Post-Offence Conduct

This page was last substantively updated or reviewed May 2021. (Rev. # 95479)

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General Principles

Post offence conduct (POC) (sometimes called "after-the-fact conduct") is a form of circumstantial evidence. It is admissible based on the usual rules of admission, including relevance and probity outweighing prejudicial effects. POC is primarily governed by relevance.

It is not a "categorical" form of evidence. And there is no per se rule that declares POC irrelevant to the culprit's state of mind.

Value of the POC will depend "on the nature of the evidence, the issues in the case, and the positions of the parties." Thus, the POC may be relevant to one issue but not relevant to another.

A jury instruction should not invite the requirement that post-offence conduct must be proven on a standard of beyond a reasonable doubt.

There is some special considerations when applying the general rules of evidence on POC as there are "reasoning risks" associated with it. There is a risk that it may be given disproportionate cogency to its true value and it risks inviting "imprecise reasoning" and inferences or "dubious conclusions."

Inference of guilt may be drawn from post-offence conduct using logic and common sense. When it is appropriate depends on the circumstances of the case.

The trier-of-fact may draw inferences from after-the-fact conduct relying on logic, common sense and experience." The inferences must be measured "according to the measuring stick of human experience."

Inferences of guilt from post-offence conduct must be "rooted in the evidence" and "must be the only reasonable inference" from the totality of the evidence.

When the trier-of-fact is considering the possible inference of guilt, they are not restricted to consider only the alternatives supported by the evidence but rather may consider all "reasonable alternative explanations" of the conduct.

Utility

Its relevance is assessed on a "case-by-case" basis and is "fact-driven."

The utility depends on what inferences can be fairly drawn from the circumstances in its entirety.

The trier of fact must use POC to consider "what a person logically would or might do in given circumstances."

It will generally be admissible in order to establish that "the accused acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person."

It can be used in some cases to distinguish between levels of culpability. This can include proof of whether a homicide was "planned and deliberate."

The POC is not to be used as evidence of the commission or its planning. It is evidence of what was done after an event, which can indirectly assist the trier of fact in answering the question of "what a person logically would or might do in given circumstances."

Guilty Conduct Only

POC is considered a “legal term of art” that refers “only [to] conduct which is probative of guilt.” This is more apparent from the previous term used of "consciousness of guilt."

Standard for Finding of Guilt

A trier of fact cannot convict using POC unless the test for circumstantial evidence is satisifed.

Appellate Review

The exercise of weighing the probative value against the prejudicial effect is a discretionary exercise and is afforded deference on appeal.

Probative Value of Evidence

The relevance of POC depends on the context of the conduct and the issues of the trial. There is "no prefabricated rule [that] stamps certain kinds of after-the-fact conduct as always or never relevant to a particular fact in issue".

The Judge must decide "on the basis of the evidence as a whole" if the conduct "related to the offence, or something else."

The evidence does not need to suggest only one reasonable inference to be admissible as POC. There only needs to be one relevant inference among many for it to be put to the trier-of-fact.

Conduct cannot be so ambiguous in context that it should be given no probative value at all.

Conduct can be probative to the actus reus but provide no value to the mens rea of the offence.

Examples of Post-Offence Conduct

POC is frequently seen as:

1. flight from the scene of the crime or the jurisdiction in which the crime was committed;
2. attempts to resist arrest;
3. failure to appear at trial; and
4. acts of concealment such as lying, assuming a false name, changing one's appearance, and hiding or disposing of evidence.

This inference is case-specific based on factors such as:

1. the nature of the conduct;
2. the facts sought to be inferred from the conduct;
3. the positions of the parties; and
4. the totality of the evidence.

False Alibi

Post-offence conduct that permits inference of guilt includes the findings that an alibi to be false.

False Statements

An exculpatory false statement made after being informed of the crime may be used as post-offence conduct consistent with guilt. There must however be independent evidence of fabrication before such a factual finding be made.

Valid Uses of Admissible Post-Offence Conduct

While POC may be probative to culpability, it should not be used to determine the level of that culpability. That is to say, POC should generally not be admissible in order to establish a state of mind of the accused where the actus reus is already admitted. It follows that it should generally not be used to determine the difference between murder and manslaughter. POC can be used to attack credibility.

An exculpatory statement that has been discredited can only be used to make to an adverse inference against the accused where there is independent evidence of fabrication. The key is to establish an intent to deceive to support an inference of consciousness of guilt.

The proof of fabrication can be based on the circumstances of the statement. This includes compelling inconsistencies or contradictory statements suggesting concoction.

Such statements should be treated in the same manner as alibis.

Proof of the accused's flight from a scene permits an inference that an offence occurred. It does not permit the inference, without more, that it was a specific offence charged.

It can be used to assess the validity of a claim of self-defence.

Multiples Offences

Where POC occurs once multiple offences committed it is permissible for the jury to determine the weight if any that is placed on the POC with respect to each offence. It is not necessary to give a "no probative value" instructions expected where there is a different explanation possible.

Jury Instructions

Given that POC evidence creates risks of the trier-of-fact being misled or make dubious conclusions or inferences, special cautionary instructions may be necessary.

Jury instructions must be cautious not to create circular reasoning whereby evidence is determined to be POC because he was conscious that he committed the offence. This risk can be mitigated through instructions that caution the jury not to infer guilt and to consider innocent explanations. A "Hall error" of circular reasoning, on its own, is not necessarily fatal.

Where innocence and guilt are both reasonable inferences then a "no probative value" instruction may be necessary.

Juries must be cautioned against "drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct."

Juries should only consider the value of the POC after considering all the of the other evidence as well.

Intent

POC can be used to determine intent in limited circumstances. Generally, it is not permitted as the inference of consciousness of guilt is "highly ambiguous and susceptible to ...error."

Where there is a risk of an improper inference of intent, the judge must give a "no probative value" instructions to the jury.

Evidence of flight cannot be used to establish intent for murder as "evidence of flight was equally consistent with the unlawful act offence of manslaughter."

Specific Offences

Attempted Suicide

An attempt to commit suicide has been given weight as POC suggesting guilt.

Evidence of Intent to Kill

POC constituting statements and acts of the accused can go to evidence of "planning and deliberation" in a homicide case.

It may be impermissible when being used to distinguish between manslaughter and murder. Where the evidence is relevant for other purposes a limiting instruction to the jury would be required. Failure to do so is a reversible error. However, it may be used in some limited capacity where the evidence relates to the concealment of the extent of violence and other evidence of a crime. When it can be used will depend on the exact circumstances.

POC that includes wrapping the victim in a sheet and leaving them to die in a bathtub as well as fleeing the scene and not calling for medical assistance.

See Also

• Intent and Knowledge
• Circumstantial Evidence