Article

• Publication year: 2021
• Pages: 18

Article Vol. 34 No. 6 Pg. 18 Utah Bar Journal December, 2021

November, 2021

The Doctrine of Chances is Ready to Be Overturned

By Andrea J. Garland

Introduction

When a criminal defendant appears to suffer the rare misfortune of being accused of the same or similar crimes several times, Utah courts sometimes admit evidence of the prior alleged bad acts under the "doctrine of chances." Unfortunately, the doctrine of chances relies on an incorrect understanding of probability. Recently, in State v. Richins, 2021 UT 50, the Utah Supreme Court expressed reservations about the doctrine's continuing viability. Id. ¶¶ 3, 55. Our supreme court's reservations were well-founded because evidence admitted in a criminal case under the doctrine of chances often lacks relevance except as propensity evidence.

I previously wrote about this problem - and others concerning the doctrine of chances - in the Utah Journal of Criminal Law. Beyond Probability: The Utah Supreme Court's 'Doctrine of Chances' in State v. Verde Encourages Admission of Irrelevant Evidence, 3 Utah J. Crim. Law 6, 25-29 (2018). This current article analyzes the doctrine of chances' probability problem in light of recent case law, particularly Richins.

Background

While Rule 404(b) of the Utah Rules of Evidence forbids character evidence, it allows admission of prior acts for other purposes such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Utah R Evid. 404(b) (2). In State v. Verde, 2012 UT 60, 269 P.3d 673, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, the Utah Supreme Court added the doctrine of chances as another permissible purpose for admitting evidence of prior acts against a defendant. Id. ¶¶ 45-61. The "doctrine of chances" is "a theory of logical relevance that 'rests on the objective improbability of the same rare misfortune befalling one individual over and over.'" Id. ¶ 47 (quoting Mark Cammack, Using the Doctrine of Chances to Prove Actus reus in Child Abuse and Acquaintance Rape, People v. Ewoldt Revisited, 29 U.C. Davis L. Rev. 355, 388 (1996)).

This reasoning starts with the low baseline probability that a man would take a horse by mistake or that an innocent person would be falsely accused of sexual assault - or, to cite additional examples from actual cases, that a child would die in her sleep or that a spouse would drown in the bathtub.

Id. ¶ 49 (citation omitted).

"The second step in the analysis considers the effect on these already low probabilities of additional, similar occurrences: As the number of improbable occurrences increases, the probability of coincidence decreases, and the likelihood that the defendant committed one or more of the actions increases." Id. "An innocent person may be falsely accused or suffer an unfortunate accident, but when several independent accusations arise or multiple similar 'accidents' occur, the objective probability that the accused innocently suffered such unfortunate coincidence decreases." Id.

In Verde, our supreme court did not believe that propensity "pollute[s] this type of probability reasoning." Id. ¶ 50. The question for the jury "is whether it is objectively likely that so many fires or deaths could be attributable to natural cases." Id. (internal quotation marks omitted). Our supreme court recommended, "care and precision are necessary to distinguish permissible and impermissible uses of evidence of prior bad acts, and to limit the fact finder's use of the evidence to the uses allowed by rule." Id. ¶ 55.

To ensure such care, "evidence offered to prove actus reus must not be admitted absent satisfaction of four foundational requirements." Id. ¶ 57. Our supreme court required that the four factors be considered "within the context of a rule 403 balancing analysis." Id. The first factor is materiality. Id. This means that" [t]he issue for which the uncharged misconduct evidence is offered 'must be in bona fide dispute.'" Id. (quoting Edward J. Imwinkelried, The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 588-92 (1990)). Second, each uncharged incident must be "roughly similar" to the charged crime. Id. ¶ 58 (emphasis and internal quotation marks omitted). Third, each accusation must be independent. Id. ¶ 60. Fourth, "[t]he defendant must have been accused of the crime or suffered an unusual loss 'more frequently than the typical person endures such losses accidentally'" Id. ¶ 61 (emphasis omitted) (quoting Imwinkelried, 51 Ohio St. L. J. at 590).

Subsequently, Utah courts have reviewed doctrine of chances cases with mixed results - first...