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.