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CHAPTER 5: SPECIAL EXCLUSIONS

CHAPTER 5: SPECIAL EXCLUSIONS. Prof. JANICKE 2016. 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 2016

  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 • THE INDELIBILITY OF A CHARACTER TRAIT OVER TIME Chap. 5 -- Special Exclusions

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

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

  7. FORM OF CHARACTER EVIDENCE (WHERE IT IS ALLOWED AT ALL) • ON DIRECT: OPINION OR REPUTATION ONLY • ON CROSS (REBUTTING, OR SHOWING OPPOSITE CHARACTER TRAIT): SPECIFICS ARE ALLOWED Chap. 5 -- Special Exclusions

  8. SPECIAL NOTE ON RULE 404(b) • THIS RULE DOES NOT REALLY DEAL WITH PROVING BAD CHARACTER (PROPENSITY) • IT INVOLVES PROOF OF BAD DEEDS, BUT --- • IS OFFERED ONLY TO SHOW CULPRIT’S IDENTITY (M.O. OF THIS D), OR PLAN, ETC. • MUST MATCH THE SPECIFIC CIRCUMSTANCES ON TRIAL Chap. 5 -- Special Exclusions

  9. SUPPOSED DIFFERENCE BETW. CHARACTER EVIDENCE[USUALLY NOT ALLOWED] AND 404(b) EVIDENCE[ALLOWED] • CHARACTER EVIDENCE ADDRESSES THE DEFENDANT’S PROPENSITY, FOR THE PURPOSE OF DRAWING A DIRECT LINK TO THE CONDUCT IN QUESTION • 404(b) PROOF – ALSO INVOLVES PRIOR BAD ACTS, BUT THE PURPOSE OF OFFERING IS DIFFERENT: TO PROVE IDENTITY, PLAN, INTENT, ETC. Chap. 5 -- Special Exclusions

  10. 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 • ALLOWED, IF OFFERED TO SHOW IDENTITY OF CULPRIT Chap. 5 -- Special Exclusions

  11. EXAMPLE2 OF USING PATTERN EVIDENCE: • D IS NOW CHARGED WITH ELECTROCUTING WIFE IN BATHTUB • EVIDENCE: D’S TWO EX-WIVES DIED BY ELECTROCUTION IN BATHTUBS • WILL BE ALLOWED, IF OFFERED TO SHOW NON-ACCIDENT OR ID OF KILLER Chap. 5 -- Special Exclusions

  12. EXAMPLES OF 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., CHARACTER, OFFERED AS A DIRECT LINK TO GUILT Chap. 5 -- Special Exclusions

  13. “HABIT” EVIDENCE IS ALLOWED • VERY SPECIFIC PATTERN EVIDENCE • A PATTERN OF AUTOMATIC, UNREFLECTIVE CONDUCT • SPECIFIC IN ITS DETAILS • IS ADMISSIBLE – RULE 406 Chap. 5 -- Special Exclusions

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

  15. EXAMPLES SHOWING THE DISTINCTIONS: • ALWAYS DRIVING CAREFULLY [NOT ALLOWED] • NEVER LEAVING KEYS IN THE CAR [ALLOWED] • ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS [ALLOWED] • ALWAYS BEING CARELESS ABOUT SAFETY [NOT ALLOWED] Chap. 5 -- Special Exclusions

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

  17. PROBLEMS/CASES • 5N • 5P Chap. 5 -- Special Exclusions

  18. KEEPING OUT GENERAL, AND EVEN HIGHLY SPECIFIC, PROPENSITY EVIDENCE:THE RAPE SHIELD RULE • FOR MANY CENTURIES, ANY CONSENT TO SEX WAS REGARDED AS A CHARACTER FLAW • THEREFORE, DEFENSE COULD INITIATE THE ISSUE OF THE ALLEGED VICTIM’S LOOSE MORAL “BEHAVIOR” – AND USUALLY DID Chap. 5 -- Special Exclusions

  19. AND: IN THE OLD DAYS THERE WAS NO RESTRICTION AGAINST SPECIFIC INSTANCES OF CHARACTER • THE RESULT: THE VICTIM WAS MORE ON TRIAL THAN THE DEFENDANT • TRIAL WAS A TERRIBLE ORDEAL FOR MANY WOMEN • RULE 412 WAS DESIGNED TO ALLEVIATE THE PROBLEMS Chap. 5 -- Special Exclusions

  20. 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 SCRATCHES, BRUISES, DNA, ETC. • FOR SHORT-TERM INJURIES LIKE SCRATCHES OR BRUISES, ACTS WITH OTHERS MUST HAVE BEEN WITHIN TIME FOR HEALING Chap. 5 -- Special Exclusions

  21. THESE ARE THE MODERN RULES FOR SEX CASES • WHETHER THE EVIDENCE IS LABELED AS CHARACTER, 404(b) PATTERN, OR HABIT DOES NOT MATTER – THIS RULE GOVERNS Chap. 5 -- Special Exclusions

  22. GENERAL “SLUT” EVIDENCE IS NOT ALLOWED: • NO OPINION TESTIMONY ALLOWED ON THIS SUBJECT • NO REPUTATION TESTIMONY ALLOWED ON THIS SUBJECT • THE FEW ALLOWED INSTANCES MUST BE SPECIFIC EVENTS THAT FIT THE RULE Chap. 5 -- Special Exclusions

  23. RAPE SHIELD IN CIVIL CASES • PARA. (b)(2) of RULE 412 • PRIOR SEXUAL HISTORY IS OK IFOTHERWISE ADMISSIBLE, BUT SUBJECT TO JUDGE WEIGHING PROBATIVENESS vs. HARM TO PLAINTIFF-VICTIM • AGAIN, NO SLUT-REPUTATION EVIDENCE; JUST THE FACTS Chap. 5 -- Special Exclusions

  24. 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. PROBLEMS/CASES • 5K • 5M Chap. 5 -- Special Exclusions

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

  27. IN THESE KINDS OF CASES, EVERYTHING IS IMMEDIATELY ADMISSIBLE FOR THE PROSECUTION • ANY OTHER SEXUAL MISCONDUCT BY D, WITH ANYONE • OR ANY OTHER CHILD MOLESTATION BY D, ANY TIME, ANYWHERE • STILL NEED COMPETENT WITNESSES, RECORDS, ETC. Chap. 5 -- Special Exclusions

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

  29. REASONS FOR “BAD GUY” RULES: • THE SOCIAL ILLS OF CHILD ABUSE AND RAPE ARE LARGE • RECIDIVISM 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

  30. 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

  31. FED. BAD GUY EXAMPLE 1: • IN A PROSECUTION FOR SEXUAL ASSAULT ON DORIS ON JULY 1, 2008, ANY OTHER ACT OF SEXUAL ASSAULTBYD., ON ANYONE, AT ANY TIME,WITH ANY M.O., CAN BE SHOWN 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

  32. 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 Chap. 5 -- Special Exclusions

  33. RULE 415 • IN A CIVIL TRIAL FOR SEXUAL ASSAULT OR CHILD MOLESTATION • EV. (USUALLY TESTIMONY) OF ANY PRIOR ASSAULT OR MOLESTATION IS LIKEWISE ADMISSIBLE • NO SPECIFIC PATTERN NEEDED • THIS OVERRIDES THE USUAL NO-CHARACTER-EVIDENCE RULE Chap. 5 -- Special Exclusions

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

  35. IS ADMISSIBLE TO SHOW THE FOLLOWING, IF THEY ARE 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

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

  37. FAILED SETTLEMENT DISCUSSIONS – RULE 408 • INADMISSIBLE TO SHOW LIABILITY: • COMMENTS IN SETTLEMENT TALKS • TERMS OF SETTLEMENT PROPOSALS • THESE STATEMENTS CAN BE USED BY COUNSEL TO SHAPE DISCOVERY AND TRIAL TESTIMONY IF THE DISCUSSIONS FAIL Chap. 5 -- Special Exclusions

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

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

  40. 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

  41. 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

  42. 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

  43. FAILED PLEA BARGAIN DISCUSSIONS RULE 410(4) • REMARKS OF D. ARE PROTECTED: • ONLY IF HE IS SPEAKING TO A PROSECUTING ATTORNEY, AND • ONLY IF THE TOPIC IS PLEA BARGAINING • N.B.: TALKS WITH ARRESTING OFFICERS DO NOT QUALIFY! Chap. 5 -- Special Exclusions

  44. ONLY WHAT WAS SAID IN THE ROOM IS PROTECTED • IF D LATER TALKS TO OTHERS ABOUT THE BARGAIN, THAT TALK IS NOT PROTECTED • IF D LATER TESTIFIES IN RELIANCE ON THE BARGAIN, THAT TESTIMONY IS NOT PROTECTED, BUT THE PLEA DISCUSSION IS Chap. 5 -- Special Exclusions

  45. HALF-OPEN DOOR CONCEPT APPLIES HERE: • IF D. TESTIFIES IN COURT • TO PART OF WHAT HE SAID IN PLEA-BARGAIN MEETING, • OTHER PARTS MAY NEED TO BE REVEALED, IF FAIRNESS REQUIRES R. 410(b)(2) Chap. 5 -- Special Exclusions

  46. PROBLEMS/CASES • Tuer • 5Q • 5S • 5T Chap. 5 -- Special Exclusions

  47. OFFER TO PAY INJURED PERSON’S MEDICAL EXPENSES • IS NOT ADMISSIBLE TO SHOW LIABILITY OR AMOUNT • THIS EXCLUSION DOES NOT REQUIRE THAT A PRIOR CLAIM HAS BEEN MADE Chap. 5 -- Special Exclusions

  48. INSURANCE COVERAGE • IS NOT ADMISSIBLE TO SHOW LIABILITY OR AMOUNT • IS OFTEN ADMISSIBLE FOR OTHER PURPOSES, e.g.: • SHOWING OWNERSHIP OF A VEHICLE, APARTMENT BUILDING, ETC. • ACTION TO RECOVER ON A POLICY Chap. 5 -- Special Exclusions

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