Character Evidence Flashcards
What is character evidence
● Evidence of personality, psychology, attitudes, capacities of a person such as to engage in a certain behaviour
● Distinct from habit - but distinction is questionable
● Character rules are most strict in crim trial. Other parts of crim such as sentencing, bail, are more lenient, character evidence can be central.
● Not as frequent to have character evidence called in civil trials due to differing concerns
● Concerns with character evidence
○ Ppl dont always keep with their general character
■ Risk of judging on general propensities not whether they actually did it → prohibited character inference
■ Forbidden chain of reasoning to infer guilt from general disposition
○ Concern that adducing character evidence will distract finder of fact, consume time and resources out of proportion to the probative value of the evidence, and that a fact finder might overvalue such evidence
The two kinds of materiality in character evidence
● Primary materiality: to infer that the person committed the act that he or she is alleged to have committed or to suggest that the person’s character was such that he or she couldnt have committed the act
● Secondary Materiality: To challenge credibility of a witness/dishonesty as a character trait that is relevant to wintess’ honesty.
Good character evidence called by an accused (modes of presentation)
(1) Reputation evidence - non party witness can ONLY testify as to positive rep in community, not specific acts or personal opinions.
■ Note: Community can be more than just people who live around you - Levasseur
■ Why no specific acts?
● a)Prejudicial effect, misleading. Good acts can be out of character or viewed in isolation of accused’s deeds overall.
● b) Admin Efficiency → crown can rebut evidence called by accused. Could spawn mini trials on what accused did and why… time consuming.
● c) Maintain focus - distraction from main issue
(2) Opinion evidence - lay opinion on community perception of accused or sometimes expert evidence that accused could not have committed the act
(3)Testimony of accused - during exam in chief. Note: opens door to crown whereas testimony of non party witness would not.
■ Evidence of good character allows crown to call evidence of bad character they otherwise could not lead
■ Only accused can put their character in question
(4) Similar Fact Evidence indicative of innocence
When can Crown call bad character evidence? (list)
● To use evidence of bad character against accused, it must be material to an issue other than general propensity reasoning.
● Bad character evidence being that by reason of past conduct/character the accused is the type of person likely to have committed the offence
1. Similar Fact evidence
2. Cross Examination
3. Reputation evidence in rebuttal
4. Evidence of previous convictions under s666 of CC
5. Expert evidence of accused’s propensities or inclinations that contradict his good character evidence
6. Prior inconsistent statements
What is similar fact evidence
● Doesnt depend on accused having put character in issue
● Policy: evidence so probative that exclusion would be affront to common sense
○ 1) The acts must be sufficiently similar that coincidence is objectively improbable
○ 2) There must be “some evidence” linking the accused to each act
Involves a more detailed application of probative value vs prejudicial effect (R v Handy test)
A) Probative Value:
○ Potential for collusion
■ Did witnesses speak to match up details? If so, diminishes probative value.
■ must negate that possibility on standard of BOP
○ Identification of the issue in question
■ Usually identity is the issue with similar fact evidence, so that is not prohibited inference
○ Factual similarities and Dissimilarities btwn past acts and present act (look holistically):
■ Proximity in time of the similar acts (also consider intervening causes)
■ Extent to which the past acts are similar in detail to the charged conduct
■ Number of occurrences of the past acts
■ Circumstances surrounding or relating to the similar acts
■ Any distinctive features unifying the acts
■ Intervening events
■ Strength of the evidence to prove that the similar acts actually occurred
● R. v. Jesse, SCC 2012 - A conviction for a prior offence will itself be “some evidence” of a past similar act.
○ The accused may challenge involvement with the prior evidence during a voire dire. If so, the trial judge has the right to hear all the evidence in support of the conviction, not just the evidence that the accused will rely on to deny involvement with the prior offence.
○ Trial judge may decide not to allow a challenge to the prior conviction to proceed during the voire dire if there is no reasonable likelihood that it will affect the admissibility of the similar fact evidence. NOT based on res judicata, since the accused has the right to challenge the admission of evidence against him. It’s a matter of the trial judge’s right to control the proceedings.
B) Prejudicial Effect
○ Moral Prejudice (prohibited inference)
○ Reasoning Prejudice (too long to tender? Will accused have opportunity to undermine it?)
C) Weighing probative value vs prejudicial effect.
○ NOTE: can separate different acts and allow some and exclude others
Similar Fact Evidence in Gang Crimes
● Requires Handy test PLUS 1 of 3 additional criteria from Perrier
● Evidence of a specific modus operandi can be used to show similar facts of crimes committed by the same gang, but cannot be used to infer identity of an individual gang member (R. v. Perrier) UNLESS
1) the composition of the gang never changed and the accused was a member throughout; or
2) the accused’s role in the gang was so distinctive that no other gang member could have done it; or
3) evidence independently links the accused specifically to each act
● Note The Crown, if ruled admissible by the judge, can both lead similar fact evidence during examination-in-chief to prove its case, and can also use otherwise admissible similar fact evidence to cross-examine an accused in rebuttal of good character evidence.
● For the other grounds, the Crown cannot use them until the accused has put his or her good character in issue, thus allowing the Crown a fair opportunity at rebuttal.
Three possible scenarios where there are multiple indictments (re: similar fact evidence and gang crimes)
○ 1st scenario:
● The accused applies to sever the accounts - tactical maneuver to have the counts heard by different triers of fact to avoid having a pattern of misconduct heard in a single trial. Judges are reluctant to do so for reasons of trial economy, swift resolution of cases, and a reluctance to interfere with the Crown discretion to proceed on multiple counts
○ 2nd scenario:
● The counts are not severed. Not so similar such that the similar fact rule would apply. This requires a direction to the trier of fact not to use the evidence supporting one count to find guilt on another count. Still potentially relevant to guilt though.
○ 3rd scenario:
● The counts are not severed. The acts are of such similarity that the similar fact rule is applicable. This requires the complex direction set out in R. v. Arp.
Similar fact evidence in civil cases
● More than one train of thought on the use of similar fact evidence in civil proceedings. Left unresolved.
○ a) Use restrictions similar to those of similar fact and character evidence in criminal matters
○ b) A prejudicial effect vs. probative value analysis that centers on concerns specific to civil justice: fair notice to parties, keeping litigation manageable and economic, keeping the issues focused and avoiding confusion (like Handy)
● Civil is more efficiency focused.
When can crown use bad character evidence in cross examination?
● Once accused puts character in issue crown can C.E. on character.
● Material issue is credibility thus not for general propensity reasoning.
● Accused can implicitly put their character into question (ex by stating there are standards implies that they were met)
When can crown call negative reputation evidence (bad character) in rebuttal?
● If accused calls witness of good rep crown can call witness as to negative rep
Describe when crown can use s666 of CC to admit evidence of previous convictions
● 666: Where, at a trial, the accused adduces evidence of his good character, the prosecutor may, in answer thereto, before a verdict is returned, adduce evidence of the previous conviction of the accused for any offences, including any previous conviction by reason of which a greater punishment may be imposed.
○ Need not satisfy Corbett (s12CEA) - but accused must put character in issue first.
○ Recall: s12 CEA allows C.E. of accused on prior crim convictions. Can apply even if accused does not put character into question but must satisfy Corbett factors:
■ Nature of the offence and whether it is especially material to honesty/credibility (ex perjury, obstruction)
■ Similarity of offences (similarity encourages prejudice)
■ Temporal proximity (dont allow if super long ago)
■ Fairness (has accused attacked credibility of crown witness, if so, allow C.E. for fairness)
Describe when crown can use expert evidence of accuseds propensities/inclinations to contradict his good character evidence?
● Evidence that the offence had distinctive features which identified the perp as a person possessing unusual personality traits constituting him a member of an unusual and limited class of persons would render admissible evidence that the accused did not possess the personality characteristics of the class of persons to which the perp of the crime belonged ○ Disposition for violence not usually uncommon enough to count. ● Has the scientific community developed a standard profile for the offender who commits this type of crime? If yes, satisfies criteria of relevance and necessity - exception to exclusionary rules that character evidence provide. (as long as judge finds opinion is within expertise of witness)
When can accused bring evidence of a co-accuseds character?
○ There must be an evidentiary foundation to support it
○ The accused will be deemed to have put his own character in issue
When can evidence of character of the victim be used?
● No rules (because no risk of prohibited inference)
● Probative value vs prejudicial effect (residual rule)
● Crown will have right of rebuttal
● Example: self defense case, want to show aggression of victim
○ R v Scopelliti:
■ Evidence of previous acts of violence of victim not relevant for reasonable apprehension of impending attack (since didnt know each other), but is admissible for evidence of character to show probability of being aggressor to support accused evidence that he was attacked
○ Psychiatric evidence is admissible where (a) relevant to some issue in the case (b) not excluded by a policy rule (c) falls within the proper sphere of expert advice
■ Where the offence is committed only by members of an abnormal group, psych evidence that the accused did or did not possess the distinguishing characteristics of that group is relevant (as long as the offence is one that indicates it was committed by a person with an abnormal propensity or disposition which stamps him as a member of a special/extraordinary class).
When can accused lead evidence of 3P suspects?
● Must meet relevancy test
● Must have sufficient probative value
○ Must be some evidence linking the 3p with the offence
