State v. Lowther: Verde 's Doctrine of Chances foundational requirements have not displaced the Shickles factors for purposes of rule 403.

“Verde 's requirements may help a court assess the probative value of prior bad acts evidence, we clarify that in evaluating doctrine of chances evidence under rule 403, a court may consider any relevant fact and need not necessarily consider Verde 's foundational requirements or limit its analysis to these requirements.” State v. Lowther, 2017 UT 34, ¶ 29, 398 P.3d 1032, 1041.

Lowther, the defendant, was accused of alleged rape or object rape of four women. Each woman identified Mr. Lowther as her attacker, and the State filed charges against him for each alleged crime. The State moved to introduce the testimony of the other women under rule 404(b) of the Utah Rules of Evidence and the doctrine of chances in order to show that the victim did not consent to sexual intercourse with Mr. Lowther. After an evidentiary hearing, the district court granted the State's motion. The Utah Supreme Court granted certiorari to determine whether the lower courts erred in articulating and applying the doctrine of chances. The court of appeals upheld the district court's analysis of rule 404(b), but ultimately concluded that the district court erred when it applied State v. Shickles to conclude that the witnesses' testimony was admissible under rule 403. The Court ruled it is proper for courts do consider Verde’s requirements when determining the admissibility of 404(b) evidence. But then clarified that the Verde requirements have not displaced the Shickles factors in cases where the doctrine of chances is involved. Instead, courts have “discretion to consider any relevant factors that assist in determining whether the “probative value” of the witnesses' testimony is “substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”