See also Similar Fact
"A man’s character is his fate."
Heraclitus (c. 535–c. 475 BC)
"The best index to a person's character is how he treats people who can't do him any good, and how he treats people who can't fight back."
Abigail Van Buren
Judges exclude evidence that the suspect is a bad man because mere badness doesn’t prove he did the deed, but the judge or jury will dislike him, and want to convict him even if the evidence doesn’t show he’s guilty.
BUT
Evidence of bad character or bad acts is admissible in a trial if:
After admitting evidence of this sort, the judge must warn the jury not to use it to decide that the accused is a bad guy who deserves to be convicted, just to punish him for the prior bad acts.
At the investigation, you cannot predict how probative the suspect’s prior bad acts will be to issues in the case. If it is a serious matter, then the prosecutor will be grateful to know:
When testifying, don’t mention any of the prior bad acts until specifically asked, or until the judge rules that the evidence is admissible.
When investigating relevant bad acts, there is no need to restrict yourself to offences for which your offender was convicted.
When investigating, there is no obligation to dig up all the bad things a suspect ever did (though it’s useful for a Dangerous Offender Hearing).
In cases of violence, the victim’s or deceased’s propensity for violence is a relevant fact that the defence may want to explore. Therefore, if you run across evidence of such a propensity for violence, it must be disclosed to Crown and defence.
Evidence of the accused's bad character can prejudice a jury against
him.
Appeal courts so fear this prejudice that they will overturn
convictions
where it appears that this prejudice may have affected the
verdict. Cautious
prosecutors will avoid bad character evidence unless they need it to
make the
case.
Where two co-accused blame each other for the offence, each may
present evidence of the other's bad character, to show that the other
is more likely to have committed the offence. This can cause
trouble for the prosecutor and judge, because such evidence is
admissible to show the innocence of the less-bad accused, but not the
guilt of the more-bad accused. Juries must be carefully
instructed about this difference.
After his third trial for the same murder, Mr Vanezis (2006 Ont CA) won another appeal, based upon the risk that bad character evidence prejudiced the jury against him. Ten years after the murder, the Crown must decide whether to put him on trial again.
In an extortion charge, evidence of the accused’s association with the Hell’s Angels made his threats and the victim’s response to them more credible. Coates [2003] OJ no 946 (Ont CA). Similarly, Lamirande’s involvement with “The Indian Posse” explained how he could execute a sophisticated robbery. Details of the depth of Mr Bukmeier’s (1998 BCCA) involvement in the drug trade assisted the jury understanding his murder of a rival drug trafficker who owed him money.
In spousal violence, a history of threats, violence or stalking may show animus – how the suspect felt toward the victim. P.S., 2007 ONCA 299 Paterson (1998) 122 (3d) 254 (BCCA) S.B. [1996] OJ 1187; Bradley [2003] PEIJ No. 41 at para 28. Merz (1999) 140 CCC (3d) 259 (Ont CA). G.(M.A.) (1997) CCC (3d) 481 (Ont CA). In D.D., (2005 Ont C.A.) a criminal harassment case, it was also admissible to prove that the complainant's fear of him was reasonable.
The fact that S.(G.)
(2001 OntCA)
spent a lot of time in jail helped explain why the complainant lent him
money
after he raped her, and why she didn’t report the attack.
Likewise, some prior acts of intimidation can
explain
why a witness didn’t report. Cuadra
(1998 BCCA)
Evidence that the suspect was a drug dealer was admissible where the evidence linking the suspect to the bag of drugs was the suspects fingerprints. Lepage[1995] 1 SCR 654.
Evidence that the suspect dominated and controlled the siblings of the girl he raped probed why the complainant waited so long to complain, and whether her descriptions of domination and control were credible. B.(F.F.) [1993] 1 SCR 697.
Mr Cudjoe
2009 ONCA 543 stabbed his wife to death when she announced she was
leaving him. The fact that he assaulted her twice in the
preceding
month showed the nature of their relationship, and his animus toward her.
Mr Leforte’s (1961) 130 CCC 318 (BCCA) repeated acts of cruelty to his common-law’s 2-year old were admitted to show motive to kill the child, and to rebut a defence of accident.
A previous shooting of a boarder in the deceased’s home showed Mr Redd’s motive to kill the deceased. (2002 BCCA 325)
A fascination with
death and
heavy metal music showed Mr Tobin’s motive
to
commit a relatively pointless murder. (1992)
74 CCC
(3d) 508 (Ont CA).
Miss C complained that Mr Perrault
2007 BCCA 208 sexually assaulted her. As they were leaving a
party, she said that he said “are you going to sleep with me?”
When she said no,
he said “well somebody’s gotta sleep with me” or words to that
effect. Despite this, she left with him, and he made his
attack. During the trial, Miss S said that he grabbed at her
too. Defence complained that this was just bad character
evidence, but the court admitted the evidence because it established
his motive at the time.
Probative evidence of bad acts may be admitted, but if the judge
does not
warn the jury how to use this evidence, then the Court of Appeal will
make us
do the trial again. R.
v.
Lerat, 2007 BCCA 286.
Mr Earhart 2010 ONCA 87 was a violent guy involved in drugs. Mr Kirk was with him when he murdered an unfortunate dealer. At the trial, Kirk claimed he did not kill Earhart, and to the extent - if any - that Kirk helped Earhart, Kirk acted under duress. Kirk's lawyer presented lots of evidence of Earhart's violence, and the jury acquitted him. Earhart complained that this evidence of his bad character prejudiced the jury against him. The appeal court disagreed, because the trial judge had instructed the jury not to convict just because Earhart was a bad guy.