Character Evidence

Chapter 8
Rules of Evidence: A Practical
Approach
 Character Evidence

Character evidence is presented to try to

establish that a person who holds certain
characteristics “acted in character”.
 Character
Character evidence is based on the premise that
people are creatures of habit and tend to repeat
the same type of actions – they tend to act “in
character”.

However, people act “out of character” as well.

 Character Evidence
What is character evidence?

Character evidence is evidence of the type of

person someone is as demonstrated by a
person’s past conduct.

It therefore encourages the trier of fact to draw

an inference from evidence of past conduct.
The Dangers of Character Evidence
You must look at the character evidence
intended for submission and speculate its
probative v. prejudicial value.

Will incorrect and unfounded conclusions be

drawn from evidence that has no real probative
value?
 Presenting Character Evidence
Character evidence is usually presented against
the accused or defendant, but can also be
presented against the complainant.

The rules that govern admission of character

evidence are largely common law.
 Presenting Character Evidence
When deciding to admit character evidence the
judge will take into consideration:
• Whether it is a civil or criminal trial
• Whom the evidence will be used against
• Whether the evidence is of good or bad
character
These are all taken into consideration to
determine the degree of potential injustice that
may flow from the misuse of the evidence.
 Character Evidence in Criminal Court

In general, at a criminal trial, the prosecution is

not permitted to introduce information about an
accused’s bad character in order to support guilt
in the present trial.

Basically all such information proves is that the

accused is capable of committing immoral acts
against others – not that he or she committed
the act in question.
 Character Evidence in Criminal Court

When presenting evidence against the accused

of past transgressions, there may appear to be
value in this knowledge. However, the
prejudicial result may far outweigh the probative
value.
There is a danger in assigning more weight to
nothing more than an assumption.
 Criminal Records and the Accused
Criminal records are not admissible in court
unless the accused testifies, than it can go to
assessing the general credibility of the accused.

The admittance of such evidence is still at the

judge’s discretion, and in most cases the judge
admits the information.
 Good Character Evidence
Presenting good character evidence does not
happen very often.

Such evidence is not very helpful because good

people do bad things and bad people can always
find someone who will vouch for their good
character.
 Good Character Evidence
Evidence of good character is restricted to the
accused’s reputation in the community rather
than specific past good deeds.

An accused can testify to his or her own good

character, but there is little value in this. Quite
the opposite, the accused character now
becomes an issue at trial and can be refuted.
 Character Evidence is Hearsay

Since reputation evidence, by its character, is

hearsay than rebuttal to reputation evidence can
also be hearsay.

This can open a floodgate. Rumours are nothing

more than hearsay.
 Similar Fact Evidence
There is some evidence that is so valuable and
convincing that to deny it as evidence because it
shows the accused in a bad light would be
unjustifiable.
If the evidence tendered is relevant to an issue
before the court and may shed light on the
question of accident or design, at the judge’s
discretion, such evidence is admissible.
 Similar Fact Evidence
The fact remains that a person charged with a
crime is not on trial for past transgressions and
should not be subject to assumptions based on
past information.

Therefore the main reason for submitting such

evidence should not be for the sole purpose of
encouraging these assumptions.
 Development of the
Similar Fact Evidence Rule
Similar fact evidence is evidence that shows that
the accused committed similar offences in the
past.

However, the fact remains that a person charged

with a crime is not on trial for past
transgressions. You must not draw an inference
that the accused is guilty just because they have
committed similar offences in the past.
 Development of the
Similar Fact Evidence Rule
It is logical to imply that the same person who
committed similar acts in the past committed
the offence in question.

However, it is not permissible for the Crown to

lead evidence that a predisposition implied on
the accused would make them more likely to
have committed the particular offence.
 Development of the
Similar Fact Evidence Rule
Therefore, it is not what the person has done in
the past that implies a nature and disposition to
do something else.

It is more the similar manner in which a person

does something that you want to present as
evidence that the same person may have
committed the similar offence.
 Development of the
Similar Fact Evidence Rule
2

3
 Development of the
Similar Fact Evidence Rule
It is very different to say:
“Similar technique and similar subjects lead me
to believe that painting #1 and #3 are done by
the same artist.”
As opposed to:
“The person who painted picture #1 is an artist
and therefore it is likely that he painted #2 and
#3.”
 Similar Fact Evidence
Rule for Admission
You start with the premise that similar fact evidence is initially
inadmissible.

To admit the evidence you must:

First, show the evidence and inference to be relevant.

Next, it must be shown that there is a far greater probative

value than prejudicial value in admitting the evidence, and that
it is not being admitted to merely show that the accused has
committed prior offences, thus should be seen in a bad light.
 Similar Fact Evidence
Rule for Admission
Finally, there must be evidence of similarity between
prior offences and the present offence.

Again, it is not enough just to show that similar

offences took place, you must show a distinctive
attribute that links the offences together.

Another factor to consider is the proximity of time. The

closer the proximity the more likely the same offender
may have done it.
 How Similar is Similar?
Similar fact evidence put forth by the Crown must
be evaluated to determine how similar the acts are
to one another.

The court will look for unique characteristics of the

acts. A “fingerprint” that shows “striking similarity”

The greater the similarity the more likely the

evidence will be admitted.
Assessing the Degree of Prejudice in Similar
Fact Evidence

There are two types of prejudice that can result

in the admission of similar fact evidence

Moral Prejudice and Reasoning Prejudice

Assessing the Degree of Prejudice in Similar
Fact Evidence

Moral Prejudice
Moral prejudice results when the evidence of
bad character shows the accused in a bad light,
as a morally bad person, and leads to the fact
finder inferring guilt.
Assessing the Degree of Prejudice in Similar
Fact Evidence

Reasoning Prejudice
Reasoning prejudice applies to evidence that, if
admitted, may confuse and distract the trier of
fact from the issues it must decide.
Assessing the Degree of Prejudice in Similar
Fact Evidence

Reasoning Prejudice
Reasoning prejudice can also result in the trier
of fact mistakenly mixing and weighing the facts
of the present case with the facts of the similar
case.
Prior Acquittals and Similar Fact Evidence

An acquittal or stay of proceedings makes similar

fact evidence of these proceedings off-limits in
future prosecutions.
 Character Evidence and Evidence of
Propensity
Character evidence and evidence of propensity
are two different things

Character evidence is evidence of the type of

person someone is as demonstrated by the
person’s past conduct.

Propensity evidence is proof of a person’s

psychiatric tendencies, as provided by an expert.
 Propensity Evidence
Propensity evidence can be highly prejudicial and
therefore a judge will be very careful with its
admittance.

This is because it is very dangerous to conclude that an

individual acted a certain way simply because of a
psychological disposition.

Such evidence would only be admitted if its probative

value far outweighed its extreme prejudice.
 Character Evidence and the
Co-Accused Person
Evidence law allows a co-accused to present evidence of bad
character against the other defendant – basically as a way of
passing blame.

However, this can backfire as it will put that co-accused’s

character at issue and therefore open for attack by the other
defendant or the Crown.

In any event, both defendants will look bad and may become
indistinguishable from one another, thus making the Crown’s
job more difficult.
 Character Evidence and
Prior Convictions in Civil Matters

Character evidence is rarely led in civil cases and

is usually not admissible.

Evidence of a party’s character is admissible if

that party’s character is an issue at trial, such as
in a defamation case.
 Character Evidence and
Prior Convictions in Civil Matters
A victim may press charges against a person in
criminal court and sue the same person in civil
court.
If the accused is convicted in criminal court,
evidence of the conviction can be brought in to
support the civil claim.
 Testimony and Credibility of
Third Parties
It is assumed that a third party witness is
credible and of generally acceptable character.

No evidence is required to establish this. A few

simple questions introducing the witness and
putting him or her in context with respect to the
case is all that is required.
 Testimony and Credibility of
Third Parties
In a criminal trial, witnesses are not entitled to the same
protection against character attacks as the accused.
A third-party’s character can be attacked as long as the
questions asked are relevant to the case.

Watch the following clips:

http://
www.youtube.com/watch?v=X4GrQa2ev7s&feature=rela
ted
and http://
www.youtube.com/watch?v=N83sK6Uc5aA&feature=rel
ated
 Third-Party Character Evidence in Sexual
Assault Cases

Often the Defence in a sexual assault trial will

call third-party evidence to attack the credibility
of the victim.

However the rape shield provision in the

Canadian Criminal Code prohibits this.
 Third-Party Character Evidence in Sexual
Assault Cases
Criminal Code s. 276. (1)
In proceedings in respect of an offence under section 151,
152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
section 170, 171, 172, 173, 271, 272 or 273, evidence that
the complainant has engaged in sexual activity, whether with
the accused or with any other person, is not admissible to
support an inference that, by reason of the sexual nature of
that activity, the complainant
• (a) is more likely to have consented to the sexual activity
that forms the subject-matter of the charge; or
• (b) is less worthy of belief.
 Third-Party Character Evidence in Sexual
Assault Cases
Criminal Code s. 277.
In proceedings in respect of an offence under
section 151, 152, 153, 153.1, 155 or 159,
subsection 160(2) or (3) or section 170, 171,
172, 173, 271, 272 or 273, evidence of sexual
reputation, whether general or specific, is not
admissible for the purpose of challenging or
supporting the credibility of the complainant
 Third-Party Character Evidence in Sexual
Assault Cases

A complainant can be questioned about prior

sexual history. However, the onus is on the
accused to convince the judge that such
questions are relevant to a legitimate issue for
the defence and not just a way to discredit and
encourage assumptions regarding sexual
experience and consent.
 In Conclusion
The word “character” can be defined in many different
ways:
•The combination of qualities or features that
distinguishes one person, group, or thing from another.
See synonyms at disposition.
•A distinguishing feature or attribute, as of an
individual, group, or category. See synonyms at quality.
•Genetics. A structure, function, or attribute
determined by a gene or group of genes.
•Moral or ethical strength.
•A description of a person's attributes, traits, or abilities.
 In Conclusion
As a result, establishing a person’s character can
be done in many different ways and can have
many different results.

The court, therefore, is very careful when both

admitting and then weighing evidence of a
person’s character.
Class is over!