The Study Of The Character Evidence Rule

Character evidence is one of the most difficult problems of therelevance that frequently appears in Anglo-American evidence law, andsince long ago, the character evidence rule has been regarding as thebasic evidence rule existed in Anglo-American criminal trial. InAnglo-American criminal trial, the core of this rule lies in avoiding theunfair prejudice that creates the negative effect to the objective discoveryof the fact in criminal trial, and thus enhances accuracy which the fact berecognized. But because of the complexity and contradictory of this ruleitself, as well as the tradition of Anglo-American common-law oftencauses this rule to be very difficult to understand, disputes quite a lot inevidential theory and judicial practice.Beginning from the concept and characteristic of character andcharacter evidence in Anglo-American evidence law, this doctoraldissertation has briefly analyzed the tenet of the character evidence rule,and in foundation, has specifically analyzed the character evidence rule inAnglo-American common law and written law, finally, the author hasproposed the viewpoint which we must establish the systematical rule ofcharacter evidence in our criminal trial. This dissertation consists of thefour chapters, total 140,000 words.Chapter one has emphatically analyzed the elementary tenet of thecharacter evidence rule. This chapter divided with three sections, hasseparately studied the concept,the characteristic and the scope ofcharacter evidence, the brief history of the character evidence rule, aswell as the rationale of the character evidence rule. Section one of thischapter has emphatically analyzed the concept,the characteristic and thescope of character evidence. In first part of this section, firstly, the authorhas briefly analyzed the concept of the word of character, and thoughtthat the word of character has the concept of narrow and board sense in Anglo-America evidence law, and the concept of the word of character isintegrity and containing, and its intension has unceasingly being changedalong with the time development. Next, the author has specificallyanalyzed the nature of character of the distinctive quality, the integrity,the accumulated as well as the stable characteristic, and then proposed theviewpoint that we can carry on deducting according to a person'scharacter, namely the people all acts in conformity therewith on aparticular occasion, character should be allowed to forecast a person'sbehavior or behavior possibility. The deduction from character stemmingfrom the common sense and experience of the people has foundation ofthe experience and science, and has been foundation from which thecharacter evidence rule can be established in Anglo-American criminaltrial.In second part of section one, the author has briefly analyzed theconcept,the form and the characteristic of character evidence. The authorthinks that character evidence certainly is not evidence that only proves aperson's character or characteristic of character in Anglo-Americanevidence law, but it must be that can prove a person's character or thecharacteristic of character, and then deduce that the people all acts inconformity therewith on a particular occasion. Therefore so definingcharacter evidence, the reason lies in, although a evidence can prove aperson's character or characteristic of character, but certainly cannotprove the fact through the deduction from character, then these evidencecertainly are not character evidence. Speaking of the form of characterevidence, the author thinks that the form of character evidence has beendivided into the concrete manifestation form of reputation evidence,opinion evidence as well as concrete behavior evidence (evidence ofprevious good act,evidence of prior misconduct or evidence of previousconvictions) in Anglo-American evidence law. Reputation evidence asexception of the rule of hearsay evidence is allowed adduced, opinion evidence as exception of the rule of opinion evidence is also allowedadduced, and three kinds of the form of character evidence have thecertain difference in evidential value, and this is one of the reasons whichAnglo-American evidence law extremely takes to the form of characterevidence. Speaking of the characteristic of character evidence, the authorthinks that character evidence has the dual attribute of direct evidence andindirect evidence in Anglo-American evidence law, in concrete case,character evidence is direct evidence or indirect evidence must rely on thefact in issue to be determined. Regarding as indirect evidence of characterevidence, in ordinary circumstances, all must carry on two levels oflogically reasoning, firstly, we must confirm whether character of aperson be proven by character evidence. Next, we must judge thepossibility of acting in conformity therewith on a particular occasion.Moreover, character evidence certainly does not have the solely suitablerule, but according to the nature,the form of character evidence, and thedifferent status and the role of concerned personnel in criminal trial, aswell as the needs of criminal policy has to be suitable for the differentrule. In addition, the form of character evidence has the complexity, thenmay display for the form of testimony, also may display for the form ofconcrete behavior evidence, but character evidence in the form oftestimony is special, because it only can be presented by characterwitness, but there is remarkable difference between character witness andordinary witness. Finally, the author thinks that character evidence hasthe intensely moral meaning, possibly causes the fact ruler to have theunfair prejudice, this is precisely main difference between characterevidence and other evidence.In third part of section one, the author has briefly introduced thescope of character evidence. The author thinks that, in modernAnglo-American criminal trial, character evidence certainly should notmerely be limited in bad character evidence of the accused in written law, but must include good character evidence of the accused,the witness andthe victim in common law, as well as bad character evidence in writtenlaw, bad character evidence in written law should include bad characterevidence of the accused,the witness and the victim, as well as the sexualhistory evidence of the victim in sexual offences. Moreover, inAnglo-American modern jurisdictions, character evidence does not havethe important status in civil action, but mainly is suitable for criminaltrial.In section two, the author has briefly introduced the formation anddevelopment of the character evidence rule. The origin of the characterevidence role is possibly very difficult to be precisely recognized, butgenerally believed, in initial period in 19th century, in Englishjurisdictions at common law, the court gradually has formulatedunanimous understanding that character evidence possibly creates theunfair prejudice as well as causes the fact ruler to deviate from the core ofthe case, and has gradually established the character evidence rule incommon law. The promulgate of England《The Criminal Evidence Act1898》has symbolized the character evidence rule to have beenestablished in written law. But removing character evidence by thecharacter evidence rule is always not absolute, the history of theexceptional rule is glorious. Moreover, nearly for a century from havingformed of the character evidence rule, the legislator has not nearlyamended the rule of character evidence significantly and substantively,this kind of condition has been continued to the latter half of the 20thcentury. In the 20th century 70's, English law firstly has formulated thenew rule about victim's sexual history evidence in sexual offences, andalso has carried on reconsidering bad character evidence of the accused inthe 1990s. and has promulgated《The Criminal Justice Act 2003》in 2003,and has established the new systematical rule of character evidence forbad character evidence of the accused as well as the person outside of the accused. Thus, we may say that English law throughout walks to thelegislation and the revision of the character evidence rule in the time front,and is eagerly anticipating the development tendency of the characterevidence rule.Section three has emphatically analyzed the rationale of thecharacter evidence rule. In first part of this section, the author hasemphatically analyzed the relevance of character evidence. The authorthinks that character evidence therefore has became the one of the mostdifficult problems of the relevance in Anglo-American evidence law,mainly has following two reasons: firstly, discrimination of directrelevance and indirect relevance in evidence. Secondly, influence ofcharacter deduction. Moreover, the author has carried on the detailedanalysis and introduction to the relevance of character evidence, firstly,when character becomes a fact in issue, character evidence has directrelevance. Secondly, the relevance of good character evidence. Goodcharacter evidence of the accused not only has relevant to the credibilityof the accused, but also relevant to whether the accused has committedpresent offence. But regarding good character evidence of the witness andvictim, in ordinary circumstances, it only has relevant to their credibility,but in peculiar circumstance, good character evidence of the victim hasnot only relevant to her credibility, but also simultaneously has relevantto whether the accused has committed present offence. Thirdly, therelevance of bad character evidence. Bad character evidence of theaccused has not relevant to the credibility as well as not relevant towhether the accused has committed present offence, but in peculiarcircumstance, bad character evidence of the accused has relevant to thecredibility. Moreover, when bad character evidence of the accusedbelongs to similar fact evidence, it has not relevant to a fact in issue, butsimilar fact evidence actually may be used for no-character purpose andused to prove the subjective condition of the accused. In addition, in ordinary circumstances, bad character evidence of the witness and victimhas only relevant to their credibility, but in peculiar circumstance, badcharacter evidence of the victim has not only relevant to her credibility,but also simultaneously relevant to whether the accused has committedpresent offence.Second part of section three has emphatically analyzed the rationaleof the good character evidence rule of the accused. The author believesthat there are possibly two reasons that Anglo-American common lawcontinuously has allowed since long ago the accused to introduce its goodcharacter evidence to prove its own credibility as well as not havingcommitted present offence. Firstly, regarding good character evidence ofthe accused, Anglo-American common law has acknowledged characterdeduction stemming from the common sense and experience of thepeople, and thought that the person who had good character is impossibleto be engaged in criminality or to have more credibility. Next,implementing the advantageous principle to the defendant in criminalprocedure, and allowing the accused to introduce its own good characterevidence, because good character evidence of the accused may alwayscause the fact ruler sympathy and favorable impression to the accused,thus causes it possibly to make advantageous ruling to the accusedThird part of section three has emphatically analyzed the rationale ofthe bad character evidence rule of the accused. The author believes thatAnglo-American common law and written law has prohibited prosecutorfirst to adduce bad character evidence of the accused in criminal trialsince long ago, bad character evidence of the accused has not relevant tothe credibility as well as whether the accused has committed presentoffence. But the court removes bad character evidence of the accusedoften certainly is not based on its no relevance, but is based on the requestof the due process. Specifically saying, the reason that prohibitsprosecutor first to adduce bad character evidence of the accused has following several points: (1) unfair prejudice; (2) the presumption ofinnocence; (3) unfair surprise; (4) the principle of the justice identical tothe sue; (5) privilege against self-incrimination; (6) avoiding theconfusion of the fact in issue and the loss of the efficiency. Moreover, theauthor has carried on brief analysis and introduction to the dispute of therationale of the bad character evidence rule of the accused.Fourth part of section three has emphatically analyzed rationale ofthe character evidence rule of the witness and the sexual history evidencerule of the victim. The author thinks that the rationale of the witness'scharacter evidence rule similarly lies in character deduction stemmingfrom the common sense and experience of the people, good characterevidence and bad character evidence of the witness have relevant to thewitness's credibility. But in sexual offences, the sexual history evidenceof the victim has not relevant to her credibility as well as whether sheexpresses the agreement in present offence charged. Forbidding thesexual history evidence of the victim mainly lies in following severalreasons: (1) protects victim's privacy; (2) safeguards the feminineautonomous status; (3) sexual history evidence of the victim does nothave the relevance, and possibly causes the unfair prejudice to the victim;(4) prevents possibly rapes to occur, and encourages the victim to carryon the crime indictment.Chapter two has emphatically studied the character evidence rule ofthe accused, this chapter divided with three section, has separately studiedthe rule of good character evidence of the accused, the rule of badcharacter evidence of the accused, as well as the utilization of characterevidence of the suspect and accused in detection, prosecution andsentencing procedure in main western country. The author thinks, inAnglo-American criminal trial, the concerned rule of character evidenceof the accused is the main content of the character evidence rule, the badcharacter evidence rule of the accused has an important status in it, its distinctive quality displays in even if bad character evidence of theaccused has certain evidence value, but because it possibly creates unfairprejudice that surmounted its evidence value, so to be removed incriminal trial. But the criminal procedure in continental legal system, theevidential theory often only pays great attention to whether a person'scharacter has evidence value, if it has evidence value, then should beaccepted, by no means systemically considered that bad characterevidence of the accused possibly creates the unfair prejudice to theaccused. Thus may say, in two legal systems, the main difference inutilization of character evidence of the accused lies in whether forbidsbad character evidence of the accused in order to avoiding the unfairprejudice in criminal trial, but at other stages of criminal procedure, thereis non-essential difference in utilization of character evidence of thesuspect and accused. First section of this chapter has emphaticallyanalyzed the good character evidence rule of the accused. The authorthinks that the channel of introducing good character evidence of theaccused is widespread, and the form of good character evidence of theaccused does not merely limit to the form of reputation evidence oropinion evidence, also should include prior concrete good behaviorevidence of the accused. Moreover, regarding whether the accused hasintroduced its own good character evidence, whether accused hasresponsibility for good character evidence adduced, judge must exercisedirection, and must explain the reason of ruling, only when the accusedhas explicitly introduced its own good character evidence, then possiblycauses its own character to be cross-examined. In addition, the judgemust carry on the instruction to the jury in significance of good characterevidence of the accusedSection two has emphatically analyzed the bad character evidencerule of the accused. Bad character evidence of the accused has notrelevant to their credibility as well as whether the accused has committed present offence, thus prohibiting prosecutor first to adduce bad characterevidence of the accused in criminal trial. The key point of this section liesin the exceptional rule of forbidding bad character evidence of theaccused, in Anglo-American criminal trial, bad character evidence of theaccused in following situations is allowed to adduce: (1) the bad characterof the accused is a fact in issue; (2) the accused has introduced its ownbad character evidence; (3) evidence adduced by the prosecutorsupplementary to disclose bad character evidence of the accused; (4) theaccused has introduced its own good character evidence; (5) the accusedhas imputed on character of the prosecutor or the witness for theprosecution or the victim of the alleged crime; (6) the accused hasintroduced evidence against any other charged in the same proceedings;(7) bad character evidence of the accused belongs to the similar factevidence; (8) evidence of habit. Moreover, the author has briefly analyzedthe revision of the bad character evidence rule of the accused by England《The Criminal Justice Act 2003》, and thinks this law certainly has notmade significantly and substantively change to the prior rule, but merelyhas summarized the prior rule and given the systematical legislation.Section three has emphatically introduced utilization of characterevidence of the suspect and accused in detection,prosecution andsentencing procedure in main western country. The author thinks that thegoal lies in verifying dangerousness of a person by using characterevidence of the suspect and accused in detection,prosecution andsentencing procedure. Character of the suspect and accused must beimportant content indicating personal dangerousness, thus it is very vitalsignificance for utilization of the methods of investigation and forcedmeasure,and for accurate prosecution as well as correctly deciding thepenalty. Moreover, judging personal dangerousness of the Suspect andaccused is not only content of the research of criminal law,simultaneously also must be content of the research of criminal procedure law and evidence law. First part of this section has emphaticallyintroduced utilization of character evidence of the suspect in pretrialdetention in main western countries of two legal systems. The authorthinks pretrial detention has the goal of prevention, using characterevidence of the suspect proofs character of the suspect, and thendetermining its personal dangerousness, it has the vital significance inutilization of pretrial detention.Second part of section three has emphatically introduced utilizationof character evidence of the suspect in the direction to prosecution. Usingcharacter evidence of the suspect proofs its character, and thendetermined whether there is personal dangerousness, it has an importantinfluence that the prosecution exercises authority to decide whethermentions the appeal to the court.Third part of section three has emphatically introduced utilization ofcharacter evidence of the accused in sentencing procedure. Investigatingcharacter of the accused in sentencing procedure should not to be limit byevidence rule in trial, the court may fully consider the characterconditions of the accused in order to accurately decide the penalty basedon the accused individually. Moreover, we should pay attention to theright of the accused in sentencing procedure, for example, the right ofdisplaying, investigation report of character, the right of questioninginvestigation report of character, as well as proof standard whichinformation relating to the discretion of punishment must be achieved.Chapter three has emphatically analyzed the character evidence ruleof the witness and the rule of the sexual history evidence of the victim,This chapter divided with three sections, has separately studied thecharacter evidence rule of the witness, and the rule of sexual historyevidence of the victim, as well as the revision of the character evidencerule of the person outside of the accused in England《The CriminalJustice Act 2003》. First section of this chapter has analyzed the character evidence rule of the witness. The author thinks, in Anglo-Americancriminal trial, impeaching witness's credibility by using bad characterevidence of the witness is one of the important ways of impeachmentwitness's credibility, and witness's credibility should no doubt belong tothe scope of cross-examination, cross-examining witness's credibilityonly should be restraint by the collateral-finality rule at common law,denial reply to the question of character by the witness must be the end,although cross-examiner possibly does not approve of the witness's reply,but cross-examiner cannot further adduce evidence to refute. Moreover,bad character evidence in the form of reputation evidence or opinionevidence should be allowed in impeaching witness's credibility, but inordinary circumstances, prohibiting prior misconduct of the witness, onlyif judge adjudicated this evidence has the value of proving witness'shonest or dishonest, then allowed to be adduced. Previous convictions ofthe witness could be allowed to use in impeaching witness's credibility,but should be restraint by the time far and near, as well as by the guiltrelevant to witness's credibility. In addition, the author believes, inimpeaching witness's credibility, it is necessary and reasonable todiscriminate between the prior misconduct and previous convictions ofthe witness in Anglo-American evidence law. Finally, the author hasbriefly analyzed and introduced the methods to restore witness'scredibility by adducing witness's good character evidence.Section two has emphatically analyzed the rule of sexual historyevidence of the victim. According to the tradition of Anglo-Americancommon law, in the case of sexual offences, the victim's sexual historyevidence is relevant to the credibility of the victim, simultaneously alsorelevant to whether the victim has expressed the agreement in presentoffence charged. But, England《The Sexual Offence (Amendment) Act1976》and US《The Federal Rules of Evidence》in 1978 has subverted theviewpoint at common law, in the case of sexual offences, prohibiting the accused to introduce sexual relationship evidence between the victim anda person outside of the accused to impeaching witness's credibility as wellas whether the victim has expressed the agreement in present offencecharged. Moreover, England《Youth Justice and Criminal Evidence Act1999》has formulated a stricter rule in foundation of the prior rule, nolonger differentiated the sexual act between the victim and accused andbetween the victim and a person outside of the accused, but is allforbidden. In addition, the author has briefly analyzed and introducedexceptional conditions that allow introducing victim's sexual historyevidence.Section three has briefly introduced the revision of the bad characterevidence rule of a person outside of the accused in England《The CriminalJustice Act 2003》. In this law, a person outside of the accused is refers tothe witness and victim as well as any person, certainly it has not made thespecial stipulation to victim's sexual history evidence in the case of thesexual offences, besides of the unanimous approval of the bilaterallitigants, adducing bad character evidence of a person outside of theaccused all must first obtain judge's permission, as if it has strengthenedjudge to control bad character evidence of a person outside of the accusedChapter four has emphatically analyzed the necessity and thefeasibility of establishing the character evidence rule in our criminal trial,and the concrete design. This chapter altogether divided with threesections, Section one has analyzed the necessity of establishing thecharacter evidence rule in our criminal trial. The author believes, thatestablishment of the character evidence rule is advantageous to strengthenthe right safeguard of the accused in criminal trial, and to prefectcross-examination and strengthen the right protection of the victim, aswell as manifest justification of criminal procedure in our country.Section two has analyzed the feasibility of establishing the characterevidence rule in our criminal trial. The author believes, that although there has not the systematical rule of character evidence in continentallegal system, but certain rules similar with the character evidence rule inAnglo-American law still existed, this kind of situation has similarlyexisted in our country, these rules already existed have provided theprecious experience for establishing the systematical evidence rule ofcharacter. Moreover, the author has analyzed from the macroscopic anglethat we can establish the systematical rule of character evidence inpresent system in our country, there is no systematical barrier fromestablishing the systematical rule of character evidence in our criminaltrial.Section three has detailed the concrete design of the rule of characterevidence in our criminal trial. The author believes, that firstly we mustestablish the related tenet in evidential theory. Next, the author hasformulated the draft of the evidence rule of character to reference.