Other Acts Against Minors as Evidence: MCL 768.27a

MCL 768.27a is a Michigan statute that applies when a defendant is accused of committing a listed offense against a minor. In that kind of case, 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."^[1] The Michigan Supreme Court has held that this allows the evidence to be used to show propensity, which the ordinary rule on other acts forbids.^[2][3]

This page explains when the statute applies, what the prosecution has to disclose and when, how a judge decides whether to exclude the evidence, and what the jury is told.

When does MCL 768.27a apply?

Two conditions come from the statute's text. The defendant must be "accused of committing a listed offense against a minor," and the other-acts evidence must be that the defendant "committed another listed offense against a minor."^[1]

• "Minor" means an individual less than 18 years of age.^[8]
• "Listed offense" has the meaning given in section 2 of the Sex Offenders Registration Act, which defines it as a tier I, tier II, or tier III offense.^[8][9] The tiers are explained in SORA tiers in Michigan.

The section was added by 2005 PA 135 and took effect January 1, 2006.^[8] A separate statute, MCL 768.27b, covers other acts of sexual assault without requiring that the victim be a minor; see other acts of sexual assault under MCL 768.27b.

How is this different from the usual rule on "prior bad acts"?

Under MRE 404(b), evidence of another 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." It may be admissible for another purpose, such as proving motive, intent, scheme or plan, identity, or absence of mistake.^[10]

MCL 768.27a works differently. This page relies on the Sexual Assault Benchbook's quotations of People v Watkins, a 2012 Michigan Supreme Court decision. According to those passages, "MCL 768.27a permits the admission of evidence that MRE 404(b) precludes": the statutory phrase "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."^[3] The Court concluded that the statute "irreconcilably conflicts with MRE 404(b)" and that "the statute prevails over the court rule."^[2]

	MRE 404(b)	MCL 768.27a
Use to show character or propensity	Not admissible for that purpose[10]	Permitted, according to Watkins[3]
Kind of case	Any case; in a criminal case the prosecutor gives notice of the permitted purpose[11]	Defendant accused of a listed offense against a minor[1]
Pretrial notice	In writing at least 14 days before trial, unless excused for good cause[11]	Disclosure at least 15 days before the scheduled trial date, or later for good cause[6]
MRE 403 balancing	Applies; the court may exclude relevant evidence under that rule[12]	Applies, with the propensity inference weighed in favor of probative value[2]

What notice does the prosecution have to give?

If the prosecuting attorney intends to offer evidence under the statute, he or she "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."^[6]

The Sexual Assault Benchbook reports that, under the Court of Appeals decision in People v Gaines, the statute does not require the other-acts evidence to be listed in the notice of intent and does not preclude disclosure by reference to police reports or other discovery.^[13] General discovery rules are explained in the sister guide's page on discovery in Michigan criminal cases.

Can the judge still keep the evidence out? The Watkins factors

Yes. The benchbook quotes the Supreme Court's later order in People v Uribe, itself quoting Watkins, that "the statute does not mandate the admission of all such evidence"; whether and which evidence is considered is "a matter of judicial discretion," guided by the rules of evidence other than MRE 404(b), "including MRE 403 and the 'other ordinary rules of evidence, such as those pertaining to hearsay and privilege.'"^[5]

MRE 403 allows a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.^[12] Watkins changes one thing about how that rule is applied here: "courts must weigh the propensity inference in favor of the evidence's probative value rather than its prejudicial effect."^[2]

Watkins then lists considerations that may lead a court to exclude the evidence under MRE 403, and says the list "is meant to be illustrative rather than exhaustive":^[4][14]

1. The dissimilarity between the other acts and the charged crime.^[4]
2. The temporal proximity of the other acts to the charged crime.^[4]
3. The infrequency of the other acts.^[4]
4. The presence of intervening acts.^[4]
5. The lack of reliability of the evidence supporting the occurrence of the other acts.^[4]
6. The lack of need for evidence beyond the complainant's and the defendant's testimony.^[4]

The list is not a checklist that replaces the rule. In Uribe the Supreme Court said the list "provides a tool to facilitate, not a standard to supplant" the MRE 403 analysis, and the benchbook reports that the trial court there abused its discretion by excluding the evidence on the listed considerations without conducting an MRE 403 analysis.^[15] A court may also consider whether charges were filed or a conviction rendered.^[15]

Other acts that ended in an acquittal

The Sexual Assault Benchbook summarizes a 2022 Court of Appeals decision, People v Hoskins, on this point. As the benchbook describes it, evidence of a prior listed offense may in some circumstances be admitted even where the defendant was acquitted of charges based on that conduct, but such evidence is subject to MRE 403, and in Hoskins the trial court abused its discretion by allowing evidence of crimes that had resulted in acquittal.^[16]

Hearsay and privilege still apply

The statute decides whether other-acts evidence is barred as character evidence. It does not decide how the other act is proved. Uribe's quotation of Watkins names the rules "pertaining to hearsay and privilege" among those that continue to guide the court.^[5] Hearsay basics are covered in the sister guide's page on hearsay and the Confrontation Clause.

What is the jury told?

The benchbook notes, citing Watkins, that the trial court may instruct the jury with M Crim JI 20.28a, the standard instruction on evidence of other acts of child sexual abuse.^[17] That instruction says:

• Before jurors may consider the alleged acts as evidence against the defendant, they "must first find that the defendant actually committed those acts."^[7]
• If they find the defendant did commit them, they "may consider them in deciding if the defendant committed" the charged offense.^[7]
• They "must not convict the defendant here solely because" they think the defendant "is guilty of other bad conduct."^[7]

A different instruction, M Crim JI 20.28, applies when uncharged sexual acts between the defendant and the same complainant are admitted for a limited purpose; it tells jurors to consider that evidence only to help judge the believability of the complainant's testimony about the charged acts.^[18] The other instructions given in these trials are discussed in what happens at a CSC trial.

What people get wrong

"Prior acts can never be used to show someone is the type." That is the general rule in MRE 404(b), but it is not the rule in a case covered by MCL 768.27a.^[10][3]

"If the statute applies, the evidence always comes in." The statute does not mandate admission, and the court's MRE 403 analysis remains its responsibility.^[5][15]

"The jury can convict because of the other acts." The model instruction says the opposite: jurors must not convict solely because they think the defendant is guilty of other bad conduct.^[7] How the burden of proof and witness credibility are explained to jurors is covered in cases without other witnesses.

Other evidence rules that come up in the same cases are covered in Michigan's rape shield law and the tender-years rule, and the defenses that may be raised are outlined in defenses to sex crime charges.