Thursday, May 17, 2012
Christine Chambers Goodman (Pepperdine University School of Law) has posted The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act (University of Miami Law Review, Vol. 66, 2011) on SSRN. Here is the abstract:
Character evidence has long been a subject of hearty debate. It is common sense to seek information about a person's past behavior and about others' impressions of a person about whom we are trying to make a decision. Jurors in criminal cases feel the same way, and in close cases, common sense tells them to consider the defendant's prior behavior, and the opinions and impressions of those who know the defendant outside of court.
The English Common Law and the codification of evidence law into United Kingdom and United States statutes have long sought to protect us from ourselves by prohibiting jurors from hearing character evidence to prove conduct in conformity with that character. Legislators recognize that while past conduct and impressions are useful information for decision-makers, presenting the evidence can be unfair to those on trial because the jurors may convict a person based on his past behavior, rather than on his current conduct. For this reason, the rules of evidence in many jurisdictions prevent jurors from using this information to help them decide the crucial issue of guilt or innocence.
In 2003, the United Kingdom took the bold step of abolishing the common law rules on bad character evidence and started anew with sections 98 through 111 of the 2003 Criminal Justice Act (CJA). The 2003 CJA makes the 180-degree shift from a general exclusion of character evidence to prove propensity to a more inclusionary alternative - one that provides numerous paths for admitting bad character evidence. These paths are called “gateways,” and the gateways are quite wide - they provide prosecutors the opportunity to offer bad character evidence about the defendant in criminal trials and permit broad latitude in the jurors’ consideration of bad character evidence.
This article begins with a brief historical primer on the character evidence rules that apply to criminal defendants in the United States and the United Kingdom. Part One summarizes the evolution of the rules limiting the use of bad character evidence about criminal defendants at trial. Part Two of this article explains the specific requirements of each gateway of the UK's 2003 CJA, and uses recent case authorities to illustrate the application of each gateway. Next, Part Three compares and contrasts the admissibility of character evidence through each gateway with its admissibility under the corresponding Federal Rule(s) of Evidence. Part Four analyzes and evaluates four major distinctions between the 2003 CJA in the United Kingdom and the FRE in the United States and makes recommendations for reform.