Similar fact evidence

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Evidence

Part of the common law series

Types of evidence

Testimony · Documentary Physical / Real · Digital Exculpatory · Scientific Demonstrative Eyewitness identification Genetic (DNA) · Lies

Relevance

Burden of proof · Laying a foundation Public policy exclusions Character · Habit · Similar fact

Authentication

Chain of custody Judicial notice · Best evidence rule Self-authenticating document Ancient document

Witnesses

Competence · Privilege Direct examination · Cross-examination Impeachment · Recorded recollection Expert witness · Dead man statute

Hearsay and exceptions

in English law · in United States law Confessions · Business records Excited utterance · Dying declaration Party admission · Ancient document Declarations against interest Present sense impression · Res gestae Learned treatise · Implied assertion

Other common law areas

Contract · Tort · Property Wills, trusts and estates Criminal law

v • d • e

In the law of evidence, similar fact evidence (or the similar fact principle) establishes the conditions under which factual evidence of past misconduct of accused can be admitted at trial for the purpose of inferring that the accused committed the misconduct at issue.

The rule is established in R. v. Handy, 164 CCC (3d) 481, 2 SCR 908 (2002):

Evidence of prior bad acts by the accused will be admissible if the prosecution satisfies the judge on a balance of probabilities that, in the context of the particular case, the probative value of the evidence in relation to a specific issue outweighs its potential prejudice and thereby justifies its reception.

Questions arise as to how the Court will measure the elements of this rule:

i) What constitutes a prior act of misconduct? - Any past misdeed, does not have to proven as a conviction.

ii) Why does the Court speak of evidence in relation to a ‘specific issue’? - Good measure of probity, what other issue beyond disposition or propensity evidence.

iii) How is probative value determined? - Nature of similarity between details, distinctive features and circumstances of past act and current offence - Proximity in time between past act and current offense - Number of occurrences of the similar acts - Any intervening event - Any other factor tending to support or rebut the unity of past act and conduct in question (i.e. appearance of collusion)

Scotland is a country which does not follow the same character model as England but has been heavily critisized and is now under review by the Scots Law Commission.

See also

• Doctrine of chances

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