Under most circumstances, evidence of the prior criminal behavior of a defendant cannot be introduced at a trial which involves a new, unrelated crime. The overriding theory has always been that, if a jury hears that the defendant has engaged in conduct similar to the crime for which he is on trial, they will undoubtedly assume that he is guilty of the new crime, regardless of the weight or credibility of the evidence presented against him as to the new charge.. A rational and common sense concern, right ?

Unfortunately for those accused of crimes, Florida has codified the ruling in Williams v State, 110 So2d 654( Fla 1959) in Florida Rule of Evidence 90.404 (2) to permit the introduction of “similar fact evidence” where such evidence is relevant to establish a “common scheme, motive, plan or identity” between the crime charged and the previous criminal behavior. Powerful evidence indeed, especially when the prosecution has holes to fill in its case in chief.

The obvious concern is that such evidence of prior crimes will be viewed by the jury, not for the limited purpose for which the rule applies, but merely to conclude that the defendant is a “bad guy” who “must” have committed the new crime, regardless of the evidence against him.

Now there are some statutory “safeguards” which are intended to prevent the admission of similar fact evidence to merely prove “propensity” to commit a crime. Rule 404 provides that the Court must hold a hearing, prior to trial,to determine whether the evidence is actually relevant to an issue in the trial at hand. Even if this requirement is satisfied, the court must then decide whether the probative value of the evidence is outweighed by the potential prejudice to the defendant. If so, the evidence must be excluded. In addition, the similar fact evidence cannot become a “feature” of the trial, which overshadows the present case against the defendant.

Any experienced attornery, when faced with this issue, should immediately file a “motion in limine” to exclude such evidence and request a hearing pursuant to the provisions of Rule 404. Since recent appellate decisions have tended to view the admission of such evidence with heightened scrutiny, all defense attorneys should insure that proper and vigorous objections are made, both before and at trial, in order to protect their clients' rights and preserve a proper record for appeal.

Our system of criminal justice is intended to guarantee a fair trial to the accused and insure that a conviction is based upon competent evidence which establishes guilt beyond a reasonable doubt. At the same time, the safeguards which are built into the narrow exception within Florida law which makes otherwise excluded evidence admissible for very limited purposes must be vigorously protected.