The Redundancy of the Similar Fact Exclusionary Rule

Generally, it is common sense that past actions or character is probative as to future conduct existence or the state of mind of a person in question. However, the conventions suitable for everyday decision-making may not be sufficiently rigorous for the criminal process. Here, the rule on similar fact evidence concerns the admissibility of evidence regarding a previous conviction of the accused or of his past conduct on an occasion other than that cited in the present offence charged.

Nonetheless, as applied within the frame work of the Evidence Act1 (EA), there have been significant criticisms regarding the continued relevance of the similar fact evidence rule. Consequently, there have been calls to do away with the exclusionary rule. This paper will look at the various arguments as to the redundancy of the similar fact evidence rule. We will then consider whether abolishment is the best way to address the issue by analysing the underlying considerations of the rule.

As the preferable alternative, we will then propose some reforms so as to better adapt the rule within our existing criminal justice system. This will be discussed with reference to the criminal justice system. II. Background A. The Common Law At common law, there is a general exclusionary rule regarding the admissibility of such evidence. The risk of prejudice against the plaintiff seems to be the primary consideration. However, over time, the courts recognised a need to admit such evidence in cases where the evidence was probative in relation to some issue in the case and not merely to show propensity.

This principle was properly set out in the case of Makin v AG2 (Makin), which set up a two proposition rule. Under Makin, (1) Evidence of prior misconduct is inadmissible if it is tendered to show that the accused is likely to be guilty. (2) Nonetheless, such evidence is admissible if it is relevant to some other issue which is before the court. The next development of the common law came in the case of Boardman v DPP3 (Boardman), where Lord Hailsham propounded a simpler approach – that similar fact evidence is admissible if its probative value outweighed its prejudicial effect.

Despite considerable debate in other common law jurisdictions over the preferred approach as espoused by the two cases, the Singapore courts have interestingly cited both Makin and Boardman with approval at the same time. In practice, it seems that Boardman merely made explicit what the courts have been doing under the rubric of Makin. Although not explicitly stated, it does appear that the courts have always taken the probative value of the evidence into account. When they found sufficient probative value, they labelled it as "relevant to an issue".

When they found it insufficiently probative, it was labelled "relevant only to disposition". Although Makin makes no mention of prejudicial effect, it was not long before the courts incorporated a separate discretion to exclude unduly prejudicial evidence which was "technically admissible" under Makin. B. The Evidence Act The law of evidence in Singapore is governed by the EA. Like Makin, the Act speaks in terms of relevance rather than probative value. The two relevant sections are 14 and 15. Section 14 renders admissible similar fact evidence where it is relevant to a state of mind which is in issue.

Section 15 makes admissible similar fact evidence (which is part of a series of similar occurrences) where it is relevant to the question of whether an act was done accidentally or with a certain intention or knowledge. While the Singapore courts have adopted a variety of postures with respect to the EA over the years4, the primary tool of assessing the probative usefulness of similar fact evidence has remained constant5. Furthermore, Singapore has applied the Boardman test within the framework of admissibility in the Act6. The result is that the tools which the Act uses to deal with similar fact evidence are substantively the same.

As such, despite its age, the EA is probably no different from Makin or Boardman7. Redundancy A. Margolis Margolis has canvassed several arguments to this effect. Firstly, he defined probative force as the judicial assessment of probative worth8 and prejudicial effect to mean the difference between the weight which a judge thinks a jury would assign to the evidence and the weight which the judge himself would assign9. As such, if we were to remove the jury from the equation10, there would be no difference between the probative and prejudicial effect.

Further more, he notes that the implicit premise behind such a formulation is that the evidence does not prejudice the judge, unlike the jury. Thus, when a judge sits alone, he need not need to exclude the evidence once he hears it, as he can assign it its true value. In fact, even if it were accepted that a judge could be prejudiced by propensity evidence, to expect such a judge to remove the prejudicial evidence from his mind and come to a fair verdict because he had instructed himself to do so, would require him to perform "mental gymnastics".

Indeed, if the trial judge were truly capable of hearing the evidence and then ignoring it, it would be better to admit the evidence and allow the judge to assign it its proper weight. Thus, the general discretion to exclude similar fact evidence serves no purpose in a non-jury system11. B. Zuckerman Zuckerman contends that the exclusionary technique for similar fact evidence has failed. To illustrate this, he points to a notable limitation in the common law rule. Here, once the evidence is admitted, the common law exclusionary rule no longer plays a part.

To this effect, similar fact evidence with significant probative value has been invariably admitted into evidence, despite also possessing considerable potential for prejudice12. The fact finder is left to his own devices to accord the evidence its appropriate weight by assessing its precise probative value, while at the same time guarding against the potential for prejudice. The solution here, he proposes, is to abandon the exclusionary rule for all similar fact evidence with significant probative value.

Rather, we should admit the evidence and thereafter develop the means to allow the fact of finder to filter out the prejudice. C. The Law in Civil Jurisdictions Truly, if the rules regarding similar fact evidence is so integral to criminal law, one wonders as to why it is only unique to common law systems. In civil law jurisdictions, there is no exclusionary rule for character or propensity evidence. A number of structural reasons have been provided. Firstly, guilt and sentencing are decided at the same stage. Consequently, before the court retires to decide a case, all evidence for sentencing purposes must be presented.

Secondly, and perhaps most notably, Civil Law trials are typically unitary in nature. The judge decides both issues of fact and law, including the admissibility of evidence. In such circumstances, it would be artificial to apply an exclusionary rule. Despite the absence of any exclusionary rules, concerns about the legitimacy of relying on propensity evidence still remain. For instance, in countries like Germany and Italy, the view is that 'prior convictions have no bearing whatsoever on the finding of criminal liability13.

This has also been reflected in some conversations with German, Belgian, French, Italian and Dutch lawyers14. While principles regarding similar fact evidence are largely the same in both common law and civil jurisdictions, the safeguard against the risk of uncritical acceptance of propensity evidence in civil jurisdictions takes the form of an 'obligation of trial judges to write a reasoned opinion demonstrating that their factual findings have a firm basis in evidence and a solid support in rational inference instead15. '