Saturday, May 10, 2008

Character Evidence in New Zealand

Section 40 of the New Zealand Evidence Act of 2006 provides:

40. Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—
(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.
(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.

(3) However, propensity evidence about—

(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and

(b) a complainant in a sexual case in relation to the complainant's sexual experience may be offered only in accordance with section 44.

(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.
New Zealand's treatment of character evidence differs from the U.S. treatment of such evidence in at least two interesting ways:

1. In New Zealand the default rule now is that propensity evidence is admissible.

2. In New Zealand the use of propensity on the issue of veracity -- or, as I would put it, on the issue of the probative value of conduct offered testimonially -- is completely separated from the use of propensity to show conduct that is not offered testimonially.

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A quick read of Section 43 of the New Zealand Evidence Act of 2006 suggests that the main constraint in New Zealand on the use of propensity evidence against criminal defendants is the principle of undue prejudice.

Observations:

1. New Zealand's undue prejudice approach expressly grants much discretionary authority to trial judges.

2. How far do Sections 40 and 43 sanction the use of group behavior, propensities, and characteristics to show individual behavior? Do Sections 40 and 43 have any effect on how far and under what circumstances such evidence is admissible to show individual behavior or characteristics, either in criminal or civil cases?

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