Article
| Jurisdiction | Utah,United States |
| Citation | Vol. 26 No. 5 Pg. 45 |
| Pages | 45 |
| Publication year | 2013 |
September/October 2013
KEEP CALM AND ARGUE THE FACTS: A PRAGMATIC APPROACH TO THE DOCTRINE OF CHANCES
DAIN SMOLAND
Last year the Utah Supreme Court handed down State v. Verde, 2012 UT 60, 296 P.3d 673, which explicitly embraced a shadowy and oft-maligned exception to the character evidence prohibition known as the Doctrine of Chances. The Doctrine of Chances (DOC) has been around since at least 1915, and I suspect it has been confusing attorneys and judges since that time.
As explained in Verde, the DOC may allow evidence of other events and circumstances outside the charges in question, based on "the objective improbability of the same rare misfortune befalling one individual over and over." Id. ¶ 47 (citation and internal quotation marks omitted). Specifically, the defendant in Verde was charged with sexual assault, and the court remanded the case back to the trial court to consider whether evidence of other uncharged sexual assault allegations from other complaining witnesses could be admissible under the DOC to disprove fabrication on the part of the current complaining witness. Id. ¶ 62. The remanded case is still pending retrial as of this writing.
In other words, being accused of three similar sexual assaults at three different times by three different witnesses may be an "improbably rare misfortune" which is unlikely to befall an innocent individual, making it more likely that the current witness is not fabricating his story. That's the logic of the DOC.
Many defense attorneys are dismayed by the implications of Verde. Understandably so. At first blush, the DOC threatens to completely swallow the enshrined prohibition against character and other bad acts evidence offered by the prosecution to show propensity. The obvious complaint against it goes: "Can't the prosecution now offer evidence of any prior crimes or accusations and call it DOC evidence instead of character evidence?"
That's a valid question. I think the answer is definitively no, which I will explain later, but, perhaps more importantly, I think defense attorneys would be better served by preparing to distinguish DOC evidence or argue for its exclusion under Rule 403 rather than pushing back against the doctrine itself, as tempting as it may be. There are four reasons.
The Doctrine of Chances Is Prohahly Here to Stay for a While
While an idea's longevity is certainly no reason to accept it on principle, it is a good reason to doubt that the idea can easily be put to rest. As mentioned above, the DOC has been around for 100 years, and, though there has been disagreement during that time, see Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of logical Relevance, the Doctrine of Chances, 40 U. Rich. L. Rev. 419, 444 (2006) (listing multiple evidence scholars that believe the DOC is not a valid exception to the character evidence prohibition), several of the major authorities in the evidence world have considered and accepted it, e.g., Imwinkelried and Wigmore. See id. at 434–57; 2 John H. Wigmore, Evidence in Trials at Common Law § 302 (James H. Chadbourn rev. 1979). Many state and federal courts are also on board, see State v. Verde, 2012 UT 60, ¶ 53 n.27 296 P.3d 673 (noting other jurisdictions that have adopted the DOC), including, most importantly, our own. Like it or not, the DOC has some...
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