6.5​Other-Acts Evidence Under § 768.27a

MCL 768.27a governs the admissibility of evidence of sexual offenses against minors. Evidence that a defendant previously committed a listed offense against a minor is admissible against that defendant in a subsequent criminal case in which the defendant is accused of committing a listed offense against a minor. MCL 768.27a states in part:

“(1) Notwithstanding [MCL 768.27],^[14] in a criminal case in which the defendant is accused of committing a listed offense 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 “it 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.

“[T]o ensure that the jury properly employs [evidence admitted under MCL 768.27a],” the trial court may instruct the jury using M Crim JI 20.28a, the standard instruction on evidence of other acts of child sexual abuse. People v Watkins (Watkins III), 491 Mich 450, 490 (2012). See also People v Wisniewski, ___ Mich App ___, ___ (2025), where the trial court alleviated “any danger of unfair prejudice” when it instructed the jury, “‘You must not convict the defendant here solely because you think he is guilty of other bad conduct.’”

A.​Notice Required

MCL 768.27a(1) states the time in which the prosecution must disclose any evidence under MCL 768.27a it intends to introduce:

“If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence 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.”

MCL 768.27a(1) only requires that the prosecution disclose to the defendant at least 15 days before trial is scheduled any evidence it intends to introduce. People v Gaines, 306 Mich App 289, 302 (2014). MCL 768.27a(1) does not require that the other-acts evidence be listed in the notice of intent. Id. That is, the statute does not preclude the prosecution from disclosing the evidence by reference to police reports or other discovery in the notice of intent. Id. See also People v Wisniewski, ___ Mich App ___, ___ (2025), where the Court concluded that the prosecution satisfied the notice requirements in MCL 768.27a(1) by having the witness testify at the preliminary examination, at which time the Court noted “defense counsel had an opportunity to perform a cross-examination after listening to [the witness’s] direct examination.”

B.​Procedure for Determining Admissibility of Evidence

“MCL 768.27a permits the admission of evidence that MRE 404(b) precludes.” People v Watkins (Watkins III), 491 Mich 450, 470 (2012). “[Specifically], the language in MCL 768.27a allowing admission of another listed offense ‘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.” Watkins III, 491 Mich at 470. “MCL 768.27a irreconcilably conflicts with MRE 404(b) and . . . the statute prevails over the court rule.” Watkins III, 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 II), 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

“[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 III, 491 Mich at 484-485 (second alteration in original).

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 III, 491 Mich at 496. See, e.g., People v Wisniewski, ___ Mich App ___, ___ (2025), where testimony given by a victim who was sexually assaulted by defendant in the past “not only was supportive of the credibility of the multiple victims’ testimony at trial, but it also provided the jury with a more complete picture of defendant’s history, particularly regarding his sexual interest in young girls.”

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 III, 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’”), quoting Watkins III, 491 Mich at 487. A court may also “consider whether charges were filed or a conviction rendered when weighing the evidence under MRE 403.” Watkins III, 491 Mich at 489.

“The list of ‘considerations’ in Watkins [III] 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, quoting Watkins III, 491 Mich at 489-490. 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 III. 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 [III], 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. The trial court, however, 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, quoting Watkins III, 491 Mich at 481 (second alteration and third omission in original).

C.​Caselaw

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

•​People v Wisniewski, ___ Mich App ___ (2025):

Defendant was convicted by a jury of four counts of CSC-I (person under 13 years of age), and one count of CSC-II (person under 13 years of age). Id. at ___. The trial court admitted the testimony of woman who had been sexually abused by defendant when she was a minor but who was not a named victim in the case at trial. Id. at ___. The Court held that the testimony otherwise admissible under MCL 768.27a was “not unfairly prejudicial under MRE 403 because the evidence’s propensity inferences weigh in favor of the evidence’s probative value, as opposed to its prejudicial effect.” Wisniewski, ___ Mich App at ___ (quotation marks and citation omitted). The witness’s testimony “not only was supportive of the credibility of the multiple victims’ testimony at trial, but it also provided the jury with a more complete picture of defendant’s history, particularly regarding his sexual interest in young girls.” Id. at ___.

•​People v Beck, 510 Mich 1 (2022):

The defendant’s first trial in 2016 for two counts of CSC-II was declared a mistrial. Beck, 510 Mich at 7. After the 2016 mistrial and before his retrial on those charges, the defendant was charged with CSC-I (two counts) and CSC-II (one count). Id. at 8-9. The defendant was tried at a single trial for the charges he faced at the first trial (that ended in a mistrial) and the charges that arose after the mistrial as he was awaiting retrial on the initial charges. Id. At the retrial in 2017, the defendant was convicted of all charges—those in the mistrial and those that arose in the interim. Id. at 10. Ultimately, however, the Michigan Supreme Court vacated the convictions resulting from the 2016 charges because “the trial court did not adequately find a justification for mistrial that outweighed the defendant’s interest in continuing the trial.” Id. at 15. Consequently, the prohibition against double jeopardy barred retrial on the original charges. Id. at 16.

The defendant asserted that he was entitled to a new trial on the 2017 charges because the 2016 convictions were vacated and evidence related to the 2016 charges would not have been admissible in a separate trial related to the 2017 charges. Beck, 510 Mich at 16. According to the defendant, the convictions for the 2017 charges were tainted by the admission of evidence of the 2016 charges at the defendant’s joint retrial. Id.

When a defendant is charged with committing a listed offense against a minor, MCL 768.27a allows for the admission of evidence “for its bearing on any matter to which it is relevant” that the defendant committed another listed offense against a minor. Beck, 510 Mich at 19. The victim of the 2016 charges against the defendant and the victim of the 2017 charges testified at the defendant’s retrial. Id. at 19-20. Further, although the defendant objected, the court permitted the defendant’s ex-wife and three of his other daughters to testify about their experiences with the defendant. Id. The evidence was relevant to the charges in the 2017 retrial, but the Court had also to examine the evidence as indicated by MRE 403. Beck, 510 Mich at 19. The Court analyzed the evidence under MRE 403 as instructed by the Court in People v Watkins (Watkins III), 491 Mich 450 (2012). Beck, 510 Mich at 19-26. Admission of the other-acts evidence under Watkins III required the Court to consider the dissimilarity, temporal proximity, frequency of the intervening acts, reliability of evidence in support of the other acts, and whether there was a need for evidence other than the testimony of the defendant and a complainant. Id. at 21. Under MCL 768.27a, and after the probative/prejudicial test of MRE 403, the Court concluded that evidence of the defendant’s conduct related to the 2016 charges and the testimony of other witnesses about the defendant’s conduct with them was properly admitted to show the defendant’s propensity to commit listed offenses against a minor. Beck, 510 Mich at 22. As a result, the convictions arising from the 2017 charges were valid. Id. at 32.

•​People v Hoskins, 342 Mich App 194 (2022):

Other-acts evidence arising from a previous conviction of a listed offense against a minor. The defendant was charged with two counts of CSC-I, two counts of CSC-II, and two counts of accosting a child for an immoral purpose for allegedly sexually abusing his stepdaughter when she was 11 years old or younger. Hoskins, 342 Mich App at 197. Pursuant to MCL 768.27a, the prosecution sought to have admitted at the defendant’s upcoming trial evidence that he had committed other listed offenses against a minor in 2002 when the defendant was age 18 and the victim involved was age 13. Hoskins, 342 Mich App at 198, 199. The defendant and the victim were not related “but had purportedly been in a dating relationship.” Id. at 199. At trial, the jury convicted the defendant of assault with intent to commit CSC and acquitted him of two counts of CSC-III. Id. at 199. The defendant moved to exclude the other-acts evidence from 2002, and the trial court denied his motion with regard to both the conviction and the acquittals. Id. at 199. “[T]he trial court cited [People v] Watkins on the record, stated that it had considered the Watkins factors, and referred to a number of these factors in support of its decision to deny [the defendant’s] motion.”¹⁵ Id. at 203. “The trial court also cited MRE 403 and discussed its application to evidence admissible under MCL 768.27a.” Hoskins, 342 Mich App at 203.

As applied to the facts in Hoskins, the Court of Appeals concluded that “the Watkins factors support admission of the evidence of [the defendant’s] 2002 conviction of assault with intent to commit CSC, although the temporal gap between that conviction and the present case weighs in favor of exclusion.” Hoskins, 342 Mich App at 209 (17 years had passed between the defendant’s conduct in 2002 and the defendant’s conduct involving his stepdaughter in 2019). “[T]he trial court did not abuse its discretion by finding that the probative value of this other-acts evidence was not substantially outweighed by the risk that it would unfairly prejudice [the defendant].” Id. at 210.

Other-acts evidence related to previous criminal charges against the defendant for commission of a listed offense against a minor, charges resulting in the defendant’s acquittal. Under certain circumstances, evidence that a defendant previously committed a listed offense against a minor may be admitted against a defendant at trial, even when the defendant was acquitted of charges brought a result of that conduct. Hoskins, 342 Mich App at 208. However, as with other evidence offered under MCL 768.27a, evidence of a prior acquittal is subject to analysis under MRE 403. Hoskins, 342 Mich App at 203. In Hoskins, the trial court abused its discretion when it permitted the introduction of evidence for crimes resulting in the defendant’s acquittal. Id. at 215, 216con. A defendant who has been acquitted of an offense “enjoys a number of constitutional protections that impact [the] calculus of unfair prejudice under MRE 403.” Hoskins, 342 Mich App at 213. According to the Court, under the circumstances in Hoskins, the application of MRE 403 to evidence that arose from charges resulting in acquittals “present[ed] a particularly unique risk of unfair prejudice, one which substantially outweigh[ed] the evidence’s probative value.” Hoskins, 342 Mich App at 212-213.

When deciding on the admissibility of evidence arising from a charged offense for which a defendant was acquitted, the following factors merit consideration:

•​An acquitted individual is presumed innocent of the acquitted charge. Hoskins, 342 Mich App at 213. An individual acquitted of an offense may not be tried again for that offense, and an individual acquitted of an offense may not be subject to an increased sentence based on the acquitted conduct. Id. at 213. Evidence of a prior conviction means that a fact-finder determined that a defendant was guilty of the offense beyond a reasonable doubt, while an acquittal means that the fact-finder was unable to determine that a defendant was guilty of an offense beyond a reasonable doubt. Id. at 211, n 9. Consequently, “[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.” Id. at 213.

•​Requiring a defendant to again defend against a matter previously decided. Admitting evidence of a defendant’s previous acquittal is unfairly prejudicial because the accused “must again defend against allegations of which he or she has already been acquitted.” Hoskins, 342 Mich App at 213. In Hoskins, the 17 years that passed between the acquitted conduct and the conduct giving rise to the instant charges would make the acquitted conduct difficult to defend, and having to defend against conduct that occurred two decades before the instant conduct “risks prejudicing [the defendant’s] ability to present a full and adequate defense against the charges that he currently faces.” Id. at 214. The defendant would be required to invest time and money litigating a matter decided at his first trial involving a different victim, “an inequitable outcome that MRE 403 is designed to prevent.” Hoskins, 342 Mich App at 214.

•​Possibility that a jury would convict on the basis of conduct involved in offenses for which the defendant was acquitted. Hoskins, 342 Mich App at 214. When 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.

•​People v Watkins (Watkins III), 491 Mich 450 (2012), aff’g People v Watkins (Watkins II), 277 Mich App 358 (2007):

The defendant was charged with CSC-I and CSC-II for the alleged sexual abuse of a 12-year-old girl in his neighborhood. Watkins II, 277 Mich App 359-360. The trial court refused to allow as similar-acts testimony, the testimony of a witness who was sexually assaulted by the defendant when she was 15 years old and who continued in a sexual relationship with the defendant for two years. Id. at 361. The trial court ruled that the witness’s testimony was not admissible under either MRE 404(b) or MCL 768.27a because the proposed testimony was too different from the victim’s description of the charged acts to prove a common plan or scheme. Watkins II, 277 Mich App at 362, 365. The Watkins II Court was ordered to consider “‘whether MCL 768.27a conflicts with MRE 404(b) and, if it does, whether the statute prevails over the court rule.’” Watkins II, 277 Mich App at 362, quoting People v Watkins (Watkins I), 479 Mich 853, 853 (2007). The Court of Appeals determined that MCL 768.27a controlled over MRE 404(b) “[b]ecause MCL 768.27a is a substantive rule of evidence deeply rooted in weighty policy considerations[.]” Watkins II, 277 Mich App at 365. Although the witness’s testimony was inadmissible under MRE 404(b) because of the dissimilarities between the defendant’s conduct with the witness and the defendant’s conduct with the victim, similarity is not a consideration under MCL 768.27a. Watkins II, 277 Mich App at 365. The Court instructed the trial court, on remand, to determine which aspects of the witness’s testimony were related to the commission of an offense to which MCL 768.27a applied, and to admit those aspects of the witness’s testimony at the defendant’s trial. Watkins II, 277 Mich App at 365.

The Michigan Supreme Court affirmed. Watkins III, 491 Mich at 456. The Court noted that “the language in MCL 768.27a allowing admission of another listed offense ‘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.” Watkins III, 491 Mich at 470. “[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,” while MRE 404(b) is a procedural rule “designed to allow the adjudicatory process to function effectively,” Watkins III, 491 Mich at 474, 476 (quotation marks and citation omitted). “Thus, the statute establishes an exception to MRE 404(b) in cases involving a charge of sexual misconduct against a minor.” Watkins III, 491 Mich at 471. “MCL 768.27a does not run afoul of Const 1963, art 6, § 5[.]” Watkins III, 491 Mich at 476-477.

The Watkins III Court additionally held that “evidence admissible pursuant to MCL 768.27a may nonetheless be excluded under MRE 403 if ‘its probative value is 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.’” Watkins III, 491 Mich at 481, quoting MRE 403. “[W]hen applying MRE 403 to evidence admissible under MCL 768.27a, courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect. That is, other-acts evidence admissible under MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows a jury to draw a propensity inference.” Watkins III, 491 Mich at 487.

•​People v Solloway, 316 Mich App 174 (2016):

When a defendant is accused of committing a listed offense against a minor, “[MCL 768.27a] allows the prosecution to offer evidence of another sexual offense committed by the defendant against a minor without having to justify its admission under MRE 404(b).” Solloway, 316 Mich App at 192. At the defendant’s trial for CSC-I against his nine-year-old son, the trial court properly admitted evidence under MCL 768.27a showing that the defendant had been convicted of CSC-IV after he inappropriately touched his nephew when his nephew was nine years old and living with the defendant. Solloway, 316 Mich App at 178-179, 192-193.

On appeal, the Court held that the other-acts evidence was relevant because evidence that the defendant had previously assaulted a nine-year-old relative “‘[made] it more probable that he committed the charged offense’ against [his son], who was also related to defendant and the same age as defendant’s nephew at the time of the assault.” Solloway, 316 Mich App at 193, quoting Watkins III, 491 Mich at 470. The evidence was also relevant to the victim’s credibility because “[t]he fact that defendant committed a similar crime against his nephew made it more probable that [his son] was telling the truth.” Solloway, 316 Mich App at 193.

The factors outlined in Watkins as applied to the facts in Solloway favored admission. Solloway, 316 Mich App at 194-196. First, the other acts and the charged crime were similar—the victims were the same age, the defendant was related to both of them, the offenses occurred at a time when the victims were living with the defendant, and both offenses “involved defendant entering the victim’s bedroom in the middle of the night, climbing on top of him, and engaging in some sort of inappropriate touching.” Id. at 194-195. Second, the fact that the acts occurred 12 years apart did not bar admission under MRE 403 in light of the similarity of the acts. Solloway, 316 Mich App at 195. Third, the defendant’s nephew testified that the inappropriate touching occurred multiple times; “[t]herefore, it cannot be said that the other acts occurred so infrequently as to support exclusion of the evidence.” Id. Fourth, there were no intervening acts that weighed against admissibility. Id. Fifth, the defendant did not challenge his nephew’s credibility; instead, the defendant’s nephew’s reliability was supported because the defendant pleaded guilty to CSC IV against his nephew. Id. at 195-196. Sixth, “because there were no eyewitnesses to corroborate [his son’s] testimony and to refute defendant’s theories in regard to the physical evidence of the crime, there was a need for evidence beyond [his son’s] and defendant’s testimony.” Id. at 196.

•​People v Duenaz, 306 Mich App 85 (2014):

After application of the Watkins factors, the Court of Appeals concluded that the trial court did not abuse its discretion by admitting evidence under MCL 768.27a that the defendant allegedly assaulted his 13-year-old stepdaughter a few months before he was charged with assaulting a nearly eight-year-old child, and that he was convicted in Arizona of child molestation against a different child after the conduct in the charged offenses occurred. Duenaz, 306 Mich App at 97-98, 100-101. The assaults in the charged offenses and the assaults of his stepdaughter were similar—both involved anal and vaginal penetration, the defendant threatened both victims with harm to them or their families if they told anyone of the assaults, and less than six months had elapsed between assaults of his stepdaughter and assaults of the victim of the charged offenses. Id. at 100. The age difference between the victims was not “very” material. Id. Evidence of the defendant’s previous conviction was also properly admitted even without detailing the offense because the offense in Arizona and the charged offenses were of the same general category (sex crimes against a child), the evidence tended to make the victim’s story more believable, and the evidence was not “too far removed temporally from the instant offenses in Michigan.” Id. at 101.

•​People v Gaines, 306 Mich App 289 (2014):

The trial court did not abuse its discretion by admitting evidence of uncharged offenses involving each of the three victims in a consolidated trial. Gaines, 306 Mich App at 301-303. “[I]n each case defendant formed a relationship with a much-younger girl at his high school,” the defendant and the victims each “used cell phones and text messaging to communicate,” and the defendant’s misconduct with each victim “occurred close together in time[.]” Id. at 303. “The other-acts evidence was also reliable because much of it was confirmed by the messages exchanged between defendant and the victims.” Id.

•​People v Mann, 288 Mich App 114 (2010):

Evidence that the defendant previously committed a listed offense against a minor was properly admitted under MCL 768.27a in the defendant’s trial for CSC-I and CSC-II involving two minor victims. Mann, 288 Mich App at 117-119. “The challenged evidence was relevant because it tended to show that it was more probable than not that the two minors in this case were telling the truth . . . . The challenged evidence also made the likelihood of [the defendant’s] behavior toward the minors . . . more probable.” Id. at 118. In addition, the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. Id. Notably, “the trial court specifically instructed the jury on two occasions that the only purpose for which the evidence could be considered was to help them judge the believability of the testimony regarding the acts for which [the defendant] was on trial.” Id. The trial court further limited any prejudicial effect of the evidence “by ensuring that the videotape of [the defendant’s] guilty plea to the prior offense was not played for the jury.” Id. at 119.