Lady Justitia
crime scene
Exclusionary Evidence

“Should the criminal go free because the constable has blundered?”
Judge Benjamin Cardoza People v Defore (1926)

“The fundamental problem with English law is that you can have all these rules for concealing evidence, and you can  have all this intellectual dishonesty that goes on in the courts, and the stupefying unreality of what goes on in courts.”
Evan Whitton author of the Cartel: Lawyers and their Nine Magic Tricks1

“[the exclusionary rule] rests on the absurd proposition that a law enforcement error, no matter how technical, can be used to justify throwing an entire case out of court, no matter how guilty the defendant, or how heinous the crime. ...the criminal goes free, the officer receives no effective reprimand, and the only ones who really suffer are the people of the community.”
Ronald Wilson Reagan2

“Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of particular pieces of evidence offered for specific purposes.”
“Epistime, 2008” Encyclopedia Britannica Online

All Exclusionary Evidence

Exclusionary3 evidence (for lack of a better name) is evidence which, by law, is not allowed in a criminal prosecution even though there may be no claims against its authenticity. Ie. There would be no reason to believe the witness is lying or that the physical evidence is artificial or otherwise misleading.gavel1 copy

Some examples would be:

  • Hearsay
    • Second hand testimony heard from another party who is no longer available to attend court.
  • Opinion
    • An opinion on actions performed relevant to the case at hand made by a non-expert.
  • Evidence deemed irrelevant
  • Privilege
    • Evidence given by a lawyer incriminating his/her client.
    • Evidence forced to be given by a Priest received in confession by a penitent.
    • Evidence forced to be given by a witness incriminating his/her spouse.
    • Evidence forced to be given by a child incriminating his/her parent if crime was not of a serious nature.
  • Disposition and Character
    • Evidence, including the conclusions of either criminal or civil proceedings, not directly connected to the case at hand, but implying or declaring the accused has a less than favourable character. (This however can be introduced in response to positive character evidence introduced by the defence.)
  • Public interest
    • State secrets
    • Evidence which has been obtained illegally or improperly.
    • ‘Fruit of the Poisoned Tree’ evidence – evidence which has itself been obtained legally but the information to lead to such discovery was obtained illegally or improperly.
  • Prejudicial Evidence
    • Evidence which of itself is otherwise legal but is deemed by the court that its prejudicial effects would outweigh its probative value. Ie. The evidence would be relevant to the case but the court (the judge) has decided that the jury would not be intelligent enough to grant it its proportionate value but instead would estimate it to be more incriminating than the alleged correct estimation of the court.

From this list there are certainly some categories that many would think are justifiable.

  • Someone who is not a proven expert should not be allowed to give an opinion that would not be based on sufficient acquired knowledge.
  • Privilege
    • ‘without prejudice’ privilege- what is said between parties in attempting to negotiate a settlement cannot be used against either party back in court.
    • marital privilege- protecting conjugal confidences
    • clergy and communicant privilege
    • doctor and patient privilege
  • State secrets
  • Confessions made under duress.

 

However that still leaves numerous categories of evidence, which, when excluded, works against the original ‘the truth will out’ principle traditionally utilized for any important public hearing, especially one held to prosecute crime for the worthy goals of maintaining law and order.

Glossary

  • Direct evidence
    • Evidence based on personal knowledge or observation that, if true proves a fact.  Eg witness testimony, video or audio recording of the crime, DNA evidence.
  • Circumstantial evidence
    • Indirect Evidence that creates, through reasoning, an inference that a particular fact exists. Eg the lack of an alibi at a time when the accused would normally have one; inability to reasonably explain the possession of a large amount of money, a working knowledge of the type of weapon that the victim died from.
  • Corroborating evidence
    • Supplementary evidence that tends to strengthen or confirm the initial evidence
  • Demonstrative evidence
    • Physical evidence that can be seen and inspected
  • Forensic evidence
    • Evidence collected and studied through the use of sciences and other specialised knowledge such as biology, chemistry

 

Exclusionary Rules of a Questionable Nature

 Do Felons Have Rights?

All citizens in Australia are not guaranteed all civil rights for life. This is not the comment of a conspiracy theorist but a simple statement of fact. When one is convicted in court for a crime the sentence is often a monetary fine or imprisonment. In either case the felon will lose some of his or her fundamental human rights: that of either the right to property or the right to freedom of movement.
Thus if a murderer’s sentence is that he is denied his right to freedom of movement, association, privacy and whatever else for twenty years, does it really matter that much that he also suffered an illegal search of his dwellings or car for two hours one day when he was at work? 

For those pedants who will say: “Well, yes.”, then fine; allow the court to take three months off his sentence to make up for the deprivation of his/her fundamental human rights to privacy.
It certainly does however, seem a bit of overkill that, to account for the state violating one’s privacy, one is then given a free pass for having committed murder.

 

Evidence Obtained Illegally or Improperly

Sometimes known as the ‘disciplinary principle’, the reason given to deny this type of evidence is that it will discourage improper police methods. The improper police methods referred to are those which violate every citizen’s civil rights to privacy; to quote a certain constitution: “…to be secure in their persons, houses, papers and effects against unreasonable searches and seizures…”

Questions about this manner chosen to defend our liberties:

Isn’t there a lot of overkill involved?

Yes, it is important that we retain our privacy with regards to our persons and our homes, but should it be at the cost of letting the most heinous wrongdoers amongst us walk free? As an analogy, drink driving is a scourge of our roads that causes the deaths and maiming of many innocent people, however would that justify us instituting capital punishment for those drivers caught over the alcohol limit? Surely there can be lesser disciplinary actions that would still prevent those in authority from abusing their powers?

What Comeback do the Innocent Have?

If through carelessness the police fail to obtain the correct address for a search warrant and a law abiding family have to needlessly suffer the disruption of a top to bottom house search, or if police intentionally stop and inspect a vehicle without due cause but merely for the sake of harassing the driver they may feel prejudiced against, then as the victims have committed no crime that they can be given immunity for, what options for redress are open to them?  This is something that is not common knowledge. It is probable that if one in such a situation should retain legal counsel at whatever price, they would be told that they could bring an action against the police and hopefully gain damages above the cost of their legal fees.

How things should be 

Would not a simpler and much more justice orientated solution to this problem of controlling police behaviour be that anyone who has had his rights violated due to illegal police action, could summarily receive from the police department (perhaps with the individual officer responsible paying a share) damages according to a pre-set scale? (A search without a warrant could be at the higher end of the scale while one done with warrant but exceeding the warrant’s parameters would be at the lower.) Over time the scale could be raised or lowered in accordance with the rate of violations still occurring. The general public would probably have little complaint about a convicted rapist murderer receiving $10,000 in compensation for an illegal search, if they knew he had still been justly convicted and sentenced for his ghastly crime.

 

Disposition and Character Evidence

Some legal commentators have stated that character evidence (criminal record, etc.) should not be allowed in court because it is simply irrelevant.

“As a general rule evidence of any prior convictions of the accused is not admissible. This ensures the jury judges the case on its merits without prejudging the accused on a previous record.4”  

 Of course, this is patently ridiculous.

“[T]he reason for this general rule [excluding character evidence] is not that the law regards such evidence as inherently irrelevant, but that ...”8    Lord Cross of Chelsea, in DPP v Boardman, 1975

People should be judged by their conformity, their honesty, their inhibitions or their lack thereof. To commit a crime one needs opportunity, ability, motive and one more very important factor: a lack of inhibition to break the law. We are not all of the type to take advantage, at the expense of the innocent, of any situation that may unexpectantly arise. That is the reason lost untraceable but valuable property is occasionally handed in to police stations; why potential victims in vulnerable situations are not taken advantage of. If an accused has instances of honesty or dishonesty in his or her history then even though it obviously is not direct evidence conclusive of innocence or guilt5, it is nonetheless relevant:  something to be added to other direct or circumstantial evidence presented to aid the jury to coming to their final conclusion.

Circumstantial versus Direct

One tactic often used to discredit character evidence is to claim that a previous conviction does not mean that the accused must have done it this time.the straw man argument

“One of the most obvious dangers, and one which varies in degree depending on the facts, is that the fact-finder will erroneously conclude that because a person has a tendency to behave or think in a particular manner, he or she must have acted or thought in the same or similar manner on the occasion which is the subject of the proceeding.5”  (emphasis added)

This is quite true. It does not mean that the accused must have done it. It does however mean that there is a higher likelihood than normal that the accused did it. This is precisely the difference between direct and circumstantial evidence. Defenders of the law, using what is known as the ‘straw man’ argument,  claim that as character is not direct evidence it should thus be thrown out. The fact is however, no one claims it is direct evidence; it is merely circumstantial evidence, and as such should be allowed in.

 

Questions for a believer in the status quo

 A.  To quote a legal textbook:

 “If for example the prior acts of a party show that person to possess a moral conviction to act fairly at all times one would expect that party to give truthful evidence and also one would doubt such a person would act so as to mislead…”6

Is the law so blatantly hypocritical that evidence of good character is relevant but bad character not? Of course it is true that good character should be given more weight than bad character. Someone who has handed in lost valuables would in probability not at a later date commit theft, but there may be a number of reasons why someone who has stolen before, still decides not to steal at a later opportunity: he did not in fact recognise the opportunity; he suspected the opportunity was police entrapment; he had other things on his mind. However despite that, the fact remains that one with no inhibitions against committing a crime is more likely to do so than the average person, and this, therefore, is relevant.

B.  If a person’s past is irrelevant to how they act in the future then why is it that:

  • In Victoria a person is disqualified from becoming or remaining as a local government councillor if they have been convicted of an offence committed when they were 18 or more years of age which is punishable upon first conviction for a term of imprisonment of 5 years or more anywhere in Australia. The disqualification lasts for seven years. (Section 28, Local Government Act 1989 Vic)
  • The Commonwealth Constitution states that persons convicted of offences which are punishable by one year of imprisonment or longer cannot hold a seat in Federal Parliament. (S44(ii))
  • People who within the last five to ten years have been imprisoned are automatically barred from jury service9.
  • Australians wishing a UK visa for more than six months will be automatically barred if they have spent more than 6 months in jail within the last 10 years9.

C.  Why do Civil law countries such as France give juries the criminal history of the accused?

“My reading suggests that even those comparative lawyers who are critical of the French criminal law do accept that French courts are fair, and that the verdict reached is generally accurate.” Justice James Burchett, Australian Federal Court, 199612

D.   Why is criminal propensity (sometimes described in statute as “tendency”) allowed to be presented against an alleged wrong doer in Australian civil courts when one party, for example, may be suing another party for assault? Section 101 (1) Commonwealth Evidence Act 1995.

 

Patrick Cook

The issue of admitting criminal history is debated at the International Debate Education Association on the web at http://www.idebate.org/debatabase/topic_details.php?topicID=204.    The following contemporary quotes from a judge and an academic show that there definitely is belief in the relevance of criminal history.

“The courts have traditionally viewed with great suspicion any attempt to use character or dispositional evidence for this purpose [proving guilt]. In so doing, the courts are not suggesting that the accused’s behaviour on other occasions is not relevant to the facts in issue, but rather ……”7 
“[T]he reason for this general rule [excluding character evidence] is not that the law regards such evidence as inherently irrelevant but that it is believed that if it were generally admitted jurors would in many cases think that it was more relevant that it was, so that, as it is put, its prejudicial effect would outweigh its probative value.”8 

 

Prejudicial Evidence

The law, as we all know, recognises a judicial discretion to exclude admissible evidence on the basis that its prejudicial effect outweighs its probative value. The rule is described as the “Christie exclusion” from the case R v Christie [1904] AC 545.”10

This is the famous, or infamous, legal concept recognized in common law jurisdictions where valid evidence can be excluded if the judge believes the jury are not as intelligent as he or she is to be able to take evidence of similar facts or bad behaviour into its correct context. We are to believe that not just some members, but the majority of a jury are hot-under-the-collar rednecks who will lose all reason and become inflamed at certain possibly incriminating evidence. 

Perry v R (1982) 44 ALR

In 1982 a Mrs Emily Perry was tried and convicted of attempting to murder her husband by poison. The prosecution evidence against Perry was not only that her husband suffered arsenic and lead poisoning while living with her and that she was the beneficiary of a number of insurance policies on him, but more significantly, over the previous eighteen years three other people who had lived with Perry had also died from ingesting harmful substances, two from poison and one form an overdose of barbiturates.  The deaths of two financially benefited Perry.

The conviction was appealed to the Australian High Court on the grounds that the evidence of the three deaths should not have been allowed in court. The decision of the court was far from unanimous, with some judges declaring that evidence of the non-poison and the non-financial benefiting deaths should not have been allowed. Justice Lionel Murphy, the only High Court judge to be tried for perverting the course of justice, held that all the evidence should have been excluded. The appeal was subsequently allowed and Emily Perry was freed.

One’s immediate reaction to becoming aware of this case, might be to hope that to celebrate her release, Mrs Perry took Lionel Murphy home to dinner, but after first arranging to take out a substantial insurance policy on his life.

Reasons

Various reasons have been put forward by judges and academics to defend this practice of excluding evidence when no other avenue is available.

  • One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence ( Perry v R (1982) per Murphy J; Reg. v. Boardman (1975) AC per Lord Hailsham;
  • Another is that tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct (89  Cowen and Carter, Essays on the Law of Evidence, (1956) at 144-145; Imwinkelried, "The Use Of Evidence Of An Accused's Uncharged Misconduct To Prove Mens Rea:  The Doctrines which Threaten to Engulf the Character Evidence Prohibition", (1990) 51 Ohio State Law Journal 575 at 581-582; Ligertwood, Australian Evidence, 2nd ed (1993) at 81-82; Palmer, "The Scope of the Similar Fact Rule", (1994) 16 Adelaide Law Review 161 at 169) . 
  • Similarly, "(c)ommon assumptions about improbability of sequences are often wrong" (90  Perry (1982) 150 CLR at 594 per Murphy J), and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association "is unlikely to be innocent" (91  ibid) . 
  • Another reason for excluding the evidence is that in many cases the facts of the other misconduct may cause a jury to be biased against the accused (92  R. v. Bond (1906) 2 KB 389 at 398 per Kennedy J; Piragoff, op.cit. at 4-5; Cross on Evidence, 2nd Aust. ed. (1991) at par.21145; Ligertwood, op.cit. at 81) .  In the present case, for example, once the evidence was admitted, it would require a superhuman effort by the jury to regard the appellant as other than a person of depraved character whose uncorroborated evidence, whether or not he was guilty, could not be acted upon except where it supported the prosecution case.

 

Responses to Comments about Exclusionary Evidence

Allowing the accused’s criminal history to be introduced would undermine the presumption of innocence.

  • At the very beginning of a trial effort is made to pick a jury who so far have no preconceptions about the accused. This is what the presumption of innocence means. It is ridiculous to declare that the presumption should always remain after the prosecution is allowed to introduce evidence. This is the very essence of what the prosecution attempts to do: slowly convince the jury that, with the introduction of various evidence, its members should presume the accused is guilty. If evidence is invalid, such as non-expert evidence, then it should be denied because it is amateurish and has no authority, not because it undermines the presumption of innocence.

Juries tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct.

  • Really! And just how do you know that?
    One wonders how anyone could possibly obtain empirical evidence of this. Researchers, or any other scholars, are never allowed into the jury room.  Besides, just who is to say what is the correct degree of correlation between past and future behaviour for any specific felon? One of the great virtues of a jury is that there can be up to twelve opinions on any piece of evidence. Some jurors may even believe, like unfortunately too many judges, that the accused’s very long history of similar crimes has absolutely no relevance upon the matter at hand. The jurors can then bring their combined life experiences to bear to debate the issue and hopefully come to a common decision. 
    As legal commentator Evan Whitton so astutely noted in his book The Cartel: Lawyers and their Nine Magic Tricks, when well known New York mobster John Gotti was criminally prosecuted in 1990, the jury was given ample evidence, though wiretaps, of his criminal connections and general operations but nothing actually specific about the crime he was charged with. As the foreman later said (jurors in the United States are allowed to speak publicly after the trial) “I have to admit that voting ‘not guilty’ was a very unpleasant result for me. I felt truly that he was guilty as hell but I have to admit that the evidence just didn’t hold up.”11

If a jury hears of an accused’s three previous convictions for rape they may develop a hatred of him and simply convict him for his past crimes immaterial of what they think about the current charge.

  • If a person has served fifteen years for a crime then even if you might not want to associate with them surely all the hate you would have originally held for him has been expunged by the suffering they served during their fifteen years of incarceration. Even if one or two of the jury still wanted him to suffer that is not enough to convict. Hopefully the majority, especially after they have been asked if they can be impartial in the current case, are not the type who fester and carry irrational grudges with accused people they have just met. 

How Things Should Be

As in most European Civil law countries, allow in any evidence of the accused’s history. If the defence truly believe that this evidence deserves less weight than it first appears at face value, then they must have a reason. Perhaps some scholars they have read have given reasons why the specific evidence is only of limited value. In that case the defence counsel are certainly free to inform the jury of this research. The truth will out.

 

 



1. The Law Report ABC Radio, 24th March 1998
2. Reagan, Ronald as quoted in Evan Whitton, The Cartel: Lawyers and their Nine Magic Tricks, p146
3. There is a concept in law known as the ‘Exclusionary Rule’ which, for some reason, relates only to the exclusion of so called Public Interest evidence, despite the whole list of categories of evidence -as shown- that can, by law, be excluded from a jury’s deliberation.
4. Short G, Gomularz J and Orlando-Mercuri A, ‘Fair Go: Units 3 and 4 Legal Studies’, Law Institute of Victoria, Melbourne, 1994, p232.
5. Arenson, Kenneth, Propensity Evidence in Victoria: a Triumph for Justice or an Affront to Civil Liberties?, Melbourne University Law Review 12[1999], 
6. Wilson RB, LBC Nutshell: Evidence, LBC Information Services, Pyrmont, 1999, p.55.
7. McNicol S and Mortimer D, Evidence, Butterworths, Melbourne, 1996, p.116.
8. Lord Cross of Chelsea, in Director of Public Prosecutions v Boardman, [1975] AC421 at p,456.
9.
http://www.activistrights.org.au/cb_pages/criminal_affect.php
10. Peter Davis, Senior Counsel Queensland and Mark Dight, Barrister DPP Victoria, ‘Similar Fact Evidence and Relationship Evidence’    http://www.barweb.com.au/Upload/FCK/Pater%20Davis%20SC%20-%20LECTURE.pdf
11. Whitton, Evan The Cartel: Lawyers and their Nine Magic Tricks, p106
12. Whitten, Note 11, p175.  


 


 

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