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Cardozo Law Review

Abstract

With increasing frequency, courts invoke the doctrine of chances to evade evidence law’s ban on character evidence. When, for example, an arson defendant claims he did not torch his house, a court will allow the prosecution to prove that this is the fifth time the defendant’s home has caught fire. When a murder defendant claims her infant child died of natural causes, a court will allow the prosecution to prove that six other children in her care died of similar “natural” causes. Courts say, with widespread scholarly support, that the doctrine of chances allows jurors to draw, from evidence of a defendant’s repeated other acts, inferences based solely on objective probabilities and not the defendant’s character. They are wrong. The doctrine of chances is seductive. It promises something—noncharacter reasoning—that is alluring, but false. It purports to be a doctrine but really is just a label that provides a patina of legal respectability and mathematical precision where neither is deserved. And it has flourished because courts and commentators want it to be true. They embrace the doctrine of chances because it offers a plausible ground for judges to admit highly-probative character evidence despite the character-evidence rule. This Article explains why the doctrine of chances is not really a doctrine; examines why its promise of noncharacter reasoning is false; and offers some analytically sound ways to justify admission of some (but not all) of the highly-probative evidence courts now admit under the doctrine of chances.

Disciplines

Criminal Procedure | Evidence

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