STATE V. VERDE’S “” OVER-STATES PROBABILITY, ENCOURAGING OF IRRELEVANT By Andrea J. Garlandi

Our Current Problem

Utah Rule of Evidence 404(b) purports to prohibit but allows evidence of “a crime, wrong or other act” for other purposes “such as proving motive, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The State always tries to find a new way to introduce evidence of old allegations.

State v. Verde, 2012 UT 60,¶¶ 43, 48, 269 P.3d 673 says can hinge on “the objective probability of the same rare misfortune befalling one individual over and over,” where “evidence of past misconduct may ‘tend to corroborate on a probability theory’ that a to a charged crime has not fabricated , because it is ‘[un]likely [sic.] . . . that [several] [sic.] independent would . . . concoct similar accusations’.”

Verde’s criteria for admissibility: • “Material,” i.e., relevant; • “[E]ach uncharged incident must be roughly similar to the charged crime”; • “[E]ach accusation must be independent of the others”; • Defendant must have been accused or suffered unusual loss “more frequently than the typical person endures such losses accidentally.”

Valid Objections to State Using Verde’s Doctrine of Chances to Get Irrelevant Evidence Admitted

3 Obvious:

1. Your case doesn’t meet Verde’s criteria. • For example, beyond “rough similarity,” Verde also said “[t]he more similar, detailed, and distinctive the various accusations, the greater is the likelihood that they are not the result of independent imaginative invention,” and State v. Lomu, 2014 UT App 41, ¶ 30, 321 P.3d 243 (applying doctrine of chances where prior allegations almost identical). You can also argue, since Verde claims to stem from math, algebra doesn’t allow for combining unlike variables. • How does the State seek to establish defendant suffered unusual loss “more frequently than the typical person endures” in context? Imwinkelried admitted in “An Evidentiary Paradox: Defending the Character Evidence Prohibition By Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances,” 40 U. Rich. L. Rev. 419, 454 (2006), upon which Verde relied on for its intellectual underpinning, “[R]esearch has revealed no doctrine of chances cases in which the record of trial included anything approaching empirical proof of a fixed risk.” So the State shouldn’t be allowed to ask “what are the odds?” unless they can provide valid data, complete w/ standard deviations & error rates. Also, have to compare apples to apples (i.e., not compare defendant to general population rates if alleged incident of a type that’s already rare).

2. The doctrine of chances is arguably dicta.

3. State v. Lucero, 2014 UT 15, 328 P.3d 841 says some Shickles factors can still be useful.

What I Used: Verde claims to stem from probability, b/c the low probability of multiple allegations can confirm charged event. But if you look at actual probability, it doesn’t corroborate current allegations and therefore by definition cannot make prior allegations relevant.

Both Verde and Imwinkelried say prior allegations make it more likely that “one or some” of the allegations are apt to be true. This is correct, but so what?

Consider representing the probability (P) of an event (A) as P(A), the probability of a second independent event as P(B), and the probability of a third independent event as P(C). The probability of any event is between zero (0) and one (1), so 0 ≤ P(A)≤ 1. Theorem 1-1, p. 5, Murray R. Spiegel, John Schiller, and R. Alu Srinivasan, Probability and Statistics, 4th Ed. 2013. Represent the probability of all events P(A and B and C) or P(A ∩ B ∩ C) as: P(A ∩ B ∩ C) = P(A)x P(B)x P(C). Id., p. 7. The probability of any one or more events (i.e., A and/or B and/or C) can be represented as P(A U B U C). P(A U B U C) = P(A)+ P(B)+ P(C)-P(A ∩ B)-P(B ∩ C)- P(C ∩ A)+ P(A ∩ B ∩ C). Id., at p. 6, Theorem 1-6. If, for illustration, we assign the probability of each event as 50%, the probability of all events is (.5 x .5 x .5), or .125. The probability of any one or more events is .5 + .5 + .5 – (.5 x .5)-(.5 x .5)-(.5 x .5)+(.5 x .5 x .5)= .875, quite high. This figure provides no as to which one or more alleged events is 87.5% likely. The values of P(A), P(B), and P(C) never increase. The higher probability of one or more events being true cannot raise the probability of any one event being true. Contrary to Verde’s statement “evidence of past misconduct may ‘tend [] to corroborate on a probability theory’”(Verde, ¶ 47), the probability of any one event (e.g., the instant charges) has not increased and cannot increase.

Utah R. Evid. 401 defines relevance as having “any tendency to make a fact more or less probable.” As illustrated mathematically above, prior allegations actually have NO TENDENCY to make the current charge more or less probable.

This is the logical fallacy at the heart of Verde’s doctrine of chances. This argument actually (eventually) worked for me.

Caveat: There are cases w/ multiple charges or pattern of activity where “one or some” is relevant b/c that’s what State wants to prove. But for average one-criminal-event case, irrelevant.

What About the Monster Not Staying Dead (“The Evil Dead” Effect)?

USU Study: Ryan Wallentine, “Sexual Assault and the doctrine of chances in the courtroom,” (2016). Research on Capitol Hill, Paper 47. http:// digitalcommons.usu.edu/roch/37. USU undergrad senior thesis used data from DOJ and Bayes’ Theorem (conditional probability) to argue that b/c an actual rapist has only 9.8% chance of being prosecuted, an innocent person has a 0.83-0.91% chance of being prosecuted, the probability of innocent person prosecuted more than once is at most, 0.0083% which decreases for subsequent prosecutions. He relies also on Lisak and Miller study which showed that rapists are repeat offenders. Ergo, he purports to supply Imwinkelried’s missing empirical evidence of rarity. If this comes up I think the arguments are: 1. Neither DOJ nor Lisak & Miller data were gathered w/ constitutional due process protections. I.e., if someone says they raped or were raped, even w/ no other evidence, studies presume rape rather than presumption of innocence; 2. Courts have well-established practice of excluding statistical/probability evidence. “Even where statistically valid probability evidence has been presented . . . courts have routinely excluded it when the evidence invites the jury to focus on a seemingly scientific, numerical conclusion rather than to analyze the evidence before it and decide where the truth .” State v. Rammel, 721 P.2d 498, 501 (Utah 1986) (finding lack of statistical validity in detective’s anecdotal experience more prejudicial than probative); State v. Iorg, 801 P.2d 938, 941 (Utah 1990) (holding less probative than prejudicial a detective’s opinion that purported victim’s late reporting of abuse did not mean victim not telling the truth). 3. This is possibly b/c statistics w/o presumption of innocence can lead to absurd situations. E.g., Mr. Wallentine’s paper says “A person that is being prosecuted for rape has at most a 26% chance of being innocent, though an innocent person has a 0.83-0.91% chance of being prosecuted.” Shouldn’t someone who’s factually innocent have a 100% statistical chance of being innocent? 4. Also Verde steered clear of dependent probability, claiming pure random coin-flip independent probability analysis. That was so they could claim to avoid propensity reasoning. Wallentine’s analysis pushes trial courts into propensity reasoning. 5. At best, Mr. Wallentine’s study can help the State establish a defendant gets accused more often than usual. It still doesn’t make a charged event more or less likely.

Imwinkelried: If we shut down doctrine of chances, prosecutors may lobby to get rid of character evidence prohibition. When I read this I scoffed. But, given 404(c) and given Wallentine’s presentation to legislature, it might be something to fear. Maybe Verde’s “any liberalizing trend toward greater admissibility of prior bad acts evidence may be accomplished through express amendments to our rules of evidence” will be read as an invitation.

i Andrea J. Garland: [email protected]. I have practiced at Salt Lake Legal Defender Association since May, 1998, and before that, 2 1/2 years with Brian Barnard at the Utah Legal Clinic. I attended the University of Utah School and have a B.A. in Economics from the University of Alaska Fairbanks. You might well run into me at the Third District Court, Matheson Courthouse, most likely in Judge Parker’s or Judge Hruby-Mills’ court rooms.