Despite the bad results, there was a pretty big prior bad acts evidence ruling in State v. Gunby, No. 91,406 (Kan. Oct. 27, 2006), everyone should read. Justice Beier washed away years of bad law regarding evidence admissible independent of K.S.A. 60-455 and/or res gestae.
Our increasingly elastic approach to the admission of evidence of other crimes and civil wrongs is overdue for correction, as are the two problems that gave rise to the practice of admitting such evidence independent of K.S.A. 60-455.
We hereby state unequivocally that the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. It may be that other crimes and civil wrongs evidence is relevant and admissible to prove a material fact other than the eight listed. Should this be a district judge's determination; however, the evidence must be subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction we have required when any other K.S.A. 60-455 evidence is admitted.
This enables our return to sensible application of K.S.A. 60-455 and puts an end to the practice of admission of other crimes and civil wrongs evidence independent of it. It recognizes that the list in the statute has always been inclusive rather than exclusive, and that the several ways around application of and safeguards attendant to K.S.A. 60-455 must be abandoned, not only because they lack reliable precedent but because they were never necessary in the first place. Other crimes and civil wrongs evidence that passes the relevance and prejudice tests we have set up and is accompanied by an appropriate limiting instruction should always have been admissible, even if the particular material fact on which it was probative was not explicitly set forth in the statute. It never actually required a specially designed rule to admit it independent of the statute. Rather, such evidence, if permitted to do so, would have fallen squarely within it. We disapprove any language to the contrary in our previous opinions. Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.
Having explained the correct interpretation of K.S.A. 60-455, we also reject res gestae as a legitimate independent basis for the admission of other crimes and civil wrongs evidence in Kansas. Any other crimes and civil wrongs evidence that may be characterized as res gestae should henceforth be analyzed under K.S.A. 60-455.
This case provides an opportunity to end this particular confusion of thought, and we hereby do so. The concept of res gestae is dead as an independent basis for admissibility of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.
So that's the good news. The KSC finally says what some justices and several KSC judges have said for quite a while--the rules of evidence should all apply to all admitted evidence. K.S.A. 60-455 was never a rule of admission, it was a rule of limitation.
The bad news is that the KSC said that failure to give a limiting instruction is not automatically reversible. We have had some luck in these type of cases by trying to make this an instruction issue, not an evidentiary issue. No more.
In short, a trial judge should give such a K.S.A. 60-455 limiting instruction, but the failure to do so, though error, will no longer demand automatic reversal. Where the complaining party neither requested the instruction nor objected to its omission, the failure to give the instruction will be reversible only if clearly erroneous. . . . In the event a K.S.A. 60-455 limiting instruction was sought at trial and refused in error, we will examine the error for harmlessness under the typical rule of K.S.A. 60-261 (error must be "inconsistent with substantial justice").Overall, I think this is good. Hopefully it will help trial practitioners keep this evidence out in many more cases. And when it comes in, we get de novo review on the admission issue. If there is any sort of prior bad act evidence admitted, be sure to request a limiting instruction. And if the state tries to admit prior bad act evidence not related to a statutory factor, be sure to hold its feet to the fire to explain why the evidence is so material that it should be admitted.
BTW: Apparently, it just goes to show how Rick Kittel is always working on the cutting edge and why we should just do what he says. Here is his suggestion from about 10 months before Gunby was decided.