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Character Evidence in the Criminal Trial PDF

321 Pages·2015·13.517 MB·English
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CHARACTER IN THE CRIMINAL TRIAL Character in the Criminal Trial MIKE REDMAYNE 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Mike Redmayne 2015 The moral rights of the author have been asserted First Edition published in 2015 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014959904 ISBN 978–0–19–922889–8 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Cover image: The Accusers of Theft Adultery Murder by William Blake. © The Trustees of the British Museum Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. 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.

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