Understanding Bad Character Evidence in Criminal Trials
In criminal trials, evidence of a person’s past behaviour — especially conduct suggesting dishonesty or a tendency to commit offences — may sometimes be introduced to support or challenge their credibility. This is known as bad character evidence.
Although powerful, this type of evidence is not automatically admissible in court. Permission has to be granted by the Trial Judge. Bad Character evidence is carefully controlled to prevent unfair prejudice, particularly against the accused. This article explains what bad character evidence is, when it can be used, and the safeguards courts apply to ensure a fair trial.
What is Bad Character evidence?
Under section 15K of the Evidence Act, bad character is evidence which shows a tendency towards misconduct/bad behaviour that is not directly linked to the offence charged, or concerned with the investigation of the offence. This type of evidence can apply to both the accused and any witnesses and may include:
- Previous criminal convictions- For instance, a prior conviction for larceny can be used to suggest a tendency to commit theft related offences or to engage in dishonesty;
- Pending criminal charges- Offences that are currently before the court but not yet decided;
- Unproven allegations or acts which suggest that the accused or a witness committed a criminal offence or behaved badly, even where there is no charge.
While this article focuses on “bad” character, the law also recognizes that an accused may also rely on good character evidence —such as a clean criminal record- a subject explored in our previous article, “What About My Good Character?”
Is Bad Character Evidence Usually Allowed?
No. As a general rule, bad character evidence is not allowed unless a Judge gives permission.
However, there are specific exceptions, where the court may allow it — but only if its value in helping resolve an important issue outweighs any prejudicial effect.
The Judge must carefully assess the proposed bad character evidence to ascertain whether it complies with the requirements of the law, and guided by the principle of fairness, determine whether the proposed evidence, if admitted, would prejudice the accused, resulting in an unfair trial.
What are the Exceptions?
Some of the exceptions to the general rule where bad character evidence may be admitted into trial proceedings on behalf of an accused, are as follows:
- Both parties (who are both parties?? Prosecution and Defence??) agree to admit the evidence;
- The accused introduces it voluntarily,
- The evidence is important explanatory evidence, in the absence of which, it would be difficult or impossible to understand the case;
- The evidence is relevant to an important issue between the accused and the prosecution;
- The evidence has substantial value in proving an important issue between the accused and a co-accused;
- The evidence is required to correct a misleading or untrue picture/impression given; and
- The Accused has made an attack on a person/witness’ character.
In relation to a non-accused person’s bad character, the court will only allow same to be relied on at trial where the evidence is important explanatory evidence, or has substantial probative value in relation to the case or if the parties??? agree to it.
How is Bad Character Evidence Introduced?
To present bad character evidence, the parties must apply to the Judge, ideally before the trial starts, to avoid unfairness to the accused. The application must meet the legal requirements, and the other party will have a chance to respond. The Judge will then consider both sides and decide whether to allow the evidence, giving reasons for the decision.
What is Bad Character Evidence used for?
If admitted, bad character evidence may assist the fact finder (Jury/Judge):
- To assess the credibility of the accused or a witness, such as a tendency to be dishonest;
- To determine whether the accused or witness has a tendency to act in a certain way, relevant to the charges before the Court;
- To help the fact finder to understand the full context of the allegations.
It is important to note that when considering bad character evidence, it cannot be the sole basis upon which the accused individual is found guilty. To safeguard against this possible unfairness, Judges, during trial proceedings give express directions or warnings to the jury and themselves (in a judge alone trial), that such evidence is not proof of guilt.
Conclusion
As outlined above, bad character evidence plays an important role in criminal trials. However, it must be examined and assessed carefully as its misuse can result in unfairness to the accused.
The law sets out clear rules and exceptions governing when and how this evidence can be introduced. Ultimately, the decision rests with the trial judge, who must balance its relevance against the potential for unfairness.
If you are involved in a criminal case and are concerned about the impact of bad character evidence—whether as an accused person or a witness—it’s always best to consult a qualified legal professional.
Submitted by:
Markus Isaac
Public Defender Entry
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Website: laaa.org.tt