Thriller goes Bad for Michael

Today’s ruling by the trial judge in the Michael Jackson child sexual abuse case, allowing the prosecution to lead evidence of other alleged incidents of abuse of young boys by Jackson, makes a conviction significantly more likely:

Legal analysts say the admission of such explosive testimony could deal a serious blow to the defence by lending credence to the accusations in the current case that experts said was not very strong in its own right.

Would such evidence be allowed in a criminal trial in Australia? Although I should emphasise that I’m not a criminal lawyer, I suggest the answer is a strong “maybe” (although it would depend on the exact nature of the evidence). This sort of evidence is referred to generically as “similar fact” or more specifically as “propensity” evidence. As this Australian Law Reform Commission discussion paper explains:

It has long been accepted that people are likely to overrate the value of similar fact evidence and be influenced improperly by it. The inferential reasoning for tendency or coincidence evidence is considered dangerous as it permits a person to be judged by their conduct on other occasions. The danger increases where the tendency or coincidence evidence reveals a criminal propensity of the accused. At common law, evidence that discloses a criminal propensity must satisfy the stringent ‘no rational explanation’ test.

Under the uniform Evidence Acts, evidence may not be led for tendency or coincidence purpose unless the court considers that the evidence has ‘significant probative value’ and reasonable notice of the intention to adduce such evidence has been given to the other parties to the proceedings. The uniform Evidence Acts impose additional restrictions where tendency or coincidence evidence is adduced by the prosecution against a defendant in criminal proceedings, in that the probative value of the tendency evidence must substantially outweigh any prejudicial effect it may have on the defendant. The uniform Evidence Acts do not provide for the ‘no rational explanation’ test.

Exclusion of propensity evidence unless there is “no rational explanation” other than guilt of the crime in question, might conceivably result in exclusion of the evidence against Jackson. There is a rational explanation for people to make such accusations against Jackson: to achieve a financial settlement to avoid damaging publicity against him. But how likely it is that 5 separate accusers would hatch such plots at different times, or that Jackson if innocent would continue to put himself in positions of risk with young boys after being forced to settle for a reported $26 million in one 1993 case, is another question.

Whether the “no rational explanation” test is somehow imported into the State uniform Evidence Acts is to be considered by the High Court in Ellis v R.

The current state of Australian law on propensity evidence is probably best summarised by this extract from a 1999 Melbourne University Law Review article by Kenneth J. Arenson (although note that the 1997 Victorian Crimes Act amendments he discusses don’t apply in the rest of Australia – except Queensland)

In order to fully appreciate the impact of s 398A upon the ‘similar fact evidence rule’ under present common law doctrine, it is appropriate to begin with an analysis of the High Court’s decision in Hoch. In Hoch, the accused was charged in a single indictment with three counts of sexual molestation of three young boys who alleged that they had each been violated in a similar manner. The accused made application for separate trials on the basis that the evidence relating to each count was inadmissible under the ‘similar fact evidence rule’; in essence, that each of the counts joined in the indictment would not have been cross-admissible in a separate trial for any of the others. In particular, the accused claimed that an association among the boys, coupled with their animus towards him, created a risk of concoction so substantial that the probative value of the evidence was outweighed by its natural tendency to unfairly prejudice the accused through a prohibited propensity chain of reasoning. The application for separate trials was denied and the accused was convicted on all three counts. The accused appealed on the ground, inter alia, that the trial court erred in refusing the application.

In allowing the appeal, the High Court formulated a test, later reaffirmed in Pfennig, for determining when ‘similar fact evidence’ reaches the threshold level where its probative value exceeds its potential to unfairly prejudice the accused via a propensity chain of reasoning; namely, that such evidence must be excluded if it bears any rational explanation which is consistent with the innocence of the accused. In applying this test to the case before them, Mason CJ, Wilson, and Gaudron JJ explained, citing the judgment of Lord Wilberforce in DPP v Boardman, that the probative value of the disputed evidence is derived, if at all, from the objective improbability that the three boys would provide such similar accounts of the events at issue unless the events actually occurred; that is, in circumstances such as these, it is fair to say that the accounts given must either be true or, alternatively, have resulted from a collaborative effort to concoct, or from pure coincidence. The justices further explained that in instances where the putative similar accounts are themselves in dispute, as in this case, the probative value of the evidence is derived from the objective improbability of the complainants having concocted similar lies. Accordingly, the justices held that where there exists a possibility of joint concoction, as here, the requisite degree of objective improbability of similar lies is lacking and, consequently, there is a rational view of the ‘similar fact evidence’ which is consistent with the innocence of the accused.

Joint concoction is probably not an open inference in the Michael Jackson case, because there’s no suggestion that any of the 5 previous accusers knew each other. Thus, at least if the 5 accounts contain similar evidence of the techniques Jackson supposedly used to seduce his victims (plying them with alcohol, showing them porno magazines, using similar words), an Australian court might well conclude that the probative value of such evidence substantially outweighed its potential highly prejudicial effect.

What is rather more surprising is that the Jackson trial judge seems to have decided to admit the “similar fact” evidence even though only one of the 5 accusers will give evidence personally! The most high-profile of them, who apparently settled with Jackson for a total of $26 million following an alleged 1993 series of events, is said to be out of the US, so that evidence will instead be given by his mother:

“There was some very damaging evidence. That, of course, is the reason Michael Jackson settled,” said Chandler who confirmed that the settlement was around $US15 million ($19.46 million) for the boy, who was 13 at the time, and an additional $US10 million ($12.98 million) paid to the boy’s parents.

Chandler said his nephew was currently abroad and therefore likely out of the reach of court subpoena in the current case.

“This is a definitive statement: He’s not showing up. He’s out of the country, where he cannot be found. He doesn’t want to be the Michael Jackson boy. He doesn’t want any involvement,” he said.

Chandler said he lamented the decision by his nephew, now in his mid-20s, not to take the stand, saying his testimony “would be crucial to this case”. …

“I’m pretty sure that his mother is going to be called to testify and that she’s going to give some pretty damaging evidence,” Chandler told NBC, adding that the then teenager spent at least “50 or 60 nights” with Jackson, including at the pop star’s Neverland Ranch, in the boy’s home and in “hotels in Las Vegas, New York, Paris, Monaco – every night, night after night, alone in a bedroom”.

I doubt very much that such evidence would be admissible in an Australian court. Even if it satisfied the hearsay rule, it would be most unlikely that its probative value would substantially outweigh its prejudicial effect.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2022 years ago

“makes a conviction significantly more likely”

it only takes one juror to say “buggar the evidence, I’m not voting to convict” and it’s no dice.

Ken Parish
Ken Parish
2022 years ago

Yes Dave, but that’s true in any case. Your point?

Neale
2022 years ago

Where the HELL ARE THE PARENTS in all of this? The chances of me leaving my son with a bizarre, misformed child-star-grown-old in his bedroom to sleep in his bed are a dead flat zero.

Surely these parents must have some sort of culpability in all of this?

Dave Ricardo
Dave Ricardo
2022 years ago

My point is that if a juror is of a mind to to convict because they are a fan of Michael Jackson, the fact that the prosecution can introduce evidence of other alleged incidents is unlikely to make any difference.

Amanda
2022 years ago

I was thinking about this issue after watching “The Staircase” doco (spoilers to follow if you’ve yet to see the conclusion) on SBS over the last 8 weeks. For those who didn’t see it, it followed the trial of Michael Peterson for first degree murder in Durham, NC. His wife was found dead at the bottom of some stairs, the state said he bashed her to death, defence said freak accident. You can google for the details. Anyway, the DAs made big play of another incident 15 years before when a friend of Peterson’s was also found dead at the bottom of some stairs. That was ruled to be an accident. But the prosecution exhumed the body, did an autopsy declared death was due to a “homicidal attack” and got it admitted to court. I — speaking as someone with only a decent lay knowledge of the law, and none at all about the law in NC — was frankly amazed it was allowed in at all. Since Peterson was sentenced was found guilty (mandatory life without parole) the defence is still appealing. I wondered if any more knowledgable people saw it and had any comment? The “similar fact” test seems to me not to be met, and the prejudicial affect enormous. In the Jackson case, he was actually accused of a crime — whatever the validity of those accusations — but here there was not even that, not even a suspicion a crime had taken place.

Sorry for the long post, but it’s been keeping me up at nights!

Francis Xavier Holden
2022 years ago

amanda – I have no idea how I came acorss it and I missed about half of the episodes but I got addicted to Staircase whenever I could catch it. That Micael Peterson is creepier than Michael Jackson

Amanda
2022 years ago

Really? I thought he came across very well, quite charming. But then, that’s my taste in men for you — serial staircase murderer isn’t such a step down.

Niall
2022 years ago

This case is so blatantly one of “I’m-the-District-Attorney-and-I-hate-you-so-I’ll-get-you” it’s beyond funny. It’s so pathetic as to be unbelievable. Trouble is, this is the current state of American law, such as it is.

Francis Xavier Holden
2022 years ago

oh dear amanda. Michael Peterson was the classic Personality Disorder or Sociopath. Prison and Forensic Psychiatry Lockups are full of them. Superficially charming, seemingly plausible, smarmy and totally unbelievable. An excuse and explanation for everything. Two wives /GFs accidently dying by falling down stairs? Gimme a break.

Amanda
2022 years ago

When exactly did you have the opportunity to diagnose his personality disorder, sir? ;-)

First one wasnt wife/GF. Odd coincidence true, but I’ve heard weirder things. Such coincidences happen all the time but most of the time they don’t seem important to us so we don’t notice them.

He might be guilty as sin, I dunno. No skin off my nose. I think there was reasonable doubt though and I am interested in the legal question of admitting that kind of “evidence.” The accident scenario raises alot of questions but the murder scerario as put by the state doesn’t entirely satisfy either.

Francis Xavier Holden
2022 years ago

“When exactly did you have the opportunity to diagnose his personality disorder, sir?”

From about 8 hours of video tapes, Judge Judy

Ken Parish
Ken Parish
2022 years ago

Amanda

I had a quick skim over the press coverage of the Michael Peterson case at this site: http://www.courttv.com/trials/novelist/

I agree it doesn’t look to me like the evidence of the 1985 death would be admissible under Australian law: there was little evidence that it was murder (although perhaps only because that possibility wasn’t seriously examined). And, as you point out, Peterson wasn’t the husband of the deceased (and I don’t think there was any evidence that he was her lover either). He was, however, a neighbour and there were some suggestions that he may have been the last person (except the murderer if any) to see her alive.

The prosecution seem to have persuaded the trial judge to admit the evidence on the basis that Peterson either committed the earlier murder (for which neither he nor anyone else was ever charged) or acquired knowledge from this earlier incident of how one might stage a murder to look like an accidental fall down a staircase. Neither possibility, either separately or together, would suffice to have such evidence admitted under Australian law IMO, despite the trial judge’s remark that it was “probative” (of what?). If American law permits this sort of evidence in such circumstances, it’s a travesty of justice.

Peterson might conceivably be a sociopath, but you certainly can’t diagnose it just from watching a TV program, even if you’re a brilliant psychiatrist. And even if he IS a sociopath, it doesn’t prove he murdered his wife. That said, a quick perusal of the website I linked above indicates that there was lots of evidence against him besides the similar fact stuff.

Amanda
2022 years ago

Thanks Ken. Will be interesting to see how the appeal pans out.

FXH, remind me to object of you’re ever on a jury sitting in judgement of me. I too am charming and have a answer for everything.

Francis Xavier Holden
2022 years ago

“Next”
“Case of disputed paternity. Amanda F E Mule vs Tony Abbott”

Jurers file in.

“Occupation?”
“er – ”
“Have you ever blogged or commented on a blog?” “yes”
“challenge”

Nabakov
Nabakov
2022 years ago

My verdict? Guilty by a nose. Not necessarily Mike’s though.

Nicholas Gruen
2022 years ago

I must say, I’m fairly suspicous of this kind of rule. If a jury – properly instructed (and one might want to develop some additional safeguards around this point) – could reasonably find the evidence to be highly probative, then there should be a presumption of admission. This is particularly so where evidence is hard to come by as in this case.

The same goes for hearsay. Though shrouded in the mists of time, the rule against heresay is (presumably) based on the idea that it is easy to fabricate and at the same time can have high persuasive value. In this case there should be separate jurisprudence built around those points, not around the categorisation of something as heresay – where it will quite often be the case that there is no motive for fabrication and so good evidence is simply thrown out.

The most egregious case I know of is the Jamaican R v Sharpe where the young girl who was the victim told her mother (I think) that a white man had raped her (and then promptly died) A black man was tried and convicted on the charge and the girl’s evidence was not admitted as it was heresay. This was upheld on appeal to the Privy Council. A bunch of dills on this occasion I’m afraid. (They got the guy off on a technicality but what a farce).

I don’t guarantee any of these facts (maybe the accused was white not black, it was not the girl’s mother etc), except for the basic point – which is that highly probative evidence, evidence that was necessary to admit to give substance to the accused’s right to be found guilty beyond reasonable doubt was held inadmissible. The gods wept (one presumes – one hopes!)