Properly admitting or excluding other acts evidence can make or break a criminal case. Was the charged offense an accident? Perhaps a misunderstanding? Is the victim telling the truth? Has the defendant done something like this on another occasion? Often, it is other acts evidence — in combination with the charged offense — that provides the answers to these questions and leads the jury to their verdict. Because of this, it is critical that when the prosecution or the defense utilizes or attacks other acts, they do so properly. This article examines MRE 404(b), MCL 768.27a, and MCL 768.27b and provides guidelines for how criminal practitioners can attempt to admit or exclude other acts evidence.

MRE 404(B)

MRE 404(b) prohibits admitting “[e]vidence of other crimes, wrongs, or acts” to show that a person acted in conformity with their character.¹ This is often called the character-to-conduct inference or, simply, propensity. However, MRE 404(b) permits the admissibility of other acts for purposes besides a character-to-conduct inference.² Permissible purposes include, but are not limited to, “proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material.”³ Other acts can be from before, after, or contemporaneous with the charged offense.⁴

While MRE 404(b) is a rule of inclusion,⁵ not exclusion, in People v. VanderVliet⁶, the Michigan Supreme Court provided a four-pronged test to ensure that MRE 404(b) evidence is properly admitted or excluded:

First, the prosecutor must offer the prior bad acts evidence under something other than a character or propensity theory. Second, the evidence must be relevant under MRE 402, as enforced through MRE 104(b). Third, the probative value of the evidence must not be substantially outweighed by unfair prejudice under MRE 403. Finally, the trial court, upon request, may provide a limiting instruction under MRE 105.⁷

Thus, when prosecutors seek to admit other acts evidence under MRE 404(b), their focus should be on articulating how the proffered evidence satisfies this test. Correspondingly, the opponent of the other acts evidence should focus on why the proffered evidence does not meet these elements.

MRE 404(b)(2) imposes a notice requirement for the use of other acts evidence offered under MRE 404(b). It states that the prosecution must provide notice at least 14 days before trial, or later if the trial court excuses the delay based on good cause shown.⁸ Even though MRE 404(b)(2) only imposes a notice requirement as a practical matter, a notice does not, without more, give the trial court a meaningful opportunity to apply the VanderVliet test.

For this reason and others, I have long advised that the best practice for giving notice is to file a motion, supporting brief, and notice of hearing. In contrast to the practice of merely filing a notice, this gives the defense a meaningful opportunity to answer a motion, file a brief in opposition, and appear for a hearing. This practice also creates a better appellate record.

While MRE 404(b) is treated as a rule only for prosecutors to admit other acts of the defendant,⁹ it is worth noting that through proper application of MRE 402 and MRE 403, it is possible for defendants to offer other acts evidence for a reason other than propensity. For example, in People v. Masi,¹⁰ the Michigan Court of Appeals found that other acts of the victim were potentially admissible under MRE 402 and MRE 403 for the purpose of explaining a child sexual assault victim’s advanced sexual knowledge. The admissibility inquiry here will partially mirror a VanderVliet analysis because of the MRE 402 and MRE 403 inquiries.

Practitioners should also be careful not to impute the word "bad" into MRE 404(b). MRE 404(b) does not have a requirement that the other act be bad; instead, it includes “crimes, wrongs, or acts” that may give rise to a character to conduct inference.¹¹ While it is true that the inference to be drawn is often a bad one, that doesn’t mean that the act itself has to be. Further, imputing the word “bad” into MRE 404(b) can lead to prosecutors taking an improperly narrow view of what is MRE 404(b) evidence and what is not. For example, an overly narrow view of other acts evidence under MRE 404(b) could lead to a prosecutor not properly noticing the other acts (or ideally moving to admit them.)

Similarly, defense counsel asserting that the proffered evidence is not an other act as contemplated by MRE 404(b) can have negative consequences. It should be remembered that if something is not MRE 404(b) evidence, it might still be admissible as direct evidence implicating the defendant of the charged offense. If defense counsel strives to characterize other acts as being outside of MRE 404(b), they might be admissible as direct evidence of guilt.¹² Such a mistake could ultimately put the defendant in a worse position than they would have been in with the scrutiny of an analysis under MRE 404(b) and the option of a limiting jury instruction under the last prong of VanderVliet.

Lastly, both prosecution and defense should remember the defense in the case might dictate whether evidence under MRE 404(b) is admissible. MRE 404(b)(2) states that “[i]f necessary to a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant’s privilege against self-incrimination.”

This goes to an examination of MRE 402 and MRE 403, the second and third VanderVliet prongs. For example, if the defense is that the defendant lacked the requisite intent for the charged offense, other acts that tended to show intent and lack of mistake or accident will become particularly relevant and probative.

MCL 768.27A AND MCL 768.27B

Another commonly utilized mechanism to admit other acts is MCL 768.27a or MCL 768.27b. As with MRE 404(b), both statutes deal with other acts that can occur before, after, or contemporaneous with the charged offense, and each has a notice requirement that is best met with a motion, brief, and notice of hearing.¹³ This is particularly true given the multitude of factors and rules that apply when examining admissibility of evidence under these statutes.

MCL 768.27b allows trial courts to admit other acts of domestic violence or sexual assault during the defendant’s trial for domestic violence or sexual assault. The evidence is admissible for any relevant purpose as long as it is not excluded by MRE 403.¹⁴ MCL 768.27a allows trial courts to admit evidence of certain listed offenses against a minor when the defendant is charged with committing a listed offense against a minor.¹⁵ The evidence “may be considered for its bearing on any matter to which it is relevant.”¹⁶ Because of this language, other acts admitted under these statutes can be considered for propensity, unlike other acts under MRE 404(b).

Trial and appellate courts often rely on reasoning regarding one statute to inform reasoning and decisions regarding the other. For example, in People v. Cameron,¹⁷ the Court of Appeals found that the trial court properly admitted other acts of domestic violence during Cameron’s domestic violence trial. In doing so, the Court of Appeals examined MRE 403 as required by MCL 768.27b, but it also relied heavily on reasoning from a case that dealt with MCL 768.27a.

Then, in People v. Watkins,¹⁸ the Michigan Supreme Court set forth a non-exhaustive list of factors for trial courts to use when determining the admissibility of other acts under MCL 768.27a¹⁹:

(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.²⁰

Watkins also held that when analyzing MRE 403 in the context of other acts, courts must weigh the propensity inference in favor of the other acts evidence’s probative value; courts must consider the extent to which the other acts evidence supports the victim’s credibility and rebuts the defendant’s attacks; and courts must weigh each act alleged in an other acts motion individually rather than lumping them together and excluding them all if one component of an other act is particularly egregious or unfairly prejudicial.²¹ While it might be easy to focus on MRE 402, MRE 403, and the Watkins factors, these rules are equally important. Though it might seem counterintuitive, the propensity inference under Watkins weighs in favor of admissibility under MRE 403. In terms of lumping other acts together, practitioners and courts should be mindful to view other acts individually. There is room for creative rulings that might exclude some aspects of proffered evidence while admitting others.

In the years following Watkins, the Court of Appeals and trial courts regularly utilized the Watkins factors for reviewing trial court decisions under MCL 768.27b even though Watkins was a MCL 768.27a case. In 2021, the Michigan Supreme Court in People v. Propp²² clarified that courts must also consider the applicability of other rules, statutes, and laws when weighing whether evidence noticed under MCL 768.27b is admissible.²³ Because of this, criminal practitioners should utilize any applicable Watkins factors along with MRE 402 and 403 when arguing the admissibility of other acts under MCL 768.27a and MCL 768.27b.

Finally, in People v. Hoskins,²⁴ the Court of Appeals stated that while an acquittal did not necessarily make other acts unreliable, an acquittal could be considered in the context of making a finding regarding reliability. Because of this, when a prosecutor tries to admit other acts that resulted in an acquittal (or have yet to result in a conviction), it would help to focus on any alleged facts that lend reliability to the other act despite the lack of conviction or acquittal. On the defense side, the opposite is true. If the defense can show that there was an acquittal and elements of factual unreliability, the absence of reliability will weigh toward exclusion. For example, if there was some other act that resulted in an acquittal but the offense was recorded on video, that would lend factual reliability in spite of acquittal.

CONCLUSION

Proper argument and ruling on the admissibility of other acts under MRE 404(b), MCL 768.27a, and MCL 768.27b can make or break a criminal case by either providing insight into the charged offense or letting the charged offense stand on its own merits. Thus, we reach a more just result when each party argues their positions appropriately and in accordance with the applicable law.