Character Evidence: How much should we know about someone’s past?

UPDATE 30/1/15: To celebrate the new year this blog has moved to www.learnerlawyerblog.com - find more help and an extended post there

 The BPP hosted a very swift but interesting and relevant Webinar (no idea what that means – it was an online lecture) by Mr James Welsh, Barrister.  He addressed the key question of ‘how much should we know about someone’s past’ and how much weight should it carry in proceedings.  As appears to be the norm, the question is answered with a question, but here there is also a change in practice.  Here follows a brief summary:

The Basics

When an individual is charged with an offense, the prosecution must have evidence about that offense (burden of proof) and may also know about previous behaviour and conduct.

To get character evidence admitted to trial pre-2003 was very difficult – the law is your shield against being judged on a specific incident by reference to your earlier character.  There has since been a change in culture – character evidence, as a class of evidence is inadmissible, but there are now very wide gateways for prosecutors to persuade judges to admit prior bad behaviour as part of the prosecution.

This allows a determination of two factors:

1.      The propensity of the defendant t0 a certain behaviour

2.     Credibility of the witness

At criminal trial, the behaviour of the witness leading to them having questionable credibility can be released to the jurors, but the defence are not permitted to attack prosecutors’ character quite as liberally.

The Psychology – Associative Thinking

This is the use, by an individual, of their previous experiences to identify and process current and unfamiliar situations where the two apparently seem to watch.  The brain associates the previous and new developed pathways with associated memories/emotions:

Who/What is that? -> Have I seen it do something/this before? -> Do I know of this happening to anyone I know? This is an unconscious and fast process.

The Psychology – The Jury Situation

12 jurors given a particular narrative, trying to find if they can associate what they’re hearing with their own experiences. “Is there a connection between what I am seeing/feeling to what I remember?” If they do not recognise the situation or cannot identify with it, it is harder for them to validate it. 

Jurors then discuss the matter with each other, they may educate one another with their own experiences There is a hope that some will be able to identify directly with some or all of the content of a criminal trial.

Failure of Associative Thinking in Cases - Domestic Violence

Domestic violence is a product of a spouse/person exercising power and control over the other spouse. 

If none of jurors have experienced this, are they able to pick up the significance and match what they’re hearing with the reality of how domestic violence works? Key triggers and warning signs may be missed.  In worse cases Brunaal v Pech a homicide-suicide situation could possibly have been avoided if the jury were ‘educated.’

Here, the jury could not see the defendant was potentially a murderer – he had no previous convictions.  If they did not know the triggers and risk indicators, they could not spot the factors of control that were presented, suggesting a high degree of escalation of violent behaviour.  And so it came to pass.  Magistrates and now trained on what signs to look for, and which behaviours should ring alarm bells in witness statements.  Would this be necessary for jurors in these cases, so they are able to associate and validate what they are hearing? This would be essential if the jury has not at least one individual who can associate with the case – and an inaccurate judgement might be made.

Those We Know – O. Pistorius

The trial took place in front of a Judge only, no jury. There is no guarantee that she may have experience in Domestic Violence, or indeed been trained in this area.  Things to associate with: paralympian – how does an amputee think; his partner was a supermodel – how does it feel to lose a supermodel in a relationship; how does a double amputee feel about this situation?

We as public have little to match evidence against, we don’t know what we are looking for unless trained in Domestic Violence.  As this is a murder trial, we also have only received small fragments of evidence about their relationship that would help us understand his propensity towards violence.

Failure of Associative Thinking in Cases - Paedophilia

Our minds our quite naïve – we can match very erroneously on very simplistic standards, on what we “think” a certain type of person should “look” like.  Can you tell a paedophile just by looking at them? Do we have other problems with celebrities revealed as paedophiles? Do we need to review how we deal with this? Can paedophiles get away with wearing a mask of respectability?

Cliff Richard investigated as part of Operation Yewtree: “Cliff Richard has a lot of surgery and has an obsession with looking young – a Peter Pan tendency. Associated with Michael Jackson, because there was suggestions he had tendency toward that…”

Those We Know – R. Harris

An eccentric with many trust associations for the general public, as such the defence at trial reviewed his life story – which doesn’t normally happen in criminal trial, in attempt to cement positive associations, which fell down on two factors:

1.      Propensity in a later relationship

2.     Credibility undone by a lie told by Harris during proceedings

Character Evidence Webinar 19^th November 2014