Michigan Rule of Evidence 404(b) – Other Acts Evidence

The general trend in Michigan courts and in the legislature is to make crimes easier to prove, increase evidence, and facilitate the introduction of evidence for the prosecutor. One of the most troubling types of evidence for defendants seeking a just and fair outcome is evidence of “other crimes, wrongs and acts.”

Under Michigan Rule of Evidence 404(b), the prosecutor may introduce evidence of totally unrelated acts and prior crimes, if there is a legitimate reason and the evidence is relevant. The only purpose that this type of evidence cannot be introduced is if the sole purpose is to show the defendant’s propensity to commit crimes. In other words, if the evidence is introduced to show motive, intent, lack of mistake, scheme, or system in doing an act, the evidence would likely be admissible.

Michigan Rule of Evidence 404b

Although the rule has always required that the prosecutor give notice to the defense if it intends to introduce “other acts evidence,” prosecutors have played fast and loose with the notice requirement. Often times, the defendant’s lawyer would get notice during trial when there is no time to prepare or investigate the former offense or act.

The Michigan Supreme Court has amended the rule and now makes the notice requirement a bit more meaningful. This is not to say that a prosecutor could not give notice now during trial; however, the burden to be able to do so is now a bit higher. The important changes is that instead of “reasonable notice at least 14 days before trial”, the rule now requires that the notice be “written” or “oral on the record” (this means in open court and in front of the judge). The words allowing for the notice to be “during trial” have been deleted; however, the rule does not prevent notice from being provided during trial.

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The text of the new order is as follows:

Order

October 11, 2017 Amendment of Rule 404 of the Michigan Rules of Evidence

On order of the Court:

Rule 404 Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) [Unchanged.]

(b) Other crimes, wrongs, or acts.

(1) [Unchanged.] (2) The prosecution in a criminal case shall provide written notice at least 14 days in advance of trial, or orally on the record later if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting the evidence. If necessary to a determination of the admissibility of the evidence under this rule, the defendant shall be required to state the theory or theories of defense, limited only by the defendant’s privilege against self-incrimination.

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