current legal problems redmayne

= e Ethics of Character Evidence

Mike Redmayne*

Introduction

In everyday life, we often judge people on the basis of their past behaviour. We avoid contact with those who have previously been rude to us, do not revisit the restaurant where we got bad service, and appoint to jobs those with good CVs and references. None of this is usually seen as problematic. But are things di erent if we hold a defendants previous misbehaviour against him in a criminal trial? To give an example (one which we will keep returning to): suppose that D is on trial for burglary, and he has a previous conviction for burglary. Should a court admit the previous conviction as evidence of his guilt? = is deceptively simple question raises a number of complex issues.

In Australia, Canada, New Zealand, and the United States, the bur-glary conviction would be inadmissible, unless there was some factual similarity to link it to the present charge. England and Wales, however, has recently made a dramatic break with that common law position. = e

* Law Department, London School of Economics. A version of this paper was given as a lecture at UCL Faculty of Laws in November 2007: I am grateful to the audience for their interest and their questions. Amit Pundik and Tom Poole gave helpful comments on a written draft.

On Australia, and the English position prior to the Criminal Justice Act 2003, see C. R. Williams, Approaches to Similar Fact Evidence: England and Australia, in P. Mir eld and R. Smith (eds.), Essays for Colin Tapper (London: LexisNexis, 2003), 2142; note also the High Courts con rmation of the Australian approach in Phillips v R [2006] HCA 4, discussed in D Hamer, Similar Fact Reasoning in Phillips: Arti cial, Disjointed and Pernicious (2007) 30 University of New South Wales Law Journal 60938. For the Canadian position, see R v Handy [2002] 2 SCR 908, discussed in M. Redmayne, Similar Facts, Familiar Obfuscation (2002) 6 International Journal of Evidence and Proof 243250. On New Zealand, see the New Zealand Law Commissions paper, Disclosure to Court of Defendants Previous Convictions, Similar O ending and Bad Character, Issues Paper 4 (Wellington, 2007), Ch 3. = e US approach is covered in R. O. Lempert, S. R. Gross, and J. S. Liebman, A Modern Approach to Evidence: Text, Problems, Transcripts and Cases (3rd edn, St Paul, Minn: West Publishing, 2000), Ch. 5.

For example, if in the previous burglaries D had gained entry by using a blowtorch to crack the glass, and that method was used in the burglary now charged, that might have been su cient similarity to gain admissibility: see R v Mullen [1992] Crim LR 735.

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Criminal Justice Act 2003 has made it much easier than it was previously to introduce previous convictions to prove guilt. = e burglary example described above is probably now a borderline case, but if D had two or three previous convictions for burglary, they would in all likelihood be admitted as evidence of his propensity to burgle, even if there were no par-ticular factual similarities between the burglaries. = is is controversial. = e interesting question, of course, is why this should be so, especially in the light of our reliance on character in everyday decision making. = is is the question taken up in this paper.

= e usual reason given for excluding previous convictionsand bad character evidence more generallyfrom trials is that it might prejudice the fact nder. While that claim should not be dismissed outright, there are reasons to be sceptical of it. Crimes such as burglary are relatively rare among the general population, but they have high recidivism rates. It seems to follow from this that a previous conviction for burglary has considerable probative value in proving the commission of a new bur-glary. While empirical studies do suggest that juries give some weight to previous convictions, the e ects are relatively modest. = e studies, therefore, do not obviously support the argument that previous con-victions are more prejudicial than probative. For the purposes of this paper, then, it will be assumed that juries do not give too much weight to character evidence. Whether or not it is right, this assumption will allow us to focus on the question whether there might be other rea-sons for objecting to the use of bad character evidence in criminal trials. Might there be something morally problematic in judging people on the basis of their previous bad acts? = e remainder of this paper explores this question.

= e leading case is R v Hanson and Others [2005] 2 Cr App R 21. Various other cases give a reasonable idea of where the line is now being drawn: R v M [2006] EWCA Crim 3408; R v Brima [2006] EWCA Crim 408; R v Atkinson [2006] EWCA Crim 1424; R v Wood [2006] EWCA Crim 2270.

= is paper generally refers to, and focuses on, the admissibility of previous convictions. Many of the arguments surveyed here could be adapted to cover other types of bad character evidence, such as non-criminal misconduct (e.g. R v Dolan [2003] 1 Cr App R 18) or patterns of behaviour which have not (yet) led to conviction (e.g. R v Smith [191415] All ER 262). However, occasionally the arguments apply peculiarly to previous convictions: see further note 51 below.

See M. Redmayne, = e Relevance of Bad Character (2002) 61 CLJ 684714. See S. Lloyd Bostock, = e E ects on Juries of Hearing about a Defendants Previous

Criminal Record: A Simulation Study [2000] Crim LR 73455; T. Eisenberg and V. P. Hans, Taking a Stand on Taking the Stand: = e E ect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes Cornell Legal Studies Research Paper, 2007, No 07012.


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2 e Ethics of Character Evidence 373

Moral Accounts of the Criminal Trial and their Limits

It might at rst seem odd to claim that the rule against admitting a defendants previous convictions can be justi ed by moral concerns. = e criminal trial, it might be thought, is about deciding who is guilty and who is not. On this view, so long as defendants are treated humanely and evidence is given appropriate weight, the idea that there can be a moral objection to evidential practices makes little sense. = ere is, however, a di erent, and in uential, view of the criminal trial, which holds that there are moral constraints on trial practices. One way of grounding this view is to claim that the criminal trial involves the communication of censure to those who are found guilty or, in the slightly more ambitious terms of Antony Du , that criminal trials call defendants to account for their wrongdoing. From this, it can be argued that defendants cannot be expected to understand the courts censure, and that the court cannot call defendants to account, unless the trial respects their dignity and treats them as moral agents. = is moral view of the trial might explain why, for example, courts exclude improperly obtained evidence: the message of censure, or the courts moral standing, would be undermined if the court were to condone o cial wrongdoing in the process leading up to the nding of guilt. Although this account of the criminal trial raises various questions, we will take it as a given for the purposes of the current enquiry. = e question then becomes: does this sort of view of the criminal trial cre-ate a problem for bad character evidence? To return to the initial example: would using Ds previous conviction for burglary to prove his guilt be in any way incompatible with treating him as a moral agent, or be in tension with the censuring message conveyed by the verdict?

For a paradigmatic expression of this view, see L. Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge: Cambridge University Press, 2006), espe-cially Chs. 7 and 9.

See, for example, I. H. Dennis, 2 e Law of Evidence (3rd edn, London: Sweet & Maxwell, 2007), Ch. 2; P. Roberts and A. Zuckerman, Criminal Evidence (Oxford: Oxford University Press, 2004), Ch. 1. = e most in uential statement is probably R. A. Du , Trials and Punishments (Cambridge: Cambridge University Press, 1986), Ch. 4.

R. A. Du , Punishment, Communication and Community (New York: Oxford University Press, 2001). = e view is applied to the trial in Du s Trials and Punishments, ibid, and at greater length in R. A. Du , L. Farmer, S. Marshall, and V. Tadros, 2 e Trial on Trial: Volume 3: Towards a Normative 2 eory of the Criminal Trial (Oxford: Hart Publishing, 2007). Du also expands on the theme, with particular reference to the criminal law, in Answering for Crime (Oxford: Hart Publishing, 2008).


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Suppose that we decide that there is a moral argument against using previous convictions to prove guilt. We will then be faced with the question whether this leads to a total prohibition on the use of previous convictions. = ose who take a moral view of the criminal trial presumably think that criminal trials are justi ed; what justi es them, they would probably argue, is the good of retribution. But if retribution is valuable, a complete ban on the use of previous convictions to prove guilt will be costly. Stra en provides a good example. Stra en had previous convictions for murdering young girls. = e attacks were non-sexual and Stra en made no attempt to hide the bodies. When the unhidden, unmolested body of a young girl was found close to where Stra en had just escaped from prison, his previous convictions were admitted as the primary evidence against him, and led to his conviction. We would have to view the moral structure of the criminal trial as being astonishingly rigorous if it were to lead to the conclusion that previous convictions could not be used against Stra en, because this would almost certainly result in his acquittal; a high price to pay in terms of lost retribution. Were the previous convictions less probative, or the crime less serious, exclusion of the evidence would be more acceptable. For this reason, moral accounts of the character rule are likely to have some sort of exception built into them.

Given the foregoing, the simplest way to think about an exception to a moralized character evidence prohibition would be in terms of balanc-ing the probative force of the evidencewhich speaks to the question of whether D deserves to be found guiltyand the seriousness of the o ence, against the moral cost of using the evidence. = is assessment of comparative reprehensibility is close to what many advocate as the appro-priate test for the admissibility of improperly obtained evidence, such as a confession gained after D was wrongfully denied access to legal advice. Conceptually sound though this may be, when it comes to character evidence it might not be very satisfactory in practice. = ere is no obvious way to weigh the relevant factors against each other. It might be that even minimal probative value would always outweigh the moral cost of admit-ting previous convictions, at least for mala in se, or it might be that the

R v Stra en [1952] 2 QB 911. In fact, Stra en had been found un t to plead, but this detail is not important for the

purposes of the present discussion. Given the repeated use of Stra en as an example, and as one where guilt is obvious, it should be noted that not everyone is convinced of Stra ens guilt: see B. Wo nden, Insane, Guilty, or Neither?, 2 e Guardian, 26 May 2001.

See e.g. Dennis, note 8 above, 1016; Roberts and Zuckerman, note 8 above, 15760; A. L.-T. Choo, Evidence (Oxford: Oxford University Press, 2006), 12937. = e phrase is taken from Y. Kamisar, Comparative Reprehensibility and the Fourth Amendment Exclusionary Rule (1987) 86 Michigan Law Review 150.


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moral cost is so high that we should conclude that even Stra ens previous convictions are inadmissible. Perhaps things are not quite as indetermi-nate as this, though. When it comes to improperly obtained evidence, gut reactions do seem to lead to a reasonable degree of consensus, at least in extreme cases: evidence obtained by torture will always be illegitimate, but it is appropriate to use improperly retained DNA to prove rape. And the balancing process may well become less hazy as regards previous convictions once we have said more about the moral concerns that they do raise. With improperly obtained evidence, though, the comparison of the wrong done by the state with the wrong done by the defendant does look to involve the balancing of rough commensurables: it seems as though we will just have to accept that things will be much vaguer if we take a balancing approach to previous convictions.

= ere may be a way for advocates of a moralized character evidence prohibition to avoid this problem. It might be argued that the use of character evidence in cases like Stra en is permissible because it does not engage the moral prohibition at all. Stra en and cases like it might be seen as di erent in kind, rather than just in degree, from our burglary example. In fact, the common law provides some resources for think-ing about the character evidence prohibition in this way. = e common law admitted Stra ens previous convictions, along with those of vari-ous other defendants. It is not easy to generalize about the common law approach to previous convictions, because the shape of the exception to the character rule varies across time and between jurisdictions. But at least one in uential formulation of the rule suggests that the exception re ects a di erence in kind: the rule against bad character evidence is sometimes said to exclude forbidden reasoning, a concept often explicated in terms of reasoning from a propensity to commit crime (or reasoning from general propensity, contrasted with permissible reasoning from a speci c propensity to commit crime in a particular way, such as by killing young girls and not hiding their bodies). = is theme in the common law of

For strong judicial reactions to torture evidence, see A (FC) and others v SOS for Home Dept [2005] UKHL 71. In R v Nathaniel [1995] 2 Cr App R 565, the Court of Appeal did exclude improperly retained DNA evidence, but this decision is controversial: cf Dennis, note 8 above , 3145 and Attorney-Generals Reference (No 3 of 1999) [2001] 1 All ER 577, where the House of Lords hints that it would have admitted the evidence in Nathaniel. Some commentators are prepared to endorse the decision in Nathaniel, but they approach the issue from a perspective di erent to the legitimacy/balance one discussed here: see K. Grevling, Fairness and the Exclusion of Evidence Under Section 78(1) of the Police and Criminal Evidence Act (1997) 113 LQR 66785; A. Ashworth and M. Redmayne, 2 e Criminal Process (3rd edn, Oxford: Oxford University Press, 2005), 3301.

See Redmayne, Similar Facts, note 1 above.


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character evidence might even be taken to support the argument for a moralized version of the rule, for it hints that the common law has long been aware of the ethical objections to character reasoning, even if it has not attempted to theorize them nor make them explicit.

For now, it su ces to point out that there would be a high cost if the character rule was taken to be an outright ban on using previous convictions to prove guilt, that there are two possible approaches to justifying the admission of bad character evidence, and that the forbidden reasoning approachwhich sees a sharp distinction between Stra en and cases such as our burglary exampleis initially the more attractive one. We will say more about the viability of that approach below. With that by way of introduction, we can now turn to explore various ways in which a moral objection to character evidence might be formulated.

* e Signi cance of Desistance

= e moral accounts we will examine all seem to revolve around simi-lar themes, though the themes get developed in various di erent ways. A central theme involves the signi cance of desistance from crime, so we should begin by saying something about desistance, and noting one relatively straightforward way in which it complicates the inference that might be drawn from character evidence. = e argument for the admissi-bility of previous convictions assumes that a previous conviction shows a propensity to commit crime. Support for the argument can be found in the fact that recidivism is one of the brute facts of criminology. However, desistance is also a signi cant fact, and one that has recently drawn the attention of criminologists. At some stage, nearly every o ender stops committing crime. Does the possibility of desistance undermine the use of previous convictions to demonstrate propensity to commit crime?

At rst sight, the concept of desistance might not seem to add anything to the concept of propensity. Desistance is the ip-side of propensity; a strong propensity to desist is simply a weak propensity to commit crime. And the statistics which form the basis of the argument that previous convictions show propensity already take desistance into account; desist-ance is thus part of the measure of propensity. For example, if a group of subjects with previous burglary convictions is followed up over a two-year

Previous o ending has been said to be the most signi cant predictor of future o ending: see J. Monahan et al, Rethinking Risk Assessment: 2 e MacArthur Study of Mental Disorder and Violence (New York: Oxford University Press, 2001), 445.


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period, and 60 per cent of them commit a burglary during this time but the other 40 per cent desist, then the 60 per cent conviction rate provides the basis for a measure of propensity. However, this very example hints at the problems lurking here. What if the defendant in our example is one of the 40 per cent who desist? One response to this concern is that the strategy of averaging over the group is perfectly proper. Indeed, it appears to be an inevitable part of evidential inference. 2 is eyewitness might be one of the 20 per cent who make false identi cations, but we take this into account, not by refusing to draw an inference, but by tempering the weight we put on the inference through noting that the probability of true identi cation is only 0.8. We should, however, bear in mind Stephen Jay Goulds warning about the use of averages: variation is the hard reality, not a set of imperfect measures for a central tendency. Means and medians are the abstractions. If there are identi able di erences between those who reo end and those who do not, then basing an inference on the average tendency could be said to over-emphasize the abstraction and to ignore the hard reality. Criminal career research does indicate some factors that bear on the likelihood of desistance: certain life events, such as marriage and employment, can lead to sharp breaks in o ending careers. But Robert Sampson and John Laub caution against thinking that we can easily place subjects in distinct groups in terms of predicting risk of re-o ending: Even if all risk factors were measured without error, our framework posits the continuous in uence of human agency and randomizing events, leading to heterogeneity in outcomes . . . and a lack of causal prediction. = e reference to agency highlights the fact that the defendant himself may have tried to change, may have tried to distance himself from the grim mean of recidivism.

Various issues are emerging here. As stated at the outset, the aim of this paper is to assess moral objections to the use of character evidence to prove propensity to commit crime. Some of the issues relating to the signi cance of desistance, however, seem to involve epistemic objections to the use of previous convictions, for they highlight the inferential dan-ger of relying on average tendencies. It appears, though, that in this area epistemic and inferential objections are often di cult to separate: treating D as if he were like the average might be both morally objectionable and

S. J. Gould, = e Median Isnt the Message, in 2 e Richness of Life: 2 e Essential Stephen Jay Gould (London: Vintage, 2007), 29.

See J. H. Laub and R. J. Sampson, Shared Beginnings, Divergent Lives: Delinquent Boys to Age 70 (Cambridge, Mass: Harvard University Press, 2003), especially Ch. 6.

R. J. Sampson and J. H. Laub, A Life Course View of the Development of Crime (2005) 602 Annals, American Academy of Political and Social Science, 1245, 41.


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inferentially suspect. For now, we will concentrate on the more epistemic end of the spectrum. = e rest of this paper will examine the signi cance of desistance from more moral perspectives.

If we have no information about the defendant that might place him in a group with a lower than average risk of re-o ending, then the analogy with eyewitness evidence, above, suggests that treating him as the average is not problematic on inferential grounds. After all, for all we know, D might have characteristics that put him at a higher than average risk of re-o ending; by treating D as the average we may not be presuming the best about him, but nor are we presuming the worst. = ere is, how-ever, some reason to be suspicious of the eyewitness analogy. With the eyewitness, we will want to enquire into the evidence, to see if there is any particular reason to doubt itor, indeed, not to doubt it. = is will typically be done by cross-examination of the witness about factors such as identi cation conditions, possible bias, and the like. But what is the parallel with previous convictions and the risk of recidivism? If D wants to show that he is less of a risk for re-o ending than the average person, just how is he supposed to do that? It might be very di cult for him to distance himself from the bad acts of others that give the evidence its pro-bative force. It is not easy for someone to show that they have changed, but even in the situations mentioned above, where D can point to factors such as marriage and employment which lower his risk of re-o ending, there is something quite disturbing about the idea of these being explored in evidence: should D be open to cross-examination about the state of his marriage? Could his probation o cer be called to give evidence about his risk status? = e concern here is that the trial might become a general moral enquiry into Ds life, something we would nd distasteful. Our fears about this sort of trial are captured in Camus LEtranger, where the cen-tral character has his lack of emotion at his mothers funeral used against him in court. = ey also seem to be captured in Holt LCJs response to the prosecutions attempt to introduce previous convictions in Harrisons Trial: Hold, what are you doing now? Are you going to arraign his whole life? Away, away! = at ought not to be; that is nothing to the matter.

For further discussion of this approach, and the contrast with Alex Steins theory of evidence law, see M. Redmayne, = e Structure of Evidence Law (2006) 26 OJLS 80522. For the detail of Steins account, see A. Stein, Foundations of Evidence Law (Oxford: Oxford University Press, 2005).

= is is the concern ultimately raised by Peter Tillers in What is Wrong with Character Evidence? (1998) 49 Hastings Law Journal 781834.

A. Camus, Ltranger (Paris: Gallimard, 1942). (1692) 12 How St Tr 833, 864.


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While this is an interesting line of objection to character evidence, there are a number of reasons to be sceptical of its ability to provide a foundation for the exclusion of bad character evidence. While our initial reaction might be that the criminal trial should not be a general enquiry into a persons life, it turns out that something like this occurs in France. Stewart Fields fascinating research into the French criminal trial shows that in more serious cases the trial starts by presenting the accuseds life story. Previous convictions are freely admitted. One way of interpret-ing French practice, in fact, is to assume the two have to go together: if we want to reveal previous convictions, we need to set them in context, to show how they might be connected to circumstances in a persons life that no longer hold. = is might give the defendant some protection from having a propensity inference drawn against him too automatically.

A second problem with the sort of objection outlined above is that it is potentially too strong. Stra en might argue that if his previous con-victions are introduced it will be di cult for him to rebut the inference drawn from them, hard for him to show that he has changed. As was argued earlier, excluding the evidence in Stra en is an uncomfortably high price to pay for the moral values that underlie the exclusionary urge. = ere are various responses to the Stra en problem. One is to argue that we might want to make an exception for cases like Stra en because the crime is serious and the evidence strong. = at is a reasonable response but, as noted above, it provides us with no obvious threshold at which to draw the line. It would not tell us, for example, whether the common law or the Criminal Justice Act approach is preferable. A second response is to argue that cases like Stra en are di erent in kind to our burglary example. In Stra en it might be said that we are relying on a speci c pro-pensity rather than a general one. = at is a popular move in attempts to defend the common law threshold, and more will be said about it below. For now, though, we should note that the distinction between general and speci c propensity does not appear to be helpful here. = e objection to character evidence that we are considering is based on the di culty a defendant might face in challenging bad character evidence, or in the concerns about privacy and the moralization of the trial that might arise if we attempted to place the signi cance of the previous conviction in context. = ese concerns just do not seem to drop out of the picture in cases of speci c propensity. A third way of dealing with Stra en is to argue that the evidence proves that Stra en has not changed, so the concern

S. Field, State, Citizen and Character in French Criminal Process (2006) 33 Journal of Legal Studies 52246.


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that it might be di cult for him to show otherwise has no traction. = is manoeuvre, too, has problems, for it seems to assume Stra ens guilt; and even if that were thought to be acceptable, it appears to establish a high threshold for admissibility.

= ere is another reason why the objection we are consideringwhich involves the di culty D faces in distancing himself from the character inferencemay be too strong. It might apply to types of evidence other than bad character. Motive is an obvious example. If the defendant had a motive to kill his rich uncle, that can be used as evi-dence against him at a trial for murdering the uncle. But this defendant seems to face similar di culties to the ones just outlined: it is going to be hard for him to show that he is not the sort of person to be swayed by nancial motives, at least without opening up a wide-ranging inquiry into his life.

Finally, there is a more complex point, which touches on the nature of propensity. = e line of thought we are pursuing presumes that D may have a previous conviction, but has desisted from re-o ending and thus lost the propensity to commit crime. But the realist meta-physics that seem to be relied on here might be questioned. Propensity is not necessarily some almost tangible characteristic of o enders that comes and goes; propensity may be a construct that wethe fact nders, as it wereuse to express our uncertainty about human behaviour. Criminologists agree that desistance is di cult to identifyone can never be sure that a person has desisted, at least until they dieand it is surely something that is di cult to achieve, just as is any long-term change in behaviour or character. Even outside the context of crime, if we want to claim that we have changedgot rid of some bad habit, saywe should be honest enough to be circumspect about the claim. It also turns out that o enders are over-optimistic about the possibility of change; prisoners predictions of their chances of re-o ending fall some way below the grim reconviction rates, so an o enders argument that he has changed probably has to be viewed sceptically. Propensity

But it may be that something like this is driving the Australian approach to admis-sibility which, in theory, does require a very high threshold for admissibility. Pfennig, the leading authority, seems to condition admissibility on there being no reasonable view of the evidence consistent with the innocence of the accused (Pfennig v R (1995) 182 CLR 461, 484, 490). See further Hamer, note 1 above.

See S. Maruna, Making Good: How Ex-O enders Reform and Rebuild 2 eir Lives (Washington, DC: American Psychological Association, 2001), Ch. 1.

M. Dhami, D. Mandel, G. Loewenstein, and P. Ayton, Prisoners Positive Illusions of = eir Post-Release Success (2006) 30 Law & Human Behavior 63147; R. Moore, Adult O enders Perceptions of = eir Underlying Problems: Findings from the OASys


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may weakenindeed, this seems to hold for most o enders as part of the aging processbut claiming that it vanishes, or, at least, that we would ever have reason to think that it has vanished, is more prob-lematic. = is is not to deny the possibility of change, nor to deny the signi cance of factors such as marriage and employment, identi ed above. But the points just made do take some of the force out of the objection that it is unfair to use previous convictions against a defendant who claims to have changed.

= is rst attempt to identify moral reasons for excluding previous con-victions has come to a rather indeterminate conclusion. But it by no means exhausts the moral arguments that can be made. As we proceed to examine other arguments, we will see that the signi cance of desistanceof moral changecontinues to play a signi cant role.

Autonomy

We do not have to look far to nd a further objection to using bad character evidence to prove guilt. In the previous section we noted the di culty that defendants may face in trying to show that they are not average members of the group of previous o enders; there is also a more purely moral side to this problem. By drawing an inference based on the behaviour of other people, we might be treating defendants in a way that con icts with the moral context of the criminal trial. According to David Wasserman, courts are reluctant to base verdicts on the frequency of misconduct by others or by the defendant himself , because this is incon-sistent with laws commitment to treat the defendant as an autonomous individual, free to determine and alter his conduct at each moment. An objection to using previous convictions to prove guilt that draws on the value of autonomy turns out to be quite common; it occurs, in various

Self-Assessment Questionnaire, Home O ce Research Findings 284 (London: Home O ce, 2007).

= ere is some controversy on this point. Gottfredson and Hirschi have argued that propensity does not decline with age, but the better view seems to be that it does: cf M. R. Gottfredson and T. Hirschi, A General 2 eory of Crime (Stanford, CA: Stanford University Press, 1990); Sampson and Laub, note 18 above. But no one denies that o ending declines with age: see, generally, A. R. Piquero, D. P. Farrington, and A. Blumstein, Key Issues in Criminal Career Research: New Analyses of the Cambridge Study in Delinquent Development (Cambridge: Cambridge University Press, 2007), Ch. 4.

D. T. Wasserman, = e Morality of Statistical Proof and the Risk of Mistaken Liability (1991) 13 Cardozo Law Review 93576, 94353.


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di erent ways, in work by Peter Tillers, Hock Lai Ho, and Annalise Acorn; it also appears in 2 e Trial on Trial, the recent account of crimi-nal trials developed by Antony Du , Lindsay Farmer, Sandra Marshall, and Victor Tadros.

Autonomy-based objections to bad character evidence face a number of initial problems. First, the fact that behaviour is predict-able does not necessarily imply a lack of autonomy: I am regularly to be found in a particular pub on a Tuesday night, but the fact that my pres-ence there can be predicted with a fair degree of reliability does not say much about my autonomy. Second, there is something rather paradoxical in the claim that o ending behaviour, in particular, is non-autonomous. Autonomous means, literally, making ones own law, and there is an obvi-ous sense in which criminals are better at doing that than the law-abiding. Indeed, the criminological literature identi es a certain rebellious, anti-authoritarian streak in many persistent o enders; the defendant with previous convictions would thus seem to display his autonomy more by continuing to o end than by ceasing to o end. = ird, there is a marked asymmetry in the worries about autonomy here. Motive, again, is a use-ful counter-example. When we say that the fact that the defendant has a motive for murdering his rich uncle increases the probability that he did so, the autonomy concern does not seem to be engaged, even though, in Wassermans terms, we are basing a verdict on the frequency of mis-conduct by others, for motive is only evidence of guilt because we know that there is a general tendency to act on motive. Similarly, when the defendant o ers good character evidence in his favour, we do not worry about the possibility that he has suddenly demonstrated his autonomy by becoming a bad person. Fourth, it is in just those cases where autonomy might appear to be most in question that we are most ready to admit char-acter evidence. We might wonder whether Stra en the child murderer is really autonomous: from Stra ens point of view, at least, he may have little choice but to murder the young girls he comes across, but Stra en

Tillers, note 20 above. = ough raising the autonomy issue, Tillers ends up attaching little signi cance to it.

H. L. Ho, A Philosophy of Evidence Law: Justice in the Pursuit of Truth (Oxford: Oxford University Press, 2008), Ch. 6, which builds on H. L. Ho, Justice in the Pursuit of Truth: A Moral Defence of the Similar Facts Rule (2006) 35 Common Law World Review 5179.

A. E. Acorn, Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense (1991) 11 OJLS 6391, 68.

Note 9 above. A very brief sketch of the arguments developed in 2 e Trial on Trial appears in Du , note 8 above, 131.

See N. Shover, Great Pretenders: Pursuits and Careers of Persistent 2 ieves (Boulder, Colo: Westview, 1996), Ch. 4; Maruna, note 25 above, passim.


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is a case where there is a strong argument for admissibility of previous convictions.

We should resist jumping from these objections to the conclusion that there is nothing to the autonomy objection. = ere is plenty to niggle with in the points above; further, autonomy is a vague concept, so perhaps the clearest lesson to draw from the foregoing is that the autonomy objection needs to be re ned and expressed more carefully. We will shortly move on to look at the particular ways in which the autonomy objection is developed in the literature. But rst, we need to side-track slightly to deal with one somewhat separate point.

Motives and Reasons

We have twice used the example of motive as a way of suggesting that certain objections to character evidence are over-broad. = is strategy, however, might be undermined if there was a signi cant di erence between evidence based on the existence of a motive and evidence based on previous convictions. In fact, both Ho and Du et al suggest that there might be a di erence between the two types of evidence, a di erence that has moral resonance. Hos account is especially signi cant because, he argues, it can be used to explain why some previous convictions are di erent in kind to others; in other words, it could buttress the moral account of the character evidence prohibition against the sort of criti-cism suggested earlier: the criticism that moral accounts are vulnerable if they cannot explain why we should draw the admissibility threshold at a particular point.

Something like the following argument can be found in both Ho and Du et al: when we say that D has a motive for committing crimehe killed his wife because she was having an a air, or his rich uncle in order to inherit under the willwe are o ering an explanation for his behaviour. While motive evidence may have a similar inferential struc-ture to bad character evidencewe look at the behaviour of others to

See e.g. N. Arpaly, Which Autonomy?, in J. K. Campbell, M. ORourke, and D. Shier (eds.), Freedom and Determinism (Cambridge, Mass: MIT Press, 2004), 17388. Du et al note the problem of the vagueness of the term (note 9 above, 130 fn 5), and suggest that it is better to talk in terms of responsibility. Nevertheless, autonomy is used in their discussion of character evidence, perhaps because in that context replacing it with responsibility would make the arguments sound less intuitively persuasive.

Du et al, Trial on Trial, note 9 above, 2546; Ho, Philosophy, note 30 above, 298306.


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infer the likely behaviour of Dthe explanatory structure in motive cases, in particular the fact that it taps into Ds reasons for action, might be thought to be signi cant. = is sort of inferential structure does seem to respect D as a responsible agent, in the sense of someone who can respond to reasons. It does not treat D as simply having some opaque and ungovernable urge to commit crime. = is argument could then be extended to mark the di erence between general and speci c propen-sity, and so to justify the common law admissibility threshold. Cases of speci c propensity, it could be argued, illuminate Ds reasons for committing crime.

= is is an intriguing argument, but it relies on distinctions which do not really hold up. An initial question is: why should the fact that D responds to reasons be signi cant in the context of the moral structure of the trial? = e answer might seem obvious: only those who respond to reason are appropriate subjects of criminal responsibility. But this response will collapse the distinction between character and motive. If we use Ds previous conviction for burglary as evidence that he has com-mitted burglary, there is no obvious sense in which we are treating him as unresponsive to reason (that is, unless we interpret reason in the Kantian sense of right reason, but surely the D who murders his unfaithful wife also does not respond to reason in this sense). Indeed, it is not hard to read a motive into Ds actions: he burgles houses to make money, just as we read into the Makins actions (Makin being a case where the common law had no doubt about admitting the evidence) that they kill children to make money, and just as we read into Balls actionsto pick an example used by Hothat he is sexually attracted to his sister.

= ere is nothing here, then, to suggest why motive should be treated di erently to character evidence, or how we might distinguish general from speci c propensity. But a di erent way of framing the objection to bad character might be developed from the preceding discussion. If Ds responsiveness to reasons is important to the criminal trial, this might

Makin v AG NSW [1894] AC 57. R v Ball [1911] AC 47. = is account also seems to face di culties in cases where

what links D to the crime is a particular modus operandi which throws no light on Ds motivations (e.g. Mullen, note 2 above), or where D is connected to di erent crimes partly through geographical and temporal proximity rather than through particular similarities between the crimes (e.g. R v John W [1998] 2 Cr App R 289).

Against this, it might be argued that o enders motivations are not this transparent. Katz, for example, makes much of the complex layers of meaning which surround criminal activity (J. Katz, Seductions of Crime: Moral and Sensual Attractions of Doing Evil (New York: Basic Books, 1988)). But if this is right, it surely applies to Ball and the Makins as much as to the burglar.


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be because such people are able to respond appropriately to the censuring message in the criminal verdict. If we use Ds previous conviction as evidence that he has a propensity to burgle, might we be implying that D has not responded to censure, and hence reason, in the appropriate way? And might that be problematic? In the following sections, we will examine arguments that take up these points.

Moral Improvement

In our initial assessment of the autonomy argument against previous convictions, we noted that autonomy concerns do not seem to surface when it comes to good character evidence, and that there is a sense in which criminals are more autonomous than the law-abiding. It was suggested that, rather than taking these to be knock-down objections to the auton-omy argument, we might instead respond to them by trying to re ne the concept of autonomy. Perhaps, then, what is really important is not autonomy per se, but the freedom to change our ways, or, slightly di er-ent, to become better people than we already are. Some writerswho are not addressing character evidence issuesprovide resources for thinking that this particular sort of freedom may be morally signi cant. = ere is a bizarre, but intriguing, philosophical debate on whether pre-punishment is permissible: that is, whether it could be appropriate to punish someone for a crime before they commit it. To make sense of this question we have to suppose that we have strong evidence that a person will com-mit a crime, and that after the event it will not be practicable to punish him, perhaps because he will leave the jurisdiction. We also need to be clear that we are talking about retributive punishment, not preventive detention. Saul Smilansky suggests that there are moral reasons for not allowing pre-punishment in this situation. For him, the unacceptability of pre-punishment ows from deep Kantian intuitions about respecting autonomous moral personality and choice. Pre-punishment would treat people as objects, as if they had no choice, as if they could not change

See C. New, Time and Punishment (1992) 52 Analysis 3540; S. Smilansky, = e Time to Punish (1994) 54 Analysis 5053; C. New, Time and Punishment (1995) 55 Analysis 6062; D. Statman, = e Time to Punish and the Problem of Moral Luck (1997) 14 Journal of Applied Philosophy 12935; R. Sorensen, Future Law: Prepunishment and the Causal = eory of Verdicts (2006) 40 Nos 16683. = e problem of prepunishment is taken in a slightly di erent direction in S. Smilansky, Determinism and Prepunishment: = e Radical Nature of Compatibilism (2007) 67 Analysis 34749; I. Haji, Libertarian Openness, Blameworthiness, and Time, in Campbell et al, note 34 above, 13550.

Smilansky, = e Time to Punish, ibid.


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their minds. In a similar vein, though on a di erent topic, that of decency, Avishai Margalit argues that there is a deep link between respect and the possibility of change: respecting people preserves the idea that the future is open; even hardened criminals, Margalit suggests, deserve respect because of the possibility that they might change.

When Du et al and Ho talk of autonomy in relation to character evi-dence, it seems that this is what they are really getting at. Du et al argue that [t]o take the fact of prior wrongdoing as evidence of . . . guilt of a new o ence is inconsistent with . . . respect for the defendant as a responsible agent: as a responsible agent she could have put her past crime behind her, and come to guide her actions by the appropriate reasons that the law provides or expresses; but we treat her as if her past conduct determines her present conduct. For Ho, [r]espect for the accused requires that the court must not be dismissive of his capacity to revise, or act against, his bad character.

= ere is much to be said for the idea that we should respect peoples capacity for moral improvement, and that such respect should be embed-ded in our criminal justice institutions. But it really is not clear that using bad character evidence against defendants is inconsistent with respect for their ability to change. How exactly does the inference from previous conviction to present propensity involve treating the defendant as if past conduct determines present conduct? We are not treating the defendants actions as pre-determined, we are just saying that there is a certain prob-ability that he has done something. An analogy may be useful. Suppose, as sometimes happens, that during building work an unexploded Second World War bomb is found in London. It may be that, so long after the bomb was dropped, there is very little chance of it now exploding. But when bomb disposal experts clear the area, they are not dismissing the possibility of the bomb being safe; they might even take it into account in deciding what degree of precautions to take. What they are doing,

A. Margalit, 2 e Decent Society (trans. N. Goldblum; Cambridge, Mass: Harvard University Press, 1996), 7075.

Du et al, note 9 above, 1134. Ho, Philosophy, note 30 above, 300. For a similar point in a di erent context, see R. Reiner, Law and Order: An Honest

Citizens Guide to Crime and Control (Cambridge: Polity Press, 2007), 1820. = is example intentionally re ects a debate in punishment theory about incapacita-

tive punishment. Various views are usefully collected in A. von Hirsch and A. Ashworth (eds.), Principled Sentencing Readings on 2 eory and Policy (Oxford: Hart Publishing, 1998), 88140. = e bomb example is used by Norval Morris at 108. For Antony Du s contribu-tion to this debate, see R. A. Du , Dangerousness and Citizenship in A. Ashworth and M. Wasik (eds.), Fundamentals of Sentencing 2 eory: Essays in Honour of Andrew von Hirsch (Oxford: Oxford University Press, 1998), 14163.


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though, is allowing the possibility that the bomb remains dangerous. In the same way, when using the previous conviction against the burglar, we should take into account both the possibility that he no longer has a propensity to burgle as well as the possibility that he remains dangerous. But that is exactly how the concept of comparative propensity works, because it averages over recidivists and desisters. So when we presume that the defendant remains somewhat more likely to burgle than other people, we are taking into account his capacity to change, not dismissing it. We can also, and should, take the possibility of change into account by not-ing the length of time between the previous conviction and the present charge; reconviction rates drop o sharply during the rst three years after release from prison. It is true that the bomb analogy is in some ways inapt; people obviously are not inanimate objects. But introducing agency makes no di erence to the argument, which is simply a conceptual one about probability.

Might it be argued, though, that we demean the defendant by treating his conduct as partially determined? One problem here is that determi-nation is usually taken to be a bivalent, all or nothing concept. Something is either determined or it is not. It is true that we are treating the defend-ants choice as being in uenced by his character; in uence is something that can come in degrees and may be what the arguments under consid-eration have in mind. But it seems that those arguments need the strong, bivalent concept of determinism if they are to work: the argument of Du et al, which objects to treating the defendant as if his past deter-mines his future, loses its pull if expressed in terms of in uence. As the unexploded bomb analogy shows, the inference that there is a possibil-ity that the defendant has burgled again does not involve assuming that he is unable to change. Moreover, there does not seem anything wrong, or disrespectful, in treating the defendant as less than fully free. Radical autonomy, where we choose arbitrarily, is not an attractive vision of the world, nor does it seem respectful to think of a defendant as autonomous in this way. Incomplete autonomy has got to be the realistic starting point for any theory which values autonomy.

See C. Kershaw, J. Goodman, and S. White, Reconvictions of O enders Sentenced or Discharged from Prison in 1995, England and Wales, Home O ce Statistical Bulletin 19/99 (London: Home O ce, 1999), 1214.

If we treat Ds present conduct as being in uenced by her past, we are not denying that she could have put her past crime behind her, and come to guide her actions by the appropriate reasons. Nor does there seem to be any con ict with treating D as a responsible agent.

See J. Raz, 2 e Morality of Freedom (Oxford: Clarendon Press, 1986), 1556.


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It is, however, possible to reframe the argument about the signi cance of change in a way which avoids the problems just described. When we take precautions in dealing with the unexploded bomb, even though we are not dismissing the possibility that the bomb is harmless, we are presuming that the bomb has not completely changed. Similarly, when we use previous convictions against the burglar, we are presuming that he has not completely reformed. So what has just been said might seem to be splitting hairs. Du et al and Ho could argue that it is the presumption that the defendant has not completely reformed that is incompatible with the censuring function of the criminal verdict, and that this presumption fails to treat the defendant as a responsible agent. To assess that claim, we need to look in more detail at the concept of censure, to see if criminal verdicts do express a message that is incompatible with the use of charac-ter evidence to prove guilt. Before doing that, however, it is worth taking another slight side-track, to note a further di culty with the account of Du et al.

Suppose we accept that using previous convictions to prove guilt is in con ict with respect for the capacity for moral change, and thus with the purposes of the criminal trial. If we conclude that we can therefore never use previous convictions to prove guilt, we face a by-now familiar problem. = ere is a high cost to complete exclusion, a cost we have been symbolizing in terms of the acquittal of Stra en. It seems that Du et al do not accept that the exclusionary rule is absolute: there are also, at least sometimes, reasons to allow evidence of prior convictions . . . which might indeed sometimes outweigh the reasons against. If we take from this that we should balance probative value and crime seriousness against the moral cost of admissibility, there is a di culty, and it is not just the problem of the opaque nature of the balancing exercise that we noted earlier. If we presume that D has put her past behind her, it is hard to see how the balancing process could ever get going; we simply have no reason to suspect D at all, and there is no probative value to be placed on the admissibility side of the scales. = ere is a general lesson here: if we take a forbidden reasoning approach to previous convictions, then, unless we combine it with an argument that admissible character evi-dence is di erent in kind from inadmissible evidence, it will be di cult ever to justify admissibility, because the reasoning that establishes proba-tive force is always forbidden. It might be argued that the rule against bad

= ough we should recall the points made earlier about the di culty of complete reform.

Du et al, note 9 above, 115.


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character applies, in jury trials, to the fact nder and not to the judge. But if the presumption of moral change does not apply to judges, this would at least weaken the moral integrity of proceedings.

Censure and Reform

Should the criminal trial operate on a presumption that a defendant has responded to the censure of a previous conviction by completely reforming? As we noted right at the start of this paper, in everyday morality we do not appear to be under any obligation to presume that people who have behaved badly on some occasion in the past have com-pletely changed. If you invite an acquaintance to dinner and he spends the evening telling racist jokes, you do not seem to do anything wrong by not inviting him again. In acting in that way, you do not disrespect him in the way that concerns Smilansky and Margalit: they talk in terms of possibilities, not presumptions. Of course, the criminal trial is very di erent to a dinner invitation, and once again it may be in a theory of the trial, and in particular in the censuring functions of the verdict, that we nd support for the presumption we are interested in. = e obvious way to nd some support for the presumption is to look to sentenc-ing theory to deepen our understanding of the way in which verdicts communicate the censuring message to defendants. In fact, Du et al take this route, in a proposal which supplements the analysis explored above. If the criminal verdict is seen as part of a process of moral com-munication with the defendant, then we might suppose that, when the defendant was previously convicted of burglary, he should have taken the message of moral censure seriously. He should have responded to the moral message by taking on board the wrongness of burglary and desisting from future o ending. = is might provide the foundation for various objections to the use of previous convictions. By using the previous conviction we might, as Du et al suggest, be failing to treat the defendant as a responsible agent, as someone who responds prop-erly to censure. = e criminal process might also be thought to be acting

= e arguments analysed in this section put considerable emphasis on the process of censure embodied in a guilty verdict; they thus apply very much to previous convictions rather than to other types of bad character evidence (see note 4 above). It might seem odd to have a theory that justi es the exclusion of just one type of bad character evidence; but then again, if the arguments are thought convincing, the feeling of oddness will doubtless wear o .

Du et al, note 9 above, 11415.


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cynically, or hypocritically, if it punished people in the expectation that they would reform, but then presumed that they had not done so by using their previous convictions against them once they were suspected of a later crime.

= e di culty this analysis faces is that it does not easily mesh with sentencing theory. If we look at two in uential theories of sentencing, which both emphasize the communicative nature of punishment, we do not nd anything as strong as a normative expectation that the defendant will respond to censure by changing. Du himself argues that punishment does aim to modify conduct by persuading o enders to recognize and repent their wrongdoing, but a commitment to the autonomy of defendants means that punishment must leave them free to reject its message. Perhaps it could be argued that ideal defend-ants would take the moral message on board and lose any propensity to commit crime. But to treat someone as a responsible agentwhich is what is motivating us heredoes not seem to mean that we should treat them as an ideal agent. Indeed, there would be something rather odd about a theory of the trial and punishment that treated defendants as ideal moral agentswhy would such angelic people commit crime in the rst place? And why would they need hard treatment, rather than simple symbolic censure?

We noted earlier that, like any change in behaviour, desistance from crime is something that is not easy to achieve. We need to take this on board if our theory of the trial is to be psychologically realistic, and doing so underlines the point just made. Andrew von Hirschs account of punishment actually embraces this psychological realism as one of its central features. For von Hirsch, punishment treats us as moral but fallible agents. Punishment operates as censure because the defend-ant, as a moral agent, can respond to moral criticism, but because the defendant is not an ideal agent the censure is supplemented by hard treatment. For our purposes, it is worth noting that this conception of the subject of criminal law is prominent in von Hirschs account of why

While the focus here is on retributive theories of punishment, a similar argument might be made under a deterrence framework: if punishment is justi ed on grounds of individual deterrence, then the use of previous convictions might be thought to con- ict with that justi cation. = e response would be that, given that deterrence does not usually claim to prevent crimeonly to deter it to an appropriate degreethere is again no incompatibility.

Du , Punishment, note 9 above, 122. A. von Hirsch and A. Ashworth, Proportionate Sentencing: Exploring the Principles

(Oxford: Oxford University Press, 2005), 23. See also A. von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993), 13.


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rst-time o enders should receive lighter sentences than recidivists. Desert theory, which tends to focus on crime seriousness as the key vari-able in determining sentence severity, generally rejects the claim that repeat o enders deserve longer sentences; repetition does not increase seriousness. But von Hirsch does argue that rst-time o enders should have their sentences reduced below the level indicated by the serious-ness of the o ence. Initial sentences should be mitigated because, as a fallible moral agent, the defendant can be presumed to take censure seriously. His rst crime is regarded as a lapse rather than as a serious commitment to wrongdoing. To quote von Hirschin a passage that resonates with the themes we are exploring[t]he rst-o ender dis-count re ects . . . an ethical judgement: it is a way of showing respect for any persons capacity, as a moral agent, for attending to the censure in punishment. . . . [P]eoples capacity to take condemnation of their acts seriously is something that has a moral dimension and should be acknowledged in the criminal law. But, as the defendant returns to court, von Hirsch suggests, we have reason to increase the emphasis on hard treatment because he has, to some extent, proved deaf to the moral message.

We should certainly take from this that moral opportunitypeoples ability to change, and to improve themselves morallyis something that deserves particular respect in criminal justice. But that merely emphasizes the points drawn from the wider philosophical literature via Margalit and Smilansky, and it takes the argument for a moral objection to bad character evidence no further. To spell it out: in using previous convic-tions against a defendant, the court seems to be acknowledging that he might not have taken the censuring message to heart when previously sentenced. = at does not really con ict with the new message of censure when he is tried and convicted, a message which calls on him to recog-nize the moral wrong he has done and to mend his waysbut does not demand that he does nor presume that he will. It is true that, when the defendant is convicted of burglary with a previous conviction being part of the evidence against him, the court appears to be acknowledging that he did not mend his ways. But it would look like this even if the previous

A. von Hirsch, Desert and Previous Convictions, in Principled Sentencing, note 45 above, 1917. For helpful discussion, see J. V. Roberts, Punishing Persistent O enders: Exploring Community and O ender Perspectives (Oxford: Oxford University Press, 2008), Chs. 34.

Ibid, 1956. It should be noted that von Hirsch tentatively goes further: perhaps punishment asserts that the o ender has a duty to attend to the censure and make extra e orts at self-restraint (196). But even recognizing such a duty does not seem incompatible with using previous convictions to prove guilt.


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convictions had not been used in evidence against him, and, in any case, the acknowledgment that he did not change is not to suggest that he could not have done so, or cannot do so in the future. = e only way to generate a con ict between the censuring message and the use of previous convictions is to read a much more authoritarian message into censure: a demand that the defendant reforms, along with a rm expectation that he will do so. But that view of censure is, as we have seen, unattractive to both von Hirsch and Du . And it is interesting that the reason why censure is not viewed in this forceful way is a concern for autonomy. So a respect for the autonomy of defendants, which was the starting point for the ideas we have pursued to here, turns out to be one of the things that makes the use of character evidence permissible, rather than, as the arguments surveyed suppose, problematic.

= ere is, however, a di erent argument against the use of previous convictions that might be drawn from von Hirschs discussion of progres-sive loss of mitigation. As we have seen, von Hirsch suggests that an initial o enceand perhaps some subsequent onesshould be seen as lapses rather than as displaying a serious commitment to o ending. If that is how we should view a defendant, then after an initial crime we should not consider him more likely to o end than other people. He remains like the rest of us, a basically good though awed moral agent who lapsed on one occasion. = e initial censure does not ask him to change his moral per-sonality so much as to be more careful, to exert better self-control. As von Hirsch notes, however, the theory of progressive loss of mitigation may not apply to more serious crimes, and this seems right. It would be odd to view Stra ens rst child killing as a lapse from an otherwise moral life. It will be di cult, however, to say how serious a crime needs to be before we should see it as something more than just a lapse.

Labelling

= e discussion so far has suggested that it is not easy to develop a coherent moral objection to the use of previous convictions to prove guilt. Accounts which suggest that such a practice is somehow incom-patible with the moral framework of the trial have failed to pay close attention to the reasoning underlying the use of previous convictions to prove a propensity to commit crime. = e reasoning is not dismissive of

Ibid, 196. It also does not apply so easily to carefully planned o ences: see Roberts, note 56 above, Ch. 3.


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the defendants capacity for moral improvement, it merely assumes that he has not completely changed. Nevertheless, the very fact that it is easy to misread the reasoning involved may be signi cant. We could modify the arguments slightly, so that what is emphasized is not the precise infer-ential structure of reasoning from bad character, but the way the use of previous convictions is likely to be interpreted by defendants.

Accounts of the criminal trial which emphasize the communicative role of the criminal verdict have tended to be rather armchair-based a airs, with scholars speculating about how various practicessuch as the admission of improperly obtained evidencemight be interpreted by defendants, or by the public. Of course, proponents of the communi-cative view can easily move to the normative plane, and argue that what matters is how certain trial practices should be interpreted, not how they are interpreted. = ere are di cult questions here about the relationship between the normative and the empirical, but surely any account which stresses communication must have one eye on how trial practices are actually understood. = at, however, is something we know very little about.

= ere is, though, a little empirical evidence on how, in some situations, the use of previous convictions is understood by defendants. In research on the experiences of ethnic minority defendants in the courts, Stephen Shute, Roger Hood, and Florence Seemungal noted that when it came to sentencing some felt that their past records when they had been young and wild were being given too much weight in sentencing policy. Not enough attention had been paid to them as they were now, due to a failure properly to take into account the social and cultural circumstances in which they had grown up. As one defendant put it: = e judge didnt look at my past to my present, he looked at the o ence. He said it was my way of life, but Ive changed from a drug user, Ive found a job. Another defendant said [t]hey think that if you have been in trouble before you are still the same person. Ive been out of trouble for six years . . . I am a family man. Ive changed. = ey dont care. . . . = ey think Im the same person. Similar comments about the importance of interpreting previ-ous convictions in the light of the potential to change can be found in Julian Roberts research on o enders reactions to sentencing. In the

S. Shute, R. Hood, and F. Seemungal, A Fair Hearing? Ethnic Minorities in the Criminal Courts (Cullompton: Willan Publishing, 2005), 456.

Ibid, 46. Ibid, 49. Roberts, note 56 above Ch. 7. All the o enders interviewed did seem to accept that

weight should be put on previous convictions at sentencing; the objection was to doing this too automatically.


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context of our discussion, these reactions are striking. Some defendants do seem to feel that not enough recognition has been given to their e orts to change, and one can imagine similar reactions being made to the use of previous convictions to prove guilt. A cynical response would be that, given that these defendants have been convicted, they have not in fact changed; we could refer back to the point made earlier that people tend to be over-optimistic about their ability to change, and interpret these reac-tions as self-serving delusions. Even taking this view, however, we might still feel that there is something signi cant here. If what matters is how defendants interpret trial practices, then these negative reactions may be noteworthy in themselves. If the courts are too readily dismissive of the possibility of moral change, might there be a danger that defendants come to adopt this bleak attitude too?

In a recent psychological study, Kathleen Vohs and Jonathan Schooler found evidence that undermining subjects belief in free will increased propensity to cheat on a simple test. It is a big leap, but the thought would be that if, through their use of previous convictions, courts give defendants the impression that they are prisoners of their past lives, then defendants will come to think this way about themselves, and this will make them more likely to commit crime. Criminologists in fact have a somewhat similar concern: labelling or interactionist theory suggests that the process of being labelled a criminal may reinforce deviance, a con-cern which a recent large-scale study lends support to. = e High Court of Australia may have been thinking along these lines when it worried that rehabilitation schemes might be undermined if the accuseds crimi-nal record could be used in evidence against him or her, and the Law Commission, in its Consultation Paper on character evidence, echoed this line of thought: [w]e should be wary of exaggerating the likelihood that those convicted will reo end, or of assuming that individuals cannot change. High conviction rates for those with previous convictions do not make reconviction inevitable . . . Such change is clearly something the law should encourage, rather than presuming it does not occur.

K. D. Vohs and J. W. Schooler, = e Value of Believing in Free Will: Encouraging a Belief in Determinism Increases Cheating (2006) 19 Psychological Science 4954.

See e.g. D. Downes and P. Rock, Understanding Deviance (5th edn, Oxford: Oxford University Press, 2007), Ch. 7.

M. E. Ezell and L. E. Cohen, Desisting from Crime: Continuity and Change in Long-Term Crime Patterns of Serious Chronic O enders (Oxford: Oxford University Press, 2005).

Pfennig, note 24 above, 513. Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (London:

Stationery O ce, 1996), 124, fn 10.


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= e di culty here is that we have so little to go on. While the quotations from the Hood study should make us think, the defend-ants might have been expressing a legitimate concern that their previous convictions were too stale to warrant any inferences about whether the latest o ence was part of a pattern of o ending as opposedto return to von Hirschs termsto a lapse from an otherwise successful attempt to go straight. Nothing that is said here should be taken to support the introduction of previous convictions that are simply not relevant. Rates of criminal o ending tend to peak in the late teens, and then drop o in early adulthood. If a defendant has a series of convictions in his late teens, but then a clean record until the mid-20s, there might be a good argument simply in terms of probative value for putting no weight on the previous convictions as evidence of guilt; it might also be wrong to use such a previous record as an aggravating factor in sentencing. Defendants do seem to be sensitive to the fairness of the criminal justice system, so we should be aware that admitting previous convictions when they have little or no probative value may be counterproductive. Beyond that, though, the concerns about labelling and feedback loops just seem too speculative to provide the foundation for our policy on the admissibility of previous convictions.

Slippery Slopes

An underlying worry about previous convictions is that, if we admit them, we will be pushed down a slippery slope. = e argument used to justify the admissibility of previous convictions is that, because those with convictions commit more crime than those without, possession of a previous conviction is an indicator of guilt. But this form of argument can be used to justify the admissibility of all sorts of evidence that we would be uncomfortable with. Should race or socio-economic status be admissible evidence, if people from certain racial or socio-economic groups commit more crime than others?

It is worth underlining the signi cance of this for sentencing. If one is attracted by von Hirschs account of the rst-o ence discount, then it seems that it is not only the rst o ence that should receive a discount, but also ones committed after a signi cant break in o ending. A lapse can occur during, as well as at the beginning of, an o ending career.

See, e.g. Piquero et al, note 27 above, Ch. 4. See, generally, T. R. Tyler and Y. J. Huo, Trust in the Law: Encouraging Public

Cooperation with the Police and the Courts (New York: Russell Sage Foundation, 2002); Roberts, note 56 above, Ch. 6.


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One response is that we are all on a slippery slope. If we admit previous convictions against Stra en, or against the Makins, or whoeveras the common law doesthen we are relying on the sort of reasoning just described. We are presuming that some peoplethose who kill children in a particular wayare more likely to kill children in that way than others. We may be a long way up the slope, but unless we can draw distinctions between the cases we are still vulnerable to being pushed down towards the racial inference. = is raises, once again, the question whether the burglary example we started with is di erent in kind, rather than just in degree, to cases such as Stra en and Makin. = at is a complex question which could lead us far into the thickets of similar-fact case law and schol-arship, so nothing said here can be de nitive. Brie y, though, it is at least di cult to point to a sound distinction between the cases. Earlier it was suggested that an account based on reasons or motivation cannot do the work. And it is no good relying on the simple distinction between general and speci c propensity, by saying that our D has a general propensity to commit burglary whereas Stra en has a speci c propensity to kill young girls in a particular way, unless some convincing account can be given of the general/speci c distinction. = e distinction cannot simply rest on the fact that burglary is a crime label whereas murdering young girls and not hiding their bodies is not, because the labels are, at least to some extent, conventional. If we ignore the labels, there is no obvious place to draw the line: why should we not see burglary as a speci c instance of a general propensity to commit property crime? Or Stra en as having a general propensity to kill young girls, as opposed to, say, blonde girls?

It may be possible, though, to distinguish between inferring propensity from previous convictions and inferring propensity from race and socio-economic statusto draw the line further down the slope than the bur-glary example, rather than above it, as it were. In the burglary example, we are inferring propensity from the fact that D has already made a bad

= is is not to deny that di erences of degree can be importantthey play a crucial role in what is sometimes referred to as threshold deontology (see L. Alexander, Deontology at the = reshold (2000) 37 San Diego Law Review 893912). And just as piles can become heaps, and hair loss baldness, there may be some sense in talking of speci c propensity, even though propensity is a continuum. But it is very hard to see how anything of moral signi cance can come out of the distinction between general and speci c propensitybetween Stra ens and burglarsexcept in relation to the balance of probative value and prejudicial e ect. And, to repeat a point made before, we have no reason to think that only speci c propensity outbalances prejudice.

See, generally, J. Chalmers and F. Leverick, Fair Labelling in Criminal Law (2008) 71(2) MLR 21746. As an example, in 1998 England and Wales created speci c o ences of racially aggravated assault; would racial assault have demonstrated a speci c propensity in 1997, but only a general one in 1999?


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moral choice by committing the previous burglary. = e other attributes, however, are unchosen; they are beyond Ds control. If we are concerned, as Du et al and Ho are, to respect D as a responsible agent, then an inference from one of these demographic attributes could be especially worrying. While, if we use the demographic evidence, we are not assum-ing that D has made a bad moral choice, perhaps this is an arena where we should not even allow that D is more likely to have made a bad moral choice than those who do not share the relevant characteristic. Treating D as responsible could be said to involve assuming that he is no more likely to be tempted into crime than other people.

While it is very comfortable to agree with this line of thought, we should not ignore the hard questions here. In Watters, the prosecution, in a rather desperate attempt to make a weak DNA case look strong enough to support a burglary conviction, argued that the fact that D was male was evidence against him, because most safe-crackers are male. If that argument strikes us as odd, it may be because Ds sex would have been obvious to the jury, who might already have taken it into account, albeit at some unconscious level (they might well have been more reluctant to convict had Watters been a woman). But do we really want to say that the prosecutors argument is morally impermissible in court? = ere is also, once again, the problem of motive. Evidence that Ds wife is having an a air could be said to place him in an unchosen demographic group the members of which are more likely to commit murder than others. Does that make motive evidence ethically objectionable? It is true that, as noted earlier, motive treats D as having a reason to commit crime, but that cannot be the key to these puzzles, or else we would allow evidence of poverty to prove theft. It may be that we can say little more than that factors such as race and class are ones we are especially sensitive about, whereas having an unfaithful spouse is not. = at is not a very satisfying

R v Watters, CACD 19 October 2000. = e parallels with racial pro ling are obvious. It has proved di cult to specify what

is wrong with statistically sound racial pro ling, and some accounts conclude that racial sensitivity is the main problem, i.e. that there is nothing wrong with the reasoning involved: see F. Schauer, Pro les, Probabilities, and Stereotypes (Cambridge, Mass: Harvard University Press, 2003), Ch. 7; R. Kennedy, Suspect Policy New Republic, Sept 13/20 1999, 30. For more general debate, see M. Levin, Responses to Race Di erences in Crime (1992) 23 Journal of Social Philosophy 529; L. = omas, Statistical Badness (1992) 23 Journal of Social Philosophy 3041; K. Lippert-Rasmussen, Racial Pro ling Versus Community (2006) 23 Journal of Applied Philosophy 191205; K. Lippert-Rasmussen, Nothing Personal: On Statistical Discrimination (2007) 15 Journal of Political Philosophy 385403; M. Risse and R. Zeckhauser, Racial Pro ling (2004) 32 Philosophy & Public A airs 131; A. Lever, Why Racial Pro ling is Hard to Justify: A Response to Risse and Zeckhauser (2005) 33 Philosophy & Public A airs 94110; B. Harcourt, Against Prediction: Pro ling,


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explanation of our moral landscape, but it might be the best we can do. While it is tempting to use our reactions to various cases as the basis for some ambitious theory about the moral structure of the criminal trial, we should at least be circumspect about the possibility of developing any such theory. Our intuitions may simply not t into any coherent theory.

Conclusion

= is paper has surveyed several di erent arguments under which the use of previous convictions as evidence of propensity to commit crime is morally problematic. = e basic conclusion is that there are no very strong arguments against this use of bad character evidence, but there are various caveats to underline. = e argument that the inference from a previous conviction may be di cult for a defendant to rebut has some-thing to be said for it, though, given that this problem may also apply to other types of evidence, it is not obvious what to make of it. = ere is also the argument, drawn from von Hirsch, that if we see an initial conviction for a crime of modest seriousness as no more than a lapse, then such convictions should not be used as evidence of propensity to commit crime. Whether that convinces obviously depends on whether one agrees with von Hirsch about the relevance of previous convictions to sentence.

If these arguments give us some reason to exclude previous convic-tions, they hardly challenge the admissibility regime under the Criminal Justice Act 2003. = ough it is early days, the courts do seem to be taking the line that a single previous conviction for a minor crime does not

Policing, and Punishing in an Actuarial Age (Chicago: Chicago University Press, 2007), Chs. 4, 5, 7.

Alan Wertheimers comments on the problem of discrimination are relevant here (A. Wertheimer, Re ections on Discrimination (2006) 43 San Diego Law Review 945980, 952):

I am reasonably con dent that our present intuitions about discrimination are of little help, because those intuitions may well be closely tied to the actual social consequences of discrimination, or to the history of those consequences. If whites and blacks had relatively equal wealth, income, longevity, education, and so forth, it is entirely possible that we would not in fact regard isolated acts of racial dis-crimination as seriously wrong. It is possible, of course, that we would be wrong not to regard such acts as seriously wrong, but then we need an argument that does not appeal to intuitions. My general point remains that it is extremely di cult to know what is driving our intuitions about acts of discrimination when such discrimination has been part of a pattern that has generated massive social and economic inequalities.


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show propensity. It is not easy, though, to argue that this shows some innate moral awareness on the part of the courts, because those previous convictions will often have very little probative value in any case.

Beyond this, it is worth emphasizing a vaguer, but more widespread caveat. = e intuition that there is something troubling about the use of the previous convictions in the burglary example that has been our leitmotiv is hard to shake o . While the closer we look at attempts to justify this intuition, the weaker they seem to be, the feeling of unease lingers on. In the penultimate section of the paper, however, we allowed the possibility that our intuitions simply might not be amenable to systematization. If so, then it may be that we should be reluctant to dismiss our lingering unease. But if that is the best we can do, we do not have much with which to respond to those who argue for the widespread admissibility of previous convictions.

See note 3 above.


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