The Legal Structure of Propensity Evidence

International Journal of Evidence and Proof, Vol. 20, No. 2, pp. 136-161, 2016

Sydney Law School Research Paper No. 16/17

35 Pages Posted: 8 Mar 2016 Last revised: 28 Apr 2016

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Date Written: March 6, 2016

Abstract

The law excluding and admitting evidence of defendants’ other misconduct has long been regarded as overly complex across the common law world. Various reforms have been tried through case law and legislation but without bringing noticeable improvement. In this paper I have sought to identify and understand the sources of complexity through structural analysis. The article provides a close examination of different forms of the exclusionary rule and admissibility tests, the laws’ policy goals, the regulated inferences and the relationship between these various things. The analysis provides neither a neat picture of the law nor a recipe for simplification. Instead it offers a greater understanding of the forces operating on the law, the various forms the law may take and their functionality. Propensity evidence occupies complex heterogeneous terrain, but landmarks, signposts and pathways for reform can be discerned.

Keywords: Evidence, proof, tendency, coincidence, propensity, similar fact, prejudice, probative value

JEL Classification: K10, K30

Suggested Citation

Hamer, David A., The Legal Structure of Propensity Evidence (March 6, 2016). International Journal of Evidence and Proof, Vol. 20, No. 2, pp. 136-161, 2016, Sydney Law School Research Paper No. 16/17, Available at SSRN: https://ssrn.com/abstract=2743029

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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