The Redundancy of the Similar Fact Exclusionary Rule
LAW 306 Law of Evidence and Civil Procedure
(AY 2010/2011 Term 1)
The “Redundancy” of the Similar Fact Exclusionary Rule
Student Identification Number: S 8701210G
Number of words:3000
Generally, it is common sense that past actions or character is probative as to future conduct existence or the state of mind of a person in question. However, the conventions suitable for everyday decision-making may not be sufficiently rigorous for the criminal process. Here, the rule on similar fact evidence concerns the admissibility of evidence regarding a previous conviction of the accused or of his past conduct on an occasion other than that cited in the present offence charged.
Nonetheless, as applied within the frame work of the Evidence Act (EA), there have been significant criticisms regarding the continued relevance of the similar fact evidence rule. Consequently, there have been calls to do away with the exclusionary rule. This paper will look at the various arguments as to the redundancy of the similar fact evidence rule. We will then consider whether abolishment is the best way to address the issue by analysing the underlying considerations of the rule. As the preferable alternative, we will then propose some reforms so as to better adapt the rule within our existing criminal justice system. This will be discussed with reference to the criminal justice system.
A. The Common Law
At common law, there is a general exclusionary rule regarding the admissibility of such evidence. The risk of prejudice against the plaintiff seems to be the primary consideration. However, over time, the courts recognised a need to admit such evidence in cases where the evidence was probative in relation to some issue in the case and not merely to show propensity.
This principle was properly set out in the case of Makin v AG (Makin), which set up a two proposition rule. Under Makin, (1) Evidence of prior misconduct is inadmissible if it is tendered to show that the accused is likely to be guilty. (2) Nonetheless, such evidence is admissible if it is relevant to some other issue which is before the court. The next development of the common law came in the case of Boardman v DPP (Boardman), where Lord Hailsham propounded a simpler approach – that similar fact evidence is admissible if its probative value outweighed its prejudicial effect.
Despite considerable debate in other common law jurisdictions over the preferred approach as espoused by the two cases, the Singapore courts have interestingly cited both Makin and Boardman with approval at the same time. In practice, it seems that Boardman merely made explicit what the courts have been doing under the rubric of Makin. Although not explicitly stated, it does appear that the courts have always taken the probative value of the evidence into account. When they found sufficient probative value, they labelled it as “relevant to an issue”. When they found it insufficiently probative, it was labelled “relevant only to disposition”. Although Makin makes no mention of prejudicial effect, it was not long before the courts incorporated a separate discretion to exclude unduly prejudicial evidence which was “technically admissible” under Makin.
B. The Evidence Act
The law of evidence in Singapore is governed by the EA. Like Makin, the Act speaks in terms of relevance rather than probative value. The two relevant sections are 14 and 15. Section 14 renders admissible similar fact evidence where it is relevant to a state of mind which is in issue. Section 15 makes admissible similar fact evidence (which is part of a series of similar occurrences) where it is relevant to the question of whether an act was done accidentally or with a certain intention or knowledge.
While the Singapore courts have adopted a variety of postures with respect to the EA over the years, the primary tool of assessing the probative usefulness of similar fact evidence has remained constant. Furthermore, Singapore has applied the Boardman test within the framework of admissibility in the Act. The result is that the tools which the Act uses to deal with similar fact evidence are substantively the same. As such, despite its age, the EA is probably no different from Makin or Boardman.
Margolis has canvassed several arguments to this effect. Firstly, he defined probative force as the judicial assessment of probative worth and prejudicial effect to mean the difference between the weight which a judge thinks a jury would assign to the evidence and the weight which the judge himself would assign. As such, if we were to remove the jury from the equation, there would be no difference between the probative and prejudicial effect.
Further more, he notes that the implicit premise behind such a formulation is that the evidence does not prejudice the judge, unlike the jury. Thus, when a judge sits alone, he need not need to exclude the evidence once he hears it, as he can assign it its true value. In fact, even if it were accepted that a judge could be prejudiced by propensity evidence, to expect such a judge to remove the prejudicial evidence from his mind and come to a fair verdict because he had instructed himself to do so, would require him to perform “mental gymnastics”. Indeed, if the trial judge were truly capable of hearing the evidence and then ignoring it, it would be better to admit the evidence and allow the judge to assign it its proper weight. Thus, the general discretion to exclude similar fact evidence serves no purpose in a non-jury system.
This is a preview of the whole essay
Zuckerman contends that the exclusionary technique for similar fact evidence has failed. To illustrate this, he points to a notable limitation in the common law rule. Here, once the evidence is admitted, the common law exclusionary rule no longer plays a part. To this effect, similar fact evidence with significant probative value has been invariably admitted into evidence, despite also possessing considerable potential for prejudice. The fact finder is left to his own devices to accord the evidence its appropriate weight by assessing its precise probative value, while at the same time guarding against the potential for prejudice. The solution here, he proposes, is to abandon the exclusionary rule for all similar fact evidence with significant probative value. Rather, we should admit the evidence and thereafter develop the means to allow the fact of finder to filter out the prejudice.
C. The Law in Civil Jurisdictions
Truly, if the rules regarding similar fact evidence is so integral to criminal law, one wonders as to why it is only unique to common law systems. In civil law jurisdictions, there is no exclusionary rule for character or propensity evidence. A number of structural reasons have been provided. Firstly, guilt and sentencing are decided at the same stage. Consequently, before the court retires to decide a case, all evidence for sentencing purposes must be presented. Secondly, and perhaps most notably, Civil Law trials are typically unitary in nature. The judge decides both issues of fact and law, including the admissibility of evidence. In such circumstances, it would be artificial to apply an exclusionary rule.
Despite the absence of any exclusionary rules, concerns about the legitimacy of relying on propensity evidence still remain. For instance, in countries like Germany and Italy, the view is that ‘prior convictions have no bearing whatsoever on the finding of criminal liability. This has also been reflected in some conversations with German, Belgian, French, Italian and Dutch lawyers.
While principles regarding similar fact evidence are largely the same in both common law and civil jurisdictions, the safeguard against the risk of uncritical acceptance of propensity evidence in civil jurisdictions takes the form of an ‘obligation of trial judges to write a reasoned opinion demonstrating that their factual findings have a firm basis in evidence and a solid support in rational inference instead.’
D. Applicability in Singapore
The abolishment of the similar fact exclusionary rule might be more in-line with Singapore’s criminal justice system.
Though Singapore is a constitutional democracy, it is seen as less “liberal” than other constitutional democracies, especially on the subject of an accused person’s rights. According to our political leaders and other government officers, Singapore officially adopts a consequentialist approach to the legal process, especially the criminal process and, by extension, to the trial and rules of evidence. These views contain an assertion that community safety and security interests should override individual rights. What this means is that the Singapore court would probably place a higher priority on the determination of the truth, or rather more specifically, the safety and security of the community at large, as compared to fairness to the accused.
Furthermore, there are signs that this is indeed the direction that we are headed towards. This can be seen in the case of Wong Kim Poh:
“In a criminal trial without a jury, as in all such trials in Singapore, the wrongful admission of evidence of the bad character or disposition of the accused does not necessarily mean that the judge or judges have been adversely influenced by such evidence. We must bear in mind that judges are trained to assess evidence objectively.”
In short, given the premium we seem to place on determining the truth and the implicit trust we have in our judges, we might have more in common with civil law jurisdictions than one might think. In fact, the Singapore criminal justice system has been referred to by the Privy Council as ‘a system of justice in which the court itself is invested with what are in part inquisitorial functions’.
III. Is Abolishment the Way to Go?
However, conventional thinking in evidence utilises a three-dimensional, inter-related structure, as expressed by the oft-cited dictum of Knight Bruce VC in Pearse v Pearse:
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means … Truth, like all good things, may be loved unwisely – may be pursued too keenly – may cost too much.”
In short, the normative structure must embrace the epistemic (seeking to know the truth), the moral (subject to acceptable notions of fairness and justice) and the economic (subject to costs and resources). It is, likely to be an untidy compromise among them.
In this light, perhaps the abolishment of the similar fact exclusionary rule would be too drastic a measure. No country has as of yet abandoned the rule for bench trials. The underlying rationale of the rule is still very much relevant today.
This will be looked at in the following three categories.
A. Epistemic Justifications
Here, the key question is: how does the rule impact on the probabilities of getting the facts right in the end? The rule is assessed based upon its contribution to the frequency of correct outcomes produced by the trial system.
All similar fact evidence has some probative value. As such, in the interests of finding the truth, it would seem best for us to accept the evidence as relevant. However, such evidence has to potential to be prejudicial. This has been taken to mean that the evidence is capable of leading the fact-finder away from the truth. Here, two major factors are commonly cited. First is the danger that the fact-finder will treat the evidence as more damning than it actually is. This is termed as cognitive error. Second is the danger that evidence of the accused bad character will sway the fact-finder unduly against him. This is termed as the risk of emotivism.
Hence, where the prejudicial effect is seen to outweigh the probative value, it would be best to exclude such evidence for this would be the most conducive to the desired outcome.
B. Moral Justification
Other than the consequential effect of the rule, Ho Hock Lai also proposed a moral dimension to the law regarding similar fact evidence. This approach focuses on the process of deliberation rather than the outcome of the fact finding. Justice must not only be done in finding the correct facts and applying the right law, the judge must show an empathic care for the parties in the process.
Regarding similar fact evidence, one might be tempted to conclude that the accused is the sort of person likely to have committed the crime since he is the sort of person who tends to commit this type of criminal act under certain conditions. The aged maxim, “a leopard never changes his spots” comes to mind. Here, the injustice of reaching this sort of conclusion lies in a public characterisation of the accused that denigrates an essential aspect of his dignity as a free individual. As such, the law, through the exclusionary rule, upholds justice by enjoining this offensive characterisation. In so doing, the moral authority of the courts is maintained.
C. Practical Considerations
In addition, there might be wider systemic benefits to be had from excluding evidence of the accused unsavoury past. For instance, it may force the police to conduct more thorough investigations. Similarly, the prosecution and judges would be forced to prepare or consider cases more carefully. While it is true that probative value and prejudice can still be dealt with at the end of the day when the judge weighs the evidence, without an exclusionary phase to underline the need for caution, there would be greater opportunity for prejudice to seep into the subconscious undetected.
IV. Alternative Reforms
The similar fact evidence exclusionary rule still retains relevance both in ascertaining the truth and in maintaining the moral authority of the courts, even in a bench trial environment. Furthermore, the rule also serves some practical functions in ensuring the effectiveness of our criminal justice system. Thus, perhaps the similar fact evidence exclusionary rule isn’t so much ‘redundant’ as it is not entirely compatible with our existing system.. Hence, rather than doing away with the rule entirely, I shall propose some alternative reforms to the EA so as to better allow the rule to fulfil its function in the bench trial system of the Singapore.
A. Pre-trial Conference (PTC)
This proposal would require the prosecution to reveal at a PTC any similar fact evidence that it proposes to adduce at the trial. The judge conducting the PTC should weigh prejudicial effect of the evidence against its probative value. If he or she should find that the former outweighs the latter, he or she should rule against the admission of the evidence at the trial and assign the case to be tried by another judge, who will not get to hear of the evidence at all. The reform that is required would need to empower the PTC judge to make both of these directions.
There have been some concerns raised regarding the practicality of this solution. At this preliminary stage, the prosecution may not be sufficiently prepared to submit on the evidence that it will produce at the trial. The judge too may not have sufficient knowledge of (or feel sufficiently familiar with) the facts of the case to make a ruling at that point. Also, reassigning cases may overtax court resources.
It is submitted that while these are issues that should be addressed, they are not insurmountable. The court could allow the prosecution more time to submit its evidence. Judges should be more than capable to properly address this evidential issue, even at the preliminary stage, since the admissibility of evidence is separate from the main substantive of the case at hand and an utter familiarity with the facts is not yet required.
However, of more significance are other limitations which apply to the exclusionary rule as a whole. In focusing on admissibility, the need for safeguard after the evidence has been admitted is overlooked. The difficulty of balancing the probative and prejudicial effects of similar fact evidence is also not addressed. These problems cannot be solved by the implementation of the PTC alone.
B. Duty to Enunciate
Here, it would perhaps be prudent to look at the civil law jurisdictions and how they handle the issue of similar fact. To address Zuckerman’s point, we could apply this approach to Singapore, not as a replacement to the current exclusionary rule, but rather as an additional safeguard. Under such a regime, the trial judge may be imposed with the duty to indicate his awareness of the risk of prejudice and this should be expressed in writing, say, in the notes of evidence or the grounds of judgment. This would mean that we treat prejudice not only as a matter going to admissibility but also as a matter which engenders a judicial duty to take special care to avoid.
Even so, it is acknowledged that this measure cannot totally remove the danger of it seeping into the subconscious undetected. Nonetheless, it is submitted that such is an impossible task and the best that one can do is to acknowledge the existence prejudice and attempt to work around it. In fact, the same would apply regarding the carrying out of the Boardman balancing test. To an extent, this would help to guard against the subconscious influence of prejudice both at the PTC and trial stage.
The similar fact evidence exclusionary rule does not seem directly relevant in Singapore’s bench trial system. This is not so much because the principles that the rule embodies are obsolete. Rather it is because of a reluctance to adapt the law of evidence to the modern context. To this effect, other than outright abolishment, the implementation of the PTC, coupled with the additional tier of protection provided by the imposition of a duty on judges to indicate their awareness of the risk for prejudice, would probably achieve a greater balance between the three normative principles espoused earlier. It is hoped that this would help Singapore achieve a more just criminal justice system.
 AC 57
 AC 421, this approach was subsequently broadened in DPP v P  2 AC 447.
Some have faithfully adhered to the Act, taking care not to mention the common law. Others have followed the twists and turns of the common law, almost as if pretending that the Act does not exist. Still others eclectically quote the Act, Makin and Boardman, all with approval.
Hor Michael, Similar Fact Evidence in Singapore - Probative Value, Prejudice and Politics,  0 SJLS 48 p. 57. It is true that many of the early cases do not “seem” to assess probative value or prejudice, and speak only of relevance (see Tan Meng Jee  2 SLR 422, 433). Nonetheless, the pre-Boardman cases often masked calculations of probative value behind the language of relevance; probative value was probably assessed implicitly.
Ibid, at p. 56. It is likely that Boardman-style calculations of probative value were envisaged by Stephen. For example Explanation 1 to section 14 requires that the evidence be relevant to a particular and not only to a general state of mind. This can only be a clear reference to the probative value of the evidence in question. This can also be seen in Illustration (o). Similarly, section 15 predicates admissibility of similar fact evidence as being part of a series of similar occurrences. This bears striking resemblance to the Boardman test of “striking similarity”.
Ibid, at p. 57. It is acknowledged that there have been arguments that say similar fact evidence cannot be used to prove Actus Reus under the EA. Nonetheless, this discussion is outside the purview of this essay and it is assumed that the extension of the similar fact evidence rule to prove Actus Reus un s 11(2) of the EA in Lee Kwang Peng  3 SLR is valid.
PB Carter “Forbidden Reasoning Permissible: Similar Fact Evidence a Decade after Boardman” (1985) 48 MLR 29; P Mirfield “Similar Facts — Makin Out?”  CLJ 83. See Robert A. Margolis, Evidence of Similar Facts, The Evidence Act, And The Judge of Law As Trier-of-Fact,  2 SLR 103
Perkins v Jeffery  2 KB 702, 707-08 (Div Ct). See See Robert A. Margolis, Evidence of Similar Facts, The Evidence Act, And The Judge of Law As Trier-of-Fact, [1988 2 SLR 103
as would be the case in Singapore
Zuckerman, The Principles of Criminal Evidence (1989), at p. 244-246
For example, it was noted by several judges in Boardman that it was a “close call”
Mirjan Damaska, ‘Propensity Evidence in Continental Legal Systems’ (1194) Chicago-Kent I, Rev 55, 57-58
“Continental lawyers seem to assume that, in so far as they have to explain what evidence convinced them, it would be improper to give this fact [that the accused has a criminal record] as one of the matters that decided them to convict, but it would be otherwise if the previous offences were very similar to the one for which he is currently on trial.” See JR Spencer, ‘Evidence’ in Mireille Delmas-Marty and J R Spencer 9eds0, European Criminal Procedures (Cambridge: CUP, 2002) ch 11 at 616
Supra note 13, at 66
Chin Tet Yung, Remaking the Evidence Code , (2009) 21 SAcLJ at p. 93
This was confirmed by Chan Sek Keong, the then Attorney-General, during a public lecture where he echoed the policy of putting community safety and security before individual rights. See Chan Sek Keong, “The Criminal Process – The Singapore Model” (10th Singapore Law Review Lecture) (1996) 17 Sing LR 433 at 438.
 1 SLR 289
Haw Tua Tau v PP  2 MLJ 49
(1846) 63 ER 950 at 957. Dictum approved in Minet v Morgan (1872-3) 8 Ch 361.
Supra note 16, at p.77
Stuart Hampshire, Justice is Conflict (Princeton NJ: Princeton University Press, 2000)
Supra note 5, at p. 61
Ho Hock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth (Oxford:
Oxford University Press, 2008) At p. 289
Ibid, at p. 290
Ibid, At p. 290-291
Geoffrey R Stone, ‘The Rules of Evidence and the Rules of Public Debate’  University of Chicago Legal Forum 127, 141-142
Ibid, at p. 79 and 339. “A party has not merely a right that the substantive law be correctly applied to objectively true findings of fact, and a right to procedure that is rationally structured to determine the truth; she has, more broadly, a right to a just verdict, where justice must be understood to impose ethical demands on the manner in which the courts conducts the trial, and … on how it deliberates on the verdict. Findings of fact must be reached by a form of inquiry and process of reasoning that are not only epistemologically sound but also morally defensible … The ethical demands of justice … require the fact finder to manifest empathic care for the parties by exercising appropriate caution and to treat them with respect and concern.”
Ibid, at 301
Ibid at 309
R A Duff, Trials amd Punishments (Cambridge: CUP, 1986). A court cannot claim moral authority if it had treated the accused unjustly.
Supra note 24, at p. 314
Supra note 5, at p. 61
Supra note 5, at p. 61
In fact there have been calls to reform the EA so as to address both its external and internal incoherence. Applying the code in a modern legal system has been difficult – its provisions pose more problems than they resolve. While the EA has provided some guidance to lawyers and courts in the admissibility of evidence, it seems that judges have struggled to make sense of some of the rules (such as the similar facts rule) in the light of developments in the subject, both at common law and in modern legislation. See Neil McCormick, Rhetoric and The Rule of Law, (Oxford: Oxford University Press, 2005) ch 10 at p 193, taken from Chin Tet Yung, Remaking the Evidence Code , (2009) 21 SAcLJ at p. 54
As per Zuckerman’s proposition, supra note 11
If this is felt to be overly onerous, the rule can perhaps be modified by imposing this duty to record only when the defence counsel alerts the judge to the prejudicial nature of any evidence that is presented.
This is akin to the argument put for by Gunter Frankenberg that one cannot be entirely objective, since we can never entirely divorce ourselves from our social background (or in this case, prejudices). Although this is in relation to comparative legal studies, it is submitted that the principle is equally applicable here, especially since the uncertainties in the comparison between probative and prejudicial effect (since they apparently operate on different planes and the balancing of one against the other is inherently imprecise) bears some similarities to the difficulties encountered when comparing two entirely different legal systems. See Günter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 HARV. INT’L L.J. 411-455 (1985).
Supra note 22