Other Bad 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.

Michigan Criminal Defense Attorneys - Group

Michigan 404(b) – Other Bad Acts Evidence

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

Disreputable Prosecutors Play Fast and Loose with Other Bad Acts Evidence Rules

Although the rule has always required that the prosecutor provide advance notice to the defense if it intends to introduce “other acts evidence,” prosecutors have played fast and loose with the notice requirement. The defendant’s lawyer would often get a notice during the 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 during the trial; however, the burden is now a bit higher. The important changes are 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 the trial” have been deleted; however, the rule does not prevent the notice from being provided during the trial.

Michigan Criminal Defense Attorney

Experienced Misdemeanor Representation in Federal or State Court

If you are charged with a criminal offense, you need the best representation possible to be protected in court and given the best defense possible. For felony or misdemeanor representation in federal or state court, call LEWIS & DICKSTEIN, P.L.L.C. We will find a way to help you.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.

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The text of the new order is as follows:

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.