"The motivating policies are said to be to avoid confusion, unfair surprise and prejudice." [ 115 N.J. at 300, 558 A.2d 833 (emphasis added) (quoting State v. Ascolese, 59 N.J. Super. 393, 397, 157 A.2d 858 (App.Div. 1960)).] Although Evidence Rule 55 excludes evidence of prior criminal or civil wrongs if introduced to show a defendant's criminal disposition, such evidence may be admitted to prove other facts in issue, subject to the court's discretion to exclude the evidence if its probative value is outweighed by its risk of prejudicing or misleading the jury.
Despite its probative worth, other-crime evidence offered solely to prove criminal disposition is excluded under the Rule, as at common law: The motivating policies are said to be avoid confusion, unfair surprise and prejudice. 1 Wigmore, Evidence (3d ed. 1940), section 194. It is thought that proof of a previous crime will distract the jury, leading them to forego an independent analysis of the evidence and to rely merely on the tendency they possess in common with most people of saying "once a thief — always a thief" * * *. [ State v.Ascolese, 59 N.J. Super. 393, 397 (App.Div. 1960) (quoting State v. Nagy, 27 N.J. Super. 1, 11 (App.Div. 1953)).]. Pursuant to Rule 55, other-crime evidence is admissible to prove other facts in issue.
It warrants immediate intervention by the trial court and a vigorous instruction to counteract the prejudice that flows from it. State v. Kociolek, 23 N.J. 400, 418-420 (1957); State v. Arnwine, 67 N.J. Super. 483, supra; State v. Ascolese, 59 N.J. Super. 393, 397 ( App. Div. 1960); State v. Nagy, 27 N.J. Super. 1, 10, 11 ( App. Div. 1953); and see State v. Pacheco, 38 N.J. 120 (1962). The admonition of this court in State v. Orecchio, 16 N.J. 125, 129 (1954), should not be overlooked:
The prior convictions were remote-some very much so-and were not indicative of defendant's honesty or veracity, but rather a person plagued by a past life of crime. See State v. Stevens, 115 N.J. 289, 300 (1989) ("It is thought that proof of a previous crime will distract the jury, leading [it] to forego an independent analysis of the evidence and to rely merely on the tendency they possess in common with most people of saying 'once a thief - always a thief.'") (quoting State v. Ascolese, 59 N.J. Super. 393, 397 (App. Div. 1960)). We have little doubt that informing the jury about the number of defendant's convictions would have prejudiced him had he testified.
Further, defendant argues that where a defendant denies committing the charge, the issue for the jury is credibility, not state of mind or intent. See State v. Ascolese, 59 N.J. Super. 393, 398 (App.Div. 1960). We do not fully agree with such an analysis.
See, also, State v. Soney, 177 N.J. Super. 47, 59 (App.Div. 198 0). Thus, our courts have historically excluded evidence of prior crimes except in limited situations in which such proofs bear upon the motive, intent or guilty knowledge of the defendant. See, e.g., State v. Kociolek, 23 N.J. 400 (1957); State v. Neff, 67 N.J. Super. 213 (App.Div. 1961); State v. Ascolese, 59 N.J. Super. 393 (App.Div. 1960). In these limited instances where such evidence has been held to be admissible our courts have adopted extraordinary means to insure that the jury's minds are not diverted.
While it is true that under Evid. R. 47 only criminal convictions may be admitted to impeach credibility, evidence of "other crimes" which never resulted in a conviction is properly admissible where it tends, as here, to demonstrate motive, intent, identity, absence of mistake or plan. Evid. R. 55, State v. Smith, supra; State v. Baldwin, supra; State v. Donohue, 2 N.J. 381, 388 (1949); State v. Schuyler, 75 N.J.L. 487, 488 (E. A. 1907); State v. Zicarelli, 122 N.J. Super. 225, 241 (App.Div. 1973), certif. den. 63 N.J. 252 (1973), cert. den. 414 U.S. 875, 94 S.Ct. 71, 38 L.Ed.2d 120 (1973); State v. Ascolese, 59 N.J. Super. 393, 397 (App.Div. 1960); State v. Nagy, 27 N.J. Super. 1, 11 (App.Div. 1953). Likewise, evidence of criminal acts for which a defendant had been previously acquitted is admissible for the same purpose.
; State v. Lanto, 98 N.J.L. 401 (Sup.Ct. 1923), affirmed 99 N.J.L. 94 (E. A. 1923); State v. DePaola, 5 N.J. 1 (1950). (emphasis added) See also State v. Ascolese, 59 N.J. Super. 393 (App.Div. 196 0); State v. Neff, 67 N.J. Super. 213 (App.Div. 1961). Cases illustrative of admissible "other crime evidence" may be found in State v. Baldwin, 47 N.J. 379 (1966), cert. den. 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966) (proof of involvement in robbery, as motive for murder of prospective witness;) State v. Sinnott, 24 N.J. 408 (1957) (In sodomy prosecution proof of similar act on another at same time and place, admissible as part of res gestae and evincing common plan); State v. Mulero, 51 N.J. 224 (1968) (Proof of prior beatings of victim in murder prosecution to evidence intent or negative innocent intent.
The general rule in this State is that a prosecutor cannot prove a defendant committed other crimes, although of a like nature to that of which he stands charged, for the purpose of showing that he would be likely to commit the crime charged. State v. Ascolese, 59 N.J. Super. 393, 397 ( App. Div. 1960). There are a number of exceptions to this rule, however, and evidence of other criminal acts has been held admissible when offered in order to establish identity, opportunity, motive, plan, system, intent or knowledge.