Probative But Still Prejudicial? Rethinking Exclusion of Propensity Evidence in Sexual Offence Cases
Jury Practice and Research Conference, Parliament House, NSW, December 12, 2007
11 Pages Posted: 5 Feb 2010
Date Written: February 4, 2010
Abstract
Propensity evidence has the capacity both to be highly probative and seriously prejudicial. Recent decisions and legislation in England have downplayed the risk of prejudice in favour of law enforcement, and have opened up admissiblity. In Phillips the High Court recently placed weight on the the risks to the defendant's rights and confirmed its stringent approach to admissibility. Recidivism data and psychological theories of character call into question the High Court's claims about the low probative value of propensity evidence. At the same time, however, the law reforms in England may give free sway to the prejudice flowing from a defendant's criminal record, particularly in paedophilia and sexual assault cases.
Keywords: propensity evidence, bad character, similar facts, admissibility, exclusion, recidivism, inference, proof, Phillips, Criminal Justice Act 2003
JEL Classification: K10, K14, K30, K40
Suggested Citation: Suggested Citation