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| Summary: Should a defendant’s previous convictions be made known in the course of a trial? |
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Author:Alastair Endersby ( United Kingdom )
Alastair learnt to debate at the Cambridge Union but discovered his real talents lay in coaching when he started teaching. He has twice coached England teams in the World Schools Debating Championships. Alastair currently teaches History and Politics at Bishop Wordsworth's School in Salisbury, England. He is the Editor of Debatabase.
Created: Tuesday, January 28, 2003
Last Modified: Tuesday, January 28, 2003
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In most English-speaking legal jurisdictions, such as the UK, Canada, the USA, New Zealand, and Australia, a defendant’s previous convictions cannot usually be brought up in court until after the jury has given its verdict. They may be considered by the judge in fixing a sentence, but not for determining guilt in the first place. This rule does not apply universally in non-English-speaking legal cultures, even in those that also use juries. In France, for example, the jury can be told of a defendant’s previous convictions.This issue is currently controversial in the UK, as the British Government has proposed disclosing previous convictions in most court cases. The arguments could, however, apply equally well in other English-speaking jurisdictions, and may well do so if the proposed British measure is implemented and seen in some quarters to be successful. |
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| At present the justice system is unfairly weighted in favour of criminals and against the victims of crime. This leads to many dangerous offenders being acquitted and let loose on the streets to commit crimes in future. Not surprisingly, the public finds it very frustrating that court rules work against just outcomes. High profile cases illustrate the problems involved, e.g. with jurors being shocked to discover that someone they have just acquitted of violent rape is already serving a prison sentence for a very similar crime. It is time to rebalance justice in favour of victims by allowing previous criminal convictions to be disclosed in court. |
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This proposal greatly weakens the presumption of innocence that is critical to a fair trial. The job of a jury is to decide the case on the evidence available, not on information in the defendant’s past life that has no relevance to the particular circumstances of the alleged crime at trial. Many people who committed crimes in their youth never reoffend, and even if someone is a career criminal, it does not mean that they are guilty for a particular offence. |
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| It is unfair and illogical not to place all the evidence in a case before the jury. If a defendant has previous convictions then jurors should be told of it and allowed to weigh its relevance accordingly. The whole criminal justice system relies upon trusting the jury to deliberate carefully and without prejudice on the basis of the evidence; yet present practice assumes they cannot be trusted to know everything. As the UK Government’s White Paper says: "We want less evidence to be withheld from the courts, on the principle that relevant evidence should be admissible unless there are good reasons to the contrary. Magistrates, judges and juries have the common sense to evaluate relevant evidence and should be trusted to do so." |
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We do not place absolute trust in juries at present; indeed the British government has been trying unsuccessfully to restrict the right to jury trial for several years, before giving up in the face of determined political and legal opposition. Other proposed legal reforms go in the direction of limiting the kinds of evidence jurors that can hear. For example, the questioning of rape victims about their sexual history will be severely restricted on the grounds that it is highly prejudicial. |
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| Jurors are often already tainted by the widespread reporting about cases, despite attempts to censor what the press prints and efforts to control what influences the jury are subject to. This creates an unsatisfactory and dangerous situation where ill-founded rumour about defendants’ records and newspaper speculation may skew a trial. It would be much better to bring any previous convictions out into the open (as defence counsels already choose to do in some cases). Mock trials are very limited in their reliability as a research tool as, unlike a real jury, the subjects know that their decision will not have any actual impact upon the life of the 'defendant'. |
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Research at the Oxford Centre for Socio-Legal Studies in 1995 indicated that revealing previous convictions to a "jury" in mock trials increased the probability that they would convict by 50%. Disclosure of previous sexual offences increased the chances of conviction by even more than this, regardless of the offence being tried. This indicates that jurors (and lay magistrates) are likely to be guided by their prejudices in judging cases, and will not be considering the evidence alone. |
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| This measure may well help some defendants to mount a stronger defence, as it would also allow the criminal records of prosecution witnesses to be admitted as evidence. This will allow the jury to weigh the evidence of some witnesses more carefully. The UK Government White Paper argues that at present "the threat of introducing [the defendant’s] previous convictions will frequently inhibit him from introducing character evidence about the prosecution witness." |
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This measure gives an incentive to the police to do lazy and unfair investigations. Their best chance of obtaining convictions will be to round up the "usual suspects" -- previously convicted criminals to whom jurors are unlikely to give a fair hearing. The Bar Council is particularly worried about justice "when a weak identification case is bolstered by reading out the defendant's record." This is likely to result in many miscarriages of justice and to mean that many of the guilty are never properly pursued and brought to trial. |
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| It is true that many cases do involve guilty pleas, but those which are contested are disproportionately concentrated among certain types or serious crimes, particularly rape. The conviction rate for rape cases is very low, a fact which leads many victims of rape to avoid reporting the crime to the police, or to refuse to assist a prosecution. Many rape cases do involve men who have a previous record of sexual offending, and the inability of the police and prosecution to refer to this in court contributes greatly to the failure of many rape trials, and the release of many dangerous men back into society. |
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This is not likely to have a dramatic effect on conviction rates, as the large majority of those who are accused of crimes already plead guilty. The two biggest reasons for dissatisfaction with the justice system are poor investigation work by the police and poor case preparation by the prosecuting authorities, resulting in flawed and collapsed trials. This lack of confidence in turn makes the public less likely to cooperate with investigations. These problems should be addressed instead if higher conviction rates and greater public confidence in the justice system are our objective. |
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| At present in Britain, previous convictions can be disclosed at a trial if the judge rules that the circumstances of the past and present cases are "strikingly similar", if the defendant claims falsely to be of good character, or if they attack the character of a prosecution witness. These criteria are drawn from a number of pieces of legislation and legal precedents, and inevitably, different judges interpret these criteria in very different ways, meaning that justice is inconsistent and arbitrary. It would be much better to have a simple ruling to make court procedures clearer and more accessible. |
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This is not just a tidying-up measure. The British government’s particular proposal to allow the disclosure of previous offences in court is dangerous, as not only convictions, but also acquittals and other past conduct could be raised in court. This means that a jury could be informed that someone had a history of sexual interest in children, even if they had never been tried, or even charged with an actual offence. This will be very prejudicial and allow the police to blacken someone’s character without the evidence formal proceedings would require. |
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| | This House believes the jury has the right to know
This House would disclose previous convictions in court
This House believes ignorance is not bliss
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Posted: Wed Dec 20, 2006 12:08 pm
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Author: Alastair Endersby (United Kingdom)
Alastair learnt to debate at the Cambridge Union but discovered his real talents lay in coaching when he started teaching. He has twice coached England teams in the World Schools Debating Championships and Chairs the England Schools Debating Team Committee. He is the Editor of Debatabase.
Created: Tuesday, January 28, 2003
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In most English-speaking legal jurisdictions, such as the UK, Canada, the USA, New Zealand, and Australia, a defendant's previous convictions cannot usually be brought up in court until after the jury has given its verdict. They may be considered by the judge in fixing a sentence, but not for determining guilt in the first place. This rule does not apply universally in non-English-speaking legal cultures, even in those that also use juries. In France, for example, the jury can be told of a defendant's previous convictions.This issue is currently controversial in the UK, as the British Government has proposed disclosing previous convictions in most court cases. The arguments could, however, apply equally well in other English-speaking jurisdictions, and may well do so if the proposed British measure is implemented and seen in some quarters to be successful. |
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