Bad Character - Defendant Flashcards
How many gateways for admissibility of D bad character evidence?
7
What is a mnemonic that helps to memorise the gateways for admission of bad character evidence?
A – Agreement
B – Blurts it out
C – Context
D – Done it before
E – ‘E did it
F – False impression
G – Gets at the witness
What is gateway A for admission of bad character evidence?
Agreement of the parties – no formal application needed
What is gateway B for admission of bad character evidence?
Evidence adduced by D himself about himself
Why would D wish to bring in bad character evidence about himself?
- Come clean about old conviction
- Show D never convicted of an offence of that type
- Put forward defence to show D was in prison at time
- To show why officers have bias against D
Is leave of the court required for D to bring in bad character evidence about himself?
No
What is gateway C for admission of bad character evidence?
It is important explanatory evidence
When is bad character evidence considered important explanatory evidence?
A) Without it, court would find impossible to understand other evidence in case, and
B) Its value for understanding case as a whole is substantial
Is leave of the court required to admit bad character evidence via important explanatory?
Yes
What is gateway D for admission of bad character evidence?
- D propensity to commit offences?
- D propensity to be untruthful?
When can bad character evidence show propensity to commit offences of same kind?
- If previous offence of same description, or
- Same category
When could Gateway D not be admitted for bad character evidence?
If there has been a long reason of time from conviction which would make it unjust
What questions must the court ask when asked to admit bad character evidence to show propensity?
- Does D’s history establish propensity to commit offences of the kind charged?
- Does propensity make it more likely that D committed the offence?
- Where previous offences of same description, would it be unjust to rely on them?
- In any event, would proceedings be unfair if evidence were to be admitted?
When would the court not admit propensity evidence in relation to prosecution’s case?
If the prosecution case is weak generally
When could a propensity to be untruthful be shown?
1) Plea of not guilty – D gave evidence at trial which jury must have disbelieved
2) An untruthful offence – e.g. fraud by false representation
Is dishonesty and untruthful the same?
No – burglary can be dishonest. Fraud by false representation is more untruthful.
What is the rule of cross-admissibility on bad character evidence?
A gateway is required for each charge if a D faces multiple charges in the same proceedings
Is leave required to admit evidence through the propensity gateway for bad character?
Yes
What is gateway E for admission of bad character evidence?
Evidence of co-defendant’s propensity to be untruthful
When is evidence of co-defendant’s propensity to be untruthful admissible?
Where the nature of the defence is such as to undermine the D of the Co-D that seeks to adduce the evidence
Is leave of the court required for gateway E?
Yes
What is gateway F for admission of bad character evidence?
Correcting a false impression given by the D or D’s witness
Which false impressions of the D is captured in gateway F?
- Any made during proceedings
- Any under caution, before charge, about the offence
When would a D be able to avoid bad character admission in relation to gateway F?
If he withdraws or disassociates from the false impression
Give an example of gateway F of a D in a police interview
D says “I have never acted dishonestly” – prosecution adduces evidence of what is said in interview as part of prosecution case (i.e. previous convictions for offences of dishonesty)
Is leave of the court required for gateway F regarding bad character evidence?
Yes
What is gateway G for admission of bad character evidence?
When D makes an attack on another person’s character
What does attacking another person’s character mean in terms of bad character evidence?
Saying another:
- Has committed an offence
- Has behaved, or disposed to behave, in a reprehensible way
What type of bad character evidence does gateway G allowed to be admitted?
Evidence of dishonesty, not just propensity to be untruthful
What is the purpose of gateway G for bad character evidence?
Prosecution evidence to show that what is being said about the witness is not true
Is leave of the court required for gateway G regarding bad character evidence?
Yes
What test in CJA 2003 applies to gateway G?
The fairness test
What directions are given to jury regarding bad character evidence?
- They must appropriate weight on the evidence
- Not to place too much reliance
- This evidence cannot be used to bolster a weak case
