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99 Denv. L. Rev. 1 (2021-2022)

handle is hein.journals/denlr99 and id is 1 raw text is: ADMITTING EVIDENCE OF AN ACCUSED'S UNCHARGED MISCONDUCT UNDER THE DOCTRINE OF OBJECTIVE CHANCES: BEFORE A JUDGE MAY CONSIDER EVIDENCE OF AN UNCHARGED INCIDENT TO DECIDE WHETHER THERE HAS BEEN A SUSPICIOUS COINCIDENCE, MUST THE ACCUSED CLAIM THAT THE INCIDENT WAS AN ACCIDENT? EDWARD J. IMWINKELRIEDt ABSTRACT The man who wins the lottery once is envied; the one who wins it twice is investigated. -United States v. York' Evidence of an accused's uncharged misconduct-testimony about a crime other than the one the accused is presently charged with-can be so prejudicial that Federal Rule of Evidence 404(b), which governs the admissibility of such evidence, generates more published opinions than any other Federal Rules of Evidence provision. The Rule provides that the prosecutor may not offer evidence of an accused's uncharged mis- conduct to show that the accused has a personal, subjective bad character and then argue that their bad character increases the probability that the accused committed the charged crime. That theory poses an intolerable risk that the jury may punish the accused for the type of person he or she is, not for what he or she has done. To satisfy Rule 404(b), the prosecu- tion must show that the uncharged misconduct is admissible on another, non-propensity theory of logical relevance. In the past few decades when analyzing the admissibility of evi- dence under Rule 404(b), American courts have essentially imported an evidentiary theory, the doctrine of objective chances, from England. The thrust of the doctrine is that if the accused has been involved in a certain type of event (such as a spouse's drowning death) more often than the average, innocent person would encounter such events, the extraordinary coincidence is relevant to show that one or more of the incidents were caused by an actus reus or accompanied by a mens rea. The argument t Edward L. Barrett, Jr. Professor of Law Emeritus, University of California Davis; former Chair, Evidence Section, American Association of Law Schools; author, Uncharged Misconduct Evidence 2021 Edition (2020) (2 vols.). 1. 933 F.2d 1343, 1350 (7th Cir. 1991). Ian Fleming expressed the same sentiment in one of his most famous James Bond novels, Goldfinger: Once is happenstance. Twice is coincidence. The third time it's enemy action. Stephen E. Fienberg & D. H. Kaye, Legal and Statistical Aspects of Some Mysterious Clusters, 154 J. ROYAL STAT. SOC'Y 61, 61 (1991). 1

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