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CHAPTER 5: SPECIAL EXCLUSIONS

CHAPTER 5: SPECIAL EXCLUSIONS. P. JANICKE 2011. 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 P. JANICKE 2011

  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. FOR THIS COURSE: • KNOW THE GENERAL RULES: • NO CHARACTER EVIDENCE ALLOWED AT ALL IN CIVIL CASES, EXCEPT DISHONESTY USED TO IMPEACH A WITNESS • IN CRIMINAL CASES, THE ACCUSED CAN INTRODUCE GOOD CHARACTER EVIDENCE Chap. 5 -- Special Exclusions

  6. 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

  7. WHAT’S THE DIFFERENCE? • 404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S GENERAL PROPENSITY • 404(b) PROOF MUST BE HIGHLY SPECIFIC Chap. 5 -- Special Exclusions

  8. EXAMPLE: • CHARGE: BANK ROBBERY BY D • WITNESS: CULPRIT HAD ORANGE SKI MASK AND A BRASS-INLAID SHOTGUN IN LEFT HAND • OTHER EV. SHOWING D HAS ROBBED THREE OTHER BANKS, WITH AN ORANGE SKI MASK ON, AND A BRASS-INLAID SHOTGUN IN HIS LEFT HAND - - WILL BE ALLOWED Chap. 5 -- Special Exclusions

  9. EXAMPLE: D IS CHARGED WITH ELECTROCUTING WIFE IN BATHTUB • EVIDENCE: D’S TWO EX-WIVES DIED BY ELECTROCUTION IN BATHTUBS • WILL BE ALLOWED • HIGHLY SPECIFIC Chap. 5 -- Special Exclusions

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

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

  12. 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

  13. 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

  14. KEEPING OUT EVEN HIGHLY SPECIFIC PROPENSITY EVIDENCE:THE 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 “BEHAVIOR” – AND USUALLY DID Chap. 5 -- Special Exclusions

  15. 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

  16. VICTIM’S SEXUAL CONDUCT ON OTHER OCCASIONS IS NOW LIMITED TO: • ACTS WITH THE DEFENDANT, or • 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, BRUISES, ETC. Chap. 5 -- Special Exclusions

  17. “SLUT” EVIDENCE IS NOT ALLOWED • NO OPINION TESTIMONY ON THIS • NO REPUTATION TESTIMONY ON THIS Chap. 5 -- Special Exclusions

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

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

  20. “BAD GUY” PROPENSITY RULES: 413-415 • PRIOR SEXUAL MISCONDUCT BY D WITH OTHERS IS ALLOWED, ON DIRECT AND CROSS, IN • SEXUAL ASSAULT CASES • CHILD MOLESTATION CASES • NO ARREST OR CONVICTION IS NEEDED • HIGHLY CONTROVERSIAL RULES • TEXAS DOESN’T HAVE THESE RULES Chap. 5 -- Special Exclusions

  21. EXAMPLE • 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 OR OTHER ADMISSIBLE EVIDENCE • DOESN’T MATTER IF D. WAS EVER CHARGED OR CONVICTED IN THE OTHER CASES Chap. 5 -- Special Exclusions

  22. 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 • USUALLY BY WITNESSES Chap. 5 -- Special Exclusions

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

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

  25. 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

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

  27. 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

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

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

  30. COMMENTS MADE DURING FAILED SETTLEMENT CAN BE USED TO SHOW POINTS OTHER THAN LIABILITY: • BIAS OR PREJUDICE OF A TRIAL WITNESS (TESTIMONY: “HE SAID AT SETTLEMENT MEETING ‘I’LL DO ANYTHING TO GET YOU!’ OR ‘I HAVE ALWAYS DESPISED YOU!’”) • NEGATIVING CONTENTION OF UNDUE DELAY – i.e., TO DEFEAT LACHES (TESTIMONY SHOWING GOOD PROGRESS OF SETTLEMENT TALKS) Chap. 5 -- Special Exclusions

  31. 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 ALL THIS FROM THE FEDS IF THEY COME AROUND – WE DON’T WANT TROUBLE’” Chap. 5 -- Special Exclusions

  32. 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

  33. 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; CAN’T BE USED IF PLEA IS WITHDRAWN • [NOTE: FOR A “NOT GUILTY” PLEA, THERE WILL BE NO ACCOMPANYING STATEMENTS] Chap. 5 -- Special Exclusions

  34. FAILED PLEA BARGAIN DISCUSSIONS RULE 410(4) • 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

  35. 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, THE TESTIMONY IS NOT PROTECTED, BUT THE PLEA DISCUSSION IS Chap. 5 -- Special Exclusions

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

  37. 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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