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CHAPTER 5: SPECIAL EXCLUSIONS

CHAPTER 5: SPECIAL EXCLUSIONS. P. JANICKE 2009. CHARACTER EVIDENCE USUALLY NOT ALLOWED. MEANING: EVIDENCE OF A 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 P. JANICKE 2009

  2. CHARACTER EVIDENCE USUALLY NOT ALLOWED • MEANING: EVIDENCE OF A 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. 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. AS A RESULT OF THESE UNCERTAINTIES -- • CHARACTER EVIDENCE IS NORMALLY INADMISSIBLE AT A TRIAL, EXCEPT TO IMPEACH WITNESS BY SHOWING A POOR VERACITY TRAIT • NARROW FURTHER EXCEPTIONS FOR CRIMINAL DEFENDANTS TO INVOKE • VIRTUALLY NO EXCEPTIONS IN CIVIL CASES Chap. 5 -- Special Exclusions

  6. EXAMPLES OF CHARACTER TRAITS (INADMISSIBLE) • ALWAYS DRIVING CAREFULLY • ALWAYS IGNORING MEDICAL ADVICE Chap. 5 -- Special Exclusions

  7. WHEN CHARACTER EV. IS OK IN CRIMINAL CASES R 404 : • DEFENDANT CAN INITIATE RE. HIS OWN CHARACTER • DEFENDANT CAN INITIATE RE. ALLEGED VICTIM’S CHARACTER • [EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR VERACITY TRAIT – LET’S PUT THIS ASIDE UNTIL CHAP. 8] Chap. 5 -- Special Exclusions

  8. CIVIL CASES – VERY RARE • PERMITTED BY EITHER SIDE WHERE CHARACTER IS AN ELEMENT : • ACTION TO REVIEW DENIAL OF A LAW LICENSE ON CHARACTER GROUNDS • ACTION TO REVIEW REFUSAL OF A NAVY COMMISSION ON CHARACTER GROUNDS Chap. 5 -- Special Exclusions

  9. CAVEAT: • CHARACTER IS ALMOST NEVER AN “ELEMENT” OF A CIVIL CASE • “ELEMENT” MEANS A POINT THAT IS ESSENTIAL TO THE CLAIM Chap. 5 -- Special Exclusions

  10. TEXAS RULES: A LITTLE MORE OPEN IN CIVIL CASES • IN A CIVIL CASE WHERE A DEFENDANT IS ACCUSED OF BAD CONDUCT (MORAL TURPITUDE): • THE ACCUSED PARTY CAN INTRODUCE RELEVANT GOOD CHARACTER EVIDENCE • IF DONE, THE ACCUSING PARTY CAN REBUT IT WITH RELEVANT BAD CHARACTER EVIDENCE • RARELY HAPPENS Chap. 5 -- Special Exclusions

  11. FOR THIS COURSE: • KNOW THE GENERAL RULE: • NO CHARACTER EVIDENCE ALLOWED AT ALL IN CIVIL CASES, EXCEPT DISHONESTY USED TO IMPEACH A WITNESS Chap. 5 -- Special Exclusions

  12. IN THE FEW CRIMINAL TRIALS WHERE CHARACTER TRAIT EVIDENCE IS OK: • D MUST OPEN THE DOOR • RULE 405 SPECIFIES THE ALLOWABLE METHODS OF USING IT: Chap. 5 -- Special Exclusions

  13. A REPUTATION WITNESS ON THE GENERAL TRAIT [NO SPECIFICS] – “HE’S THOUGHT TO BE VIOLENT” • AN OPINION WITNESS ON THE GENERAL TRAIT [NO SPECIFICS] – “I THINK HE’S VIOLENT” • ON CROSS, SPECIFIC INSTANCES OF THE COUNTER-TRAIT >>> Chap. 5 -- Special Exclusions

  14. CROSS-EXAM ON SPECIFIC INSTANCES TENDING TO NEGATE THE CHARACTER TRAIT • COULD BE – • CROSS-EXAM OF THE DEFENDANT WHO TESTIFIES TO HIS PEACABLE CHARACTER: “Q. DID YOU GET IN FISTFIGHTS IN HIGH SCHOOL?” [RARE; THEY DON’T TESTIFY] • CROSS-EXAM OF THE GOOD-CHARACTER WITNESS FOR D: “Q. DO YOU KNOW HE ACTED VIOLENTLY LAST NEW YEAR’S?” [GOOD FAITH TEST FOR ASKING] Chap. 5 -- Special Exclusions

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

  16. WHAT’S THE DIFFERENCE? • 404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S PROPENSITY IN GENERAL TERMS • 404(b) PROOF IS HIGHLY SPECIFIC Chap. 5 -- Special Exclusions

  17. EXAMPLE: • CHARGE: BANK ROBBERY • CULPRIT HAD ORANGE SKI MASK AND A BRASS-INLAID SHOTGUN IN LEFT HAND • D HAS (USUALLY) A GOOD CHARACTER • BUT: PRIOR TO THE OCCASION CHARGED, EV. SHOWS HE HAS ROBBED THREE OTHER BANKS WITH AN ORANGE SKI MASK ON AND A BRASS-INLAID SHOTGUN IN HIS LEFT HAND • PROSECUTOR’S CONTENTION: THIS PERSON PROBABLY DID THIS JOB [R404(b) PATTERN] Chap. 5 -- Special Exclusions

  18. EXAMPLE: D IS CHARGED WITH ELECTROCUTING WIFE IN BATHTUB • EVIDENCE: D’S TWO EX-WIVES WERE ELECTROCUTED IN BATHTUBS • EXAMPLE: D IS CHARGED WITH LISTING A NONEXISTENT MEDICAL-RESEARCH CHARITY FOR TAX DEDUCTION • EVIDENCE: D LISTED A NONEXISTENT MEDICAL-RESEARCH CHARITY FOR DEDUCTION IN THREE OF THE FOUR TAX YEARS PRIOR TO OFFENSE CHARGED Chap. 5 -- Special Exclusions

  19. HABIT EVIDENCE: A FORM OF HIGHLY SPECIFIC PROPENSITY EVIDENCE • PATTERN OF AUTOMATIC, UNREFLECTIVE CONDUCT • HIGHLY SPECIFIC AS TO DETAILS • IS ADMISSIBLE – RULE 406 Chap. 5 -- Special Exclusions

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

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

  22. 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

  23. RAPE SHIELD RULE • FOR MANY CENTURIES, CONSENT TO SEX WAS REGARDED AS A CHARACTER FLAW • THEREFORE, DEFENSE COULD INITIATE THE ISSUE OF THE ALLEGED VICTIM’S LOOSE MORAL “CHARACTER” – AND USUALLY DID Chap. 5 -- Special Exclusions

  24. THE RESULT WAS: 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

  25. VICTIM’S SEXUAL PROPENSITY [CHARACTER] NOW LIMITED TO: • (i) ACTS WITH THE DEFENDANT OR • (ii) NEAR-TERM ACTS WITH OTHERS, TO SHOW OTHERS ARE SOURCE OF SCRATCHES, BRUISES, ETC. • ACTS WITH OTHERS MUST BE WITHIN TIME FOR HEALING OF SCRATCHES AND BRUISES Chap. 5 -- Special Exclusions

  26. “SLUT” EVIDENCE IS NOT ALLOWED • NO OPINION • NO REPUTATION Chap. 5 -- Special Exclusions

  27. CIVIL CASES • PARA. (b)(2) of RULE 412 • PRIOR SEXUAL HISTORY IS OK IF OTHERWISE OK, SUBJECT TO PROBATIVENESS vs. HARM STANDARD • NO SLUT-REPUTATION EVIDENCE, JUST THE FACTS Chap. 5 -- Special Exclusions

  28. EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; CUTS AND BRUISES) • AN IN CAMERA HEARING IS REQUIRED IN ADVANCE Chap. 5 -- Special Exclusions

  29. “BAD GUY” RULES: 413-415 • SPECIFIC PRIOR MISCONDUCT BY D WITH OTHERS IS ALLOWED, ON DIRECT AND CROSS, IN • SEXUAL ASSAULT CASES • CHILD MOLESTATION CASES • NO DOOR-OPENING BY D IS NEEDED • TEXAS DOESN’T HAVE THESE RULES Chap. 5 -- Special Exclusions

  30. EXAMPLE • IN A PROSECUTION FOR SEXUAL ASSAULT ON DORIS ON JULY 1, 2008, ANY OTHER ACT OF SEXUAL ASSAULTBYD., ON ANYONE, AT ANY TIME,CAN BE PROVED BY WITNESSES OR OTHER AVAILABLE EVIDENCE • DOESN’T MATTER IF D. WAS EVER CHARGED OR CONVICTED IN THE OTHER CASES Chap. 5 -- Special Exclusions

  31. EXAMPLE: • CHILD MOLESTATION OF A 4-YEAR-OLD • PROS. CAN BRING IN EVIDENCE (E.G., WITNESSES) OF ANY OTHER MOLESTATIONS OF CHILDREN AT ANY TIME IN D’S LIFE Chap. 5 -- Special Exclusions

  32. OTHER THAN WITNESSES, WHAT OTHER EVIDENCE OF THE PRIOR CONDUCT COULD BE ALLOWED? • CONFESSION • CONVICTION • [NOT ARRESTS; CHARGES; POLICE REPORTS; INDICTMENTS; VERDICTS. THESE ARE ALL HEARSAY!!] Chap. 5 -- Special Exclusions

  33. RULE 415 • CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION • EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE Chap. 5 -- Special Exclusions

  34. REASONS FOR BAD GUY RULES • THE SOCIAL ILLS OF CHILD ABUSE AND RAPE ARE LARGE • RECIDIVISM IS HIGH • THEREFORE: WE SHOULD ALLOW DIRECT SPECIFIC TESTIMONY ON PRIOR INCIDENTS [UNLIKE THE USUAL RULE] Chap. 5 -- Special Exclusions

  35. BAD GUY RULES ARE CONTROVERSIAL, AND NOT APPLIED AS WRITTEN • NOTE THE UNUSUAL MANDATORY WORDING OF THE RULES: “IS ADMISSIBLE” • NORMALLY THE JUDGE HAS AVAILABLE SOME DISCRETION UNDER R 403 – TO AVOID UNFAIR PREJUDICE • DESPITE WORDING, COURTS HAVE IN MANY CASES EXERCISED DISCRETIONARY POWER TO EXCLUDE UNDER R 403 Chap. 5 -- Special Exclusions

  36. REMEDIAL MEASURES FOLLOWING AN INCIDENT • NOT ADMISSIBLE TO SHOW NEGLIGENCE [R. 407] • WE WANT TO ENCOURAGE REPAIRS Chap. 5 -- Special Exclusions

  37. 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 POSSIBLE.”) Chap. 5 -- Special Exclusions

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

  39. FAILED SETTLEMENT DISCUSSIONS – RULE 408 • INADMISSIBLE TO SHOW LIABILITY: • COMMENTS • PROPOSALS TO SETTLE • THEY CAN BE USED TO SHAPE DISCOVERY AND TRIAL TESTIMONY IF THE DISCUSSIONS FAIL Chap. 5 -- Special Exclusions

  40. COMMENTS MADE DURING FAILED SETTLEMENT CAN BE USED TO SHOW POINTS OTHER THAN LIABILITY: • BIAS OR PREJUDICE OF A TRIAL WITNESS (HE SAID “I’LL DO ANYTHING TO GET YOU!” OR “I HAVE ALWAYS DESPISED YOU!”) • NEGATIVING CONTENTION OF UNDUE DELAY – TO DEFEAT LACHES (SHE SAID: “WE’RE MAKING GOOD PROGRESS”) Chap. 5 -- Special Exclusions

  41. PROVING AN OBSTRUCTION CHARGE • EVEN A SUCCESSFUL SETTLEMENT AGREEMENT COULD BE ADMISSIBLE FOR THIS • E.G., SETTLEMENT AGREEMENT INVOLVING SHREDDING OF DISCOVERY DOCUMENTS, SO THAT THEY WOULD NOT BE FOUND BY GOV’T. • E.G., TESTIMONY: “HE SAID AT SETTLEMENT: ‘LET’S KEEP THIS ALL CONFIDENTIAL – WE DON’T WANT THE GOVT. CAUSING TROUBLE’” Chap. 5 -- Special Exclusions

  42. CRIMINAL PLEA BARGAINING:RULE 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

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

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

  45. NOTE • IF D LATER TALKS TO OTHERS ABOUT THE BARGAIN, THE TALK IS NOT PROTECTED • IF D LATER TESTIFIES, IN RELIANCE ON THE BARGAIN, THE TESTIMONY IS NOT PROTECTED Chap. 5 -- Special Exclusions

  46. HALF-OPEN DOOR CONCEPT APPLIES • IF D. TESTIFIES • TO ANOTHER PART OF WHAT WAS SAID IN PLEA BARGAIN MEETING, • OR CONTRA TO WHAT WAS SAID IN PLEA BARGAIN MEETING, • PROTECTION IS LOST FOR ALL OF IT Chap. 5 -- Special Exclusions

  47. IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION: • PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN MEETING AS THE TRUE STORY Chap. 5 -- Special Exclusions

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