12. “Good” or Exculpatory Character Evidence Called by an Accused: Introduced

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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The accused may prove that she is not the kind of person who would commit the offence with which she is charged. This proof can be done through

· reputation witnesses;

· admissible expert testimony;

· the accused’s own testimony;

· similar fact evidence; and

· according to some authorities, the opinion evidence of lay witnesses who are familiar with the accused.

Where an accused presents this kind of evidence, she will be taken to have placed her own character in issue, enabling the Crown to present evidence about her character for the purpose of neutralizing the character evidence of the defence. This can be done through

· the cross-examination of the character witnesses and of the accused;

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· rebuttal reputation witnesses;

· proof of the previous convictions of the accused;

· admissible expert testimony; and

· otherwise admissible similar fact evidence.

There is authority suggesting that rebuttal can be done by using relevant prior inconsistent statements made by the accused.

"Good" or exculpatory character evidence is proof presented by the accused to suggest that he or she is not the type to have committed the offence. Typically the character trait proved by the accused is a positive one such as honesty, or passivity. For this reason the term "good character" is used to describe the relevant rules. Those rules embrace, however, proof that the accused possesses an unappealing character trait that, on the peculiar facts of a case, may make the commission of the offence less likely, such as "homophobia"164or suicidal tendency.165The term "good character" should therefore be understood as including any character trait that may help exculpate the accused.

Proof of good character is generally considered to be relevant; we may not be surprised to hear of criminal allegations against some acquaintances, but might thoroughly disbelieve a similar allegation if directed at others. Since the trier of fact does not know the character of the accused, the rules of evidence allow this kind of proof, although for some offences, such as sexual assaults, its probative value may be slight,166including in the case of sexual offence allegations involving adult victims.167It is nonetheless an error for the trial judge to ignore good character evidence or to fail to direct a jury that it may consider good character evidence relating to the accused, both to raise a reasonable doubt on the charges and, if he testifies, to assess his...

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