Character Evidence Flashcards
What is the definition of bad character under s98 CJA 2003
evidence of, or disposition towards, misconduct other than evidence which has to do with alleged facts of the charged offence or is evidence of misconduct in connection with the investigation or prosecution of that offence
what does misconduct mean?
commission of an offence or other reprehensible behaviour - any evidence suggesting guilt whether or not charged
must the misconduct be previous to commission of current offence?
no can be subsequent - drawn from any point before or during investigation/trial
What previous convictions can be relied upon?
any convictions in UK or other EU member state - whether before their membership of EU or after
consider they may be excluded if it can be shown that verdict might be unsafe e.g not understanding meaning of offence even though they pleaded guilty
What must party seeking to rely on previous conviction be ready to provide if neccesary
details and circumstances of previous offence
What is the principle of cross-admissibility of bad character to multiple charges
a gateway must exist for consideration of bad character for every individual offence - application must be made - failure may mean D entitled to have case decided as if inadmissible
what makes behaviour reprehensible?
fact specific - relevant to the facts of the case
e.g extra-martial affair in ABH charge not relevant
messages detailing desire to stab or gang membership generally yes
What does s100 CJA 2003 provide
stat scheme for introduction of evidence of bad character - leave of court needed for all apart from party agreement
Give examples of what s98(b) could be used to admit (D perspective)
evidence of police lying in interview, fabricating evidence, unlawfully obtaining evidence, intimidating witnesses etc.
What are the 3 headings under s100 CJA 2003 for admissibility of bad character evidence
importance explanatory evidence
substantial probative value in relation to a matter in issue and is of substantial importance in the context of the case as a whole OR
all parties agree
What is application of s100
all aspects of use of bad character other than the accused in XIC or XX whether or not appearing as a witness
e.g statement admitted under hearsay or character of the deceased in murder trial
What is important explanatory evidence?
without it - court would find it impossible or difficult to properly understand other evidence in the case
its value for understanding the case as a whole is substantial (in context of other evidence)
what is the meaning of substantial?
1 - importance in the context of the case as a whole
2 - probative value in relation to the matters in issue
what matters are relevant to probative value?
nature and number of events or things
when the events or things are alleged to have happened
nature and extent of similarities where it suggested that its value lies in similarity OR
extent to which evidence shows or tends to show that the same person is responsible each time where ID of person responsbile is disputed and it is suggested another may be responsible
What two types of evidence of bad character were defined in brewter
direct and indirect
direct - reason to doubt truth of witness
indirect - general reason for suggesting witness not to be trusted
what common law rule is preserved by s99(2) CJA
proving bad character via repuatation
When need a court not assume evidence is true?
if it appears on the basis of material before the court than no court or jury could reasonably find it to be true
what must a court do if they find evidence to be contaminated to extent verdict would be unsafe?
direct acquittal or discharge jury if retrial required
what is the meaning of contaminated?
as a result or agreement or understanding, or as a result of being aware of anything alleged - the evidence is false or misleading, or different to what it would otherwise have been
What is the effect of s101(1)(b) (blurts it out)
D may adduce evidence of own character - e.g criminal record iot lay out blank or dissimilarity
judge should direct jury accordingly - HUnter
what are the 8 gateways?
a - agreement
b - blurts it out - D may adduce
c - context of case
d - done it before - pre-cons propensity etc relevant to important issue
e - ‘e done it - co-accused/other
f - false impression - correct
g - gets at the witness - attack on another
What mandatory power is contained in s101(3)
Court MUST not admit evidence under ss(1)(d) or (g) if on app by D it appears to the court that the admission of this evidence would have such an adverse effect on fairness that court ought not to admit it
D must apply - not court of own motion
Where evidence is admitted under one gateway - what should court properly do to protect fairness if not relevant to others?
direct that this evidence be considered only in relation to one aspect.
careful of this being artificial - is possible that evidence can be doubly relevant
what is the result of judge failure to give direction to jury on handling of bad character evidence?
not automatically ground for appeal as does not necessarily render the verdict unsafe - but judges should not assume juries have same common sense and so summing up is preferred
what evidence is admissible under s101(1)(c)
context - explanatory evidence
evidence without which it would be impossible or difficult to understand the evidence in the case - provided value for understanding is substantial
what are prosecution required to show of evidence seeking to admit it under s101((1)(d) (done it before0
relevant to an important matter in issue between prosecution and defence
important = substantial in context of case as a whole
probative value of no matter
what categories to prescribed offences to show propensity fall into?
theft (dishonesty)
sexual offences - persons under the age of 16
other ways of showing propesnsity exist
how does pre-trial disclosure aid parties making applications to adduce evidence under s101(1)(d)
can identify relevant matters in issue
if doubt- ruling on admissiblity should be delayed
what is the impact of multiple accusations?
more likely to be true than just one
gateway required to faciliate cross-admissibilit
when can evidence be adduced under s101(1)(e) ‘e done it - co-accused
where it has substantial probative value in relation to an important issue
what evidence can be adduced under gateway e
evidencence of propensity not directly suggestive of untruthfulness admissible for all relevant pruposed including credibliity
what constraints are there on a gateway e app
no statutory discretion to restrain co-accused from adducing evidence of bad character but power to disallow a late application where target would be unable to deal with if effectively
when can gateway f be used?
by prosection only
correcting a false impression - where that is created by D or another witness in XIC or XX
what creates false impression
issue of fact - even an accused who makes admissions of ‘full history’ warts and all may be concealing further reprehsnible behaviourl
ideally when should false impression be corrected
as and when it arises - rather than at close of D case
what are the grounds under s101(1)(g) (attacks on another person’s character)
counter attack an attack on another person
attack = adducing evidence directly/trhough questioning of another committing an offence or behaving in a reprehensible way
what is proof of conviction under s73 PACE 1984
certificate of conviction or acquittal accompanied by proof that the person named on the certificate is the person who’s conviction/acquittal is in issue
are convictions of one person admisisble at the trial of another
yes under s74(1) PACE
with the presumption that they are correct - burden on the party against whom the presumption operates to prove otherwise and if that is the D then must do so on balanace of probs
how should a court handle evidence adduced under s98(a) - to do with alleged facts
consider the fine line between this and gateway evidence - must always give a direction for how jury should consider this kind of evidence
when should an accused who wishes to adduce evidence of their own bad character notify the court and parties
notice in writing or orally asap and in any event before evidence introduced
what guideline governs bad character application and how should it be used
crim PR part 21 - written application or undertake to do this promptly, judge ruling
when might an accused waive notice or court allow notice in different form?
where it is in the interests of justice to do so
what should court consider when rules have not been complied with?
consider exercising their power to vary notice requirements - depending on fairness
what must an application notice for D bad character include
facts of misconduct on which party relies
explain how these will be proven if another party disputes them
explain why evidence is admissible
when must an application for non-D bad character be made and how can it be objected to?
not more than 10 business days after disclosure of relevant material
object not more than 10 business days after application inlcuding:
which facts are disputed/admitted
why evidence inadmissible
any other objections
what powers does the court have in determining an application for non-D bad character
hearing/private/no hearing
no determination without presence of parties other than applicant and 10 business days to object have elapsed
may adjourn or discharge application
when must a prosecutor serve an application for Ds bad character
20 business days after D pleads NG in mags
10 business days after D pleads NG in CC
when must a co-D serve notice
ASAP and in any event NLT 10 business days after material on which it is based is disclosed
how can a party object to bad character app
apply to the court to determine the objection not more than 10 business days after receipt
facts admitted/disputed
why evidence inadmissible
why it would be unfair to admit it
any other objection
what is the common law principle of good character
entitled to a direction of good character as of right if absolute (vye)
in what limited circs might a good character direction be available for someone other than the accused?
where directly relevant to an issue - eg non-violent tendencies of the deceased in determining who was the aggressor
what was the impact of Hunter?
benefit of good character direction had been wrongfully extended - new principles for application and discretion for modified direction if at all
not giving one where potentially entitled does not render conviction unsafe
what is the true rule in Hunter as to who is entitled to a good character direction
Only Ds with absolute good character or who are deemed to be of effective good character are entitled to any judicial direction
what is absolute good character?
no previous convictions
no other reprehensible conduct alleged, admitted or proven
what direction should be given when it is judged that a D is of effective good character?
entitled to the full direction but should be modified to make jury aware of things which mean they are not of absolute good character
is it possible to be entitled to only part of the good character direction (propensity and credibility)
technically yes, although Hunter argues that if not entitled to one part cant be of effective good character - the court has discretion here
what should be taken into account when assessing precons for effective good character
age, frequency, type - not exhaustive and overall fairness should be considered by judge in deciding whether to give any/partial/full direction
what is consequence of D adducing bad character evidence that prosecution do not rely on
jury entitled to draw same inferences as the court without direction necessary
what is the hunter absurdity principle
an accused who has no precons but misconduct is relied upon by prosecution - trial judge has discretion to weave into bad character direction some good character but not insofar as it would be absurd to do so (meaningless)
what are the components of a good character direction (hunter)
first limb - positive - credibility of D
second limb - negative - less likely to have committed offence (propensity)
weight to be given to each is matter for jury
When might a Vye direction be used
where accused of good character does not give evidence but relies on exculpatory statements direction should be made as to how to give weight to these as opposed to evidence given under oath
where no previous statement made or relied upon 1st limb can be dispensed with entirely as no issue of credibility arises
what are the 4 questions in hanson RE propensity
- does Ds history establish propensity to commit offences of the kind charged
- does that propensity make it more likely that D committed the offence charged
-where previous offences are of the same description or category would it be unjust to admit - in any event, wouldproceedings be unfair if evidence admitted
when might acquittals be taken into account as evidence of bad character?
e.g 3 previous acquittals for sexual assault/rape - evidence of complainants taken together , despite acquittal, makes probative value significant - still subject to exclusionary rules
define reprehensible behaviour
culpability or blameworthiness , not just morally lax
