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.


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.


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?

Tuesday, May 06, 2008

Japan: Underlawyered or Overlawyered -- or Who Knows?

There was a fascinating article in the Japan Times online about the reason for having or not having many lawyers. See Colin P.A. Jones, "Law Schools Come under Friendly Fire," Japan Times online (Jan. 28, 2008). Among the points made by the protagonists in the debate (which takes the form of a debate about the number of persons who ought to be allowed to pass the annual bar exam) are the following:
  • The number of people allowed to pass the annual bar exam is fixed at an absolute number.

  • Japan's Justice Minister Hatoyama is challenging the current plan to increase the number of annual admittees from 1,500 to 3,000 by 2010.
    My research shows that the current population of Japan is roughly 127,000,000.
  • Colin Jones, the author of the article, asserts that regional bar associations have joined the justice minister in questioning the planned increase in the number of planned admittees. He writes:
    Unfortunately, in addition to these very valid criticisms, at least some of the bar association comments veer off into self-interest and self-importance, both justified by an alternative form of logic that only applies to protected industries. The Kanazawa Bar Association, for example, argues that more lawyers will result in (gasp!) greater competition. Facing increased competition, goes the logic, lawyers will have to focus increasingly on the grubby task of making money, losing the leisure that is apparently necessary to engage in advocacy for the public good (which is of course one of the mandates of lawyers everywhere). As a result, the number of immoral lawyers will increase as they take on bad, even hopeless, cases just to earn a living.
  • The pass rate on the annual bar exam was once 2-3%.
  • The author of the article -- a professor at Doshisha University Law School in Kyoto -- opines: "That the number of lawyers generated by the new law schools has become an issue already, when the impact so far is a relatively modest increase, reflects one of the core problems with the whole system — that it was apparently set up without a serious inquiry into what the average person actually needs out of Japan's legal system. Indeed, one fascinating aspect of the whole debate over the number of lawyers in Japan is that it misses a simple, basic fact — that the average Japanese person may not regard the legal system as a useful tool for solving problems. If you are arrested and prosecuted for a crime you will be found guilty over 99 percent of the time. If you get divorced and lose contact with your children, going to court probably won't change a thing. Lawsuits against the national government are shown to be losing propositions almost daily in the news. Small wonder then that Japanese people are averse to litigation, when it is so often proven to be futile."

    Editor of Durham Newspaper (belatedly?) Admits Mistakes in Duke Lacrosse Case

    "Executive Editor Bob Ashley of the Durham (N.C.) Herald-Sun, which has been criticized by some for its coverage of the Duke University lacrosse case, said the newspaper should have realized sooner the charges were false." Joe Strupp, "Herald-Sun Editor Admits Paper Erred On Duke Lacrosse Case," Editor & Publisher (April 10, 2008)