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The Paradox of Cross-Examination to Credit—Simply Too Close for Comfort
Published online by Cambridge University Press: 16 January 2009
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Any defendant with a criminal record, who takes the witness-stand, must beware the snares of section 1(f) of the Criminal Evidence Act 1898. The shield this statute confers, once described by Viscount Sankey as “one of the most deeply rooted and jealously guarded principles of our criminal law”, which forbids the prosecution or any co-accused from questioning him on his previous convictions and general bad character, can be forfeited in three ways. An accused may variously adduce evidence of his good character, cast imputations on the character of the prosecutor or the witnesses for the Crown, or give evidence against a co-accused: in each of these circumstances, under sub-provisos (ii) and (iii) of section 1(f), cross-examination of the accused on his bad character then becomes permissible with the leave of the judge. Although there is a frail argument that such evidence may go to issue, the overwhelming preponderance of authority holds
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References
1 Maxwell v. D.P.P. [1935] A.C. 309, 317.
2 The statute, so far as is relevant, reads: “A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless … (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged in the same proceedings.”
3 Duncalf [1979] 1 W.L.R. 918, 924 per Roskill L.J. See, e.g., Andrews, & Hirst, , Criminal Evidence, 2nd ed. (London 1992)Google Scholar, §16.66.
4 Subproviso (ii): Richardson [1969] 1 Q.B. 299, 311 per Edmund-Davies, L.J.; Barnes (1989) P.C. Appeals No. 2 of 1987 and No. 32 of 1986, p. 6 per Lord Griffiths; Preston [1909] 1 KB. 568, 575 per J., Channell Subproviso (iii): Murdoch v. Taylor [1965] A.C. 574, 590 per Lord DonovanGoogle Scholar.
5 [1935] A.C. 309, 321 (emphasis added). Or in the words of a Canadian judge, indicates whether the accused “is the sort of person whom you can believe under these circumstances, and whether the sanctity of an oath is likely to weigh with him or not”: Goldhar (1957) 117 C.C.C. 404, 406 per Roach
6 (1989) 90 Cr.App.R. 325, 333Google Scholar.
7 The nature of the potential prejudice to a defendant is generally obvious. However, an uncommonly strong statement of the reasons for exercising caution in revealing the accused's previous record runs: “It is frequently the very presence of previous convictions which leads the police to suspect and charge a person in the first place. … It may take no more than tenuous circumstances connecting the accused to the offence to result in a charge being laid. A vicious circle may then ensue. A person is suspected because of a previous record. The existence of the record leads to more vigorous investigative methods … Finally, the mere fact of the record increases the likelihood of conviction, thereby increasing the likelihood that the accused will be a suspect in another case in future. In sum, the presumption of innocence may be totally destroyed”: Ratushny, E., Self-Incrimination in the Canadian Criminal Process (Toronto 1979), p. 341Google Scholar.
8 See, e.g., Powell [1985] 1 W.L.R. 1364.
9 State v. Duke, 123 A. 2d 745, 746 (N.H. 1956).
10 See, e.g., Munday, , “Reflections on the Criminal Evidence Act 1898” [1985] C.L.J. 62, 66–8Google Scholar.
11 An Attempt to Update the Law of Evidence (Jerusalem 1974), p. 21Google Scholar.
12 137 Mass. 76, 78(1884).
13 Munday, , “Stepping Beyond the Bounds of Credibility” [1986]Google Scholar Crim. L.R. 511, 522.
14 E.g., Nye (1982) 75 Cr.App. R. 247; Sweet-Escolt (1971) 55 Cr.App.R. 316, 320 per Lawton, J.Google Scholar
15 [1975] 1 W.L.R. 1065.
16 (1992) 156 J.P. Rep. 539. See also Martin (1992)Google Scholar 12 October, unreported C.A. Transcript no. 1833/X/91; O'Shea [1993] Crim.L.R. 951.
17 See Munday, , “Rehabilitated Offenders and Character Evidence” [1993]Google Scholar C.L.J. 228.
18 1983 77 Cr.App.R. 126, 129-30. See Munday, , [Cross-Examination under Section l(f)(ii) of the Criminal Evidence Act 1898” [1984]Google Scholar C.L.J. 10.
19 [1985] 1 W.L.R. 1364, 1370 (admitting that in Watts, supra the court paid too much attention “to the question whether the previous offences did or did not involve dishonesty in the ordinary sense of that word].)
20 (1986) 83 Cr.App.R. 100, 105. See also Prince [1990] Crim.L.R. 49.
21 E.g.. Aldridge (1990) 51 A.Crim.R. 281, 284 (Australia); Bloxham (1991) 28 May unreported (Timaru, New Zealand). Wigmore was also a proponent of this view: Evidence, ed. Chadbourn, (Boston 1970), §926. See also text accompanying note 9, supraGoogle Scholar.
22 Personality and Assessment (New York 1968), p. 26Google Scholar.
23 Hartshorne, May, & Shuttleworth, , Three Studies in the Organization of Character (New York 1930), p. 1Google Scholar.
24 See Munday, [1984] C.L.J. 10 at p. 12. See also [1985]Google Scholar C.L.J. 62 at p. 73.
25 Ekman, , “Why Lies Fail and What Behaviors Betray a Lie” in Yuille, (ed.), Credibility Assessment (Dordrecht 1988), p. 71Google Scholar.
26 See Yuille, , op cit.,pp. x–xiGoogle Scholar; Stone, “Instant Lie Detection? Demeanour and Credibility in Criminal Trials” [1991] Crim.L.R. 821.
27 (1956)40Cr.App.R. 8, 12.
28 See, e.g.. Kalven, & Zeisel, , The American Jury (Boston, 1966) pp. 146–148Google Scholar; U.S. v. Antonelli Fireworks, Inc., 155 F. 2d 631,656 (1946) per Frank, J.Google Scholar
29 Wright, (1989)Google Scholar 90 Cr.App.R. 325, 335 per Mustill L.J.
30 See most recently Casper, & Benedict, , “The Influence of Outcome Information and Attitudes on Juror Decision Making in Search and Seizure Cases” in Hastie, (ed.), Inside the Juror (Cambridge 1993), pp. 65ffGoogle Scholar and references cited.
31 See Sybille Bedford, As It Was (London1990), p. 189Google Scholar.
32 (1983)77Cr.App.R. 126.
33 [1985] 1 W.L.R. 1364, 1370. Watts and Powell can in fact be distinguished on several grounds. Notably, in Watts, the court were dealing with sexual offences which, if revealed, would excite intense prejudice in jurors' minds, a point endorsed by Stuart-Smith, L.J. in McLeod (1994) 144 N.L.J. 531, 532. Also, in Powell, where the defendant was charged with knowingly living on immoral earnings, the accused put his character in issue and it may be that some would argue that this rendered his cross-examination on similar previous convictions more appropriate. But regardless of these points, Powell and Powell bear out Mustill L.J.' view that “the distinction between matters going directly to the primary issue and those going to the credit of those who give evidence on the issue is hard to operate in practice, and possibly unsound in theory”: Wright (1989)Google Scholar 90Cr.App.R. 325, 333.
34 1970 A.C. 304.
35 See now Burke (1985) 82 Cr.App.R. 156; Braithwaite and John (1983)Google Scholar 24 November, unreported C.A. Transcript no. 4459/A/83 and 4460/A/83. The arguments in Watts and Powell ate considered in detail in Stepping Beyond the Bounds of Credibility, supra note 13.
36 See [1968] 1 Q.B. 706, 712-13 per Lord Denning M.R.
37 Ibid, at p. 711, per Widgery J. (in arguendo).
38 [1970] A.C. 304 at pp. 330-1 per Viscount Dilhorne.
39 See “Can the Accused Attack the Prosecution?” (1974) 7 Syd. R. 166, 167.
40 See [1985] 1 W.L.R. 1364 at pp. 1368–70.
41 [1968] 1 Q.B. 706 at p. 717. See also [1970] A.C. 304 at p. 331 per Viscount Dilhorne. The fact that he did not demur when they were read out after conviction seems completely irrelevant: Ibid.
42 See [1968] 1 Q.B. 706 at p . 710 per MacKenna J (in arguendo). For another example, see Tanner (1977) 66 Cr.App.R. 56, 61. As early as 1925 Lord, Hewart C.J. discouraged prosecuting counsel from inducing defendants to forfeit their shield: Baldwin (1925)Google Scholar 18 Cr.App.R. 175, 178.
43 K.g., Britzmann (1982) 76 Cr.App.R. 134, 129 per Lawton, L.JGoogle Scholar.
44 See also Burke, cit. supra note 35, a t p . 161 per Ackner, L.J. Paradoxically, there may now even be indications that defendants with convictions dissimilar to offence(s) charged may sometimes have to be treated as of good character, the jury being appropriately directed in accordance with Vye (1992) 97 Cr.App.R. 134. See, e.g., Horrex (1993) 5 October, unreported C.A. Transcript 93/2635/W2, a rape case where Lord Taylor, Taylor.C held that a 12-year-old conviction for possession of an offensive weapon should have been disregarded by the court and the defendant treated as of good character, and Heath (1993)Google Scholar 5 October, unreported C.A. Transcript 92/11O2/Y2.
45 E.g.. Holman (1992) The Times, 9 September (burglary); Wignall [1993] Crim.L.R. 62, C.A. Transcript no. 1812/X/92 (theft); Martin (1992) 12 October, unreported C.A. Transcript no. 1833/X/92 (assaults); Prince [1990] Crim.L.R. 49 (robberies).
46 Lasseur [1991] Crim.L.R. 53; C.A. transcript no. 1645/W/89 (drugs offences); Marsh [1994%; Crim. L.R. 52 (violence on the rugby field).
47 (1993) 97 Cr.App.R. 218.
48 (1991) 93 Cr.App.R. 9. This doctrine was revised by the Court of Appeal in Vye et al. (1992) 97 Cr.App.R. 134.
49 (1993) 97 Cr.App.R. 218 at p. 221.
50 Ibidloc. cit.
51 (1983) 77 Cr.App.R. 126. See also Campbell [1994] Crim.L.R. 357.
52 (1985)82Cr.App.R. 167.
53 The notion of a “forbidden reasoning” of course introduces its own problems. It can be argued that evidence of propensity is precisely what makes much similar fact evidence relevant and admissible, and that the term “propensity” does not serve to demarcate crisply a borderline between admissible and inadmissible evidence of other misconduct. The term is not employed here, however, with quite that intent. The relativity of these distinctions is freely acknowledged. Indeed, the thrust of this paper is that most of our concepts in this area do at least have furry edges. Propensity, then, is meant merely to flag the fact that there comes a point at which evidence of bad character paints a picture of the accused which, without pointing sufficiently specifically to his guilt in respect of offences charged in the indictment, is liable to induce a tribunal of fact to convict upon the basis of general character traits rather than upon hard evidence directed at the issues in the case. One can dispute where the line can safely be drawn in particular cases—and possibly, in particular categories of case—but the existence of the evidentiary watershed is not customarily contested.
54 (1990) 9 August, unreported, C.A. Transcript no. 89/5155/Z3.
55 Ibid, p. 5 per Watkins L.J.
56 Ibid, p. 6.
57 [1972] Crim.L.R. 101.
58 Transcript, p. 9
59 Ibid, p. 8.
60 (1983) 24 November, unreported C.A. Transcript no. 4459/A/83. See also Stratwn (1978) 42 C.C.C. (2d) 449, 467.
61 (1992) 18 June, unreported C.A. Transcript no. 92/1013/X3.
62 Transcript, p. 4.
63 Ibid., p. 5.
64 Ibid., p. 7.
65 There is of course a view that if you tell someone often enough not to do something, they will do it: U.S. v. Antonelli Fireworks Inc., supra note 28.
66 E.g., Reifman, Gusik, & Ellsworth, , “Real Jurors' Understanding of the Law in Real Cases”, 16 Law & Human Behavior 539 (1992)Google Scholar.
67 E.g., Kramer, Kerr, & Carroll, , “Pretrial Publicity, Judicial Remedies, and Jury Bias”, 14 Law & Human Behavior 409 (1990)Google Scholar.
68 Scapegoat (London 1991), p. 14Google Scholar.
69 Transcript, p. 6. Cf. Selvey v. D.P.P. [1970] A.C. 304.
70 Cf. Fentiman (1984) 5 October, unreported Lexis transcript; Kalo (1983) 1 C.R.N.Z. 413. These cases are discussed in Munday, “The Admissibility of Evidence of Criminal Propensity in Common Law Jurisdictions” (1989)Google Scholar 19 V.U.W.L.R. 223, 245.
71 Transcript, p. 6.
72 Pleading, Evidence and Practice in Criminal Cases (42nd ed. 1985), Supplement No. 9, June 1985. See discussion in Stepping beyond the Bounds of Credibility, cit. Supra note 13, at pp. 521–2Google Scholar.
73 (1994) 144 N.L.J. 531. The Court of Appeal claims to have derived this principle from Burke, supra note 35 and Owen, supra note 20. In fact, neither case supports this proposition. It possibly derives from Archbold: see text accompanying note 72, supra.
74 But cf. Reid [1989] Crim.L.R. 719, C.A. Transcript no. 1480/G2/88, where the defence advanced was more distinctive.
75 PACE 1984, s. 75(1)(b). The details are taken as proven unless the defendant can establish the contrary: s. 74(3).
76 Hall [1973] 1 Q.B. 496; Thompson (1982) 74 Cr.App.R. 315.
77 See generally, Phipson on Evidence (London 1990), 14th ed., §23.06; MayGoogle Scholar, Criminal Evidence, 2nd ed. (London 1990), §§8.64–8.66Google Scholar.
78 At this point two indistinct boundaries within the law of evidence intersect. Birch has described the question “whether a particular item of evidence goes to an issue before the court or is merely collateral [as] clearly a question of some nicety”, giving prominence to Henry J.'s dictum in Funderburk [1990] 1 W.L.R. 587, at p. 598 that, owing to the circularity of the conventional test as to whether a particular matter is one of issue or credit essentially “the answer is an instinctive one based on the prosecution's and the court's sense of fair play rather than any philosophic or analytic process” (Blackstone's Criminal Practice 1993, §F7.18). The dictum overstates the case, but highlights difficulties posed by the distinction. Disregarding the general merits of the collateralfinality boundary-line, as currently understood, it must be the case that the answers of an accused under cross-examination on matters that by definition go to credit but that do not fall within any of the established common law or statutory exceptions to the collateral-finality have to be treated as final.
79 Transcript, p. 7. See also McLeod, supra note 73 which emphasises that it is for defence counsel to object to unduly probing cross-examination.
80 Cit. supra, note 48.
81 See Munday, “The Good, the Bad, and the Direction on Good Character” (1991) 155 J.P. 436.
82 (1992)97Cr.App.R. 134.
83 Ibid, at p. 402.
84 [1994] Crim.L.R. 194; Transcript no. 93/2946/Y2.
85 [1991] Crim.L.R. 51; Transcript no. 89/5155/Z3.
86 [1992] Crim.L.R. 101.
87 Transcript no. 93/2946/Y2, p. 8.
88 Ibid. p. 7.
89 See text accompanying note 59, supra.
89a See note 73, supra.
90 [1989] Crim.L.R. 719; C.A. Transcript no. 1480/G2/88.
91 Transcript, p. 3.
92 Ibid., p. 4.
93 Although this form of questioning is conventional, I would argue that questions 4, 5 and 6 should not have been permitted. The fact that a different jury has disbelieved a defendant in another case has precious little bearing on his credibility. It is to equate convictions in such circumstances with demonstrated perjury. Given the inscrutability and possible unreliability of jury verdicts, this may be to attach too great significance to jurors' deliberations. See Geddes (1979) 52 C.C.C. (2d) 230.
94 [1965] A.C. 575, 585.
95 [1935] A.C. 309,321.
96 Transcript, p. 8.
97 Ibid.
98 Murdoch v. Taylor [1965] A.C. 575, 593 per Lord Donovan; Lui Mei Lin v. R [1989] A.C. 288, 296–7 per Lord Roskill.
99 Lavery and King (No. 3) [1992] V.R. 939, 947 per Winneke C.J.
100 See Munday, “The Wilder Permutations of Section I(f) of the Criminal Evidence Act 1898” (1987) 7 L.S. 137.
101 Although it proceeds upon a different point, the Court of Appeal's judgment in Parker and Cox (1992) 16 November, unreported Transcript Nos. 91/0255/Z2, 91/1213/Z2 exemplifies a more orthodox view of the prejudicial impact of evidence of the details of a co-accused's previous offending?in this case, a police caution (p. 14).
102 E.g., Ashton, , As I went on my Way (London 1924), p. 245Google Scholar relates that, after the 1898 Act came into force, prosecuting counsel often declined even to cross-examine defendants who elected to testify, considering that to cross-examine them at all would be to seize an unfair advantage over such defendants.
103 See Munday, “Directing Juries on the Defendant's Good Character” (1991) 55 J.C.L. 521.
104 The Royal Commission on CriminaUustice (1993) Cm. 2263, paras. 8.29–8.34. It should be borne in mind that these proposals were vigorously rejected in Scotland by the Thomson Committee which concluded, “the Criminal Law Revision Committee's proposals are so prejudicial to accused persons that we do not propose anything on these lines being introduced in Scotland” (Criminal Procedure in Scotland (Second Report) (1975) Cmnd. 6218, para. 54.07). It is certainly curious that, in his Tom Sargant Memorial Lecture, Lord Taylor C.J. referred to practically every major procedural and evidentiary recommendation of the Runciman Commission, but addressed not a word to these far-reaching proposals: the text of the lecture is reproduced in (1994) 144 N.L.J. 125. His Lordship's comments on the CLRC's Eleventh Report generally are revealing, however: for instance, they omit to make any reference to the crescendo of criticism which greeted certain of the Committee's proposals, and more specifically its suggested reform of the “right to silence”—a reform which Lord Taylor supports; they also emphasise the Eleventh Report's “respectable genesis” and the Criminal Law Revision Committee's liberal credentials. If deeds mean anything, 1 would be tempted to argue that the Scots Thomson Committee's Report enjoyed an equally respectable genesis, but displayed conspicuously stronger liberal credentials, at least on the issue of character evidence. It will be vital in due course to review the Runciman Commission's proposals on the reform of the character evidence rules with great care. As one practitioner has already pointed out, the most obvious danger is that its proposals will lead to juries using previous convictions for precisely the purposes which the Commission acknowledges to be improper, namely to allow the jury to infer guilt from propensity: see M.J. Fisher, “The Royal Commission and Previous Convictions” [1994] Crim.L.R. 149, 150.
105 Similar arguments have been advanced in the USA: e.g., Hickey, “Extending the Use of Prior Act Evidence in Rape and Sexual Assault Cases” 29 Crim. Law Bull. 195 (1993).
106 See, e.g., Munday, “Comparative Law and English Law's Character Evidence Rules” (1993) 13 O.J.L.S. 589.
107 See, e.g., Crombag, van Koppen, & Wagenaar, , Anchored Narratives: The Psychology of Criminal Evidence (Hemel Hempstead 1993), esp. p. 16Google Scholar.
108 See Schofield J.'s views in “Should Juries Know of a Defendant's Convictions?” (1992) 142 N.L.J. 1499, 1500.
109 [1979] Crim. L.R. 48, C.A. Transcript no. 1854/C/78. See also Duncalf [1979] 1 W.L.R. 918 and Blackstone's Criminal Practice (London 1993)Google Scholar, §F14.35.
110 See Andrews, & Hirst, , Criminal Evidence, 2nd ed. (London 1992)Google Scholar §16.64.
111 Quoted in Corbett (1984) 17 C.C.C. (3d) 129, 160–1 per Hutcheon, J.A. (dissenting) (British Columbia Court of Appeal).
112 Corbett (1988) 41 C.C.C. (3d) 385,426 per La Forest J. (dissenting) (Supreme Court of Canada).
113 This possibility is discussed in Munday, “Jury Trial, Continental Style” (1993) 13 L.S. 204.
114 The Runciman Commission has recommended that this aspect of the law of evidence, together with other evidentiary issues, be considered thoroughly and expeditiously by the Law Commission: (1993) Cm. 2263, para. 8.30.
115 This point has been made forcibly by McConville ' Mirsky, “The Disordering of Criminal Justice” (1993) 143 N.L.J. 1446. Their article drew a spirited riposte from Zander (“What is Going On?” (1993) 143 N.L.J. 1507). There followed rebutter (“Balancing Acts and Constitutionalism” (1993) 143 N.L.J. 1579) and surrebutter (Utter (1993) 143 N.L.J. 1596). See also Bridges, ' McConville, , “Keeping Faith with their Convictions: The Royal Commission on Criminal Justice” (1994) 57 M.L.R. 75 and Bridges, “Normalizing Injustice: The Royal Commission on Criminal Justice” (1994)Google Scholar 21 J.L. ' Soc. 20.
116 Cit. Allen, R., “The Trial of Socrates: A Study in the Morality of the Criminal Process” in Friedland, M., (ed.), Courts and Trials: A Multidisciplinary Approach (Toronto 1975), at p. 18Google Scholar.