Rule 24-4-404 generally prohibits the admission of evidence of a person’s character or character traits to prove that they acted in conformity with that character on a particular occasion. In simple terms, the State cannot argue: “he did it before, so he must have done it again.” This is the fundamental bar against propensity evidence.

However, Rule 404(b) provides limited exceptions. The State may introduce evidence of prior acts for permissible purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. When proceeding under 404(b), the State is required to provide notice to the defense, including the general nature of the evidence it intends to introduce at trial.

There is, however, a notable exception to this notice requirement. When the State seeks to introduce evidence of acts that show the circumstances immediately surrounding the charged offense, the relationship between the parties, or the defendant’s motive, courts often classify this as “prior difficulties.” Under this doctrine, formal 404(b) notice is not required.

Even so, prior difficulties are not automatically admissible. The State must still establish a clear connection between the prior acts and the charged offense. Specifically, the evidence must demonstrate the defendant’s motive, intent, or bent of mind toward the alleged victim. Additionally, the trial court must conduct a Rule 403 balancing test to determine whether the probative value of the evidence is substantially outweighed by the risk of unfair prejudice.

In practice, the State frequently argues that no notice is required because the evidence qualifies as prior difficulties. Yet, too often, the State fails to meaningfully articulate the necessary nexus between the prior acts and a legitimate, permissible purpose such as motive or intent. The reason is straightforward: the true purpose is often impermissible; to place bad character before the jury.

To effectively challenge the admission of prior difficulties, the defense should require the State to do more than recite buzzwords. The State must be pressed to specifically explain how the prior acts illuminate the relationship between the parties and how they directly establish motive or intent in the charged offense. When forced to articulate this connection, it often becomes apparent that the State’s argument rests on little more than labels.

Those labels: “motive,” “intent,” “bent of mind” can become a disguise for what is ultimately an improper attempt to invite the jury to conclude: “he did it before, so he did it again.” The defense’s role is to expose that gap and prevent the jury from being prejudiced by evidence that proves nothing beyond propensity.