Publication Date
3-14-2022
Abstract
“The man who wins the lottery once is envied; the one who wins it twice is investigated.” –United States v. York Evidence of an accused’s uncharged misconduct—testimony about a crime other than the one the accused is presently charged with—can be so prejudicial that Federal Rule of Evidence 404(b), which governs the admissibility of such evidence, generates more published opinions than any other Federal Rules of Evidence provision. The Rule provides that the prosecutor may not offer evidence of an accused’s uncharged misconduct to show that the accused has a personal, subjective bad character and then argue that their bad character increases the probability that the accused committed the charged crime. That theory poses an intolerable risk that the jury may punish the accused for the type of person he or she is, not for what he or she has done. To satisfy Rule 404(b), the prosecution must show that the uncharged misconduct is admissible on another, non-propensity theory of logical relevance. In the past few decades when analyzing the admissibility of evidence under Rule 404(b), American courts have essentially imported an evidentiary theory, the doctrine of objective chances, from England. The thrust of the doctrine is that if the accused has been involved in a certain type of event (such as a spouse’s drowning death) more often than the average, innocent person would encounter such events, the extraordinary coincidence is relevant to show that one or more of the incidents were caused by an actus reus or accompanied by a mens rea. The argument runs that this is a legitimate noncharacter theory. The ultimate inference arises from the objective improbability of so many similar events, not a conclusion that the accused has a subjective propensity for criminality. The doctrine has a relatively short history in American evidence law and is still a work in progress. In the 2021 case, People v. Skillicorn, the Oregon Supreme Court addressed a question of first impression about the doctrine: Can the judge apply the doctrine even when the accused does not claim that all the incidents, both charged and uncharged, were accidents? The opinion is a bit unclear on the question; but citing dictum in a prior Oregon case, the court comes very close to holding that evidence is admissible under the doctrine only if the accused makes such a claim. On the one hand, this Article contends that the Oregon court reached the right result in Skillicorn; during closing argument the prosecutor clearly misused the testimony as evidence of the accused’s subjective bad character. On the other and, analogizing to hypothesis testing in statistics, this Article concludes that the doctrine of objective chances can apply absent such a claim by the accused; the doctrine comes into play so long as the charged and uncharged incidents involve similar type of acts, whether or not the accused asserts that all the incidents were accidents. However, positing that conclusion, this Article next argues that when the prosecution’s only theory is the doctrine of objective chances, Rule 404(b) precludes the prosecution from introducing evidence that the uncharged incident was an intentional misdeed; under Federal Rule of Evidence 403, the judge should exclude the evidence of intentionality as an irrelevant, prejudicial detail.
First Page
1
Recommended Citation
Edward J. Imwinkelried, Admitting Evidence of an Accused's Uncharged Misconduct under the Doctrine of Objective Chances: Before a Judge May Consider Evidence of an Uncharged Incident to Decide Whether There Has Been a Suspicious Coincidence, Must the Accused Claim That the Incident Was an Accident?, 99 DENV. L. REV. 1 (2021).