Tuesday, June 6, 2017
David A. Hamer (The University of Sydney Law School) has posted 'Tendency Evidence' and 'Coincidence Evidence' in the Criminal Trial: What's the Difference? (Critical Perspectives on the Uniform Evidence Law, Andrew Roberts and Jeremy Gans, eds, Federation Press, Australia, 2017) on SSRN. Here is the abstract:
Courts in common law jurisdictions have struggled to cope with the admissibility and use of propensity evidence and similar fact evidence for well over a century. The complexities just seem to be increasing. This is particularly the case under the Australian uniform evidence law, which deals with the evidence under two separate provisions, one for tendency evidence and one for coincidence evidence. While the admissibility requirements under the two sections are identical, the courts are increasingly placing importance on the distinction between the two types of evidence. These distinctions apply both at the admissibility stage, and at the proof stage with different judicial directions. This paper analyses the logical structure of the inferences involved and argues that, while there are some distinctions between the two, the commonalities are greater. The increasing legal complexity is unnecessary and counterproductive.