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CHAPTER 5: SPECIAL EXCLUSIONS

CHAPTER 5: SPECIAL EXCLUSIONS. Prof. JANICKE 2019. CHARACTER EVIDENCE USUALLY NOT ALLOWED. MEANING: EVIDENCE OF A GENERAL MORAL TRAIT OF A PERSON, OFFERED TO PROVE CONFORMING CONDUCT ON A PARTICULAR OCCASION SOMETIMES CALLED “PROPENSITY” EVIDENCE. EXAMPLES OF THE EXCLUSION :

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CHAPTER 5: SPECIAL EXCLUSIONS

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  1. CHAPTER 5:SPECIAL EXCLUSIONS Prof. JANICKE 2019

  2. CHARACTER EVIDENCE USUALLY NOT ALLOWED • MEANING: EVIDENCE OF A GENERAL MORAL TRAIT OF A PERSON, OFFERED TO PROVE CONFORMING CONDUCT ON A PARTICULAR OCCASION • SOMETIMES CALLED “PROPENSITY” EVIDENCE Chap. 5 -- Special Exclusions

  3. EXAMPLES OF THE EXCLUSION: • HE’S A DRUNK, SO HE WAS PROBABLY DRUNK ON THE OCCASION IN QUESTION • SHE’S A LIAR, SO SHE PROBABLY PERJURED AS CHARGED • HE’S A THIEF, SO HE PROBABLY STOLE THE MONEY AS NOW ACCUSED Chap. 5 -- Special Exclusions

  4. THE REASON CHARACTER EVIDENCE IS NORMALLY NOT ALLOWED • WE AREN’T REALLY SURE ABOUT: • HOW OFTEN PEOPLE ACT IN ACCORD WITH THEIR SUPPOSED CHARACTER TRAIT • HOW INDELIBLE AN EARLIER CHARACTER TRAIT IS, OVER TIME Chap. 5 -- Special Exclusions

  5. A FEW EXCEPTIONS, WHERE CHARACTER (PROPENSITY) EVIDENCE IS ALLOWED: • VERY RARELY IN CIVIL CASES – CHARACTER AS “AN ELEMENT” • OCCASIONALLY IN CIVIL AND CRIMINAL: IMPEACHING A WITNESS FOR POOR VERACITY TRAIT Chap. 5 -- Special Exclusions

  6. THERE ARE OTHER, MUCH MORE PREVALENT WAYS OF IMPEACHING WITNESSES • “PRIOR INCONSISTENT STATEMENT” IS THE MOST PREVALENT • CONVICTION OF CERTAIN CRIMES IS ALSO FREQUENTLY SEEN Chap. 5 -- Special Exclusions

  7. CRIMINAL CASES • PROSECUTION CANNOT OPEN THE DOOR OF BAD CHARACTER OF THE ACCUSED • DEFENSE CAN INTRODUCE GOOD CHARACTER OF ACCUSED, OR BAD CHARACTER OF VICTIM IF RELEVANT • BUT: THIS OPENS THE DOOR FOR PROSECUTION TO REBUT !! Chap. 5 -- Special Exclusions

  8. FORM OF CHARACTER EVIDENCE (WHERE IT IS ALLOWED PER THE FOREGOING) • ON DIRECT: BY OPINION OR REPUTATION ONLY • NO SPECIFIC INSTANCES ALLOWED • ON CROSS: SPECIFICS ARE ALLOWED Chap. 5 -- Special Exclusions

  9. SPECIAL NOTE ON RULE 404(b) • ALLOWS PROOF OF BAD DEEDS, BUT NOT AS A “CHARACTER” ATTACK --- • IS OFFERED ONLY TO SHOW CULPRIT’S IDENTITY (M.O. OF THIS D), OR PLAN, ETC. • CONDUCT MUST MATCH THE SPECIFIC CIRCUMSTANCES ON TRIAL Chap. 5 -- Special Exclusions

  10. DIFFERENCE BETW. CHARACTER EVIDENCE[USUALLY NOT ALLOWED] AND 404(b) EVIDENCE[ALLOWED] • CHARACTER EVIDENCE ADDRESSES THE DEFENDANT’S GENERAL PROPENSITY • 404(b) PROOF – SPECIFIC PATTERN EVIDENCE, TO PROVE IDENTITY, PLAN, INTENT, ETC. Chap. 5 -- Special Exclusions

  11. EXAMPLE1 OF PATTERN EVIDENCE: • CHARGE: BANK ROBBERY BY D • WITNESS: CULPRIT HAD ORANGE SKI MASK AND A BRASS-INLAID SHOTGUN IN LEFT HAND • OTHER EV. SHOWING THIS D HAS ROBBED THREE OTHER BANKS, ALWAYS WITH AN ORANGE SKI MASK ON, AND A BRASS-INLAID SHOTGUN IN HIS LEFT HAND • IS ALLOWED, IF OFFERED TO SHOW IDENTITY OF CULPRIT Chap. 5 -- Special Exclusions

  12. EXAMPLE2 OF USING PATTERN EVIDENCE: • D IS NOW CHARGED WITH ELECTROCUTING WIFE IN BATHTUB • EVIDENCE: D’S THREE PREVIOUS EX-WIVES ALL DIED BY ELECTROCUTION IN BATHTUBS • HIGHLY SPECIFIC; WILL BE ALLOWED, OFFERED TO SHOW NON-ACCIDENT OR THAT D WAS LIKELY THE KILLER Chap. 5 -- Special Exclusions

  13. EXAMPLES OF GENERAL CHARACTER EVIDENCE (DISALLOWED) • EXAMPLE1: D HAS A HISTORY OF THEFTS • EXAMPLE2: D HAS A HISTORY OF KILLING PEOPLE • THESE SHOW ONLY A GENERAL PROPENSITY, i.e., A CHARACTER TRAIT • NOT ALLOWED Chap. 5 -- Special Exclusions

  14. “HABIT” EVIDENCE IS ALLOWED • VERY SPECIFIC PATTERN EVIDENCE; SIMILAR TO CRIMINAL PATTERN EVIDENCE • A PATTERN OF AUTOMATIC, UNREFLECTIVE CONDUCT; USUALLY WITH NO MORAL JUDGMENT INVOLVED • SPECIFIC IN ITS DETAILS • IS ADMISSIBLE – RULE 406 Chap. 5 -- Special Exclusions

  15. EXAMPLES OF HABITS – • WALKING ON SHADY SIDE OF STREET • TYING LEFT SHOE FIRST • KEEPING UTILITY BILLS IN KITCHEN DRAWER • THESE PATTERNS ARE SPECIFIC AND HENCE ADMISSIBLE AS HABITS Chap. 5 -- Special Exclusions

  16. EXAMPLES SHOWING THE DISTINCTIONS: • “HE ALWAYS DRIVES CAREFULLY” [NOT ALLOWED; GENERAL CHARACTER] • “HE NEVER LEAVES KEYS IN THE CAR” [ALLOWED; SPECIFIC PATTERN] Chap. 5 -- Special Exclusions

  17. ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS [ALLOWED; SPECIFIC PATTERN] • ALWAYS BEING “CARELESS ABOUT SAFETY” [NOT ALLOWED; GENERAL CHARACTER] Chap. 5 -- Special Exclusions

  18. PROBLEMS/CASES • 5A • 5B • 5C • 5E • 5F • 5G • 5H Chap. 5 -- Special Exclusions

  19. KEEPING OUT EVEN HIGHLY SPECIFIC PROPENSITY EVIDENCE(R. 412, THE RAPE SHIELD RULE) • FOR MANY CENTURIES, • ANY PREVIOUS CONSENT TO SEX WITH ANYONE WAS REGARDED AS A CHARACTER FLAW THAT WAS ADMISSIBLE TO SHOW PROPENSITY FOR CONSENT AT THE TIME IN QUESTION Chap. 5 -- Special Exclusions

  20. THEREFORE, IN THE OLD DAYS: • DEFENSE COUNSEL WOULD ASK VICTIM ABOUT ALL INSTANCES OF CONSENSUAL SEX TO PROVE CONSENT: • SHE CONSENTED THEN WITH X, SO SHE PROBABLY CONSENTED NOW WITH Y • DEFENSE COUNSEL WOULD CALL OTHER WITNESSES TO TESTIFY TO THESE CONSENSUAL EVENTS Chap. 5 -- Special Exclusions

  21. RESULT: THE VICTIM WAS MORE ON TRIAL THAN THE DEFENDANT • TRIAL WAS A TERRIBLE ORDEAL FOR MANY WOMEN • RULE 412 (1978) WAS DESIGNED TO ALLEVIATE THESE PROBLEMS Chap. 5 -- Special Exclusions

  22. R. 412: VICTIM’S SEXUAL CONDUCT ON OTHER OCCASIONS IS NOW LIMITED TO: • ACTS WITH THIS DEFENDANT, or • NEAR-TERM ACTS WITH OTHERS TO SHOW OTHERS ARE SOURCE OF OBSERVED SCRATCHES, BRUISES, OR OTHER PHYSICAL CONDITIONS Chap. 5 -- Special Exclusions

  23. “SLUT” EVIDENCE IS NO LONGER ADMISSIBLE • NO OPINION TESTIMONY ALLOWED ON THIS SUBJECTR. 412 • NO REPUTATION TESTIMONY ALLOWED ON THIS SUBJECTR. 412 Chap. 5 -- Special Exclusions

  24. EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; or CUTS-AND-BRUISES): • IN CAMERA HEARING IS REQUIRED IN ADVANCE • A VERY IMPORTANT VICTIM SAFEGUARD R. 412(c) Chap. 5 -- Special Exclusions

  25. RAPE SHIELD IN CIVIL CASES • PARA. (b)(2) of RULE 412 • PRIOR SEXUAL HISTORY IS OK IFOTHERWISE ADMISSIBLE (NO HEARSAY), BUT SUBJECT TO JUDGE WEIGHING PROBATIVENESS vs. HARM TO VICTIM (PLAINTIFF) • AGAIN SLUT-REPUTATION EVIDENCE IS NOT ALLOWED; JUST THE FACTS Chap. 5 -- Special Exclusions

  26. PROBLEMS/CASES • 5J Chap. 5 -- Special Exclusions

  27. “BAD GUY” PROPENSITY RULES FOR SEXUAL ASSAULT or CHILD MOLESTATION CASES: R. 413-415 • A MAJOR DEPARTURE FROM THE USUAL ANTI-PROPENSITY RULE • INSTANCES OF SEXUAL ASSAULT ARE ALLOWED, EVEN IF NO PATTERN Chap. 5 -- Special Exclusions

  28. IN THESE KINDS OF CASES, ALL INSTANCES ARE IMMEDIATELY ADMISSIBLE FOR THE PROSECUTION • ANY OTHER SEXUAL MISCONDUCT BY D, WITH ANYONE, CAN BE ALLOWED • OR ANY OTHER CHILD MOLESTATION BY D, ANY TIME, ANYWHERE, CAN BE ALLOWED Chap. 5 -- Special Exclusions

  29. NO ARREST OR CONVICTION IS NEEDED • WITNESSES ARE THE USUAL WAY OF PROVING • BUT: COURT CAN STILL EXCLUDE, IF UNFAIR PREJUDICE IS FOUND (R. 403) Chap. 5 -- Special Exclusions

  30. REASONS GIVEN FOR “BAD GUY” RULES: • THE SOCIAL ILLS OF CHILD ABUSE AND RAPE ARE LARGE • RECIDIVISM FOR BOTH IS VERY HIGH • THEREFORE: WE SHOULD ALLOW TESTIMONY ABOUT PRIOR INCIDENTS [UNLIKE THE USUAL RULE], EVEN WHEN THERE IS NO SPECIFIC CONDUCT PATTERN Chap. 5 -- Special Exclusions

  31. TEXAS “BAD GUY” RULES ? • TEXAS DOES NOT HAVE THESE PARTICULAR RULES OF EVIDENCE • BUT TEXAS HAS A SIMILAR STATUTORY PROVISION RE. OFFENSES INVOLVING CHILDREN[SEE ART. 38.37, POSTED CLASS MATERIALS] Chap. 5 -- Special Exclusions

  32. FED. BAD GUY EXAMPLE 1: • IN A PROSECUTION FOR SEXUAL ASSAULT ON DORIS ON JULY 1, 2018, ANY OTHER ACT OF SEXUAL ASSAULTBYD., ON ANYONE, AT ANY TIME,WITH ANY M.O., CAN BE PROVED BY WITNESSES (VICTIMS) OR OTHER ADMISSIBLE EVIDENCE • DOESN’T MATTER IF D. WAS EVER CHARGED OR CONVICTED IN THE OTHER CASES >> Chap. 5 -- Special Exclusions

  33. SUBJECT TO POSSIBLE EXCLUSION FOR UNFAIR PREJUDICE (R. 403) Chap. 5 -- Special Exclusions

  34. FED. BAD GUY EXAMPLE 2: • CHILD MOLESTATION OF A 4-YEAR-OLD • PROS. CAN BRING IN EVIDENCE (E.G., VICTIM TESTIMONY) OF ANY OTHER MOLESTATIONS OF CHILDREN AT ANY TIME IN D’S LIFE • USUALLY BY WITNESSES • CAN BE BY CONVICTION RECORDS • SUBJECT TO EXCLUSION FOR UNFAIR PREJUDICE Chap. 5 -- Special Exclusions

  35. RULE 415 • IN A CIVIL TRIAL FOR SEXUAL ASSAULT OR CHILD MOLESTATION • SAME AS CRIMINAL RULE: EV. (USUALLY TESTIMONY) OF ANY PRIOR SEXUAL ASSAULT OR MOLESTATION IS ADMISSIBLE • SUBJECT TO EXCLUSION FOR UNFAIR PREJUDICE Chap. 5 -- Special Exclusions

  36. SUMMARY OF THE BAD GUY RULES • THEY ALLOW PROPENSITY (CHARACTER) EVIDENCE, WITHOUT REQUIRING SPECIFICITY • OUTSIDE OF THESE RULES, GENERAL PROPENSITY EVIDENCE IS NOT ALLOWED EXCEPT FOR DEFENSE COUNSEL KEYS Chap. 5 -- Special Exclusions

  37. 5L– I TOLD HIM Chap. 5 -- Special Exclusions

  38. PROBLEMS/CASES • 5M– DEATH ON THE HIGHWAY • 5O– WAS HE SERVED Chap. 5 -- Special Exclusions

  39. REMEDIAL MEASURES FOLLOWING AN INCIDENT[R. 407] • NOT ADMISSIBLE TO SHOW NEGLIGENCE, FAULT, ETC., AT TIME OF THE INCIDENT • REASON: WE WANT TO ENCOURAGE REPAIRS Chap. 5 -- Special Exclusions

  40. POST-INCIDENT EV. IS ADMISSIBLE TO SHOW THE FOLLOWING, IF CONTROVERTED: • OWNERSHIP OR CONTROL (“THAT’S NOT MY HOUSE.”) • FEASIBILITY OF BETTER CONDITION OR DESIGN (“I DID EVERYTHING PHYSICALLY POSSIBLE BEFORE THE INCIDENT.”) Chap. 5 -- Special Exclusions

  41. THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING OVER-BROAD CONTENTIONS ABOUT FEASIBILITY Chap. 5 -- Special Exclusions

  42. TUER Chap. 5 -- Special Exclusions

  43. FAILED SETTLEMENT DISCUSSIONS – RULE 408 • ARE INADMISSIBLE TO SHOW LIABILITY Chap. 5 -- Special Exclusions

  44. ALSO INADMISSIBLE: • COMMENTS MADE DURING SETTLEMENT TALKS • TERMS OF SETTLEMENT PROPOSALS • BUT: ANY STATEMENTS MADE DURING CAN BE USED BY COUNSEL TO SHAPE DISCOVERY AND TRIAL TESTIMONY IF THE DISCUSSIONS FAIL Chap. 5 -- Special Exclusions

  45. NOTE: WHAT IS NOT A “SETTLEMENT” TALK • TO COME UNDER PROTECTION OF R. 408: • THERE MUST FIRST BE A CLAIM ASSERTED: • NO FORMALITIES ARE NEEDED; COULD BE ORAL CLAIM 2. THE CLAIM MUST BE “DISPUTED” IN SOME WAY Chap. 5 -- Special Exclusions

  46. CAVEAT: • COMMENTS MADE DURING FAILED SETTLEMENT CAN BE ADMITTED TO SHOW POINTS OTHER THAN LIABILITY: • TO PROVE BIAS OR PREJUDICE OF A TRIAL WITNESS (BY EVIDENCE OF THINGS SHE SAID AT SETTLEMENT MEETING) • TO NEGATE A CONTENTION OF UNDUE DELAY – i.e., TO DEFEAT LACHES (TESTIMONY SHOWING SEEMING GOOD PROGRESS OF SETTLEMENT TALKS) >>> Chap. 5 -- Special Exclusions

  47. PROVING AN OBSTRUCTION CHARGE • EVEN A SUCCESSFUL SETTLEMENT AGREEMENT COULD BE ADMISSIBLE FOR THIS >> Chap. 5 -- Special Exclusions

  48. SHOWING OBSTRUCTION: • E.G., SETTLEMENT AGREEMENT PROVIDING FOR SHREDDING OF DISCOVERY DOCUMENTS, SO THAT THEY WOULD NOT BE FOUND BY GOV’T. OR OTHER LITIGANTS • E.G., TESTIMONY: “HE SAID AT SETTLEMENT: ‘LET’S KEEP ALL THIS FROM THE FEDS IF THEY COME AROUND – WE DON’T WANT TROUBLE’” Chap. 5 -- Special Exclusions

  49. CRIMINAL GUILTY PLEARULE 410 • A GUILTY PLEA THAT STICKS: • CAN BE USED IN LATER CASES (USUALLY CIVIL) • A NOLO PLEA THAT STICKS: • CANNOT BE USED IN LATER CASES (USUALLY CIVIL) Chap. 5 -- Special Exclusions

  50. WITHDRAWN PLEAS OF GUILTY OR NOLO: CANNOT BE USED IN LATER CASES • STATEMENTS (ADMISSIONS) DURING COURT’S “TAKING OF A GUILTY PLEA”: ADMISSIBILITY TRACKS ABOVE RULES FOR PLEAS; CANNOT BE USED IF PLEA IS WITHDRAWN • [NOTE: FOR A “NOT GUILTY” PLEA, THERE WILL BE NO ACCOMPANYING STATEMENTS] Chap. 5 -- Special Exclusions

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