Adducing Bad Character Evidence Through Cross Examination - Case Study Example

Introduction By virtue of Section f)(ii) of the Criminal Evidence Act 1898 an accused person may only be cross-examined with respect to previous convictions or bad character evidence if he or she have asked questions of previous witnesses that tend to “establish” the accused person’s “good character.”1 The reason for this exception is twofold. It allows the prosecution to demonstrate that the accused may not be trusted. A key purpose of cross-examination is to test the veracity of the evidence.2 The second reason for the exception is founded on the principle that once the accused asserts good character, his or her character becomes an issue capable of rebuttal although the prosecution was not at liberty to introduce original evidence of bad character under the Section 1(f) (ii) exception.3 The key purpose of cross examination under Section 1(f) (ii) is therefore to challenge false representations by the accused and thereby challenge his credibility. The manner in which the courts have approached cross examination under Section 1(f)(ii) has been inconsistent with the result that the purpose of cross examination pursuant to Section 1(f)(ii) is not entirely clear. The difficulties for the courts are attributed to the vagueness and confusion of the terminology contained in the statute.4 The discussion that follows examines the Section 1(f)(ii) exception and the difficulties the courts have had in permitting or refusing to permit cross examination of the accused on bad character evidence. Section 1(f)(2) of the Evidence Act 1898 Viscount Sankey explained in Maxwell v DPP [1935] AC 309 that Section 1(f) of the 1898 Act serves as a compromise or a means of compensating the accused for Section 1(e) which permits cross-examination of the accused of any matter relative to the charge for which he stands trial.5 However the shield provided for under Section 1(f) is subject to certain exceptions one of which is contained in Section 1(f)(ii).6 Section 1(f)(ii) provides that an accused person who testifies may not be questioned as to bad character evidence unless: “he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or the deceased victim of the alleged crime...”7 The rationale and by extension the purpose of cross examination under the Section 1(f)(ii) proviso was explained by Viscount Sankey in Maxwell v DPP. According to Viscount Sankey, if the defendant either by himself or through his attorney and other witnesses adduces evidence of his good character he or she is ultimately raising a defence.8 The defence raised is one in which the defendant is impliedly claiming that his character is such that he would not or could not have committed the crime for which he stands charged.9 As Viscount explains, it is therefore only fair that once the defendant raises the issue of his good character in defence he can “be cross examined to show the contrary.”10 Section 1(f)(2) of the Evidence Act 1898 In Practice The courts have not been clear on what constitutes an assertion of good character to such an extent that the prosecution may invoke the Section 1(f)(ii) exception. For instance in Ellis [1910] 2 KB 746 it was held that a defendant testifying to facts which are relevant to the charge but might cast him in a good light would not give rise to a Section 1(f)(ii) exception.11 In another case, the defendant who was on trial on a conspiracy charge testified that he had previously advised against violence in a meeting which allegedly gave rise to the conspiracy charge. The court took the position that the defendant’s evidence was not an assertion of good character since he did not: “...independently of giving his account of what had actually happened and of what had actually been said, assert that he was a man of good character.”12 Be that as it may the courts have also ruled that a claim by the defendant that he or she earned an honest living for a long period of time is an assertion of good character and capable of invoking Section 1(f)(ii).13 It is difficult to reconcile this ruling with the ruling in the Malindi case. Although the Malindi ruling suggests that the defendant’s claim that he had advised against violence was directly related to the charge of conspiracy it is no less an assertion of good character than the defendant who claims to have been gainfully employed. In another case the defendant who had claimed to be a regular church goer was deemed to have asserted good character with the result that Section 1(f)(ii) had been invoked.14 The fact that a defendant goes to work or church regularly is not necessarily evidence of good character and although not relevant to the charge cannot be fairly considered a defence to the charge since it is well know that persons who go to church and/or keep honest jobs are not automatically immune from criminal conduct. In applying the Section 1(f)(ii) exception the courts typically take the view that the defendant cannot be permitted to put one part of his character or one time period of his character into evidence and leave out the other part. It was ruled in Winfield (1939) 27 Cr. App. R. 139 that: “...there is no such thing known to our procedure as putting half a prisoner’s character in issue and leaving out the other half.”15 In other words the courts are inclined to view the accused person’s character as indivisible for the purpose of cross examination under Section 1(f)(ii).16 The courts have even gone so far as to allow cross examination of bad character evidence under Section 1(f)(ii) in circumstances where the defendant only denies some specific element of bad character in an attempt to demonstrate that he or she could not have committed the offence charged. For example claiming to be a homosexual on a rape charge was held to have put the defendant’s character in issue.17 Similarly, a defendant claiming to be a sophisticated burglar on a murder charge was held to have invoked Section 1(f)(ii) on the grounds that the defendant by making the claim that he did placed his character in issue.18 It is difficult to reconcile this approach with Section 1(f)(ii) which specifically requires either assertions of good character or imputations on the character of the prosecution or its witnesses. Claiming to be a homosexual or a burglar can hardly fall within the ambit of good character assertions and cannot reasonably be said to have opened the door for cross examination on this issue to determine if the defendant is worse than he claims to be. Moreover, these kinds of assertions are no more than mere denials of guilt, something the defendant obviously claimed in order for there to be a trial in the first place. The second part of Section 1(f)(ii) allows cross examination of the accused person if the “nature or conduct of the defence is such as to” cast “imputations on the character of the prosecutor” or its witnesses or “the deceased victim of the alleged crime.”19 This provision can systematically deny or inhibit a defendant exploiting a viable defence. For instance, as Richard May points out: “If a defendant puts in the driving convictions of the deceased in a case of causing death by dangerous driving, he will be at risk of having his own convictions put before the court.”20 Making matters worse Lord Alverston CJ ruled in Hudson [1912] 2 KB 464 that in interpreting the second part of Section 1(f)(ii) the words were to be given “their ordinary and natural interpretation.”21 This would tend to suggest that the mere assertion of innocence or a denial of guilt could give rise to an exception to the shield under Section 1(f) of the Criminal Evidence Act 1898. Clearly the purpose of cross examination under Section 1(f)(ii) cannot be to unduly restrain the defendant’s defence or his attempts to counter the prosecution’s case. The purpose is to test the veracity of his testimony and no more. By adhering to Lord Alverston’s approach to the second part of Section 1(f)(ii) a defendant has to be careful that in his claim of self-defence for instance he does not impugn the victim’s reputation although it might be true that the defendant’s own conduct gave rise to the defendant’s violence. Lord Pearce appears to acknowledge the unfairness to the accused should the courts insist upon taking too literal an approach to the question of imputations against the prosecution and/or its witnesses or the victim. In Selvey v DPP [1970] AC 304 Lord Pearce said that the words contained in the section: “...cannot...have been intended by Parliament to make a man liable to have his previous convictions revealed whenever the essence of his defence necessitates imputations on the character of the prosecutor. This revelation is always damaging and often fatal to a defence.”22 That said however, the House of Lords went on to rule that the court had a discretion to determine whether or not to permit cross examination or constrain it in circumstances where the accused person’s defence necessitated imputations against the prosecution and that discretion would not automatically be exercised in favour of the accused.23 The obvious difficulties that Section 1(f)(ii) have given the courts with respect to the accused person’s defence have given rise to a myriad of confusing rulings. Lord Devlin pointedly remarked that it is necessary to give “some restricted meaning” to the second part of Section 1(f)(ii) otherwise: “...a prisoner’s bad character, if he had one, would emerge almost as a matter of course. Counsel for the defence could not submit that a witness for the prosecution was untruthful without making an imputation on his character; a prisoner charged with assault could not assert that the prosecutor struck first without imputing to him a similar crime.”24 The courts have attempted to avoid these kinds of consequences for the defence by developing a rule which does not allow cross examination of prior bad acts in circumstances where the imputations are “no more than a denial of the charge.”25 Even so there have been instances where the courts have ruled that a mere denial could in fact amount to an imputation permitting cross examination under Section 1(f)(ii). According to Britzman [1983] 1 WLR 350 the only question that concerns the court is whether or not an imputation was made.26 It was even held in McGee and Cassidy (1979) 70 Cr. App. R. 247 that a defence based on a claim that the police had concocted a confession statement amounts to an imputation giving rise to cross examination pursuant to Section 1(f)(ii). Lawton LJ noted that: “A defence to a criminal charge which suggests that prosecution witnesses have deliberately made up false evidence in order to secure a conviction must involve imputations on the characters of those witnesses.”27 This might seem to suggest that a mere allegation of misconduct on the part of the prosecution witnesses could amount to the loss of the shield under Section 1(f). However, Blackstone explains that misconduct is a subjective matter and varies with public policy considerations and from one generation to another.28 For instance, alleging that a prosecution witness was homosexual might have been considered an imputation thirty years ago, but today it cannot and does not impugn the reputation of the subject. At the end of the day the trial judge has a discretion to allow or disallow cross examination under Section 1(f)(ii). His guiding principle is whether or not the evidence of bad character sought to adduce is far more prejudicial than probative.29 Judge’s typically take the position that the purpose of cross-examination is to challenge the credibility of the defendant when he or she gives evidence as a witness. The purpose of cross examination under Section 1(f)(ii) and in general is not to demonstrate that the defendant has a propensity to commit criminal offences.30 Be that as it may, it is commonly accepted that juries are more apt to use the evidence of prior bad acts when deliberating as evidence of the defendant’s propensity to commit the offence for which he or she is currently charged. In this regard the purpose for which cross examination is allowed under Section 1(f)(ii) is lost. Conclusion It is clear that Section 1(f)(ii) attempts to comply to the general purpose of cross examination which is to test the veracity of the evidence. If the defendant alleges that a prosecution witness has behaved in a manner which impugns his character, it appears to be only fair that the jury is aware of the accused character so that they can fairly judge the veracity of the claim. However, the vagueness of the Section 1(f)(ii) itself has given rise to a confusing plethoria of precedents to the extent that almost any claim of misconduct could conceivable open the door to bad character evidence thereby unfairly prejudicing the defendant in his defence to the charge. In order to circumvent these kinds of injustices the shield should not be lost if the claim only relates to misconduct with respect to the specific offence charged. Bibliography Bracewell (1979) 68 Cr. App. R. 44 Britzman [1983] 1 WLR 350 Cook [1959] 2 QB 340 Criminal Evidence Act 1898 Ellis [1910] 2 KB 746 Ferguson (1909) 2 Cr. App. R. 250 Gooderson, R.N. “Is the Prisoner’s Character Indivisible?” (1953) CLJ, 377 Hudson [1912] 2 KB 464 Malindi [1967] 1 AC 439 Maxwell v DPP [1935] AC 309 May, R. (1995) Criminal Evidence, London: Sweet and Maxwell McGee and Cassidy (1979) 70 Cr. App. R. 247 McLeod {1994] 1 WLR 1500 Omnerod, David and Hooper, T, Rgt. Hon. LJ. (Editors) (2007) Blackstone’s Criminal Practice. Oxford University Press. Powell [1985] 1 WLR 1364 Redgrave (1981) 74 Cr App R 10 R v Butterwasser, [1940] 1 KB 4 Selvey v DPP [1970] AC 304 Tapper, C. “The Revelation of Jones v DPP” (1988) 51 MLR 785 Wellman, Francis. (2005) The Art of Cross Examination. London: The MacMillan Company Winfield (1939) 27 Cr. App. R. 139 Read More