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‘Bad character’, tragic errors and deep ignorance
Published online by Cambridge University Press: 29 July 2019
Abstract
This paper proposes new grounds for the legal ambivalence about ‘bad character evidence’. It is suggested that errors based on such evidence are profoundly tragic in the Aristotelian sense: the defendant who previously committed crime is likely to reoffend; nevertheless, she beats the odds and refrains from further crime commission – only to then be falsely convicted based on the very odds she has almost heroically managed to beat. It is further proposed that the tragic nature of such false convictions might make them particularly unfair to the defendant. It is, however, submitted that the likelihood of errors based on such evidence is unknown and probably also unknowable. Accordingly, the maximin rule for decision in conditions of deep ignorance is applied, leading to the conclusion that exclusion is to be preferred.
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- Copyright © The Society of Legal Scholars 2019
References
1 For the relevance of character in the context of preventive means see for example Duff, RA ‘Pre-trial detention and the presumption of innocence’ in Ashworth, A et al. (eds) Prevention and the Limits of the Criminal Law (Oxford: Oxford University Press, 2013) pp 127–130Google Scholar; Wasserman, DT ‘The morality of statistical proof and the risk of mistaken liability’ (1991) 13 Cardozo Law Review 935Google Scholar. For character in the context of criminal liability see eg Duff, RA ‘Choice, character, and criminal liability’ (1993) 12 Law and Philosophy 345CrossRefGoogle Scholar; Tadros, V Criminal Responsibility (Oxford: Oxford University Press, 2005) ch 2Google Scholar; Bayles, MD ‘Character, purpose, and criminal responsibility’ (1982) 1 Law and Philosophy 5CrossRefGoogle Scholar. For character in sentencing see eg Bottoms, AE and Brownsword, R ‘The dangerousness debate after the Floud report’ (1982) 22 British Journal of Criminology 229CrossRefGoogle Scholar; Hirsch, A von and Ashworth, A Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005) especially ch 4CrossRefGoogle Scholar; Roberts, JV and von Hirsch, A (eds) Previous Convictions at Sentencing: Theoretical and Applied Perspectives (London: Hart Publishing, 2010)Google Scholar.
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3 The paper does not discuss good character evidence, but it could lead to the conclusion that there is no sufficient ground for excluding it.
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6 Redmayne, above n 2.
7 Redmayne, above n 2, at p 93 mentions the unreported decision in Cole from 1810 as the point of emergence of the rule of exclusion.
8 Redmayne, above n 2, p 94.
9 Ibid.
10 Redmayne, above n 2, p 128, relying on Cross, R Evidence (London: Butterworths, 5th edn, 1979) pp 378–393Google Scholar.
11 Ibid.
12 [1952] 2 QB 911.
13 Spencer, above n 5, at para 1.72.
14 R v Smith (1916) 11 Cr App R 229.
15 This can be distinguished from having one's physical fingerprint found in the scene of crime, which is not necessarily associated with any transparently erroneous behaviour that was sure to turn the defendant into a suspect of crime.
16 DPP v Boardman [1975] AC 421.
17 Redmayne, above n 2, p 130.
18 CJA 2003, s 101(1)(a).
19 CJA 2003, s 101(1)(b).
20 CJA 2003, s 101(1)(f).
21 CJA 2003, s 101(1)(g).
22 CJA 2003, s 101(1)(c).
23 CJA 2003, s 101(1)(e).
24 Picinali, above n 4, 129.
25 For example, in the bus companies example which is a variation on the American case of Smith v Rapid Transit Inc 58 NE 2d 754 (Mass 1945). See the discussion in Wells, GL ‘Naked statistical evidence of liability: is subjective probability enough?’ (1992) 62 Journal of Personality and Social Psychology 739CrossRefGoogle Scholar; or the rodeo stadium example in Cohen, LJ, The Probable and the Provable (Clarendon Press 1977) pp 74–75CrossRefGoogle Scholar.
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28 Ibid.
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32 This point is further clarified below.
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34 It is possible that the police held a sample of the defendant's DNA due to previous involvement in crime; in this case, the DNA evidence actually indicates previous misconduct, and despite the different inference from such evidence, the meaning of the error is similar to its meaning in cases of ‘bad character evidence’. This may explain some of the controversy over DNA databases.
35 This unrealistic assumption helps to demonstrate that the ambivalence does not necessarily have to do with the probative value of the evidence. The more realistic scenario, in which bad character evidence is only part of the evidence that leads to false conviction, is discussed below.
36 See Redmayne, above n 2, pp 16–21.
37 For lack of space, I do not engage here directly with all the vast criminological literature about recidivism; nor will I engage with the empirical literature on bias in section 3 of the paper. Rather, I adopt Redmayne's thorough analysis of those in n 2 above.
38 Redmayne, above n 2, p 24 (Table 2.7).
39 Redmayne, above n 2, pp 23–24.
40 For an elaborate critical discussion of the ways to analyse the probative value of evidence of previous misconduct see Redmayne, above n 2, pp 35–41.
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42 What matters for the purposes of the current argument is that there are (indeed many) defendants who will have to fight these forces, and that some of them will have triumphed over them.
43 Where the evidence does not contribute to the false conviction, it is not clear that the false conviction is profoundly tragic. Yet it is hard – if not impossible – to identify such cases; furthermore, the fact that there are some cases in which the evidence does contribute to the false conviction is the significant one when making general admissibility decisions.
44 Thus, a clean record does not mean that one has not, or does not, commit crime. Nor does it mean that one does not face similar challenges and temptations as those who have convictions.
45 This seems to be the assumption in the CJA 2003.
46 Redmayne, above n 2, p 25.
47 Subsection (e).
48 As we shall see below, the nature of the other evidence might make a difference where it indicates that the defendant endorses some of the circumstances of the offence at issue.
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52 In any case, what matters for current purposes is the need to avoid rare but profoundly tragic false convictions of reformed defendants. After all, a rule of exclusion based on the nature of errors is based on the assumption that it is justified to exclude some perfectly good evidence (eg all the evidence of previous misconduct that would not end up leading to errors) in order to avoid some errors.
53 According to Aristotle's definition of a tragedy, it ‘is an imitation of an action that is serious, complete and of a certain magnitude; … in the form of action, not of narrative; through pity and fear effecting the proper purgation of those passions’: The Poetics of Aristotle Part VI (3rd edn, edited with critical notes and a translation by SH Butcher, 1902).
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57 The Poetics of Aristotle, above n 53, Part IX.
58 Ibid.
59 The Poetics of Aristotle, above n 53, Part XI.
60 Ibid.
61 The Poetics of Aristotle, above n 53, Part XII.
62 The Poetics of Aristotle, above n 53.
63 The Poetics of Aristotle, above n 53, Part XIV.
64 The Poetics of Aristotle, above n 53, Part XV.
65 Ibid.
66 ‘for pity is aroused by unmerited misfortune, fear by the misfortune of a man like ourselves’: The Poetics of Aristotle, above n 53, Part XIII.
67 The Poetics of Aristotle, above n 53, Part XIII.
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71 The Poetics of Aristotle, above n 53, Part XI.
72 Compare with Redmayne, above n 2, pp 128–129.
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77 This is not to suggest that such unfairness is more or less significant than other forms of unfairness that might arise in the context of the criminal justice process, such as instances where the state is complicit in misleading the court about the available evidence.
78 It is only fair that some good choices should shield from certain arbitrary forces; it is only fair that some bad choices should expose to certain arbitrary forces; and there is nothing unfair in accepting that luck has its say, so that sometimes good choices fail to shield and bad choices do not expose to such arbitrary forces. Justice does not demand that we do anything to alter these realities. For additional suggestions about the value of choice see Scanlon, TM What We Owe to Each Other (Harvard University Press, revised edition, 2000) pp 251–255Google Scholar.
79 I suggest this argument without losing sight of the fact that the ancient Greeks were interested in personality and fate rather than in the human power of choice.
80 Compare with Darwall's, S account of recognition respect in ‘Two kinds of respect’ (1977) 88 Ethics 36CrossRefGoogle Scholar.
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82 For presentation and analysis of the relevant mock jury studies and real trial studies see Redmayne, above n 2, pp 53–59.
83 Redmayne, above n 2, p 60.
84 Ibid, p 55, citing such findings with respect to the impact of dissimilar convictions in S Lloyd-Bostock ‘The effects on juries of hearing about the defendant's previous criminal record: a simulation study’ [2000] Criminal Law Review 734.
85 Ibid.
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87 Redmayne's proposed solution seems to reflect the assumption that the lack of knowledge with respect to prejudicial inferences is such a non-starter, that it must be set aside. See Redmayne, above n 2, chs 2 and 12.
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96 The case of a defendant who committed another comparable offence beforehand is mostly theoretical, but if proved, it is possible that this too should open the door to ‘bad character evidence’.