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Character Evidence

During the course of a criminal trial the prosecution may try to lead character evidence about the accused individual. For legal purposes, the word “character” refers to a generalized description of a person’s disposition, or that person’s disposition in respect of a general trait such as honesty, temperance or peacefulness. Character evidence is evidence that indicates that the defendant has acted a specific way before, for example dishonestly or violently, and asks the jury to infer that that prior behaviour allows for a  a negative inference to be drawn in respect to an accused’s character with respect to a particular trait. The jury is then asked to specifically infer that that the defendant acted in accordance with that character trait in the incident before the court.

As a general rule, courts will not allow the prosecution to lead evidence about the character of the defendant during the course of his or her criminal trial. The danger, as the court perceives it, is that the jury will use evidence of the defendant’s bad character to infer that the defendant is guilty. There is no logical connection between a person having a bad character and that same person having committed the particular crime at issue. The truth is that lots of people display negative characteristics such as anger, aggression, sexual deviance, dishonesty or selfishness but never commit crimes. However, it is human nature that a jury presented with evidence that a defendant possesses some of these characteristics may be prejudiced against the defendant. Such prejudice could cloud the jury’s judgment and cause them to enter a guilty verdict where one is unsupported by the facts. Because of this, character evidence is generally inadmissible.

There are, however, four exceptions to the rule that character evidence is inadmissible at trial.

The first exception to the rule against character evidence is that the evidence is relevant to a material issue at trial. If the evidence is relevant to a material issue then the jury is not being asked to use evidence of the defendant’s bad character to infer that the defendant is guilty. Rather, the evidence is being tendered because it does directly support another issue in the case. For example, in R. v. Merz, the accused and his wife were in a heated argument that ended with the wife being shot three times. Merz’s defence was that his son had fired the first fatal shot and that he had picked up the gun and fired the second two shots in an effort to shield his son from criminal prosecution. The prosecution maintained that Merz fired all three shots. As part of their case against him, the prosecution relied on the testimony of two witnesses who stated that the victim told them that the defendant had made death threats against her in the past. The evidence was admitted and Merz was convicted at trial. On appeal, Merz argued that the trial judge should have told the jury that they could not use evidence of the previous threats to infer that the defendant was a violent person and therefore more likely to have murdered the deceased. The judge in the appellate court found that the trial judge was correct in admitting evidence of the statements because those statements were not intended to create an inference that the accused was a bad person. Rather, the more natural and powerful inference to be made from the testimony is that the defendant had motive to kill his wife. Even though such statements may have had a secondary role as character evidence, their more significant role in the trial was to lend support to the material issue of motive and for that reason the court could admit them as an exception to the rule against character evidence.

The second exception to the rule against character evidence occurs when the accused leads good character evidence that “puts his or her character at issue”. Usually the defendant would want to refrain from putting his or her character at issue as this opens the door to allow the prosecution to tender negative character evidence. However, if the accused is of particularly good character or reputation, he or she may choose to enter character evidence to suggest either that his or her testimony is credible and reliable or to suggest that it is unlikely that he or she would have committed the crime. When the accused leads good character evidence to support either or these propositions, the court will allow the prosecution to admit negative character evidence in the interest of fairness so that the evidence is not unfairly or inaccurately skewed in favour of the accused.

The third exception to the rule against character evidence is similar act evidence. Similar act evidence is evidence that the defendant has committed a similar crime or acted similarly in the past. For example, if the defendant is on trial for rape, similar act evidence could consist of evidence that the defendant had raped women in the past using the method indicated in the evidence before the court pertaining to the case at hand. Criminal defence lawyers are very wary of similar act evidence. Practitioners will often say that the decision to admit similar act evidence is as close as a judge will usually come to usurping the role of the jury and making a decision on the outcome of the case. This is because similar act evidence is very prejudicial. The judge’s decision to admit similar act evidence will have profound repercussions on the case. If this type of evidence is admitted improperly a serious miscarriage of justice may occur.

In R. v. Handy the Supreme Court of Canada set out clear guidelines to determine when the court should admit similar act evidence. Here the court cautioned that “there being no offence of being a bad person” the criminal justice system does not “try people for who they are but for what they have done”. However, it pointed out, that principle clashes with another common sense proposition, which is that one of the best ways of determining what a person did on one occasion, is to know how he or she has acted on occasions where the circumstances were similar. The test from R. v. Handy asks the court to consider whether the evidence suggests a propensity to act a certain way with sufficient precision to make the evidence worth receiving despite its prejudicial effect. The court starts from the position that the evidence is inadmissible. The court then considers the similar act evidence. Evidence which suggests a general propensity to engage in the behaviour before the court is insufficient to admit the evidence. For example, in a rape case evidence of past sexual deviance or even past rapes would be insufficient. Specific propensity is required. To continue with the rape example, a specific repeated series of actions or a specific victim profile may be sufficiently precise to suggest the evidence should be admitted. In order to determine whether the evidence is precise enough the court will consider “the objective improbability of coincidence”. In other words, the likelihood that the similar act evidence and the evidence in the case at bar could be the same and not have been committed by the same person. For example, in a sexual assault case, the complainant states that she was drugged at a nightclub, raped and then released. The prosecution wants to admit evidence that the accused was convicted in the past of drugging a girl in a nightclub, raping her and then releasing her. This evidence would probably not meet the threshold required to admit similar act evidence because the behaviour is not particularly unique. However, if the same drug was used to subdue the victim in both cases and it was a very rare drug that was difficult to obtain, then the previous incident is more likely to be admissible. On these new facts, it is much more improbable that the connection between the similar act evidence and the facts before the court are simply a coincidence.

In addition to precision, similar act evidence must also have a high degree of probative value in order to offset the prejudicial effect it will have on the jury. In other words, the evidence must be very strong in order for the judge to admit it despite the fact that invites the jury to draw a negative inference from the accused’s history that he or she is more likely to have committed the offence.

The fourth and final exception to the rule against character evidence occurs in situations where the accused leads character evidence to suggest that a third party committed the offence. In general, when the accused and his or her criminal defence lawyer decide to point the finger at someone else using character evidence the defence invites a comparison between the accused’s character and the character of the third party. However, when the defence uses facts to point the finger to a third party, it does not open the door for the prosecution to tender character evidence about the accused. In other words, if the defence leads evidence that a third party has acted a certain way in the past and try to use that evidence to suggest that the third party committed the crime at hand, then the defendant puts his or her character at issue. However, if the accused’s criminal defence lawyer points to facts (such as the location of the crime in relation to the third party, the third party’s lack of an alibi, or the third parties proximity to the events surrounding the crime), the defendant’s character is not put at issue and the prosecution cannot lead character evidence against the accused as a result.

The rule against character evidence is an important tenant of our criminal justice system. Without the rule against character evidence, individuals would continue to be punished for past crimes or past bad behaviour indefinitely. People who have displayed bad character traits in the past or who had engaged in past criminal behaviour but have served their debt to society should not be punished by the criminal justice system for what they did in the past with new criminal sanctions. Individuals should only be punished by the criminal justice system if the prosecution can prove beyond a reasonable doubt on the facts that the defendant committed the crime at question.

Call Kostman and Pyzer, Barristers, Toronto criminal defence lawyers who will defend you aggressively and fight for your rights!

14 Jan 2010

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