The Most Controversial Areas in the Law of Evidence

Miscellaneous

The Law Commission, Law Commission Report No.273: Evidence of Bad Character in Criminal Proceedings, 2001.

Introduction

“The business of the court is to try the case, and not the man…”

This exposition, made in the case of Thompson v. Church, [1] pertinently addresses the question of admissibility of character evidence in trials. Though principally true, this question is nevertheless fraught with complexities that have led most scholars to call it one of the most controversial areas in the law of evidence. [2]

Under Common Law, ‘character’ has traditionally referred to “…either a person’s reputation, whether in general or in some particular respect, or his/her disposition to conduct himself in some way or other”, [3] though evidence is accepted of general reputation only. [4] In 2001, the Law Commission of UK recommended that ‘bad character’ be defined as behaviour of which a reasonable person might disapprove, thus couching it in objective terms. [5] Being a recent definition, and a departure from the general Common Law understanding of bad character (imputation of any faults or vices), [6] this definition has had little impact on Indian law.

Under the Indian Evidence Act, 1872 [“the Act”], ss.52-55 pertain to admissibility of character evidence. These provisions apply to character evidence of parties. [7] Specifically, s.54 lays down that bad character in criminal proceedings is generally irrelevant. Further, the Explanation to s.55 includes both reputation and disposition in the definition of character.

Evidence on good character and bad character is treated differently. S.53 of the Act expressly makes good character of the accused relevant in criminal cases, even though it is generally irrelevant. This is especially important in order to explain ambiguous conduct, and when a charge rests on sole testimony. [8] However, when evidence of bad character is adduced, the general rule is that of exclusion, both, under Indian Law and Common Law. [9] This rule is subject to certain exceptions, developed under Common Law, and also recognised by Indian authorities.

Through the course of this paper, the rationale behind the prevailing rule on character evidence will be analysed, followed by the exceptions to those rules. It will be argued that the test of relevance must be employed to determine admissibility of such evidence. Pertinently, this paper is limited to the character of the accused, and not the prosecutor.

Exclusionary Principle: The Rationale

Reliance is made on character evidence primarily to estimate the probability of the commission or non-commission of an act. [10] Different authorities, therefore, attach varying degrees of relevance to character evidence. For instance, while accounting for bad character has been called a matter of common sense, [11] it has also been considered inadequate for want of ‘reasonable connection between principal and evidentiary facts’. [12] Consequently, there are differing reasons behind its exclusion, relating to both standards of relevance.

The most compelling analysis of the exclusionary principle has been undertaken by Wigmore. He himself sets two differing standards for criminal and civil cases. Bad character evidence has ‘too much’ appreciable probative value in criminal cases, [13] while it has none in civil cases, since no moral quality is associated with the acts in question. [14] In general, he identifies five arguments for exclusion: first, that it carries little probative value; second, it detracts from the merits of the case; third, prior misconduct acts as a handicap to the accused; fourth, it undermines individual autonomy at every point in life; fifth, such exclusion is a ‘senseless product of history’. [15]

Related to the aforementioned grounds is the issue of flawed reasoning. Phipson argues that using character evidence compels employment of an ‘impermissible or forbidden mode of reasoning’. [16] The mere fact that the accused had acted in a certain manner, or possessed a state of mind previously is insufficient to establish liability in the case at hand. [17] In any matter, as a rule, only that evidence which directly confronts the issues at hand is admissible. Further, character evidence mostly flows out of hearsay. [18] Based on this remoteness of reasoning, character evidence is excluded. [19]

Evidence of bad character, by its very nature, is of a kind that projects the accused in bad light, reprehensible to the conscience of the judge/jurors. In that case, the law casts a presumption of prejudice. Consequently, introduction of bad character of accused as evidence carries the undeniable threat of conviction based purely on a tendency of misconduct. Alternatively, conviction may be an act of vindication, wherein punishment is afflicted in the case at hand, rooted in the belief that accused would have escaped punishment on a previous occasion. These situations Wigmore labels as those affording undue prejudice to the accused. [20] It is submitted that such prejudice, by placing undue reliance on the character of the accused, may even have the devastating effect of undermining the presumption of innocence.

The issue of undue surprise is equally demonstrative of the pitfalls of admission of bad character evidence. It is considered unjust to present the judge/jurors with overwhelming evidence of prior misconduct, which the accused is unprepared to defend, and has adverse consequences on the future of the accused as well. [21]

Next, evidence of bad character is, at best, peripheral to the main issue. Therefore, attaching undue relevance to such evidence leads to a confusion of the issues at hand, and necessarily detracts attention from the main issues that require determination. [22]

As mentioned previously, character evidence carries little probative value in civil cases, unless the character itself be in issue. This is due to an evident detachment of the issue at hand from any moral considerations. Whether libel was committed, or the contract breached are matters not associated with the moral character of the defendant, throwing light on the probability on the occurrence of the event. [23]

Thus, even if character evidence be logically relevant in establishing a high likelihood of commission of an offence, or explaining the conduct of a person, it is excluded on public policy considerations. It is to prevent matters of prejudice, undue surprise and inconvenience, and detraction from the main issues, [24] that character evidence is inadmissible. With such perils associated with the system, unwarranted prolongation of litigation is inevitable. Further, prevailing system of criminal jurisprudence emphasises rights of accused persons, in the light of which such prejudice is remarkably unwanted.

Bad Character: When Admissible

S.54 of the Act stipulates that, in criminal cases, bad character of the accused is irrelevant. However, it qualifies this general proposition by permitting bad character evidence for rebuttal. Explanation II additionally clarifies that bad character evidence will be admissible when the character of the accused is itself in issue, and S.55 makes character evidence admissible in evaluation of damages. Other situations in which evidence of bad character may be adduced are ones requiring identification, based on similar facts, [25] and when it is relevant under other provisions of the Act, such as s.8, to prove, inter alia, motive and preparation. [26]

Currently, bad character evidence is prohibited if the purpose is only to show the propensity of the accused towards commission of the impugned act. It is admissible for any other purpose. [27] Undoubtedly, evidence tending to show bad character of the accused in the latter cases, while possessing probative value, also has a prejudicial effect. Wigmore emphasises the need to strike a balance between these two factors. [28] In pursuance of the same, the prevailing test of admissibility is to ensure that the prejudicial effect is offset by the probative value of the evidence. [29] However, there is an alternative approach. Evidence, which is relevant to the facts in issue, is admitted. It is not prohibited if it has an incidental prejudicial effect on the accused, regardless of the magnitude. [30]

Through the course of this section, the exceptions to the rule will be analysed, and the appropriateness of the second test- the test of relevance- will be argued.

Admissibility for Rebuttal

Bad character of the accused may be adduced in rebuttal, as per s.54. This occurs when the accused has himself/herself put his/her character in issue by advancing evidence of good character u/s.53. This provision is made available in order to grant prosecution an adequate opportunity of questioning, and undermining the veracity of the good character evidence, in order to prevent accused from taking advantage of a character that he/she does not possess. [31]

The case of R v. Butterwasser clarified in what situations the accused can be said to have put his character in issue. [32] It is when the accused, either through his/her own testimony, or by presenting witnesses, advances evidence of his/her good character. It does not become an issue merely by virtue of the accused questioning the reliability of prosecution witnesses by presenting their bad character, or by the witnesses testifying to good character incidentally, without premeditation. [33]

When Character is in Issue

Evidence of bad character is further admissible when the character of the parties is itself in issue. [34] This occurs when “the character is a matter on which a decision…is necessary to reach to a result in a case on the basis of pleadings in civil cases and of the charge and of the particulars in criminal cases.” [35] For instance, in a suit for defamation, in which the defendant pleads the defence of truth, suits for child custody, or those for divorce on the grounds of cruelty, or u/s.110 of the Code of Criminal Procedure, s.400-401, Indian Penal Code (habitually committing dacoity), the character of the accused is itself in issue. Quite pertinently, R v. B, R v. A involved the rebuttal of presumption of doli incapax of two thirteen year old boys. [36] The Court held that this purpose cannot be achieved without investigating into the prior conduct and history of the accused in order to show that they were capable of forming mens rea.

It is submitted that matters of this nature are not exceptions to the general rule, and therefore cannot be regulated by s.54 in any case, inasmuch as they form a separate category in themselves. S.54 applies to instances wherein character evidence is introduced as evidence of another issue before the Court. In matters of this kind, bad character does not play any evidentiary rule, but is in fact the issue that requires determination itself. For example, when divorce is sought on grounds of cruelty, the issue itself is the character of the spouse. It is not adduced to prove a larger issue in question, or the degree of probability. S.54 prohibits the use of character as evidence only.

Character as Affecting Damages

S.55 recognises the principle that character of the plaintiff in civil cases may be accounted for in order to mitigate damages payable. [37] For instance, in defamation cases, it is possible to adduce evidence to show that the reputation of the plaintiff in the eyes of a reasonable man was already low, therefore, no significant injury is caused. This is because “…a person should not be paid for the loss of that which he never had.” [38]

Identification and Design

Evidence of bad character may also be introduced in cases which tend to show a design, or a specific pattern in the commission of the acts (similar fact evidence), [39] or for the purpose of identification, that is, relating an individual to the commission of certain acts. [40]

The leading authority on this proposition is Makin v. Attorney-General, New South Wales. [41] The accused were convicted of the murder of an infant, found buried in their garden. Evidence was sought to be introduced that corpses of infants were found in other gardens of the houses they had previously occupied as well, all in circumstances wherein the couple had accepted caretaking of these infants for paltry sums. This evidence was found admissible, for previous crimes were discussed not to show mere propensity of commission due to their character, but in order to show a discernible design, the presence of which makes the offences attributable to the accused.

Character evidence of the accused may also be introduced to relate commission of certain acts to a certain person. Consider the case of Thompson v. R. [42] A man was charged with committing acts of indecent assault on two boys. Two powder puffs found on his person at the scene, and photo albums of nude boys found in his drawer were sought to be introduced as evidence to indicate the propensity of the accused towards such acts of perversion. The Court permitted admission of both, the powder puffs, as well as the photo albums. It was justified on the basis that there was evidence to show that the acts of indecent assault were committed by a person of such perversion. Possession of such material in the drawer indicated that accused was a man of such sexual perversion. Thus, the commission of the act could be related to him, and he could be identified as the perpetrator.

It is submitted that while the discovery of powder puffs on his person may be incriminating evidence, the possession of the photo albums showed nothing more than the propensity of the accused to commit acts of the nature alleged. In that case, the purpose achieved by the adduction of such evidence was to establish merely an increased likelihood of the accused to commit the act. It is not sufficient to establish that he in actually committed the offence. The commission of the offence, and the discovery of the photographs are not linked by any rational connection between the two. As discussed previously, bad character evidence, produced to indicate merely the tendency of the accused to commit an offence, and which indicates nothing else, is patently inadmissible. [43]

In any case, while the determination of the issue on facts might be flawed, Thompson nevertheless stands as good authority to indicate that evidence indicating bad character may be produced for the purpose of identification.

The authorities governing rules of admissibility for both these situations overlap. This is also the area where the impact of contesting authorities on the tests regulating admissibility is evident most starkly.

While most authorities, with compelling force, lay down that the test governing admissibility is to ensure that the evidentiary value of the character evidence is significantly greater than the prejudicial effect it carries, [44] Murphy acknowledges that there is movement towards a test that accounts for relevance only, and not for prejudice. [45] It is submitted that the latter test is more appropriate in determining admissibility of evidence which tends to show bad character of the accused.

It is accepted that character evidence as indicating the propensity of the accused to commit an act is inadmissible, based on flawed logical reasoning, as well as the scant probative value. A displays paedophilic tendencies, therefore, A has committed this act of paedophile, is one such example. It is therefore important, at the outset, to distinguish character evidence of this kind from evidence adduced to prove other factors, such as design or identity. For example, X was previously accused of three murders in the same neighbourhood. All three were found killed by slitting the throat of the victim after forced sexual intercourse. If a fourth corpse is found in similar circumstances, it will vehemently indicate the involvement of X in this as well. While the first kind indicates nothing more than the character of the accused, the second is proof of the identity of the perpetrator of the fourth murder, within the meaning of s.9 of the Act. Since this evidence is crucial to reach the verdict at the trial for such murders, it cannot, and should not be excluded. Thus, it is established that bad character evidence sought to be introduced must at least be relevant to the issue at hand, irrelevant evidence being excluded.

Clearly, such character evidence possesses immense probative value. Exclusion of evidence with significant probative value, merely because it has the effect of causing prejudice, is extremely detrimental to the establishment of the guilt or innocence of the accused. Modern jurisprudence emphasises the presumption of innocence of the accused. Character evidence is in itself insufficient to cause such colossal prejudice as to overturn this presumption itself. Therefore, any prejudice caused is merely incidental to the issue (assuming first stage admissibility on the basis of relevance alone). In that case, there appears no justification to exclude relevant evidence on any incidental misgivings alone. Further, the magnitude of such prejudice must also be considered irrelevant. There is no justification to permit the accused to obtain benefit of his own bad conduct, if evidence of the same be found true. In fact, such an approach seems to favour those who have conducted themselves most reprehensibly, for in two cases involving evidence of the same probative value, the evidence indicating worse behaviour will be excluded, on account of the prejudicial effect outweighing the probative value. Clearly, to reward, say, a habitual offender over first-time offender cannot prevail as a matter of policy.

Therefore, it is submitted that it is relevance, and relevance alone, that must be ascertained in order to admit evidence of an incidental prejudicial nature.

It is pertinent to note that the introduction of the Criminal Justice Act, 2003 in the UK has expressly rendered all similar fact evidence inadmissible. [46] In fact, the Statute introduces seven ‘gateways’ of admitting bad character evidence. Only one of these gateways is common to the Common Law exceptions- that of admissibility when character is in issue. In fact, bad character evidence in Butterwasser situations is now admissible. [47]

In the light of the above analysis, it will be easier to appreciate the next exception, based on relevance of evidence under other provisions.

Otherwise Relevant

Character evidence is also admissible when it is relevant under the provisions of the Act, from ss.6-55. This evidence will not be held inadmissible merely because it incidentally comments on the bad character of the accused/defendant. [48] For instance, evidence to indicate state of mind of the accused, or motive behind an offence, relevant under ss.14 and 8 respectively are admissible, regardless of their prejudicial effect. In such case, this exception strictly follows the rule of relevance argued above.

This rule was discussed at length in the case of Lakshmandas. [49] Overruling the contention of the defence that s.54 permeates through the entire Act, and therefore no evidence may be adduced to any purpose in case it shows the accused to be of bad character, the Court held that other provisions of the Act are not ‘controlled’ by s.54. Any fact, otherwise relevant, is not rendered inadmissible only by virtue of showing the bad character of the accused.

This seems justified since in such cases, evidence is adduced not of the bad character of the accused, but as facts indicating motive or subsequent conduct, of which bad character is merely incidental. Such evidence is not of the kind that shows only character and nothing else, but presents significant links to prove or disprove the commission of the offence.

Conclusion

Through the course of this paper, it was observed that character evidence may be adduced in two forms: either as evidence of character per se, or as evidence to resolve another issue in determination. An example of the former is to emphasise the good nature of a respectable man in society, thereby imputing improbability of commission of an offence by him. While evidence of this kind is normally admissible, character evidence per se which projects the accused in bad light is inadmissible. This standard rule is perceivably subject to five exceptions. Bad character of the accused/defendant may be adduced in rebuttal when he/she adduces his/her good character. It may also be introduced when the character itself is in issue, or for the determination of damages. Evidence of bad character may also be incidental, while attempting identification of person or design, or as part of another relevant fact.

It is thus possible to divide the above situations in two categories: first, in which resolving the character question is not important, and the second in which character evidence is pertinent for the disposal of case, . The crucial distinction lies in the relevance of the latter and the irrelevance of the former as facts presented before the Court. The example quoted above, along with the first exception, falls in the first category, while the remaining four fall in the second category. Based on this categorisation, it is possible to conclude that whenever evidence is adduced to prove only the bad character of the accused, it is inadmissible, subject to one exception, of admissibility in rebuttal. All other scenarios grant the status of relevance to evidence of bad character, either as the substance in issue directly, or as incidental to another relevant fact. Such evidence is not evidence of character, as much as evidence to resolve the issues at hand. Thus, when bad character evidence proves something more than just character, it is admissible.

It was further submitted that while evaluating admissibility of character evidence, contrary to the prevailing Common Law test of probative versus prejudicial value, the simple test of relevance must be employed. This is because, inter alia, prejudice being merely incidental when a fact is relevant, it must not be allowed to trump its probative value which is crucial to the determination of the issue.

Thus, the principle regarding bad character evidence, its rationale and the exceptions were fruitfully analysed.

Annotated Bibliography

Authors

A. Singh, Principles of the Law of Evidence, (17th edn., Allahabad: Central Law Publications 2009).

The author discusses character evidence under the Indian Evidence Act, 1872. With the help of case law, he briefly discusses the general rule (and exceptions) regarding admissibility of character evidence in civil cases and criminal cases separately.

C. Allen, Practical Guide to Evidence, (4th edn., London: Routledge and Cavendish 2008).

The author comments on the English Law relating to admissibility of character evidence, from earlier principles of Common Law to the seven gateways of the recent Criminal Justice Act, 2003. He emphasises similar fact evidence as an important exception to the standard rule of non-admissibility of bad character evidence.

C. Tapper, Cross and Tapper on Evidence, (8th edn., London: Butterworths 1999).

The author discusses character evidence of three parties at Common Law: prosecutor, accused and co-accused. He underlines admissibility as an important mode of admission of character evidence, and accordingly discusses at length the question of when accused puts his character in issue.

G.S. Chaturvedi ed., Field’s Commentary on Law of Evidence, Vol.-3, (12th edn., Delhi: Delhi Law House 2001).

This is a commentary on the Indian Evidence Act. The author makes a section-by-section analysis of the Indian stance on the issue, and how English jurisprudence has affected the Indian Law. He starts by first stating the rationale behind each provision, and proceeds to the exceptions under each rule and the controversies contained therein. He devotes heavy analysis to the question of whether in a case of dacoity, character of accused is in issue or not.

H.M. Malek ed., Phipson on Evidence, (16th edn., London: Sweet and Maxwell 2005).

Phipson is an important authority on the expositions under English Law. He traces the evolution of the law governing character evidence under Common Law through a comparative analysis of case law. He analyses in detail the Rowton principles of admissibility, similar fact evidence, and issues of proof and prejudice.

J. H. Wigmore, Evidence in Trials at Common Law, Vol.-IA, (New Delhi: Wolter’s Kluwer (India) Pvt. Ltd. 2008).

Wigmore significantly addresses the theoretical and principle foundations of the law of admissibility of character evidence, by analysing, primarily English Law, and also American Law on the subject. He attempts to rationalise arguments presented from various authorities on the relevance and admissibility of character evidence, and reasons for its exclusion. His most significant contribution to this end is his Theory of Auxilliary Policy as grounds for exclusion of character evidence.

J. Singh et al, Law of Evidence, Vol.-1, (Chennai: Madras Law Journal Office 1996).

A case digest on the Indian Evidence Act, which contains, as commentary to each provision, relevant extracts from landmark cases governing character evidence.

J. Woodroffe and S.A. Ali, Law of Evidence, Vol.-2, (16th edn., Allahabad: Law Book Co, Pvt. Ltd. 1996).

This is also a commentary on the Indian Evidence Act, 1872. The authors commence by discussing the principle underlining the relevance of character evidence in general. They also discuss relevance of character evidence of animals, places and things. This is followed by a section-wise analysis of the Indian law on character evidence,