Similar fact evidence
Encyclopedia
In the law of evidence
, similar fact evidence (or the similar fact principle) establishes the conditions under which factual evidence of past misconduct of accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.
In Canada, the rule is established in R. v. Handy
, 164 CCC (3d) 481, 2 SCR 908
(2002):
Evidence of prior bad acts by the accused will be admissible if the prosecution satisfies the judge on a balance of probabilities that, in the context of the particular case, the probative value of the evidence in relation to a specific issue outweighs its potential prejudice and thereby justifies its reception.
Questions arise as to how the Court will measure the elements of this rule:
i) What constitutes a prior act of misconduct?
- Any past misdeed, does not have to proven as a conviction.
ii) Why does the Court speak of evidence in relation to a ‘specific issue’?
- Good measure of probity, what other issue beyond disposition or propensity evidence.
iii) How is probative value determined?
- Nature of similarity between details, distinctive features and circumstances of past act and current offence
- Proximity in time between past act and current offense
- Number of occurrences of the similar acts
- Any intervening event
- Any other factor tending to support or rebut the unity of past act and conduct in question (i.e. appearance of collusion)
The 2001 trial of Roy Whiting may have influenced the decision to change the law.
Although preceding these changes, Rosemary West
's 1995 trial has also been cited as an example where similar fact evidence was crucial to the prosecution case.
Similar fact evidence can be used even if the original "misconduct" could not be prosecuted due to duress or the offender's youth. In a case of a Devon family imprisoned in 1998, one of the defendants appealed his conviction for raping his sister at the age of 16, suggesting it was unlikely that she would not complain or seek help. It was held that the evidence that his father had coerced him into sexual acts with his other sisters as a child was similar fact evidence and, in addition to the systematic long-term sexual activity and abuse within the family, sufficient to explain why he felt that he could get away with abusing her and knew she could not rely on her family for protection; his appeal failed. [R v TM, 2000, 2 Cr App 266]
Under Scots law
, this is covered by the well-established use of the Moorov Doctrine
.
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
, similar fact evidence (or the similar fact principle) establishes the conditions under which factual evidence of past misconduct of accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.
In Canada, the rule is established in R. v. Handy
R. v. Handy
R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, is the leading Supreme Court of Canada decision on similar fact evidence. The Court proposed what is known as the Handy test for determining whether past occurrences that resemble the crime can be admitted as evidence.-Background:The complainant went...
, 164 CCC (3d) 481, 2 SCR 908
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2002):
Evidence of prior bad acts by the accused will be admissible if the prosecution satisfies the judge on a balance of probabilities that, in the context of the particular case, the probative value of the evidence in relation to a specific issue outweighs its potential prejudice and thereby justifies its reception.
Questions arise as to how the Court will measure the elements of this rule:
i) What constitutes a prior act of misconduct?
- Any past misdeed, does not have to proven as a conviction.
ii) Why does the Court speak of evidence in relation to a ‘specific issue’?
- Good measure of probity, what other issue beyond disposition or propensity evidence.
iii) How is probative value determined?
- Nature of similarity between details, distinctive features and circumstances of past act and current offence
- Proximity in time between past act and current offense
- Number of occurrences of the similar acts
- Any intervening event
- Any other factor tending to support or rebut the unity of past act and conduct in question (i.e. appearance of collusion)
The 2001 trial of Roy Whiting may have influenced the decision to change the law.
Although preceding these changes, Rosemary West
Rosemary West
Rosemary Pauline "Rose" West is a British serial killer, now an inmate at HMP Low Newton, Brasside, Durham, after being convicted of 10 murders in 1995...
's 1995 trial has also been cited as an example where similar fact evidence was crucial to the prosecution case.
Similar fact evidence can be used even if the original "misconduct" could not be prosecuted due to duress or the offender's youth. In a case of a Devon family imprisoned in 1998, one of the defendants appealed his conviction for raping his sister at the age of 16, suggesting it was unlikely that she would not complain or seek help. It was held that the evidence that his father had coerced him into sexual acts with his other sisters as a child was similar fact evidence and, in addition to the systematic long-term sexual activity and abuse within the family, sufficient to explain why he felt that he could get away with abusing her and knew she could not rely on her family for protection; his appeal failed. [R v TM, 2000, 2 Cr App 266]
Under Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, this is covered by the well-established use of the Moorov Doctrine
Moorov v HMA
Moorov v HM Advocate is a famous case in Scots criminal law based on criminal evidence and the admissibility of similar fact evidence...
.