Isn't propensity evidence always propensity evidence?

One possible use of this blog is to foster communication between appellate defenders and trial attorneys. We often have ideas about possible new ideas, but unless there are objections to evidence or requests for instructions or the like, it is difficult/impossible to get good review on appeal. Also, trial attorneys might have had success with some objections/motions and want to pass it along to other trial attorneys. So, if you have any ideas, let me know.

Rick Kittel made this suggestion:

I've had a couple cases recently, and more going back, where the state has been allowed to produce evidence of prior crimes of the defendant independent of 60-455 for the purpose of showing the relationship of the parties. It seems to me that in these situations, even if 60-455 is not involved, there should be a limiting instruction given to the jury.

1. Other crimes evidence is so problematic and potentially prejudicial that 60-455 was created to deal with the problem and interpretation of that statute has required a limiting instruction be given.

2. Numerous cases have held that prior crimes evidence may not be used by the jury to form the inference that becuse the defendant committed prior similar crimes that he must have committed the current crime. One of the 11 principles of Bly is that evidence of other crimes is inadmissilbe if its only purpose is to show the defendant's propensity to commit crimes. But isn't that what evidence of prior crimes does when it is admitted independent of 60-445 to show the relationship of the parties? It just shows the defendant has a history or an inclination to commit crimes against a particular victim.

3. If prior crimes evidence cannot be used by a jury to form these improper inferences, then the jury should be given a limiting instruction specifically stating as much, even when evidence is admitted independent of 60-455. Although I don't think there's really any difference between relationship and continuing course of conduct on the one hand and propensity to commit crime on the other, the jury should be specifically instructed that it cannot use the prior crimes evidence to form the inference that the defendant has a propensity to commit crimes.

4. This issue, of course, won't fly unless it's raised in the trial court.

I think anytime this issue comes up defense counsel should start arguing (1) relationship and contining course of conduct is just another way of saying propensity to commit crimes and therefore such evidence is inadmissible under 60-455 and (2) the concept of admission of evidence independent of 60-455 should be abandoned and the statute should be applied in all circumstances when other crimes evidence is at issue, and (3) even if evidence is admitted independent of 60-455 a limiting instruction should be given.

So be sure to think about a request for a limiting instruction when any of this bad-acts type evidence is admitted "independent" of 60-455. Although the law is not good right now, maybe your case will establish the precedent making better law!