chances doctrine in Utah

2023Mr. Green asks us to “overturn [our] holdings in State v. Verde . . . about the admissibility of evidence under the _____________________________________________________________ 17 Id. at 237. 18 Verde, 2012 UT 60, ¶ 47 (cleaned up). 19 See id. (explaining that the “doctrine defines circumstances where prior bad acts can properly be used to rebut a charge of fabrication”). 20 State v. Richins, 2021 UT 50, ¶ 56 , 496 P.3d 158 . 21 State v. Lowther, 2017 UT 34, ¶ 21 , 398 P.3d 1032 . 22See Verde, 2012 UT 60, ¶ 57 (stating that the “four foundational requirements . . . should be considered within

2023Mr. Green asks us to “overturn [our] holdings in State v. Verde . . . about the admissibility of evidence under the _____________________________________________________________ 17 Id. at 237. 18 Verde, 2012 UT 60, ¶ 47 (cleaned up). 19 See id. (explaining that the “doctrine defines circumstances where prior bad acts can properly be used to rebut a charge of fabrication”). 20 State v. Richins, 2021 UT 50, ¶ 56 , 496 P.3d 158 . 21 State v. Lowther, 2017 UT 34, ¶ 21 , 398 P.3d 1032 . 22See Verde, 2012 UT 60, ¶ 57 (stating that the “four foundational requirements . . . should be considered within

2023Mr. Green asks us to “overturn [our] holdings in State v. Verde . . . about the admissibility of evidence under the _____________________________________________________________ 17 Id. at 237. 18 Verde, 2012 UT 60, ¶ 47 (cleaned up). 19 See id. (explaining that the “doctrine defines circumstances where prior bad acts can properly be used to rebut a charge of fabrication”). 20 State v. Richins, 2021 UT 50, ¶ 56 , 496 P.3d 158 . 21 State v. Lowther, 2017 UT 34, ¶ 21 , 398 P.3d 1032 . 22See Verde, 2012 UT 60, ¶ 57 (stating that the “four foundational requirements . . . should be considered within

2023Mr. Green asks us to “overturn [our] holdings in State v. Verde . . . about the admissibility of evidence under the _____________________________________________________________ 17 Id. at 237. 18 Verde, 2012 UT 60, ¶ 47 (cleaned up). 19 See id. (explaining that the “doctrine defines circumstances where prior bad acts can properly be used to rebut a charge of fabrication”). 20 State v. Richins, 2021 UT 50, ¶ 56 , 496 P.3d 158 . 21 State v. Lowther, 2017 UT 34, ¶ 21 , 398 P.3d 1032 . 22See Verde, 2012 UT 60, ¶ 57 (stating that the “four foundational requirements . . . should be considered within

2026But I nevertheless choose to take this opportunity—as I have done on other occasions in this same space, see State v. Lane, 2019 UT App 86 , ¶¶ 36–50, 444 P.3d 553 (Harris, J., concurring); State v. Murphy, 2019 UT App 64 , ¶¶ 45– 65, 441 P.3d 787 (Harris, J., concurring)—to express my view, for whatever it might be worth, “that the governing law might warrant re-examination in a future case.” See Murphy, 2019 UT App 64, ¶ 45 (Harris, J., concurring). * * * * ¶55 In Green, our supreme court finally did away with the doctrine of chances, a legal doctrine against which I have, on a few occasions

2026But I nevertheless choose to take this opportunity—as I have done on other occasions in this same space, see State v. Lane, 2019 UT App 86 , ¶¶ 36–50, 444 P.3d 553 (Harris, J., concurring); State v. Murphy, 2019 UT App 64 , ¶¶ 45– 65, 441 P.3d 787 (Harris, J., concurring)—to express my view, for whatever it might be worth, “that the governing law might warrant re-examination in a future case.” See Murphy, 2019 UT App 64, ¶ 45 (Harris, J., concurring). * * * * ¶55 In Green, our supreme court finally did away with the doctrine of chances, a legal doctrine against which I have, on a few occasions

2023The District Court Did Not Abuse Its Discretion in Admitting the Other-Acts Evidence ¶65 Having abandoned the doctrine of chances, we must determine whether the district court’s admission of the other-acts evidence in Mr. Green’s case was supportable under a plain reading _____________________________________________________________ 35State v. Lucero, 2014 UT 15, ¶ 13 , 328 P.3d 841 , abrogated on other grounds by Thornton, 2017 UT 9 . 36 Thornton, 2017 UT 9, ¶ 58 . 37 Lucero, 2014 UT 15, ¶ 17 (cleaned up). 38 UTAH R.

2023The District Court Did Not Abuse Its Discretion in Admitting the Other-Acts Evidence ¶65 Having abandoned the doctrine of chances, we must determine whether the district court’s admission of the other-acts evidence in Mr. Green’s case was supportable under a plain reading _____________________________________________________________ 35State v. Lucero, 2014 UT 15, ¶ 13 , 328 P.3d 841 , abrogated on other grounds by Thornton, 2017 UT 9 . 36 Thornton, 2017 UT 9, ¶ 58 . 37 Lucero, 2014 UT 15, ¶ 17 (cleaned up). 38 UTAH R.

2020Without a clear articulation of what event is being evaluated it is difficult to make sure that a prior bad act is admissible under the doctrine for a permissible inference. ¶35 “[F]or evidence to be admitted under the doctrine of chances, it must meet four foundational requirements: materiality, similarity, independence, and frequency.” State v. Lopez, 2018 UT 5, ¶ 54 , 417 P.3d 116 .

2020Without a clear articulation of what event is being evaluated it is difficult to make sure that a prior bad act is admissible under the doctrine for a permissible inference. ¶35 “[F]or evidence to be admitted under the doctrine of chances, it must meet four foundational requirements: materiality, similarity, independence, and frequency.” State v. Lopez, 2018 UT 5, ¶ 54 , 417 P.3d 116 .

2017We begin with testimony regarding the alleged rape at issue, _____________________________________________________________ 2 760 P.2d 291 (Utah 1988). 3 State v. Lowther, 2015 UT App 180, ¶ 22 , 356 P.3d 173 . 2 Cite as: 2017 UT 24 Opinion of the Court K.S.’s, and then describe the testimony of the other three witnesses the State sought to introduce under the doctrine of chances. 4 The Alleged Rape of K.S. ¶ 3 On September 23, 2010, 20-year-old K.S. and her friend, S.H., attended a movie premier.

2017But after this court announced the doctrine of chances, the State filed a supplemental brief in support of its initial rule 404(b) motion to seek admission of the witnesses’ testimony under the doctrine of chances to prove lack of consent. 9 Verde, 2012 UT 60, ¶ 47 (citation omitted). 10 Id. ¶¶ 57–61. 11 State v. Shickles, 760 P.2d 291 , 295–96 (Utah 1988) (citation omitted).

2023The District Court Did Not Abuse Its Discretion in Admitting the Other-Acts Evidence ¶65 Having abandoned the doctrine of chances, we must determine whether the district court’s admission of the other-acts evidence in Mr. Green’s case was supportable under a plain reading _____________________________________________________________ 35State v. Lucero, 2014 UT 15, ¶ 13 , 328 P.3d 841 , abrogated on other grounds by Thornton, 2017 UT 9 . 36 Thornton, 2017 UT 9, ¶ 58 . 37 Lucero, 2014 UT 15, ¶ 17 (cleaned up). 38 UTAH R.

2023The District Court Did Not Abuse Its Discretion in Admitting the Other-Acts Evidence ¶65 Having abandoned the doctrine of chances, we must determine whether the district court’s admission of the other-acts evidence in Mr. Green’s case was supportable under a plain reading _____________________________________________________________ 35State v. Lucero, 2014 UT 15, ¶ 13 , 328 P.3d 841 , abrogated on other grounds by Thornton, 2017 UT 9 . 36 Thornton, 2017 UT 9, ¶ 58 . 37 Lucero, 2014 UT 15, ¶ 17 (cleaned up). 38 UTAH R.

2021See State v. Richins, 2020 UT App 27, ¶¶ 20, 22 , 460 P.3d 593 . ¶42 Utah Rule of Evidence 404(b)(1) excludes “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” But Rule 404(b)(2) permits the use of prior-acts evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” We have held that this list is not exhaustive such that “evidence demonstrating other purposes is not pr

2021See State v. Richins, 2020 UT App 27, ¶¶ 20, 22 , 460 P.3d 593 . ¶42 Utah Rule of Evidence 404(b)(1) excludes “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” But Rule 404(b)(2) permits the use of prior-acts evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” We have held that this list is not exhaustive such that “evidence demonstrating other purposes is not pr

2019See State v. Lomu , 2014 UT App 41 , ¶ 25, 321 P.3d 243 . ¶28 As with other 404(b) evidence, courts must undertake a three-step analysis before admitting evidence under the doctrine of chances.

2019See State v. Lomu , 2014 UT App 41 , ¶ 25, 321 P.3d 243 . ¶28 As with other 404(b) evidence, courts must undertake a three-step analysis before admitting evidence under the doctrine of chances.

2019At root, the Doctrine is simply “probability reasoning.” Verde, 2012 UT 60, ¶¶ 50, 53 ; cf. Hopt v. People, 120 U.S. 430, 440 (1887) (referring to the “doctrine of chances” as a tool used to “establish a probability”). 20160930-CA 17 2019 UT App 86 State v. Lane ¶39 Because the Doctrine is a probability-based construct, it has been widely applied to admit prior bad acts evidence in cases in which the accused’s defense is that the allegedly criminal act in question occurred by accident or random chance rather than by design.

2019At root, the Doctrine is simply “probability reasoning.” Verde, 2012 UT 60, ¶¶ 50, 53 ; cf. Hopt v. People, 120 U.S. 430, 440 (1887) (referring to the “doctrine of chances” as a tool used to “establish a probability”). ¶54 The Doctrine has been widely applied to rebut a defendant’s claim that a series of extremely unlikely events are nothing more than coincidences or unfortunate accidents.

2012Co. v. Harris, 134 F.3d 608, 615 (4th Cir.1998) ("[The more often an accidental or infrequent incident occurs, the more likely it is that its subsequent reoccurrence is not accidental or fortuitous."); United States v. York, 933 F.2d 1343, 1350 (7th Cir.1991) (discussing the doctrine of chances and reasoning that "(ilt is not every day that one's wife is murdered; it is more uncommon still that the murder occurs after the wife says she wants a divorce; and more unusual still that the jilted husband collects on a life insurance policy with a double-indemnity provision."), overruled on other gro

2012Co. v. Harris, 134 F.3d 608, 615 (4th Cir.1998) ("[The more often an accidental or infrequent incident occurs, the more likely it is that its subsequent reoccurrence is not accidental or fortuitous."); United States v. York, 933 F.2d 1343, 1350 (7th Cir.1991) (discussing the doctrine of chances and reasoning that "(ilt is not every day that one's wife is murdered; it is more uncommon still that the murder occurs after the wife says she wants a divorce; and more unusual still that the jilted husband collects on a life insurance policy with a double-indemnity provision."), overruled on other gro

2018Similarly, in United States v. York , the Seventh Circuit allowed evidence of a prior crime under the doctrine of chances. 933 F.2d 1343 , 1349-52 (7th Cir. 1991), overruled on other grounds by Wilson v. Williams , 182 F.3d 562 (7th Cir. 1999).

2018Similarly, in United States v. York, the Seventh Circuit allowed evidence of a prior crime under the doctrine of chances. 933 F.2d 1343 , 1349–52 (7th Cir. 1991), overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999).

2015See State v. Labrum, 2014 UT App 5, ¶ 28 , 318 P.3d 1151 (explaining that for a rule 403 analysis in cases relying on the doctrine of chances, Verde displaces the Shickles factors, but also noting that one of the Skickles factors involves weighing the similarities in the evidence); see also State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988).

2015See State v. Labrum, 2014 UT App 5, ¶ 28 , 318 P.3d 1151 (explaining that for a rule 403 analysis in cases relying on the doctrine of chances, Verde displaces the Shickles factors, but also noting that one of the Skickles factors involves weighing the similarities in the evidence); see also State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988).

2026But I nevertheless choose to take this opportunity—as I have done on other occasions in this same space, see State v. Lane, 2019 UT App 86 , ¶¶ 36–50, 444 P.3d 553 (Harris, J., concurring); State v. Murphy, 2019 UT App 64 , ¶¶ 45– 65, 441 P.3d 787 (Harris, J., concurring)—to express my view, for whatever it might be worth, “that the governing law might warrant re-examination in a future case.” See Murphy, 2019 UT App 64, ¶ 45 (Harris, J., concurring). * * * * ¶55 In Green, our supreme court finally did away with the doctrine of chances, a legal doctrine against which I have, on a few occasions

2026But I nevertheless choose to take this opportunity—as I have done on other occasions in this same space, see State v. Lane, 2019 UT App 86 , ¶¶ 36–50, 444 P.3d 553 (Harris, J., concurring); State v. Murphy, 2019 UT App 64 , ¶¶ 45– 65, 441 P.3d 787 (Harris, J., concurring)—to express my view, for whatever it might be worth, “that the governing law might warrant re-examination in a future case.” See Murphy, 2019 UT App 64, ¶ 45 (Harris, J., concurring). * * * * ¶55 In Green, our supreme court finally did away with the doctrine of chances, a legal doctrine against which I have, on a few occasions

2023EVID. 403. 39 State v. Killpack, 2008 UT 49, ¶ 45 , 191 P.3d 17 (cleaned up). 16 STATE v. GREEN Cite as 2023 UT 10 of the rules of evidence. 40 Though the district court viewed its analysis of the other-acts evidence’s admissibility through the doctrine-of-chances lens, we determine that its ultimate conclusion was not error under a textual analysis of the rules of evidence. 41 The evidence is admissible under a plain reading of rule 404(b), and the district court did not abuse its discretion in concluding that the evidence did not violate rule 403. 42 _________________________________________

2023EVID. 403. 39 State v. Killpack, 2008 UT 49, ¶ 45 , 191 P.3d 17 (cleaned up). 16 STATE v. GREEN Cite as 2023 UT 10 of the rules of evidence. 40 Though the district court viewed its analysis of the other-acts evidence’s admissibility through the doctrine-of-chances lens, we determine that its ultimate conclusion was not error under a textual analysis of the rules of evidence. 41 The evidence is admissible under a plain reading of rule 404(b), and the district court did not abuse its discretion in concluding that the evidence did not violate rule 403. 42 _________________________________________

2021The court of appeals did not err when it concluded that the district court properly found that the other-acts evidence was material.8 _____________________________________________________________ 8 We have stated that the doctrine of chances needs to be applied with care and precision and that the “care and precision begin with the party seeking to admit a prior bad act under the doctrine of chances.” State v. Argueta, 2020 UT 41, ¶ 34 , 469 P.3d 938 .

2021The court of appeals did not err when it concluded that the district court properly found that the other-acts evidence was material.8 _____________________________________________________________ 8 We have stated that the doctrine of chances needs to be applied with care and precision and that the “care and precision begin with the party seeking to admit a prior bad act under the doctrine of chances.” State v. Argueta, 2020 UT 41, ¶ 34 , 469 P.3d 938 .

2021See State v. Richins, 2020 UT App 27, ¶¶ 20, 22 , 460 P.3d 593 . ¶42 Utah Rule of Evidence 404(b)(1) excludes “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” But Rule 404(b)(2) permits the use of prior-acts evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” We have held that this list is not exhaustive such that “evidence demonstrating other purposes is not pr

2021See State v. Richins, 2020 UT App 27, ¶¶ 20, 22 , 460 P.3d 593 . ¶42 Utah Rule of Evidence 404(b)(1) excludes “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” But Rule 404(b)(2) permits the use of prior-acts evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” We have held that this list is not exhaustive such that “evidence demonstrating other purposes is not pr

2020See id. (stating that the prior acts evidence could be admitted for the purposes of supporting an inference resting “on a logic of improbability that recognizes that a prior act involving the same knowledge decreases the (continued…) 20190029-CA 15 2020 UT App 162 State v. Gallegos 60, ¶ 26 (“In context, it seems much more likely that [the evidence] was aimed at sustaining an impermissible inference that [the defendant] acted in conformity with the bad character suggested by his prior bad acts.”).

2020See id. (stating that the prior acts evidence could be admitted for the purposes of supporting an inference resting “on a logic of improbability that recognizes that a prior act involving the same knowledge decreases the (continued…) 20190029-CA 15 2020 UT App 162 State v. Gallegos 60, ¶ 26 (“In context, it seems much more likely that [the evidence] was aimed at sustaining an impermissible inference that [the defendant] acted in conformity with the bad character suggested by his prior bad acts.”).

2020While the doctrine of chances was among the grounds the State invoked when seeking admission of the prior shank incident before the trial court, that court made no ruling regarding the applicability of the doctrine of chances, and on appeal the State does not ask us to affirm the court’s admission of the shank evidence pursuant to the doctrine of chances; we therefore do not address whether that doctrine might apply here. 20190029-CA 16 2020 UT App 162 State v. Gallegos ¶29 In this case, however, Gallegos’s motive was never in question.