*1
Mich 450
v WATKINS
PEOPLE
v PULLEN
PEOPLE
(Calendar
Argued
and
November
Nos. 142031
142751.
Docket
10).
June
2012.
9 and
Decided
Nos.
Wayne
charged
Court with five
in the
Circuit
Watkins was
Lincoln
(CSC-I),
first-degree
MCL
conduct
criminal sexual
counts of
second-degree
750.520b(l)(a),
criminal sexual
and one count
having
750.520c(l)(a),
allegedly
(CSC-II),
for
sexual
MCL
conduct
girl.
prosecutor
12-year-old
moved to admit
a
The
with
intercourse
EW,
testimony
acts,
who
which included
evidence of similar
repeatedly had intercourse with
that Watkins
would have stated
court,
years
E
beginning
old. The
Carole
when she was
her
testimony
Youngblood, J.,
EW’s
inadmissible be-
ruled that
was
activity
from the victim’s
too different
cause it described
was
plan
description
charged
prove
or scheme
acts to
a common
of the
404(b),
prohibits the
of evidence of
which
admission
under MRE
person
crimes, wrongs,
prove
of a
in
acts to
the character
other
granting
conformity
therewith. After
order to
action in
show
interlocutory appeal,
prosecution’s application
file an
for leave to
reversing
Appeals
peremptory
order
the Court of
entered
testimony
remanding
for the
exclusion of EW’s
trial court’s
testimony
to which EW’s
was
trial court to determine
extent
768.27a,
court
allows a
to admit
under MCL
which
admissible
of criminal sexual conduct
a defendant accused
evidence that
if the evidence is
had committed other such acts
a minor
Court,
appealed
Supreme
in
which vacated
relevant. Watkins
Appeals
to the
and remanded
case
Court
order
404(b)
with
of whether
768.27a conflicts
consideration
and,
prevails
so,
over the court rule. 479
if
statute
whether the
(2007).
PJ.,
Jansen,
Appeals,
The
O’Connell
Mich
Court
JJ.,
Hood,
rule of
held that
substantive
and Fort
768.27a
in which
conflicts
and therefore controls
situations
404(b).
part,
Appeals affirmed in
reversed
The Court of
with MRE
it to determine
part,
case to the trial court for
and remanded the
testimony
proposed
aspects
related to the commission
of the
which
768.27a, which
be admissible
under MCL
would
of listed offenses
(2007).
initially
Supreme
App
Court
at trial. 277 Mich
granted
appeal,
(2008),
leave to
Judgments in Pullen vacated and case remanded for further proceedings. joined by Justice Cavanagh Justices Marilyn Kelly, dissenting, agreed majority with the Hathaway, 404(b) irreconcilably 768.27a and MRE conflict but would have held that legislative MCL 768.27a is an unconstitutional intru- power judiciary because, regardless sion into the policy supporting substantive, whether the concerns it were its only they may function is to tell the courts what evidence admit proceeding. in a court She would have vacated the convictions in *4 Watkins and remanded that case for a new trial and would have judgments affirmed the lower court in Pullen that excluded the substantially prejudicial pro- other-acts evidence as more than
bative MRE under 403. Mich 450 — — — Other-Acts Criminal Sexual Conduct 1. Criminal Law Evidence Evidence. 768.27a, a defen- the admission of evidence that MCL which allows charged against a minor committed dant with a sexual offense minor, against a is a substantive rule of another sexual offense irreconcilably prevails MRE conflicts with and over evidence that 404(b), requires evidence if its the exclusion of other-acts which only propensity character or relevance is to show defendant’s charged offense. commit the — — — 2. Criminal Law Evidence Criminal Sexual Conduct Other-Acts — op op Evidence Exclusion Evidence Other-Acts Evidence. 768.27a, allows the admis- Evidence admissible under MCL which charged sion of evidence that a defendant with a sexual offense minor, against a a minor committed another sexual offense may probative if value is substan- be excluded under 403 its tially outweighed by danger prejudice, the of unfair confusion of issues, misleading jury the or of undue the considerations delay, time, presentation cumulative waste of or needless of evidence; applying when MRE 403 to evidence admissible under 768.27a, weigh propensity courts must the inference favor prejudicial probative than its effect of the evidence’s value rather overly may prejudicial merely the as and not exclude evidence inference; jury propensity because it allows a to draw a the may evidence be excluded on the basis of other considerations that (1) dissimilarity the and the include between other acts (2) crime, charged temporal proximity other acts to the (3) (4) crime, acts, charged infrequency the other (5) intervening acts, reliability presence of the lack of (6) acts, supporting evidence the occurrence of the other and beyond complainant’s lack of need for evidence and the testimony; apply balancing defendant’s should this to each courts separate piece and of evidence offered under MCL 768.27a deter- many separate pieces mine in the context of the entire trial how proba- be admitted under MCL 768.27a before the outweighed by tive value such evidence is other consider- permitting ations in MRE 403 exclusion of evidence. Schuette, Attorney General, Bursch, Bill John J. General, Kym Worthy, Prosecuting Solicitor L. Attor- Research, ney, Timothy Baughman, A. Chief of Training Appeals, for the Watkins. people *5 Opinion op the Court Rodwan) State Appellate (by Defender Gail for Lin- coln Watkins. Schuette,
Bill Attorney General, Bursch, John J. General, Solicitor Kurt Asbury, C. Prosecuting Attor- ney, Linton, and L. Sylvia Assistant Prosecuting Attor- ney, for the people Pullen. Associates,
Bay Justice (by P.C. Edward M. Czupryn- ski), for Richard Pullen.
Amici Curiae:
John R. Minock and Randy E. Davidson for the Criminal Defense Attorneys of Michigan. Schuette,
Bill Attorney General, John Bursch, J. General, Solicitor Bandstra, Richard A. Chief Legal Counsel, and Sands, Mark G. Assistant Attorney Gen- eral, for the Attorney General.
ZAHRA, J. These consolidated cases involve MCL 768.27a(l), which provides in part relevant “in a criminal case in which the defendant is accused of committing listed against minor, offense the defendant committed another listed offense against a minor is admissible may be considered for its bearing any on matter to which it is relevant.”1 We hold that MCL 768.27a irreconcilably conflicts with 404(b), which bars admission of other-acts evidence for the purpose of showing a defendant’s propensity to commit acts, similar and that the statute prevails over the court rule because it imper- does not missibly infringe on this authority Court’s regarding
“1 ‘Listed offense’ means that term as defined in section 2 of the sex
registration
act,
295,
offenders
PA
MCL 28.722.” MCL
768.27a(2)(a).
The summarized the Appeals Court presented at prosecution sexual abuse pretrial stage: conclusion, whether, need not address if evidence Given this we subject MRE under MCL 768.27a were the statute admissible right due-process to a fair trial or interfere
would violate a defendant’s judicial power defendant receives a fair to ensure that a criminal with trial. 13). 750.520b(l)(a) age (involving person under the MCL 13). 750.520c(l)(a) age (involving person under the Opinion of the Court
The victim in the
12-year-old girl
instant case
awas
family
whose
lived next door to defendant and whose father
was
partner.
defendant’s business
The victim had known
defendant and
years
his wife since she was two
old and
regarded
figure.
defendant as a father
The
babysat
victim
youngest
defendant’s
May
child. In
defendant
picture
showed her a
penis being
of his
inserted into a
vagina.
day,
The next
playing
while she
games
was
video
with
daughter
bedroom,
defendant’s
in his
he touched her
day
breasts. The
after that
again
incident the victim was
babysitting at defendant’s house when defendant sent his
daughter
room,
into another
unbuttoned the victim’s
pants, and
pull
get
told her to
them down and
on his bed.
up
pulled
She stood
pants,
down her
and when she
over,
bent
defendant
penis
vagina
inserted his
into her
repeatedly
from behind
ejaculated.
until he
She and defen
engaged
dant
again
intercourse
in his bedroom the
following day
babysitting
while she
daughter.
was
his
victim claimed
engaged
that she and defendant
in inter
yet
course
another time in defendant’s bedroom and one
living
time in his
alleged that,
room. The victim
about two
later,
weeks
sex,
defendant asked her if she wanted to have
but she declined
menstruating.
because she was
The victim
claimed that defendant nevertheless instructed her up
skirt, and,
stand
and lift her
complied,
when she
he
penis
inserted his
vagina.
into her
The victim asserted that
*7
she worried that
might
defendant
force her to have sexual
future,
in
intercourse
so she told her mother that she
defendant.[5]
having
had been
relationship
a sexual
with
trial,
Before
prosecution
filed a motion to intro
duce evidence of other acts to establish a common plan
404(b).
scheme,
or
permitted
as
under MRE
In particu-
5 People Watkins,
(2007).
App 358, 360;
277 Mich
prove person the character aof in order to show action in conformity may, however, therewith. It be admissible for other purposes, proof motive, opportunity, intent, preparation, such as scheme, plan, system doing act, knowledge, identity, or in an or 491 MICH Opinion the Court witness, have a sought lar, prosecution EW^ in vaginal-penile engaged had also that Watkins testify L instant victim the her.7 ike with penetration had a close time, and she a minor at the action, was EW court The trial wife. with Watkins’s relationship The fol objection. motion over Watkins’s granted the at testimony offered of EW’s summary is a lowing trial: first defendant’s trial, that defendant’s wife is testified [EW]
At the first when she [EW]met defendant and that she her first cousin like a brother years defendant [EW] old. loved was On occasion babysat children. one for defendant’s often old, and his years visited defendant was 15 she when she their infant. helped them with the weekend and wife for her [EW], commented on defendant alone with While leading attractiveness, hand, began her took her sexual [EW] floor. was bedroom on the second up the stairs his pulled down her go upstairs, so defendant reluctant they vagina penis her while his into pants and inserted eventually moving to defen hallway. After still in the were bedroom, they having intercourse until continued dant’s episode began a ejaculated. that the [EW] stated defendant they during had sexual two-year relationship, which sexual home, at defendant’s 15 different times encounters about home, empty where defendant and in houses her mother’s her explained that defendant included painting. [EW] was park together, family; they an amusement in his went to together.[8] together, movies eat and watched went out to delib- trial, jury commenced Following the close of a verdict. Conse- unable to reach erations but was a mistrial. trial court declared quently, material, whether the same is mistake or accident when absence of with, crimes, contemporaneous wrongs, or or acts are other such subsequent at issue in the case. prior to the conduct testify regard sought prosecution to have a second witness also testimony appeal. ing is not at issue this evidence. That other-acts 8 Watkins, App at 361. *8 Opinion of the Court trial, At opening of his second Watkins moved for ruling the trial court to reconsider its on the other-acts 404(b). time, evidence under MRE This the trial court the motion. It reasoned that the other granted acts described too charged EW were dissimilar from the justify plan acts to their use to show a common scheme. The to file an prosecution applied leave interlocutory while the case trial appeal proceeded to for the second time.
The trial court declared a second mistrial when it
learned that a
juror
supervisor
had overheard a
office
prosecutor’s
comment about
court’s exclusion
riding
other-acts evidence while
in a courthouse
Meanwhile,
elevator.
Appeals peremptorily
Court of
reversed the trial court’s decision to exclude EW’s
testimony and remanded the case to the trial court with
instructions for it
aspects
to determine which
of EW’s
proposed testimony were admissible under MCL
768.27a as evidence of criminal sexual
conduct
a minor. Subsequently, this Court vacated the Court of
order
Appeals’
and remanded the case to the Court of
Appeals with directions
to consider whether MCL
404(b) and,
768.27a conflicted with
so,
if whether
prevailed
statute
over the rule of evidence.9
In a published opinion, the Court of Appeals held
404(b)
that MCL 768.27a conflicted with MRE
and that
the statute prevailed over the rule of evidence.10Accord
ingly, it remanded the case to the trial court to deter
mine under MCL 768.27a
aspects
which
of EW’s testi
mony related to the commission of a criminal
act
sexual
against a minor.
granted
This Court
to appeal,12
leave
(2007).
People Watkins,
v
but granted.13 pre- Watkins improvidently leave had been as the challenges all his constitutional previous served time. to trial for the third proceeded case victim, years old, then 15 trial, At the third life, having had known Watkins all her testified that she having occasionally babysat to him and lived next door good children. She also stated that she was one of his wife, with whom she considered her friends Watkins’s boyfriend. her Ac- godmother. She considered Watkins victim, old, cording years to the when she was Day gathering her at a Memorial approached Watkins on sexually explicit images and showed her were his cell She claimed that Watkins touched her phone. her babysat penetrated breasts the next time she after that. This conduct vaginally day allegedly the next consensually couple occurred weeks. thereafter, Sometime when the victim arrived to babysit, engage she declined Watkins’s to request menstruating. sexual because she was She activity testified that Watkins’s insistence disturbed her and he her. She told her mother thought might rape she happened. Although what had the victim did not want trouble, agreed speak to she to with the get Watkins police. testify
The trial regarding court allowed EW to According other-acts evidence under MCL 768.27a. EW; earlier, old, years years about 10 when she was 15 babysat had child. She she often Watkins’s oldest testi- that, during visit, fied one led her upstairs Watkins began kissing her, the hand. He and their allegedly penetration. interactions culminated in sexual Accord- EW, ing relationship couple their sexual lasted a years. (2008). Watkins, People Opinion op the Court
Watkins did not take the stand or call any witnesses. Defense counsel argued that the witnesses lacked cred- ibility because their statements were inconsistent and Ultimately, uncorroborated. the jury returned a verdict finding Watkins guilty of four counts of CSC-I and one CSC-II, count of but not guilty remaining count of CSC-I.
Watkins raised several arguments on appeal, includ- 404(b) ing that MCL 768.27a conflicts with MRE the rule of prevails statute; over the that EW’s testimony should have been excluded under MRE which the trial court failed consider; and that trial court failed to hold a hearing to determine the *10 proper scope of EW’s testimony.
The Court of Appeals affirmed in
unpublished
an
opinion per curiam.14 While agreeing with Watkins that
MCL 768.27a
404(b),
conflicts with MRE
rejected
argument
that the rule of evidence takes priority over
Instead,
the statute.
it observed that a previous panel
had already held
768.27a,
that MCL
as a substantive
evidence,
rule of
did not interfere with the Supreme
Court’s authority
regulate
court
and,
administration
therefore,
the statute takes priority over the rule of
evidence.15
regard
With
to MRE
it held that evi-
dence admissible under MCL 768.27a
subject
remains
to MRE 403.16Although acknowledging that
the trial
court had
failed to
apply
the Court of Appeals
reasoned that it had already decided the issue of admis-
sibility when it directed the trial court to determine
aspects
which
of EW’s testimony fit the requirements of
14 People Watkins, unpublished opinion per
v
curiam of the Court of
(Docket
Appeals,
291841).
issued October
No.
4, citing People
Pattison,
613, 619-620;
Id. at
App
276 Mich
(2007),
Watkins,
NW2d 558
App
at 364.
16 Watkins, unpub op at 5.
MCL 768.27a and stated concluded that EW’s Appeals Court of sible.17 The had the admissible even testimony have been would MRE 403: trial court considered another that defendant had assaulted The evidence it tended to show that it relevant because minor.. . was telling the probable than not that the victim was was more (E.W similarity relationships was defen- truth. The thought of his wife as cousin while the victim dant’s wife’s (taking operandi godmother) and defendant’s modus relationship with his advantage of minors who had a close sit) baby present home to also made and were in his wife defendant’s behavior toward the victim the likelihood of Moreover, probative value of the evi- probable. more substantially outweighed by danger of dence was not telling truth prejudice. the victim was unfair Whether significant probative deciding defen- had value whether the crimes for which he was dant should be convicted of Further, effectively charged. defense counsel was able to regarding thought of cross-examine E.W the fact that she boyfriend contact with defendant as her and maintained ended, relationship expressing even a desire him after their jury Finally, the court instructed the on to have his child. properly evidence^][18] acts how to use other Thus, testimony concluded that the Appeals the Court of than prejudicial probative relevant and not more was the trial court was harmless.19 any error the Court of concluded that the trial Finally, Appeals failed deter- had abused its discretion when it court *11 testimony require- mine met the aspects which EW’s testimony regarding ments of MCL 768.27a.20 EW’s intercourse with Watkins that occurred from the sexual 17 Id. 18 Id.
19 Id. at 6.
20 Id. at 6-7. Opinion of the Court and after not admissible years time she was 16 old was Nonetheless, as the Court of Ap- under the statute.21 incident only pro- for which EW peals explained, 15 years vided details occurred when she was specific Moreover, testimony regarding old.22 events that years from the time was 16 old and after occurred EW highlighted to the defense because it helpful was Accordingly, fact cared for it deeply that EW Watkins.23 testimony all of EW’s admitting held that the error justice.”24 substantial “was not inconsistent with We leave, instructing the to address granted parties (1) 404(b) and, if whether MCL 768.27a conflicts with (2) does, prevails whether the statute over the court (3) .., any . reference to MRE rule whether omission (as 768.27b(l)), compared 403 in MCL 768.27a to MCL mandating that evidence of other “is admis while offenses bearing any sible and be considered for its on matter relevant,” to which it is would violate a defendant’s due (4) trial, process right to a fair whether MCL 768.27a judicial power interferes with ensure that criminal trial, power exclusively defendant fair vested in receives a if. [25] 6, § the courts of this under state Const art B. DOCKET NO.
In Docket prosecution appeals by No. leave granted judgment Appeals of the Court of 750.520d(l)(a) provides: person guilty “A of criminal sexual degree person engages penetration conduct in the third if the in sexual with person... years age years [who] another is at least 13 and under 16 age.” old, Appeals explained, years As the Court of “after E.W turned 16 longer sexual acts described would no constitute a crime” under this provision and thus “would not constitute a listed offense admissible as other Watkins, unpub op acts evidence under MCL 768.27a.” at 7. 22 Id.
23 Id. at 7-8.
24 Id. at 8.
(2011).
People Watkins,
Opinion op the Court affirming opinion granting the trial court’s and order by defendant, in limine filed Richard Ken- motion charged neth Pullen. Pullen was with two counts aggravated expo- CSC-II26and one count of indecent allegedly against then sure27for acts committed his 12-year-oldgranddaughter. preliminary At the exami- nation, the victim testified that Pullen had touched her multiple breasts with his hands under her clothes times touching and that the started when she was five or six years old. She claimed that also Pullen touched her weekly “crotch” under her clothes on basis. With regard alleged exposure, to Pullen’s indecent the victim years that, old, testified when she was she saw touching penis Pullen in his the next room while on the computer and, time, at the Pullen knew she could see masturbating. him prosecution trial,
Before filed a notice intent to introduce under MCL 768.27a other acts of sexual Specifically, prosecu- misconduct a minor. sought policereport containing tion to introduce a 1989 allegations sexually that Pullen had abused his then 16-year-olddaughter. report, daughter In Pullen’s alleged multiple digital penetration instances of in virgin.” [she] which he “checked if In was still a report allegations addition, contained that defen- frequently daughter’s dant had breasts, touched his genital wrestling massag- buttocks, and area while ing repeatedly back, her had walked on her while she arranged expose undressed, was and had himself to bathing. Although appar- her when he was Pullen had ently engaging alleged admitted some of the conduct report, including digital penetration, in the criminal charges were never filed. 750.520c(l)(a) 13). (involving person age MCL under the 750.335a(2)(b). v Watkins Opinion op the Court
In response to the notice of intent to introduce the police report, Pullen filed a motion in limine to bar unduly prejudicial. evidence as The trial court granted Pullen’s motion and excluded the evidence. *13 concluding After perform balancing “must the test set forth in MRE 403 before admitting evidence 768.27a,” under MCL the trial court ruled that the 1989 police report failed to balancing: survive that opinion prejudicial
[I]t is the of this Court that the impact proffered by evidence substan- tially outweighs probative value because it involves more serious facts than those in the case at bar. [Pullen] is charged having with granddaugh- sexual contact with his ter, exposing granddaughter. as well as himself to his The police report long pattern from 1989 sets forth facts of by against daughter, [Pullen] sexual abuse including his multiple digital penetrations According .... police to the report, police [Pullen] admitted to perpetrated that he had upon these daughter. acts his Should this evidence be presented jury, highly probable to the it is jury that the would not separate be able to the two cases and would likely decide impact the case based on emotional rather logical Thus, than reasons. this evidence does not survive balancing test of MRE 403 and is not admissible. The fundamentally Court also finds that it would be unfair and process a violation of due [Pullen] to force to years defend from ago accusations over 20 for which charges [Pullen] were never filed. is in an untenable position try disprove to greatly more serious and dated charges. unlikely so, It is that he would be able to do and to require manifestly unjust. him to do so would be Following the ruling, agreed the trial court stay the trial court proceedings to allow the prosecution to pursue an The appeal. Court of Appeals granted prosecution’s interlocutory for application ap- leave to peal affirmed the trial in an ruling unpub- court’s 491 MICH Opinion of the Court MRE 403 curiam.28 It concluded that opinion per lished admissible under MCL 768.27a to evidence applies that the trial court did not abuse its discretion held excluding the evidence: given fact evidence is relevant because
Even that the family member, highly it is past conduct also involves solely likely jury defendant based on that the would convict anger past passion, inflamed or shock. In his conduct out of addition, in a prior because the conduct did not result filing charges, the trial court or even in the conviction correctly necessary presentation of this observed that the concerning alleged conduct the earlier would only question guilt that is overshadow the of defendant’s case, directly virtually at in the instant it would be issue impossible defendant to defend himself allegations.[29] unproven earlier for leave to this prosecution applied appeal leave, granted instructing parties Court. We address *14 (1) any whether the omission of reference to 403 (as 768.27b(l)), compared
MCL 768.27a to MCL while mandating of other offenses “is admissible bearing any on matter to and be considered for its relevant,” violate a defendant’s due which is would (2) process right to a fair trial and whether the Court should rule that evidence of other offenses described in only if MCL 768.27a is admissible it is not otherwise 403.[30] under MRE excluded
II. STANDARD OF REVIEW
in-
questions
statutory
Constitutional
and issues of
law,
are
this
terpretation
questions
which
Court
28
Pullen,
People
unpublished opinion per curiam of the Court of
v
(Docket
298138).
February
Appeals, issued
2011
No.
29 Id. at 4.
(2011).
Pullen,
People v
reviews we review abuse discretion a trial to exclude evidence.32 court’s decision A trial court its discretion when it an abuses chooses falling outcome outside the out- range principled comes.33
III. ANALYSIS 404(b) A. MCL 768.27a AND MRE CONFLICT Addressing prevails whether MCL 768.27a over MRE 404(b) the initial requires determination whether the statute and court rule irreconcilably only conflict.34It is in cases of irreconcilable conflict that we must deter- mine whether the Legislature has enacted a statute that improperly supplants the Court’s exclusive author- ity 6, § under Const art promulgate rules regarding the practice procedure of the courts.35 lightly “We do not in- presume Legislature conflict, tended calling into question this Court’s authority practice procedure to control in the courts.”36 statute,
When
construing
whether to determine the
existence of
otherwise,
a conflict or
our primary objec-
tive remains the same: to ascertain and give effect to
the Legislature’s intent.37 We
our
begin
analysis with
the text. If the statutory language
plain
and unam-
biguous, courts must “enforce the statute as written
31 People McCuller,
672, 681;
(2007); People
v
479 Mich
36
(1992).
People Dobben,
22;
v
440 Mich
697 n
By MCL 768.27a provides: (1) Notwithstanding 768.27],[44] [MCL in a criminal case committing in which the defendant is accused of a listed minor, against a offense evidence that the defendant com- mitted another listed offense a minor is admissible may bearing any be considered for its on matter to prosecuting attorney which it If is relevant. intends to section, prosecuting attorney offer evidence under this days shall disclosethe evidence to the defendant at least 15 before the scheduled date of trial or aat later time as by good shown, including allowed the court for cause summary statements of or witnesses of the substance of any testimony expected that is to be offered.
(2) As used in this section:
(a) “Listed offense” means that term as defined in act, registration section of the sex offenders 1994 PA MCL 28.722.
(b)
years
age.
“Minor”means an individual
than
less
significance
Of
here
statutory
is the
language allowing
the admission of evidence that defendant committed
States,
172, 181;
644;
Old
v United
519 US
117 S
L
Ct
136 Ed
Chief
(1997), quoting
States,
469, 476;
2d 574
Michelson v United
335 US
69 S
(1948).
213;
Ct
intent,
of,
part,
the absence
mistake or accident on his
or the
scheme, plan
system doing
act,
question,
defendant’s
or
may
proved,
they
contemporaneous
prior
he
whether
are
with or
thereto;
subsequent
notwithstanding
proof
or
that such
show
prior
subsequent
or tend to show the commission of another or
or
crime
the defendant.
404(b).
essentially parallels
The statute
Opinion
Court
matter to
bearing
any
“for its
on
another listed offense
“any
if it
Evidence is relevant
has
which it is relevant.”
fact that
is of
any
make the existence of
tendency to
of the action more
the determination
consequence to
than it would be without
probable
probable
less
to com-
propensity
Because a defendant’s
evidence.”45
probable
it more
that he committed
mit a crime makes
offense,
the admis-
permits
MCL 768.27a
charged
404(b) precludes.
that MRE
sion of evidence
*17
of
“our cases
Appeals
explained,
As the Court
has
that a defendant’s criminal his-
suggested
have never
a
tory
committing
particular type
for
propensity
Quite
charge.”46
crime
irrelevant
to a similar
the
long recognized
Court has
that a defen-
opposite, this
propensity
charged
dant’s character and
to commit
“an
a
highly
offense is
relevant because
individual with
history
likely
criminal
is more
to have
substantial
past
committed a crime than is an individual free of
Indeed,
criminal
“it is because of the human
activity.”47
exclusively
to
on the relevance of such
instinct
focus
judiciary
traditionally
evidence that the
has
limited its
Thus, the
in MCL
presentation
juries.”48
language
to
allowing
768.27a
admission of another
listed offense
bearing
any
“for its
on
matter to which it is relevant”
a defendant’s
permits
use
evidence
show
crime,
charged
character and
to commit the
propensity
404(b)
precisely
precludes.
that which MRE
and intended the
Legislature
That
envisioned
404(b)
MRE
supersede
given
statute to
is unmistakable
prefatory phrase
“[notwithstanding
the statute’s
45 MRE 401.
(2007).
Pattison,
613, 620;
App
People v
276 Mich
NW2d
(1988).
Allen,
558, 566;
People v
2012] Opinion of the Court 768.27].” MCL [MCL 768.27 codified what later essen- 404(b). tially became substance of Both MCL 404(b) and MRE 768.27 limit of other- admissibility acts evidence consideration for noncharacter pur- poses, motive, intent, such as to show a defendant’s or common plan scheme. is defined “Notwithstanding” “in spite being as of” or “without opposed or prevented by[.]”49 out, Parsed can 768.27a be as rephrased In follows: spite limiting admissibility statute evidence other-acts consideration noncharacter purposes, other-acts charging a case defendant with sexual against misconduct a minor is admissible and be bearing any considered for its on matter Thus, to which is relevant. the statute estab- 404(b) exception lishes an to MRE a involving cases charge of sexual misconduct a minor.
Although impression Court, an issue of first for this federal 414,50 courts have concluded FRE counterpart 768.27a, federal of MCL with FRE conflicts 404(b).51 One court explained, “[FRE allows the prosecution to use evidence of defendant’s acts prior for the purpose demonstrating to the that the jury character, defendant had disposition of or propensity, to commit child molestation.”52 As another federal court *18 49 (2001). College Dictionary Random. House Webster’s 50 pertinent part, 414, regarding In FRE similar crimes child- cases, provides: molestation “In a criminal case in which a defendant is molestation, may accused of child admit court evidence any may defendant committed other child molestation. The evidence be 414(a). any considered on matter to which it is relevant.” FRE 51 404(b)(1) provides: crime, FRE wrong, of a “Evidence or other act is prove person’s admissible to character in order to show on a particular person occasion acted in accordance with character.” 52 (CA 1998). Castillo, 874, 10, United States 140 F3d 879 Our question discussion cases of federal is limited to initial whether MCL 404(b). Turning with addressing 768.27a conflicts MRE to federal cases 404(b) whether given FRE 414 and FRE conflict is useful that MCL Mich Opinion the Court precisely is evidence stated, “[propensity
succinctly Court of Michigan 414 permits.”53 [FRE] what reasoned: similarly has Appeals offense charged a sexual with defendant is aWhen prosecutors to intro minor, allows MCL 768.27a offenses uncharged sexual of a defendant’s duce evidence admissibility having justify their to against minors without 404(b). cases, many evidence that it allows In under MRE inadmissible, it allows because previously would have been categorized propensity evidence as have been what context.[54] in this limited be admitted we cannot conclusion. Because the same We reach 404(b) harmony, MRE and read MCL 768.27a prevails decree becomes which question —that judiciary. or that of the Legislature 404(b) PREVAILSOVERMRE B. MCL 768.27a conflicting over a prevail will A rule of evidence infringes unconstitutionally if the statute only statute 1963, 6, § 5 to art authority under Const this Court’s on simplify practice “establish, modify, amend In accordance with of this state.” in all courts procedure authority Court’s this principles, separation-of-powers is exclusive and and procedure of practice in matters 404(b) clearly federal counter- drawn from their were 768.27a and question xcvi. The constitutional parts. MRE 404. 402 Mich See note to however, principles, separation-of-powers MCL 768.27a violates whether only necessary Michigan the issue It to address unique law. is Supreme the exclu- Michigan’s in the Court vests Constitution because 1963, procedure. art authority regarding practice and Const rules of sive power prescribe system, “Congress what has § In the federal 5. Tot v United the United States.” in the courts of is to be received (1943). 1241; 463, 467; 28 USC States, L Ed 1519 See S Ct 319 US seq. et (CA 2009). Bentley, 815 n 7 561 F3d United States v 54Pattison, App at 618-619. *19 op Opinion the Court therefore beyond Legislature’s power to exercise.55 however, This authority, only exclusive extends to rules procedure, as practice “this Court is not autho- rized to enact court rules that establish, abrogate, or modify the law.”56Accordingly, substantive our task is to determine whether MCL 768.27a is an impermissible governing rule the practice and procedure of courts aor valid enactment of substantive law.
McDougall Schanz addressed whether MCL 600.2169, a statute requiring expert witnesses offered in medical actions malpractice possess certain medical or practice teaching experience, violated the authority Court’s exclusive regarding of practice rules procedure.57 We harbored no doubt in McDougall that MCL evidence, acts as a rule given 600.2169 application its determines the admissibility expert testimony in medical malpractice cases.58MCL 768.27a similarly admissibility determines the of evidence that the defendant committed an a against offense minor in charging case the defendant with commission of a separate Therefore, offense a minor. 768.27a is rule also of evidence.
But
analysis
our
does not end upon reaching this
conclusion. In McDougall, we rejected the mechanical
55 McDougall,
27; Pattison,
See
App
§ clear when ‘no judicial dispatch litigation of can be other than siderations “ Therefore, particular court rule [i]f identified....’” public principle of legislatively declared contravenes having something than policy, basis other court as its yield.” [court] the rule should We administration... agree rules evidence have been made “[m]ost . .. that of has, legislature the as a result of Now and then courts. beyond policy [sic] over and matters involv consideration judicial business, orderly of enacted rules ing dispatch pointed previously out between of The distinction evidence. orderly dispatch policy involving the of considerations judicial policy the one hand and considerations business on something that on hand is involving more than the other through carried into the that must be the distinction field.”[60] evidence reflect Thus, policy rules of evidence that statutory orderly dispatch judi- limited to “the of considerations business,” i.e., administration, procedural are cial court statutory But § art 5. rules violate Const considerations “over and policy evidence reflect involving orderly judi- beyond dispatch matters substantive, of a cial the case business” are enactment rule, legislative with a court conflict procedural rules of prevails. McDougall, As noted orderly dispatch judicial busi- involving evidence “ designed ness are ‘those rules of evidence allow Ex- effectively.... adjudicatory process function 59Id. at 29. (citations omitted). at 30-31 Id. People v Watkins Opinion of the Court
ampies are rules of designed to let the jury have evidence free of irrelevancy, from risks confu- ”61 sion and fraud.’ McDougall identified the line sepa- statutory rating rules of evidence that are constitu- tional from impermissibly those venture into the practice area of and procedure over which this Court has exclusive authority.
Applying McDougall, we conclude that MCL 768.27a
is a valid enactment of substantive law to which MRE
404(b) must yield. The statute is based on policy con-
siderations
beyond
over and
orderly
dispatch
judicial business. We note
policy
several
reasons that
Legislature’s
support
decision to allow other-acts
*21
in
involving
cases
sexual misconduct against
minors. As the United States Supreme Court has ob-
served, “[w]hen convicted sex offenders [including child
society,
molesters] reenter
they are
likely
much more
any
than
other type of offender to be rearrested
a
for
rape or
new
sexual assault.”62 Evidence of
in
guilt
child
molestation cases is typically
hard to come
because
in most
the only
victim,
cases
witness
the
whose
testimony
not
may
available,
be
helpful, or deemed
credible because of
age.
his
her
It
be
also
for
jury
difficult
to believe that a defendant is capable
of engaging in such egregious behavior
awith
child.
Consistent
analysis
with our
is the fact that federal
61
15, quoting Honigman
31
Hawkins,
Id. at
n
Michigan
3
&
Court
(2d ed), p
Although
Rules Annotated
deciding
403.
refrain
we
from
cases
us,
not before
it is
hard
not
to see that MRE 402 and
are
the
403
rules of
procedural variety. Likewise,
appears beyond
debate that
of
matters
discovery embody purely procedural considerations. See United
v
States
Nobles,
225, 241;
(1975)
2160;
422 US
(rejecting
95 S Ct
courts the rule underlying similar considerations policy fied judicial of beyond orderly dispatch are over and that “[p]romoting include business. Those considerations offenses,” reliance sex “the effective of prosecution determina- credibility cases difficult of sex offense on value aof tions,” ‘exceptionally probative’ and “the in In our judg- children.”63 sexual interest defendant’s “ ‘designed not to allow ment, MCL 768.27a was ”64 . . effectively. .’ to function adjudicatory process determina- legislative Rather, it reflects substantive to a defendant’s behav- juries privy that should be tion in the defendant with history charging ioral cases a minor. against sexual misconduct sum, MCL 768.27a were enacting In the reasons business, judicial of orderly dispatch further the not to protec- about the a substantive concern but to address who prosecution persons children and the tion of crimes children certain enumerated perpetrate likely to reoffend. Accord- and are than others more does run that MCL 768.27a afoul ingly, we hold (CA 1998) (citation 8, Mound, States v F3d United omitted). challenged validity Mound Although defendant analysis opposed its as to FRE court indicated FRE Mound, applied equally 414. 800 n also FRE F3d at 2. We note policy context an these considerations the court mentioned analysis equal-protection support FRE the conclusion that 413 sur *22 previously, Id. at As noted rational-hasis review. 801. vived case not arise in the separation-of-powers concern at issue in this does system. federal 64 McDougall, 15, Hawkins, p quoting Honigman Mich n & at 31 768.27a, Legislature merely By enacting acts deemed other 403. admissible, substantively avoiding against minor of misconduct a sexual aspects procedural province of the into the court’s over the intrusion admissibility relevancy, prejudice, of and adher such as risk evidence’s III(C) discovery part opinion (holding proper practices. See of this ence to 403). subject to remains MRE that MCL 768.27a Opinion of Court 6, § Const art and in which cases the statute 404(b).65 applies, supersedes The dissent would instead hold that MCL 768.27a is unconstitutional. The dissent first the position takes that MCL 768.27a should fail the McDougall test be- primarily cause statute judicial concerns the dis- patch of litigation, which the dissent says is true of all rules that have the “effect” of “telling [courts] what evidence can juries hear.”66 This is misapplication of If McDougall. it were true that all rules operate that tell courts what evidence is admissible concerned the judicial dispatch of litigation, then all of rules evidence would procedural. be But McDougall specifically re- jected approach of mechanically characterizing all rules procedural. Therefore, as the dissent’s position is inconsistent with a proper reading oí McDou- gall.
Alternatively, the dissent would refine or discard the
McDougall test. The
proposed
dissent’s
test would treat
the legislative policy concerns
surrounding
statute’s
enactment as irrelevant
to whether an evidentiary rule
is substantive
procedural.67
According
dissent,
the only inquiry should be whether the
function
analysis
The dissent
oversimplified.
criticizes our
as brief and
To the
analysis
point, by
extent that our
drawing
is to the
no means do we view
procedural
the line between
easy
and substantive rules of
an
evidence as
lightly
endeavor. Nor do
line-drawing
we take
the task of
in this case.
McDougall,
“appreciate
Like the
difficulty
Court in
we too
drawing
‘practice
attends the
procedure’
the line between
McDougall,
substantive law.”
Opinion of the Court they evidence the courts what to tell statute “is approach . . .”68 This proceeding. in a court admit evi- all rules of characterize mechanically would also because, purely as a dence as procedural functional (if every underlying policy disregard truly we matter tell the courts what concern), evidentiary rules all although the dissent Thus, is admissible.69 evidence McDougall majority’s application criticizes the defining in which eviden- underinclusive vastly test as dissent’s alterna- procedural, as tiary qualify rules in defining overinclusive vastly are approaches tive same. example an privilege rules of as cites the
The dissent relating rulemaking. But rules of substantive of an area telling of exclusive still serve the privilege function and, trial is admissible at what evidence the courts test. under the dissent’s therefore, procedural be would of admissibility function to dictate the Privilege rules rela- certain parties made between communications tell the courts accordingly, privilege rules tionships; evidence admissible at trial.70 what is 68Post at 504. emphasizes of placement of 768.27a in the Code The dissent practice is a reflexive that Reliance on labels Criminal Procedure. Supreme have and the courts of this state admon States Court
United
Co,
Inc,
See,
against.
e.g.,
v
300 US
Silas Mason
ished
Henneford
(1937) (“Catch
524;
586;
. . . are
Finally, note as one example that the dissent’s test mean the proposed Michigan’s would end of rape- statute, shield 750.520j, MCL consequence a dispute. dissent does not Yet the United States Supreme statute, 600.2162(1), provides: “In a civil action or administrative proceeding, against a husband shall not he examined a for as witness against his wife her or a without consent wife for or her husband without pertains precisely admissibility his consent....” The statute to the of a spouse’s testimony in court. 71Post at 504. 72 Baughman, emperor’s prosecutor’s reply A old clothes: to Mr. concerning statutory violations, Leitman exclusion evidence 1999 L 701, R Mich St U Det C L 716. 491 Mich 450
480
Opinion
Court
statute and
rape-shield
Michigan’s
has endorsed
Court
deter-
a
“representing]
legislative
valid
as
described
protec-
heightened
victims deserve
rape
mination that
harassment,
unnecessary
surprise,
tion
although
Supreme
And
privacy.”73
invasions
separation-of-
specifically address
Court did not
even
issue,74
upheld
laws have been
rape-shield
powers
analogous to
provision
in the face of
constitutional
our
that the
6, § 5.75We reiterate
belief
Const
art
73
1743;
149-150;
Lucas,
L Ed
Michigan
111 S
114
2d
v
US
Ct
500
(1991).
205
6, 5,
discussing
§
the United States
Const
art
See id. Without
Michigan
Appeals,
judgment
Supreme
Court of
vacated the
Court
rape
adopted
precluding
of a
victim’s
a rule that
which had
necessarily
history
the Sixth
defendant
violates
with
criminal
sexual
Lucas,
692, 694-695;
App
Mich
408 NW2d
See
v
Amendment.
(1987).
367, 371-372;
McKenna,
See,
P2d
e.g., People
Colo
*25
(1978)
rape-shield
“represents
(upholding
it
far
Colorado’s
law because
regulate
day-to-day
attempt
merely
legislative
the
a
to
more than
courts”).
operation
v
procedural
of
The dissent’s reliance on State
the
(Prior
2001),
Mallard,
(Tenn,
Opinion
and
the Justices
C. MCL 768.27a REMAINS SUBJECT TO MRE 403 Having determined that MCL 768.27a ais valid law, enactment substantive the question remains whether evidence admissible under the statute may be nonetheless excluded under MRE 403. For the rea- follow, sons that hold we that evidence admissible pursuant to MCL 768.27a nonetheless be excluded under 403 if “its probative value is substantially outweighed by danger of unfair prejudice, confusion issues, or or misleading jury, by consider- delay, ations of undue time, waste of pre- needless sentation of cumulative evidence.”
The argument against applying MRE 403 to evidence admissible under MCL 768.27a not from the text comes 768.27a, of either MRE 403 or MCL from text but 768.27b, pertains which to other-acts evidence in domestic violence cases. MCL 768.27b provides that “evidence of the defendant’s commission other acts of domestic any violence is admissible for purpose relevant, which it is not otherwise under excluded if Michigan rule It evidence 403.”76 is this emphasized Supreme seemingly approach, Court’s mechanical which concluded that *26 procedural by “the is a admission to be matter controlled define, oversimplified categori courts ... .” This is rationale and would cally, procedural, position rejected all rules of evidence as that was McDougall again today. 76 Emphasis added. Mich Opinion Court disagreement generated that has of the statute
portion
to MCL 768.27a.
applies
MRE
whether
surrounding
does not
768.27b,
explic-
MCL 768.27a
MCL
Unlike
“Notwithstanding
[MCL
MRE 403:
mention
itly
defendant committed
768.27], . .
that
. evidence
minor is admissible and
listed offense
another
matter
bearing
any
on
for its
be considered
if the
argued
it is
that
Accordingly,
it is relevant.”
which
evidence under
made other-acts
expressly
Legislature
in cases of domestic
subject to
MCL 768.27b
403 MCL
violence,
the failure to mention MRE
then
did not intend
the Legislature
indicates
768.27a
evidence in
regard to other-acts
apply
MRE 403 to
with
against minors. We
involving sexual misconduct
cases
draw
inference.
the invitation to
this
reject
draft
these
did not
Significantly,
Legislature
by
MCL
was enacted
simultaneously.
768.27a
statutes
1, 2006,
January
PA
which became effective
by 2006 PA
768.27b was enacted
whereas
Legisla-
March
2006. The
became effective
which
an
urged
from
it is
we draw
“silence”
which
ture’s
It is
in the earlier enactment.
one
inference occurred
in a
through
intent
silence
legislative
infer
thing
enactment,
an-
quite
but
subsequent
simultaneous
an
through
intent
silence in
legislative
other to infer
enactment,
virtue of
only
“silent”
earlier
which
enactment.
subsequent
“considering] whether
[the
are
mindful of
We
also
evidence] can be construed so as not
and rule of
statute
conflict,”77
presume
do not
lightly
“[w]e
.
.”78Unlike the irrec-
intended a conflict.
.
Legislature
and MRE
MCL 768.27a
oncilable conflict between
77McDougall,
78Dobben,
22.
Furthermore, as the United States Supreme Court observed, has every pregnant.” cases,
“not silence is Congress In some particular statutory intends silence to rule out a applica- tion, Congress’ while in signifies others merely silence an expectation nothing more need be said in order to legislative objective. effectuate the relevant An inference congressional drawn from certainly silence cannot be cred- contrary ited when it is to all other textual and contextual intent.[79] congressional evidence of In closely examining statutes, all other textual and contextual evidence of Legislature’s intent runs contrary to inferring that MRE 403 does not apply to evidence admissible under MCL Despite 768.27a. some similarities, there are notable differences between the two statutes.
First,
the Legislature used the permissive term
“may” in MCL 768.27a but not in MCL 768.27b. Under
768.27a,
“evidence that the defendant committed
another listed
offense
admissible,”
minor is
but the
goes
statute
on
provide
that such evidence
“may be considered for its bearing
any
on
matter to
which it is relevant.”80 When the statute is read as a
States,
Burns v
129, 136;
United
2182;
501 US
111 S Ct
115 L Ed 2d
Dep’t
(1991), quoting
Schweiker,
Illinois
Pub Aid v
707 F2d
(CA 1983).
80 Emphasis added.
whole, phrase considered,” thereby indicating “may be phrase of discretion to some level subject remains admissibility Court has trial court. As this part on the and ac- ordinary give “courts should explained, ‘may’ unless . . . the word meaning permissive cepted intent as legislative clearly frustrate to do so would by reading statutory language evidenced other *28 in there is no indication Because statute as whole.”81 be con- “may” interpreted that should MCL 768.27a meaning, the term is accepted its trary generally evidence By mandatory. providing permissive, considered,” “may 768.27a be admissible under MCL that evidence necessarily contemplated Legislature the in need not be considered under the statute admissible and which evidence would be all cases and that whether discretion, judicial a matter of as would be considered rule The most obvious by the rules of evidence. guided exercising in this discretion is guide available to courts MRE 403. contrast, contains no
By
permissive
MCL 768.27b
768.27b(l)
that “evi-
simply provides
MCL
language.
defendant’s commission of other acts of
dence of the
any purpose
for
domestic violence is admissible
.
the choice to
Perhaps
which it is relevant.
.
.”
was
prompted
Legis-
permissive language
omit
admissibility
lature to
of other-acts
qualify
“if
language
it is not
under MCL 768.27b with
rule of evidence
Michigan
otherwise excluded under
in
What-
regard.
403.” We choose not to
this
speculate
draft
Legislature
ever motivated the
statutes
to the
give meaning
permissive
must
differently, we
in MCL 768.27a.
“may”
by
Legislature
term
used
Co,
Fidelity
603, 612;
Browder v Int’l
Ins
In
criminal case where the defendant’s
intent,
of,
part,
the absence mistake or accident on his
or
scheme, plan
system
act,
doing
defendant’s
or
in
an
material, any like acts or other acts of the defendant which
motive,
intent,
of,
tend to show his
the absence
part,
scheme,
mistake or accident on his
or the defendant’s
plan
system
act,
doing
question, may
or
proved,
be
they
contemporaneous
whether
are
prior
with or
or subse-
quent thereto; notwithstanding
proof may
that such
show
or tend to show the
prior
commission of another or
subsequent
crime
the defendant.
Giving effect to the
768.27,
statute’s reference to MCL
*29
MCL 768.27a means that other-acts evidence in cases
involving sexual misconduct against a minor “may be
considered
bearing
for its
on any matter to which it is
relevant” notwithstanding that MCL 768.27 limits the
admissibility of other-acts evidence to consideration for
purposes.
noncharacter
apply
768.27a does not
“not-
withstanding any
evidence,”
rule or principle
only
but
“[notwithstanding [MCL 768.27].” Put
we
simply,
cannot
interpret
the prefatory phrase “[notwithstanding [MCL
768.27]” to mean “notwithstanding [MCL
and
768.27]
MRE 403.” We similarly refuse to read into MCL 768.27a
legislative
a
intent
to foreclose the application of other
evidence,
ordinary rules of
such as
pertaining
those
to
and
hearsay
privilege.
In in MCL 768.27a “silence” 768.27b, enactment of MCL subsequent virtue of the harmony read in MCL 768.27a can be with “may” term give permissive must effect to the we “[notwithstanding 768.27]” that phrase [MCL and the in MCL absent from MCL present are 768.27a but reasons, hold that MRE 403 768.27b. For all these we under MCL 768.27a.82 applies to evidence admissible D. MUST WEIGH THE PROPENSITY INFERENCE COURTS THE PROBATIVE VALUE IN FAVOR OF EVIDENCE’S that other-acts evidence admissible Our conclusion to MRE 403 subject gives under MOL 768.27a remains any to the As question proper application. rise with test, balancing MRE 403 involves two sides of a scale—a probative side and a side. evi- prejudicial Propensity nature, dence and it prejudicial by precisely is danger prejudice propen- that underlies the ban on 404(b). sity evidence in MRE Yet were a court to apply way MRE 403 such a that other-acts evidence in cases involving against sexual misconduct a minor was con- scale, prejudicial sidered on the side of the this would gut 768.27a, the intended effect of MCL which is juries allow to consider evidence of other acts the defendant committed show the defendant’s character propensity charged weigh commit crime. To inference from propensity derived other-acts evi- dence in cases misconduct involving sexual minor on the side of the test would prejudicial balancing 404(b), Legislature be to resurrect MRE which the rejected in MCL 768.27a. conclusion, whether, Given this we need not address if evidence admis subject were sible under MCL to MRE the statute 768.27a would due-process right trial violate defendant’s to a fair or interfere with the
judicial power to ensure that a criminal defendant receives a fair trial. *30 487 Opinion of the Court Accordingly, when applying MRE 403 to evidence 768.27a, admissible under MCL courts must weigh propensity inference in favor of the evidence’s probative value rather than its prejudicial is, effect. That other- acts evidence admissible under may MCL 768.27a be excluded under MRE 403 as overly prejudicial merely jury because it allows a to propensity draw a inference. In reaching conclusion, this join we several federal courts that have addressed this issue with to respect FRE 414 and 403.83 mean, however,
This does not that other-acts evi- dence admissible under MCL may 768.27a never be excluded under MRE overly 403 as prejudicial. There are several considerations lead a court to (1) exclude such evidence. These considerations include the dissimilarity between the other acts and the (2) charged crime, the temporal proximity of the other (3) crime, acts to the charged the infrequency of the (4) (5) acts, other presence intervening acts, lack reliability of the evidence supporting the occur- (6) acts, rence of the other the lack of need for evidence beyond the complainant’s and the defendant’s 83 (CA See, 2011) e.g., 965, Loughry, 7, United States v 660 F3d (“[Although simply [FRE] evidence cannot be excluded under because it tends to propensity show that the defendant has to commit offense, rigorously a sex apply [FRE] 403 to [FRE] continues (CA evidence.”); 2006) Benais, 1059, 8, United States 460 F3d (“[FRE] applied permits 403 must be in this context a manner that effect, namely, [FRE] permit 413 and 414 to have their intended jury prior to consider a defendant’s bad acts in the area of sexual abuse purpose showing or child propensity.”); molestation for the United (CA 2001) (“[Other-acts Gabe, 954, 8, States v 237 F3d evidence] prove propensity [a tends young defendant’s] to molest children .... propensity Because evidence is [FRE] admissible under this is not (CA prejudice.”); Larson, United States v 112 F3d 604-605 unfair 1997) (stating presumed that evidence admissible under FRE 414 is probative). relevant and Mich 450 *31 Opinion of the Court meant to be of considerations is
testimony.84 This list than exhaustive. illustrative rather in this challenged are of these considerations Several to exclude the decision whether Regarding appeal. applying under MCL 768.27a when admissible evidence not be that courts should 403, argued it is the other act long ago to consider how permitted offense, dissimilarity charged to the occurred, its the other defendant never convicted of fact that the was disagree. act. We 10-year expressly imposes MCL 768.27b
Although admissibility hmitation on the of other-acts evidence cases, provides whereas MCL 768.27a domestic violence hmitation, simply legal there is no basis no such the lack of a hmitation MCL concluding temporal that length means that the of time since 768.27a somehow misconduct a minor occurred other act sexual weighing under prejudice cannot be considered when the statute’s failure to refer to MRE 403 MRE 403. Just as apphcation, did not bar the court rule’s the failure admissibility limit other-acts evidence temporally considering a court from under MRE preclude does long ago 403 how the other act occurred. dissimilarity that the of the other-acts argument charged and the offense should not be consid- similarly Although ered under MRE 403 fails. terms, offenses, 768.27a, by its to all listed there applies intended to Legislature suggest is no indication that sufficiently that all offenses are similar to each listed them and the dissimilarity other that between charged weighed offense could never be in favor of concluding presents the other-acts evidence unfair under MRE 403. danger prejudice (CA 2001); LeMay, 9, See United States v 260 F3d United (CA 1998). Guardia, States v 135 F3d Opinion of the Court Finally, argued that, because MCL 768.27a than applies more conduct that resulted in a convic- tion, whether the evidence of the other act resulted in a conviction is irrelevant under MRE 403. We disagree. That MCL permits 768.27a the introduction of other- acts evidence that did not result in a conviction does not mean that evidence did not result in a conviction must be admitted or that a court may not consider whether charges were filed or a conviction rendered when weighing evidence under MRE 403.85
The foregoing
considerations
be
used
trial
courts to determine whether
the probative value of
evidence admissible under MCL
in-
768.27a—which
*32
cludes the propensity inference derived from the other-
acts evidence —is nonetheless outweighed by
danger
the
of unfair prejudice. Trial courts
apply
should
this bal-
ancing to each separate piece of evidence offered under
MCL 768.27a. In addition,
trial courts retain their
discretion under MRE 403 to determine
many
how
separate pieces of other-acts
may
evidence
be admitted
before the probative value of such evidence is out-
weighed by the danger of “confusion of
issues,
or
misleading
jury,
by
or
considerations of
delay,
undue
time,
waste of
or needless presentation of cumulative
evidence.”86This determination
only
can
be made in the
context
trial,
of the entire
considering all the other-acts
evidence offered under MCL 768.27a as well as the
evidence as a whole. There is
bright-line
no
rule for how
many “other
may
acts”
be admitted before the scale tips
in favor of
Rather,
exclusion.
ensuring that
proba-
times,
At
required
relevant
many types
conviction was not
for
qualify
offense,
other-acts evidence to
as a listed
but a conviction was
required
an
exposure
act of indecent
to be admissible under MCL
28.722(e)(¿ü)
by
301;
768.27a. See MCL
as added
pages
2005 PA
see also
through
opinion.
495 of this
86 MRE 403.
tive issues, misleading or of “confusion danger time, delay, undue waste considerations of jury, byor evidence” is of cumulative presentation or needless court’s discretion. left to the trial responsibility admitting for trial courts when A final tool available CJI2d MCL 768.27a is under other-acts of other on evidence 20.28a, the standard instruction abuse: acts of child sexual (1) of claimed prosecution has introduced evidence [a the defendant with minor acts of sexual misconduct / she] is not on trial. minors] [he for which / (2) you may alleged acts as evi- Before consider such defendant, you find that the must first dence actually those acts. defendant committed (3) acts, you those If find that the defendant did commit deciding if you them in the defendant commit- consider [he she] is now on trial. [offense offenses] ted the for which / / (4) solely the defendant here You must not convict you guilty she] of other bad conduct. [he because think / you beyond must convince a reasonable doubt The evidence crime, alleged you the defendant committed guilty. [him her] find not must / a trial court determines that In cases which evi- the admission of other-acts prevent 403 does 768.27a, this instruction is available dence under MCL that evidence. jury properly employs that the ensure
IV APPLICATION A. DOCKET NO. 142031 third and final In Docket No. at Watkins’s testify regard- EW to trial, permitted the trial court criminal sexual conduct and alleged other acts of ing appeal, circumstances. On surrounding their Opinion of the Court Appeals properly Court of confirmed its earlier hold- 404(b) ing that MCL 768.27a conflicts with MRE prevails that the statute over the rule of evidence.87It properly also held that evidence under admissible subject Further, MCL 768.27a remains to MRE 403.88 agree Appeals’ we with Court of conclusion that apply the trial failure court’s MRE 403 was harm- being probative less. In addition to because of the propensity inference, the other-acts evidence also supported credibility, presented the victim’s circum- underlying charged stances similar to those of- operandi. fense, and established Watkins’s modus although And the trial court failed to determine aspects testimony require- which of EW’s met the agree 768.27a, ments of MCL we with the Court of Appeals only provided that the incident for which EW specific requirements details met the and, statute’s any admitting therefore, mony in error all of EW’s testi- jus- “was not inconsistent with substantial Finally, tice.”89 20.28a, accordance with CJI2d jury properly was instructed on how to use the Accordingly, other-acts evidence. we affirm Wat- kins.
B. DOCKET NO. 142751 granted In Docket No. the trial court excluding police limine, Pullen’s motion in a report containing allegations sexually that Pullen had daughter years ago. Although abused his more than 20 properly the trial court concludedthat evidence admis- subject sible under MCL 768.27a remains to MRE by misapplying it abused its discretion MRE 403. 87 Watkins, unpub op at 4.
88Id. at 5.
89Id. at 8. *34 Mich 450
Opinion op the Court First, weigh propensity the trial court failed to probative inference in favor of the evidence’s value. analysis in its did the trial court mention Nowhere was of Pullen’s char- probative the other-acts evidence the charged acter or to commit offense. propensity Instead, that, this evidence “[s]hould the court stated jury, highly probable be to the it is that the presented and jury separate not be able to the two cases would likely impact would decide the case based on emotional logical Appeals rather than reasons.” The Court of affirmed, characterizing reasoning this flawed as hav- for the trial ing “provided reasoned basis” court’s decision.90
Second, the trial court failed to
in
weigh
favor of
probative
evidence’s
value the extent
to which the
supported
credibility
other-acts evidence
the victim’s
and rebutted the defense’s attack thereof.91 Pullen
admitted that
trial strategy
his
was to attack the
credibility,
victim’s
and the other-acts evidence was
highly probative
purposes
for rebuttal
and tended to
credibility.92
the victim’s
support
90Pullen,
op
unpub
at 4.
disagrees,
authority
doing
The dissent
but offers no
or rationale for
so.
Remand),
acknowledge
holdings
People
(After
in
v
We
Sabin
43, 71;
(2000),
Jones,
Mich
story more not because we know more about her or People v Watkins Opinion op the Court Third, the trial court failed to review separately under alleged report MRE 403 each act the 1989 instead all of lumped together. the evidence The trial court apparently egregiousness believed *35 of e.g., some the other-acts the allegation evidence — made by daughter Pullen’s that he “checked if [she] was still a virgin” -justified excluding all the other-acts — overly
evidence as prejudicial. The various acts revealed report the 1989 included digital penetration, unwel- come and inappropriate touching, expo- indecent The sure. trial court should have considered each act separately.93 truth, Oliphant’s tendency to tell the but because such evidence gives us reason to believe that he is the kind of man who would charged That, however, precisely pur- commit the offense.
pose may for which this evidence be not admitted. differently, danger admitting Stated other-acts evidence to bolster complainant’s credibility essentially jury is that invites to draw a 111(A) propensity however, part opinion, inference. As we concluded in of this specifically permits MCL 768.27a the use of other-acts evidence to show a propensity charged propensity defendant’s to commit the crime. Because complainant’s story believable, evidence tends to make the more it would not make sense to conclude that evidence admissible to show the defendant’s propensity charged to commit the offense is inadmissible to bolster the complainant’s credibility. propensity complainant’s The defendant’s and the credibility are two sides of the same coin. 93 Support language for this conclusion exists in the of MRE which provides probative that “evidence be excluded if its value is substan presentation tially outweighed by the . .. needless cumulative evi added.) dence.” (Emphasis contemplates The rule thus the evaluation of piece compares an individual of evidence and how it to the other evidence sought not, believes, to be admitted. This is as the dissent a mere judicial opinion. any authority difference in The dissent fails to cite support proposition by lumping the trial court did not err together purposes applying other-acts evidence MRE 403. Rather support position, analysis than offer for its own the dissent criticizes our selectively quoting by omitting language preceding as MRE 403 all the presentation evidence,” “needless of cumulative as if we have not Although, considered the statute as whole. Not so. as the dissent observes, presentation the “needless of cumulative evidence” is but one Mich 450 Opinion Court at
Finally,
exposure
the evidence of indecent
issue
a listed offense under MCL
qualify
here did not
as
and,
to the instant case
768.27a at
times relevant
therefore,
admissibility
analyzed
its
should have been
404(b). The
indecent
aggravated
under MRE
offense
Currently, §
is set forth at MCL 750.335a.94
exposure
(SORA), MCL
Registration
of the Sex Offenders
Act
including “[a]
et
defines “listed offense” as
seq.,
28.721
750.335a(2)(b)]
if
violation of
...
a victim is a
[MCL
case, however, §
At times
to this
2 of
minor.”95
relevant
finding
basis for
evidence excludable under MRE
the dissent does
explain
if it
how a trial court can consider this basis
assesses
lumped together.
lumping
evidence when it is
of evidence leads to an
all-or-nothing
admissibility;
determination of
it does not leave room to
Thus,
breaking point.
determine a cumulative
unlike the dissent’s
position,
reading
interpretive
of MRE 403 adheres to the
our
canon
word,
give
every
phrase,
“[c]ourts must
effect to
and clause in a statute
interpretation
nugatory
surplusage any part
an
and avoid
that renders
(2008)
249;
People Couzens,
Mich
of statute.”
lower courts in Pullen and remand the case to the trial proceedings court for further consistent with this opin- ion.
V CONCLUSION conclusion, In we hold that MCL 768.27a irreconcil- 404(b) ably conflicts MRE with and that the statute prevails over the court rule. also We hold admissible under MCL 768.27a subject remains to MRE 403, but that weigh courts must infer- propensity in ence favor of the evidence’s probative value rather than its prejudicial foregoing reasons, effect. For the we Watkins, affirm the Court of Appeals’ judgment Docket No. judgments vacate the of the lower Pullen, courts in Docket No. and remand the latter case to the trial proceedings court for further opinion. consistent with this Mary Young, C.J., Kelly, JJ., Markman and Beth J. ZAHRA, concurred with
Marilyn Kelly, J. I (dissenting). concur with the 111(A) result reached part majority opinion. 404(b) I Specifically, agree that MCL 768.27a and MRE irreconcilably conflict.
However, I strongly majority’s dissent from the con III(B) clusion in part that MCL prevails 768.27a over 404(b). I would hold that MCL 768.27a is an legislative unconstitutional power intrusion into the judiciary “establish, modify, amend and simplify the practice procedure in all courts of this state.” Because I would hold that MCL 768.27a is unconstitu- view, report, preference judgments in our the dissent’s to affirm the speculation. would below involve too much 6, § Const art 5. *38 People v Watkins 497 by Dissenting Opinion Marilyn Kelly, J. tional, I would not reach the in parts issues discussed III(C) (D) and of the I majority opinion. Finally, disagree IV(A) in with the decision part majority opinion to affirm defendant Watkins’s and convictions the criti- IV(B) in part cism of the trial court’s MRE 403 analysis defendant regarding Pullen. I
Accordingly, would reverse the Appeals’ Court of Watkins, in judgment overrule in prior holding its People constitutional, v Pattison2 that MCL 768.27a is and Pullen, remand Watkins for a new trial. In I would affirm Appeals’ the Court of judgment and its conclu- sion that the trial court did not by abuse its discretion excluding challenged evidence under MRE 403.
LEGAL BACKGROUND
Michigan
Constitution divides the
gov-
state’s
ernment into three branches: the legislative, the execu-
tive,
judicial.3
and the
Judicial power is vested exclu-
in the
sively
judiciary.4 The
grants
Constitution
this
Court
authority
“establish,
make rules that
modify, amend and simplify the
practice
procedure
Pattison,
People
613, 620;
(2007);
App
v
Mich
justice
supreme court,
which shall be divided into one
one court of
appeals,
general jurisdiction
one trial court of
known as the circuit
court,
probate court,
jurisdiction
one
and courts of limited
that the
legislature may
establish
a two-thirds vote of the members
serving
elected to and
in each house.
MCL 768.27a should fail the
test. The
McDougall
statute
implement
does not
a “clear legislative policy
reflecting considerations other than judicial dispatch of
litigation.”14
sure,
To be
may very
the statute
well have
been enacted to
legislative policy concerns;
address
such a conclusion
beyond dispute.
majority
seems
12Pattison,
App
at 619-620.
*40
13 McDougall
predetermine
by
test does not
the conclusion reached
majority
However,
my
the
that MCL 768.27a is substantive.
as I stated in
Hickman,
602,
3;
in
dissent
n
613
The crucial is not whether the con- policy Rather, cerns themselves are substantive. it is whether statutory changes enactment substan- effect strictly tive law. If the statute affects procedural rather matters, than substantive that statute violates Const Contrary conclusion, § art 5.16 the majority’s MCL 768.27a enacting Legislature’s to achieve the policy goals not, it, does as the puts Constitution reflect beyond considerations the judicial dispatch litigation. of point aptly This demonstrated illustration. Consider a statute only everyone present must, that states in a courtroom before commence, proceedings Pledge Allegiance. recite the of Such a statute regulation “practice procedure” would be an unconstitutional of and mandatory prerequisite “judicial because would establish a to the dispatch litigation.” Legislature This would be true even if the policy identified some “substantive” considerations unrelated to the “judicial dispatch business,” encouraging patriotism, such as as its enacting Legislature try motivation for the statute. The is free to means, goal by by dictating achieve substantive other but not mandatory procedure in the courts. Miller, practice procedure: study See Joiner & Rules A (1957) (“[T]he judicial making, rule Mich L R word ‘how,’ ‘practice’ clearly leaving legislature . .. embraces all to the ‘what’ duties.”). rights creating legal in substantive law *41 Dissenting Opinion Marilyn Kelly, J. Legislature 768.27a, When the enacted MCL the sole policy mechanism it used to achieve its concerns was to alter the standard under which other-acts evidence is Thus, admissible court.17 the relevant policy consid- analyze eration that we must that: precisely Is admission of inadmissible evidence in child- previously sex-abuse or a procedural cases substantive issue?18 This conclusion is consistent with our rule statutory determining “[i]n construction that the intent Legislature, this Court must first look to the language The majority’s of the statute.”19 of McDou- application gall principle by failing fails this to look at first statutory language.
“It
jurisprudence
is fundamental
to American
that ‘a
defendant
did,
must be tried for what he
not for who he
”20
404(b)
is.’ MRE
regulates how and when relevant
noteworthy
Legislature
It is
enacted MCL
at
768.27a
passed
protect
same time that it
other laws in an effort to
children from
great majority
provisions
convicted sex offenders. The
of these
caused
changes
See, e.g.,
133, creating
substantive
in the law.
2005 PA
722.115e,
employee
which made it a
an
crime for
of a childcare center to
report
arraigned
fail to
that he or she had been
for certain criminal
involving
offenses
children.
Moreover,
Legislature
has enacted numerous substantive laws
advancing many
policy
majority
of the same
considerations the
identified
See,
e.g.,
amending
in this case.
2006 PA
MCL 750.520b to increase
penalty
first-degree
criminal sexual conduct
a minor
years
age by repeat
under 13
offenders under certain circumstances.
Thus,
unconstitutional,
if the Court were to hold MCL 768.27a
it would
greatly
Legislature
advancing
policy
goals.
deter the
from
its
Pattison,
App
See also
276 Mich
at
which identified “the
Legislature’s policy
juries
decision” behind MCL 768.27a as what
should
by regulating
be allowed to consider
what evidence courts
admit.
156, 166-167;
Shabahang,
(2009),
Bush v
484 Mich
may be
a matter that
nature because it concerns
procedural
judiciary:
“judi-
of the
solely
province
within
dispatch
litigation.”21
cial
noteworthy
It
the Legislature’s place-
is also
supports my
ment of MCL 768.27a
conclusion that MCL
procedural
768.27a is a
rule. MCL 768.27a is contained
Procedure,22
within
Code of Criminal
“re-
majority correctly
The
observes that the statute
legislative
juries
flects a substantive
determination that
history
should be
to a defendant’s behavioral
privy
charging
cases
the defendant with sexual misconduct
only
my
a minor.”23But this observation
makes
point. This observation is relevant not as a “substantive”
Rather,
basis for the statute.
it is
relevant
demonstrate
Legislature attempted
by enacting
what the
to do
it: to
regulate
by telling
juries
the courts
them what evidence
Legislature
can hear. The course of action the
prescribes
policy goals
its
in MCL
accomplish
telling
768.27a—
operate
regulation
judicial
courts how to
—is
dispatch
litigation.
nothing
It does
more. Simply put,
Legislature
“modify...
cannot
practice
pro-
and
cedure in all courts of this state.”24
Washington Supreme
very recently
Court
reached
similar conclusion and invalidated its state’s
(1988) (“[I]n
Allen,
558, 566;
People
system
429 Mich
NW2d 499
our
.”).
cases,
jurisprudence,
try
persons
we
rather
than
.
. .
21 McDougall,
In another analogous case, the New Hampshire Su- preme Court provided the following persuasive analy- sis: 404(b) prime
Rule example is a procedural of an internal *43 designed rule to effectuate a right. constitutional .. . Rule 404(b) simply procedural is by means which the fair trial right is Giving secured. legislature would, deference to the instance, in this purpose abolish the rule’s and interfere judiciary’s with the sound in determining discretion what extent the rule serves its function in the circum- particular stances of a case. proposed Because the directly bill conflicts with Rule
404(b),
concerning
a rule
uniquely judicial function,
the
separation
powers
doctrine
legislature
is violated. The
right
has no more
to break
prescribed by
down the rules
this court to assure
process
fundamental due
in criminal
and civiltrials than the
prescribe
court has to
the mode and
legislature
manner which
perform
the
legisla-
shall
its
duties.[28]
tive
25
Gresham,
(2012).
405;
State v
2d
Wash
In a statute’s when in a court pro- admit they may courts what evidence court conflicting to a way must give the statute ceeding, statute, and it conflicts such a rule. MCL 768.27a is 404(b). MCL 768.27a violates Accordingly, with declare 6, 5,§ and this Court should 1963, art Const null and void. McDougall, with not inconsistent reasoning is
My
(On
v Peuler
holding
of Perin
it restore
nor would
procedural.
are
that all rules of evidence
Rehearing)29
by
cited
authorities,
including some
Numerous
evidentiary rules
have identified
McDougall majority,
outside
policy
declarations of
likely
are
substantive
It is
rulemaking power.30
scope
judiciary’s
iden-
might
and commentators
that courts
unsurprising
previ-
I have
substantive for reasons
tify these rules as
far more than dictate
identified. These rules do
ously
they
proceeding;
admissible in a court
what evidence is
behavior.31
directly affect
out-of-court
people’s
very
rules,
otherwise,
at the
or
that strike
to enact
either of evidence
Among
judicial power
inherent
....
these
a court’s exercise of
heart of
facts,
judicial powers
powers
the issues of fact
to hear
to decide
are
questions
an
pleadings,
of law involved.As
and to decide
made
any
corollary
principles,
of what evi-
these
determination
essential
litigation
relevant,
logically legally,to a fact at issue in
is
either
dence
solely
power
the care and exercise of the
entrusted
is a
omitted).
(citation
judiciary.”)
29Perin,
The of these statutes function admissibility of on the an incidental effect right, with in a court proceeding.38 render my analysis that would The insists majority It unconstitutional. Michigan’s rape-shield statute39 case that that Supreme holding a Court cites Colorado did not violate its state statute rape-shield state’s a There is powers of separation constitution’s clause.40 attempt to use this large problem majority’s with Supreme The Colorado my analysis. to undermine case had rape-shield noted statute specifically Court that its nature,” it procedural upheld “mixed and and policy any conflicting adopted of rule because of the “absence Thus, Court Supreme this . . .”41 the Colorado by court. very well have reached strongly implied might that court conflicting had there been opposite result contrast, from the By Supreme rule. decisions Tennessee New Washington, Hampshire, Courts directly are on cited in opinion persuasive this point.42 See, opinion (identifying
privilege
e.g., note 17
this
statutes
statutes.
altering
policy
that
identified
substantive law
advance the
considerations
my
Thus,
entirely
approach might
by
majority).
that
it is
sensible
“grounded
policy
yielding
to
in some
result
court rules
statutes
policy
others!.]”
. . .
at 479. The
reasons behind
concerns
but not
Ante
simply
part
inquiry.
are
statute
single
majority’s response
argument
privilege
is to cite a
The
this
privilege solely
spousal
in the
of court
context
statute
establishes
proceedings.
750.520j.
McKenna,
citing People
n
196 Colo
See ante at 480 &
(1978).
371-372;
FAITHFUL TO THE IT AUTHORITIES ON WHICH RELIED Unfortunately, the previous entire regarding discussion application the of McDougall amounts to much proper ado about so McDou- nothing. because, This is as in just gall, once any “policy consideration” is identified that statute, the supports our corresponding rule —should it nullity.44 conflict —becomes a admissibility types of certain of evidence set court rules. This is precisely Paine, MCL Significant what 768.27a See does. also differences (2006) law, between state and Tenn B J federal (concluding likely that Tennessee’s version of MCL 768.27a is unconsti- Mallard). tutional under conclusion, Because I reach this I need not address whether MCL legislative judiciary’s 768.27a is an unconstitutional intrusion into the authority judicial power to exercise “[t]he the of state” under Const 6, § art 1. (“The McDougall, J., dissenting) See Mich at 62-63 (Cavanagh, majority’s decision, however,
effect of the Legislature to is invite the trample judiciary might arguably whatever of rules concern some thing judicial efficiency, majority’s other than and the decision herein support today offers so little to its conclusion that the matter discussed is legislative ‘questions’ that it substantive invites far more fanciful than Legislature the ones above... . All the need do is determine some 491 Mich Dissenting by Marilyn Opinion J. Kelly, McDougall perfunctorily majority applies 404(b) prevails 768.27a over
concludes ‘over and considerations “policy it is on because based judi- of involving orderly dispatch beyond matters ma- previously explained, . . .”45As cial business’ . McDou- not a one under foregone conclusion is jority’s existing with the nor is in accord bulk gall, Hence, because the issue. authority addressing this to its flawed an incorrect result due majority reaches test, I must address the application McDougall validity McDougall test. McDougall analyzing
I conclude that test (or, at procedural a statute is substantive whether test) overly minimum, majority’s application Thus, disagree I with simplistic and underinclusive. a sen- McDougall “established assertion that majority’s ... rules of evidence sible approach separate procedural *47 ... The of .”46 test should from substantive rules it refined discarded is not consis- be either because authority on purports tent with historical which to be based.47 of is
First,
majority’s
McDougall
application
of
paragraphs
The
a mere four
cursory.
majority takes
conclusion that “MCL 768.27a is
analysis
support
its
business,’
dispatch
judicial
questions
and the Court’s
‘mere
of
outside the
aside.”).
may
judicial
regulation
cast
own
of its own
function
be
45
(citation
474-475, quoting McDougall,
Second, the McDougall applied test as is vastly also defining underinclusive in qualify what rules as proce- dural.51 Nor is it faithful authority to the on which it
48Ante at 475.
49See,
(“[A]
e.g.,
Miller,
Joiner &
55 Mich L R at 635
clear-cut
procedure]
[between
purposes
impos
distinction
substance and
for all
formulation.”), citing Riedl,
sible
To what extent
courts under the
rule-making power prescribe
evidence?,
(1940);
rules
26 ABAJ
(2009)
Siebel,
Seisinger
85, 92-93;
(observing
220 Ariz
203 P3d 483
precise dividing
procedure
“the
line
proven
between substance and
‘has
”
relating
present
“[statutes
elusive’ and that
particularly
to evidence
problems,
statutes,
evidence,
difficult
as such
like rules of
often have both
procedural aspects”);
Pavelich,
substantive and
State v
153 Wash
(1929)
383;
(noting
P279 1102
procedure
that “the distinction between
always
understood,
and substantive law is not
well
and is sometimes
indistinct”).
vague and
(“We
McDougall,
appreciate
difficulty
510 by Opinion Marilyn Dissenting Kelly, J. dis- “orderly language The grounded. to be purports as having policy, and “public judicial of business” patch administration” than court something other its basis is and context proper lacks McDougall seized on in law review article of the The authors grossly overstated. as recognized themselves language articulated this that major- McDougall authority on which the much.52 One that include those “practice” of ity that rules relied said conducting, initiating, methodology for “prescribe ,”53 that authority . . . Another concluding litigation procedural cited identified McDougall majority question something very them propose is different. and Miller orderly ‘something particular more than the a involves whether area does, appropriate dispatch judicial then it is not an If of business.’ difficulty position subject by rule. The with this is court for treatment Kentucky much.”); Lawson, Modifying the rules excludes too that it of (2000) issue, Ky powers n separation L J 570 & 259 evidence—A of by McDougall adopted (criticizing that almost identical to standard evidentiary long promulgate majority allowing certain rules as courts — “ involving policy the state matters is other as established as ‘there no judicial “excluding orderly dispatch of business’ ”—as too other than the “many category” noting procedure that of the law from the much procedural and that have substantive and elements evidence rules both unduly judicial upon procedural purity would restrict rulemak- insistence (citation omitted); ing authority”) Dickey, The Florida evidence code and powers distinguish substance and separation doctrine: How of (2004) matters, (recogniz- R procedure L now that it 34 Stetson ing McDougall “treating problem rules of evidence test as one only they procedural if relate to court administration seems too as narrow”). “orderly (noting Amsterdam, & Pa L 23-24 that the 107 U R at Levin test, rigorously,” dispatch judicial “[ajpplied “would if of business” costs, only questions but such not such matters as venue and also exclude suggest presumptions. procedural is not to as the effect This Indeed, they recognize proponents apply that theirs the test so it. would questions expected be to answer all is which should formulation Miller, added), citing rule-making authority.”) (emphasis Joiner & (“The Miller, 629; power L R at R at see Joiner & Mich L also indeed.”). very practice rules broad of a court establish Miller, at & Mich L R 635-636. Joiner *49 511 Dissenting Opinion by Marilyn Kelly, J. upon rules as those “based concerned with the policies reliability orderly or relevance of or the proof dispatch judicial of business.”54
The McDougall ignores major- test also that the vast ity commentators, of and again including courts those relied on by McDougall the have concluded majority, of Thus, most rules evidence are procedural.55 majority’s attempt my to of Mc- counter criticism the Dougall test “vastly by calling my as underinclusive” “vastly approach overinclusive” is McDou- unavailing.56 sharply limited gall’s “judicial of business” dispatch test, at least as applied, invites the to Legislature supersede Michigan most of the Rules of Evidence. Under McDougall, nearly every rule can be character- ized as substantive.57
Finally, the McDougall
test gives
Legislature
license to
impunity
intrude with
the province
into
of the
judiciary provided that it divines a “substantive” label
statutory
for its
irrespective
This
so
of
is
enactments.58
54 Honigman Hawkins,
60, p
3
&
ch
403.
(“Most
Miller,
&
Joiner
R
Mich L at 651
rales of evidence involve
only
orderly dispatch
judicial
subject
business and should be
to
rule.”);
(“Rules
Opinion
Justices,
evidence,
court
141 NH 570
at
instances,
only
practice
in
procedure.”);
most
relate
to
and
State ex rel
(1984)
Seidel,
(“Rules
590;
Collins v
142 Ariz
56Ante at 478.
McDougall,
J.,
See
(CAVANAGH, dissenting)
also
whether that which Surely delegates involved procedural. stantive intend to allow 6, § did not article crafting authority regulate neuter this Court’s Legislature to in this fashion. “practice procedure” McDougall that the reasons, I conclude For all these substance/procedure question resolving test for *50 the minimum, majority’s At a fundamentally flawed. inad- of it demonstrates how application mechanical questions presented difficult it is to resolve the equate in the I would refine the test such as this. by cases if test be opinion in the cannot manner described this majority the un- appears because altogether, discarded consistently with its apply unable it willing or to genesis.59 intellectual AND MRE
MCL 768.27a 403 uncon- I strike down MCL 768.27a as Because would me stitutional, unnecessary qu.es- it for to reach the is fit.”); change Legislature as to the to its cards it sees ill-defmed as allow judicial Glicksman, powers Legislative Separation versus roles conflict: of (2000) 443, Cooley development, L TM R 456-457 in evidence law (“Should many application, McDougall find of our case ever uniform judgments, policy as and reflect such rules of evidence that contain rules, subsequent repair rule, proofs, hearsay im character evidence conviction, payment by prior compromises peachment of medical and by merely changed legislature suggesting expenses, by could be targets change.”); they State v law and remain free are substantive (1990) (“[I]t J., concurring) 5, 13; (Turner, Sypult, Ark SW2d legislative say simply that we will defer to enactment is not sufficient to fact, policy’; public all enactments of the General all of on ‘matters ”). policy.’ Assembly ‘public of become matters Hawkins, McDougall, citing Honigman p & 461 Mich at See Miller, L R in the text and & at 650-651. As noted and Joiner (as by opinion, McDougall applied throughout this test footnotes Accordingly, utterly majority) those is test unfaithful sources. is McDougall majority’s misapprehension of those sources born both of imagination. and its own Dissenting Opinion Marilyn Kelly, J. tion of how MCL 768.27a and MRE 403 interact. 404(b) Other-acts evidence admitted pursuant MRE indisputably subject balancing under MRE 403. Thus, III(C) I do not reach the issues discussed in parts (D) the majority of opinion.
APPLICATION I would hold that MCL an 768.27a is unconstitutional violation the separation of powers provision forth set 6, § Const art 5. In Watkins, the Court Appeals erroneously concluded that the did statute violate separation of powers and that much Watkins had been properly admitted under MCL Therefore, 768.27a. I would reverse the judgment of the Court Appeals and remand Watkins for a I new trial. would direct the trial court to use MRE
404(b) 403 on remand to evaluate the admis- sibility of the other-acts evidence. Pullen,
In
I would affirm the judgment of the Court of
Appeals. Although the trial court
by concluding
erred
the other-acts evidence was admissible under MCL
*51
768.27a, the error was harmless because the court ex
cluded the evidence under MRE
“Rule
403.
403 determi
nations are best left to a contemporaneous
of
assessment
presentation,
the
credibility, and
testimony” by
effect of
the trial
In
case,
court.60
the
this
trial court’s decision to
exclude the evidence
within
range
was
the
of principled
and, therefore,
outcomes
not an abuse of discretion.61
The majority
four purported
identifies
in the
flaws
Pullen trial court’s application
disagree
of MRE 403. I
60
(1993).
People VanderVliet,
52, 81;
v
444 Mich
NW2d 114
508
61
Babcock,
(2003)
247, 269;
(holding
with each With noted, I conclude that MCL 768.27a would previously Thus, question I need reach the not unconstitutional. differently to evidence apply MRE 403 whether would MRE than under under the statute rather admitted 404(b). only is admissible under evidence Other-acts admission to show 404(b), which does allow its to commit the propensity defendant had a that a in Hence, the evidence charged offenses.62 other-acts purpose. not admissible for that Pullen was to pro- was not admissible show Because to by “failfing] weigh trial did not err pensity, the court favor of the evidence’s probative inference in propensity in favor of the required “weigh value.”63Nor was it the extent to which the other- probative evidence’s value credibility and rebut- supported acts evidence victim’s ted the defense’s attack thereof.”64 trial
Next, majority’s I criticism that the question the court all the other-acts evidence “lumped” together each act Neither considering separately. rather than any authority nor the cites majority prosecution that a court must consider support proposition trial an separately conducting each act when MRE 403 other I for analysis.65 Consequently, concluding see no basis 40403) (“Evidence crimes, wrongs, other is not See MRE or acts person prove the character of a in order to show action admissible to therewith.”). conformity 492. Ante at at 492. Ante However, authority my position I it is the not cite either. do majority, making point, new this that bears burden of law on authority. rely language providing attempts It on the of MRE but First, just easily read as is dubious. one can as MRE 403 reliance providing probative if “[all other-acts] evidence excluded he its substantially outweighed by danger prejudice unfair .. . .” value is added.) Second, majority selectively quotes (Emphasis the rule *52 Dissenting Opinion by Marilyn Kelly, J. that the trial court made a legal error this respect. reason, For this I believe the majority’s decision other- wise violates our often stated rule that “[a]n abuse of discretion far involves more than a injudicial difference opinion.”66
Finally, the majority remands for further proceedings for the trial court to consider whether evidence of Pullen’s previous indecent exposure is admissible under 404(b). MRE I fail to see how the trial court can apply MRE 403 to that differently if it is admitted 404(b) under MRE rather than under MCL 768.27a.67 Under either avenue of admissibility, MRE 403 requires if, exclusion among things, other the evidence’s “proba- tive value is substantially outweighed by the danger of unfair prejudice . . . .”68 remand,
On
evidence of
prior
exposure
indecent
404(b).
404(b)
be admitted only under MRE
does not allow other-acts evidence to be admitted to show
propensity
bad character. Therefore, if anything, the
prior-indecent-exposure evidence will have
probative
less
404(b)
value under MRE
than it did when the trial court
evaluated it under MCL 768.27a. Moreover, MRE 403
continues to
with full
apply
force to that evidence. Conse-
omitting
language preceding
all
presentation
“needless
of cumulative
evidence”
language
to holster its
supports
conclusion that the rule’s
its
presentation
conclusion. But the “needless
of cumulative evidence” is hut
finding
one basis for
the evidence excludable.
66Alken-Ziegler,
Waterbury
Corp,
219, 227;
Inc v
Headers
461 Mich
(1999), citing
Hofley
Co,
NW2d
Mfg
603, 619;
Williams v
(1988).
quently, differently. out would come balancing MRE 403 court’s the trial summarily dismisses majority The also the other-acts finding stated basis for court’s second concluding Pullen. After unfairly to prejudicial “highly probable” evidence would be that other-acts the court stated: prejudice jury, to fundamentally that it be The Court also finds would process [Pullen] force of due unfair and violation years ago for which defend accusations from over in an untenable charges [Pullen] never filed. were greatly try disprove dated position to more serious so, unlikely to do and to charges. It is that he would be able manifestly unjust. require him to do so would be how this alternative basis majority explain does the other-acts evidence also constituted excluding Instead, suggests an of discretion. abuse sexual abuse report alleging evidence in the 1989 police on this daughter, “equally prejudicial of Pullen’s while basis,” How is this “varying probative has values.”69 20-year-old the introduction of evi- relevant? Whether un- “fundamentally “manifestly dence is unfair” value, and just” nothing probative has to do with its effect. The trial everything prejudicial to do with its inherently a determination that court’s conclusion was value, it probative whatever the evidence’s would be by prejudicial its effect and violate Pullen’s outweighed rights. Thus, the evidence have “varying nothing values” does to undermine the trial probative in court’s this context. ruling I am that the Pullen trial Accordingly, not convinced court MRE 403 conducting abused its discretion its Appeals’ judg- I would affirm the Court of balancing. ment.
69 Ante at 495-496 n 97. People v Watkins Dissenting Opinion Marilyn J. Kelly,
CONCLUSION I agree majority with the that MCL 768.27a and MRE 404(b) irreconcilably However, conflict. I from dissent majority’s conclusion that MCL prevails 768.27a 404(b). I over would hold that MCL 768.27a anis legislative unconstitutional intrusion into the power I judiciary. Accordingly, would vacate the convic- tions in and remand Watkins the case for a new trial. I affirm the judgments would lower court Pullen that excluded the substantially other-acts evidence as more than prejudicial probative under MRE 403.
Cavanagh Marilyn JJ., Hathaway, concurred with J. Kelly,