By
David Rangaviz
State
v. Vuley, 2013 VT
9
“The
man who wins the lottery once is envied; the one who wins it twice is
investigated.”
In
criminal trials, the presentation of evidence to the jury is governed by
certain rules. These evidentiary rules
often keep highly relevant information away from the jury, typically because
the evidence is either somehow unreliable, unfair to the defendant, or confusing
to the jury.
One
such rule bars what is referred to either as propensity or character evidence. Under this rule, the prosecution cannot admit
evidence of a defendant’s other bad
acts—as in, not the act the defendant is on trial for allegedly committing—to
show that he has a certain character trait or propensity (for committing crime). The theory behind the rule is that the
prosecution should have to show that the defendant committed this crime, not have the bar effectively
lowered by the admission of evidence of the defendant’s prior bad acts. Also, these prior bad acts might poison the
jury against the defendant, and send the trial down any number of rabbit holes
if the defendant disputes that he committed each individual prior act (turning
each trial into an endless criminal version of This Is Your Life).
This
ban on character evidence is also frustrating because it contradicts another
fundamental purpose of the evidentiary rules: putting the best (i.e., most
relevant) evidence before the jury. It’s
obviously highly relevant to a bank robbery trial that a defendant has
committed five prior bank robberies; bank robbers rob banks. That’s why we rely on this type of reasoning
all the time in our everyday lives.
What’s past is prologue.
But
the strength of this evidence is exactly why it’s banned. The inference of propensity overwhelms the
other evidence and the jury may convict on this basis alone. In other words, the evidence is so powerfully
relevant that it’s unfair. (Besides,
bank robbers don’t always rob banks. Everybody can change!)
This
tension means the stakes of such cases are high. Admit the evidence, and the defendant will
likely be convicted. Keep it out, and he
may walk free. This makes the character
evidence prohibition one of the most heavily litigated provisions of the rules
of evidence.
Today’s
case presents an interesting wrinkle on this commonplace evidentiary
issue—should a jury be allowed to infer a defendant’s criminal intent based on
the improbability of multiple coincidences?
Let
me explain.
Over
the course of eight weeks, from late 2008 to early 2009, four fires occurred at
Defendant’s house in Colchester. That’s
one fire every two weeks! To give you some
context, in all of 2008 and 2009 the Malletts Bay Fire Department responded to
ten fires. Four were at Defendant’s
house.
The
State’s Attorney thought the latter and charged Defendant with four counts of
first-degree arson. During the trial,
the judge instructed the jury that, based upon their common sense, they could
conclude “that it is unlikely that this number of similar accidents would occur
on the same property in a short period of time.”
Defendant
was convicted of setting the final two fires.
He appealed to SCOV.
In
an extraordinarily detailed opinion, the SCOV unanimously holds that the jury
instruction, and the evidence of all four fires, permits the very same
propensity reasoning barred by the rules of evidence. As such, the instruction was erroneous.
The
doctrine in question—allowing the jury to infer that the four fires were not
accidental—is referred to as the “doctrine of chances.” According to SCOV, the use of this evidence
allows the jury to make three distinct inferences.
First,
the “probabilistic” doctrine of chances allows the jury to infer that, where
independently improbable events occur together, it is likely that some common
cause explains them all. If lightning
strikes the same place ten times, there’s probably a reason other than mere
chance.
Second,
when this doctrine is applied to human conduct, it allows the inference that
independently improbable incidents that might have been accidental were not, in
fact, accidents. If I shoot ten of my
wives and claim that all ten shootings were accidents, there’s likely a reason
other than accident that explains the shootings—I’m a murderer. (Hopefully, I would have been caught earlier on
in this Bluebeard scenario.)
Third,
the “psychological” doctrine of chances permits the inference that when
something unusual has already happened,
subsequent occurrences are less likely to be accidents. If I actually shoot my first wife by accident,
I’d probably learn from that mistake and be much less likely than the average
man to shoot my second wife accidentally.
(To take a real world example: If it really was a mistake, Oscar
Pistorius probably won’t do it again.)
Now
a quick quiz. Which, if any, of these
three inferences sounds like impermissible propensity reasoning?
According
to the SCOV, the answer is inference #2.
By the court’s description, this inference is simply covert propensity
reasoning—it allows a jury to infer that “because a man has intentionally
killed a wife, he is therefore more
likely to have intentionally killed this
wife.” To assume that all of the fires
derived from the same source, we would have to assign Defendant the character
trait of being an arsonist, exactly the sort of propensity inference barred by
the rules.
As
SCOV recognizes, many commentators and courts disagree, arguing that “chances”
evidence is not really propensity evidence.
Instead, so this argument goes, the evidence is really about objective reality,
not subjective character. There is simply
a disparity between the statistical odds that an innocent person would have
four fires at their home and the odds that a guilty person would have so many
fires. The jury should be able to hear
this evidence and rely upon this objective truth in assessing guilt.
But
SCOV isn’t fooled. This is pure
propensity reasoning in statistician’s clothing, as this observation could only
be true if and only if the guilty person has the propensity to set repeated
fires. SCOV says it better than I ever
could: “Propensity reasoning does not become permissible by virtue of being
backed by objective probabilities. The
objective/subjection distinction is a red herring here.”
As a result, such “chance” evidence is
inadmissible because it allows the jury to engage in improper propensity-based
reasoning.
The difficulty here lies in the
application of the exceptions to the general prohibition on character
evidence. The rules expressly permit character evidence where it is
used to show intent or the absence of an accident. That exception would seem to apply here, and
allow the admission of the previous fires to show that Defendant intentionally
set the fires and they were not accidents.
If you’ve followed along closely, you might
see that this is the SCOV’s “psychological” doctrine of chances (inference #3 –
Oscar Pistorius learning from his mistake).
The fact that an unusual incident occurred means that a future
recurrence will be less likely to be an accident (and thus more likely to be
intentional). According to the SCOV,
this inference is permitted because it is “more about the relevance of
individual history to a person’s mental state.”
But one question the SCOV doesn’t answer
is whether prosecutors will be able to take advantage of this third kind of
inference in future cases by use of a limiting instruction.
Limiting instructions allow juries to
hear inadmissible evidence if, upon hearing that evidence, they are also admonished
by the judge not to consider the evidence for the unauthorized purpose and to
only use it for permissible purposes. In
our jury system, courts assume that jurors follow these instructions.
Applying this common practice, it is
certainly possibly that in some future case a Vermont trial court might admit
such “chance” evidence while giving a limiting instruction disallowing
inference #2 but allowing inference #3. The
practical difference, then, might be negligible—the jury can hear the “chance”
evidence while just being told that they shouldn’t consider it in a certain
way. Even a highly-sophisticated jury
would have a hard time telling the difference.
For now though, the SCOV has it just
right. Propensity evidence is so powerful
that courts must carefully police its admission. The SCOV has struck the proper balance.
It was a hollow victory for this Defendant,
however, as SCOV affirms his arson convictions because his attorney failed to
object to the jury instruction properly, thus effectively waiving the error
during the trial. (Justice Robinson
dissented on this point alone.)
So the next time you try to predict
someone’s conduct by assessing their character, just remember that your inference,
while commonplace throughout society, wouldn’t be allowed in a courtroom.
Also, if you happen to have really bad
luck, just try never to be unlucky in the same way twice.
Because, seriously … what are the
chances?
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