OnPoint by Keith Ng

Legal Beagle

When are prior convictions inadmissible as evidence? All the time, apparently. I talk to a lawyer about when and why such evidence gets suppressed. Sorry this intro is a bit terse and without context, but, you know.

[Yes - this is a new blog! It's a rebranding that's representative of a new approach, but rather than a lengthy explanation (which is forthcoming), I figured it's probably better to do first and talk about it later. That, and two of the interviews I had organised for the original post fell through. And I broke my phone while trying to MacGuyver it to my dictaphone. Then I broke it again. With a hammer, just to be sure.]

Under what circumstances are prior convictions inadmissible as evidence?

Evidence of prior bad acts, whether they resulted in conviction or not, are generally inadmissible. Your average jury will never get to hear about a defendant's list of previous convictions, no matter how long it may be.

Does the prosecution generally try to get prior convictions admitted?

I don't have detailed statistics, but the prosecution would hardly ever seek to have such evidence admitted. The likelihood that they are going to win any application to have such evidence admitted is very low.

There are two basic situations when the prosecution will seek to adduce evidence relating to a defendants prior actions.

First, the more likely of the options, is when a defendant gives evidence on their own behalf (which most don't). If a defendant is giving evidence and says, 'I'm a good person, I'd never burgle someone's home' and the prosecution know he's got previous convictions for burglary, they're then allowed to question him about it.

If a defendant chooses to put his good character into evidence, then the prosecution can put his bad character into evidence to even things out. Knowledge of this is a major reason why defendants rarely give evidence on their own behalf.

The second situation would be substantially rarer. In situations where the defendant is charged with [offending that] is strikingly similar to [something that] the offender has been convicted [of], the prosecution can apply to the court to be able to admit it. A classic example of such a striking similarity is the English case of Boardman - an accused charged with a burglary in which the offender left at the scene an esoteric symbol written in lipstick on a mirror and it can be shown that in all the accused’s prior burglaries he had left the same marking.

(Heh heh, dumbass.) So what does the prosecution need to prove to be able to admit prior convictions in circumstances like this?

It's not really a question of proof. The judge obviously has to be satisfied that an accused actually committed the earlier acts, but this usually won't be too difficult (if there are convictions this won't be a problem), and the judge will have to consider that the earlier acts and the offending currently charged are 'strikingly similar', but that's not the end of it.

Even if these things can be shown, this isn't enough to allow the evidence in, a judge really has to question - 'what does this add to the prosecution case?' and they have to balance that with 'and how will this impact on the defendant's right to a fair trial?'.

The question a judge grapples with, not just when deciding whether to allow similar fact evidence but all sorts of evidential questions, is 'does the probative value of this evidence outweigh its prejudicial effect?'

Isn't that the same as 'is this good or bad for the defendant?'

The prejudice is really prejudice to the right of a defendant to a fair trial. Of course evidence that a defendant is a bad person will harm them, or that they have a long list of criminal convictions. But it doesn't really prove all that much.

Everyone has the right to be tried fairly, and part of that right means being able to defend yourself against evidence that you committed that particular charge alleged.

But how is something that's 'prejudicial' different from something that's just plain damning?

Just because you've murdered someone in the past doesn't mean you've done it again. Knowing that you've murdered someone in the past really shouldn't help someone decide whether you've murdered someone again.

But, the fear is that a jury isn't going to look at it like that.

They might decide, 'this person has murdered before, so they must have done it again.' Or, 'this person has murdered before, so we don't care whether they've done it again. They're a criminal and should probably have got longer last time.'

But if you're charged with murder, or anything else, you are entitled to an acquittal if the prosecution can't prove it beyond reasonable doubt.

But doesn't it mean that the jury doesn't get "the full picture", especially if the character of the defendant is a big part of the case?

Well, yes it does. Juries miss out on all sorts of 'evidence' - some of it which the prosecution isn't allowed to adduce, and some that the defence isn't allowed to adduce. Decisions about what a jury can or cannot hear are mostly designed to ensure that everyone gets a fair trial.

Everyone is entitled to be presumed innocent. And if we started allowing evidence of previous bad acts to be introduced in every trial, then this right would be diminished. Maybe a defendant has turned their life around. Maybe they haven't, but just didn't do this particular burglary, whatever.

The fear is that if a jury hears that a defendant has a long rap sheet, and maybe dozens of previous burglary convictions they're not going to get a fair trial this time. Their past record might mean the jury aren't deciding the question of guilt or innocence of the charge they're hearing, but whether they're a nice person.