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State v. Richins, 2020 UT App 27 (Feb. 21, 2020)

Feb 21, 2020

After the defendant asserted that the victim mistakenly accused him of public lewdness at trial, the prosecution introduced evidence of four strikingly similar prior instances of lewdness perpetrated by the defendant under the doctrine of chances.  That doctrine permits the introduction of previous comparable misconduct by a defendant to show that a witness has not made a mistake or fabricated an accusation based on “the objective improbability of the same misfortune”—repeated false accusations—“befalling one individual over and over.”  Although the court of appeals unanimously upheld the defendant’s conviction on public lewdness, two judges on the panel echoed concern expressed in prior opinions that the doctrine of chances permits introduction of evidence that is ultimately indistinguishable from “straight-up propensity evidence.”  In a special concurrence, Judge Orme rejected his colleagues’ concern and defended “established jurisprudence concerning the doctrine of chances.”