Character Evidence Flashcards
What are the two categories of character evidence?
Bad character evidence; and
Good character evidence.
Define good character evidence.
Evidence of a lack of misconduct, the commission of offences or other reprehensible behaviour.
Define bad character evidence.
Evidence of, or a disposition towards, misconduct, commission of offences or other reprehensible behaviour.
Briefly explain the ‘all party agreement’ gateway of the admission of character evidence.
The evidence will be admitted if the admission of the evidence is agreed by all parties.
List the 7 gateways to the admission of character evidence.
1) All party agreement;
2) Evidence adduced by D;
3) Important explanatory evidence;
4) Relevant to an important mattering issue;
5) Matter in issue between co-defendants;
6) Correction of false impression given by D;
7) D attacked another’s character.
Briefly explain the ‘evidence adduced by D’ gateway of the admission of character evidence.
Evidence of character will be admissible if the evidence is adduced by D, or the evidence is given by D in response to cross-examination.
Briefly explain the ‘important explanatory evidence’ gateway of the admission of character evidence.
Will be admissible if:
1) Evidence is needed to property understand other evidence in the case; or
2) Its value to understanding the case as a whole is substantial.
Briefly explain the ‘relevant to important matter in issue’ gateway of the admission of character evidence.
- Will be admissible if the evidence includes propensity to commit offences like the current charge and propensity to be untruthful.
- This gateway can be used to adduce similar prior convictions/ cautions and even dishonesty convictions.
Briefly explain the ‘matter in issue between co-defendants’ gateway of the admission of character evidence.
Will be admissible if the evidence has substantial proactive value rte important matters in issue between D and D’s codefendant.
Briefly explain the ‘correction of false impressions given by D’ gateway of the admission of character evidence.
- Evidence is admissible if it corrects a false impression given by D.
- This includes evidence given in court by D or before the court proceedings under caution and evidence given by witnesses/ evidence elicited by questioning the defence.
Briefly explain the ‘defendant attacked another’s character’ gateway of the admission of character evidence.
Evidence will be admissible if D or their representative attacks another’s character/ questions a witness intending to illicit such evidence. In such situations d’s pwn bad character becomes admissible.
Give the requirements in order to rely on the gateway ‘important explanatory evidence’.
- Bad character evidence is admissible if it is important explanatory evidence.
- Evidence is admissible under this gateway if:
1) Without it jury would find it difficult/ impossible to properly understand other evidence in the case; and
2) Its value for understanding the overall case is substantial.
Give the requirements in order to rely on the gateway ‘relevant to important matter in issue between prosecution and defence’.
Bad character evidence may be admissible so can be of use to prosecution, as they are able to adduce bad character evidence on the basis of propensity to commit similar offences/ to be untruthful.
Similar offences for the purposes of this gateway are deemed to be all offences of the same kind (ie any offence which demonstrates similar behaviour).
Usually propensity is only found where there are multiple previous offences (unless the current offence has very similar circumstances and traits to the one prior conviction).
Dishonesty offences are sometimes deemed to show propensity. Effectively previous convictions for dishonesty offences (eg theft or blackmail) are unlikely admissible unless they directly relate to the type of offence charged in the instant case.
Give the requirements in order to rely on the gateway ‘substantial probative value to important matter in issue between co-defendants’
- This may apply where co-defendants are blaming each other for the offence. In such situations, one of the D’s may wish to introduce evidence of previous similar offences the other has committed to show the other is more likely to be the perpetrator.
1) The matter must relate to an important matter in issue to be admissible; and
2) Must have substantial value rather than just mere relevance.
Give the requirements in order to rely on the gateway ‘d has made an attack on the character of another person’.
- D’s own personal character is admissible if they attack the character of another.
- Attack need not take place during evidence at trial, but an attack on character of another during interview under caution or on charge is sufficient.
- Also applies if D’s counsel attacks character of another during cross-examination (ie in such situations D’s bad character will also be admissible).
- Attacks include a wide range of things from suggesting the bias of a witness, raising a previous conviction of a witness or accusing the police of misconduct.
explain the procedure for admitting D’s bad character evidence.
- Prosecution must complete ad serve a form within:
1) 28 days of D’s entry of a not guilty plea in Magistrates Court; or
2) 14 days of entry of a not guilty plea in the Crown Court.
- If D wishes to oppose, notice to oppose must also be served on the prescribed form. Application will either be decided at a pre-trial hearing, or on the day of the trial (in the absence of the presence of the jury).
Explain the courts power to exclude D’s bad character evidence.
- Even if a gateway is successfully used, court can still excuse the evidence.
- They will do so if:
1) D makes an application to exclude the evidence; and
2) It appears the admission of the evidence will have an adverse effect on the fairness of the overall proceedings; and
3) in making the decision the court must have regard to the amount of time which has elapsed between the previous offences and the current offence. - PACE sets out that if it is deemed the evidence will have an adverse effect on the fairness of proceedings the court MUST NOT ADMIT the evidence.
What is a good character direction?
If D has no previous connections, they are entitled to have the judge give a good character direction to the jury.
A good character direction consists of two parts:
1) Propensity direction; and
2) The credibility direction.
Define the propensity direction.
The propensity direction is that a person of good character is less likely to have committed the offence in question.
Define the credibility direction.
The credibility direction is that a person of good character is more likely to be credible when assessing their innocence ether before/ during the trial.
When is a D entitled to good character direction?
1) If D has previous convictions that are old, minor and not related to the current charge, D is considered to be of good character and may still receive propensity ad credibility directions.
2) If D has no previous convictions but there is other bad character evidence on which prosecution relies, a good character direction will probably not be available.
3) If D has no previous convictions but there is other bad character evidence on which the prosecution does not rely, the judge will have discretion on whether to giver the good character direction.
Do allegations of misconduct against D (which are connected with the offence they are being charged with) need to satisfy any of the gateways for admitting bad character evidence?
No.
Eg if someone is being tried for murder and is also accused of fabricating that person’s will for their benefit, this is not bad character but misconduct (as it is directly linked with the offence for which they are being tried).
Can bad character alone prove the guilt of D?
No. As with adverse inferences, other evidence must also be present to form the basis of a conviction.
Give an example of a situation where D may wish to adduce evidence of bad character themself.
If D has pled guilty to previous offences and is pleading not guilty to a current offence. This could be useful to show that D admits their mistakes when they have made them, strengthening the position of their current not guilty plea.
