Rule 404(b), at its heart, prevents evidence of a personâs 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. United States v. York, 933 F.2d 1343, 1350 (7th Cir. However, there are exceptions to the rule, such as prior knowledge, lack of mistake, motive, or the doctrine of chances. A third edition was published posthumously in 1756 by A. Millar, and ran for 348 pages; additional material in this edition included an application of probability theory to actuarial science in the calculation of annuities. Federal Rule of Evidence 404(b) (FRE 404(b)) is significantly underutilized in civil construction cases. The result is access to more information â and more relevant information leads to more leverage in settlement and at trial. The second inference under the doctrine of chances is quite different. To show that the death was not a coincidence, the government provided evidence that the foster parents had custody of nine other children who suffered from the same sickness, and that seven of those children died. For example, in Chicago College, the plaintiff alleged systematic underbidding by the contractor. 1983). Similarly, the doctrine of chances exception could have been put to great use in Chicago College of Osteopathic Med. 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. 7. (âIn cases alleging fraud or misrepresentation, proof that the defendant perpetrated similar deceptions frequently is received in evidence.â). L. Rev. McCormick on Evidence Â§ 197. Even if this type of evidence is found inadmissible, there is an advantage to going through discovery on these issues. 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. However, civil attorneys are unreasonably reticent to use this exception. 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. Demers v. Adams Homes of Nw. 1991) overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. In effect de Moivre proved a special case of the central limit theorem. Thus, it is discoverable. Had that information been demanded, the contractor would have had to ask himself whether he wanted that information made public at trial. 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 should never engage in a âfishing expeditionâ 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.  De Moivre wrote in English because he resided in England at the time, having fled France to escape the persecution of Huguenots. 3. , An Essay towards solving a Problem in the Doctrine of Chances. Whether the evidence will be admitted or not, the parties have spent time â and money â gathering this evidence for the opposing party. (âThus, with regard to no single child was there any legally sufficient proof that defendant had done any act which the law forbids.â). 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. The ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence. 12. Carlson on Evidence, 142 (âThe doctrine of chances is based on the instinctive logical process that reasonably determines that unusual and abnormal events are unlikely to recur by chance.â). 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. Therefore, construction lawyers should consider using this evidence more frequently. 10. The use of Rule 404(b) evidence in both civil and criminal trials can help a jury determine whether an act was merely an accident or was actually intentional.3 For example, in civil cases involving fraud or misrepresentation, evidence of other acts perpetrated by the defendant has been received into evidence4 under the knowledge, intent, or plan âother actâ exceptions found in Rule 404(b).5 Other courts have allowed 404(b) to prove discriminatory intent in discrimination cases.6 While not used often, this type of âother actsâ evidence can be crucial in a civil case as indirect, if not direct, evidence of foul play. 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. 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. (âProving a breach here does not put motive, intent, plan, or knowledge at issue.â). 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. If underbidding had been exposed, every other owner for whom that contractor had worked may have had a valid fraud claim against him. Though not mentioned in the Rule, another exception that could allow inclusion of 404(b) other acts evidence is the âdoctrine of chances.â 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 defendantâs 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. 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: âThe man who wins the lottery once is envied; the one who wins it twice is investigated.â14 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.