Comment: the doctrine of chances, brides of the bath and a reply to Sean Sullivan

Abstract

The 'Doctrine of Chances' is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence. On the one hand, the law of Evidence purports to ban evidence which invites the fact-finder to reason that because a criminal defendant was involved in certain other or former events, he has a propensity to engage in such acts and therefore engaged in the similar act charged in the indictment. Yet, on the other hand, Evidence law admits evidence of other very similar acts to prove the commission of the charged act under the rubrics 'motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or lack of accident' or the like ('M.O.I.P.P.K.I.M.A' for short). Under these 'MOIPPKIMA' or similar rubrics, evidence such as the following is commonly admitted, which evidence plainly seems in each case to depend on propensity reasoning for its probative value: - Other drownings of defendant's wives in the bathtub received to prove the charged culpable tub drowning at the hands of defendant (where money or property was inherited by defendant each time) (admitted under rubrics like 'motive', 'intent', 'plan', 'design', 'pattern', 'lack of accident'); - Defendant's previous lascivious rubbing up against a person of the opposite sex and secretly taking their wallet, received to prove the correctness of the current charge of doing exactly the same thing (admitted as showing 'plan', 'system', 'systematic course of conduct'); - Previous fires afflicting defendant's property resulting in his collection of fire insurance proceeds, received to prove defendant purposely burned his present barn down to collect insurance (admitted as showing 'motive', 'intent', 'knowledge'); - Defendant post office worker's previous possession of credit cards not belonging to him received to prove coins he was found with … Language: en