Character Evidence in the Criminal Trial

321 Pages·2015·13.517 MB·English

by  Mike Redmayne

CHARACTER IN THE CRIMINAL TRIAL

Character in the
Criminal Trial
MIKE REDMAYNE
1
1
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For Helen Margaret Redmayne

General Editor’s Introduction
There are few more contestable elements of the criminal trial than evidence of
the defendant’s character, bad or good. For many years the common law strug-
gled with questions of the kinds of character evidence that should be admissible
and the purpose for which it might be used. As a result of the Criminal Justice
Act 2003 these controversies moved centre-stage in English law. Questions of
propensity and prejudice remain contested, as does the ethical basis for admitting
character evidence. In this erudite monograph Mike Redmayne not only conducts
a searching examination of the relevant theoretical and empirical issues, but also
broadens the debate by drawing parallels (and distinctions) with the relevance of
an offender’s character at the sentencing stage. This innovative approach to the
subject takes a wide sweep, with the author going on to suggest ways in which
character evidence has an influence in shaping the meaning and practical impact
of elements of the criminal law itself. Thus, while the monograph makes an origi-
nal contribution to the Law of Evidence, it also demonstrates criminal justice
scholarship at its best.
Andrew Ashworth

Preface and Acknowledgments
I started writing about character without really realizing it. In 1999, I published
a short note on the use of evidence to prove drug dealing (‘Drugs, Money and
Relevance’ (1999) 3 E & P 128). Typical examples from the case law were the
finding of a large amount of cash, or a small amount of drugs, in the house of a
suspected drug dealer. I was interested in the relevance questions posed by such
scenarios, and the way in which the courts analysed them. But it turned out that
I was also writing about what the law classifies as character evidence, because
if the drugs and money were relevant, they were relevant via an argument that
they showed a propensity to deal in drugs. This got me thinking about patterns
of reasoning in cases involving character, in particular claims about establishing
probative value through unlikely coincidences, an area where it seemed to me
that some of the received wisdom was wrong. I developed my thinking in a rather
strange review article (‘A Likely Story!’ (1999) 19 OJLS 659). Having stumbled on
an interest in character evidence, I then looked at the question of what empirical
evidence on recidivism might have to say about the probative value of previous
convictions. Around that time, there were moves to reform the admissibility of
character evidence in England and Wales. These came to fruition in the Criminal
Justice Act 2003, and I decided that developing some of the ideas I had already
written about, and examining the legal changes brought about by the Act, would
be a good topic for a book. I was also familiar with some of the literature on the
use of previous convictions in sentencing, and there appeared to be some interest-
ing similarities and differences between the debates about character in evidence
law and sentencing, so the idea of combing the two topics emerged. The end result
is this book about character in the criminal trial.
Especially on the evidence law side of things, there is much that this book does
not cover. While I had grand ambitions when I started out, I found I needed
to concentrate on particular issues in order to do them justice. Thus, I concen-
trate on defendants, rather than also looking at the use of bad character evidence
against witnesses. Even where defendants are concerned, I leave much out. I do
not discuss admissibility between co-defendants, nor do I look at explanatory
evidence, evidence to rebut a false impression, or the issue of when evidence ‘has
to do with the alleged facts of the offence’. This book is not intended to be a guide
to the Criminal Justice Act 2003, but an in-depth analysis of particular uses of
character evidence in relation to defendants: good character and bad character
evidence, used as evidence of propensity to commit crime and as evidence of cred-
ibility. When starting out, I had hoped to include comparative material, but later
decided to keep the focus on the law in England and Wales. I hope that readers in
other jurisdictions, who will know their own law better than I do, can draw out
the implications of my arguments for the law elsewhere.