Putting the bad character of a co-defendant in issue

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In the law of evidence, to 'put character in issue' is to adduce evidence of good character orevidence of bad character in such a way as to engage a right that the opposing party has. For example, at common law if a defendant called witnesses to testify that he was a fine, upstanding, moral citizen, he had 'put his good character in issue'. The prosecution was consequently allowed to lead evidence of the defendant's bad character to rebut his good character evidence.

At common law, the only evidence that was admissible of the defendant's good character was evidence of his general reputation (R v rowton (1865)). However, this rule has been given a very flexible interpretation by the courts. Whatever interpretation is adopted by the court, the defendant will be putting his character in issue if the evidence he wishes to adduce is admissible.

Under the criminal evidence act (1898), a defendant puts his good character in issue (s.1(3)(ii)) if he has personally or by his advocate asked questions with a view to establishing his own good character. The consequence of putting character in issue here is that the defendant can be subject to cross-examination on his bad character, including previous convictions. This provision does not give the prosecution a right to adduce orginal evidence (EvidenceInChief) of bad character, but the common law provisions might.

The Criminal Justice Act 2003 (not fully in force at the time of writing) does not use the language of 'putting character in issue'; however, it does speak of 'correcting a false impression given by the defendant'. It is assumed that a 'false impression' is wide enough to encompass good character evidence given by the defendant. The 2003 Act does not distinguish between original or cross-examination statements made by the defendant, so the prosecution will get the right to adduce bad character evidence under the same criteria (whatever they turn out to be) whether the defendant testifies or not. Most likely the same tests will apply to the defendant's 'creating a false impression' as apply at present to 'putting good character in issue'.

At common law, the principle was that the defendant could make whatever attacks he liked on the characters of prosecution witnesses. After the 1898 Act came into force, a defendant who chose to testify in his own defence was more restricted -- if he cast imputations against other witnesses, he could be cross-examined as to his own character; but the prosecution could still not adduce original evidence of the defendant's bad character. This position was confirmed in R v butterwasser (1940) -- so long as the defendant stayed out of the witness box, he could say what he liked about prosecution witnesses.

Under the 2003 Act, making an attack on another person's character will allow for the admission of original bad character evidence by the prosecution, whether the defendant testifies or not. However, the effect of the new Act on cross-examination of the defendant is moot, since the defendant can be cross-examined about his bad character without restriction.

The 1898 Act uses the expression casting imputations, while the 2003 Act speaks of making an attack on the character of another person. Arguably the caselaw on what constitutes an imputation will provide guidance on what amounts to an attack on the character.

Under the 1898 Act, if a defendant gave evidence against a co-defendant, during his testinony, he was deemed to have put the co-defendant's character in issue, and as a consequence the defendant could be cross-examined on his bad character. It was not clear whether giving evidence against the co-defendant carried the implication that the testimony had to be hostile, or that the defendant had the intention of putting the blame on his co-defendant. However, this was subsequently clarified by caselaw -- it was only necessary that the effect of the testimony would be to undermine the co-defendant's defence in a significant way.

A particular problem is the situation where a plain denial of culpability by one defendant would, by its very nature, implicate another defendant. After all, if only two people were in a position to commit the offence, and one of them denies doing so, by definition he is implicating the other. According to R v varley (1982), a plain denial does amount to giving evidence against a co-defendant, provided that the effect of the defendant's evidence, if believed by the jury, would be that the other co-defendant is guilty.

Under the 2003 Act, the defendant runs the risk of his bad character admitted if he attacks the character of any other person, whether that person is a co-defendant or not (s.101(1)(g)). So an imputation that, for example, a co-defendant has previous convictions would undoubtedly trigger the relevant provisions. However, the 2003 Act does not seem to make it any clearer whether its provisions are triggered by a mere denial of culpability by one defendant. The language used -- makes an attack on the character -- is stronger than the 1898 formulation -- gives evidence against. Arguably, a plain denial will not be strong enough to be classed as an attack on the character.

However, it is conceivable that a denial might activate s.101(1)(g), as being an issue between the defendant and a co-defendant. An allegation that the co-defendant is untruthfull will certainly trigger s.101(1)(g) if it has the effect of undermining the co-defendant's defence (because s.103(1) says so), but it is not entirely clear whether other evidence that would have the same effect should be admissible.