The Doctrine of Chances After People v. Jones
| Jurisdiction | Colorado,United States |
| Citation | Vol. 43 No. 7 Pg. 57 |
| Pages | 57 |
| Publication year | 2014 |
Criminal Law
The Doctrine of Chances After People v. Jones
By Casey C. Kannenberg
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Casey C. Kannenberg is an Associate Attorney at Godfrey | Johnson, P.C. in Englewood. His practice areas include business litigation, white-collar criminal defense, complex commercial litigation, securities litigation, and banking/financial law—(303) 228-0700, kannenberg@gojolaw.com.
In People v. Jones, the Colorado Supreme Court held that trial courts no longer have to consider the doctrine of chances as part of the Spoto analysis. This article analyzes the Court's opinion, and discusses the likely consequences of the decision.
The doctrine of chances has, for a number of years, played an instrumental role in the analysis of whether prior acts evidence is admissible under Colorado Rule of Evidence (Rule or CRE) 404(b). The doctrine has evolved to become a useful tool in applying the Colorado Supreme Court's four-part test in People v. Spoto,[1] which requires an examination of whether potentially admissible evidence of prior acts is logically relevant, and whether such logical relevance is independent of, and outweighs, the impermissible inference that the defendant has a bad character and acted in conformance with that bad character.
Although the doctrine of chances played an important part in a number of Rule 404(b) cases over the years,[2] it was never a necessary requirement that trial courts were obligated to consider. It was not until the Colorado Court of Appeals issued its ruling in People v. Jones (Jones J) in August 2011 that, for the first time, a Colorado court held that prior acts evidence must satisfy the doctrine of chances to satisfy the four-part Spoto analysis.[3]
However, on October 15, 2013, the Colorado Supreme Court overturned the court of appeals' ruling in Jones I, holding that trial courts have no obligation to determine that prior acts evidence satisfies the doctrine of chances to satisfy the relevant prongs of the Spoto analysis (Jones II).[4] Rather, the Jones II Court held that the doctrine serves as one theory pursuant to which prior acts evidence may satisfy the Spoto analysis, and trial courts have discretion to examine admissibility issues under Spoto under other theories.[5] This article examines the Spoto analysis, its interaction with evidence rules and statutory provisions related to relevancy, the doctrine of chances, and its future role in Rule 404(b) determinations post-Jones II.
The Interplay Between CRE 403 and 404(b)
The Spoto analysis traces its genesis to rules relating to relevancy and its limits in the Rules. As a basic proposition, the Rules provide that "all relevant evidence is admissible."[6] Relevant evidence has the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.[7]
Two of the numerous limitations on relevancy are found in Rules 403 and 404(b). Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice."[8] Rule 404, in turn, provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .[9]
The purpose of Rule 404(b) is to ensure that evidence of past "crimes, wrongs, or acts" is not admitted for the specific purpose of proving "the defendant's propensity to commit a particular crime. . . ."[10] When combined, the foregoing rules become a unified rule that
evidence of other crimes, wrongs, or acts is inadmissible if the logical relevance of the proffered evidence depends upon an inference that a person who has engaged in such misconduct has a bad character and the further inference that the defendant therefore engaged in the wrongful conduct at issue.[11]
The Spoto Analysis and the Doctrine of Chances
Before a court may admit Rule 404(b) evidence over a defendant's objection, it must undertake a four-part analysis, commonly referred to as the Spoto analysis, after a Colorado Supreme Court case by the same name. In Spoto, a jury found the defendant guilty of first-degree murder.[12] The evidence at trial showed that the victim died as a result of a bullet wound from the defendant's gun while the muzzle of the gun was in direct contact with the victim's neck.[13] The issue on appeal was whether the trial court abused its discretion in admitting evidence of a prior incident involving the defendant pressing his gun to another person's head several weeks before the shooting death.[14] The prosecution sought to introduce the evidence for the express purpose of rebutting the defendant's theory that the death was an accident and occurred without deliberation.[15]
The Court held that the trial court erred in admitting the evidence of the defendant's prior gun usage.[16] In so holding, the Court introduced the Spoto analysis as the mechanism by which courts determine whether evidence of prior acts is admissible. The first prong requires the trial court to "ask whether the proffered evidence relates to a material fact, i.e., a fact 'that is of consequence to the determination of the action."'[17] If the answer to the foregoing question is "yes," the trial court must proceed to the second prong—whether the evidence is "logically relevant."[18] If the evidence is logically relevant, the third prong requires the court to
determine whether the logical relevance is independent of the intermediate inference, prohibited by Rule 404(b), that the defendant has a bad character, which would then be employed to suggest the probability that the defendant committed the crime charged. . . ,[19]
Note that the third prong does not require the absence of the inference of bad character, only that the logical relevance is independent of the inference.[20] Last, the trial court must undergo a Rule 403 analysis and determine "whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice."[21]
Applying the foregoing factors to the facts of the case, the Spoto Court observed that the first prong is satisfied because the issue of the defendant's intent relates to the issues of premeditation, self-defense, and accident.[22] The Court then concluded that the evidence is logically relevant to the material issue of intent, because it suggests that the defendant "is the type of person who would pull a gun on someone when it is not necessary for self-defense."[23] With the first two prongs of the analysis satisfied, the Court then turned to the third prong—whether the logical relevance is independent of the impermissible inference that the defendant has a bad character "as a person who draws guns on people intentionally and that such character suggests that he intentionally shot" the victim.[24]
It is in the context of its analysis of the third prong that the Court introduces and discusses the doctrine of chances. Specifically, the Court addresses the prosecution's argument that, under the doctrine of chances, the prior gun incident demonstrates that the defendant's claim that the shooting death was an accident "is unlikely."[25] The doctrine of chances is a concept "based on the instinctive logical process that reasonably determines that unusual and abnormal events are unlikely to recur by chance."[26] The following oft-cited example illustrates how the doctrine of chances works:
[I]f A while hunting with B hears the bullet from B's gun whistling past his head, he is willing to accept B's bad aim ... as a conceivable explanation; but if shortly afterwards the same thing happens again, and if on the third occasion A receives B's bullet in his body, the immediate inference (i.e., as a probability, perhaps not a certainty) is that B shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small.[27]
Put another way, '"[t]he man who wins the lottery once is envied; the one who wins it twice is investigated."'[28] The greater the number of instances, the less likely it is that they are accidental.[29]
Although it was not until the Colorado Court of Appeals held in the Jones case that evidence of other acts must satisfy the doctrine of chances,[30] Colorado courts have consistently used the doctrine to justify the introduction of prior acts evidence in certain circumstances.[31] The doctrine is particularly suitable for application in sexual offense cases in which the defense argues that the victim consented to the sexual act because while the "unusual and abnormal element of lying" may be present when one person claims rape,
"when two (or more) persons tell similar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story."[32]
The doctrine's role in the Spoto analysis evolved to supplement—and perhaps supplant—the second and third prongs of the analysis by creating "reasoning that is independent of the intermediate inference of the defendant's bad character."[33] Indeed, it is not difficult to understand the...
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