Similar Fact Evidence in Court
Similar fact evidence proved far the most difficult of all the [evidence] topics
– Criminal Law Revision Committee, 1972
A difficult subject
Similar fact evidence (SFE) is considered the most difficult topic to understand in the law of evidence. 1972 England’s Criminal Law Revision Committee lamented that “[SFE] proved far the most difficult of all the [evidence] topics”. Naturally, SFE isn’t a popular choice among law of evidence’ students.
This essay attempts to convince that this is not the case. SFE is rooted in common sense. We come across SFE in our everyday life and we make decisions based on our past similar experiences. The application of SFE, however, creates several challenges which will be discussed below.
Despite its’ shortcomings, it’s important to identify SFE. If necessary, to challenge against its’ admission to avoid the dangerous impression that it may produce.
What is similar fact evidence?
SFE is a type of bad character evidence. Past misconducts that are similar to your current case are used as evidence in court.
This is to prove that since you have committed the same thing in the past, you are likely to have behaved in a similar manner again.
Similar Fact Evidence is relevant and admissible as evidence
Generally, the law of evidence does not allow parties to bring in past misconduct because what someone did in the past does not guarantee that the person has done it again. SFE, however, is one of the exceptions to this general rule. The Evidence Act 1950 views SFE to be relevant both in criminal and civil cases. Therefore, it allows parties to bring in past misconduct under sections 11(b), 14, and 15 as evidence.
As said earlier, SFE is rooted in our daily experience. When we leave the house to go for a stroll, a dark sky indicates that it’s going to rain. So, we decide not to go. This decision is based on our past experience that dark sky is often followed by rain. It may, or may not rain. If it does, then it reaffirms our belief of dark sky means sign of rain. Our decision is, therefore, correct. Here, SFE is also similar fact experience!
If it doesn’t, then we’ve lost our chance for recreation. Self-analysis would suggest that we’ve made a poor decision (or good decision, because you really don’t feel like doing it!). Either because we don’t have sufficient information to reach that decision or just that the odds are simply in favour of not raining.
Why this type of evidence is bad?
SFE is highly prejudicial and casts bad impression on you. Even though, there is insufficient evidence available to prove the conduct element, SFE might, now show that you’ve the capability to commit similar act. Therefore, you’ve done it again.
This is a logical fallacy. SFE is used to prove a fact from belief: deriving an ‘is’ from an ‘ought’.
As an example,
Premise 1: SFE shows KeldaiDadah [ a fictitious character ] did it several times in the past.
Premise 2: KeldaiDadah has the capability of doing it.
Conclusion: Therefore, KeldaiDadah did it.
SFE is one of the most effective and damaging evidence to be used against you. All the opposing party has to tender is, proof of past actions in the current case. Even though, he or she may not have actual evidence that proves the particular act. Clearly, this affects your right to presumption of innocence and right to a fair trial.
It’s one of the most effective and damaging evidence to be used against you.
The law provides for some safeguards to ensure that your rights are not too adversely affected. If the party submitting this evidence offends these safeguards, the party against whom, it is tendered is entitled to object and ask the court to exclude the evidence.
Challenges against SFE in court
Among the challenges available to oppose SFE from being admitted in Court are:
1. General propensity to commit
If the SFE is used to show that the person has a general propensity to commit an act, then the evidence isn’t allowed. This is one of the first rules laid down for SFE.
Lord Herschell in Makin v AG for New South Wales [1894] AC 57 disapproved that, it isn’t right for the prosecution to use SFE to show that the accused had been guilty of criminal acts other than those covered by the charge. For the main purpose to convince that the accused is a person likely from his general criminal behaviour to have committed the offence for which he is now being prosecuted.
2. SFE must be convincing
The SFE adduced must be convincing enough to overcome the prejudicial effect that it creates. The party offering the SFE must justify the need to do so.
The Court will carry out a balancing exercise by weighing the weight of such evidence against its prejudicial effect. The court is, then, justified to admit SFE where the evidence is convincing and overweighs its’ prejudicial effect.
The rationale for excluding SFE is to allow everyone who has been charged with an offence is only convicted for acts covered by the charge. Not for crimes they haven’t been proved to have committed yet. [ Azahan bin Mohd Aminallah [2005] 5 MLJ 334, CA ]
3. No issue before the Court for SFE to be considered
If there is no issue before the court on whether the act was accidentally or innocently committed, then SFE is not required. SFE isn’t allowed if the defence hasn’t raised or decided to bring in any proof challenging the mental element.
4. Not relevant to the current case
SFE on other incriminating substance found together with evidence that is relevant to the case isn’t allowed. Especially, when no action – prosecution – is taken in relation to other incriminating substance.
The Court in Jazri Johari [2011] 1 LNS 181 said, “the evidence of one crime not reduced to a legal certainty […] cannot provide evidence of unconnected crime.”
Conclusion
As suggested earlier, similar fact evidence is very much part of everyday’s experience. We’re not disadvantaged in any way by relying on SFE. It usefully guides us to making better decisions. SFE, however, cannot be endorsed with the same spirit to be readily used in court, especially when it involves life and liberty of a person. It’s important to remain vigilant to the manner and form similar fact evidence is used and it’s only admitted after Court’s careful scrutiny as advised in Azahan bin Mohd Aminallah [2005].
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