The second inference under the doctrine of chances is quite different. While FRE 404(b) statute lists useful exceptions to the rule, other exceptions such as the doctrine of chances may be used to admit this type of “other acts” evidence. 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. Federal Rule of Evidence 404(b) (FRE 404(b)) is significantly underutilized in civil construction cases. [1], An Essay towards solving a Problem in the Doctrine of Chances. The Doctrine of Chance Chance, as we understand it, supposes the Existence of things, and their general known Properties: that a number of Dice, for instance, being thrown, each of them shall settle upon one or other of its Bases. 14. With the uncertainty a jury can bring to a case, the contractor may have opted to settle rather than risk the possibility of every owner or developer for whom he had underbid – intentionally or not – suing him for fraud. 17. Though rarely used in construction cases, these exceptions allow savvy counsel to include evidence that might not typically be heard in a civil construction case. Normally, under Federal Rule of Evidence 404, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. McCormick on Evidence § 197. Florida, Inc., 321 F. App'x 847, 854 (11th Cir. The example that’s used in a … 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. Demers v. Adams Homes of Nw. The doctrine of chances is a very rarely invoked exception. Also, even in cases where the evidence was excluded, the parties still went through discovery on these issues. Published in 1738 by Woodfall and running for 258 pages, the second edition of de Moivre's book introduced the concept of normal distributions as approximations to binomial distributions. Undoubtedly just a few instances of underbidding would not have been enough to convince the jury of the contractor’s liability, much less the judge, but if underbidding on enough jobs could be shown, the jury could have decided that this underbidding was not through accident, but instead deliberate deception committed over and over against unknowing developers. However, civil attorneys are unreasonably reticent to use this exception. 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, wher… Imwinkelried, The Doctrine of Chances (“Under a character theory, the second inference entails using the defendant's subjective character as a predictor of conduct. Full text of “The Doctrine of Chances”, 1st edition; from,, Creative Commons Attribution-ShareAlike License, This page was last edited on 26 August 2018, at 07:30. One reason is the valid concern that the admission of this evidence will result in a trial-within-a-trial, and that the jury will be confused, or, worse, uninterested. L. Rev. It says that we allow character evidence—if you’ve got enough instances. Id. Id. Thus, while exceptions other than those listed in Rule 404(b) have not historically been useful in civil construction cases, the above hypotheticals show that in certain situations, exceptions such as the doctrine of chances could prove extremely useful. One can imagine that giving the opposing party information regarding every bid that contractor participated in over years, if not decades, could result in a large amount of potentially damaging material. 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. United States v. Woods, 484 F.2d 127, 133 (4th Cir. At trial, the litigants present the jury with at least two competing hypotheses: one that all the incidents are accidents, and the other that one or some of the incidents were not accidents. 6. The result is access to more information – and more relevant information leads to more leverage in settlement and at trial. (“In cases alleging fraud or misrepresentation, proof that the defendant perpetrated similar deceptions frequently is received in evidence.”). 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). Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding A Non-Character Theory of Logical Relevance, the Doctrine of Chances, 40 U. 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. Therefore, construction lawyers should consider using this evidence more frequently. Rule 404(b) states that evidence of other acts are admissible to show opportunity, intent, knowledge, or absence of mistake.2 This rule of evidence is often used in criminal trials, but is criminally underutilized in civil trials. 4. Thus, it is discoverable. This article examines how this rule of evidence could be used in construction cases.