The Admissibility of "Acquittal Evidence" in Criminal Trials: Toward Reform

Abstract

Recent case law at appellate level in a number of common law jurisdictions has considered the admissibility of "acquittal evidence" – meaning, in the context of this article, either evidence of a defendant's earlier acquittals or evidence on which the acquittals were based. The author argues that the various rulings have resulted in uncertainty and inconsistency and illustrate the difficulty of establishing a single admissibility rule. After analysing the New Zealand case law, the author examines the relevant sections in the proposed Evidence Code, published by the New Zealand Law Commission in 1999, and she concludes by exploring some alternative legislative and judicial resolution of the issues.

The exclusion of prison informant evidence for unreliability in New Zealand

“…This echoes the common law treatment of confessions, which were admissible as an exception to the rule against hearsay. As noted by Elisabeth McDonald (2012: 218), the reason for admitting confessions as an exception to the hearsay rule was that ‘it was presumed no-one would make a voluntary admission of wrongdoing…unless it was true’, meaning reliability could generally be assumed. Of course, false confessions do happen, and so s. 28 of the Act provides a safeguard against unreliable defendant statements, based on the circumstances in which the statement was made (for example, police pressure applied or psychological condition of the defendant at the time).…”

“… 45. See, further, McDonald (2012: 49) (noting that the ‘types of considerations that help determine probative value, weight and reliability are arguably the same, although they may assume differing importance at various points in a proceeding’). McDonald includes ‘accuracy, reliability and trustworthiness’ of the witness giving the evidence as relevant to the assessment of probative value (at 49). …”

The legal structure of propensity evidence

“… 97. In the New Zealand context see: McDonald (2012: 171); Mahoney et al (2014: 223); Mathieson (2013: 205); Mahomed [2011] 3 NZLR 145 [5], [66]. …”