Reform of the Exclusionary rule in Relation to Evidence of Bad Character and Misconduct Evidence

Date01 January 2014
AuthorShane Kennedy
Reform of the Exclusionary Rule in
Relation to Evidence of Bad Character and
Misconduct Evidence
As a general rule, evidence of the bad character of an accused is inadmissible
and the prosecution cannot adduce such evidence as part of its case or seek
to elicit it by cross-examination.1 The classic exposition of this principle is
contained in the seminal judgment of Lord Hershell in Makin v Attorney
General for New South Wales.2 The effect of this much quoted passage,
heralded as “one of the most deeply rooted and jealously guarded principles
of our criminal law,3 is that evidence of misconduct which does not form
part of the indictment is inadmissible.
Rationale Underpinning the Exclusionary Rule
Prejudicial Effect
The principal reason for the existence of the exclusionary rule is predicated
on the belief that the admission of bad character evidence will have a
disproportionately prejudicial effect on the jury. It is arguable that the
introduction of an accused’s bad character has a fundamental, and often
determinative, impact on the outcome of a criminal trial. This view is
supported by empirical evidence conducted by Professor Lloyd-Bostock,
at the request of the UK Law Commission, whereby she observed that:
“The results clearly conrm that evidence of previous convictions can have
a prejudicial effect, especially where there is a recent previous conviction
for a similar offence.”4 The judicial reticence to admit such evidence is
encapsulated in the dicta of Black J in People (AG) v Kirwan:5 “bearing in
mind the strong prejudice that would necessarily be created in the minds of
1 Declan McGrath, Evidence, (Dublin: Thomson Round Hall, 2005), p.469
2 [1894] A.C. 57, at 65: “It is undoubtedly not competent for the prosecution to adduce
evidence tending to show that the accused has been guilty of criminal acts other than
those covered by the indictment, for the purpose of leading to the conclusion that the
accused is a person likely from his criminal conduct to have committed the offence for
which he is being tried.”
3 Maxwell v DPP [1935] A.C. 309, per Viscount Sankey LC
4 Lloyd-Bostock, “The Effects on Juries of Hearing about the Defendant’s Previous
Criminal Record: A Simulation Study” [2000] Criminal Law Review 734, p.753
04 Kennedy.indd 98 29/05/2014 10:50
Reform of the Exclusionary Rule 99
the jury by evidence of this class … the greatest care ought to be taken to
reject such evidence unless it is plainly necessary to prove something which
is really in issue.”6
The concern is that the admission of bad character evidence may
prejudice the jury against the accused such that the jury’s determination
is not a judgment on the facts of the particular case before it, but rather
a condemnation of the accused’s character. In the words of Elliott, the
danger is that the admission of bad character evidence may have the effect
of allowing the prosecution to “embark on a course which will usually sink
the defence without a trace.”7 Implicit in this statement is the reality that
the prosecution does not seek to adduce evidence which paints the accused
in a positive light. It will invariably make every use out of bad character
evidence in an attempt to secure a conviction, amplifying the impact of
such evidence on the jury, and thereby increasing the prejudicial effect and
unfairness visited upon an accused by its admission.
Assumptions by the Jury
A key consideration when assessing the likely prejudicial effect of the
admission of bad character evidence is the extent to which a jury is able
to judge another human person as being capable of redemption or reform.
This question permeates the entire discussion as to whether the admission
of bad character evidence is likely to prejudice the fairness of an accused
person’s trial. The danger is that the jury, proceeding on an assumption
as to the unchanging nature of human behaviour, may attribute an overly
predictive quality to bad character evidence.8 It may, therefore, incline to
the view that the accused is more likely to re-offend. As a result, the jury
may convict on a preventative basis to preclude probable future offences,
even where it is not convinced of his guilt for the offence charged.
Human nature dictates that a jury will invariably be affected, on some
level, by an accused’s prior disreputable past. It is extremely difcult for
persons to disabuse their mind of such information when determining
whether the accused is guilty of the particular offence charged. Subcons-
ciously, juries are bound to be affected in some way by the disclosure of
evidence of bad character. As Wigmore points out:
The deep tendency of human nature to punish, not because our victim
is guilty this time, but because he is a bad man and may as well be
condemned now that he is caught, is a tendency which cannot fail to
operate with any jury, in or out of court.9
6 Ibid, at 307
7 Elliott, “The Young Person’s Guide to Similar Fact Evidence” [1983] Criminal Law
Review 284
8 Declan McGrath, supra note 1, p.476
9 Wigmore, Wigmore on Evidence, 3rd edition, (Little, Brown US) Volume 1, p.57
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