MCL 768.27a prevails over MRE 404(b)

In People v Watkins, ___ Mich ___ (#142031, 6/8/2012) the Supreme Court held that MCL 768.27a irreconcilably conflicts with MRE 404(b) and that the statute prevails over the court rule.   The Court held that evidence admissible under MCL 768.27a remains subject to MRE 403, but that courts must weigh the propensity inference in favor of the evidence’s probative value rather than its prejudicial effect.  

MCL 768.27a(1), provides that 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.  Listed offense’ means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.” MCL 768.27a(2)(a).

Evidence admissible pursuant to MCL 768.27a may 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.”

There are several considerations that may lead a court to exclude such evidence under MRE 403. These considerations 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.  This list of considerations is meant to be illustrative rather than exhaustive.