Bad Character Evidence Flashcards
what is the definition of bad character evidence?
evidence of misconduct which does not have to do with:
- the alleged facts of the offence of which the defendant is charged
- the investigation or prosecution of the alleged offence
misconduct = the commission of an offence or other reprehensible behaviours
reprehensible behaviours is not defined but connotes a degree of moral blameworthiness = gang membership, excessive drinking, taking drugs, but not having an affair
what are sources or examples of bad character evidence? (6)
- previous convictions
- cautions
- acquittals, where P contends that D was actually guilty of the previous offence
- convictions, where D contends that this was an example where they were wrongly convicted
- facts that amount to reprehensible behaviour
- witness evidence of a reputation for reprehensible behaviour
what is not an example of bad character?
anything related to the current offence:
- lying in police interview
- attempts at jury tampering of witness intimidation
- evidence of motive
- priors is an element of the offence charged
is bad character evidence admissible?
only if it falls within one of the gateways to admit it:
- 7 gateways under s 101(1) Criminal Justice Act 2003 for defendant’s bad character evidence
- 3 gateways under s 100(1) CJA 2003 for non-defendant bad character evidence
what are the 7 gateways under s 101(1) Criminal Justice Act to adduce bad character evidence of a defendant?
- agreement of parties
- defendant adduces the evidence
- important explanatory evidence
- important matter in issue between D and P
- important matter in issue between D and Co-D
- correcting a false impression
- D attacks another person’s character
what is the gateway that D adduces evidence of their own bad character?
D can introduce evidence of their own bad character by =
- blurting it during cross examination
- admitting old convictions to receive good character or to show they have not been convicted of the kind of offence they are now charged with
- to show why police officers might have bias against D
- to put forth a defence e.g., D was in prison at the time of the alleged offence
what is the gateway of important explanatory evidence?
- important explanatory evidence is evidence which:
- the court or jury would find it difficult or impossible to understand the other evidence, and
- its value to understand the case as a whole is substantial
- it is not enough that the evidence only fills out the picture, it must be impossible or difficult to fill out the whole picture
example =
- evidence to show prior relationship with people involved in the trial where it would not be possible to understand the narrative P puts forward
- evidence of motive which had to do with facts of the alleged offence
what is the gateway of an important matter in issue between the prosecution and defendant?
- bad character evidence is admissible if it is relevant to a substantially important matter in issue between the defendant and the prosecution
- but D can apply to exclude evidence under this gateway and the court must exclude it if it appears that the admission would have an adverse effect on the fairness of the proceedings (and also under s 78 but the court has discretion here)
what are ‘matters in issue’ between D and P?
a matter of substantial importance (not peripheral) in the context of the case as a whole:
- evidence which shows a propensity to commit an offence of the kind with which D is currently charged
- evidence which shows a propensity for D to be untruthful
- D’s defence
- D’s liability
what does a ‘propensity to commit an offence of the kind charged’ mean? how is this established or challenged to admit bad character evidence under the gateway of important matter in issue between P and D? (3)
R v Hansen criteria:
(1) Does the defendant’s history establish a propensity to commit offences of the kind charged?
- propensity to commit offences of the kind with which D is charged can be established by evidence of prior convictions of an offence of the same description or category as the one currently charged
- no minimum number of priors needed to establish a propensity - but:
- the more priors the stronger the propensity
- the less priors the weaker the propensity
- a single prior can show propensity if it shows tendency to unusual behaviour of strikingly similar nature
- consider how similar the offences are to the current charge and to each other + the time between them + number of priors= does this establish a propensity?
(2) Does the propensity make it more likely that the defendant committed the offences charged?
- the court must be satisfied that D is more likely to be guilty of the current offence because of the prior convictions
(3) Is it unjust to rely on convictions of the same description or category, and in any event, will proceedings be unfair if they were admitted?
- the court MUST exclude evidence if it would be unfair to admit it
- the court can exclude evidence if there is a long time between the prior conviction and current charge as this may be unjust
- it may be unfair if D is at a different stage of their life and committed priors when they were younger
- the strength of P’s case must be considered - the court should not admit bad character evidence to bolster a weak case where there is no or little other evidence against D
- take care when seeking to admit prior acquittals as court must not be seen as relitigating settled issues
- it is just to allow the jury to evaluate prior convictions and decide on whether there is a propensity where D denies the current allegation or presents a defence like self-defence
what is propensity to be untruthful?
bad character evidence can be admitted under the gateway of important matter in issue between P and D where it shows a propensity for the defendant to be untruthful
- prior convictions can show dishonesty where D pleaded NG before and gave evidence at trial which the jury must have disbelieved
- prior convictions can show dishonesty if the offence involved being untruthful (e.g., fraud)
- but just because D committed a dishonest offence does not mean D is untruthful
- this gateway can only be used where it is suggested that D’s case is not untruthful
who establishes whether a propensity exists?
- the judge establishes if the evidence is capable of establishing a propensity
- the jury (or MC tribunal of law) decides if the evidence actually shows a propensity
what is cross-admissibility?
- If D faces multiple charges in the same proceedings, the bad character provisions apply as if each offence was charged separately
- So, the gateway of important matter in issue between D and P being a propensity to commit similar offences allows admitting evidence of one offence as evidence of the other
what is the gateway of important matter in issue between co-defendants?
bad character evidence is admissible against a co-defendant if brought by another co-defendant and has a substantial probative value to a matter in issue between the co-defendants
- the defendant against whom the evidence is brought cannot apply to exclude it based on unfairness or s 78 (as this is not prosecution evidence)
- matter in issue can be a propensity to:
- be untruthful = only where the nature of the defence is to undermine the adducing defendant’s defence
- commit similar offences = only where the defendant against whom the evidence is brought is arguing they have no such propensity
what is the gateway to correct a false impression?
bad character evidence is admissible by P against D or by D of his own bad character if it is evidence that will likely correct a false impression given by the defendant (not by co-d against co-d)
false impression made if:
- D makes it in the proceedings
- D makes it when questioned under caution
- D’s conduct e.g., appearance, dress, actions
- made by a defence witness
- made by a witness when D cross-examines them
