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Full Opinion
These consolidated cases involve MCL 768.27a(l), which provides in relevant part that “in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.”
I. FACTS AND PROCEDURAL HISTORY
A. DOCKET NO. 142031
In Docket No. 142031, defendant, Lincoln Anderson Watkins, appeals by leave granted the judgment of the Court of Appeals affirming his convictions and sentences. Watkins was charged with five counts of first-degree criminal sexual conduct (CSC-I)
The Court of Appeals summarized the allegations of sexual abuse that the prosecution presented at the pretrial stage:
*457 The victim in the instant case was a 12-year-old girl whose family lived next door to defendant and whose father was defendant’s business partner. The victim had known defendant and his wife since she was two years old and regarded defendant as a father figure. The victim babysat defendant’s youngest child. In May 2006, defendant showed her a picture of his penis being inserted into a vagina. The next day, while she was playing video games with defendant’s daughter in his bedroom, he touched her breasts. The day after that incident the victim was again babysitting at defendant’s house when defendant sent his daughter into another room, unbuttoned the victim’s pants, and told her to pull them down and get on his bed. She stood up and pulled down her pants, and when she bent over, defendant inserted his penis into her vagina from behind repeatedly until he ejaculated. She and defendant engaged in intercourse again in his bedroom the following day while she was babysitting his daughter. The victim claimed that she and defendant engaged in intercourse yet another time in defendant’s bedroom and one time in his living room. The victim alleged that, about two weeks later, defendant asked her if she wanted to have sex, but she declined because she was menstruating. The victim claimed that defendant nevertheless instructed her to stand up and lift her skirt, and, when she complied, he inserted his penis into her vagina. The victim asserted that she worried that defendant might force her to have sexual intercourse in the future, so she told her mother that she had been having a sexual relationship with defendant.[5]
Before trial, the prosecution filed a motion to introduce evidence of other acts to establish a common plan or scheme, as permitted under MRE 404(b).
At the first trial, [EW] testified that defendant’s wife is her first cousin and that she [EW] met defendant when she was 14 years old. [EW] loved defendant like a brother and often babysat for defendant’s children. On one occasion when she was 15 years old, she visited defendant and his wife for the weekend and helped them with their infant. While alone with [EW], defendant commented on her sexual attractiveness, took her hand, and began leading her up the stairs to his bedroom on the second floor. [EW] was reluctant to go upstairs, so defendant pulled down her pants and inserted his penis into her vagina while they were still in the hallway. After eventually moving to defendant’s bedroom, they continued having intercourse until defendant ejaculated. [EW] stated that the episode began a two-year sexual relationship, during which they had sexual encounters about 15 different times at defendant’s home, her mother’s home, and in empty houses where defendant was painting. [EW] explained that defendant included her in his family; they went to an amusement park together, went out to eat together, and watched movies together.[8]
Following the close of trial, the jury commenced deliberations but was unable to reach a verdict. Consequently, the trial court declared a mistrial.
The trial court declared a second mistrial when it learned that a juror had overheard a supervisor in the prosecutor’s office comment about the court’s exclusion of the other-acts evidence while riding in a courthouse elevator. Meanwhile, the Court of Appeals peremptorily reversed the trial court’s decision to exclude EW’s testimony and remanded the case to the trial court with instructions for it to determine which aspects of EW’s proposed testimony were admissible under MCL 768.27a as evidence of criminal sexual conduct against a minor. Subsequently, this Court vacated the Court of Appeals’ order and remanded the case to the Court of Appeals with directions to consider whether MCL 768.27a conflicted with MRE 404(b) and, if so, whether the statute prevailed over the rule of evidence.
In a published opinion, the Court of Appeals held that MCL 768.27a conflicted with MRE 404(b) and that the statute prevailed over the rule of evidence.
At the third trial, the victim, then 15 years old, testified that she had known Watkins all her life, having lived next door to him and having occasionally babysat one of his children. She also stated that she was good friends with Watkins’s wife, whom she considered her godmother. She considered Watkins her boyfriend. According to the victim, when she was 12 years old, Watkins approached her at a Memorial Day gathering and showed her sexually explicit images that were on his cell phone. She claimed that Watkins touched her breasts the next time she babysat and penetrated her vaginally the day after that. This conduct allegedly occurred consensually for the next couple of weeks. Sometime thereafter, when the victim arrived to babysit, she declined Watkins’s request to engage in sexual activity because she was menstruating. She testified that Watkins’s insistence disturbed her and she thought he might rape her. She told her mother what had happened. Although the victim did not want to get Watkins in trouble, she agreed to speak with the police.
The trial court allowed EW to testify regarding other-acts evidence under MCL 768.27a. According to EW; about 10 years earlier, when she was 15 years old, she had often babysat Watkins’s oldest child. She testified that, during one visit, Watkins led her upstairs by the hand. He allegedly began kissing her, and their interactions culminated in sexual penetration. According to EW, their sexual relationship lasted a couple of years.
Watkins raised several arguments on appeal, including that MCL 768.27a conflicts with MRE 404(b) and the rule of evidence prevails over the statute; that EW’s testimony should have been excluded under MRE 403, which the trial court failed to consider; and that the trial court failed to hold a hearing to determine the proper scope of EW’s testimony.
The Court of Appeals affirmed in an unpublished opinion per curiam.
The evidence that defendant had assaulted another minor.. . was relevant because it tended to show that it was more probable than not that the victim was telling the truth. The similarity of the relationships (E.W was defendant’s wife’s cousin while the victim thought of his wife as a godmother) and defendant’s modus operandi (taking advantage of minors who had a close relationship with his wife and were present in his home to baby sit) also made the likelihood of defendant’s behavior toward the victim more probable. Moreover, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Whether the victim was telling the truth had significant probative value in deciding whether defendant should be convicted of the crimes for which he was charged. Further, defense counsel was able to effectively cross-examine E.W regarding the fact that she thought of defendant as her boyfriend and maintained contact with him after their relationship ended, even expressing a desire to have his child. Finally, the court instructed the jury on how to properly use the other acts evidence^][18]
Thus, the Court of Appeals concluded that the testimony was relevant and not more prejudicial than probative and that any error by the trial court was harmless.
Finally, the Court of Appeals concluded that the trial court had abused its discretion when it failed to determine which aspects of EW’s testimony met the requirements of MCL 768.27a.
(1) whether MCL 768.27a conflicts with MRE 404(b) and, if it does, (2) whether the statute prevails over the court rule . .., (3) whether the omission of any reference to MRE 403 in MCL 768.27a (as compared to MCL 768.27b(l)), while mandating that evidence of other offenses “is admissible and may be considered for its bearing on any matter to which it is relevant,” would violate a defendant’s due process right to a fair trial, and (4) whether MCL 768.27a interferes with the judicial power to ensure that a criminal defendant receives a fair trial, a power exclusively vested in the courts of this state under Const 1963, art 6, § if.[25]
B. DOCKET NO. 142751
In Docket No. 142751, the prosecution appeals by leave granted the judgment of the Court of Appeals
Before trial, the prosecution filed a notice of intent to introduce under MCL 768.27a other acts of sexual misconduct against a minor. Specifically, the prosecution sought to introduce a 1989 police report containing allegations that Pullen had sexually abused his then 16-year-old daughter. In the report, Pullen’s daughter alleged multiple instances of digital penetration in which he “checked if [she] was still a virgin.” In addition, the report contained allegations that defendant had frequently touched his daughter’s breasts, buttocks, and genital area while wrestling and massaging her back, had repeatedly walked in on her while she was undressed, and had arranged to expose himself to her when he was bathing. Although Pullen had apparently admitted engaging in some of the conduct alleged in the report, including the digital penetration, criminal charges were never filed.
[I]t is the opinion of this Court that the prejudicial impact of the evidence proffered by the People substantially outweighs the probative value because it involves more serious facts than those in the case at bar. [Pullen] is charged with having sexual contact with his granddaughter, as well as exposing himself to his granddaughter. The police report from 1989 sets forth facts of a long pattern of sexual abuse by [Pullen] against his daughter, including multiple digital penetrations .... According to the police report, [Pullen] admitted to police that he had perpetrated these acts upon his daughter. Should this evidence be presented to the jury, it is highly probable that the jury would not be able to separate the two cases and would likely decide the case based on emotional impact rather than logical reasons. Thus, this evidence does not survive the balancing test of MRE 403 and is not admissible.
The Court also finds that it would be fundamentally unfair and a violation of due process to force [Pullen] to defend accusations from over 20 years ago for which charges were never filed. [Pullen] is in an untenable position to try to disprove more serious and greatly dated charges. It is unlikely that he would be able to do so, and to require him to do so would be manifestly unjust.
Following the ruling, the trial court agreed to stay the trial court proceedings to allow the prosecution to pursue an appeal. The Court of Appeals granted the prosecution’s interlocutory application for leave to appeal and affirmed the trial court’s ruling in an unpub
Even given the fact that the evidence is relevant because the past conduct also involves a family member, it is highly likely that the jury would convict defendant solely based on his past conduct out of inflamed passion, anger or shock. In addition, because the prior conduct did not result in a conviction or even in the filing of charges, the trial court correctly observed that the necessary presentation of this evidence concerning the earlier alleged conduct would not only overshadow the question of defendant’s guilt that is directly at issue in the instant case, it would be virtually impossible for defendant to defend himself against the earlier unproven allegations.[29]
The prosecution applied for leave to appeal in this Court. We granted leave, instructing the parties to address
(1) whether the omission of any reference to MRE 403 in MCL 768.27a (as compared to MCL 768.27b(l)), while mandating that evidence of other offenses “is admissible and may be considered for its bearing on any matter to which it is relevant,” would violate a defendant’s due process right to a fair trial and (2) whether the Court should rule that evidence of other offenses described in MCL 768.27a is admissible only if it is not otherwise excluded under MRE 403.[30]
II. STANDARD OF REVIEW
Constitutional questions and issues of statutory interpretation are questions of law, which this Court
III. ANALYSIS
A. MCL 768.27a AND MRE 404(b) CONFLICT
Addressing whether MCL 768.27a prevails over MRE 404(b) requires the initial determination whether the statute and court rule irreconcilably conflict.
When construing a statute, whether to determine the existence of a conflict or otherwise, our primary objective remains the same: to ascertain and give effect to the Legislature’s intent.
In this case, we have little trouble concluding that MCL 768.27a and MRE 404(b) irreconcilably conflict. MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Thus, MRE 404(b) requires the exclusion of other-acts evidence if its only relevance is to show the defendant’s character or propensity to commit the charged offense.
By contrast, MCL 768.27a provides:
(1) Notwithstanding [MCL 768.27],[44] in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.
(2) As used in this section:
(a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.
(b) “Minor” means an individual less than 18 years of age.
Of significance here is the statutory language allowing the admission of evidence that defendant committed
As the Court of Appeals has explained, “our cases have never suggested that a defendant’s criminal history and propensity for committing a particular type of crime is irrelevant to a similar charge.”
That the Legislature envisioned and intended the statute to supersede MRE 404(b) is unmistakable given the statute’s prefatory phrase “[notwithstanding
Although an issue of first impression for this Court, federal courts have concluded that FRE 414,
When a defendant is charged with a sexual offense against a minor, MCL 768.27a allows prosecutors to introduce evidence of a defendant’s uncharged sexual offenses against minors without having to justify their admissibility under MRE 404(b). In many cases, it allows evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted in this limited context.[54]
We reach the same conclusion. Because we cannot read MCL 768.27a and MRE 404(b) in harmony, the question becomes which decree prevails — that of the Legislature or that of the judiciary.
B. MCL 768.27a PREVAILS OVER MRE 404(b)
A rule of evidence will prevail over a conflicting statute only if the statute unconstitutionally infringes on this Court’s authority under Const 1963, art 6, § 5 to “establish, modify, amend and simplify the practice and procedure in all courts of this state.” In accordance with separation-of-powers principles, this Court’s authority in matters of practice and procedure is exclusive and
McDougall v Schanz addressed whether MCL 600.2169, a statute requiring that expert witnesses offered in medical malpractice actions possess certain medical practice or teaching experience, violated the Court’s exclusive authority regarding rules of practice and procedure.
But our analysis does not end upon reaching this conclusion. In McDougall, we rejected the mechanical
[A] statutory rule of evidence violates Const 1963, art 6, § 5 only when “ ‘no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified....’” Therefore, “ [i]f a particular court rule contravenes a legislatively declared principle of public policy, having as its basis something other than court administration... the [court] rule should yield.” We agree . .. that “[m]ost rules of evidence have been made by courts. Now and then the legislature has, as a result of policy consideration [sic] over and beyond matters involving the orderly dispatch of judicial business, enacted rules of evidence. The distinction previously pointed out between policy considerations involving the orderly dispatch of judicial business on the one hand and policy considerations involving something more than that on the other hand is the distinction that must be carried through into the evidence field.”[60]
Thus, statutory rules of evidence that reflect policy considerations limited to “the orderly dispatch of judicial business,” i.e., court administration, are procedural and violate Const 1963, art 6, § 5. But statutory rules of evidence that reflect policy considerations “over and beyond matters involving the orderly dispatch of judicial business” are substantive, and in the case of a conflict with a court rule, the legislative enactment prevails. As noted in McDougall, procedural rules of evidence involving the orderly dispatch of judicial business are “ ‘those rules of evidence designed to allow the adjudicatory process to function effectively.... Ex-
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 considerations over and beyond the orderly dispatch of judicial business. We note several policy reasons that support the Legislature’s decision to allow other-acts evidence in cases involving sexual misconduct against minors. As the United States Supreme Court has observed, “[w]hen convicted sex offenders [including child molesters] reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.”
In sum, the reasons for enacting MCL 768.27a were not to further the orderly dispatch of judicial business, but to address a substantive concern about the protection of children and the prosecution of persons who perpetrate certain enumerated crimes against children and are more likely than others to reoffend. Accordingly, we hold that MCL 768.27a does not run afoul of
The dissent would instead hold that MCL 768.27a is unconstitutional. The dissent first takes the position that MCL 768.27a should fail the McDougall test because the statute primarily concerns the judicial dispatch of litigation, which the dissent says is true of all rules that have the “effect” of “telling [courts] what evidence juries can hear.”
Alternatively, the dissent would refine or discard the McDougall test. The dissent’s proposed test would treat the legislative policy concerns surrounding a statute’s enactment as irrelevant to whether an evidentiary rule is substantive or procedural.
The dissent cites the rules of privilege as an example of an area of substantive rulemaking. But rules relating to privilege still serve the exclusive function of telling the courts what evidence is admissible at trial and, therefore, would be procedural under the dissent’s test. Privilege rules function to dictate the admissibility of communications made between parties in certain relationships; accordingly, privilege rules tell the courts what evidence is admissible at trial.
Finally, we note as one example that the dissent’s proposed test would mean the end of Michigan’s rape-shield statute, MCL 750.520j, a consequence that the dissent does not dispute. Yet the United States Supreme
C. MCL 768.27a REMAINS SUBJECT TO MRE 403
Having determined that MCL 768.27a is a valid enactment of substantive law, the question remains whether evidence admissible under the statute may nonetheless be excluded under MRE 403. For the reasons that follow, we hold that evidence admissible pursuant to MCL 768.27a may nonetheless be excluded under MRE 403 if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The argument against applying MRE 403 to evidence admissible under MCL 768.27a comes not from the text of either MRE 403 or MCL 768.27a, but from the text of MCL 768.27b, which pertains to other-acts evidence in domestic violence cases. MCL 768.27b provides that “evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403.”
Unlike MCL 768.27b, MCL 768.27a does not explicitly mention MRE 403: “Notwithstanding [MCL 768.27], . . . evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant.” Accordingly, it is argued that if the Legislature expressly made other-acts evidence under MCL 768.27b subject to MRE 403 in cases of domestic violence, then the failure to mention MRE 403 in MCL 768.27a indicates that the Legislature did not intend MRE 403 to apply with regard to other-acts evidence in cases involving sexual misconduct against minors. We reject the invitation to draw this inference.
Significantly, the Legislature did not draft these statutes simultaneously. MCL 768.27a was enacted by 2005 PA 135, which became effective January 1, 2006, whereas MCL 768.27b was enacted by 2006 PA 78, which became effective March 24, 2006. The Legislature’s “silence” from which it is urged we draw an inference occurred in the earlier enactment. It is one thing to infer legislative intent through silence in a simultaneous or subsequent enactment, but quite another to infer legislative intent through silence in an earlier enactment, which is only “silent” by virtue of the subsequent enactment.
We are also mindful of “considering] whether [the statute and rule of evidence] can be construed so as not to conflict,”
Furthermore, as the United States Supreme Court has observed,
“not every silence is pregnant.” In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress’ silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.[79]
In closely examining the statutes, all other textual and contextual evidence of the Legislature’s intent runs contrary to inferring that MRE 403 does not apply to evidence admissible under MCL 768.27a. Despite 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 MCL 768.27a, “evidence that the defendant committed another listed offense against a minor is admissible,” but the statute goes on to provide that such evidence “may be considered for its bearing on any matter to which it is relevant.”
By contrast, MCL 768.27b contains no permissive language. MCL 768.27b(l) simply provides that “evidence of the defendant’s commission of other acts of domestic violence is admissible for any purpose for which it is relevant. . . .” Perhaps it was the choice to omit the permissive language that prompted the Legislature to qualify the admissibility of other-acts evidence under MCL 768.27b with the language “if it is not otherwise excluded under Michigan rule of evidence 403.” We choose not to speculate in this regard. Whatever motivated the Legislature to draft the statutes differently, we must give meaning to the permissive term “may” used by the Legislature in MCL 768.27a.
In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or