Cross-examination as to bad character

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This article describes the situations in which the defendant in a criminal trial can be cross-examinated about his bad character, which may include previous criminal convictions, among other things. Character may also be an issue in cross-examination of other witnesses, but the rules are somewhat different. The prosecution may also wish to adduce original evidence of the defendant's bad character -- this is increasingly allowable, and dealt with in the article 'Evidence in chief of bad character'.

At common law, the defendant was not a competent witness, so the question whether he could be cross-examined as to his bad character never arose. The reason the defendant was not competent, was that it was felt that if a guilty person testified in his own behalf, he would be bound to lie. Consequently the criminal evidence act (1898), along with creating a right for the defendant to testify, created an obligation for him to stand cross-examination. In certain circumstances that cross-examination may go to the defendant's bad character.

At the time of writing, the relevant provisions of this hundred-year-old Act are still in force, but they are due to be replaced by the Criminal Justice Act 2003 shortly, whose provisions are very different. However, in order to understand the changes made by the 2003 Act, it is necessary to understand the pre-existing law.

Please note that the 1898 has been renumbered by amendments over the years; in this article, the modern renumbering is used.

Cross-examination under the 1898 Act

s.1(2) states that the defendant...

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...

except in situations listed in s.1(3):

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

(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 the deceased victim of the alleged crime; or

(iii) he has given evidence against any other person charged in the same proceedings.

S.1(3)(i) is thought to be redundant in practice, because the courts take a dim view of evidence that shows that the defendant has a disposition to commit offences of the same meta as that charged (see evidence of disposition) in cross-examination. Such evidence could be adduced at common-law under the similar fact evidence rules during Examination In Chief, and this was the preferred mechanism.

S.1(3)(ii) allows bad character evidence to be adduced if the accused puts his own good character, or someone else's bad character, in issue (see putting character in issue). S.1(3)(iii) prevents the defendant undermining the defence of a co-defendant without challenge.

These provisions are somewhat vague, and have caused many difficulties in interpretation over the last hundred years or so. But the general thrust of the legislation was that the prosecution could not cross-examine the accused about his criminal propensity, or his general bad character, unless he himself put his character in issue.

Cross-examination under the Criminal Justice Act 2003

The 2003 Act does not distinguish evidence of the defendant's bad character elicited in cross-examination, from evidence given in chief by a prosecution witness. The triggers which lead to admissibility of the defendant's bad character are set out in s.101(1), and are discussed in the article Evidence Of Bad Character.

The effect of the 2003 Act in this area is that it reduces the need for the defendant to make a tactical decision whether to testify. Under the previous law, a defendant could make imputations about the character of a prosecution witness and, so long as the defendant did not testify, he was safe from having his own bad character revealed (R v butterwasser (1940)). Under the new Act, the triggers to admissibility of bad character evidence will apply whether or not the defendant testifies.

Criminal Law