Can juries handle the truth on prior convictions? Photo / 123rf
Research shows juries can weigh prior convictions without unfair bias, writes Lady Deborah Chambers (KC).
The law on when a jury is informed about an accused’s prior convictions is out of date with the modern research. Worse still, our courts apply the law conservatively, insisting that “fair trial rights” require sweeping “take down” orders that are expensive for the press, an incursion into free speech and access to information, and do not, in any event, work particularly well.
Modern research shows that juries are perfectly capable of dealing with prior conviction evidence without being biased or misled. However, our law and courts patronisingly assume that this is not the case and exclude almost all prior convictions from the jury.
Imagine you are a member of a jury. You have sworn to try the case before you to the best of your ability and to give your verdict according to the evidence presented in court.
The accused is Mr Damon Exley. He is 56 and it is alleged that a woman in her 60s, who we will call Joan, was kind enough to give him a ride when he was hitchhiking north of Wellington in the rain. During the journey, Mr Exley allegedly told Joan he had escaped from prison, produced a knife and ordered her to stop at a secluded area where he raped her.
You are told that he had only two previous convictions in 2000 and 2005 involving remarkably similar conduct: producing a knife or gun and sexually assaulting women in a car.
Regarding those two convictions, this evidence, known as propensity or tendency evidence, was considered probative (i.e. relevant) but only because it was almost exactly the same modus operandi as Joan’s case.
However, Exley actually has an extensive criminal record dating back to 1983 and running for some 20 pages.
His record includes various offences involving dishonesty, sexual offending and violence.
When he raped Joan, he was serving a sentence of preventive detention but had escaped from custody.
Frustratingly, the prior convictions include other occasions when Exley escaped from custody in 1984, 1987, 1989, 1991, 1992 and 1998. None of this was told to you as a jury member.
The actual jury found Exley guilty of all charges and on February 1, 2024, he was sentenced to a further term of preventive detention with a minimum period of imprisonment of nine years.
But the case threw up two issues which are worth discussing.
First, the Supreme Court (where Exley’s case ultimately ended up, funded by the good New Zealand taxpayers) upheld the stringent world view that prior convictions should rarely be revealed to a jury.
This meant that the vast majority of Exley’s 240 prior convictions were not before the jurors when they assessed the evidence.
The second issue is the huge effort required to prevent juries from accessing the true information, being sweeping “take down” orders to exclude relevant evidence.
The problem stems from the availability of the internet on our phones where people’s prior convictions are reported and easily accessible by a Googling jury member. The Supreme Court held that the “fair right to trial” was an absolute right and that it was the only consideration when issuing sweeping orders requiring media at their cost to take down any reporting on Mr Exley’s prior convictions before his trial. These “take down orders” require media organisations to remove perfectly truthful reports of events and they are often never restored.
What is a fair trial considering prior convictions of folk like Mr Exley? Prior convictions are undoubtedly relevant. Indeed, academic literature refers to them as “dangerously relevant”. The fact that someone charged with burglary has 200 prior burglary convictions is relevant to a jury assessing guilt as a matter of every-day reasoning.
Social data shows that prior convictions for different crimes are still highly relevant. It may be far from certain that a person, having committed one criminal offence will commit another similar offence. But someone with such a history is more likely to commit that kind of offence than someone without that history. While defence counsel will fight in a ditch to stop their client’s prior convictions going before a jury, they will certainly lead evidence that their client has no previous convictions, accepting previous conduct is relevant for a jury to consider in assessing guilt or innocence.
The fact that someone has prior convictions does not, of course, mean they have committed the offence. Likewise, the fact that an accused has no prior convictions does not mean that they did not do the crime. But it is relevant in assessing the issue which really matters, whether the accused, in Mr Exley’s case, committed the sexual violation.
Prior convictions are similar to evidence about motive, opportunity to act or post-offence conduct. None of this evidence is sufficient to establish guilt by itself but can make a valuable contribution. Motive evidence, for example, can be crucial because people with a motive to kill are more likely to kill than those without a motive. It is the comparative element that makes the evidence relevant.
The comparative element is premised on the fact that rates of reoffending are significantly higher than general crime rates. This was all examined in detail by the Australian Royal Commission into Institutional Responses to Child Sexual Abuse.
The Royal Commission found that the traditional approach to excluding tendency evidence is illogical and empirically unsustainable on modern research into its relevance. They called for a reassessment of the exclusionary rule, which currently only allows juries to know about prior convictions if there is something remarkable, unusual, improbable or peculiar connecting the previous offences to the present allegation.
That means, in reality, previous convictions are rarely put before a jury. Various Australian states and the United Kingdom have dramatically liberalised the admissibility of prior convictions given modern research does not support this narrow approach.
When I prosecuted in front of juries, some judges would deal with aspects of bail or sentencing arrangements deliberately so that they could ask the Crown prosecutor if the accused had any prior convictions, generally producing a long list. The purpose was presumably to reassure the jury that they had made the right decision in convicting the accused. Jury members were often clearly irritated by not being told about the prior convictions, feeling the truth about relevant evidence was withheld.
So why are juries not told about prior convictions? Well, put simply, the law does not trust juries to weigh the tendency evidence fairly. In fact, recent empirical findings are mixed for good reasons: sometimes prior conviction evidence increases the number of guilty judgments, sometimes it does not. The effect depends on moderators like case strength, similarity of prior offences and judicial directions. Thus, the assumption that juries would take the wrong approach has been much exaggerated and can actually be moderated. It is time that the law catches up to the empirical evidence on this score.
Excluding prior conviction evidence also carries a substantial cost for criminal justice: the unjustified failure of criminal prosecutions. Tendency evidence of other alleged victims can be crucial. For example, the prosecution of child sexual abuse is inherently difficult because the offence is committed in secret, and victims often delay reporting. Excluding previous convictions can give child sex offenders impunity.
The takedown orders required to uphold the exclusionary rule is a reaction to the absolute (and I say wrong) obsession of trying to ensure juries cannot discover prior convictions in the digital age. New legislation passed in 2019 under the Ardern ideology of overbearing control gave significantly more power to judges to deal with Googling jury members, including blanket orders against the media.
Takedown orders are problematic.
Such orders cannot be enforced (as discussed by David Harvey last week) given the way information is now spread informally through social media without relying on links to professional news outlets. There are numerous platforms, many of them below the judicial radar and with little regard for judicial jurisdiction. Ordering takedown of specific news-linked URLs does not remove the material. There was extensive material on Mr Exley, who is also known as the “Rimutaka Prison Escaper” and a “walking crimewave”. We all recall looking up the hard-copy newspapers in libraries, presumably, during the trial of Jesse Kempson for the murder of Grace Millane to locate the name of the accused. A New Zealand judge’s reach is limited internationally.
Takedown orders will never keep up with AI or the staunch views of many New Zealanders on the value of free speech. There is also the fact that material about Mr Exley in hard-copy newspapers in libraries, presumably, remained. The approach of the Supreme Court also walks directly across section 14 of the New Zealand Bill of Rights Act 1990 concerning free speech and the right to access information. That public information may not be restored after an accused’s trial.
Unless they tell fellow jury members, it is near impossible to detect whether a jury member has researched the accused. The better answer is for the system to explicitly recognise and manage the reality of the internet through clear rules and judicial direction. Judges routinely instruct the jurors how to conduct themselves and we trust that juries follow those instructions. The system of trial by jury has evolved over centuries. Crucially, it has withstood challenges by changing technology and widening access to information. The digital reality is better faced by way of judicial direction as to the relevance of previous convictions. Judges can properly explain to juries the limitation of how evidence of prior misconduct or convictions may be used and warn jurors about substituting that evidence for direct proof of the charged offence.
A fair trial does not require erasing history. It is time for a fresh approach, and it is time to stop patronising jurors and accept that if they are clearly directed on the relevance of prior convictions and reports online they will do their duty.
Until then, an inside tip is that if you are on a jury and the defence does not lead evidence about a lack of prior convictions, you can reasonably assume that some prior convictions are lurking.
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