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Bluebook 20th ed.

A. N. Dood; H. M. Kirshenbaum, Some Empirical Evidence on the Effect of s. 12 of the
Canada Evidence Act upon an Accused, 15 Crim. L.Q. 88 (1972).

APA 6th ed.

Dood, A. A.; Kirshenbaum, H. H. (1972). Some empirical evidence on the effect of s.
12 of the canada evidence act upon an accused. Criminal Law Quarterly, 15(1), 88-96.
ALWD
Dood, A. A.; Kirshenbaum, H. H. (1972). Some empirical evidence on the effect of s.
12 of the canada evidence act upon an accused. Crim. L.Q., 15(1), 88-96.

Chicago 7th ed.

A. N. Dood; H. M. Kirshenbaum, "Some Empirical Evidence on the Effect of s. 12 of the
Canada Evidence Act upon an Accused," Criminal Law Quarterly 15, no. 1 (December
1972): 88-96

McGill Guide 9th ed.

A N Dood & HM Kirshenbaum, "Some Empirical Evidence on the Effect of s. 12 of the
Canada Evidence Act upon an Accused" (1972) 15:1 Crim LQ 88.

MLA 8th ed.

Dood, A. N., and H. M. Kirshenbaum. "Some Empirical Evidence on the Effect of s. 12
of the Canada Evidence Act upon an Accused." Criminal Law Quarterly, vol. 15, no. 1,
December 1972, p. 88-96. HeinOnline.

OSCOLA 4th ed.

A N Dood and H M Kirshenbaum, 'Some Empirical Evidence on the Effect of s. 12 of the
Canada Evidence Act upon an Accused' (1972) 15 Crim LQ 88

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 Some Empirical Evidence on the Effect
of s. 12 of the Canada Evidence Act
Upon an Accused
A. N. Doob and H. M. Kirshenbaum*

According to s. 12 (1) of the Canada Evidence Act the

criminal record of an accused person who testifies in his own
behalf can be entered as evidence. It has been argued
primarily from a legal point of view (Friedland, 1969;
Teed, 1971) that even if the jury is instructed that the
evidence of previous convictions should be used to deter-
mine the credibility of the accused and not his guilt, the
section is nonetheless unfair to the accused. The present
paper will examine s. 12 from the point of view of existing
research in psychology and will, in addition, provide experi-
mental evidence concerning its effects on the disposition of
criminal cases.
Section 12 makes two distinct assumptions for which
relevant psychological data exist. The first is the assumption
that a person who has been found guilty of a criminal
offence is more likely to give untrue testimony than is a
person without a criminal record; the second is that the
judge or jury will be able to use the information concern-
ing previous convictions to determine credibility and not
guilt. Implied in the first assumption is the notion that there
is such a thing as a trait of "honesty". Mischel (1968) has
summarized a large amount of the data collected over the
last thirty-five years on this question. In general, the fairest
*Anthony N. Doob is an Associate Professor in the Department of Psychology
and the Centre of Criminology at the University of Toronto. Hershi M.
Kirshenbaum is a graduate of the University of Toronto now doing research
in the Department of Psychiatry at St. Joseph's Hospital in Hamilton,
Ontario. This research was supported by a grant from the Canada Council
to Professor Doob. The authors wish to thank the Ontario Science Centre for
allowing them to do this research on their premises.
 CANADA EVIDENCE ACT

summary that can be made of these data is that there is

little if any evidence of consistency from one situation to
another when behaviours as diverse as cheating, lying and
stealing are involved. The data indicate that a person who
would be likely to steal something in one situation would
not be more likely to tell lies in a second situation than
would someone who would not steal in the first instance. In
other words, the data indicate that these kinds of behaviours
are very specific to situations. The consistency, where it
exists, seems to be that a given person is likely to act in a
consistent manner (consistent with respect to his actual
behaviour, that is) in a specific situation; however, if the
behaviour is changed (e.g., from a situation in which a
person is tempted to steal to one in which he is tempted to
lie) there is no longer any "consistency" in his moral be-
haviour. Mischel concludes his discussion of the data on
"moral behaviour" by saying: "Thus the data on moral be-
haviour provide no support for the widespread psychodyna-
mic belief in ...a unitary entity of conscience or honesty"
(p. 26). There seems to be no basis in fact for the "trait"
of "honesty," at least as far as honest behaviour is con-
cerned. On the basis of existing data it cannot be argued
that because someone has been found guilty of a criminal
offence he is more likely to lie on the witness stand than is
someone who has no such previous conviction.
The second general assumption (that the judge or jury
can use information about previous convictions for one
purpose and not for another) seems to have as little support
in the psychological literature as does the first. The assump-
tion that people can differentiate the use of information
goes directly against what is known as the "halo" effect:
the phenomenon by which a person will infer positive
characteristics about a person where favourable information
has been received and will infer negative characteristics
about someone where unfavourable information has been
received. As Rosenberg and Olshan (1970) have pointed
out, "Studies using [the technique by which a subject is
asked to infer characteristics about an individual on the
 THE CRIMINAL LAw QUARTERLY

basis of information about other characteristics] ...have

consistently shown that subjects infer favourable traits from
one or more favourable stimulus traits and infer unfavour-
able traits from unfavourable stimulus traits" (p. 619).
Thus, if a person is told one negative thing about another
person, he is going to assume other negative things. With
respect to s. 12 of the Canada Evidence Act, it follows that
we would expect that if a juror hears that an accused has
one unfavourable characteristic (e.g., that he has a criminal
record) he will then think of that accused as a generally bad
person. If this same juror is then asked to judge the guilt of
the accused, he will be likely to infer that the accused is
guilty of the crime in question. As long as a juror has heard
evidence of previous convictions of the accused we would
expect that a judge's instructions that such information not
be used to determine guilt would be irrelevant. The hypoth-
esized chain of reasoning is as follows: (a) information
about the criminal record leads the trier of fact to think of
the accused in unfavourable terms, and (b) when asked
about the guilt of the accused, he then thinks that the
accused is guilty. Note that even if in between these two
steps the warning is given that the information about a
previous record must not be used to determine guilt, the
damage will already have been done. The trier of fact will
already have developed an unfavourable opinion of the
accused and although he might think that he is not using
the information (and in fact is not using it in a direct man-
ner), nonetheless since the unfavourable attitude has already
been developed, the "halo" effect will lead him to assume
that the accused is guilty.
The foregoing discussion is to some extent speculative
since it is derived from data gathered in a very different
context from the court-room situation; clearly, however, it
is impossible to do experimental research on this topic in
the court-room. Although Kalven and Zeisel (1966) have
presented data which suggest that juries are more likely to
convict someone who has a criminal record (or who does
not take the stand) than, they are a person who does not
 CANADA EVIDENCE ACT

have a record, it is very difficult to attribute this difference

in acquittal rate to the criminal record alone, since other
factors may well be correlated with the presence of a crim-
inal record and may be responsible for the observed
differences. Ideally what one would want in order to test
experimentally the effect of criminal record on judgment of
guilt would be a situation in which the same case is given
to many jurors, some of whom think that the accused has
a criminal record and some of whom think that he does not.
While this is clearly impossible in a court-room situation,
an approximation was used in the following experiment. In-
dividually interviewed subjects asked to simulate jurors were
given the facts of a case; some subjects were told that the
accused had a criminal record while others were not. All
subjects were then asked to judge the guilt of the accused.
All of the subjects in the present experiment read the
same hypothetical case in which a man is being tried for
breaking and entering. The case was especially constructed
for this experiment in such a way that the guilt or innocence
of the accused was unclear; subjects would tend to be un-
decided as to whether or not the accused was guilty. Half
of the subjects were then told that the accused had a criminal
record while the other half were told nothing about previous
convictions. Half of the subjects who thought that the
accused had a criminal record were then told that the
evidence of previous convictions was to be used to deter-
mine credibility and not guilt, whereas half were given no
such instructions. Half of the subjects who heard no mention
of previous conviction of the accused were told that he did
not take the stand because there was no need for it, whereas
half were given no information about the accused other than
that contained in the facts of the case. Thus there were four
conditions; two in which the accused was described as
having a criminal record and two in which no criminal
record was indicated.
Method
Subjects were 48 men and women ranging in age from
approximately eighteen to fifty who were approached by
 THE CRIMINAL LAW QUARTERLY

the experimenter in the Ontario Science Centre, in city

parks, outside supermarkets and in various public buildings.
It was clearly a very heterogeneous sample, though the
exact characteristics of the sample are not known. Before
the subject was approached the condition in which he was
to be included was randomly determined and the materials
arranged accordingly. The subject was then asked to partici-
pate in a short experiment being run by the University of
Toronto. No one refused to participate, although two addi-
tional subjects had difficulty reading the material and could
not answer the question at the end of the written material.

Materials
All subjects read a description of a hypothetical case in
which a person was charged with breaking and entering. It
was approximately 400 words long, and was prefaced by
instructions which read, "Imagine that you are a juror
listening to a case of a man accused of breaking and enter-
ing. After you have read this you will be asked to indicate
whether you would recommend that the accused person be
found guilty or innocent of the charge."
Twelve subjects simply read the case and then indicated
their answer. (No record - No other information condi-
tion.) Another twelve read in addition that "The defense
lawyer decided that there was no purpose in having the
accused man take the stand. Therefore, he did not testify
in his own behalf." (No record - Not taking stand condi-
tion.)
Another group of twelve people read that "The accused
man took the stand but did not give any important evidence.
However, while on the witness stand, it was established that
he had been convicted five different times of breaking and
entering private homes and had also been convicted twice
of being in possession of stolen property." (Previous con-
victions - No other information condition.) The last
group of twelve subjects read this same paragraph and in
addition read that, "In his instructions to the jury the judge
pointed out that by law the accused person's previous
 CANADA EVIDENCE ACT

criminal record should only be used to determine whether

or not he is to be believed as a witness and that it should
not be used to determine whether or not he is guilty."
(Previous convictions - judge's instructions condition.)
All subjects were then asked to indicate on a seven
point scale their answer to the question "How likely do you
think it is that he is guilty?" The scale ran from 1 (he is
definitely guilty) to 7 (he is definitely not guilty). Points 3
and 5 were labelled "he is probably guilty" and "he is prob-
ably not guilty," respectively; points 2, 4 and 6 on the scale
were unlabelled but were acceptable answers representing
intermediate stages between labelled alternatives.
Results
The results are shown in Table 1 and the analysis of
these results is contained in Table 2. It is clear that the
presence of the criminal record had a dramatic effect while
none of the other instructions had a significant effect. It was
Table 1: Average Ratings of Guilt
Condition Mean
No record -
No other information ........ 4.00
No record -
Not taking stand .............. 4.33
Previous convictions -
No other information ........ 3.25
Previous convictions -
Judge's instructions .......... 3.00
Note: 1 = Definitely guilty.
7 = Definitely not guilty.
12 subjects per cell.
Table 2
Source of SS df MS F Significance
variation level
Previous 13.02 1 13.02 6.03 p .02
convictions
 THE CRIMINAL LAW QUARTERLY

Conditions
(within no Not
record) .67 1 .67 1 significant
Conditions
(within
previous Not
convictions) .37 1 .37 1 significant
Within cells 94.92 44 2.16
not expected that there would be any difference between
the two conditions in which the accused was reported not
to have a record. The second condition was included as an
additional control for those conditions in which it was in-
dicated that he did have a record. It should be noted that
we do not consider this to be an adequate test of the effect
of s. 4 (5) of the Canada Evidence Act, which forbids
comment by judge or counsel for the prosecution on the
failure of an accused to testify.
As indicated in Table 2, the effect of the criminal
record is statistically significant. The mean for those sub-
jects who heard nothing about previous convictions was
slightly more than "4", the midpoint of the scale; for those
subjects who received the information that the accused had
a previous criminal record the average was approximately
"3" (probably guilty).
Another way of looking at these data is to look at the
number of subjects who thought that the accused was
"definitely guilty" or almost so (scale positions 1 or 2).
Without information about the previous criminal record
only one out of 24 subjects thought that he was definitely
guilty (or nearly so) whereas with a criminal record men-
tioned, 8 out of 24 subjects were this confident that he was
guilty (p < .02).
The second finding of interest has to do with the effect
of the instructions to use the information about the previous
convictos_ to-.determine credibility but not guilt. Since
credibility was not an issue (none of the facts in the case
were reported by the accused), if the subjects were able to
 CANADA EVIDENCE ACT

follow these instructions we would then expect those sub-

jects who received the judge's instructions to produce data
that look like the data from those subjects who received no
information about previous convictions. In fact, quite the
opposite was the case. The "judge's instructions" had no
effect whatsoever on the decisions by the subjects. These
data strongly support the notion that the introduction of
evidence concerning previous convictions will increase the
likelihood of conviction of the accused and that instructions
to disregard the evidence will not counteract the damaging
"halo" effect of the previous convictions.
A few points should be made about this experiment.
The first concerns the method that was used; the subjects
in the experiment clearly knew that their decisions were not
going to affect anyone. It is conceivable, therefore, that this
aspect of "unrealism" could have affected the results. If this
were the case, however, it is difficult to see why it would
have created the results as they turned out. Similarly, the
fact that our sample is probably not perfectly comparable
to the sample of jurors who would sit on such a case could
have affected the results; however, as we have pointed out
our sample was heterogeneous and it seems unlikely to us
that an explanation such as this could account for our
findings. It is also conceivable that our findings are not
generalizable to other kinds of crimes or to other wordings
of the written material; once again this does not strike us as
a particularly credible argument since, in the experiment
which was run, all manipulations (especially the judge's
instructions) were simple and straightforward.
When one considers that the instructions (to use the
information about previous convictions to determine credi-
bility and not guilt) came immediately before the subject
gave his answer it is quite remarkable that these instructions
did not have the effect of reducing the likelihood of the
subject's stating that the accused was guilty. Essentially we
told the subject to disregard certain evidence and yet he was
not able to do so, even when he was not in a situation in
.,hich disregarding it had social effects.
96 THE CRIMINAL LAW QUARTERLY

In conclusion it seems to us, as psychologists looking

at s. 12 (1) of the Canada Evidence Act that on the basis
of psychological knowledge and empirical data this section
strongly works against the accused person even when the
jury is instructed (or when the judge "instructs himself")
to disregard the previous convictions when determining
guilt or innocence.
REFERENCES
Friedland, M. L. Commentary. The Canadian Bar Review, 1969, 47. 656-662.
Kalvin, H. Jr., & Zeisel, H. The American Jury. New York: Little Brown
and Company, 1966.
Mischel, W. Personality and Assessment. New York: Wiley, 1968.
Rosenberg, S. & Olshan, K. Evaluative and descriptive aspects in personality
perception. Journal of Personality and Social Psychology, 1970, 16, 619-
626.
Teed, E. L. The effect of s. 12 of the Canada Evidence Act upon the
accused. 13 Crim. L.Q. (1971), pp. 70-8.