A.Evidence of Other Crimes, Wrongs, or Acts
A brief discussion on evidence of other crimes, wrongs, or acts, is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 2.
1.Admissibility of Other Acts Evidence Under MRE 404(b)
MRE 404(b) governs evidence of other crimes, wrongs, or acts:
“(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. If it is material, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, absence of mistake, or lack of accident.”
MRE 404 has “no temporal limitation” and does not permit evidence to “show defendant’s propensity or character”; however, “MRE 404(b) sets forth a nonexhaustive list of several grounds, other than propensity, for which evidence of other acts may serve as proof ‘when the same is material.’” People v Rosa, 322 Mich App 726, 735-736 (2018) (concluding that “the testimony of defendant’s prior wife was not admissible under MRE 404(b) because the purpose of the evidence was to show that in this case, defendant acted in conformity with the character shown in the prior acts, i.e. that defendant was threatening, abusive, and violent”; while her testimony “demonstrated that defendant was a dangerous man and an incorrigible spouse abuser, . . . it did not offer probative evidence on a material issue,” where it did not demonstrate a particular pattern or scheme that would serve to identify the defendant and “[t]estimony about defendant’s abusive treatment of his first wife many years ago” did not provide information “about whether defendant had an intent to kill when he strangled [the victim]”).
“MRE 404(b) applies to the admissibility of evidence of other acts of any person, such as a defendant, a plaintiff, or a witness.” People v Rockwell, 188 Mich App 405, 409-410 (1991).
“MRE 404(b) only applies to evidence of crimes, wrongs, or acts ‘other’ than the ‘conduct at issue in the case’ that risks an impermissible character-to-conduct inference. Correspondingly, acts comprised by or directly evidencing the ‘conduct at issue’ are not subject to scrutiny under MRE 404(b).” People v Jackson (Timothy), 498 Mich 246, 265 (2015) (holding that “[e]vidence that the defendant[, who was charged with CSC-I involving a child who was a member of the church where the defendant served as a pastor,] previously engaged in sexual relationships with other parishioners, above or below the age of consent, [fell] well within this scope of coverage[]” and required the prosecution to provide notice under MRE 404(b)).
“[T]here is no ‘res gestae exception’ to MRE 404(b), nor does the definition of ‘res gestae’ set forth in [People v] Delgado[, 404 Mich 76 (1978),] and [People v] Sholl[, 453 Mich 730 (1996),] delineate the limits of that rule’s applicability.” Jackson (Timothy), 498 Mich at 268 n 9, 274, overruling any conflicting Court of Appeals caselaw “[t]o the extent that such caselaw holds that there is a ‘res gestae exception’ to MRE 404(b)[.]” (Citations omitted).
Note: Other acts that are “so intertwined with the charged offense that they directly prove the charged offense, or their presentation is necessary to comprehend the context of the charged offense” may be admissible without regard to MRE 404(b). People v Spaulding, 332 Mich App 648, 650 (2020). “Such evidence is also admissible to fill what would otherwise be ‘a chronological and conceptual void regarding the events’ to the finder of fact.” Id. (defendant was convicted of aggravated stalking, and while the evidence of his prior communications with the victim did not expressly convey any threats and did not appear to support the victim’s claim that she felt “terrorized, frightened, intimidated, threatened, harassed, or molested,” see M Crim JI 17.25, “[i]t was impossible to comprehend the significance of those communications without an understanding of the history of the relationship between [the victim] and defendant”; their admission was “critical to understand[ing] why a reasonable person would have felt (and [the victim] did feel) scared by defendant’s conduct”), quoting People v Starr, 457 Mich 490, 500-502 (1998) (quotation marks omitted).
a.Notice Requirements
MRE 404(b)(3) requires the prosecution to
“(A) provide notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing at least 14 days before trial, unless the court, for good cause, excuses pretrial notice, in which case the notice may be submitted in any form.”
The purpose of the notice requirements set out in MRE 404(b)(3)1 is to:
•force the prosecutor to identify and seek admission of only relevant evidence;
•ensure that the defendant has an opportunity to object to and defend against evidence offered under MRE 404(b); and
•facilitate a thoughtful ruling on admissibility by the trial court based on an adequate record. People v Hawkins, 245 Mich App 439, 454-455 (2001).
b.Procedure for Admissibility of Evidence
The admissibility of other acts evidence under MRE 404(b), except for modus operandi evidence used to prove identity,2 is generally governed by the test established in People v VanderVliet, 444 Mich 52 (1993), which is as follows:
•The evidence must be offered for a purpose other than to show the propensity to commit a crime or other bad act.
•The evidence must be relevant under MRE 402 to an issue or fact of consequence at trial.
•The trial court should determine under MRE 403 whether the danger of undue prejudice substantially outweighs the probative value of the evidence, in view of the availability of other means of proof and other appropriate facts.
•Upon request, the trial court may provide a limiting instruction3 under MRE 105, cautioning the jury to use the evidence for its proper purpose and not to infer a bad or criminal character that caused the respondent to commit the charged offense. VanderVliet, 444 Mich at 74-75.
Note: MRE 404(b) codifies the requirements set out in VanderVliet, 444 Mich 52 (1993).
The VanderVliet case underscores the following principles of MRE 404(b) as a rule of inclusion, not exclusion:
•There is no presumption that other acts evidence should be excluded.
•The rule’s list of “other purposes” for which evidence may be admitted is not exclusive. Evidence may be presented to show any fact relevant under MRE 402, except a respondent’s propensity to commit criminal or other bad acts.
•A respondent’s general denial of the charges does not automatically prevent the prosecutor from introducing other acts evidence at trial.
•MRE 404(b) imposes no heightened standard for determining logical relevance or for weighing the prejudicial effect versus the probative value of the evidence. VanderVliet, 444 Mich at 65.4
Accordingly, “MRE 404(b) . . . permits the admission of any logically relevant evidence, ‘even if it also reflects on a defendant’s character,’ so long as the evidence is not ‘relevant solely to the defendant’s character or criminal propensity.’” People v Spaulding, 332 Mich App 638, 649 (2020), quoting People v Mardlin, 487 Mich 609, 615-616 (2010).
In cases where other acts evidence is admissible for one purpose but not others, the trial court should, on request, give a limiting instruction pursuant to MRE 105. See People v Sabin (After Remand), 463 Mich 43, 56 (2000); People v Basinger, 203 Mich App 603, 606 (1994) (absence of opportunity to request a limiting instruction was grounds for reversal because it denied the defendant a fair trial); People v DerMartzex, 390 Mich 410, 417 (1973) (failure to give properly requested instruction may be reversible error). However, the trial court has no duty, without a party’s request, to give a limiting instruction sua sponte “even though such an instruction should [be] given.” People v Chism, 390 Mich 104, 119-121 (1973).
2.Admissibility of Other Acts Evidence Under MCL 768.27
MCL 768.27 provides for the admission of other acts evidence. MCL 768.27 states:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
“[W]hile MRE 404(b) and MCL 768.27 certainly overlap, they are not interchangeable.” People v Jackson (Timothy), 498 Mich 246, 269 (2015). MCL 768.27 authorizes the admission of other-acts evidence for the same purposes listed in MRE 404(b)(2) when one or more of the matters “is material.” MCL 768.27. “Unlike MCL 768.27, however, MRE 404(b)’s list of such purposes is expressly nonexhaustive, and thus plainly contemplates the admission of evidence that may fall outside the statute’s articulated scope.” Jackson (Timothy), 498 Mich at 269. Accordingly, “MCL 768.27 does not purport to define the limits of admissibility for evidence of uncharged conduct.” Jackson (Timothy), 498 Mich at 269.
3.Admissibility of Other Acts Evidence Under MCL 768.27a
MCL 768.27a governs the admissibility of evidence of sexual offenses against minors. MCL 768.27a states in part:
“(1) Notwithstanding [MCL 768.275], in a criminal case in which the defendant is accused of committing a listed offense[6] against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.”
“MCL 768.27a is a substantive rule of evidence because it does not principally regulate the operation or administration of the courts,” and “does not violate the principles of separation of powers.” People v Pattison, 276 Mich App 613, 619-620 (2007). Further, “MCL 768.27a does not violate the Ex Post Facto Clause because the altered standard for admission of evidence does “not lower the quantum of proof or value of the evidence needed to convict a defendant.” Pattison, 276 Mich App at 619.
a.Notice Requirements
MCL 768.27a(1) requires the prosecuting attorney to disclose evidence admissible under that statute to the defendant “at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.”
“The statutory language of MCL 768.27a does not expressly require formal written notice . . . .” People v Wisniewski, ___ Mich App ___, ___ n 7 (2025) (cleaned up). “[B]y presenting [the] witness at the preliminary examination, . . . the prosecution complied with its statutory obligation to provide a summary of the substance of [the witness’s] testimony that it expected to offer at trial.” Id. at ___ (holding that the other-acts testimony was properly admitted under MCL 768.27a and MRE 403 in defendant’s trial on multiple counts of criminal sexual conduct against minors).
b.Procedure for Determining Admissibility of Evidence
MCL 768.27a permits the admission of evidence that MRE 404(b) precludes. . . . [Specifically], the language in MCL 768.27a allowing admission of another listed offense[7] ‘for its bearing on any matter to which it is relevant’ permits the use of evidence to show a defendant’s character and propensity to commit the charged crime, precisely that which MRE 404(b) precludes.” People v Watkins (Watkins II), 491 Mich 450, 470 (2012). “MCL 768.27a irreconcilably conflicts with MRE 404(b) and . . . the statute prevails over the court rule.” Watkins II, 491 Mich at 496. Because MCL 768.27a “‘does not principally regulate the operation or administration of the courts,’” it is a substantive rule of evidence and prevails over MRE 404(b). People v Watkins (Watkins I), 277 Mich App 358, 363-364 (2007), aff’d 491 Mich 450 (2012), quoting People v Pattison, 276 Mich App 613, 619 (2007). “MCL 768.27a does not run afoul of [separation-of-powers principles], and in cases in which the statute applies, it supersedes MRE 404(b).” Watkins II, 491 Mich at 476-477.
“[W]hile MCL 768.27a prevails over MRE 404(b) as to evidence that falls within the statute’s scope, the statute does not mandate the admission of all such evidence, but rather ‘the Legislature necessarily contemplated that evidence admissible under the statute need not be considered in all cases and that whether and which evidence would be considered would be a matter of judicial discretion, as guided by the [non-MRE 404(b)] rules of evidence,’ including MRE 403 and the ‘other ordinary rules of evidence, such as those pertaining to hearsay and privilege[.]’” People v Uribe, 499 Mich 921, 922 (2016), quoting Watkins II, 491 Mich at 484-485. While evidence admissible under MCL 768.27a remains subject to MRE 403, “courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.” Watkins II, 491 Mich at 496.
When deciding whether MRE 403 requires exclusion of other-acts evidence admissible under MCL 768.27a, a court’s considerations may include:
“(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximity of the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony.” Watkins II, 491 Mich at 487-488. See also Uribe, 499 Mich at 922 (noting “there are ‘several considerations’ that may properly inform a court’s decision to exclude [MCL 768.27a] evidence under MRE 403, including but not limited to ‘the dissimilarity between the other acts and the charged crime’ and ‘the lack of reliability of the evidence supporting the occurrence of the other acts[]”), citing Watkins II, 491 Mich at 487-488.
A court may also “consider whether charges were filed or a conviction rendered when weighing the evidence under MRE 403.” Watkins II, 491 Mich at 489. Under certain circumstances even evidence of an offense for which a defendant was acquitted may be admissible. People v Hoskins, 342 Mich App 194, 208 (2022). There is “no categorical rule of exclusion or admission” of evidence related to a charged offense for which a defendant was acquitted. Id. at 212. Admission under MCL 768.27a of any evidence related to a defendant’s prior conduct is subject to analysis under MRE 403. Hoskins, 342 Mich App at 203.
The admission of other-acts evidence under any circumstance carries with it “the danger that a jury will convict the defendant solely because it believes he committed other criminal conduct, a possibility that is particularly egregious when the defendant has been acquitted of these other acts.” Hoskins, 342 Mich App at 214. In Hoskins, the Court concluded that although “evidence of [the defendant’s] acquitted conduct ha[d] some probative value—particularly to demonstrate [the defendant’s] propensity to commit the charged offenses—the danger of unfair prejudice from admitting this acquitted conduct is extremely high.” Id. at 215.
Specifically, the Hoskins Court stated that admission of the defendant’s acquitted conduct was unfairly prejudicial because:
(1) an acquitted individual is presumed innocent of the acquitted charge and may not be tried again for the acquitted offense or be subject to increased punishment because of the acquitted offense; however, “[a] jury considering other-acts evidence of acquitted conduct will make its own independent determination of whether the defendant committed the acquitted acts, despite a previous jury’s unanimous verdict finding that defendant not guilty,” Hoskins, 342 Mich App at 213;
(2) requiring a defendant to defend against allegations already resulting in a defendant’s acquittal “risks prejudicing [a defendant’s] ability to present a full and adequate defense against the charges that he currently faces,” id. at 214; and
(3) whenever any other-acts evidence is admitted against a defendant, there is “the danger that a jury will convict the defendant solely because it believes he committed other criminal conduct, a possibility that is particularly egregious when the defendant has been acquitted of these other acts,” id. at 214.
“The list of ‘considerations’ in Watkins provides a tool to facilitate, not a standard to supplant, [the] proper MRE 403 analysis, and it remains the court’s ‘responsibility’ to carry out such an analysis in determining whether to exclude MCL 768.27a evidence under that rule.” Uribe, 499 Mich at 922 (citation omitted). The trial court abused its discretion by excluding MCL 768.27a evidence where it failed to conduct an MRE 403 analysis and instead focused only on the considerations listed in Watkins II. Uribe, 499 Mich at 922. “In ruling the proposed testimony inadmissible under MRE 403, the trial court, citing the illustrative list of ‘considerations’ in Watkins, expressed concern regarding apparent inconsistencies between the proposed testimony and prior statements made by the witness, and certain dissimilarities between the other act and the charged offenses[, but] . . . failed to explain[] . . . how or why these concerns were sufficient . . . to render the ‘probative value [of the proposed testimony] . . . 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,’ as required for exclusion under MRE 403.” Uribe, 499 Mich at 922 (citation omitted).
See People v Hoskins, 342 Mich App 194 (2022). In Hoskins, the Court noted that even though the temporal proximity of the defendant’s previous conviction and the charged offenses in his present trial weighed in favor of excluding evidence of the previous conviction—20 years had passed between the two—application of the other Watkins factors supported the admission of the evidence under MCL 768.27a. Hoskins, 342 Mich App at 205, 206.
However, a trial court can alleviate any danger of unfair prejudice when the court delivers the following instruction to the jury: “You must not convict the defendant here solely because you think he is guilty of other bad conduct.” People v Wisniewski, ___ Mich App ___, ___ (2025) (quotation marks omitted).
4.Admissibility of Other Acts Evidence Under MCL 768.27b
In a criminal action against a defendant for an offense involving domestic violence or sexual assault, prostitution,[8] or human trafficking,[9] 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).10 See, e.g., People v Berklund, ___ Mich App ___, ___ (2024) (“MCL 768.27b(1) plainly states that, when a defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other acts of domestic violence or sexual assault is admissible provided that it is relevant and not excluded by MCL 768.27b(4) or MRE 403.”). 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). “Thus, under MCL 768.27b, evidence of other acts of domestic violence is admissible, even to show propensity.” People v Skippergosh, ___ Mich App ___, ___ (2024) (cleaned up).
MCL 768.27b “in certain instances expands the admissibility of domestic-violence other-acts evidence beyond the scope permitted by MRE 404(b)(1)[.][11]” People v Mack, 493 Mich 1, 2 (2012). The Michigan Supreme Court found that MCL 768.27b’s expansion of “admissibility of [domestic-violence other-acts] evidence beyond the scope of MRE 404(b)(1)”12 did not “infringe on [its] authority to establish rules of ‘practice and procedure’ under Const 1963, art 6, § 5.”13 Mack, 493 Mich at 3.
MCL 768.27b contains a temporal requirement: “Evidence of an act occurring more than 10 years before the charged offense is inadmissible under this section unless the court determines that 1 or more of the following apply:
(a) The act was a sexual assault that was reported to law enforcement within 5 years of the date of the sexual assault.[14]
(b) The act was a sexual assault and a sexual assault evidence kit was collected.[15]
(c) The act was a sexual assault and the testing of evidence connected to the assault resulted in a DNA identification profile that is associated with the defendant.
(d) Admitting the evidence is in the interest of justice.” MCL 768.27b(4).
Although MCL 768.27b “does not define ‘interest of justice,’” “the exception should be narrowly construed.” People v Rosa, 322 Mich App 726, 733, 734 (2018). Rather, “evidence of prior acts that occurred more than 10 years before the charged offense is admissible under [the interest of justice exception in] MCL 768.27b only if that evidence is uniquely probative or if the jury is likely to be misled without admission of the evidence.”16 Rosa, 322 Mich App at 734 (concluding that testimony about abuse that occurred at least 16 years before the charged crimes was not uniquely probative or needed to assure that the jury was not misled because it was “consistent with and cumulative to [the victim’s] testimony regarding defendant’s character and propensity for violence”).
a.Notice Requirement
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.Case Law
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 Rosa, 322 Mich App 726 (2018):
“[E]vidence of prior acts that occurred more than 10 years before the charged offense is admissible under [the interest of justice exception in] MCL 768.27b only if that evidence is uniquely probative or if the jury is likely to be misled without admission of the evidence.”17 Rosa, 322 Mich App at 734. In Rosa, “[the victim’s] testimony laid out a detailed and compelling picture of defendant as an abusive and violent husband.” Similarly, the defendant’s first wife “described repeated verbal abuse, multiple beatings, and a rape.” Id. at 734. These prior bad acts “were neither uniquely probative nor were they needed to ensure that the jury was not misled; instead, they were consistent with and cumulative to [the victim’s] testimony regarding defendant’s character and propensity.” Id.
•People v Daniels, 311 Mich App 257 (2015):
“MCL 768.27b require[s] the trial court to admit [evidence that the defendant committed other acts of domestic violence when]: (1) it is relevant, (2) it describes acts of ‘domestic violence’ under [MCL 768.27b(6)(a)18], and (3) its probative value is not outweighed by the risk of unfair prejudice under MRE 403.” Daniels, 311 Mich App at 274-275 (in the defendant’s trial for molesting and abusing two of his children, the trial court properly “admitted the testimony of [the defendant’s other children] regarding the physical violence [the] defendant committed against them[]” where “[e]ach of the acts of physical violence to which the [children] testified [were] relevant, because they [made] ‘a material fact at issue’—i.e. whether [the] defendant physically abused [the named victims in the case]—’more probable or less probable than [the material fact] would be’ without the testimony[, t]he testimony also involve[d] acts of ‘domestic violence’ under MCL 768.27b, because the children described instances in which [the] defendant either ‘cause[d] or attempt[ed] to cause physical or mental harm to a family or household member’ through actual physical abuse[, and] . . . [t]he testimony [was] highly probative, because it demonstrate[d the] defendant’s violent and aggressive tendencies, as well as his repeated history of committing physical abuse of all his children—not just [the named victims in the case]”). (Internal citations omitted).
•People v Meissner, 294 Mich App 438 (2011):
“Prior acts of domestic violence can be admissible under MCL 768.27b regardless of whether the acts were identical to the charged offense.” Meissner, 294 Mich App at 452 (“trial court was within its discretion in finding the prior acts admissible[ where] [a]ny potential unfair prejudice to [the] defendant was substantially outweighed by the evidence’s probative value[, and] [t]he prior acts of domestic violence illustrated the nature of [the] defendant’s relationship with [the victim] and provided information to assist the jury in assessing [the victim’s] credibility[]”).
•People v Cameron, 291 Mich App 599 (2011):
“[P]rior-bad-acts evidence [under MCL 768.27b may] be introduced at trial as long as the evidence satisfies the ‘more probative than prejudicial’ balancing test of MRE 403[.]” Cameron, 291 Mich App at 610. A court must “make two distinct inquiries under the MRE 403 balancing test[:]
First, th[e] [c]ourt must decide whether introduction of [the individual’s] prior-bad-acts evidence . . . [is] unfairly prejudicial.
[Second], th[e] [c]ourt must apply the [MRE 403] balancing test and ‘weigh the probativeness or relevance of the evidence’ against the unfair prejudice.” Cameron, 291 Mich App at 611.
In Cameron, 291 Mich App at 605, the trial court admitted evidence of the defendant’s prior abusive conduct towards the victim and another ex-girlfriend. Under the first inquiry, the Court of Appeals found that the admitted evidence “did not stir such passion as to divert the jury from rational consideration of [the defendant’s] guilt or innocence of the charged offenses[,]” and that “the trial court minimized the prejudicial effect of the bad-acts evidence by instructing the jury that the issue in the case was whether [the defendant] committed the charged offense.” Id. at 611-612. Under the second inquiry, the Court found that the evidence was relevant (1) to establish the victim’s credibility, (2) to show that the defendant acted violently toward the victim and that his actions were not accidental, and (3) to show the defendant’s propensity to commit acts of violence against women who were, or had been romantically involved with him. Id. at 612. The Court concluded that “[the defendant’s] prior bad acts were relevant to the prosecutor’s domestic violence charge under MCL 768.27b[,]” and that “[a]ny prejudicial effect of admitting the bad-acts evidence did not substantially outweigh the probative value of the evidence[.]” Cameron, 291 Mich App at 612. Accordingly, “the trial court did not abuse its discretion when it allowed [the defendant’s] prior-bad-acts evidence to be introduced under MCL 768.27b.” Cameron, 291 Mich App at 612.
•People v Railer, 288 Mich App 213 (2010):
Where the proposed testimony of a defendant’s previous acts of domestic violence is highly relevant to the defendant’s tendency to commit the crime at issue, it may be admissible under MCL 768.27b. See Railer, 288 Mich App at 220-221. In id. at 220, the prosecution was permitted to call the defendant’s former girlfriends to testify about the defendant’s threats and physical abuse during their respective relationships with him. The Court concluded that their testimony described “behavior [that] clearly meets the definition of ‘domestic violence’ under [MCL 768.27b], [behavior that] occurred within ten years of the charged offense as required by [MCL 768.27b(4)], and [behavior that] would be highly relevant to defendant’s tendency to assault [the victim] as charged.” Railer, 288 Mich App at 220.
•People v Pattison, 276 Mich App 613, 615-616 (2007):
Where proposed evidence is admissible under MCL 768.27b, it is unnecessary to determine whether it is also admissible under MRE 404(b). See Pattison, 276 Mich App at 616. In id. at 615, the defendant was charged with four counts of CSC-I for the alleged sexual abuse of his minor daughter that occurred repeatedly over two years while she lived with him. The Court of Appeals concluded that 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.” Pattison, 276 Mich App at 616. Having found the evidence admissible under MCL 768.27b, the Court did not review the evidence’s admissibility under MRE 404(b). Pattison, 276 Mich App at 616.
A brief discussion on Michigan’s rape-shield provisions are contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 6.
Because sexual abuse is one tactic that may be employed to control victims in violent domestic relationships, allegations of criminal sexual conduct between intimate partners is not uncommon. In cases involving sexual conduct crimes, MCL 750.520j(1) and MRE 404(a)(2)(C) generally prevent the defendant from introducing evidence of the complainant’s past sexual conduct in a prosecution for criminal sexual conduct, except in two narrow circumstances: (1) when the evidence pertains to a complainant’s past sexual conduct with the defendant; and (2) when the evidence pertains to a specific instance of sexual activity showing the source or origin of semen, pregnancy, or disease.
Note: Although a person may be charged with or convicted of criminal sexual conduct against their legal spouse, a person may not be charged with or convicted “solely because [their] legal spouse is mentally incapable.” MCL 750.520l.
Specifically, MCL 750.520j(1) provides:
“Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under [MCL 750.520b to MCL 750.520g][19] unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”
See also MRE 404(a)(2)(C), which permits the admission in criminal-sexual-conduct cases of evidence of:
“(i) the alleged victim’s past sexual conduct with the defendant, and
(ii) specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”
“‘[P]ast’ sexual conduct refers to conduct that has occurred before the evidence is offered at trial.” People v Adair, 452 Mich 473, 483 (1996). In Adair, the defendant was charged with sexually assaulting his wife and sought to introduce evidence of specific incidences when he and his wife engaged in consensual sexual relations after the alleged assault. Id. at 475. In deciding whether subsequent sexual relations are sufficiently probative to be admitted, a court should consider (1) the length of time between the alleged assault and the subsequent sexual relations, and (2) whether the complainant and the defendant had a personal relationship before the alleged assault. Id. at 486-487. In explaining its reasoning, the Court stated:
“On a common-sense level, a trial court could find that the closer in time to the alleged sexual assault that the complainant engaged in subsequent consensual sexual relations with her alleged assailant, the stronger the argument would be that if indeed she had been sexually assaulted, she would not have consented to sexual relations with him in the immediate aftermath of sexual assault. Accordingly, the evidence may be probative. Conversely, the greater the time interval, the less probative force the evidence may have, depending on the circumstances.
Even so, time should not be the only factor. The trial court should also carefully consider the circumstances and nature of the relationship between the complainant and the defendant. If the two did not have a personal relationship before the alleged sexual assault, then any consensual sexual relations after the alleged sexual assault would likely be more probative than if the two had been living together in a long-term marital relationship. Additionally, the trial court could find that there may be other human emotions intertwined with the relationship that may have interceded, leading to consensual sexual relations in spite of an earlier sexual assault. Depending on the circumstances, the trial court may find that these other considerations have intensified the inflammatory and prejudicial nature of subsequent consensual sexual conduct evidence and properly conclude that it should be precluded or limited. Moreover, the Legislature, by the use of the term ‘unless and only to the extent that’ in the rape-shield statute, expressly limited admission of such evidence to what is necessary for the defense. Therefore, the trial court appropriately should limit the scope of sexual conduct evidence where constitutionally possible.” Adair, 451 Mich at 486-487.
MCL 750.520j(2) requires the defendant to provide notice of his or her intent to offer evidence of the complainant’s prior sexual conduct:
“If the defendant proposes to offer evidence described in subsection (1)(a) or (b), the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1). If new information is discovered during the course of the trial that may make the evidence described in subsection (1)(a) or (b) admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under subsection (1).”
2.Defendant’s Right to Confrontation
“When applying the rape-shield statute, trial courts must balance the rights of the victim and the defendant in each case.” People v Benton, 294 Mich App 191, 198 (2011). “In certain limited situations, evidence that is not admissible under one of the statutory exceptions [in MCL 750.520j(1)(a) or MCL 750.520j(1)(b)] may nevertheless be relevant and admissible to preserve a criminal defendant’s Sixth Amendment right of confrontation.” Benton, 294 Mich App at 197. If a trial court determines that evidence of a victim’s past sexual conduct is not admissible under one of the statutory exceptions, it must consider whether admission is required to preserve the defendant’s constitutional right to confrontation; if the evidence is not so required, the court “‘should . . . favor exclusion’ of [the] evidence.” Id. at 197, quoting People v Hackett, 421 Mich 338, 339 (1984).
1 Notice requirements appearing in MRE 404(b)(3) previously appeared in MRE 404(b)(2), See ADM File No. 2021-10, effective January 1, 2024.
2 The admissibility of other acts evidence under MRE 404(b) is not always governed by the VanderVliet test. When the proponent is seeking admission of other acts evidence based on a modus operandi theory to establish identity, the trial court should employ the test enunciated in People v Golochowicz, 413 Mich 298, 309 (1982). See VanderVliet, 444 Mich at 66, and People v Ortiz, 249 Mich App 297, 303 (2001).
3 See, e.g., M Crim JI 4.11.
4 The continued viability of VanderVliet’s analytical framework, and its characterization of MRE 404(b) as a rule of inclusion rather than exclusion, was affirmed in Sabin (After Remand), 463 Mich at 55-59. See also People v Katt (Katt I), 248 Mich App 282, 303-304 (2001).
5 See Section 4.5(B)(2) for a discussion of MCL 768.27.
6 Listed offenses are contained in MCL 28.722. See MCL 768.27a(2)(a).
7 Listed offenses are contained in MCL 28.722. See MCL 768.27a(2)(a).
8 MCL 750.448 to MCL 750.462.
9 MCL 750.462a to MCL 750.462h.
10 Applicable to trials and evidentiary hearings started or in progress on or after May 1, 2006. MCL 768.27b(7).
11 The other acts permitted previously appeared in MRE 404(b)(1); those other acts now appear in MRE 404(b)(2). See ADM File No. 2021-10, effective January 1, 2024.
12 Id.
13 In Mack, 493 Mich at 3, the Michigan Supreme Court “conclude[d] that MCL 768.27b d[id] not infringe on [its] authority to establish rules of ‘practice and procedure’ under Const 1963, art 6, § 5” “[f]or the reasons articulated in [People v] Watkins (Watkins II), 491 Mich 450 (2012).]” In id. at 472-481, the Court concluded that, because MCL 768.27a “reflects a substantive legislative determination that juries should be privy to a defendant’s behavioral history in cases charging the defendant with sexual misconduct against a minor[,]” rather than a “policy consideration[] limited to ‘the orderly dispatch of judicial business[,]’” the statute “does not run afoul of separation-of-powers principles], and in cases in which the statute applies, it supersedes MRE 404(b).”
14 See, e.g., Berklund, ___ Mich App at ___ n 2: “Here, defendant committed the sexual assault more than 10 years before the instant offense, but evidence of the prior sexual assault was not precluded by MCL 768.27b(4) because the sexual assault ‘was reported to law enforcement within 5 years of the date of the sexual assault,’ MCL 768.27b(4)(a), and ‘a sexual assault evidence kit was collected,’ MCL 768.27b(4)(b).”
15 Id.
16 Note that effective March 17, 2019, MCL 768.27b was amended to expand the admission of prior acts occurring more than 10 years before the charged offense to include certain sexual assaults (in addition to still allowing admission of prior acts “in the interest of justice”). See 2018 PA 372. Rosa was decided before this statutory amendment.
17 Note that effective March 17, 2019, MCL 768.27b was amended to expand the admission of prior acts occurring more than 10 years before the charged offense to include certain sexual assaults (in addition to still allowing admission of prior acts “in the interest of justice”). See 2018 PA 372. Rosa was decided before this statutory amendment.
18 Formerly MCL 768.27b(5)(a). See 2018 PA 372, effective March 17, 2019.
19 The cited statutes describe offenses under the Criminal Sexual Conduct (CSC) Act.