Similar Fact Evidence

Last updated: 2015-03-07
Henry Waldock

See also Prior Bad Acts

“The man who wins the lottery once is envied; the one who wins it twice is investigated.”
(USA v. York, 933 F 2d 1343 (7th Cir. 1991))

Principles

We can infer that two separate events are related when there is an objective improbability of coincidence.

On the other hand, courts will exclude evidence that merely tends to show the suspect is a bad guy, because a jury might punish him again for his prior bad acts by convicting him for the current charge.

If you learn of two similar acts, and you can prove who committed one, but not the other, only a very high degree of similarity between the two acts will lead to an inference that the same person committed both.

If the issue is not who committed the acts, but whether that person committed them, then the similarities do not have to be so unique.

Probative value of the evidence must exceed prejudicial effect.

Investigative Approaches

Find similar incidents.

Assess similarities and differences:

Investigate and protect the “coincidence”.

Leading Cases

R v. Arp [1998] 3 S.C.R. 339
R. v. Handy 2002 SCC 56

Examples

Two murders of young women occurred near Prince George, separated by 3 years.  Both women had been picked up late at night, one outside a bar, and the other near a convenience store.  Both had been drinking.  Their bodies were found abandoned in the wilderness many miles out of town.  Their clothing had been cut with a sharp object, and left separately from their bodies.  The suspect’s semen was found in one of them.  It was impossible to tell whether the other had intercourse with anyone because her body was too badly decomposed when discovered, however, she was seen leaving the bar in a truck similar to that of the accused.  A search of the accused’s truck revealed a ring said to be hers.  Similar fact admitted.  (Arp)

The complainant knew Mr Handy for 6 months before they night he raped her.  They met in a bar.  They went to a motel for sex.  When she complained that he hurt her, he continued.  He raped her anally, and beat her when she resisted.  A few weeks before the incident, the complainant had met Mr Handy’s ex-wife.  The ex-wife had charged Handy with 7 incidents of non-consensual sex, including anal rape.  The ex-wife told the complainant about the allegations, and that she received $16,500 from Criminal Injuries Compensation.  Case returned for re-hearing to determine whether collusion caused the coincidence.  (Handy)

A girl complained that her dad sexually abused her from age 11-13.  10 years before, he had sex with the 15-year old daughter of a different common-law.  Evidence admitted.  (R v. B.(C.R.) [1990] 1 SCR 717)

Brides in the Bath:  George Smith married 3 women.  After each marriage, his new bride was found dead in the bath.  He was charged with the murder of the first, and found guilty partly on the basis that it could be no accident.  Because he was hanged, there was no need for trials on the other 2 murders.  Rex v. Smith  11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915).

The young victim of a series of sexual assaults described a series of hotels and motels to which Thorburn (BCCA 1986) took her.  He had taken other women to all of those places for sexual encounters.  Somehow, she knew his haunts.  Evidence admitted.  (1986) 26 CCC (3d) 154 (BCCA)

Someone sent similar letter bombs to Mr Davis’ ex-wife and ex-lawyer.  Was it Mr Davis?  One exploded, the other didn’t.  His fingerprint was found on tape inside one.  Could the jury use that fingerprint to identify the maker of the other bomb?  Of course, because of the unlikelihood of coincidence.  (2003 BCCA 769)

Dr Stewart 2004 BCCA 56 caressed his adult female patients in various different sexual ways while conducting medical examinations.  He claimed that the sexuality they complained of must have been accidental touching.  But he also admitted having consensual sex with one of those patients.  These acts were “similar” acts not so much from the mechanics of their execution, but from their inappropriateness.

Did 16-year-old J.H. (2006 Ont C.A.) rape his 12-year-old stepsister? To determine the truth of her complaint, the trial judge admitted as "similar facts" her complaints that they did consensual oral sex acts when they were years younger. But consensual sexual experimentation and rape are very different. While it might be argued that this evidence showed an ongoing sexual interest in the complainant, it can not be said to be "similar facts" the coincidence of which render the rape more probable. The appeal court sent the matter back for retrial.

Did Mr Grabowski 2004 BCSC 328 set the 5 fires which burned within blocks of each other between 3:15am and 5:16am?  These investigations are notoriously difficult, so it's worth seeing what worked.  Someone looking like him was seen at three of those fires.  Tiny traces of materials particular to each location were found in his clothing.  These details combined with the similar fact evidence to make the case.

Even relatively dissimilar offences may be admitted as similar fact.  In C.R.B. [1990] 1 S.C.R. 717, the accused's natural daughter complained of his fondling, oral sex, sexual intercourse and buggery with her when she was 12-14.  His step-daughter complained of fondling, intercourse, oral sex and masturbation 6 years earlier when she was 15.  Because identity was not in issue, these were sufficiently probative of his methods of sexual abuse to be admitted.

Two young women worked in different hotels.  Each complained that while they were vacuuming a hotel room, a man who was naked from the waist down, approached her from behind, threw a pillow case over her head.  He jabbed something sharp at her, threw her down, and sexually assaulted her.  The events occurred in July and August of the same year.  The only evidence of identity was DNA on a pen on the floor of one hotel room which matched Mr Carpenter 2010 BCCA 27.  The jury convicted him of both attacks.  Was it fair to blame him for the second, considering there was no direct evidence linking him to the crime?  The Court of Appeal said yes.  If the DNA evidence satisfied the jury that Mr Carpenter did the first one, then they could rely on the striking similarity between the two attacks to find that Mr Carpenter did both.

Mr Jesse 2010 BCCA 108 attended a party where a woman got drunk and passed out.  After the party, everybody left but him and another fellow.  The next morning, others found the woman still passed out, but missing her underpants.  In the night, someone had forced a wine-bottle cork into her vagina.  Who did it?  The prosecution tendered evidence that 12 years earlier, Mr Jesse was convicted of forcing two plastic shopping bags into the vagina of a different unconscious woman.   The trial judge found that this unusual behaviour helped determine he was responsible for the bottle-cork.  On appeal, he complained that using evidence from the previous trial was unfair: transcripts from the previous trial were lost, which made it more difficult to cross-examine those witnesses.  Fortunately, enough records of the previous proceedings were preserved.  The witnesses from the original trial were available, and able to testify and be cross-examined.  The court dismissed this complaint too, but it highlights the importance of keeping complete records of old matters.  (In a decision which addressed technical points of evidence, the Supreme Court upheld the conviction.  Jesse, 2012 SCC 21)

Mr Logan, 2012 BCCA 102 drove a stolen car at high speeds while police chased.  After he crashed, he fled, but police caught him.  Follow-up investigation suggested that in the middle of the night, Mr Logan sneaked into the owner's (occupied) residence through an insecure rear window, and stole cash from the owners' wallets, and keys to the car.  The thief did no other damage.  In that area, in the previous month, there had been five similar residential break-ins: the thief entered through insecure rear doors and windows; stole cash but left wallets and purses behind; took keys, and a car.  The cars were located abandoned a few blocks from Mr Logan's residence.   Did he commit the other break-ins?  The court accepted this similar fact evidence to find that he did.

Collusion

Drug users and prostitutes complained that Mr Dorsey 2012 ONCA 185 raped and abused them in similar ways.  At trial, the prosecution relied on the similarities between their complaints to show that they spoke the truth.  Defence pointed out the gossip flowing through the informal networks of drug users, and the media reports which accumulated about his activities to suggest a possibility of "inadvertent collusion" - the witnesses inadvertently tailored their allegations to match what they had heard about him.  The trial judge wouldn't let the jury consider this possibility.  The appeal court ordered a new trial.

Defence can use it too

Someone abducted a 13-year-old girl, tied her up and left her in a shed to die in the cold of a Manitoba winter.  Decades later, police accused Mr Grant, 2015 SCC 9, based on small traces of DNA.  At his trial, he tried to present evidence of a similar assault on a schoolgirl, committed when he was in jail.  He wanted to argue that the similarity suggested that the same guy committed both offences, but because Mr Grant was in jail at the time of one of them, he couldn't be that guy.  The trial judge wouldn't let him.  The appeal judges held that the jury should have heard this evidence, and granted him a retrial.

Discussion Ideas

Mr Greedy stole an ice cream cone from a kid at the corner store yesterday.  Today, a man stole another ice cream cone from another kid at a corner store.  Was it Mr Greedy?

Mr Hungry went to Lil’s Diner yesterday, ordered a Super-D-Lux Special with everything on it, ate it, and walked out without paying.  Today, Mr Hungry called a cab.  He got the cabbie to drive him all over town.  When he was done, he turned to the cabbie and said “Sorry, I don’t go no cash”.  On those two occasions, did Mr Hungry intend from the beginning not to pay?

These are both similar fact situations.  I have framed them to illustrate the big difference between similar fact for proof of identity and similar fact for other purposes.

Every so often, a crime spree stops when police arrest a suspect.  Doesn't this help prove that they arrested the right person?  In Islington, England, over a 3-day period, 7 women complained that they were robbed by a masked man bearing a knife.  British police arrested Mr Wilson [2008] EWCA Crim 1754, when they found him in the area, masked.  He was carrying a knife.  His residence contained property from some of the robberies.  After his arrest, there were no more similar robberies in the area.  The court admitted a police officer's evidence that she searched the computer for more similar complaints after the arrest, and found none.

This is the first time I've seen such evidence accepted by a common-law court.  It's an English decision, and therefore not binding in Canada.  However, the logic makes sense.  If your crime spree (arson, robbery, rape) ends after the arrest, you might consider documenting this for your prosecutor.  Because it's contraversial evidence, you may have to include a copy of this decision before anyone takes the evidence seriously.

The Devil’s Bane

At the National Criminal Law Programme in 2003, Similar Fact evidence was called “The Devil’s Bane”.

Defence counsel don’t like this kind of evidence because it makes their client look like a bad guy even before the jury hears any evidence of the offence charged.  This prejudices the accused.

Judges don’t like it either because such prejudice makes for an unfair trial.

Defining the Issue – the Prosecutor’s Job

Diligent crown will identify a specific issue which similar fact evidence probes.  For example:

The necessary double-inference

 “Propensity reasoning involves two inferences.  First one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind).  Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue… Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning t5o infer that an accused committed the act alleged.  Viewed in this way, the evidence of the accused’s discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion…”  R. v. Batte (2000) 145 CCC (3d) 449 (Ont CA).


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