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Tulkinghorn
26 March, 2010  
Character evidence

The rule about priors … Legal indulgences … Recycling repeat offenders … Top Brit defence barristers rolling in public dosh … Why the concept of “wrongful acquittals” is frowned upon


Criminal defence lawyers earn their money from the criminal justice system.

Anything that reduces the odds of their guilty clients “getting off” reduces their incomes.

While not suggesting that trials should be run like THIS the legal profession has taken the system much too far the other way.

imageHigh acquittal rates and lenient sentences (for the lawyered) create an environment that attracts private clients, and help to persuade guilty people who are on criminal legal aid to deny guilt and go along with lucrative “not guilty” pleas instead.

The upper echelons of the criminal defence sector of the legal profession are now waxing fat on the sale of legal indulgences, which is every bit as scandalous as the pre-Reformation sale of religious indulgences (seen here).

Legal indulgences are promises that guilty customers will be more likely to get a total acquittal or a lenient sentence, if a lawyer is paid.

Guilty people who purchase legal indulgences can usually flick the bill onto the taxpayer. The result in the UK of the resultant taxpayer largess is that:

“Nearly 1,000 barristers made more than £100,000 from public payments for defending criminals last year – and 75 made more than £300,000. In total about £150million went to the best-paid 1,000 criminal legal aid barristers.”

imageNo doubt there is a lot of billing fraud as well. It is endemic throughout the profession, everywhere.

According to the Queensland Legal Services Commissioner, John Briton (pic):

“It seems … that 62 percent of young lawyers in New South Wales admit to having lied at least once in a way that effectively defrauded a client.”

Incidentally, lawyers do not need to purchase legal indulgences for their own lawyer billing crime, because fraud committed by lawyers is generally not crime, which is not surprising, when one considers who runs the legal system.

For many guilty clients, one big thing that would reduce their odds (of getting off) is letting the jury or judge discover exactly what sort of person they are.

For that reason (and not for “fair trial” reasons, despite lawyer protestations to the contrary) evidence of previous criminality or bad character is generally excluded.

If the defendant does have previous convictions, but the prosecution mistakenly believes otherwise, then the defence lawyer can keep quiet while the judge mucks things up.

As Queensland QC Robert Mulholland said in 2007:

“If the court is being led by the prosecution to believe that an accused has no previous convictions, defence counsel is under no duty to disclose facts to the contrary.”

Of course, if a judge were to ask the defence lawyer outright about the client’s previous convictions, this unethical arrangement would tend to be exposed for what it is (a look-after-lawyers’ device) so there is an understanding between lawyers and judges not to ask.

As another lawyer, Darin Honchin, referring to Robert Mulholland’s advice, wrote:

“The obligation not to mislead, is concomminant [sic] with the rule that the bench will not ask (i.e. don’t ask don’t tell).”

A reader of The Guardian newspaper in the UK recently opined:

“It would be interesting to see a breakdown of criminal legal aid – my guess would be that hardcore repeat offenders would account for the majority of it, rather than people who have had a single brush with the law.”

imageThose whopping legal aid incomes may well be earned principally by defence lawyers recycling recidivist habitual criminals. That’s not a good look, and another reason for keeping character evidence out.

Bron McKillop’s (pic) book Anatomy of a French Murder Case was reviewed in The Law Society Journal (NSW, August 1998, page 10) where it was noted:

“One of the most fascinating contrasts with our own system of criminal law is the gathering of information about the personality of the accused. The French jury is presented with information about the prior life of the accused, gathered from friends and relatives, including information about previous criminal or anti-social acts.”

imageAnd why not? Even in our system earlier this year we allowed Mr Dingle to appear in court wearing a T-shirt which read: “I do what the voices in my head tell me to do.”

Such “character evidence” (which, of course, isn’t “evidence” under our system) can safely be left to judges and juries to sort out.

In March the South Australian Labor party released its Serious Crime Policy 2010.

It promises to improve the court system by allowing prosecutors, “in appropriate cases to introduce evidence of prior offending in court, when this is relevant and in the interest of justice”.

The drafters of this “policy” are to be commended for having stuffed so many weasel words into such a short sentence.

No one can possibly know it means or whether it is different from what South Australians already have.

imageWhen asked for more detail, the Premier Mike Rann’s (pic) office said there would be a “consultation process after the election”.

A column by Justinian’s editor in The Sydney Morning Herald on that policy announcement provoked this comment:

“My experience and that of any other criminal lawyer would be the same is that once priors go in, so does the defendant – into gaol… Anytime tendency evidence goes in there is a conviction – EVERYTIME. Criminal antecedents are just too prejudicial – the State is supposed to prove guilt on the facts of the case, not what someone did earlier.”

A classic 1966 study of the American jury showed that when a defendant’s criminal record is known
and the prosecution’s case has weaknesses, the defendant’s chances of acquittal are 38 percent, compared to
65 percent otherwise.

See: Proving the Defendant’s Bad Character

As for the increase in convictions that ensues when bad character evidence is allowed in, one would need to know whether the extra convictions resulting from disclosure actually result in an overall increase in the wrongful conviction rate.

Perhaps all that happens is that the “wrongful acquittals” rate is reduced.

By the way, lawyers frown on the use of the term “wrongful acquittal”.

They say it is “conceptually difficult”. See page 39.

If “wrongful acquittals” are what keeps the top level of the criminal defence lawyer fraternity rolling in clover, then they would say that, wouldn’t they?