The Court split 4-3 in deciding that a state statute permitting propensity evidence against defendants accused of sex crimes against minors is valid, and thus trumps MRE 404(b)’s prior bad acts prohibition.
The decision affirmed the Court of Appeals in People v. Watkins and reversed People v. Pullen. MCL 768.27a(1) permits introduction of propensity evidence relating to prior bad acts against minors in cases where the defendant is accused of one of a list of sex offenses against a minor. The Court held, in Justice Zahra’s majority opinion, that this statute trumps MRE 404(b), which would otherwise prohibit such evidence. To do so, the Court further held that this law doesn’t impermissibly intrude on its court-rule-making prerogative in the Michigan Constitution. The majority, joined by Justices Young, Markman, and Mary Beth Kelly, found that MCL 768.27a(1) reflected a substantive policy decision to protect children, which is a valid power of the Legislature. Conversely, the majority held that the statute is not an invalid usurpation of the court’s ability to administer the conduct of trials and referee evidence admissibility.
Finally, the Court confirmed that evidence admitted under this statute remains subject to the prejudicial effect v. probative value test in MRE 403. However, because of the statute, the propensity factor actually weighs in favor of probative value, not prejudicial effect, under the MRE 403 test. In footnote 2, the Court noted that with the conclusion that MRE 403 still applies, it avoided the question of whether the statute would be invalid, as depriving defendants of due-process rights to a fair trial. (However, this still seems to leave open individual, as-applied challenges to the statute.)
The dissent, authored by Justice Marilyn Kelly and joined by Justices Cavanagh and Hathaway, argued that MCL 768.27a(1) impermissibly intruded upon the Court’s rule-making providence, and therefore could not be upheld.
The Michigan Supreme Court also granted two applications in criminal cases, both examining assessment of 50 points for offense variable 7, MCL 777.37(1)(a), for acts beyond those necessary to commit the offense.