Character Evidence Flashcards
When should an application to adduce bad character of a non defendant be made?
As soon as is practicable and not more than 10 business days after the prosecutor discloses material on which the application is based
When should an objection to a bad character application about a non-defendant be made?
Not more than 10 business days after service of the application
When must an application to adduce the bad character of the defendant be made if made by prosecution?
not more than 20 business days after D pleads not guilty in mags
not more than 10 business days if D pleads NG in crown court
When must an application to adduce the bad character of the defendant be made if made by co-accused?
Not more than 10 business days after the prosecutor discloses the information on which it is based
Can the accused waive their entitlement to notice?
Yes
Can the court vary the procedure for the giving of notice?
Yes, where in the interests of justice to do so
What must the court do when it decides whether or not to admit character evidence?
Give reasons for its decision
What is the definition of bad character evidence?
Evidence of, or evidence of a disposition toward, misconduct other than that which has to do with the alleged offence or to do with the investigation of that offence
What does misconduct in this case mean?
The commission of an offence, or other reprehensible behaviour
What should P do if there is a risk of bad character being implied?
Make a s.101 application
When can the misconduct have happened?
It can have occurred before or after the offence being prosecuted.
Weight is then a question for the tribunal of fact
If the bad character evidence is previous convictions, what must be given?
details of the offences
What must the prosecution do if there are multiple charges on the indictment?
Bad character must be admissible through one of the gateways for each offence.
If it is not, it should not be adduced
What does reprehensible mean?
Some form of culpability of blameworthiness
What does s.100 CJA govern?
Admissibility of bad character evidence of someone other than the accused
What are the criteria for admissibility under s.100 for non-defendant’s bad character?
It must :
a) be important explanatory evidence
b) have important probative value in relation to a matter which:
(i) is in issue in the proceedings and
(ii) is of substantial importance in the context of the case as a whole or
c) all parties agree to the evidence being admissible
What is important explanatory evidence for the purposes of s.100?
If without it the jury would find it difficult or impossible to understand other evidence and its value for the case as a whole is substantial
who does s.100 apply to?
Everyone apart from the accused
i.e. it can be the deceased in a murder trial
If the principles of s.100 are met, does the court have to admit the evidence?
yes
Who does s.101 CJA apply to?
The accused and their bad character
When is bad character admissible under s.101?
When:
a) all parties agree
b) the evidence is adduced by D themselves or is gien in an answer in cross
c) it is important explanatory evidence
d) it is relevant to an important matter in issue between the defendant and co-defendant
e) it has substantial probative value in relation to an important matter in issue between D and P
f) it is evidence to correct a false impression given by D
g) D has made an attack on another character
Which gateways have an additional fairness test?
(d) - relevant to an important matter in issue between P and D
(g) D has made an attack on another’s character
What is the test that should be applied under s.101(1)(d) - the important matter in issue gateway?
Hanson test
Does the history of convictions establish a propensity to commit offences of the kind charged?
If so, does the propensity make it more likely that D committed the crime charged
It only applies to prosecution evidence
What evidence does s.101(1)(e) apply to - substantial probative value gateway?
Evidence provided by a co-defendant or by a witness in cross.
Must be of substantial probative value.
When is D responsible for an assertion which can justify adducing evidence to correct it?
It must be made by them:
in proceedings
while being questioned under caution
on being charged
or was made by a witness called by D
or was made by a witness under cross by D
Or was made out of court and D adduces it in proceedings
Can D withdraw an assertion to prevent the bad character evidence?
yes
What evidence is permissible under s.101(1)(f) - correcting a false impression?
P evidence which goes no further than correcting false impression
Does D have to actually say anything to generate the false impression?
No - can be conduct
What is a vital part of the judges role in admitting bad character?
The direction given to the jury
Is good character of D admissible?
Yes especially as it goes to propensity
Is good character of other people admissible?
Yes - if it is directly relevant to an issue
When will the judge give a good character direction?
It is about the accused
It must be more than a lack of bad character, it must be absolute or effective good character
What is absolute good character?
No previous convictions or other reprehensible conduct is alleged, admitted or proven
What is effective good character?
May be some evidence of previous convictions, but the judge is tasked with deciding if they are sufficiently old, minor or irrelevant for D to be treated as having good character
What is the good character direction?
Has two limbs -
credibility and propensity
One or both can be given, depending on the facts of the good character
