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Criminal Unit 5 - Evidence II > Character I > Flashcards

Character I Flashcards

1
Q

CJA 2003 s. 101?

A

Evidence of Ds bad character is admissible IF AND ONLY IF it falls within a gateway

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2
Q

What is a gateway?

A

A gateway is a specific statutory permission to allow certain types of evidence

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3
Q

How can bad character evidence not acceptable under CJA s. 101 be admitted?

A

Bad character evidence that fails the test in CJA 101 MAY be admitted if relevant subject to PACE s.78

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4
Q

PACE s. 78?

A

Court may refuse prosecution evidence if it’d have an adverse effect on the fairness of proceedings.

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5
Q

What is meant by evidence of bad character in CJA s. 98?

A

(1) evidence of misconduct that is not to do with alleged facts of the offence charged (2) nor the investigation or prosecution of the offence.

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6
Q

Define misconduct for the purposes of CJA s. 98 and 101?

A

misconduct means the commission of an offence OR other reprehensible behaviour.

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7
Q

Does evidence of bad character always have to be subject to a CJA s. 101 application for a gateway?

A

No - the prosecution does not have to apply to admit bad character evidence if they rely on it for an independent reason, though often bad character will come to light anyway.

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8
Q

What direction should the jury get if D was not convicted of an offence and disputes evidence of it meant to demonstrate bad character?

A

If D wasn’t convicted and refutes bad character evidence jury should be told they SHOULD NOT reason that D is of bad character unless proven to the criminal standard

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9
Q

What happens when prosecution rely on evidence of previous convictions?

A

The value of the bad character evidence will depend on the proof of the circumstances of the offence, not the actual conviction

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10
Q

May offences that occur subsequent to the offence charged be submitted as character evidence?

A

Yes - can be admissible, so to is evidence of propensity from after the offence. e.g. racist views tweeted AFTER an attack

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11
Q

Can convictions in a foreign court be given as bad character evidence?

A

Yes where there is an equivalent offence in domestic law

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12
Q

Define ‘reprehensible behaviour’ for the purposes of CJA s. 101?

A

Reprehensible connotes some element of culpability of blameworthiness. Morally questionable behaviour isn’t by nature reprehensible.

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13
Q

What should ‘reprehensible’ be distinguished from?

A

Irritating, inconvenient, upsetting to others. There’s no context specific test because it would be unnecessarily complex.

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14
Q

What are examples of ok and reprehensible behaviour?

A

D in his 30s in a sexual relationship with a 16 yo is not reprehensible; violent rap lyrics written by D is reprehensible.

Depends on facts of case.

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15
Q

What is excluded from the CJA s. 101 test?

A

Evidence of misconduct which ‘has to do with the alleged facts’ of the offence charged, or in connection with its investigation or prosecution.

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16
Q

What is the purpose of the bad character evidence gateways in CJA s. 101?

A

To provide protection for the person against whom bad character evidence is sought to be adduced.

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17
Q

Is there a temporal requirement required by s. 98’s definition of evidence to do with the offence?

A

No - Timelines usually do not matter. but there should be some vague link time-wise.

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18
Q

What constitutes misconduct ‘which has to do with’ the offence?

A

Things of DIRECT RELEVANCE have to do with the offence

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19
Q

Can a charge or acquittal of an offence be admitted under s. 98?

A

It can be, where its use is not for bad character, but largely its irrelevant / would be unfair.

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20
Q

CJA s. 101(1)(a)?

A

Evidence of Ds bad character is admissible ONLY IF all parties agree to its admissibility

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21
Q

CJA s. 101(1)(b)?

A

Evidence of Ds bad character is admissible ONLY IF D himself gives the evidence
(or asks the question that elicits it on purpose)

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22
Q

CJA s. 101(1)(c)?

A

Evidence of Ds bad character is admissible ONLY IF it is important explanatory evidence

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23
Q

CJA s. 101(1)(d)?

A

Evidence of Ds bad character is admissible ONLY IF it is relevant to an important matter in issue

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24
Q

CJA s. 101(1)(e)?

A

Evidence of Ds bad character is admissible ONLY IF it has substantial PROBATIVE VALUE in relation to an important matter between co-defendants.

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25
CJA s. 101(1)(f)?
Evidence of Ds bad character is admissible ONLY IF its to correct a false impression given by the defendant
26
CJA s. 101(1)(g)?
Evidence of Ds bad character is admissible ONLY IF D attacked another person's character.
27
CJA s. 101 (3)?
Court MUSTN'T admit evidence under 101(d) or (g) if after D applies to exclude, they find it would be unfair.
28
CJA s. 101 (4)?
When D applies for exclusion of 101(1)(d) or (g) evidence under s. 101(3) the court has to consider the time lapsed between the matters of the evidence vs current charge.
29
CJA s. 114(1)(c)?
Hearsay may be admissible where agreed by all parties
30
When should the court be informed of an agreement to admit bad character evidence?
At the beginning of trial
31
How does s. 101(1)(a) function where there are multiple defendants?
The consent to admit must be given by ALL parties to proceedings, not just P and relevant defence.
32
What's the most common reason for using s. 101(1)(b)?
To aid argument that the accused has never previously been convicted of an offence similar to what is charged. - although this would never amount to a total good character direction.
33
What is the function of s. 101(1)(d)?
Can admit evidence to show the untruthfulness of a defendant
34
What is the function of s. 101(1)(e)?
Permits a co-accused to give evidence of a defendants bad character when it has substantial value over an issue between them.
35
What's the function of s. 101(1)(f)?
Permits evidence to correct a false impression given of Ds character
36
What's the function of s. 101(1)(g)?
Admits evidence to rebut a defendant's attack on another person's character.
37
CJA s. 109?
Says what should be considered when admissibility of bad character evidence is disputed: court must consider relevance and probative value if the evidence were true.
38
What is inherent in the function of the character gateways?
The character gateways separate the function of evidence that goes to the issue in question vs that goes to credit
39
How are the courts powers to prevent prejudice by character evidence triggered?
On application under s. 101(3) by the defence. Not by the prosecution's application to admit under s. 101(1) or court's own motion.
40
What's the difference between the court's obligation to withdraw prejudicial evidence under PACE s. 78 vs CJA s.101(3)?
101(3) is stricter than PACE s.78 - the court "must not admit" instead of "may refuse to allow" admission of the evidence. S.78 still applies on top of s.101(3).
41
What is s. 101(3) restricted to?
Defence can apply only in regards to bad character (d) or (g), which lead directly to admissibility issues.
42
Define important explanatory evidence for the purposes of CJA s.101(1)(c)?
Without it, it would be impossible or difficult to properly understand that evidence AND its value for understanding the case as a whole is substantial.
43
Who can use s. 101(1)(c)?
It is open for the defence and the prosecution to use
44
Would evidence of a continual background that reveals bad character be excludable?
Not usually, its important for the jury to have the context of a case usually. Or, even so that it prevents undue speculation.
45
What should prosecutors be careful about when admitting evidence under s.101(1)(c)?
Explanatory evidence must not become a backdoor to prejudicial evidence on propensity. If thats the goal, use 101(1)(d).
46
Myers v R [2015]?
Incredibly important to distinguish between explanatory evidence and evidence of propensity.
47
Lee [2012] on jury directions?
evidence under one gateway is often admissible under another, so its important to direct the jury ON THE PURPOSE THE EVIDENCE WAS ADMITTED FOR and WHAT USE IT HAS.
48
What is a good way of presenting explanatory 101(1)(c) evidence?
By an agreed statement of facts - avoids prejudice and prevents distraction of jury by other gateways.
49
CJA s.101(2)?
Evidence of propensity (101(d)), may be established by a conviction of the offence of the SAME DESCRIPTION OR CATEGORY, unless large time lapse would make it unjust to use.
50
For CJA s.101(1)(d), what are offences of the 'same description' that meet the gateway threshold?
Offences are of the same description if the statement of the offence in a written charge/indictment would be in the same terms
51
For CJA s.101(1)(d), what are offences of the 'same category' that meet the gateway threshold?
Offences are of the same category if they are in the same category of offences prescribed for this section by an order of SoS.
52
Who can admit evidence under s.101(1)(d)?
Only the prosecution can use s.101(1)(d)
53
For s.101(1)(d), what is meant by an 'important matter in issue'?
Evidence relating to an important matter in issue = a matter of substantial importance in the context of the case of a whole
54
Does character evidence submitted re: an important issue (101(d)) have to be substantial?
No - the threshold for 101(1)(d) is simply that the evidence is relevant to an important issue
55
How is D protected from prejudice from 101(1)(d) evidence?
D is protected from prejudice of bad character evidence relevant to important matters in issue by jury directions
56
Can propensity evidence be submitted in 101(1)(d)?
Sometimes. Propensity to commit offences "of the kind charged" is an important issue qualifying for 101(1)(d) - shown by convictions.
57
What is the Hanson test for propensity relevance in 101(1)(d)?
(1) does history establish propensity to commit offences like the one charged (2) does this make it more likely that D offended here (3) is it unjust or unfair to rely on evidence of the same category/description of offences?
58
Can propensity for offending by evidenced by a single previous conviction? (s.101(1)(d))
Yes, where behaviour is strikingly similar. E.g. fire setting, a single sexual offence, or things of distinct /absurd/rare nature. MUST be careful not to be prejudice though.
59
When is propensity evidence likely to fail the 101(1)(d) gateway?
Where a conviction is old, or has dissimilar circumstances, or would not constitute an offence at all under the current law.
60
Can a range of convictions for varying offences satisfy the 101(1)(d) gateway?
Yes - can still prove propensity with proper jury direction. They can be treated for their cumulative effect (e.g. drugs, trafficking mixed with immigration offences).
61
What categories of offences are prescribed by s.103 as admissible for propensity under 101(1)(d)?
Child sexual offences and offences of dishonesty. Although this is only 1 category of propensity!! other relevant evidence can be admitted here.
62
What is the most common use of s.101(1)(d)?
Evidence showing gang membership or affiliation to link D to commission of a specific offence. Circumstantial evidence of gang membership is permitted.
63
CJA s. 112(2)?
Where D faces multiple charges on an indictment, the bad character directions (101(1)) apply as if each was charged in separate proceedings. A gateway is required to permit "cross-admissibility"
64
Can bad character evidence for one charge be used as evidence in another charge against same D in same proceedings?
Not without satisfying the gateway for the other charges. Cross-admissibility STILL must satisfy test for each individual offence. Jury direction alone wouldn't cure this.
65
Can acquittals be used as evidence of propensity under 101(1)(d)?
yes, as long as prosecution can show its relevance to an important issue. D could challenge its fairness under s.101(3).
66
Can a co-accused rely on an acquittal for bad character under s.101(1)(e)?
Yes, as long as the normal conditions under E are satisfied (probative value on a matter between them
67
When will evidence be relevant to the gateway 101(1)(e)?
Evidence on a co-Ds truthfulness will be admissible if the NATURE or CONDUCT of their offence undermines their co-Ds.
68
What types of evidence are admissible to the gateway 101(1)(e)?
Only evidence given by the co-defendant or that a witness gave in cross-examination responding to that co-D.
69
What is the relevance of s.104(1)?
s.104(1) covers cut-throat defences where evidence of propensity is more about establishing untruthfulness than guilty
70
What constitutes an 'important matter' between co-defendants?
Where any necessary implication of a co-Ds defence is that the other defendant committed the offence: explicitly or impliedly.
71
When can evidence of a co-defendant's untruthfulness be admitted?
Under 101(1)(e), evidence of propensity for untruthfulness MAY ONLY be admissible where the NATURE or CONDUCT of defence undermines the other D.
72
CJA s.105?
Circumstances where D is deemed to have given a false impression for the purpose of the s.101(1)(f) gateway.
73
What is the scope of s.101(1)(f) evidence?
F evidence is strictly limited to evidence which corrects the false impression given by D.
74
What recourse does D have against s.101(1)(f) evidence? *special*
Unlike other gateways, F is not protected by s.101(3) on fairness of admittance of bad character - D can only seek exclusion under PACE s.78.
75
Define false impression for the purposes of s.101(1)(f)?
An express or implied assertion giving the court or jury a false or misleading impression about D.
76
When is D the person deemed to have made a false impression for s.101(1)(f)?
(1) When an assertion is made by D during proceedings, under caution, upon charge, or his conduct evidences such (2) by a witness called by D (3) by another witness after D asks them a question intended to elicit that response.
77
What is meant by 'conduct' making a false impression?
Conduct can include appearance or dress as a mode of making a false impression.
78
Who can use the gateway of s.101(1)(f)?
Only the prosecution evidence is admissible under s.101(1)(f).
79
CJA s.105(3)?
A defendant who withdraws or disassociates from a false impression will not be responsible for it.
80
What is crucial about the exception to 101(1)(f) in CJA s.105(3)?
There's a difference between D distancing themselves from a false impression as a positive decision (satisfies (3)) vs being forced to concede its falsity (remains responsible for it).
81
Who can use s.101(1)(g) to counter an attack on another person?
Only the prosecution
82
CJA s.106(1)?
Outlines when D is deemed to have attacked another person's character
83
When has D attacked someone's character?
When D/ their lawyer gives evidence doing so; asks questions to elicit such; during questioning under caution or upon charge
84
Define 'evidence attacking the other person's character'?
Evidence that the other person (1) committed an offence OR (2) has behaved/behaves in a reprehensible way
85
For the purposes of the 101(1)(g) gateway, what is meant by 'reprehensible behaviour' of another person?
An imputation/accusation given by D on the character of the person
86
What is an example of what constitutes an attack on someone's character?
Mere rebuttal of their account of events is not an attack, but suggestion that they're conspiring to pervert justice with falsity would be.
87
For 101(1)(g), what constitutes an 'attack' on a person's character?
May be an out-of-court statement, including an interview. No requirement that D provide the evidence of it.
88
For s.101(1)(g), who is a 'person' under attack by D?
A specific person - not laying blame in an unknown individual. Although this does not have to be a witness. SUPER RARE use for policemen. be wary.
89
What is the purpose of the attack gateway (101(1)(g))?
to provide the jury with info relevant to whether Ds attack on another person's character is WORTHY OF BELIEF. No need for probative value.
90
Are convictions admissible under s.101(1)(g)?
Yes, all convictions are potentially relevant to assist the jury in determining the character of D. But detailed facts shouldn't be needed.
91
PACE 1984, s. 73?
Provides for proof of convictions and acquittals in UK via a verified certificate
92
PACE 1984, s. 74?
Convictions of 1 person ARE admissible in the trial of another: e.g. a prostitutes' convictions at a John's hearings. It's for that person to prove the contrary.
93
What are the 3 key stages of using s.101?
(1) judge determines admissibility under relevant gateways (2) judge determines any applications for exclusion (3) once admitted, weight of evidence is for the jury
94
Under what statutory provisions can bad character evidence be excluded?
s.101(3) and s. 103(3) of CJA 2003 and s. 78 PACE
95
What is the most important part of bad character evidence?
The jury direction given by the judge. It should assist with understanding the specific relevancy of the evidence.
96
Hanson [2005]?
Outlines what should be in a proper jury direction on bad character of D.
97
What is the 1st thing that should be in a proper jury direction on bad character?
Judge should give jury clear warning of placing undue reliance on previous convictions. What should it be used for and not.
98
What is the 2nd thing that should be in a proper jury direction on bad character?
Judge should stress that bad character evidence can't be used to bolster a weak case.
99
What is the 3rd thing that should be in a proper jury direction on bad character?
Judge should emphasise that the jury should not infer guilt from the existence of other convictions.
100
What should the court do where inadmissible bad character evidence is raised by a witness?
Judge must consider any prejudice to D, taking account of the evidence's importance, its likely effect in the context and whether it can be corrected by a direction.
100
What is a consequence of cross-admissibility of bad character evidence?
Central to a jury direction is identifying the purpose/s for which evidence may and may not be used.

Criminal Unit 5 - Evidence II (4 decks)

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