Bad Character References (Previous Convictions)

[JohnFKennedy]

I am not sure what the status quo for the USA is but in the UK we have something known as a "Bad Character Reference". They can be for the Defendant, the aggrieved or any witnesses within a criminal case.

Here I am mainly talking about the disclosure of previous convictions of the defendant. In the UK the law concerning this was established by the Criminal Justice Act 2003 s 101. which states:

   1. In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-
         a.  all parties to the proceedings agree to the evidence being admissible,
         b. 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,
         c. it is important explanatory evidence,
         d. it is relevant to an important matter in issue between the defendant and the prosecution,
         e. it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
         f. it is evidence to correct a false impression given by the defendant, or
         g. the defendant has made an attack on another person's character.

      (Sections 102 to 106) contain provision supplementing subsection (1).
   2. The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, 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.
   3. On an application to exclude evidence under subsection (3) the court must have regard to, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

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There is further clarification in ss. 102-106 explaining the meanings of section 101(1)(c)  through 101(1)(g).

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Basically, do you think it is right for the judge and jury to be informed of a defendant's previous convictions as beneficial evidence or do you think they unfairly prejudice a case?

[Emsworth]

Previous convictions should most certainly be admissible, provided that the prejudice does not outweigh the probative value. For example, if the defendant is on trial for murder, an unrelated drug offense committed twenty years ago serves only to prejudice the jury, and adds nothing to the case itself.

However, even if it is prejudicial, it should certainly be admissible in certain other circumstances, such as to properly cross-examine the defendant. For instance, if the defendant claims that he has never committed a crime before, the past conviction should be considered.

[JohnFKennedy]

Previous convictions should most certainly be admissible, provided that the prejudice does not outweigh the probative value. For example, if the defendant is on trial for murder, an unrelated drug offense committed twenty years ago serves only to prejudice the jury, and adds nothing to the case itself.

I can understand how it could be relevant to disclose previous convictions if they were acutely similar to the current case being tried; for example in the case of a rape it would be good sense to disclose if the defendant had a previous conviction for rape under similar circumstances (rapists often have something distinctive so you can generally tell if two rapes were committed by the same person). Other than in such cases, I do not see how it could be probative in a completely unrelated case. For example if somebody has a conviction for GBH I do not see how it could be deemed probative evidence in a separate case for murder. I think that under many circumstances previous convictions do not show a propensity and so are not probative evidence. The only relevance I can see is if there were parties involved in both of the cases other than the defendant.

In many cases I would say that bad character references simply tilt the balance away from the defendant by giving the jury preconceptions. I think to a great extent it can undermine the standard of proof of innocent until proven guilty by prejudicing a jury.

I think the criteria set by the CJA 2003 aren't bad criteria if any form of bad character references are to be admissible though I am less sure about subsections g. I think the explanation of c in section 102 of the Act is satisfactory for the most part to allow that.

On a general principle I would prefer for previous convictions not to be disclosed, but I recognise that there are necessary exceptions.

[Emsworth]

Previous convictions should most certainly be admissible, provided that the prejudice does not outweigh the probative value. For example, if the defendant is on trial for murder, an unrelated drug offense committed twenty years ago serves only to prejudice the jury, and adds nothing to the case itself.

I can understand how it could be relevant to disclose previous convictions if they were acutely similar to the current case being tried; for example in the case of a rape it would be good sense to disclose if the defendant had a previous conviction for rape under similar circumstances (rapists often have something distinctive so you can generally tell if two rapes were committed by the same person). Other than in such cases, I do not see how it could be probative in a completely unrelated case. For example if somebody has a conviction for GBH I do not see how it could be deemed probative evidence in a separate case for murder. I think that under many circumstances previous convictions do not show a propensity and so are not probative evidence. The only relevance I can see is if there were parties involved in both of the cases other than the defendant.

In many cases I would say that bad character references simply tilt the balance away from the defendant by giving the jury preconceptions. I think to a great extent it can undermine the standard of proof of innocent until proven guilty by prejudicing a jury.

I think the criteria set by the CJA 2003 aren't bad criteria if any form of bad character references are to be admissible though I am less sure about subsections g. I think the explanation of c in section 102 of the Act is satisfactory for the most part to allow that.

On a general principle I would prefer for previous convictions not to be disclosed, but I recognise that there are necessary exceptions.

I would tend to agree: the probative value would have to be substantial in order to outweigh the prejudice.