However, there are exceptions to the rule, such as prior knowledge, lack of mistake, motive, or the doctrine of chances. Exceptions such as prior knowledge, lack of mistake, or motive can show a jury evidence that would not be admitted otherwise. McCormick on Evidence § 197. v. George A. Fuller Co.18 In this case, the plaintiff contended that the contractor systematically underbid his projects, and then consistently charged delay claims and extra work claims to the owner. 1983). One should never engage in a “fishing expedition” for information that would not be relevant to the issue at bar, but that information was not only relevant, it was arguably dispositive in that case. Rich. Rule 404(b), at its heart, prevents evidence of a person’s character from being admitted at trial to prove that the person acted in accordance with that character or trait.1 There are, of course, statutory exceptions to this rule. The book's title came to be synonymous with probability theory, and accordingly the phrase was used in Thomas Bayes' famous posthumous paper An Essay towards solving a Problem in the Doctrine of Chances, wherein a version of Bayes' theorem was first introduced. However, civil attorneys are unreasonably reticent to use this exception. Other misrepresentations and frauds (7th ed.) It says that we allow character evidence—if you’ve got enough instances. The third edition of The Doctrine of Chances. Evidence of “other acts” isn’t likely to supplant evidence of business records in civil construction cases any time soon. When the evidence as a whole was examined, the court found that the foster parent had committed murder.10 It was, unfortunately, only after a large number of children fell ill that logic could prevail; before that, there was not enough evidence to convict.11, Similarity between the act at issue and the prior act is typically required.12 This is reasonable, as it is the parallel nature of the acts that leads the jury, through common sense, to the conclusion that it was a lack of accident that both acts occurred.13 As stated by the Seventh Circuit: “The man who wins the lottery once is envied; the one who wins it twice is investigated.”14 Because this principle simply uses common sense to determine whether a lack of accident exists, it is a documented exception to the Rule 404(b) ban on character evidence.15. In law, the doctrine of chances is a rule of evidence that allows evidence to show that it is unlikely a defendant would be repeatedly, innocently involved in similar, suspicious circumstances. United States v. Woods, 484 F.2d 127, 133 (4th Cir. After discovery, one has more relevant information, and more information leads to more leverage, both at settlement and at trial. 14. 4. The doctrine of chances, a rule of evidence in law The Doctrine of Chances , the first textbook on the mathematical theory of probability, published in 1718; The theory of probability, in 18th-century English, occurring in an influential posthumously published paper of the Reverend Thomas Bayes, " An Essay towards solving a Problem in the Doctrine of Chances . However, counsel should realize that evidence such as that used by the doctrine of chances can make a trial much more stimulating for a jury – prior acts, a history, things that flesh out a story – if done correctly, these things can invigorate, not bore, a jury. However, this type of evidence, in certain situations, can be extremely valuable – even dispositive. Federal Rule of Evidence 404(b) (FRE 404(b)) is significantly underutilized in civil construction cases. 3. Such an argument, based on the evidence, could have changed the jury’s decision. 18. Prospering thru Green Building in a Changing Environment, Contractor Participation in Private Project Financing: A Landscape of Opportunity, Risk and Reward, On Corporate Counsel's Desk: Effective Use of Construction Experts: An In-house Perspective, /content/aba-cms-dotorg/en/groups/construction_industry/publications/under_construction/2017/summer/usefulness-rule-404. Ronald Carlson and Michael Scott Carlson, Carlson on Evidence 120 (5th ed. Though not mentioned in the Rule, another exception that could allow inclusion of 404(b) other acts evidence is the “doctrine of chances.” The doctrine of chances is a theory that allows the jury to determine for itself that a number of seemingly unrelated coincidences are in fact a pattern, and not random misfortune.7 This is not a character theory, because the defendant’s character is not being used as a prognosticator of behavior; instead, the jury is being asked to use their common sense to see whether a theory is plausible.8, The seminal doctrine of chances case is United States v. Woods.9 In this case, a young boy in a foster home died due to respiratory issues. More information typically means more leverage. If underbidding had been exposed, every other owner for whom that contractor had worked may have had a valid fraud claim against him. In effect de Moivre proved a special case of the central limit theorem. 11. The Doctrine of Chances was the first textbook on probability theory, written by 18th-century French mathematician Abraham de Moivre and first published in 1718. Characteristically thought of as an evidentiary statute used only in criminal cases, Rule 404(b) excludes evidence of one’s character or actions as proof that one acted in conformity with that character trait. The full title of the first edition was The doctrine of chances: or, a method for calculating the probabilities of events in play; it was published in 1718, by W. Pearson, and ran for 175 pages.