Character Evidence Flashcards
(35 cards)
What is bad character evidence?
Evidence of / disposition towards misconduct on the defendant’s part, excluding evidence which is connected to the facts of the offence with which the defendant is charged or evidence of misconduct connected to the investigation / prosecution of the offence
What are the seven gateways through which bad character evidence can be admitted?
A) All parties agree
B) Defendant introduces it
C) Important explanatory value
D) Relevant to an important matter between defendant and prosecution - propensity
E) Substantial probative value in an issue between co-defendants
F) Correcting a false impression
G) Attack on another’s character
For which gateways is leave of the court NOT required?
A - agreement of the parties
B - defendant adduces their own bad character evidence
Gateway C: when is evidence considered ‘important explanatory evidence’?
If without this evidence, the court or jury would find it impossible or difficult to understand the other evidence in the case AND it’s value for understanding the case as a whole is substantial
Who can admit evidence under Gateway D?
Prosecution only
In what circumstance can evidence be admitted under gateway D?
In order to establish that the defendant has a propensity to commit offences of the type charged: the following evidence can be admitted
- Evidence of an offence of the same description
- Evidence of an offence in the same category with which he is charged (e.g. theft offence, sexual offence)
or, in order to establish that the defendant has a propensity to be untruthful
When can the court exercise its discretion not to admit evidence under Gateway D to establish propensity?
If the court is satisfied that it would be unjust to submit evidence because it has been a very long time since conviction, or for any other reason
What principles emerge from the case law regarding bad character evidence and propensity?
There is no minimum number of convictions required to establish a propensity
A single offence can be considered a ‘tendency’ if it shows a tendency towards unusual behaviour
Court is unlikely to admit bad character evidence is there is little or no other evidence against the defendant
If the previous offence constitutes a ‘signature’ or a mode of offending - revealing
How does the court approach the ‘propensity to be untruthful’ element of gateway D?
There must be an element of a previous offence that is ‘untruthful’ - e.g. fraud
this is narrowly construed
What kind of evidence can be admitted under gateway E?
Evidence of substantial probative value in an important matter in issue between co-defendants
When can one defendant activate admissibility under Gateway E?
if one defendant asserts that they have no propensity to do something - and a co-defendant can assert that this is incorrect
Who can admit evidence under Gateway F?
Prosecution only
When can evidence be admitted under Gateway F?
When the defendant has made an implied or express assertion giving a false impression - can be admitted to correct this
How should the jury be directed in terms of bad character evidence?
Jury should be directed that they can decide how much weight
BC evidence cannot be used to bolster a weak case
On what three grounds can bad character evidence be brought against a non-defendant?
Important explanatory evidence
Substantial probative value
Agreement of the parties
How does S78 PACE act as a safeguard on bad character evidence?
Judge has discretion (MAY) to exclude any evidence that the prosecution seeks to adduce on fairness test grounds
What gateways does S103 CJA fairness test apply to?
D and G - must not bring evidence if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
What procedural safeguard exist on contaminated evidence?
Court can stop the case where it is satisfied at any time after the close of the case that BC evidence is contaminated and it is such that a conviction would be unsafe
What must the court do once it has made a ruling on bad character?
Give reasons in open court for any ruling made on this
What are the time limits for the prosecution for applying to admit bad character evidence?
MC: not more than 20 business days after D pleads not guilty
CC: not more than 10 business days after D pleads not guilty
What are the time limits for a co-defendant for applying to admit bad character evidence?
As soon as reasonably practicable
In any event, not more than 10 business days after the prosecutor discloses the material on which the notice is based
What is the time limit for the receiving party’s response to a service of notice of bad character?
Not more than 10 business days after service of the notice
What should be contained in a bad character application, when made by the prosecution or a co-defendant?
- Set out facts of the misconduct on which that party relies
- Explain how that party will prove those facts and if they are in dispute
- Explain why evidence is admissible
What should be contained in the response to a bad character application?
- Which, if any, of the facts of the misconduct set out in the notice that party disputes
- What, if any, facts of the misconduct are admitted
- Why evidence is not admissible
- Why it would be unfair to admit certain evidence
- Any other objection
