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² “En vérité ce furent (ses condamnations précédentes) qui l'emportèrent et dictèrent le nouveau jugement. Tant il est difficile pour le juré de ne pas considérer une première condamnation comme une charge et de juger le prévenu en dehors de 1'ombre que cette première condamnation porte sur lui”: “Souvenirs de la Cour d'Assises” in Ne Jugez Pas (Paris, 1969), pp. 70–71.Google Scholar

³ Teitelbaum, Sutton-Barbere and Johnson, “Evaluating the Prejudicial Effect of Evidence: Can Judges Identify the Impact of Improper Evidence on Juries?” (1983) Wis.L.Rev. 1147.

⁴ Wigmore, I., Evidence, §57, p. 456.Google Scholar

⁵ Rowton (1865) Le. & Ca. 520, 541, per Willes J.Google Scholar

⁶ For a recent account of this area of law, see Elliott, “The Young Person's Guide to Similar Fact Evidence” [1983] Crim.L.R. 284 and 352.

⁷ E.g., s.2(l), Official Secrets Act 1911; s.27(3), Theft Act 1968.

⁸ See Tapper, , “The Meaning of s.l(f)(i) of the Criminal Evidence Act 1898” in Crime, Proof and Punishment. Essays in Memory of Sir Rupert Cross (London, 1981), p. 296.Google Scholar

⁹ E.g., Murdoch v. Taylor [1965] A.C. 574, 592, per Lord Donovan; Russell (1971) 1 Q.B. 151, 154, per Widgery L.J.; Lovett [1973] 1 W.L.R. 241, 246, per Edmund Davies L.J.

¹⁰ See post, pp. 78 el seq.

¹¹ Inder (1978) 67 Cr.App.R. 143.

¹² Seigley (1911) 6 Cr.App.R. 106, 107, per Hamilton J.

¹³ For a general outline of this matter, see Pattenden, “The Purpose of Cross Examination under Section 1(f) of the Criminal Evidence Act 1898” [1982] Crim. L.R. 707.

¹⁴ Cross on Evidence (London, 1979), 5th ed., p. 433.Google Scholar

¹⁵ Cross, , An Attempt to Update the Law of Evidence (Jerusalem, 1974), p. 21.Google Scholar

¹⁶ E.g., Clifford, , “Towards a More Realistic Appraisal of the Psychology of Testimony” in Lloyd-Bostock (ed.). Psychology in Legal Contexts. Applications and Limitations (London, 1981), pp. 19et seq.CrossRefGoogle Scholar

¹⁷ Principles of Judicial Proof, 2nd ed., (Boston, 1931), pp. 530–531. For a more forthright statement, see Wigmore. “Professor Muensterberg and the Psychology of Testimony” (1909) 3 III.L.Rev. 399.Google Scholar

¹⁸ Eysenck, , The Structure of Human Personality 3rd ed., (London, 1970), p. 227.Google Scholar

¹⁹ Hartshorne and May, I Studies in the Nature of Character—Studies in Deceit (New York, 1928), p. 411.Google Scholar

²⁰ Hartshorne, , May, and Shuttleworth, , 3 Studies in the Organization of Character (New York, 1930), p. 1 (Emphasis added)Google Scholar. See also, Hartshorne, , Character in Human Relations (New York, 1932), p. 209.Google Scholar

²¹ See Clapham, “Introducing Psychological Evidence in the Courts: Impediments and Opportunities” in Lloyd-Bostock (ed.), op. cit., note 16, supra, p. 102.

²² For an excellent synopsis of this problem, see Lawson, , “Credibility and Character: A Different Look at an Intermittent Problem” (1975) 50 Notre Dame Lawyer 758, 779 et seq.Google Scholar

²³ Mischel, , Personality and Assessment (New York, 1968), p. 26.Google Scholar

²⁴ Doob, , “Evidence, Procedure and Psychological Research” in Bermant, , Nemeth, and Vidmar, (eds.), Psychology and the Law (New York, 1976), pp. 138–139Google Scholar; Doob, , “Psychology and Evidence” in Friedland, (ed.), Courts and Trials: A Multi-Disciplinary Approach (Toronto, 1975), pp. 40el seq.Google Scholar

²⁵ E.g., Ladd, , “Credibility Tests—Current Trends” (1940) 89 U.Pa.L.Rev. 166, 189–191.Google Scholar

²⁶ See Kalven, and Zeisel, , The American Jury (Boston, 1966), pp. 146–148 and 179.Google Scholar

²⁷ lnder (1978) 67 Cr.App.R. 143.Google Scholar

²⁸ Doob, and Kirshenbaum, , “Some Empirical Evidence on the Effect of s.12 of the Canada Evidence Act upon an Accused” [1972] 15 Crim.L.Q. 88.Google Scholar

²⁹ Friedland, annotation in (1969)47 Can. Bar. Rev. 656. 658. Sec also Landy, and Aronson, , “The Influence of the Character of the Criminal and his Victim on the Decisions of Simulated Jurors” (1969) 5 Journal of Experimental Social Psychology 141.CrossRefGoogle Scholar

³⁰ See, e.g., Glanville, Williams, The Proof of Guilt, 3rd ed., (London, 1963), pp. 214–215. This point is supported in some measure by the Findings of the L.S.E. Jury Project: see. Scaly and Cornish, “Juries and the Rules of Evidence” [1973) Crim.L.R. 208, 220; C.L.R.C. 11th Report. Evidence (General), 1972, Cmnd. 4991, para. 181: U.S. V. Antonelli Fireworks Co. 155 F. 2d 631. 656 (1946). per Frank J.Google Scholar

³¹ Selvey v. D.P.P. [1970] A.C. 304.

³² Nye (1982) 75 Cr.App.R. 247. See also Practice Direction (Crime: Spent Convictions) [1975] 1 W.L.R. 1065.Google Scholar

³³ Walts (1983) 77 Cr.App.R. 126.Google Scholar

³⁴ Britzman and Hall [1983] 1 All E.R. 369.Google Scholar

³⁵ Of. supra, note 33. See Munday [1984] 43 C.L.J. 10; Zuckerman, (1983) All England Law Reports Annual Review at pp. 201–202.Google Scholar

³⁶ Ibid., at pp. 129–130 (emphasis added).

³⁷ The same postulate may have weighed with the court in Paraskeva (1983) 76 Cr.App.R. 162 where the Court of Appeal held it a material irregularity for the Crown inadvertently to have omitted to inform the defence that the sole prosecution witness had a spent conviction for theft: “it cannot be said that it was not a relevant matter for the jury to be told that one man had been dishonest in the past.” See Cross on Evidence. Second Australian Edition (Sydney, 1979), by Gobbo, Byrne, and Heydon, para. 15–26, p. 407.Google Scholar

³⁸ 383 F.2d 936, 939–940 (1967). See also, Maguire, , Evidence. Common Sense and Common Law (Chicago, 1947), p. 77Google Scholar; Wright, , Note (1940) 18 Can. Bar. Rev. at 809–810.Google Scholar

³⁹ [1935] A.C. 309, 319 (emphasis added). Although this case proceeded under the first limb of s. l(f)(ii), Viscount Sankey's remarks were directed to the subsection as a whole and, indeed, were quoted by Lord Lane C.J. in Watts, supra.

⁴⁰ Mewett in [1983] 25 Crim.L.Q. at p. 130.

⁴¹ E.g., Teed, “The Effect of s.12 of the Canada Evidence Act upon an Accused” [1970] 13 Crim.L.Q. 70, 75. It is interesting to note that the Canadian Uniformity Conference accepted the special relevance of convictions for perjury: see, e.g., Mr. Justice McDonald, “Observations on the Proposed Uniform Evidence Act” (1981–82) 24 Crim.L.Q. 298, 310.

⁴² Warts, supra note 33.

⁴³ [1935] A.C. 309, 321.

⁴⁴ [1970] A.C. 304.

⁴⁵ “Can the Accused Attack the Prosecution?” (1974) 7 Syd.L.R. 166. 167.

⁴⁶ Griswold, , “The Long View” (1965) 51 A.B.A.J. 1017. 1021.Google Scholar

⁴⁷ U.S. v. Jacangelo, 281 F.(2d) 574, 576, (1960) per Hastie J.

⁴⁸ Heydon [1966] 1 N.S.W.L.R. 708, 735. per Sugarman J.

⁴⁹ (1956) 40 Cr.App.R. 8, 12. Cf. Shrimpton (1851) 2 Den. 319, 322, per Alderson B.

⁵⁰ Cit. supra, note 33. Exceptionally, the Court of Appeal in John and Braithwaite (24 November 1983), unreported, held that convictions for dishonesty, uncomfortably close to that with which the accused were charged, should have been excluded: see Archbold, , Pleading, Evidence and Practice in Criminal Cases, 41st ed., (1982), para. 4–365 (Eighth Supplement).Google Scholar

⁵¹ Krulewitch v. U.S., 336 U.S. 440, 453 (1948). See also People v. Granillo, 36 P.(2d) 205. 211 (1934), per Willis J. Some confirmation of this may be found in Sue, Smith, and Caldwell, , “Effects of Inadmissible Evidence on the Decisions of Simulated Jurors. A Moral Dilemma” (1973) 3 Journal of Applied Psychology 345Google Scholar. See also, “Other Crimes Evidence at Trial. Of Balancing and Other Matters” (1961) 70 Yale L.J. 763, 777–778.Google Scholar

⁵² Sexual Offences Act 1956, s.l(2).

⁵³ Sexual Offences Act 1956, s.3.

⁵⁴ Foreign Enlistment Act 1870, s.6.

⁵⁵ Representation of the People Act 1949, s.100.

⁵⁶ Forgery and Counterfeiting Act 1981, s.l.

⁵⁷ Offences against the Person Act 1861, s.60.

⁵⁸ E.g., Commonwealth v. Quaranta, 145 Atl. 89, 92 (1928) per Kephart J. On the meaning of crimen falsi in this context, see Ladd, , “Credibility Tests—Current Trends”, (1940) 89 U. Pa. L. Rev. at pp. 179–180.Google Scholar

⁵⁹ Model Code of Evidence, sect. 106(l)(b) (1942). The Canadian Uniformity Conference, in its proposed Uniform Evidence Act, also gave particular emphasis to convictions involving perjury or an element of fraud.

⁶⁰ St. Louis and Case (1984) 79 Cr. App. R. 53, 60, per Purchas L.J. See also Rouse [1904] 1 K.B. 184.

⁶¹ E.g., Flynn [1963] 1 Q.B. 729; Selvey v. D.P.P. [1970] A.C. 304.

⁶² Supra, note 34.

⁶³ Baldwin (1925) 18 Cr.App.R. 175, 178. See also Beecham [1921] 3 K.B. 464, 470, per Darling J.

⁶⁴ Eidinow (1932) 23 Cr.App.R. 145, 150, per Avory J.

⁶⁵ Britzman and Hall, supra note 34 at p. 371.

⁶⁶ E.g., Tanner (1977) 66 Cr. App. R. 56, 61; Howard [1983] 8 A.Crim. R. 109, 122, per Olney J. See comments of McBarnet, , Conviction, Law, The Slate and the Construction of Justice (London, 1981), at pp. 76–77 and 170Google Scholar. In the circumstances one may have little sympathy for the accused who is nimbly “skirting the promontory of direct perjury”: McCranor (1918) 31 C.C.C. 130, 131, per Riddell J.Google Scholar

⁶⁷ Supra, note 34 at p. 374.

⁶⁸ See Maxwell v. D.P.P., supra note 43 at p. 318, per Lord Sankey.

⁶⁹ The prosecution's duty is limited to revealing its witnesses’ known bad character to the defence: Collister and Warhurst (1955) 39 Cr. App. R. 100, 104,per Hilbery J. The prosecution may, in its discretion, elect to reveal its witnesses’ bad character to the jury, but neither the Crown nor the judge is under any duty to do so if the defence, for whatever reason, omits to bring this matter out in its cross-examination of the prosecution witnesses: Carey and Williams (1968) 52 Cr. App. R. 305, 312, per Cusack J.

⁷⁰ Turner (1944) K.B. 463.

⁷¹ [1970] A.C. 304.

⁷² McGee and Cassidy [1980] Crim. L. R. 172; Cook [1959) 2 Q.B. 340.Google Scholar

⁷³ Archbold, , Pleading, Evidence and Practice in Criminal Cases (41st ed. by Mitchell, London, 1982), para. 4–362Google Scholar. In practice, it tends to do so: see Jenkins (1946) 31 Cr. App. R. 1, 15, per Singleton J.; C.L.H.C.Eleventh Report, Evidence (General) (1972) Cmnd. 4991, para. 119.Google Scholar

⁷⁴ Ellis [1910] 2 K.B. 746, 763–764, per Bray J.

⁷⁵ Nokes, “Imputations on the Prosecution” (1959) 22 M.L.R. 511, 513.

⁷⁶ Cross on Evidence (5th ed., 1979), p. 433; Preston [1909] 1 K.B. 568, 575, per Channell J.

⁷⁷ Inequalities of the Criminal Law” (1956) 34 Can. Bar Rev. at pp. 260–226.

⁷⁸ The Proof of Guilt, (3rd ed. London, 1963), p. 222. Cf. Cross, “Some Proposals for Reform in the Law of Evidence” (1961) 24 M.L.R. 32, 42–43.Google Scholar

⁷⁹ [1939] 4 All E.R. 164.

⁸⁰ Ibid., at p. 165.

⁸¹ E.g., Gooderson, , “Is the Prisoner's Character Indivisible?” [1953] 11 C.L.J. 377 who shows, interestingly, that from an historical perspective there are grounds for suggesting that the defendant can elect to put part only of his character in issue.Google Scholar

⁸² Although there are traces in Lord Sankey's speech in Maxwell v. D.P.P. supra note 43 at pp. 318–319 that such cross-examination can be employed “to show the contrary,” the pervasive tone of his Lordship's judgment, in which the other four Law Lords concurred, is one of concern to exclude prejudicial evidence—as, for example, in a later passage where he says, “indeed the question whether a man has been convicted, charged or acquitted ought not to be admitted, even if it goes to credibility, if there is any risk of the jury being misled into thinking that it goes not to credibility but to the possibility of his having committed the offence of which he is charged” (p. 321). However, in fairness, the speech is ambivalent and English courts have perhaps been less than keen to settle the matter.

⁸³ Supra, note 49.

⁸⁴ For strictures on this sort of direction, see supra pp. 65, 72.

⁸⁵ See supra pp. 68–74.

⁸⁶ It is emphatically a matter of choice. Unsolicited testimonials do not fall foul of the provision (Redd [1923] 1 K.B. 104) and the defendant's intent in adducing the evidence must clearly be to establish his own good character (Ellis [1910] 2 K.B. 746).

⁸⁷ According to the report in [1939] 4 All E.R. 164, it was Winfield who was cross-examined about his convictions for dishonesty. However, the headnote and statement of facts in (1939) 27 Cr.App.R. 139 curiously suggest that it was the character witness who was asked about Winfield's antecedents.

⁸⁸ Quite apart from this, the proposition raises the matter which has already been examined— namely, whether the antecedents of the defendant do provide a reliable guide to a witness's creditworthiness.

⁸⁹ Nash v. U.S., 54 F.(2d) 1006, 1007 (1932). A number of eminent American judges have observed that juries cannot be expected to “segregate evidence into separate intellectual boxes”: People v. Aranda, 407 P.2d 265, 272 (1965)Google Scholar, per Traynor C.J.; U.S. v. Grunewald, 233 F.2d 556, 574 (1954), per Frank J. See also Stone, , “Cross-Examination by the Prosecution at Common Law under the Criminal Evidence Act 1898” (1935) 51 L.Q.R. at pp. 463–464.Google Scholar

⁹⁰ It sometimes comes very close to doing so: see, e.g., Lewis (1982) 76 Cr. App. R. 33. Indeed, under section 27(3) of the Theft Act 1968 and section 2(1) of the Official Secrets Acts 1911, evidence of disposition may be used by the jury to assist it to decide whether a particular element of the offence is established.

⁹¹ People v. Pic'l, 171 Cal. Rptr. 106, 145, 114 Cal. App. 3d 824 (1981), per Jefferson A.J. Clearly, “truthfulness” does not entail the admissibility of all previous convictions.

⁹² Supra, note 49.

⁹³ Cross on Evidence (5th ed. 1979), p. 435.

⁹⁴ Murdoch v. Taylor [1965] A.C. 574, 592, per Lord Donovan; Varley [1982] 2 All E.R. 519.Google Scholar

⁹⁵ Tennyson, Jesse (ed.), Trial of Rattenbury and Stoner (Notable British Trials, 1935), p. 10.Google Scholar

⁹⁶ See, Andrews, , “Joint Trials” (1967) 30 M.L.R. 657Google Scholar; Samuels, , “Separate Trials” [1966]Google Scholar Crim. L.R. 303; Munday, , “Order in the Indictment” (1981) 1 L.S. 146Google Scholar; Weinberg, “Joint Trials—The Problem of Reciprocal Blame” [1984] 8 Crim. L.J. 197.Google Scholar

⁹⁷ Since an accused can “give evidence” against a co-accused either in evidence-in-chief or in cross-examination, it must be open to the prosecution (or even to a defendant) to manoeuvre the co-accused into giving such testimony: Murdoch v. Taylor, supra note 94 at p. 590, per Lord Donovan; Davis [1975] 1 W.L.R. 345,348, per Lawton L.J. However, it should be added that in Murdoch v. Taylor Lord Morris of Borth-y-Gest did suggest that “a judge would be alert to protect a witness from being cajoled into saying more than it was ever his plan or wish or intention to say” (ibid, at p. 584). On the ability of a defendant to entrap a co-accused, see Carvell, “The Criminal Evidence Act, 1898, s.l(f)(iii)” [1965] Crim. L.R. 419.

⁹⁸ Supra, notes 46–51.

⁹⁹ Interestingly, to trigger section l(f)(iii) there is no need for animus or hostile intent: Davis, note 97 supra; Varley, note 94 supra at p. 522, per Kilner Brown J.

¹ Cmnd. 4991.

² Ibid., para. 128.

³ Ibid., para. 129.

⁴ Ibid., para. 120.

⁵ Annex 1, Draft Bill, clause 6(4).

⁶ Supra, note 33.

⁷ Atwood v. Impson, 20 N. J. Eq. 150, 157 (1869), per Zabriskie Ch.Google Scholar

⁸ People v. Downs, 206 N.W.(2d) 241, 243, (1973), per Peterson J.

⁹ 3A Wigmore, Evidence (1970; J. Chadbourn rev.), para. 922, p. 725.

¹⁰ Twining, , “Identification and Misidentification in Legal Process: Redefining the Problem” in Lloyd-Bostock, and Clifford, (eds.). Evaluating Witness Evidence (Chichester, 1983), p. 263Google Scholar. More generally, see Marshall, , Law and Psychology in Conflict (Indianapolis, 1966).Google Scholar

¹¹ Preface to Shepherd, , Ellis, and Davies, , Identification Evidence. A Psychological Evaluation (Aberdeen, 1982), p. vi. In 1976, in his Report on Identification in Criminal Cases, at p. 73, Lord Devlin opined that the findings of psychological research were not sufficiently accepted to become the basis of legal change. However, it is interesting to observe that more recently bodies such as the Roskill Committee, set up to make recommendations on major fraud trials, have sometimes sought the counsel of applied psychologists.Google Scholar

¹² A.G. v. Horner (No. 2) [1913] 2 Ch. 140, 156.

¹³ Evidence (St. Paul, Minnesota, 1954), p. 165.Google Scholar

¹⁴ The Short Stories of Saki (The Bodley Head, 1930), p. 630.Google Scholar

¹⁵ Cmnd. 4991, para. 125.