The man who wins the lottery once is envied; the one who wins it twice is investigated.
It is not every day that one’s wife is murdered; it is more uncommon still that the murder occurs after the wife says she wants a divorce; and more unusual still that the jilted husband collects on a life insurance policy with a double-indemnity provision.
That the same individual should later collect on exactly the same sort of policy after the grisly death of a business partner who owed him money raises eyebrows; the odds of the same individual reaping the benefits, within the space of three years, of two grisly murders of people he had reason to be hostile toward seem incredibly low, certainly low enough to support an inference that the windfalls were the product of design rather than the vagaries of chance.
This inference is purely objective, and has nothing to do with a subjective assessment of [the defendant’s] character.
– Michigan Supreme Court Justice Maura D. Corrigan, quoting United States v. York, 933 F.2d 1343 (7th Cir. 1991), in People v. Mardlin. Corrigan was illustrating an evidentiary principle called the doctrine of chances, sometimes know as the doctrine of objective improbability.
Fred Mardlin filed an insurance claim after fire damaged his home. After an investigation, the St. Clair County prosecutor filed an arson charge against Mardlin.
Mardlin was the only one home and left shortly before the fire started. Police and insurance investigators concluded the blaze was deliberately set and started in a piece of furniture. Mardlin was behind on his mortgage and utility bills. Mardlin produced an expert who said the fire started behind the furniture, lending credence to Mardlin’s theory that faulty wiring caused the fire. And, Marlin argued, the prosecutor never had anyone test the wiring.
According to Mardlin, this wasn’t arson, this was just bad luck.
The trial court let the prosecutor tell the jury just how unlucky Mardlin had been.
The prosecution … showed that defendant had been associated with four previous home or vehicle fires — each of which also involved insurance claims and arguably benefited defendant in some way—in the 12 years preceding the charged fire.
Specifically, defendant’s home caught fire in the spring of 2006, apparently as the result of a blanket being left on a kerosene heater. Defendant
filed an insurance claim for the resulting smoke damage.
In 2003, a van driven by defendant but owned by his employer caught fire. The prosecution argued that defendant had a motive to damage this van. The employer had recently transferred a newer van, previously issued to defendant, to another employee; it then issued the van that later caught fire, which was an older model, to defendant. After the older van burned, the employer was forced to replace it.
In 2001, defendant’s own van caught fire and the fire spread to his mobile home. Defendant received an insurance payment for that van.
Finally, in 1994, defendant’s truck caught fire, for which he submitted an insurance claim. Although none of these fires was established to have resulted from arson, the prosecution argued that the pattern was probative to rebut defendant’s claim that he had not intentionally set the November 2006 fire.
But it’s not as it seems, said Mardlin.
[H]e claimed that the fire involving his employer’s van also destroyed defendant’s personally owned work tools.
He also established that, although he turned on the kerosene heater involved in the spring 2006 house fire, his housemate admitted leaving the fire-causing blanket on the heater.
He stressed that the 2001 fire involving his insured van spread to his mobile home, which was not insured.
Further, he presented evidence that, after the 1994 fire that damaged his truck, he nonetheless was required to keep making payments on the damaged truck despite obtaining the insurance proceeds.
The jury took all of this in and convicted Mardlin of arson and burning insured property.
The jury never should have heard any of this, Mardlin argued on appeal. That’s right, the Court of Appeals ruled. The prior fires were not similar to the one resulting in Mardlin’s arson charge.
But they don’t need to be, Corrigan explained in her majority opinion, joined by Justices Elizabeth A. Weaver, Robert P. Young Jr. and Stephen J. Markman.
The doctrine of chances — also known as the “doctrine of objective improbability” — is a “theory of logical relevance [that] does not depend on a character inference.”
Under this theory, as the number of incidents of an out-of-the-ordinary event increases in relation to a particular defendant, the objective probability increases that the charged act and/or the prior occurrences were not the result of natural causes. The doctrine is commonly discussed in cases addressing MRE 404(b) because the doctrine describes a logical link, based on objective probabilities, between evidence of past acts or incidents that may be connected with a defendant and proper, noncharacter inferences that may be drawn from these events on the basis of their frequency.
If a type of event linked to the defendant occurs with unusual frequency, evidence of the occurrences may be probative, for example, of his criminal intent or of the absence of mistake or accident because it is objectively improbable that such events occur so often in relation to the same person due to mere happenstance.
Mardlin’s innocent explanations regarding the circumstances of the previous fires doesn’t make that evidence inadmissible, Corrigan said, they actually bolster the argument for admissibility:
Indeed, defendant’s insistence — echoed by the Court of Appeals and the dissent — that there was no proof he intentionally caused the past fires actually weighs in favor of admission because, absent proof of past criminal intent associated with the evidence, the evidence does not create the traditional intermediate inference about character or criminal propensities associated with established, past criminal acts or convictions.
In her dissent, Chief Justice Marilyn Kelly, joined by Justices Michael F. Cavanagh and Diane M. Hathaway, said the past-fire evidence “was impermissible character evidence.” She questioned the evidence’s relevancy, arguing that the past fires were too dissimilar to the charged offense.
To allow prior acts evidence under the doctrine of chances whenever someone has the misfortune of being connected to an event of “the same general category” eviscerates the concept that “in our system of jurisprudence we try cases, rather than persons.”
Furthermore … using unlikely coincidence to prove actus reus “requires a more rigorous enforcement of relevancy because it more closely approaches the forbidden inference of character to conduct.”