An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances

Abstract

In the past 35 years, the doctrine of objective chances has emerged as one of the most important non-character theories of logical relevance. When a person suffers a particular type of loss with extraordinary frequency, the coincidence is circumstantial evidence that one or some of the incidents were not accidents. The courts accept the evidence because the relevance of the evidence arguably rests on the objective improbability of so many accidents rather than any assumptions about the defendant's personal, subjective bad character. When a civil rights plaintiff wants to prove discriminatory animus, she frequently offers evidence of other allegedly discriminatory acts by the defendant. When an accused denies any knowledge of drugs found in an automobile he was driving, the prosecutor often presents testimony about other occasions when the accused was arrested with drugs in his possession. Perhaps most importantly, in a child abuse prosecution in which the accused claims that the child's injury was accidental, the prosecutor typically offers testimony about other injuries sustained by that child or other children in the accused's custody. The probative value of the evidence seems so obvious that many would regard it as an affront to common sense to exclude the evidence. However, in the past ten years, there has been growing criticism that the doctrine of chances lacks legitimate non-character relevance. The thrust of the criticism is that evidence admitted under the doctrine is irrelevant unless one assumes that the defendant has a constant, unchanging propensity over time. If based on that criticism the courts begin to exclude the evidence admitted in the past under the doctrine, that development will increase the pressure to abolish what remains of the character evidence prohibition. Within the past decade, Congress has selectively abolished the prohibition in sexual assault and child molestation cases; and 10 states have followed suit. If the courts begin to routinely exclude this highly probative evidence in child abuse prosecutions and civil rights actions, as a backlash the character evidence prohibition itself might be abolished. The thesis of this article is that the criticisms of the doctrine of chances are mistaken. The article argues that evidence admitted under the doctrine possesses genuine non-character relevance. The criticisms rest on a simplistic, determinist view of human behavior. Doctrine of chances reasoning enables the trier of fact to negatively reject the hypothesis that random chance accounts for all the outcomes. By allowing the trier to reject that hypothesis, the evidence affirmatively increases the probability that one or some of the incidents are the product of situational choice, not prompted by the person's character traits. There may be a case for abolishing the character evidence prohibition, but that case cannot be premised on the argument that the doctrine of chances is a spurious non-character theory.