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Bad character adduced by co-defendant Bad character adduced by co-defendant Practice notes. The following Corporate Crime practice note provides comprehensive and up to date legal information covering: Bad character adduced by co-defendant The Criminal Justice Act , s 1 e 'Important matter in issue' 'Substantial probative value' Examples of bad character to prove guilt Bad character to prove untruthfulness 'Nature and conduct of his defence' 'Undermining co-defendant's defence' Meaning of 'untruthfulness' Bad character adduced by co-defendant The Criminal Justice Act , s 1 e The Criminal Justice Act CJA permits evidence of a defendant's bad character to be introduced by a co-defendant if the evidence has 'substantial probative' value in respect of an 'important matter in issue' between the defendant and co-defendant.
Only a co-defendant can adduce evidence of bad character under gateway E. The relevant statutory provisions are known as gateway E. See Practice Note: Admissibility of defendant's bad character in criminal proceedings. If the statutory definition is not satisfied, gateway E will not apply.
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Drug cases, RICO cases, murder cases and home invasion robberies are some examples. When multiple co-defendants are accused of the same crime, a unique and very concerning problem can — and often does — arise: One defendant confesses to the police and implicates another.
The problem co-defendant cases is that a defendant has the Fifth Amendment right to remain silent and not be forced to take the stand at his or her own trial. Not really, because there is a rule that covers co-defendant cases : the severance of defendants, meaning that they are given separate trials and no longer to be tried together by one jury.
More recent authorities have suggested that a temporal requirement is but one way of establishing a nexus; thus where the evidence is relied upon to establish motive, there is no such temporal requirement see R v Sule [] EWCA Crim and R v Ditta [] EWCA Crim 8.
There is a fine line between evidence said to do with the facts of the alleged offence and evidence the admissibility of which may fall to be considered through one of the gateways. See also R v M [] EWCA Crim where the complainant in a rape case was cross examined about why she had, after an alleged rape, made no complaint and had got into a car with her attacker.
That line of questioning permitted evidence of her account of previous threats to shoot her and her belief that M had a gun. In some cases where there is some doubt about whether evidence can be said to be to do with the alleged facts, it may be appropriate for an application to be made in any event for the evidence to be adduced either as important explanatory evidence or evidence relevant to an important matter in issue between the prosecution and the defendant.
The admissibility of evidence that falls outside the definition of bad character within the meaning of section 98 is governed by section of the Act which provides that. This provision enables matters to be admitted by agreement. It does not empower advocates to agree evidence between them which may require judicial control, for example, third party material disclosed in respect of a non-defendant — R v DJ [] EWCA Crim — This case emphasized the need to always inform the judge of any proposed agreement between advocates as to the admissibility of bad character evidence which will enable the court to identify both relevance and purpose of the evidence.
It reflects broadly the common law rule under which evidence of background was admitted without which a case would be incomplete — see R v Pettman unreported May 2 S 1 c should be considered together with section which provides that;.
The requirements of section should be given proper consideration. There may be an issue about whether evidence of motive is admissible through this gateway. Under the common law, evidence of motive was always admissible to show that it was more probable that it was the accused who had committed the offence and it was generally considered that such evidence would form part of the background and be explanatory evidence.
However, the Court of Appeal in R v Sule ante held that such evidence had to do with the facts of the alleged offence and thereby fell within the scope of section Care should be taken when considering the route to admissibility of bad character evidence not to seek admissibility through this gateway when the proper approach is gateway d.
The case of Leatham and Mallett [] EWCA Crim 42 is illustrative of the approach of the Court in the application of section 1 c and the relationship with section 1 d. In that case, L and M were charged with conspiracy to burgle based entirely on circumstantial evidence. The commentary in the Criminal Law Review [] Crim LR illustrates the difficulties and complexity of the provision and its overlap with section 1 d — below. The Act introduced a revolutionary change to the admissibility of bad character evidence in criminal proceedings.
Whereas under the common law the premise was that evidence of bad character was inadmissible save for where the evidence was admissible as similar fact in accordance with the test in DPP v P [] 2 A. Thus, evidence of bad character is admissible where it is relevant to an important matter in issue between the prosecution and the defence and can be used, for example, to rebut the suggestion of coincidence see R v Howe [] EWCA Crim — evidence of previous convictions for burglary probative of the identification of the accused on a charge of burglary or to rebut a defence of innocent association see R v Cambridge [] EWCA Crim — on a charge of possessing a firearm with intent to endanger life, evidence of a previous incident in which the accused had discarded an imitation firearm and for which he had received a formal warning was admissible to rebut the explanation proffered by the accused for his fingerprints being found on the outside and the inside of the bag in which the firearm the subject of the present charge was found.
When seeking to admit evidence through this gateway, it is essential therefore that the issues in the case are identified and the relevance to that issue of the bad character evidence is clearly identified. Thus prosecutors must not lose sight of the need to focus on the important issues in the case and should never seek to adduce bad character evidence as probative of peripheral or relatively unimportant issues in the context of the case as a whole.
One of the most radical departures from the common law was to permit evidence of propensity to be used as probative of an issue in the case.
Section 1 provides that matters in issue between the defendant and the prosecution include —. For offences of the same category under section 4 b , please refer to the Criminal Justice Act Categories of Offences Order S. The basis of admissibility for such evidence is, effectively, to rebut any defence of mistake or innocent association on the basis of unlikelihood of coincidence see DPP v Boardman [] AC See the following for illustrations of the application of propensity evidence as probative of an important matter in issue in the case;.
Where a prosecutor considers propensity evidence, it is essential not to lose sight of the need for relevance. This can be contrasted with R v B [] EWCA Crim 35 where, on charges of sexual offences and child cruelty committed against his children, evidence of previous assaults committed upon his wife were admitted to rebut his assertion that he was simply a strict disciplinarian by demonstrating his propensity to use excessive violence against members of his family.
Section 1 d is the relevant gateway for determining the issue of cross admissibility where there are multiple accusations against a defendant made by different complainants. Section 2 provides. Accordingly, where prosecutors seek cross-admissibility of a number of counts as probative of an issue in the case, a formal application will be necessary. Previous acquittals are capable of being bad character evidence if the facts are relevant to an important matter in issue.
The use of previous acquittals was thought to be objectionable until the decision of the House of Lords in Z [] 2 AC where the evidence of three complainants who had each given evidence in three previous trials for rape was held to be admissible in a fourth rape trial to rebut the defence raised on the basis that the cumulative evidence possessed the degree of probative value required. However, where consideration is given to relying on conduct that has not resulted in a conviction, the case law directs that particular care is required.
In R v McKenzie [] EWCA Crim Toulson J emphasized the need to consider whether the admission of such evidence would result in the trial becoming unnecessarily complex as well as the need to avoid the litigation of satellite issues which would complicate the issues the jury had to decide.
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