The legal structure of propensity evidence

AuthorDavid Hamer
DOI10.1177/1365712716628540
Published date01 April 2016
Date01 April 2016
Subject MatterArticles
Article
The legal structure
of propensity evidence
David Hamer
University of Sydney, Australia
Abstract
The law excluding and admitting evidence of defendants’ other misconduct has long been
regarded as overly complex across the common law world. Various reforms have been tried
through case law and legislation but without bringing noticeable improvement. In this paper
I have sought to identify and understand the sources of complexity through structural analysis.
The article provides a close examination of different forms of the exclusionary rule and admissi-
bility tests, the laws’ policy goals, the regulated inferences and the relationship between these
variousthings. The analysisprovides neither a neatpicture of the law nor a recipefor simplification.
Instead it offers a greater understanding of the forces operating onthe law, the various forms the
law may take and their functionality. Propensity evidence occupies complex heterogeneous
terrain, but landmarks, signposts and pathways for reform can be discerned.
Keywords
bad character, coincidence, doctrine of chances, evidence, propensity, proof, tendency
Introduction
At common law evidence of a defendant’s other misconduct—sometimes known as similar fact evi-
dence
1
or propensity evidence
2
—is subject to exclusion, but may gain admission in certain exceptional
cases. The evidence is thought to threaten factual accuracy, efficiency and liberal values. The exclu-
sionary rule has been described as ‘fundamental’; ‘one of the most deeply rooted and jealously guarded
principles of our criminal law’.
3
At the end of the 19th century in Makin vAttorney-General for New South Wales
4
Lord Herschell
suggested that ‘[t]he statement of the ...general principles [governing exclusion and admission] is easy,
Corresponding author:
David Hamer, University of Sydney, Sydney, New South Wales 2006, Australia.
Email: david.hamer@sydney.edu.au
1. RvHandy [2002] 2 SCR 908 [55].
2. Evidence Act 2006 (NZ) (EA) section 40(1).
3. Maxwell vDPP [1935] AC 309, 320, 317; see also Pfennig vThe Queen (1995) 182 CLR 461 at 512 (McHugh J).
4. Makin vA-G for NSW [1894] AC 57.
The International Journalof
Evidence & Proof
2016, Vol. 20(2) 136–161
ªThe Author(s) 2016
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DOI: 10.1177/1365712716628540
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but it is obvious that it may often be very difficult to draw the line and to decide whethera particular piece
of evidence is on the one side or the other’.
5
He was certainly right about the difficulty of application,but
the problem is greater than that. Contrary to Lord Herschell’s claim, the difficulties in this area extend to
the statement of principle. His oft-quoted statement, discussed ahead in this article,
6
is anything but clear.
The difficulties have proven remarkably stubborn. Midway through the last century the law was
described as being of ‘apparently insoluble difficulty’ (Cowen and Carter, 1956: 106). In 1975 in
DPP vBoardman
7
Lord Hailsham described it as a ‘pitted battlefield’. England brought radical
reform to the law in the Criminal Justice Act 2003 (CJA), making propensity evidence presumptively
admissible and subject to discretionary exclusion. However, this failed to make the law more com-
prehensible. On the contrary, Roberts and Zuckerman (2010: 658) suggest that the law’s technicality
and capacity to generate appeals has been ‘greatly amplified’. And England’s experience is far from
unique. Common law jurisdictions over the decades have diverged significantly in their treatment of
other-misconduct evidence but none have achieved clarity or simplicity. In 2001 Chris Sanchirico
described the United States (US) law of bad character as ‘the most derogated, legislated, and litigated
aspect of evidence law’ (Sanchirico 2001: 1231; Imwinkelreid 2006: 433). And the Victorian Court
of Appeal recently described the relevant principles of the Australian Uniform Evidence Law (UEL)
as ‘exceedingly complex and extraordinarily difficult to apply’.
8
The rich complexityof this area of law provided fertile groundfor Mike Redmayne’s conceptual acuity
and crystallineanalysis, particularlyin his final book (Redmayne,2015). This articlebuilds on Redmayne’s
work. The majorstructural principlesgoverning exclusion andadmission are identified,with reference also
to the policy goals served by the law, and the structure of the inferences that are being governed.
9
This
analysisis based upon a survey of the law of a number of commonlaw jurisdictions: Australia,US, England,
New Zealand and Canada. This approach necessarily involves a degree of abstraction and gloss, but it
enables areas of complexity, ambiguity and uncertaintyto be clearly identified and contextualised.
Policy objectives—accuracy, efficiency and morality
A significant source of legal complexity is the diversity of concerns that evidence of a defendant’s other
misconduct gives rise to.
While there has long been an appreciation that other-misconduct evidence can carry real epistemic
value,
10
it has commonly been said to pose two kinds of epistemic risk, ‘reasoning prejudice’ and ‘moral
prejudice’,
11
also known by the terms ‘inferential error prejudice’ and ‘nullification prejudice’ (Leonard,
1998: 1184; Park, 1998: 720; Ho, 2008: 289). One kind of reasoning prejudice is where the jury gives too
much weight to the inference that, because the defendant has committed other misconduct, he has a
propensity for this kind of misconduct, and must be guilty of the charged misconduct.
12
A second kind of
reasoning prejudice is where the jury becomes confused and treats evidence of the defendant’s other
misconduct as though it were evidence of the charged offence.
13
By contrast, moral prejudice does not
5. Ibid at 65.
6. See sections ‘Narrow and broad versions of the exclusionary rule’ and ‘Admission by category and degree’. See also nn. 26
and 84.
7. DPP vBoardman [1975] AC 421 at 445.
8. Velkoski vThe Queen [2014] VSCA 121 [33]. The court added, implausibly, that ‘until comparatively recently, the principles
to be applied when considering the admissibility of similar fact evidence were regarded as reasonably well-settled, and capable
of straightforward application’: ibid [40].
9. This article examines ‘structure’ in the sense of ‘the arrangement of and relations between the parts or elements of something
complex’ (OED).
10. For example, Boardman, n. 7 at 456.
11. For example, Handy, n. 1 at [31]; Palmer (1994: 169, 171); see generally Roberts and Zuckerman (2010: 590–595).
12. Boardman, n. 7 at 456; Pfennig, n. 3 at 478, 488; Cowen and Carter (1956: 120, 145).
13. Handy, n. 1 at [31]; Cowen and Carter (1956: 145).
Hamer 137

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