Shickles factors in Utah

2022The Shickles factors are “the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, [and] the efficacy of alternative proof.” State v. Shickles, 760 P.2d 291 , 295–96 (Utah 1988) (cleaned up), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997).

2022The Shickles factors are “the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, [and] the efficacy of alternative proof.” State v. Shickles, 760 P.2d 291 , 295–96 (Utah 1988) (cleaned up), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997).

2025However, at oral argument, Estes acknowledged that a rigid reliance on the Shickles factors is misplaced under current law. 3 The Utah Supreme Court has held that while some of the Shickles factors “taken individually” might bear on a rule 403 analysis, no court should rigidly “moor its rule 403 analysis entirely and exclusively to all of the Shickles factors.” State v. Cuttler, 2015 UT 95, ¶ 19 , 367 P.3d 981 .

2025However, at oral argument, Estes acknowledged that a rigid reliance on the Shickles factors is misplaced under current law. 3 The Utah Supreme Court has held that while some of the Shickles factors “taken individually” might bear on a rule 403 analysis, no court should rigidly “moor its rule 403 analysis entirely and exclusively to all of the Shickles factors.” State v. Cuttler, 2015 UT 95, ¶ 19 , 367 P.3d 981 .

2019Before the well-worn Shickles-factors mandate died a death of a thousand cuts, see State v Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 , abrogated on other grounds by State v. Thornton, 2017 UT 9, ¶ 39 , 391 P.3d 1016 ; (holding that not all Shickles factors need be considered); State v. Cuttler, 2015 UT 95, ¶ 20 , 367 P.3d 981 (holding that it is inappropriate for a trial court to “ever consider” whether evidence will lead to “overmastering hostility”—one of the Shickles factors); Thornton, 2017 UT 9, ¶ 53 (repudiating prior requirement of “scrupulous examination” of Shickles factors); State v. L

2019Before the well-worn Shickles-factors mandate died a death of a thousand cuts, see State v Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 , abrogated on other grounds by State v. Thornton, 2017 UT 9, ¶ 39 , 391 P.3d 1016 ; (holding that not all Shickles factors need be considered); State v. Cuttler, 2015 UT 95, ¶ 20 , 367 P.3d 981 (holding that it is inappropriate for a trial court to “ever consider” whether evidence will lead to “overmastering hostility”—one of the Shickles factors); Thornton, 2017 UT 9, ¶ 53 (repudiating prior requirement of “scrupulous examination” of Shickles factors); State v. L

2015See State v. Allen, 2005 UT 11, ¶¶ 25-26, 28 , 108 P.3d 730 (rejecting an argument that because a district court did not explicitly consider the Shickles fac'tors, 'it' erred when' it admitted prior bad acts ' evidence); State v. Harter, 2007 UT App 5, ¶ 30 , 155 P.3d 116 ("'The court need not identify each of the Shickles factors in its analysis as long as we can discern that it made a sufficient i mqun'y under rule 403."). 2 .

2015See State v. Allen, 2005 UT 11, ¶¶ 25-26, 28 , 108 P.3d 730 (rejecting an argument that because a district court did not explicitly consider the Shickles fac'tors, 'it' erred when' it admitted prior bad acts ' evidence); State v. Harter, 2007 UT App 5, ¶ 30 , 155 P.3d 116 ("'The court need not identify each of the Shickles factors in its analysis as long as we can discern that it made a sufficient i mqun'y under rule 403."). 2 .

2012State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988) (internal quotation marks omitted), quoted in Nelson-Waggoner, 2000 UT 59, ¶20 , 6 P.3d 1120 . | 130 High argues that the trial court did not serupulously examine the Gang Activity Evidence both because the court failed to determine whether the evidence was offered for a proper, noncharacter purpose, and because it failed to apply the Shickles factors.

2012State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988) (internal quotation marks omitted), quoted in Nelson-Waggoner, 2000 UT 59, ¶20 , 6 P.3d 1120 . | 130 High argues that the trial court did not serupulously examine the Gang Activity Evidence both because the court failed to determine whether the evidence was offered for a proper, noncharacter purpose, and because it failed to apply the Shickles factors.

2017We review the court of appeals’ decision for correctness. 16 And “[t]he correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the [district] court’s decision under the appropriate standard of review.” 17 The appropriate applied these factors before State v. Lucero, 2014 UT 15 , 328 P.3d 841 , and State v. Cuttler, 2015 UT 95 , 367 P.3d 981 , clarified the proper application of the Shickles factors. 12State v. Lowther, 2015 UT App 180, ¶ 25 , 356 P.3d 173 (citation omitted). 13 Id. ¶ 32. 14 Id. ¶ 34. 15 2012 UT 60 , 296 P.3d 673 . 16 See id. ¶ 13. 17 Id

2017We review the court of appeals’ decision for correctness. 16 And “[t]he correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the [district] court’s decision under the appropriate standard of review.” 17 The appropriate applied these factors before State v. Lucero, 2014 UT 15 , 328 P.3d 841 , and State v. Cuttler, 2015 UT 95 , 367 P.3d 981 , clarified the proper application of the Shickles factors. 12State v. Lowther, 2015 UT App 180, ¶ 25 , 356 P.3d 173 (citation omitted). 13 Id. ¶ 32. 14 Id. ¶ 34. 15 2012 UT 60 , 296 P.3d 673 . 16 See id. ¶ 13. 17 Id

2012Thus, we "indulge a presumption in favor of admissibility." State v. Dunn, 850 P.2d 1201, 1222 (Utah 1998). 123 To determine whether unfair prejudice outweighs the probative value of the separation letter, we apply the factors originally described in State v. Shickles, 760 P.2d 291 (Utah 1988), which are commonly referred to as the Shickles factors.

2012Thus, we "indulge a presumption in favor of admissibility." State v. Dunn, 850 P.2d 1201, 1222 (Utah 1998). 123 To determine whether unfair prejudice outweighs the probative value of the separation letter, we apply the factors originally described in State v. Shickles, 760 P.2d 291 (Utah 1988), which are commonly referred to as the Shickles factors.

2025Indeed, in State v. Thornton, 2017 UT 9 , 391 P.2d 1016 , our supreme court repudiated the prior requirement of a “scrupulous examination” of the Shickles factors.

2025Indeed, in State v. Thornton, 2017 UT 9 , 391 P.2d 1016 , our supreme court repudiated the prior requirement of a “scrupulous examination” of the Shickles factors.

2022The Shickles factors are “the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, [and] the efficacy of alternative proof.” State v. Shickles, 760 P.2d 291 , 295–96 (Utah 1988) (cleaned up), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997).

2022The Shickles factors are “the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, [and] the efficacy of alternative proof.” State v. Shickles, 760 P.2d 291 , 295–96 (Utah 1988) (cleaned up), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997).

2017First, under materiality, “[t]he issue for which the uncharged _____________________________________________________________ 52 Labrum, 2014 UT App 5, ¶ 28 . 53 Lowther, 2015 UT App 180, ¶ 25 (“Thus, we will now consider the trial court’s rule 403 analysis under the Verde factors[.]”). 54 See State v. Cuttler, 2015 UT 95, ¶ 18 , 367 P.3d 981 (“[T]he Shickles factors should not limit the considerations of a court when making a determination of evidence’s admissibility under rule 403.

2017See State v. Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 . 52 Labrum, 2014 UT App 5, ¶ 28 . 53 Lowther, 2015 UT App 180, ¶ 25 (“Thus, we will now consider the trial court’s rule 403 analysis under the Verde factors[.]”). 54 See State v. Cuttler, 2015 UT 95, ¶ 18 , 367 P.3d 981 (“[T]he Shickles factors should not limit the considerations of a court when making a determination of evidence’s admissibility under rule 403.

2008See id. at 295-96 *20 (considering "the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes," etc. (internal «quotation marks omitted)); see also State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 20, 28 , 6 P.3d 1120 (requiring the trial court, in ifs rule 404(b) analysis; to determine whether the "'bad acts " or "other crimes evidence" complies with rule 403 using the Shickles factors (emphasis added)); State v. Decorso, 1999 UT 57, ¶¶ 19-20, 23, 29 , 993 P.2d 837 (same). 5 .

2008See id. at 295-96 *20 (considering "the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes," etc. (internal «quotation marks omitted)); see also State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 20, 28 , 6 P.3d 1120 (requiring the trial court, in ifs rule 404(b) analysis; to determine whether the "'bad acts " or "other crimes evidence" complies with rule 403 using the Shickles factors (emphasis added)); State v. Decorso, 1999 UT 57, ¶¶ 19-20, 23, 29 , 993 P.2d 837 (same). 5 .

2017Instead, courts are ‘bound by the test of rule 403,’ and it is ‘unnecessary for courts to evaluate each and every [Shickles] factor’ in every context.” (citation omitted)); State v. Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 (“Since our decision in Shickles, a number of courts have relied heavily on [its] list of factors in weighing evidence under rule 403. . . . [C]ourts are bound by the text of rule 403, not the limited list of considerations outlined in Shickles.”); see also Met v. State, 2016 UT 51 , ¶ 90, 388 P.3d 447 (repudiating the multi-factor test outlined in precedent for determining w

2017Instead, courts are ‘bound by the test of rule 403,’ and it is ‘unnecessary for courts to evaluate each and every [Shickles] factor’ in every context.” (citation omitted)); State v. Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 (“Since our decision in Shickles, a number of courts have relied heavily on [its] list of factors in weighing evidence under rule 403. . . . [C]ourts are bound by the text of rule 403, not the limited list of considerations outlined in Shickles.”); see also Met v. State, 2016 UT 51 , ¶ 90, 388 P.3d 447 (repudiating the multi-factor test outlined in precedent for determining w

2019In State v. Verde, 2012 UT 60 , 296 P.3d 673 , abrogated on other grounds by State v. Thornton, 2017 UT 9 , 391 P.3d 1016 , the court articulated a different set of factors courts should consider for the doctrine of chances but it was unclear whether those factors were intended to replace the Shickles factors under rule 403.

2019In State v. Verde, 2012 UT 60 , 296 P.3d 673 , abrogated on other grounds by State v. Thornton, 2017 UT 9 , 391 P.3d 1016 , the court articulated a different set of factors courts should consider for the doctrine of chances but it was unclear whether those factors were intended to replace the Shickles factors under rule 403.

2022In conducting the balancing test, a court “has the discretion to consider any relevant factors,” Ring, 2018 UT 19, ¶ 29 (quotation simplified), including but not limited to the Shickles factors, 4 see State v. Cuttler, 2015 UT 95 , ¶¶ 18–19, 367 P.3d 981 ; id. ¶ 18 (“Courts are bound by the text of rule 403, and it is unnecessary for courts to evaluate each and every Shickles factor in every context.”) (quotation simplified); State v. Lintzen, 2015 UT App 68, ¶ 15 , 347 P.3d 433 (“Each [Shickles] factor need not be considered in every case, but a district court evaluating 404(b) and 404(c) evi

2022In conducting the balancing test, a court “has the discretion to consider any relevant factors,” Ring, 2018 UT 19, ¶ 29 (quotation simplified), including but not limited to the Shickles factors, 4 see State v. Cuttler, 2015 UT 95 , ¶¶ 18–19, 367 P.3d 981 ; id. ¶ 18 (“Courts are bound by the text of rule 403, and it is unnecessary for courts to evaluate each and every Shickles factor in every context.”) (quotation simplified); State v. Lintzen, 2015 UT App 68, ¶ 15 , 347 P.3d 433 (“Each [Shickles] factor need not be considered in every case, but a district court evaluating 404(b) and 404(c) evi

2026See State v. Fredrick, 2019 UT App 152, ¶ 53 , 450 P.3d 1154 (Mortensen, J., concurring) (stating that the “continued viability” of the Shickles factors in the rule 404(c) context is “highly questionable” considering the “development of the law in the intervening years”).

2026See State v. Fredrick, 2019 UT App 152, ¶ 53 , 450 P.3d 1154 (Mortensen, J., concurring) (stating that the “continued viability” of the Shickles factors in the rule 404(c) context is “highly questionable” considering the “development of the law in the intervening years”).

2019Before the well-worn Shickles-factors mandate died a death of a thousand cuts, see State v Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 , abrogated on other grounds by State v. Thornton, 2017 UT 9, ¶ 39 , 391 P.3d 1016 ; (holding that not all Shickles factors need be considered); State v. Cuttler, 2015 UT 95, ¶ 20 , 367 P.3d 981 (holding that it is inappropriate for a trial court to “ever consider” whether evidence will lead to “overmastering hostility”—one of the Shickles factors); Thornton, 2017 UT 9, ¶ 53 (repudiating prior requirement of “scrupulous examination” of Shickles factors); State v. L

2019Before the well-worn Shickles-factors mandate died a death of a thousand cuts, see State v Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 , abrogated on other grounds by State v. Thornton, 2017 UT 9, ¶ 39 , 391 P.3d 1016 ; (holding that not all Shickles factors need be considered); State v. Cuttler, 2015 UT 95, ¶ 20 , 367 P.3d 981 (holding that it is inappropriate for a trial court to “ever consider” whether evidence will lead to “overmastering hostility”—one of the Shickles factors); Thornton, 2017 UT 9, ¶ 53 (repudiating prior requirement of “scrupulous examination” of Shickles factors); State v. L

2015Each factor need not be considered in every case, but a district court evaluating 404(b) and 404(c) evidence should consider those factors it finds "helpful in assessing the probative value of the evidence." State v. Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 ; Burke, 2011 UT App 168, ¶ 34 , 256 P.3d 1102 (applying the Shickles factors to an analysis of evidence admitted under rule 404(b)); Ferguson, 2011 UT App 77 , ¶ 15 n. 4, 250 P.3d 89 (explaining that the Shickles factors are also applicable to a rule 408 analysis of rule 404(c)_ evidence). 16 Here, the trial court determined the prior acts

2015Each factor need not be considered in every case, but a district court evaluating 404(b) and 404(c) evidence should consider those factors it finds "helpful in assessing the probative value of the evidence." State v. Lucero, 2014 UT 15, ¶ 32 , 328 P.3d 841 ; Burke, 2011 UT App 168, ¶ 34 , 256 P.3d 1102 (applying the Shickles factors to an analysis of evidence admitted under rule 404(b)); Ferguson, 2011 UT App 77 , ¶ 15 n. 4, 250 P.3d 89 (explaining that the Shickles factors are also applicable to a rule 408 analysis of rule 404(c)_ evidence). 16 Here, the trial court determined the prior acts

2025Moreover, as we recently recognized, the two things that are now prohibited in a rule 403 analysis are (1) “for a district court to moor its rule 403 analysis entirely and exclusively to all of the Shickles factors” and (2) “for a court to consider the sixth Shickles factor (the degree to which the evidence probably will rouse the jury to overmastering hostility) . . . because that standard presents both a stricter and looser metric than the one at issue in rule 403.” Forbush, 2024 UT App 11, ¶ 38 (quotation simplified).

2025Moreover, as we recently recognized, the two things that are now prohibited in a rule 403 analysis are (1) “for a district court to moor its rule 403 analysis entirely and exclusively to all of the Shickles factors” and (2) “for a court to consider the sixth Shickles factor (the degree to which the evidence probably will rouse the jury to overmastering hostility) . . . because that standard presents both a stricter and looser metric than the one at issue in rule 403.” Forbush, 2024 UT App 11, ¶ 38 (quotation simplified).

2022In conducting the balancing test, a court “has the discretion to consider any relevant factors,” Ring, 2018 UT 19, ¶ 29 (quotation simplified), including but not limited to the Shickles factors, 4 see State v. Cuttler, 2015 UT 95 , ¶¶ 18–19, 367 P.3d 981 ; id. ¶ 18 (“Courts are bound by the text of rule 403, and it is unnecessary for courts to evaluate each and every Shickles factor in every context.”) (quotation simplified); State v. Lintzen, 2015 UT App 68, ¶ 15 , 347 P.3d 433 (“Each [Shickles] factor need not be considered in every case, but a district court evaluating 404(b) and 404(c) evi

2022In conducting the balancing test, a court “has the discretion to consider any relevant factors,” Ring, 2018 UT 19, ¶ 29 (quotation simplified), including but not limited to the Shickles factors, 4 see State v. Cuttler, 2015 UT 95 , ¶¶ 18–19, 367 P.3d 981 ; id. ¶ 18 (“Courts are bound by the text of rule 403, and it is unnecessary for courts to evaluate each and every Shickles factor in every context.”) (quotation simplified); State v. Lintzen, 2015 UT App 68, ¶ 15 , 347 P.3d 433 (“Each [Shickles] factor need not be considered in every case, but a district court evaluating 404(b) and 404(c) evi

2025In his view, it was an error to 20220452-CA 22 2025 UT App 32 State v. Simpson consider these things because they are part of the overruled Shickles factors. 10 We disagree. ¶53 For many years, Utah courts considered the so-called Shickles factors when conducting a rule 403 analysis.

2025In his view, it was an error to 20220452-CA 22 2025 UT App 32 State v. Simpson consider these things because they are part of the overruled Shickles factors. 10 We disagree. ¶53 For many years, Utah courts considered the so-called Shickles factors when conducting a rule 403 analysis.

2025See State v. Kitches, 2021 UT App 24, ¶ 28 , 484 P.3d 415 (“[I]f the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” (emphasis in original)). 20220452-CA 23 2025 UT App 32 State v. Simpson recognized that it “may very well be appropriate” for a court to consider some of the Shickles factors in a rule 403 analysis.

2025See State v. Kitches, 2021 UT App 24, ¶ 28 , 484 P.3d 415 (“[I]f the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation.” (emphasis in original)). 20220452-CA 23 2025 UT App 32 State v. Simpson recognized that it “may very well be appropriate” for a court to consider some of the Shickles factors in a rule 403 analysis.

2024But a proper rule 403 analysis doesn’t require that the past incidents be identical; rather, what’s at issue is the “degree of similarity.” Garcia, 2022 UT App 77, ¶¶ 31, 36 .

2024But a proper rule 403 analysis doesn’t require that the past incidents be identical; rather, what’s at issue is the “degree of similarity.” Garcia, 2022 UT App 77, ¶¶ 31, 36 .