FORBIDDEN REASONING PERMISSIBLE: SIMILAR FACT EVIDENCE A DECADE AFTER BOARDMAN
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00824.x |
| Published date | 01 January 1985 |
| Author | P. B. Carter |
| Date | 01 January 1985 |
FORBIDDEN REASONING PERMISSIBLE:
SIMILAR FACT EVIDENCE A DECADE AFTER
BOARDMAN
IN
R.
v.
Boardman’
Lord Hailsham of St. Marylebone said, of the
rule under which similar fact evidence may be excluded, “what is
not
to be admitted is a chain of reasoning and not necessarily a
state of facts.”* The rationale of exclusion lies not in the intrinsic
nature of similar fact evidence but in the risk that resort will be
had by the trier of fact to a form of reasoning which is suspect
because (when the evidence is tendered on behalf of the prosecution
in a criminal case) it is liable to be dangerously prejudicial to the
accused. Evidence, which tends to show that an accused has on
other occasions behaved in a way similar to that in which it is
alleged that he behaved on the occasion which is the subject
matter
of
the charge, is not unacceptably prejudicial
per
se.
Its
reception will, however, often in fact be prejudicial on identifiable
grounds and in an identifiable way: it will be liable to induce in the
minds of the triers of fact-the jurors or magistrates-a particular
chain of reasoning which rests on an all too readily made
assumption that the accused is unlikely to have changed his habits.
The fact that he is shown to have behaved in a certain way on
other occasions suggests that he has a tendency or propensity to
behave in that way; it
is
assumed to be a continuing tendency or
propensity; and this in its turn tends to show that he did in fact
behave in that way on the occasion to which the charge relates.
The focal point
of
prejudice is the inherent reluctance or inability
of the trier
of
fact to have due regard to the possibility that the
accused has mended his ways, or to the fact that in any event most
criminal propensities manifest themselves only intermittently.
It is important not to regard the “forbidden type of rea~oning”~
as a mental process that a logician would necessarily treat as
worthy of the name reasoning: it is the “reasoning” in which the
trier of fact is nevertheless thought to be liable to indulge. The
danger to be guarded against is not what a juror or magistrate
might rationally do but rather what he or she is thought to be in
actuality likely to do. The only useful enquiry involves not simply
an exercise in logic but more centrally an assessment of likely
emotional reactions and thought patterns on the part of average
jurors and average magistrates. This crucial distinction is occasionally
but dimly perceived by judges and is often totally disregarded by
academic logicians manauks.
[1975]
A.C.
421.
Ibid.
453.
Ibid.
per
Lord
Hailsham
at
p.453.
29
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