State v. Green

• Publication year: 2024
• Citation: Vol. 37 No. 2 Pg. 36
• Pages: 36

Article, Statev.Green, Rule 404(B), and a Supreme Court at Odds With ItselfVol. 37 No. 2 Pg. 36Utah Bar JournalMarch 2024

March 2024

Article

By Andrea J. Garland

No number of witnesses can alter objective reality, even if they say the same thing. The young ladies of Salem Village weren't being tormented by witches, no matter how numerous or detailed their claims. The Earth is neither flat nor the center of the universe, regardless of historical received wisdom. Aesop's shepherd wasn't lying about the last wolf attack, despite all the villagers' experience with his two prior fraudulent alarms. The Titanic wasn't unsinkable, White Star Line assurances and widespread belief notwithstanding. And the number of witnesses who testify to the same or similar experiences with a defendant has, on its own, no tendency to make any allegation more or less likely to be true. This fallacy, that the number of people who say something is true can establish that it is true, is at the heart of the above historic and mythic errors and at the heart of State v. Green, 2023 UT 10, 532 P.3d 930. Following years of upheaval and indecision concerning Utah Rule of Evidence 404(b), Green's holding that evidence of other acts can rebut fabrication challenges conflicts with mathematical probability, relies on extra-textual reasoning, and will result in further litigation.

Rule 404(b) precedent in Utah is not firmly established.

Case law concerning Utah Rule of Evidence 404(b) is notable for how many times our supreme court has changed its mind in a relatively short period of time. See Eldredge v. Johndrow, 2015 UT 21, ¶¶ 33-41, 345 P.3d 553 (holding that precedent is not firmly established in law if it is not old or typically relied upon as precedent). At the beginning of this century, trial courts were required to conduct "'scrupulous examination' of evidence of prior misconduct [offered for admission] under rule 404(b)." State v. Thornton, 2017 UT 9, ¶ 38, 339 P.3d 112 (citing State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837). Our supreme court repudiated this requirement because "'scrupulous examination' is not an independent requirement of rule 404(b)." Id. ¶¶ 44-55. In 1988's State v. Shickles, the Utah Supreme Court set out factors to consider in determining whether evidence offered under Rule 404(b) was significantly more prejudicial than probative under Rule 403 of the Utah Rules of Evidence. Shickles, 760 P.2d 291, 295-96 (Utah 1988). In State v. Ring, State v. Cuttler, and State v. Lucero, the Court held that trial courts were to follow the text of Rule 403 rather than the Shickles factors, although the Shickles factors could still be helpful. Ring, 2018 UT 19, ¶¶ 21-23, 29, 424 P.3d 845; Cuttler, 2015 UT 95, ¶¶ 2, 18-21 367 P.3d 981; Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841, abrogated on other grounds by Thornton, 2017 UT 9. The court of appeals later adopted a rule that a not-guilty plea put all elements at issue, making "other acts" evidence useful to prove facts not actually in dispute. The supreme court rejected the not-guilty rule as unpersuasive. State v. Verde2012 UT 60, ¶¶ 12, 22-24 296 P.3d 673; State v. Teuscher, 883 P.2d 922, 926-27 (Utah Ct. App. 1994).

In Verde, the Utah Supreme Court adopted the doctrine of chances, "a theory of logical relevance that 'rests on the objective improbability of the same rare misfortune befalling one individual over and over'" as an avenue for admission of evidence through Rule 404(b). 2012 UT 60, ¶ 47 (quoting Mark Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape: People v. EwoldtRevisited, 29 U.C. Davis L. Rev. 355, 388 (1996)). In 2017, the court expanded evidence admitted under the doctrine of chances beyond rebutting fabrication. State v. Lowther, 2017 UT 34, ¶ 23, 398 P.3d 1032. By 2021, the court expressed reservations about continuing to use the doctrine of chances and encouraged greater precision and rigor in trial courts applying the doctrine. State v. Richins, 2021 UT 50, ¶¶ 3, 55, 66, 71-72, 77, 95, 496 P.3d 158. Now, the court has abandoned the doctrine of chances. Green, 2023 UT 10, ¶¶ 3, 49.

ANDREA J. GARLAND is an appellate lawyer at the Salt Lake Legal Defender Association.

If Utah's Rule 404(b) case law were a drinking game, anyone queued to drink to the term "abrogated" would be quickly wiped out.

State v. Greengives no explanation of how alleged other acts evidence fulfills the claimed non-propensity purpose of rebutting fabrication, although other courts have required such explanation.

In Green, a college football player was accused of sexually assaulting seven women. Green, 2023 UT 10, ¶¶ 1, 7, 13-14. "Based on the similarities" between six of the accounts, the trial court admitted this testimony under the doctrine of chances for the purpose of demonstrating that the women were not fabricating their claims. Id. ¶¶ 8, 40. Following conviction on several sexual assault counts, Green appealed on grounds that the other acts evidence was improperly admitted, inter alia. id. ¶¶ 10-11. The court "abandon[ed] the doctrine of chances in favor of a plain-text analysis of the rules of evidence." Id. ¶ 49. It noted that "while the doctrine may have been analytically helpful in some cases, it has been confusing and difficult to apply in others." Id. ¶ 59...