essay on bad character

Home — Essay Samples — Law, Crime & Punishment — Court — Bad Character Evidence: Then and Now

Bad Character Evidence: then and Now

• Categories: Court Criminal Procedure Law of Life

About this sample

Words: 2581 |

13 min read

Published: Oct 22, 2018

Words: 2581 | Pages: 6 | 13 min read

Table of contents

The old law, defendant witnesses, the new law, a non-defendant witnesses.

• Where the defense and the prosecution agree to the evidence being admissible
• The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it
• The evidence has important explanatory value
• It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
• It is relevant to an important matter in issue between the defendant and the prosecution
• If the defendant has made an attack against another person's character
• If it is evidence to correct a false impression given by the defendant

Cite this Essay

Let us write you an essay from scratch

• 450+ experts on 30 subjects ready to help
• Custom essay delivered in as few as 3 hours

Get high-quality help

Verified writer

• Expert in: Law, Crime & Punishment Life

+ 120 experts online

By clicking “Check Writers’ Offers”, you agree to our terms of service and privacy policy . We’ll occasionally send you promo and account related email

No need to pay just yet!

Related Essays

2 pages / 1001 words

1 pages / 641 words

2 pages / 871 words

7 pages / 2974 words

Remember! This is just a sample.

You can get your custom paper by one of our expert writers.

121 writers online

Still can’t find what you need?

Browse our vast selection of original essay samples, each expertly formatted and styled

Related Essays on Court

The advent of the internet and digital technologies has dramatically transformed the educational landscape, offering unprecedented access to information and resources. Amidst these developments, the practice of copying and [...]

The halls of justice are often romanticized in popular culture, portrayed as arenas of dramatic revelations, eloquent arguments, and moral victories. However, a real-life observation of court proceedings offers a more nuanced [...]

Juror #5…A naive, very frightened young man who takes his obligations in the case seriously, but who finds it difficult to speak up when his elders have the floor.On page 36, juror #5 sees reasonable doubt in the case so he [...]

TENNESSEE v. GARNER, (1985) A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary [...]

On 27th September 2018 I attended the provincial court of British Columbia inCourtenay. In the court, food, drinks and cell phones on are not allowed. I reached in the court at before 2:00pm. Before entering the court, I met [...]

The state has 13 special courts to hear cases of atrocities against women. The state government has decided to start 100 fast track courts in the next five years. The procedure of reserving 25 of these 100 fast track courts to [...]

Related Topics

By clicking “Send”, you agree to our Terms of service and Privacy statement . We will occasionally send you account related emails.

Where do you want us to send this sample?

By clicking “Continue”, you agree to our terms of service and privacy policy.

Be careful. This essay is not unique

This essay was donated by a student and is likely to have been used and submitted before

Download this Sample

Free samples may contain mistakes and not unique parts

Sorry, we could not paraphrase this essay. Our professional writers can rewrite it and get you a unique paper.

Please check your inbox.

We can write you a custom essay that will follow your exact instructions and meet the deadlines. Let's fix your grades together!

Get Your Personalized Essay in 3 Hours or Less!

We use cookies to personalyze your web-site experience. By continuing we’ll assume you board with our cookie policy .

• Instructions Followed To The Letter
• Deadlines Met At Every Stage
• Unique And Plagiarism Free

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings .

Login Alert

• > Journals
• > The Cambridge Law Journal
• > Volume 61 Issue 3
• > The Relevance of Bad Character

Article contents

The relevance of bad character.

Published online by Cambridge University Press:  16 January 2003

An important rule of criminal evidence is that evidence of a defendant’s previous misconduct (evidence of bad character) is prima facie inadmissible. The usual justification for this rule is that, in most cases, such evidence is either irrelevant or likely to have an unduly prejudicial effect on the fact-finder. This article questions this justification. After reviewing the psychological research on character, it examines statistical data on recidivism. The statistics suggest that those with previous convictions are much more likely to offend than are those without a criminal record, which implies that evidence of bad character will usually be sufficiently probative to justify its admission as proof of guilt. The remainder of the article examines various criticisms which can be levelled at this argument, in particular, that the recidivism data are misleading and that the way in which fact-finders reason renders evidence of bad character uninformative.

Access options

I am grateful to Neil Duxbury and David Schiff for comments on an earlier draft.

1 Evidence of Bad Character in Criminal Proceedings Law Com. No. 273, Cm. 5257 (London 2001).

2 Review of the Criminal Courts of England and Wales: Report ( London 2001 ), pp. 563 – 568 Google Scholar .

3 Justice For All Cm. 5563 (London 2002), pp. 79-82. The proposals are rather opaque, but the examples given do suggest that an attempt will be made to relax the current rule, perhaps using a test of whether admission will have a “disproportionate” effect on the trial.

4 Op. cit. n. 1, para. 2.2.

5 [1975] A.C. 421, 451.

6 See, e.g., L.H. Hoffman, “Similar Facts After Boardman” (1975) 91 L.Q.R. 193.

7 Op. cit. n. 5, p. 456.

8 A useful exploration of these concepts is A.L.-T. Choo, “The Notion of Relevance and Defence Evidence” [1993] Crim. L.R. 114. See also R. Pattenden, “The Discretionary Exclusion of Relevant Evidence in English Civil Proceedings” (1997) 1 E. & P. 361.

9 (1858) 27 L.J.C.P. 241.

10 Ibid. p. 242.

12 For elaboration, see, e.g., R.D. Friedman, The Elements of Evidence (2nd edn., St Paul, Minn. 1998), pp. 42-65; Lempert , R.O. , “ Modeling Relevance ” ( 1977 ) 75 Mich. L. Rev. 1021 Google Scholar .

13 See Spector , R.G. , “ Rule 609—A Last Plea for its Withdrawal ” ( 1979 ) 32 Oklahoma L. Rev. 334 , 351 Google Scholar .

14 See, generally, Caprara , G.V. and Cervone , D. , Personality: Determinants, Dynamics, and Potentials ( Cambridge 2000 ), pp. 38 – 50 Google Scholar . Though now slightly dated, a useful review of research, with application to the rules of evidence in mind, is S.M. Davies, “Evidence of Character to Prove Conduct: A Reassessment of Relevancy” (1991) 27 Criminal Law Bulletin 504. In this vein, see also M.A. Mendez, “The Law of Evidence and the Search for a Stable Personality” (1996) 45 Emory L.J. 221. Scepticism about character has recently emerged in the philosophical literature. For discussion, see G. Sreenivasan, “Errors About Errors: Virtue Theory and Trait Attribution” (2002) 111 Mind 47.

15 Associated, in particular, with the work of Allport. See, e.g., Allport , G.W. , Personality: A Psychological Interpretation ( London 1937 ) Google Scholar .

16 Mischel , W. , Personality and Assessment ( New York 1968 ) Google Scholar , esp. ch. 2.

17 See, e.g., Kenrick , D.T. and Funder , D.C. , “ Profiting from Controversy: Lessons From the Person-Situation Debate ” ( 1988 ) 43 American Psychologist 23 Google Scholar .

18 Caprara and Cervone, op. cit. n. 14, p. 64. They add at p. 110: “there simply are no longer any situationists”.

19 The most prominent approach is sometimes called the “five factor model”, which analyses character in terms of five broad traits (the “big five”): extraversion, agreeableness, conscientiousness, emotional stability and intellect. See Wiggins , J.S. (ed.), The Five-Factor Model of Personality: Theoretical Perspectives ( New York 1996 ) Google Scholar . For a more general review of the current status of trait theory, see Matthews , G. and Denny , I.J. , Personality Traits ( Cambridge 1998 ) Google Scholar , esp. chs. 1, 2, 11.

20 Not because the debate is unimportant, but because we are interested in the reliability of prediction, and can therefore afford to treat personality as a black box. All the same, we should bear in mind that without an understanding of exactly what personality is and how it works, we should be somewhat cautious about predictions based on it.

21 Mischel , W. and Shoda , Y. , “ Reconciling Processing Dynamics and Personality Dispositions ” ( 1998 ) 49 Annual Review of Psychology 229 , 244 Google Scholar .

22 Mischel , W. and Shoda , Y. , “ A Cognitive-Affective System Theory of Personality: Reconceptualizing Situations, Dispositions, Dynamics, and Invariance in Personality Structure ” ( 1995 ) 102 Psychological Review 246 , 257 Google Scholar .

23 Funder , D.C. , Personality Judgment: A Realistic Approach to Person Perception ( San Diego 1999 ), p. 43 Google Scholar .

24 See Mischel and Shoda, op. cit. n. 21, pp. 233-235.

25 Of course, armed robbers can have less choice over their motivations, and here we can expect situational variation to be significant. The armed robber who wins the lottery is unlikely to rob again.

26 This point is often overlooked in the psychological literature: see Funder, op. cit. n. 23, p. 9. An implication of Mischel and Shoda's research, however, is that such probabilistic inference might run into problems in some situations. We might, from one instance of behaviour, generalise that a child is verbally aggressive, but this could mislead if used to ground an inference about verbal aggression in a different situation, where the child is actually less verbally aggressive than his peers. While this problem might arise in stark form in characterbased reasoning, we should note that it is a potential problem in all inductive inference. Any induction might be undermined were we to gather evidence at a more microscopic level than that on which we are relying to ground it. A match between two DNA profiles might, given the information we have, be very powerful evidence of identity. But our inference would be untenable were we to test one more locus and so discover a difference between the two profiles. Obviously, the possibility of confutation at a more microscopic level of analysis does not always paralyse induction.

27 Evidence in Criminal Proceedings: Previous Misconduct of a Defendant Law Com. Con. Paper No. 141 (London 1996), paras. 6.7-6.38.

28 Op. cit. n. 1, paras. 6.11-6.13. It is worth noting, in passing, that the psychological literature reviewed in the Consultation Paper is rather dated.

29 The present law allows, in some circumstances, the introduction of evidence that the defendant has engaged in misconduct which he has not been convicted of (as when more than one count is joined in an indictment, e.g. Boardman, op. cit. n. 5; or when uncharged but suspicious conduct is used to bolster a case, e.g. R. v. Smith (1915) 11 Cr. App. R. 229), and even evidence of misconduct of which he has been acquitted: R. v. Z. [2000] 3 W.L.R. 117. Evidence of behaviour which it is difficult to describe as misconduct may also be admissible, e.g. R. v. Butler (1987) 84 Cr. App. R. 12.

30 See Ashworth , A. , Sentencing and Criminal Justice (3rd edn., London 2000 ), pp. 180 – 181 Google Scholar ; Walker , N. and Padfield , N. , Sentencing: Theory, Law and Practice (2nd edn., London 1996 ), pp. 357 – 358 Google Scholar . While emphasising the difficulty of predicting offending, the literature does acknowledge that prior offending behaviour is the most significant predictor of future offending: see Monahan , J. et al. , Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence ( New York 2001 ), pp. 44 – 45 Google Scholar .

31 For an example of incautious use of statistics, see Law Commission, op. cit. n. 27, p. 124, n. 10.

32 Park , R.C. , “ Character at the Crossroads ” ( 1998 ) 49 Hastings L.J. 717 Google Scholar .

33 Kershaw , C. , Goodman , J. , and White , S. , Reconvictions of Offenders Sentenced or Discharged from Prison in 1995, England and Wales, HOSB 19/99 ( London 1999 ) Google Scholar . The following discussion uses data from tables 2 and 3.

34 Statistics are taken from Criminal Statistics England and Wales 1996 Cm. 3764 (London 1997), table 5.10. This provides statistics on offenders found guilty or cautioned. Ignoring cautions would give slightly larger comparative propensity figures (see table 5.6) and might be thought a better basis for the calculation, given that cautions were not counted in the recidivism study. However, because factors likely to exaggerate comparative propensity are the most significant for our purposes, and since recidivists are less likely to be cautioned, cautions have been included in the comparative propensity denominator. A second problem with the data in the Criminal Statistics is that they provide the rate of offending, not the number of offenders. Within the two-year period, some offenders will commit more than one offence; all but the first offence should be ignored when calculating the denominator. There is no easy way of achieving this adjustment and, in any case, the result of ignoring this factor is again an underestimation of comparative propensity. Further problems with the comparative propensity calculation are discussed below.

35 See Redmayne , M. , Expert Evidence and Criminal Justice ( Oxford 2001 ), p. 194 Google Scholar .

36 See Park, op. cit. n. 32, p. 763 and n. 27. Park provides the following comparative propensity figures: homicide: 224; rape: 163; burglary: 56; larceny: 19; drug offence: 24. Differences in the statistics mean that these are not directly comparable with the UK figures.

37 In terms of legal category, anything from recklessly inflicting actual bodily harm (Offences Against the Person Act 1861, s. 47) to intentionally causing grievous bodily harm (OAPA s. 18). The figures only include standard list offences, so common assault is not included.

38 Cf. M.E. Rice and G.T. Harris, “The Scientific Status of Research on Sexual Aggressors” in D.L. Faigman, D.H. Kaye, M.J. Saks, and J.L. Sanders (ed.), Modern Scientific Evidence: The Law and Science of Expert Testimony Vol. 3 (St Paul, Minn. 1999) pp. 91-97.

39 See C. Friendship and D. Thornton, “Sexual Reconviction for Sexual Offenders Discharged from Prison in England and Wales: Implications for Evaluating Treatment” (2001) 41 Brit. J. Criminol. 285; cf. R. Hood, S. Shute, M. Feilzer and A. Wilcox, “Sex Offenders Emerging from Long-Term Imprisonment” (2002) 42 Brit. J. Criminol. 371, 392. A further possibility is that the small size of the samples makes these figures less reliable than others.

40 See Kershaw et al., op. cit. n. 33, pp. 12-14.

41 Ibid. pp. 14-15. On the significance of multiple convictions, see further Prime , J. , White , S. , Liriano , S. and Patel , K. , Criminal Careers of Those Born Between 1953 and 1978 HOSB 4/01 ( London 2001 ) Google Scholar , paras. 3.13-6.

42 Farrington , D.P. , “ Human Development and Criminal Careers ” in Maguire , M. , Morgan , R. , and Reiner , R. (ed.), The Oxford Handbook of Criminology (2nd edn., Oxford 1997 ), pp. 365 – 369 , 373 Google Scholar .

43 The following different-crime comparative propensities were calculated from the custody data: violence: 14; burglary: 46; robbery: 30; theft/handling: 22; fraud/forgery: 19; drug offence: 10. These figures measure the tendency of a person with a previous conviction for any offence to commit the specified offence within two years of release from custody, compared with offending in the general population in a two-year period. The number of sexual offences was too small to appear in the summary statistics in the study. A larger sample might show a reasonably large comparative propensity. Ignoring sexual offences, all these figures are smaller than the same-crime comparative propensities, suggesting a tendency for offenders to both specialise and generalise. Note that the figures are aggregated over “previous conviction for any offence”. A more detailed analysis might reveal quirks at a finer level: for instance, forgers might just turn out to be less likely to commit sexual offences than members of the general population.

44 See Farrington, op. cit. n. 42, p. 380; Britt , C.L. , “ Versatility ” in Hirschi , T. and Gottfredson , M.R. (ed.), The Generality of Deviance ( New Brunswick 1994 ) Google Scholar ; Soothill , K. , Francis , B. and Fligelstone , R. , Patterns of Offending Behaviour: A New Approach Home Office Research Findings no. 171 ( London 2002 ) Google Scholar .

45 For more detailed discussion of the Law Commission's character evidence project, see J. McEwan, “Previous Misconduct at the Crossroads: Which ‘Way Ahead’?” [2002] Crim. L.R. 180; M. Redmayne, “The Law Commission's Character Convictions” (2002) 6 E. & P. 71; P. Mirfield, “Bad Character and the Law Commission” (2002) 6 E. & P. 141.

46 S. Lloyd-Bostock, “The Effects on Juries of Hearing About the Defendant's Previous Criminal Record: A Simulation Study” [2000] Crim. L.R. 734. The research is also summarised in the Consultation Paper.

47 S. Lloyd-Bostock, The Effects on Magistrates of Hearing that the Defendant has a Previous Conviction LCD Research Series No. 3/00 (London 2000). The research is summarised in the report.

48 Lloyd-Bostock herself notes that “the effects … are not large”, ibid., p. 54. Magistrates increased the probability of guilt from 0.4 to 0.6; juries from 0.5 to 0.66. In interpreting the studies, it is assumed that subjects were expressing probabilities; Lloyd-Bostock tends to interpret the results in this way, but, to be precise, subjects were asked to express “likelihood ratings” on a scale of 1-100.

49 There is some equivocation on this point: cf. paras 6.37 and 6.56 of the report, op. cit. n. 1.

50 Ibid. para. 6.55.

51 Lloyd-Bostock, op. cit. n. 47, p. 24.

52 Op. cit. n. 1, para. 6.44.

53 See n. 43 above. Note also the finding of Hood el al., op. cit. n. 39, that sexual offenders against children are not infrequently reconvicted for other, non-sexual, offences.

54 The studies do explore the effect of previous convictions on verdicts, which is where moral prejudice would exert any influence it has. But the results appear to be explained by the subjects’ probabilities of guilt; they do not look to have been influenced by any other factor. One particular clue is that guilty verdicts did not become more common in the “recent dissimilar” condition, where one might expect to find moral but not reasoning prejudice.

55 See, generally, Coleman , C. and Moynihan , J. , Understanding Crime Data: Haunted by the Dark Figure ( Milton Keynes 1996 ) Google Scholar , ch. 2.

56 See McConville , M. , Sanders , A. , and Leng , R. , The Case for the Prosecution: Police Suspects and the Construction of Criminality ( London 1991 ) Google Scholar ; Hillyard , P. , Suspect Community: People's Experiences of the Prevention of Terrorism Acts in Britain ( London 1993 ) Google Scholar .

57 Recently, a complex argument has appeared which might be taken to suggest that rounding up the usual suspects results in previous convictions being evidence of innocence. See N. Fenton and M. Neil, “The ‘Jury Observation Fallacy’ and the Use of Bayesian Networks to Present Probabilistic Legal Arguments” (2000) 36 Mathematics Today 180; C. Jowett, “Sittin’ in the Dock with the Bayes” (2001) 151 N.L.J. 201. This argument is not considered in detail because it applies, not to juries, but to external observers of their verdicts. It is also based on the unrealistic assumption that cases can be brought to trial on the basis of a previous conviction alone.

58 On the presumption of guilt in defence lawyering, see McConville , M. , Hodgson , J. , Bridges , L. and Pavlovic , A. , Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain ( Oxford 1994 ) Google Scholar , esp. ch. 6.

59 Defendants who testify sometimes face a choice of restricting their defence, so as not to cast aspersions on the character of prosecution witnesses or give evidence against a co-defendant, or else having their previous convictions revealed to the jury. Now that inferences can be drawn from a failure to testify, the third horn of this trilemma—avoiding the revelation by not testifying—has been sharpened. Those with recent previous convictions will also be prevented from making a claim of good character, and previous convictions may sometimes be revealed under the similar fact rule. On these various rules, see, e.g., Dennis , I.H. , The Law of Evidence ( London 1999 ), pp. 406 – 413 Google Scholar , 584-614, 632-653.

60 See P. Darbyshire, “Previous Misconduct and the Magistrates’ Courts—Some Tales from the Real World” [1997] Crim. L.R. 105; Lloyd-Bostock, op. cit. n. 47, pp. 43-53.

61 For a somewhat similar thesis, see Box , S. , “ The Criminal Justice System and ‘Problem Populations’ “ in Lacey , N. (ed.), A Reader on Criminal Justice ( Oxford 1994 ) Google Scholar .

62 See, e.g., M. McConville and J. Baldwin, “The Role of Interrogation in Crime Discovery and Conviction” (1982) 22 Brit. J. Criminol. 165, 168. The 2000 British Crime Survey found that in two thirds of violent incidents the offender was known to the victim: Kershaw , C. et al. , The 2000 British Crime Survey England and Wales HOSB 18/00 ( London 2000 ), p. 38 Google Scholar . Obviously, this still leaves the police with some choice over whether—and against whom—to pursue charges, decisions which may be influenced by previous convictions. On this, see Cretney , A. and Davis , G. , Punishing Violence ( London 1995 ) Google Scholar , ch. 4.

63 Although this happens rarely, it is significant because it provides recidivism statistics of a sort. There is a 40 per cent chance that DNA taken from a crime scene will match a sample already on the DNA database (Forensic Science Service, Press Release, 7 April 2000). Given that it is early days for the database, this implies that the police are not massively ignoring sections of the offending population in the sort of crime where DNA is used.

64 M. Maguire, “Crime Statistics, Patterns and Trends: Changing Perceptions and their Implications” in Maguire et al., op. cit. n. 42, p. 175.

65 Ibid. See further Coleman and Moynihan, op. cit. n. 55, ch. 5. At p. III the authors comment: “[a]s far as ordinary offending goes, the characteristics of the dark figure are probably fairly well represented by known offenders”.

66 Op. cit. n. 1, para. 6.56.

67 See Ayer , A.J. , “ Two Notes on Probability ” in The Concept of a Person and Other Essays ( London 1964 ), pp. 198 – 208 Google Scholar .

68 A brief account is provided in Popper , K.R. , A World of Propensities ( Bristol 1990 ), pp. 3 – 26 Google Scholar .

69 Gillies , D. , “ Varieties of Propensity ” ( 2000 ) 51 British Journal for the Philosophy of Science 807 Google Scholar .

70 On Peirce's propensity theory, see Burks , A.W. , “ Peirce's Two Theories of Probability ” in Moore , E.S. and Robin , R.S. (ed.), Studies in the Philosophy of Charles Sanders Peirce ( Cambridge , Mass. 1964 ) Google Scholar . Peirce also used the suggestive term “habit”.

71 Gillies , D. , Philosophical Theories of Probability ( London 2000 ), pp. 120 – 136 Google Scholar .

72 Ibid. pp. 119-125. See also Ayer, op. cit. n. 67.

73 Ibid. p. 123.

74 Ibid. p. 120.

75 For an elaboration and defence of the legal application of subjective probability, see D. H. Kaye, “The Laws of Probability and the Law of the Land” (1979) 40 U. Chi. L. Rev. 40.

76 See, e.g., Bonjour , L. , “ The Dialectic of Foundationalism and Coherentism ” in Greco , J. and Sosa , E. (ed.), The Blackwell Guide to Epistemology ( Oxford 1999 ) Google Scholar .

77 A vivid example is provided by the decisions of the Court of Appeals in US v. Shonubi, 998 F. 2d. 84 (1993) and 103 F. 3d. 1085 (1997). For discussion, see J.L. Gastwirth, B. Freidlin and W. Miao, “The Shonubi Case as an Example of the Legal System's Failure to Appreciate Statistical Evidence” and A.J. Izenman, “Assessing the Statistical Evidence in the Shonubi Case” in J.L. Gastwirth (ed.), Statistical Science in the Courtroom (New York 2000). There is a philosophical literature which explores epistemological and moral objections to the use of statistics to prove individual instances of behaviour. The moral issues fall beyond our remit; the epistemological ones are none too convincing. See Thompson , J.J. , “ Liability and Individualized Evidence ” in Rights, Restitution and Risk: Essays in Moral Theory ( Cambridge , Mass. 1986 ) Google Scholar ; F. Schoeman, “Statistical vs. Direct Evidence” (1987) 21 Nous 179; D.T. Wasserman, “The Morality of Statistical Proof and the Risk of Mistaken Liability” (1991) 13 Cardozo L. Rev. 934.

78 Op. cit. n. 71, p. 203.

79 Op. cit. n. 46, pp. 752-753. A similar finding was made in the magistrates study: op. oil. n. 47, p. 34. Research on real juries in New Zealand is equivocal on this point. It was common for jurors to speculate about previous convictions—this occurred in all trials where the jury was not told whether the accused had a criminal record; “[i]n a number of cases, their speculations were based upon factors which were indicative of a prior record or previous involvement with the police”. However, other jurors would often remind such speculators that this issue was not really relevant. See Young , W. , Cameron , N. and Tinsley , Y. , Juries in Criminal Trials Part Two: A Summary of the Research Findings NZ Law Com. Prelim. Paper 37 , Vol. 2 ( Wellington 1999 ), pp. 43 – 44 Google Scholar .

80 Op. cit. n. 46, p. 751; op. cit. n. 47, p. 37.

81 Searle , J. , Mind, Language and Society: Doing Philosophy in the Real World ( London 1999 ), pp. 107 – 108 Google Scholar .

82 Op. cit. n. 5, p. 451.

83 Ibid. p. 439.

84 See Dennis, op. cit. n. 59, pp. 47-48. Dennis here follows Hoffman, op. cit. n. 6.

85 Makin v. AG for New South Wales [1894] A.C. 57.

86 For a study which suggests people do sometimes think in this way, at least when confronted with statistics, see Wells , G.L. , “ Naked Statistical Evidence of Liability: Is Subjective Probability Enough? ” ( 1992 ) 62 Journal of Personality & Social Psychology 739 Google Scholar .

87 At least in situations involving historical fact-finding. People are probably far more prepared to base decisions about risk on information about past behaviour. Someone with a previous conviction for assaulting his children is going to finding it difficult to gain employment as a baby-sitter.

88 See Boardman, op. cit. n. 5. See now DPP v. P. [1991] 2 A.C. 447. In practice, the move to a different test of admissibility in P. has probably made little difference.

89 See P.R. D’Agostino, “The Encoding and Transfer of Stereotype-Driven Inferences” (2000) 18 Social Cognition 281; Z. Kunda and P. Thagard, “Forming Impressions from Stereotypes, Traits and Behaviours: A Parallel-Constraint-Satisfaction Theory” (1996) 103 Psychological Review 284; G.V. Bodenhausen, “Stereotypic Biases in Social Decision Making and Memory: Testing Models of Stereotype Use” (1988) 55 Journal of Personality & Social Psychology 726. One study of character evidence supports this view: V.P. Hans and A.N. Doob, “Section 12 of the Canada Evidence Act and the Deliberations of Simulated Juries” (1975) 18 Crim. L.Q. 235, 246. The authors found that “[w]hen the record of defendants is made known to the jurors, the evidence in the case changes meaning and appears more damaging”.

90 An example of how the case law has taken this sort of line is R. v. Lewis (1982) 76 Cr. App. R. 33.

91 See Pennington , N. and Hastie , R. , “ The Story Model for Juror Decision Making ” in Hastie , R. (ed.), Inside the Juror: The Psychology of Juror Decision Making ( Cambridge 1993 ) Google Scholar .

92 This was generally the case in the New Zealand study (see Young et al., op. cit. n. 79, p. 44) as well as in Lloyd-Bostock's research.

93 For discussion of some of these issues, see P. Tillers, “What is Wrong with Character Evidence?” (1998) 49 Hastings L.J. 781.

This article has been cited by the following publications. This list is generated based on data provided by Crossref .

• Google Scholar

View all Google Scholar citations for this article.

Save article to Kindle

To save this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle .

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

• Volume 61, Issue 3
• Mike Redmayne (a1)
• DOI: https://doi.org/10.1017/S0008197302001770

Save article to Dropbox

To save this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about saving content to Dropbox .

Save article to Google Drive

To save this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you used this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about saving content to Google Drive .

Reply to: Submit a response

- No HTML tags allowed - Web page URLs will display as text only - Lines and paragraphs break automatically - Attachments, images or tables are not permitted

Your details

Your email address will be used in order to notify you when your comment has been reviewed by the moderator and in case the author(s) of the article or the moderator need to contact you directly.

You have entered the maximum number of contributors

Conflicting interests.

Please list any fees and grants from, employment by, consultancy for, shared ownership in or any close relationship with, at any time over the preceding 36 months, any organisation whose interests may be affected by the publication of the response. Please also list any non-financial associations or interests (personal, professional, political, institutional, religious or other) that a reasonable reader would want to know about in relation to the submitted work. This pertains to all the authors of the piece, their spouses or partners.

Beth Cherryman

Is it ever reasonable to admit ‘bad character evidence’ in a criminal trial.

In what follows I will identify the chief concerns with admitting bad character evidence.  I will argue that this evidence, when used as direct evidence that a defendant is guilty of the crime for which he is standing trial, should never be admissible in a criminal trial.

In the UK the law of criminal evidence operates a presumption against admitting evidence that shows a defendant to be of bad character.  The arguments surrounding whether or not to admit such evidence largely centre on the relevance debate.  Evidence is logically relevant when the probability of finding that evidence given the truth of some hypothesis at issue in the case differs from the probability of finding the same evidence given the falsity of that hypothesis.  So, in a criminal trial, evidence is logically relevant only if it is not as likely to be found given the defendant’s guilt as his innocence.  Statistics strongly suggest that bad character evidence, such as a prior convictions record, is logically relevant.  If the initial odds for guilt are 1:1 and the jury is told that the defendant has a criminal record, it is reasonable to assume that the jury will calculate the probability of the defendant being guilty of the offence he is now on trial for and having a criminal record is greater than the probability of him being innocent of the offence he is currently on trial for and having a criminal record.  That is, Pr(Record|Guilt) > Pr(Record|Innocent).  Hence, bad character evidence does raise the probability of guilt and so must be logically relevant.  Indeed, bad character evidence is frequently admitted to undermine the defendant’s credibility, to inform the jury of the essential background to the allegations against the defendant, and to rebut the defendant’s depiction of himself as a person of good character.  The issue is whether or not to allow bad character evidence as direct evidence that the defendant committed the crime for which he is standing trial.  The Courts term this ‘similar fact evidence’.  Some contend that similar fact evidence should be admitted because it is logically relevant.  They assert that excluding evidence in which the likelihood ratio deviates substantially from 1:1 deprives the jury of information that might aid them considerably in their rational resolution of disputed factual claims and may prevent a party from making what is, on a fair reading of the evidence, a powerful case.  The obvious solution, they argue, is to provide the jury with all the information they need to assess accurately the probative value of the offered evidence.

Still, the Courts exclude similar fact evidence maintaining that it does not meet the appropriate standard of proof.  I will present three arguments against admitting similar fact evidence, these are that the data used by the statisticians may be biased, the problems associated with reference classes and the incompleteness of psychological theory.  Firstly, the statistics that indicate the logical relevance of similar fact evidence (e.g. prior convictions) turn into an almost self-fulfilling prophecy.  Based on statistical evidence, police carefully monitor recently released convicts, but this takes resources away from ‘traditional’ policing activity.  Thus, when a recently released convict commits an offence they are less likely to get away with it than a first offender, or one without prior convictions.  Similarly when a crime is committed police may be more likely to look to ‘round up the usual suspects’, the regular offenders, for explanation than follow a trail of evidence.  In this way the statistics can become more and more skewed.  The Courts could argue this throws doubt on their reliability.  Secondly, statistical groups are not finely enough individualised and so cannot be used to predict the behaviour of a particular individual.  For instance, often the statistics are used without differentiating between serious and more common minor offences.  Serious offences (e.g. murder, rape, etc.) are rare, they say more about a character than minor offences (e.g. car theft).  Serious offences are harder to predict.  Minor offences should not be used to predict a serious one, and vice versa.  It is a long way from stealing a car to murder.  A fifty per cent false positive rate has been identified when statistics are used to foretell a serious offender re-offending.  As minor offences are more common, they incur fewer false positives and as such evidence of prior convictions is more probative.  Likewise, the significance of time-scale is habitually ignored, or under emphasised.  The probability of minor offenders re-offending diminishes with time, most re-offending occurs within two years of the previous offence.  Outside the two-year window convicts of minor offences are unlikely to re-offend.  Further, reference classes introduce the problem of classification.  Doubt on how to classify events leads to a subjectivity that will surely reduce the probative value of the evidence.  Thirdly, the Courts argue that there are still sizable doubts as to whether character evidence can be used at all to predict behaviour because psychological theories do not absorb the complex nature of a person.  Currently, psychologists seem to favour ‘interactionism’, which says our behaviour is a result of a combination of our character/personality and the situation.  That is, they claim characters react similarly to similar situations.  This does not seem very precise, certainly grounds for reasonable doubt.  What proportion is down to character?  Is it the same for all people?  Can there never be a spontaneous offence?  These questions all point to similar fact evidence being insufficiently informative.  In view of the above we have reached a stage where the statistics and consequently the logical relevance of similar fact evidence are less than secure.  This would indicate the Courts are right to be wary of bad character evidence.

Another concern with admitting bad character evidence is its prejudicial effect.  This is closely related to the problem of relevance.  Courts fear that the small probative value of hearing similar fact evidence will be masked by the prejudice, perhaps unconscious, it will spark in the jury.  Hearing this evidence could unfairly change the burden of proof for a defendant’s guilt.  The evidence may influence the jury’s verdict without relaying logically to the issue of guilt or innocence.  In particular, once the jury learn that the defendant has past convictions they do not care so much if they wrongly convict him of the offence for which he is currently on trial.  This is based on a model known as the regret matrix.  It suggests that it is likely that jurors regret the mistake of convicting a basically evil person less than convicting a basically good person.  If most jurors cannot avoid being influenced by such preferences in reaching their verdicts the burden of proof is effectively changed by any information (prior conviction record) that affects these preferences.  The law, however, regards a wrongful conviction as much more regrettable than a wrongful acquittal (innocent until proven guilty).  The law does not contemplate that the standard of proof will vary with the defendant’s personal character or criminal activity and as such this evidence is simply inadmissible.  Thus even if bad character evidence is logically relevant, it might still be deemed legally irrelevant.

A further argument against admitting similar fact evidence is that the jury may well have already assumed the defendant has a criminal record.  Thus in their verdict whatever probative weight this evidence may carry has already been counted, so, admitting the evidence of previous convictions could raise the probability of guilt further than it should – double counting the probative value of the evidence.  Moreover, the courts are concerned that jurors will misestimate the worth of similar fact evidence.  That they will assign to it greater probative weight than it is due.  This tendency to overestimate could be used to advantage the prosecution, enabling them to confuse or mislead the jury.  A lot of this problem relates to the imprecision of probabilistic estimates.  Evidence E should impact jurors’ beliefs according to Bayes’ Rule:  post odds = likelihood ratio multiplied by prior odds.  If the likelihood ratio is greater than one we have evidence for our hypothesis, e.g. x is guilty.  If the likelihood ratio is less than one it is evidence against the hypothesis.  If the likelihood ratio is equal to one then the evidence is logically irrelevant.  Supposedly this is the model jurors follow.  However, it relies on the default assumption of the juror being that the defendant has no past convictions.  As we have already discussed this is not the case.  One may well then question the entire process by which we establish guilt or innocence, that is, having a non-specialist jury working within a model of probabilities which are either raised or not by evidence presented to them at the hearing.  But, this process does seem to have more or less worked well for centuries; at least it appears to be the least worse process thus far developed.  I think that even with a jury whose default assumption is that the defendant has a criminal record, and whose preferences are such that they are less concerned about convicting a basically bad person (i.e. one with a criminal record) the system actually does not suffer because the court does not explicitly say defendant x has a criminal record.  As soon as the jury is made aware they extremely overestimate the value of this evidence, as above considered.  Every juror enters the court with background assumptions and beliefs, these may well conflict with the other jurors.  The point of having a jury of your peers is to take into account these background assumptions.  Most judges (at least in the UK) are middle aged white upper middle class men, perhaps a little out of touch with the plight of the average defendant over which he presides.  The jury acts as a safeguard, of which their default assumptions are a crucial part.

The final argument I will present concerns the moral principles involved in disclosing evidence of prior convictions.  It could be interpreted that by excluding evidence of bad character, courts express the moral principle that a defendant ought to be tried for the particular charge he is alleged to have done and not his past actions.  Indeed this seems to be a fundamental principle of criminal justice.  It has been argued that it is a moral requirement not to hold people to their past, or to bound them to statistical averages.  But I would go further than this.  In many ways the legal system of a society says what that society values, punishing people for murder, literally removing them from society, says that as a society we believe that killing another person is wrong.  By admitting bad character evidence we are in effect saying that as a society people cannot change, they cannot redeem themselves.  The very fact that we spend millions of pounds of rehabilitation facilities speaks to the contrary.  We have discussed the reference class problem.  This problem can be extrapolated to an argument against statistics full stop.  No matter how strong the statistical evidence it can never say that a person will do x, there will always be uncertainty.  For most evidential forms there will be uncertainty, but the uncertainty with reference class statistics is grounded in the fact they represent the behaviour of other people.  We cannot use the behaviour of others as a reason to predict the behaviour of one particular person.  Even if the reference class consists of just that person and their past actions, still the future cannot be predicted.  One cannot convict someone of a crime they have not yet committed.  In the same way a person cannot be convicted because their past actions strongly suggest they have committed the offence for which they are presently on trial.  Finally, it is worth noting that statistics are not causally relevant.  ‘Past convictions’ is not a cause of any present offence (assuming they are committed independently).  It cannot be argued that the defendant stole this car because he has stolen three cars previously, or that the stealing of three cars caused him to steal this one.  While this is not an argument for not admitting bad character evidence, it is an important point because, perhaps due to a fundamental lack of understanding of probability theory, juries can misinterpret bad character and statistical evidence as causally relevant.  Maybe this goes someway to explaining why this type of evidence is so often over weighted. Thus, admitting bad character evidence says our society holds that ‘once a criminal always a criminal’ and that the behaviour of others (no matter how similar to me) will accurately predict my behaviour.

In sum, it is argued that bad character evidence should be admissible in criminal trials because it is logically relevant, and depriving the jury of this information may unfairly prevent a party from making a powerful case or inhibit the jury in their resolving of the disputed factual claims.  The chief concerns with admitting bad character evidence, in particular similar fact evidence perhaps in the form of a criminal record, are that it is not actually relevant, that jurors may well subconsciously already assume the defendant has a bad character and so admitting such evidence will lead to double counting, that jurors misestimate the probative value of this evidence, and prejudice.  Further, there are moral principles at stake in admitting bad character evidence.  It is a fundamental principle of criminal justice that a person be tried for the particular charge he is alleged to have done and not his past actions.  As a society do we want to say that people cannot change and offer no chance of redemption?  Statistics used to suggest the admittance of bad character evidence are in fact based on the behaviour of others and we cannot use the behaviour of others to predict the behaviour of the defendant.  We cannot use the behaviour of the defendant to predict the behaviour of the defendant; the defendant’s values, circumstances and situations are not constant.  Statistically relevant does not mean causally relevant.  Bad character evidence for the purpose of directly indicating a defendant’s guilt has no place in a court of law.

Bibliography

•Lempert, R (1977). ‘Modeling Relevance’. Michigan Law Review 75.

•Redmayne, M (2002). ‘The Relevance of Bad Character’. Cambridge Law Journal.

Website Built with WordPress.com .

• Already have a WordPress.com account? Log in now.
• Subscribe Subscribed
• Copy shortlink
• Report this content
• View post in Reader
• Manage subscriptions
• Collapse this bar