Knowledge of past crimes can influence jury verdicts

The question of whether a jury should be made aware of a defendant's criminal history is often debated.

Let's say you are on a jury considering the guilt or innocence of a man charged with burglary. You are only able to make your decision based on what you hear in court. You and your fellow jurors decide the evidence against him isn't strong enough and there is room for reasonable doubt.

You declare he is not guilty, and he walks free. You then learn he has been convicted of burglary several times before. If you had known this during the trial, would it have changed your verdict?

What if the defendant faced charges of violent crime such as assault, rape or murder? Should you as a juror have the right to know the defendant's prior criminal record to help you assess his character and the likelihood that he committed this particular crime?

Would you have decided to keep this violent man off the street, even if there was doubt about the evidence presented during the court trial?

Debate over disclosure of criminal history

How much the jury should know is a question that comes up time and again in discussions of justice and the law.

A few years ago, NSW Solicitor-General Michael Sexton argued in a book that a jury should not be denied knowledge that an alleged rapist committed rapes in the past, or that an accused fraudster has a string of convictions for dishonesty.

In Britain since 2004 juries can be told a person's preceding convictions where it is "important explanatory evidence". Announcing the change, the UK government said trials should be a search for truth and justice and should protect society.

Current NSW law on past criminal conduct

The current law in NSW prohibits the admission into evidence of a defendant's past criminal conduct, unless, as laid out in the tendency evidence and coincidence rules contained in section 97, 97A, 98 and 100 of the Evidence Act 1995:

  1. Reasonable notice is given to all parties about producing it.
  2. The proposed evidence has significant probative value and is highly relevant to the facts in issue.
  3. That value substantially outweighs any unfair prejudice that may be caused to the defendant.

Following the royal commission into child sexual abuse, those rules were relaxed in charges of child sexual offences to allow evidence of previous sexual interest in children. This is detailed in the new section 97A of the amended Act.

Defendant has right to fair trial and is innocent until proven guilty

However, one of the basic rights in our society is the right to a fair trial. There is no doubt it would prejudice a defendant's case if the jury is told the defendant has a criminal record and has committed crimes like this before.

Everyone is presumed innocent until proven guilty. It is up to the prosecution to present evidence that is strong enough to convince a jury "beyond reasonable doubt" that the defendant committed the particular crime they have been charged with. That is the very basis of our justice system.

John Gooley
Criminal law
Stacks Collins Thompson

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