A Brief Essay Defending the Doctrine of Objective Chances as a Valid Theory for Introducing Evidence of an Accused's Uncharged Misconduct

Abstract

The traditional character evidence prohibition forbids the proponent from introducing evidence of a person’s misconduct as a basis for inferring the person’s subjective bad character and then inviting the jury to treat the character as circumstantial proof of the person’s commission of the charged crime. In the United States, that prohibition has special significance, since the Supreme Court has ruled that the Eighth Amendment Cruel and Unusual Punishment provision precludes status offense. Federal Rule of Evidence 404(b)(1) codifies the prohibition: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”

However, the very next Federal Rule subsection, 404(b)(2), reads: “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence or mistake, or lack of accident.” That subsection challenges the prosecutor to identify a non-character theory of logical relevance to justify admitting testimony about an accused’s uncharged misconduct. The subsection is the most important provision of the Federal Rules of Evidence in criminal cases. The subsection generates more published opinions than any other provision in the Federal Rules. In a significant minority of states, errors in the admission of uncharged misconduct evidence are the most common ground for reversal in criminal cases.

In the past half century, an emerging non-character theory, the doctrine of objective chances, has gained prominence in the United States. The seminal opinion is the 1915 British decision, R. v. Smith, the famous “Brides in the Bath” case. When the accused’s wife was found drowned in her bathtub, the accused claimed that her death was accidental. Over a character evidence objection, the trial judge permitted the prosecution to show that two other women whom the accused purported to marry also drowned in their baths. The court held that the evidence was admissible to show the objective improbability that so many accidents befell the accused. In a 1974 infanticide case in the United States, the Woods court cited and followed Smith. Today, under the doctrine, American courts permits prosecutors to introduce uncharged misconduct to prove the occurrence of an actus reus, to establish the accused’s mens rea, and to identify the accused as the perpetrator. The doctrine has become a mainstay of the government’s case in prosecutions for child abuse such as Woods, drug possession, and sexual assault as in Cosby.

However, there has been a constant drumbeat of criticism by respected commentators. The criticism was voiced most recently in a 2018 law review article. The thrust of the criticism is that the doctrine lacks genuine non-character relevance. The critics argue that in the final analysis, uncharged misconduct admitted under the doctrine is simply bad character evidence in disguise.

The thesis of this essay is that that criticism is unsound. Several years ago an article set out a statistical analysis of the doctrine. The analysis demonstrated that under conventional statistical theory, the application of the doctrine reduces the probability of an accident without including in the computation any variable for the accused’s subjective character. The current essay is intended to reinforce that analysis by presenting two doctrine of chances hypotheticals. One hypothetical involves the infamous serial killer Jeffrey Dahmer while the second involves the saintly Mother Teresa. The hypotheticals demonstrate that an assumption about the accused’s personal character is neither a sufficient nor a necessary condition for invoking the doctrine.

After rebutting the criticism of the doctrine, though, the essay calls for reforms in the judicial administration of the doctrine. The critics are correct in warning that there is a thin line between the legitimate use of uncharged misconduct under the doctrine and verboten character reasoning. To reduce the risk of the misuse of the evidence admitted under the doctrine, the essay urges that: trial judges evaluating a government proffer should explicitly address the question of whether the prosecution has established an extraordinary coincidence, exceeding the ordinary incidence of the type of events that the accused has been involved in; the prosecution ought to be required to give the defense advance, pretrial notice of its intent to proffer uncharged misconduct evidence; and trial judges should give the jury much clearer limiting instructions on the permissible use of evidence admitted under the doctrine. The bottom line is that the reform efforts ought to focus on improving the way the doctrine is administered in the real world rather than attacking the theory underlying the doctrine.