Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged Misconduct Evidence to Prove Intent

36 Pages Posted: 1 Sep 2016

See all articles by Edward J. Imwinkelried

Edward J. Imwinkelried

University of California, Davis - School of Law

Date Written: August 31, 2016


This article relates to one of the most important issues in modern criminal evidence. The Supreme Court has held that the Eighth Amendment Cruel and Unusual Punishment clause prohibits criminally punishing persons for their status. The character evidence prohibition codified in Federal Rule of Evidence 404(b)(1) reinforces the Eighth Amendment clause. However, since evidence of an accused’s other misconduct can be devastating to the defense, prosecutors frequently attempt to introduce testimony about an accused’s other misconduct on an alternative, non-character theory of logical relevance under 404(b)(2). Rule 404(b) generates more published opinions than any other provision of the Federal Rules, and the most common use of uncharged misconduct evidence is to show the accused’s mens rea or intent.

In many cases in which the prosecution offers the evidence to show intent, the only arguable non-character is Dean Wigmore’s doctrine of objective chances. In the dean’s famous hypothetical, two friends, A and B, are hunting. A bullet flies by A’s ear. The first time that occurs, A dismisses the shot as an accident. However, by the third occurrence A draws the common-sense inference that the shot was intentional. The inference is not based on any assumption about B’s personal, subjective bad character. Rather, the inference is drawn from the objective improbablity that so many similar accidents would occur. Today the courts recognize the doctrine of chances as a legitimate non-character theory.

The problem is that there is a very thin distinction between verboten character reasoning and reasoning under the doctrine. It is improper for the jury to reason, “He formed the criminal intent once, he is predisposed to that intent, and ergo he had a similar intent on the occasion of the charged crime.” However, the similarity between the uncharged and charged incidents gives the character rationale an intuitive appeal. Yet, the similarity between the charged and uncharged acts is also the key to triggering the doctrine of chances. Lay jurors may find the improper character rationale more attractive.

The thesis of this article is that most courts do not do enough to ensure that the jury uses the uncharged misconduct evidence admitted to prove intent only for a permissible non-character purpose. Most of the opinions applying the doctrine of chances are conclusory in the extreme. Many do not even mention the doctrine. Worse, most do not require that the trial judge either specify the points of similarity between the charged and uncharged incidents or find that the concurrence of the charged and uncharged incidents represents an extraordinary coincidence, exceeding the normal incidence of such events for innocent persons. To makes matters still worse, the courts do not insist that the trial judge clearly instruct the jury on the nature of doctrine of chances reasoning.

The enclosed article proposes that appellate courts mandate that trial judges:

1. explicitly invoke the doctrine and make on-the-record findings as to whether the proponent has satisfied the foundational requirements for triggering the doctrine; and 2. administer a limiting instruction giving the jurors sufficient guidance on the distinction between a character rationale and doctrine of chances reasoning.

These reforms are imperative because the current lax judicial administration of the doctrine is intolerable.

Suggested Citation

Imwinkelried, Edward J., Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged Misconduct Evidence to Prove Intent (August 31, 2016). UC Davis Legal Studies Research Paper No. 502, Available at SSRN:

Edward J. Imwinkelried (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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