Portal de Periódicos da CAPES

The legacy of the makin case 120 years on: Legal fictions, circular reasoning and some solutions

2013; Taylor & Francis; Volume: 35; Issue: 4 Linguagem: Inglês

0082-0512

Annie Cossins,

Judicial and Constitutional Studies

This article begins with an analysis of the Makin case that, for 120 years, has represented the cornerstone for the admissibility of the most prejudicial evidence in a criminal trial - a defendant's other criminal conduct (known as 'propensity', 'similar fact' or 'bad character' evidence). By revealing how the Privy Council's famous statement of principle was based on two legal fictions, the article also reveals the impermissible reasoning at the heart of the decision, a type of reasoning still influential in similar fact evidence cases today. Although Makin has prompted much criticism, with courts developing stricter tests for the admissibility of a defendant's other criminal conduct, this article shows how strict or loose controls over the admission of such evidence have no effect on the type of impermissible reasoning at the heart of propensity/similar fact reasoning. By identifying the heuristic processing involved, the article demonstrates the flaws in the reasoning process in circumstantial evidence murder trials. Finally, it proposes recommendations for reform to ensure juries do not convict people on the basis of heuristic cues.