DOCSLIB.ORG

Respondent's Factum

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Respondent's Factum SCC No. 33694 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: LARRY WAYNE JESSE APPELLANT (Appellant) AND: HER MAJESTY THE QUEEN RESPONDENT (Respondent) An Order has been made in this case directing that the identity of the complainant(s) and any information that could disclose their identity not be published in any document or broadcast in any way pursuant to Section 486.4(1) of the Criminal Code RESPONDENT'S FACTUM Solicitor for the Appel/ant: Ottawa Agents for the Solicitor for the Appel/ant: GIL D. McKINNON, Q.C. Barrister & Solicitor HENRY S. BROWN, Q.C. 1500 - 701 West Georgia Street Gowling Lafleur Henderson LLP Vancouver, B.C. V7Y 1 C6 266 - 160 Elgin Street Tel: (604) 601-5616 PO Box 466, Stn "0" Fax: (604) 601-5617 Ottawa, Ontario K1P 1C3 E-mail: [email protected] Tel: (613) 233-1781 Fax: (613)788-3433 E-mail: [email protected] Solicitors for the Respondent: JENNIFER DUNCAN Ottawa Agents for the Solicitors for the ELIZABETH A. CAMPBELL Respondent: Ministry of Attorney General Criminal Appeals ROBERT E. HOUSTON, Q.C. 6th Floor, 865 Hornby Street Burke-Robertson Vancouver, B.C. V6Z 2G3 70 Gloucester Street Tel: (604) 660-1126 Ottawa, Ontario K2P OA2 Fax: (604) 660-1133 Tel: (613) 236-9665 E-mail: [email protected] Fax: (613) 235-4430 Elizabeth.Campbell@ gov.bc.ca E-mail: [email protected] TABLE OF CONTENTS PAGE PART I ......................................................................................................................... 1 A. Overview .......................................................................................................... 1 B. The Evidence ...................................................................................................4 i) Chelsea S ................................................................................................4 ii) Gunnar B ..................................................................................................6 iii) The complainant J.M ............................................................................... 7 iv) Randy B ...................................................................................................7 v) Police involvement. ................................................................................... 8 vi) The similar fact voir dire ........................................................................... 8 vii) The positions of counsel ......................................................................... 10 viii) The Reasons on the voir dire ................................................................. 10 ix) The Appellant's evidence at triaL ............................................................ 12 x) The Reasons for Judgment at trial. ......................................................... 13 xi) The Court of Appeal for British Columbia ............................................... 14 PART II ...................................................................................................................... 16 RESPONDENT'S POSITION ON ISSUES ON APPEAL .......................................... 16 PART III ..................................................................................................................... 17 ARGUMENT ...' ........................................................................................................... 17 A. Introduction ..................................................................................................... 17 B. The Admissibility of Similar Fact Evidence ...................................................... 17 C. Probative value versus prejudicial effect.. ....................................................... 21 D. The similar fact voir dire .................................................................................. 26 E. Abuse of process and the principle offinality in litigation ................................ 29 F. Application to the judgments below ................................................................. 34 G. Conclusion ...................................................................................................... 36 PART IV .................................................................................................................... 38 COSTS ...................................................................................................................... 38 PART V ..................................................................................................................... 38 ORDER SOUGHT ..................................................................................................... 38 PART VI .................................................................................................................... 39 TABLE OF AUTHORITIES ....................................................................................... 39 PART VII ...................................................................................................................41 STATUTORY PROVISIONS .................................................................................... .41 1 PART I A. Overview 1. This appeal engages the interplay between the institutional value of judicial finality in litigation and the admissibility of a disputed, but never appealed, prior conviction as similar fact evidence. The Appellant effectively seeks the creation of a new category of similar fact evidence, the denied prior conviction, which is either inadmissible because it is too prejudicial or in the alternative must be proven again beyond a reasonable doubt as a pre-requisite to its admissibility. The Respondent submits this would constitute a remarkable change to the law governing the admissibility of similar fact evidence. Proven prior conduct, with its corresponding high probative value, would be subjected to a more rigorous standard of admissibility than unproven allegations. 2. The Appellant was charged with one count of sexual assault of J.M. on February 19, 2005 at Winfield, a small community in the Okanagan. The actus reus of the sexual assault was unusual. It consisted of the insertion of a cork into J.M.'s vagina while she was unconscious. 3. The Appellant was tried by Madam Justice Arnold-Bailey, sitting without a jury, in B.C. Supreme Court. On the basis of the facts the trial judge accepted, there were two possible perpetrators of the sexual assault: the Appellant and a man named Randy, whose advanced state of intoxication made him an unlikely candidate for having inserted the cork into J.M.'s vagina. 4. To prove the identity of the offender beyond a reasonable doubt, the Crown applied to lead similar fact evidence concerning the Appellant's 1995 conviction for sexual assault resulting from the insertion of two compacted plastic shopping bags into the vagina of an incapacitated woman. The Appellant was sentenced to seven years imprisonment for that offence and a companion count of robbery. The verdict was not appealed. 2 5. In the proceedings giving rise to this appeal, the Appellant vigorously opposed the admission of his prior conviction as similar fact evidence and a lengthy voir dire ensued. The Crown called several witnesses from the earlier trial (though not the complainant as she had passed away) and demonstrated fingerprints taken from the Appellant following his arrest for the earlier sexual assault matched the fingerprints taken following his arrest in 2005. The defence cross-examined the witnesses extensively. The Appellant did not testify. 6. The trial judge admitted the prior conviction as similar fact evidence on the issue of the identity of J.M.'s assailant. She was satisfied the circumstances of the two occurrences were sufficiently similar for her to conclude, on a balance of probabilities, they were likely the work of one person, in accordance with the first part of the test for admissibility of similar fact evidence to prove identity in R. v. Arp, [1998] 3 S.C.R. 339 at para. 48 [Appellant's Book of Authorities, Tab 5]. The trial judge was also satisfied the prior conviction was proof on a balance of probabilities that the Appellant was the assailant and was thus linked to the prior acts. This latter finding exceeded the requirement in Arp that there be some evidence beyond mere opportunity of a link between the accused and the prior acts: Arp, supra, paras. 53-57. 7. Despite the fact that it was a judge alone trial, the Crown recalled the similar fact evidence during the trial proper. The defence again tested the evidence through cross­ examination and the Appellant testified. He admitted he had been convicted of the sexual assault of J.S. but denied having committed that offence. He also denied sexually assaulting J.M. The Appellant was convicted of sexual assault of J.M. and sentenced to an indeterminate sentence as a dangerous offender. 8. The Appellant maintains the B.C. Court of Appeal erred in upholding the trial judge's decision to permit the Crown to rely on his prior conviction to link him to the underlying prior conduct. He argues the conviction was inadmissible because it was disputed (notwithstanding that he had never appealed it) and because it was prejudicial. His alternative argument is that an accused should have the right to challenge a prior conviction at the voir dire stage. 3 9. The Respondent submits the B.C. Court of Appeal was correct in finding the prior conviction was admissible to link the Appellant to the prior conduct. The conviction was strong evidence of a link between the
Load more

Recommended publications
  • The Use of Similar Fact in Criminal Proceedings: an Updated Framework
    Published on 11 December 2020 THE USE OF SIMILAR FACT IN CRIMINAL PROCEEDINGS: AN UPDATED FRAMEWORK [2020] SAL Prac 25 CHEN Siyuan LLB (National University of Singapore); LLM (Harvard). CHANG Wen Yee LLB candidate (Singapore Management University). I. Introduction 1 When confronted with the question of whether to admit similar fact for criminal cases, courts in Singapore are often faced with balancing potentially competing norms in the form of evidential expediency and fairness to the accused. Specifically, although similar fact may help establish the ingredients of an offence, there exists a real risk that any resulting conviction will be based heavily on the past behaviour or disposition of the accused and this potential weakness in inferential reasoning through indirect proof will – to use the word in its broadest sense – prejudice the accused.1 2 The 1996 Court of Appeal decision in Tan Meng Jee v Public Prosecutor2 (“Tan Meng Jee”) tried to address these concerns in detail. But even after almost 25 years, this case remains the only modern apex court decision on how the similar fact rule is to be 1 Taking a step back, one must bear in mind too features of the Singapore criminal justice process. As a matter of criminal procedure, the Criminal Procedure Code (Cap 68, 2012 Rev Ed) is generally considered to tilt more in favour of crime control. As a matter of substantive criminal law, potentially severe sanctions could follow upon conviction. As a matter of standard of proof, a strict insistence on corroboration is generally not required, and any proving of a defence must be done on a balance of probabilities, which is a higher standard than casting reasonable doubt.
    [Show full text]
  • Similar Fact Evidence - Catchwords and Cartwheels Ronald B
    Similar Fact Evidence - Catchwords and Cartwheels Ronald B. Sldar* Wigmore once called it a "vast morass of authority".' "It is hopeless to attempt to reconcile the precedents" was his judgment in 1940.2 In 1972 England's Criminal Law Revision Committee said it "proved far the most difficult of all the [evidence] topics" they had to consider3 Each was referring to the question of the ad- missibility of evidence that the accused on one or more other occasions engaged in misconduct similar to that presently charged against him: the admissibility of so-called "similar fact" evidence, To this vexing subject have been added two further precedents: D.P.P.v. Boardman4 and LeBlanc v. The Queen.6 Both are significant, if for very different reasons. Boardman may be, as one writer has called it, "an intellectual breakthrough". 6 LeBlanc may be, for those of us who take the exclusionary side of the rule seriously, most ominous. The admissibility of an item of similar fact evidence is a question of law for the trial judge. Its ultimate weight is a question of fact for the trier of fact. When faced with the prosecution's offer of similar fact evidence7 the trial judge has three distinct questions *Associate Professor of Law, McGill University. 1 This phrase is attributed to Wigmore by Cowen and Carter in their essay, "The Admissibility of Evidence of Similar Facts: A Re-Examination", Essays on the Law of Evidence (1956), 107, though I have not been able to locate the phrase in any of the three editions of Wigmore's treatise.' 2Wigmore, Evidence 3d ed.
    [Show full text]
  • Appellant's Factum
    Court File No. 33694 IN THE SUPREME COURT OF CANADA (On appeal from the Court of Appeal for British Columbia) BETWEEN: LARRY WAYNE JESSE Appellant AND: HER MAJESTY THE QUEEN Respondent An Order has been made in this case directing that the identity of the complainant(s) and any information that could disclose their identity not be published in any document or broadcast in any way pursuant to Section 486.4 (1) of the Criminal Code APPELLANT'S FACTUM Gil D. McKinnon, Q.C. Gowling Lafleur Henderson #I500 - 701 West Georgia Street 26'h Floor,lGO Elgin Street Vancouver, B.C. V6E 4H1 Ottawa, ON KIP 1C3 Telephone: (604) 601-561 6 Telephone: (613) 233-1781 Facsimile: (604) 601-561 7 Facsimile: (613) 563-9869 E: [email protected] E: henrv.brown@~owlinas.com Counsel for the Appellant Henry S. Brown, Q.C. Ottawa Agents for the Appellant Jennifer Duncan Burke-Robertson Elizabeth Campbell Barristers and Solicitors Attorney General of British Columbia 70 Gloucester Street Criminal Appeals & Special Prosecutions Ottawa, ON K2P OA2 6th Floor, 865 Hornby Street Telephone: (613) 236-9665 Vancouver, B.C. V6Z 2G3 Facsimile:(613) 235-4430 Telephone: (604) 660-1 126 E: [email protected] Facsimile: (604) 660-1 133 E: Jennier.Duncan@,qov.bc.ca Counsel for the Respondent Robert E. Houston, Q.C. Ottawa Agents for the Respondent INDEX Page Part l Statement of Facts A. Overview B. Appellant's Record C. Similar Fact Voir Dire D. Appellant Testified on Trial E. B.C. Supreme Court's Reasons for Judgment F. B.C.
    [Show full text]
  • Approved Judgment
    Neutral Citation Number: [2020] EWCA Civ 1088 Case No: B4/2020/1196 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE FAMILY COURT Her Honour Judge Jacklin QC ZE17P01593 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18 August 2020 Before : LORD JUSTICE DAVID RICHARDS LORD JUSTICE HICKINBOTTOM and LORD JUSTICE PETER JACKSON --------------------- R v P (Children: Similar Fact Evidence) --------------------- Maggie Jones (instructed by Duncan Lewis Solicitors) for the Appellant Mother Tom Wilson (instructed by Freemans Solicitors) for the Respondent Father Hearing date: 6 August 2020 --------------------- Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10:30am on Tuesday, 18 August 2020. Judgment Approved by the court for handing down. R-P (Children) Lord Justice Peter Jackson: Introduction 1. This is an appeal from a case management decision to exclude evidence in family proceedings. The proceedings are a father's application for contact with children now aged 5 and 2. The mother opposes contact on the basis that the father had subjected her to extreme coercive and controlling behaviour and to sexual abuse, including rape. In support of her case, she wants to rely on evidence of what she argues is strikingly similar coercive and controlling behaviour by the father towards another woman, with whom he began a relationship shortly after her relationship with him ended. It was that evidence that was excluded.
    [Show full text]
  • Of 5 in the THIRTEENTH JUDICIAL CIRCUIT COURT FOR
    IN THE THIRTEENTH JUDICIAL CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLORIDA Criminal Justice and Trial Division STATE OF FLORIDA CASE NO: 17-CF-017252 v. HOWELL DONALDSON, DIVISION: TR-3 Defendant. ________________________/ ORDER ON THE NOTICE OF THE STATE’S INTENT TO INTRODUCE SIMILAR FACT EVIDENCE OF OTHER CRIMES, PURSUANT TO FLORIDA STATUTES, EVIDENCE CODE RULE 90.404(2) IN EACH SEPARATE TRIAL OF ALL COUNTS THIS MATTER is before the Court on the “Notice of the State’s Intent to Introduce Similar Fact Evidence of Other Crimes, Pursuant to Florida Statutes, Evidence Code Rule 90.404(2), in Each Separate Trial of All Counts,” filed on October 9, 2020; the “State’s Memorandum of Law in Support of the Admissibility of Similar Fact Evidence of Other Crimes (Williams Rule Evidence) and Factual Proffer of Such,” filed on November 13, 2020; and “Defendant’s Response to State’s Request to Admit Williams Rule Evidence,” filed on January 20, 2021. The Court held a hearing on the State’s notice on March 19, 2021. After reviewing the State’s notice and memorandum, Defendant’s response, the argument presented at the March 19, 2021, hearing, the court file, and the record, the Court finds as follows: Previously, the defense filed a motion to sever the four charged offenses in the instant case number. The Court orally granted Defendant’s request on October 7, 2020, and provided a written order on January 12, 2021, in which it found the instant case consisted of “similar but separate episodes that must be tried separately.” Following the Court’s oral ruling, the State filed the instant notice in which it seeks the admission of evidence of all four murders in the separate trials for each individual murder.
    [Show full text]
  • The Florida Bar Code and Rules of Evidence Committee Recommends for Adoption of the Following Amendments to the Florida Evidence Code
    The Florida Bar Code and Rules of Evidence Committee recommends for adoption of the following amendments to the Florida Evidence Code: CHAPTER 2000-316 Senate Bill No. 794 An act relating to witnesses; amending s. 90.502, F.S.; providing that a discussion or activity that is not a meeting for purposes of s. 286.011, F.S., does not waive the attorney-client privilege; amending s. 90.612, F.S.; requiring a judge to protect a witness under a specific age during interrogation and to restrict unnecessary repetition of questions; requiring that questions be stated in a form appropriate to the age and understanding of the witness; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Subsection (6) is added to section 90.502, Florida Statutes, to read: 90.502 Lawyer-client privilege.— (6) A discussion or activity that is not a meeting for purposes of s. 286.011 shall not be construed to waive the attorney-client privilege established in this section. This shall not be construed to constitute an exemption to either s. 119.07 or s. 286.011. Section 2. Section 90.612, Florida Statutes, is amended to read: 90.612 Mode and order of interrogation and presentation.— (1) The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses and the presentation of evidence, so as to: (a) Facilitate, through effective interrogation and presentation, the discovery of the truth. (b) Avoid needless consumption of time. (c) Protect witnesses from harassment or undue embarrassment.
    [Show full text]
  • Similar Fact Evidence in Civil Proceedings: Proof Or Policy
    SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: PROOF OR POLICY * ** BERNARD ROBERTSON AND AMELIA WHEATLEY Professor William Twining was fond of quoting the story of Judge Bridlegoose from Gargantua and Pantagruel.1 Judge Bridlegoose was summoned before the Cour de Cassation to explain a strange decision he had made and he pleaded that failing eyesight must have caused him to misread the dice. This caused the court to ask him to explain his whole process. Judge Bridlegoose explained that he listened to the parties with care and attention, then put all the papers in a bag for three weeks, then rolled dice to decide the case. When asked why he did not just roll dice straight away and spent so much time on listening to and reading the submissions, he said that this was for the sake of formality which lent validity to the proceedings and that in this way the losing party accepted the decision gracefully. The point of the story of course is that there is more to litigation than accurate fact-finding. We hope that litigation will prevent people resorting to force and that losing parties will usually be satisfied that they have had a fair hearing. We would also like the system to be reasonably speedy, affordable and predictable and we criticise when it when it is not. The question then arises whether accuracy of decision-making should be sacrificed to any extent in pursuit of these other policy objectives. On the one hand it can be argued that a pre-requisite for a just outcome is an accurate assessment of the facts; on the other hand it is clear that too much investigation of the facts can lengthen and complicate proceedings and the risk of unwelcome publicity can even deter people from resorting to litigation to protect their rights.
    [Show full text]
  • Evidence in Legal Profession Disciplinary Hearings: Changing the Lawyers Paradigm
    225 EVIDENCE IN LEGAL PROFESSION DISCIPLINARY HEARINGS: CHANGING THE LAWYERS PARADIGM * SCOTT MCLEAN I INTRODUCTION From 1 December 2009 the discipline of legal practitioners in Queensland will be governed by two pieces of legislation – the Legal Profession Act 2007 1 (LPA) and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).2 The importance of the new legislation to lawyer regulation in this State is twofold. Firstly, the Legal Practice Tribunal (LPT) will be abolished and its functions replaced by the newly created Queensland Civil and Administrative Tribunal (QCAT or Tribunal).3 Secondly, new procedural provisions will apply to disciplinary proceedings before the Tribunal. In particular, section 28(3) of the QCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.4 Importantly, the QCAT Act expressly provides that the Tribunal must ensure, as far as practicable, that all relevant material is disclosed to it so that it can decide the matter with all relevant facts. This provision suggests that, as noted by the Attorney General in his second reading speech, QCAT is meant to provide for ‘more flexible procedures than are used in courts and will have a more inquisitorial approach compared with the traditional court based processes’.5 Though these are provisions are not novel, it will be interesting to observe the approach of the Tribunal in exercising its inquisitorial procedures in proceedings under the LPA. There is an inherent risk that the Tribunal, like many tribunals before it, may fall into the ‘trappings of judicial decision-making’6 with both lawyers and decision makers reverting to formal practices and procedures more appropriate to the traditional adversarial systems common with criminal and civil proceedings – the adversarial paradigm.
    [Show full text]
  • A Statutory Formula for the Admission of Similar Fact Evidence Against a Criminal Accused
    Bond University DOCTORAL THESIS A Statutory Formula for the Admission of Similar Fact Evidence Against a Criminal Accused Field, David Award date: 2014 Link to publication General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal. +` A STATUTORY FORMULA FOR THE ADMISSION OF SIMILAR FACT EVIDENCE AGAINST A CRIMINAL ACCUSED DAVID J FIELD A thesis submitted in total fulfilment of the requirements of the award of the degree of Doctor of Philosophy FACULTY OF LAW, BOND UNIVERSITY © DAVID FIELD, MARCH 2013 i ABSTRACT The law governing the admission, against a criminal accused, of what is referred to – sometimes inaccurately - as “similar fact evidence” has been allowed to acquire a complexity which is not wholly justified. This complexity has arisen as the result of two errors which have operated in tandem for the best part of two centuries. The first is to regard all instances in which a criminal accused’s additional (usually prior) misdeeds are disclosed to a court as “similar fact evidence”, when in fact many such disclosures involve facts which are far from similar.
    [Show full text]
  • The Problem of Similar Fact Evidence
    Dalhousie Law Journal Volume 5 Issue 2 Article 3 5-1-1979 The Problem of Similar Fact Evidence C. R. Williams Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/dlj Part of the Evidence Commons This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation C. R. Williams, “The Problem of Similar Fact Evidence” (1979) 5:2 DLJ 281. This Article is brought to you for free and open access by the Journals at Schulich Law Scholars. It has been accepted for inclusion in Dalhousie Law Journal by an authorized editor of Schulich Law Scholars. For more information, please contact [email protected]. C. R. Williams* The Problem of Similar Fact Evidence Similar fact evidence raises in a particularly acute form the conflict between two competing principles in the law of evidence. On the one hand, the principle that evidence of high probative value ought to be admitted. On the other, the principle that in criminal trials evidence possessing a significant potential for prejudice ought, in the interests of fairness, to be excluded. The expression "similar fact evidence" is here used broadly to refer to all evidence which shows that on some other occasion the accused acted in a way more or less similar to the way in which the prosecution alleges he acted on the occasion which is the subject of the present charge. Such evidence is, clearly, frequently of great probative value. Equally, such evidence constitutes the example par excellence of evidence possessing a potential for prejudice.
    [Show full text]
  • Similar Fact Evidence
    Similar Fact Evidence Prepared by Franco R. Cabanos Similar Fact Evidence A case comment on Triple 3 Holdings Ltd. et al v. Paccar Inc. et al, 2014 SKQB 427 By: Franco Cabanos With the growing mass production of goods, litigation involving product defects has correspondingly increased within the justice system. Invariably, products will fail, some more than others. Consequently, an often contentious battleground in products liability litigation involves the utility of and the ability of a party to rely on evidence of other similar events/failures. The common sense reaction is often that “similar fact evidence” (or evidence of similar losses) should be admissible. However, as will be discussed, there are many legal issues considering the use of similar fact evidence, such that admissibility is rarely straightforward. Recently, our office had the opportunity to appear before Madam Justice Gunn of the Court of Queen’s Bench for Saskatchewan in a products liability matter to argue the many procedural steps that can be impacted by the introduction of similar fact evidence. There, the Defendants, Paccar Inc., Paccar of Canada Ltd.-Paccar Du Canada Ltee. and Kenworth Truck Company (collectively the “Paccar Defendants”), applied to strike of pleadings and resist document production on the basis that the Statement of Claim we filed raised allegations of similar facts, which they argued was prejudicial and unjust. We were wholly successful in resisting the application to strike and in obtaining an order for further document production on matters alleged to involve similar fact evidence and this paper highlights some of the key aspects of that decision and its implications on products liability litigation.
    [Show full text]
  • No Bad Men!: a Feminist Analysis of Character Evidence in Rape Trials Aviva Orenstein
    Hastings Law Journal Volume 49 | Issue 3 Article 8 1-1998 No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials Aviva Orenstein Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Aviva Orenstein, No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998). Available at: https://repository.uchastings.edu/hastings_law_journal/vol49/iss3/8 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials by AvIvA ORENSTEIN* Table of Contents Introduction ................................................................................... 664 I. The Current State of Character Evidence ........................ 668 A . D octrine ......................................................................... 668 B. Reasons Behind the Rules ........................................... 669 II. The Challenge of Rape Trials: A Feminist View ............. 672 A. Denial of Rape .............................................................. 672 B. The Cultural Paradigm ................................................. 677 1) Cultural Profile of the Rapist ................................. 678 2) Cultural Profile of the
    [Show full text]