Answer ONE of the following TWO questions.
1.
The following passage is taken from ‘Analysis of Evidence’ by Anderson, Schum and Twining (2005):
In July 1994, the state of California formally charged that Orenthal James Simpson (OJS) had murdered his former wife, Nicole Brown Simpson (NBS), and a bystander, Ronald L. Goldman (RLG), on June 12, 1994. The trial took place in 1995. One of the issues was whether OJS could have had an opportunity to commit the crimes. The only evidence presented at trial bearing upon that issue is summarized below.
Sometime between 10:15 and 10:20 p.m., on June 12, 1994, Pablo Fuentes heard the “plaintive wail” of a dog. Around 10:45 p.m., Steven Schwab found NBS’s Akita with blood on its paws. At about the same time, Kato Kaelin, a guest in OJS’s house, heard three thumps on the wall outside his bedroom that he thought might be an earthquake. He went out and walked along a path behind the house, but he did not see anything. Alan Park was a limousine driver scheduled to drive OJS to the Los Angeles Airport to catch an 11:45 p.m. flight to Chicago. He arrived at OJS’s house early. He pressed the buzzer at the gate at 10:40 and again at 10:49 and got no answer. At 10:55, Park saw an African-American male dressed in dark clothes enter the house. At 10:56, he buzzed again and OJS answered. OJS said he had been in the shower and would be out in a few minutes. Kaelin opened the gate and Park drove the limo to the front door. There were two black duffel bags on the doorstep. At 11:00, OJS came out. He was wearing stone-washed blue jeans and a white polo shirt and was carrying a coat over his arms and a designer hanging bag. Park shook hands with him. He did not notice any cuts or blood on his hands or anything else unusual. According to Detective Vannatter, it took about five minutes to drive, observing the speed limit, from NBS’s house at 875 Bundy Drive to OJS’s house at 360 North Rockingham Avenue.
(a) Consider the relevance of the evidence of Pablo Fuentes, Steven Schwab, Kato Kaelin, and Alan Park, to the issue of opportunity. Identify a test for the relevance of evidence generally and then apply it to each witness’s evidence. Explain with each witness whether you consider their evidence to be relevant or irrelevant, and why.
(b) When considering your arguments on relevance, consider any generalisations that could be used to support and explain the relevance or irrelevance. Construct any generalisations that you consider could be used in this trial for this issue. Classify them according to whether you consider they are case-specific, or background (scientific/general knowledge/ experience-based/belief) generalisations.
2.
John Smith is charged with two offences of robbery. You are the judge at his trial in the Crown Court.
The first offence arises from an incident shortly before midnight on 20 February 2017. Minette Tao was on her way home on her own. She got off the bus in New North Road, London N1 just before the junction with Wimbourne Street; she noticed two black men standing on the corner on the other side of the road. As she turned in to Wimbourne Street she realised she was being followed by one of those men. She got her keys out of her handbag ready to get in to her house as soon as possible. But she was confronted by the man who was following her. He was wearing a cream hooded jacket with a fur trim, and the hood was up. He was wearing dark tracksuit bottoms and white trainers. As he came in front of her, he tugged at her handbag, eventually managing to extract it from her and then ran off. This all occurred under a street light. Minette Tao described the man as having a shaven head and acne marks, five foot five to five foot six tall and of medium build. He ran away in the direction of New North Road. On 21 April 2017 she picked out the defendant on a video identification parade.
The second offence arises from an incident, again on New North Road, which occurred on 18 March 2017 just before 6 p.m. Gina Bass was walking along the road towards Old Street tube station when she sensed that someone was behind her; she stopped and turned round and confronted a man she described as a lightly toned black man in his mid to late twenties, between five foot six and five foot eight tall wearing a dark baseball cap and darkly coloured clothing. He came straight up to her and grabbed her bag which was over her right shoulder. She tried to hold on to it, but eventually had to let go. The man then ran away. She attended a video identification procedure on 23 April 2017 and identified John Smith as the man who had robbed her.
The prosecution has applied to adduce bad character evidence against John Smith in two respects:
(i) They want to put into evidence that he has three convictions against him for street robbery, two of which had occurred in February 2015. The third conviction was for an offence which had taken place only two weeks after the robbery of Gina Bass, and immediately across the road from that offence. The prosecution have made the following arguments.
• The methodology is virtually identical and forms part of a series of similar offences.
• The convictions are capable of showing that John Smith has a propensity to commit the sort of offence that he is alleged to have committed in this case.
• The propensity displayed is to approach lone females in the street and to grab their handbags as they wear them on their shoulders and tug it from them and flee.
(ii) They have applied for permission to use the evidence from each of the two current offences in question, in relation to the other.
The defence has argued that the prosecution should not be entitled to use the evidence on the grounds that to do so would simply be using bad character to bolster an otherwise weak case.
Consider and give a reasoned ruling on each of the prosecution applications, referring to legislation and case law as appropriate in your ruling.
