Section 11.11 Evidence of Other Crimes or Wrongs Committed by Defendant

• Library: Evidence 2017

V. (§11.11) Evidence of Other Crimes or Wrongs Committed by Defendant

As a general rule, in the prosecution for one crime, evidence of another crime is not admissible to prove that the defendant acted similarly in the case at issue. This is premised on the right of the accused to be tried only for the crimes charged. State v. Burns, 978 S.W.2d 759, 760–62 (Mo. banc 1998). The risk is that the defendant will be convicted of crimes with which the defendant is not charged. A conviction or charge is not necessary for this rule to apply to bar the evidence sought to be introduced. State v. Sladek, 835 S.W.2d 308, 313 n.1 (Mo. banc 1992) (Thomas, J. concurring). The party who seeks to exclude evidence under this rule has the burden of proving that it is evidence of other crimes before it will be excluded. State v. Simms, 859 S.W.2d 943, 945 (Mo. App. E.D. 1993).

Each side may present substantive evidence of the defendant’s character in the penalty phase of a criminal case. See, e.g., State v. Chambers, 891 S.W.2d 93, 106–07 (Mo. banc 1994) (“[c]haracter and future dangerousness evidence is admissible at [the] penalty phase”); see also State v. Byrd, 676 S.W.2d 494, 505 (Mo. banc 1984), cert. denied, 469 U.S. 1230 (1985) (character of defendant is relevant in sentencing phase).

Moreover, evidence of wrongful acts may also be used to impeach the credibility of any witness. Section 491.050, RSMo 2016, provides that evidence of any prior criminal conviction of a felony or misdemeanor may be proved to affect the credibility of a witness in a civil or criminal case. See also Fed. R. Evid. 609. This has been construed to be an absolute right to impeach a witness with the use of a prior conviction. See M.A.B. v. Nicely, 909 S.W.2d 669, 671–73 (Mo. banc 1995). Although the court has the discretion to control the limits of cross-examination, it has no discretion to preclude inquiry into a prior conviction based on relevancy or potential for prejudice. See State v. Morris, 460 S.W.2d 624, 627–29 (Mo. 1970). But at least one court has excluded evidence of a misdemeanor conviction because it was not probative of truthfulness. See Lewis v. Wahl, 842 S.W.2d 82, 84–85 (Mo. banc 1992) (court excluded speeding conviction and appellate court upheld as not so prejudicial to constitute reversible error). Evidence of a foreign conviction is equally admissible unless the defendant can show that the legal process in the foreign jurisdiction was “grossly unfair.” See State v. Idlebird...