People v Propp (Propp I), 330 Mich App 151 (2019):

In Propp I, the defendant argued that specific evidence should not be admitted against him because it was inadmissible hearsay.” Propp I, 330 Mich App at 156, 171.“[R]ules of evidence not specifically mentioned in MCL 768.27b may nonetheless be considered when determining whether evidence is admissible.” Propp II, 508 Mich at 385. “MCL 768.27b(3) states: “This section does not limit or preclude the admission or consideration of evidence under any other statute, rule of evidence, or case law.” Propp II, 508 Mich at 385 (emphasis added). “Although this provision appears to be primarily directed to allow the admission of evidence under other sources of law, the plain language of [MCL 768.27b] allows for the consideration of evidence under any other rule of evidence.” Propp II, 508 Mich at 385. Consequently, the Supreme Court concluded that the Court of Appeals had erred in concluding that “the Legislature intended for evidence to be admissible under MCL 768.27b regardless of whether it might be otherwise inadmissible under the hearsay rules of evidence.” Propp II, 508 Mich at 380. See Propp I, 330 Mich at 180-181. The Supreme Court reversed Part IV of the opinion in Propp I and remanded the case to the Court of Appeals to consider whether the evidence at issue was admissible when it was examined under other applicable rules of evidence. Propp II, 508 Mich at 386. The Supreme Court specifically noted that “MCL 768.27b does not limit or preclude the consideration of MRE 802, which states that hearsay is generally not admissible.” Propp II, 508 Mich at 386.

•People v Propp (On Remand) (Propp III), 340 Mich App 652 (2022):

On remand, the Court determined that the evidence the defendant claimed was inadmissible as hearsay was in fact either admissible under other applicable rules of evidence or did not constitute hearsay and so was properly admitted against the defendant at trial. Propp III, 340 Mich App at 666-668.

•People v Pattison, 276 Mich App 613 (2007):

Evidence of CSC-I against the defendant’s ex-fiancee was admissible under MCL 768.27b because the evidence was “probative of whether he used those same tactics to gain sexual favors from his daughter” against whom the defendant was charged with committing four counts of CSC-I over two years when she lived with him. Pattison, 276 Mich App at 615, 616. The Court of Appeals affirmed the trial court’s order allowing the prosecutor to introduce evidence of the defendant’s other alleged sexual assaults against his ex-fiancee. Id. at 615-616. However, rather than reviewing the evidence’s admissibility under MRE 404(b), as did the trial court, the Court of Appeals relied on MCL 768.27b to make this determination. Pattison, 276 Mich App at 615-616. The Court disagreed with the trial court’s order permitting evidence of the defendant’s alleged assaults against a coworker because there was no evidence of a “personal or familial relationship” between the defendant and his coworker. Id.⁵ Furthermore, the defendant’s conduct directed at his coworker involved “surprise, ambush, and force,” while the defendant’s conduct directed at his daughter involved “manipulation and abuse of parental authority.” Id. at 617.