Probative But Still Prejudicial? Rethinking Exclusion of Propensity Evidence in Sexual Offence Cases

Jury Practice and Research Conference, Parliament House, NSW, December 12, 2007

Sydney Law School Research Paper No. 10/21

11 Pages Posted: 5 Feb 2010

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Date Written: February 4, 2010

Abstract

Propensity evidence has the capacity both to be highly probative and seriously prejudicial. Recent decisions and legislation in England have downplayed the risk of prejudice in favour of law enforcement, and have opened up admissiblity. In Phillips the High Court recently placed weight on the the risks to the defendant's rights and confirmed its stringent approach to admissibility. Recidivism data and psychological theories of character call into question the High Court's claims about the low probative value of propensity evidence. At the same time, however, the law reforms in England may give free sway to the prejudice flowing from a defendant's criminal record, particularly in paedophilia and sexual assault cases.

Keywords: propensity evidence, bad character, similar facts, admissibility, exclusion, recidivism, inference, proof, Phillips, Criminal Justice Act 2003

JEL Classification: K10, K14, K30, K40

Suggested Citation

Hamer, David A., Probative But Still Prejudicial? Rethinking Exclusion of Propensity Evidence in Sexual Offence Cases (February 4, 2010). Jury Practice and Research Conference, Parliament House, NSW, December 12, 2007, Sydney Law School Research Paper No. 10/21, Available at SSRN: https://ssrn.com/abstract=1548196

David A. Hamer (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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