Exclusionary rule: Character/propensity evidence Flashcards
What is the rule against character evidence?
Evidence of the accused character (good or bad) or previous convictions is not admissible if it only does to credit…however it will be admissible as original evidence only where the probative value of the evidence outweighs any potential risk of unfair prejudice (Similar fact - Makin, other occasion evidence (habit, knowledge, rebutting specific defence, habit)), and no inference other than guilt open on the evidence BRD.
What is the rationale for the rule against character evidence?
The rule against character/tendency/propensity evidence exists because (1) the danger of misuse by the jury attributing to much weight or propensity reasoning (2) complicates and prolongs proceedings and (3) would result in the defendant having to defend himself on to wide a front.
What sections of the QEA touch on the rule against character/propensity evidence etc?
s 15(2) an accused can not be questioned about previous convictions or evidence of bad character etc leave of the court ss(3)…
What are the exceptions to the rule against character evidence?
(1) Fact in issue - Where character is a fact in issue i.e. where an application is a fit and proper person evidence of character can not be sensible excluded.
(2) Original evidence - Where character evidence is used a original evidence (significant probative value outweighs risk of prejudice) (i.e. relationship evidence, motive, other occasion evidence (proving ID, disputed knowledge or ability, rebutting a specific defence, striking similarity (Makin)).
Good character evidence for defence - Discuss
Good character evidence is admissible to prove that the defendant is innocent and/or is a person of credit, however where the accused gives or calls good character evidence the prosecution may rebut that evidence.
Can witnesses be crossed examined about their previous convictions?
Yes - s 15A-16 QEA see also s 15(2) re questioning of accused.
Where character evidence is sought to be relied upon as original evidence what is the test to be applied for admissibility?
Pfennig - In a criminal case, the other occasion evidence, to be admissible, must point to to guilt as the only reasonable inference (pfennig)
What is the test for character evidence which is ‘strikingly similar’ (similar fact evidence) to be admissible? and what is the rationale for admissibility?
Evidence of previous conduct or convictions is admissible as original evidence (circumstantial evidence) where it has significant probative value outweighing any potential jury prejudice (Makin), and the only interference that can be drawn is one of guilt (Pfennig). This can included where previous conduct bares a striking similarity with alleged offending.
The rationale being the similar facts can not be reasonably dismissed as being a mere coincidence.
Question: criminal case robbery - central issue ID. The defendant is alleged to have broken into five houses over a period of several weeks. On each occasion the offender has used a white car, wore a cowboy hat and clown mask, and committed the offences during the early hours of the morning (captured on CCTV). The defendant was caught during the last robbery (charge 5). The defendant has been charged with 5 counts of enter dwelling and commit. There is no other evidence other than the CCTV footage inculpating the defendant for the first four offences.
Is the evidence manner in which the offences were committed admissible?
Rule against character evidence, however exception can be tendered as original evidence (i.e. similar fact evidence - makin). Admissible only where significant probative value to out weight any potential prejudice (Makin), and the only rationale inference is one of guilt (pfennig).
Here significant probative value likely to come from the distinct similar manner and circumstances in which all events occurred…the only rationale inference is one of guilt…evidence would be admissible as similar fact circumstantial evidence of identification….
What does section s 132A of QEA deal with?
s 132A - similar fact evidence must not be ruled inadmissible because of potential collusion between witnesses that is a question of weight for the jury.
What is the standard of proof for admissibility of similar fact evidence in civil cases?
balance of probabilities
Question: Civil case - Breach of contract - negligence - Mechanic being sued for not correctly serving a car which lead to engine damage. The plaintiff alleges the defendant did not follow correct procedures went servicing car. Defendant wishes to tender similar fact evidence or habit evidence. The mechanic says that for every car he services he always follows the same process and he wishes to uses this evidence to establish he acted in the same way when servicing the plaintiff’s car…and the respondent claims the plaintiff must have caused damage himself and is a fraudster.
Discuss the admissibility of the respondents conduct in previous occasions.
rule against character/tendency/propensity evidence however exception where evidence has significant probative value to outweigh any potential prejudice to the other party (makin)…
Depending on how the respondent gives evidence regarding his conduct on previous occasions it may have significant probative value and assist in rebutting the allegation that he plaintiff departed from his ordinary habit during the incident in question….
What provisions of the CEA deal with tendency evidence or coincidence evidence?
s 97 CEA (character, reputation, motive, relationship) tendency evidence not admissible unless notice is first given and tendering party demonstrates it has significant probative value.
s 98 CEA (‘similar fact’) evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind having regard to any similarities in the events etc unless notice is given and the tendering party demonstrates it has significant probative value
s 100 court may dispense with notice requirements on application by a party
s 101 tendency or coincidence evidence in a criminal proceeding unless probative value significantly outweighs prejudicial value
What CEA section deals with good character evidence in criminal proceedings?
s 110 CEA, and s 112 CEA leave to cross on defendant’s good character evidence
