Article State v. Lowther, 2017 UT 34 - Shickles, Rule 403, and the Doctrine of Chances, 1017 UTBJ, Vol. 30, No. 5. 36

Author:Deborah I. Bulkeley, J.

Article State v. Lowther, 2017 UT 34 - Shickles, Rule 403, and the Doctrine of Chances

Vol. 30 No. 5 Pg. 36

Utah Bar Journal

October, 2017

September, 2017

Deborah I. Bulkeley, J.


The Utah Supreme Court recently clarified its approach to determining the admissibility of other acts evidence under Rule 404(b) of the Utah Rules of Evidence, using the doctrine of chances as adopted by State v. Verde, 2012 UT 60, 296 P.3d 673.

State v. Lowther's key holdings are: • The doctrine of chances is not limited to rebutting claims of fabrication. State v. Lowther, 2017 UT 34, ¶ 21.

• The doctrine of chances does not displace the Shickles factors, but Rule 403's plain language - not the Shickles factors - governs admissibility. Id.

• Rule 404(b) is neutral. It "does not carry with it an attendant presumption of either admissibility or inadmissibility." Id. ¶ 30 n.40.


Rule 404(b) is a rule of evidence with many layers. The concept is simple enough: "Evidence of a crime, wrong, or other act is not admissible to prove a person's character," but it may be admissible for a non-character purpose "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." See Utah R. Evid. 404(b) (l)-(2). Yet, the case law defining when evidence of other acts falls into the non-character category is far from simple. Perhaps the reason for this is the nature of other acts evidence itself. "Evidence of prior misconduct often presents a jury with both a proper and an improper inference, and it won't always be easy for the court to differentiate the two inferences or to limit the impact of the evidence to the purpose permitted under the rule." Verde, 2012 UT 60, ¶ 16.

For years, the fundamental test for whether other acts evidence passed the final admissibility hurdle of the Rule 403 balancing test was defined by State v. Shickles, 760 P.2d 291 (Utah 1988). The Shickles court recognized that the "general rule prohibiting evidence that a defendant committed other crimes was established, not because that evidence is logically irrelevant, but because...

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