1. CHAPTER 5: SPECIAL EXCLUSIONS P. JANICKE 2008

2. Chap. 5 -- Special Exclusions2 CHARACTER EVIDENCE MEANING: EVIDENCE OF A PERSON’S MORAL TRAIT, OFFERED TO PROVE CONFORMING CONDUCT ON A PARTICULAR OCCASION SOMETIMES CALLED “PROPENSITY” EXAMPLES: –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

3. 2008Chap. 5 -- Special Exclusions3 “CHARACTER” EVIDENCE BASICALLY SAYS: –HE USUALLY ACTS THIS WAY –SO HE MUST HAVE ACTED THIS WAY ON THE OCCASION IN QUESTION IN BOTH CIVIL AND CRIMINAL CASES WE NORMALLY EXCLUDE CHARACTER EVIDENCE, BECAUSE IT IS THOUGHT UNFAIR

4. 2008Chap. 5 -- Special Exclusions4 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

5. 2008Chap. 5 -- Special Exclusions5 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 ADD’L. EXCEPTIONS FOR CRIMINAL DEFENDANTS TO INVOKE –VIRTUALLY NO ADD’L EXCEPTIONS IN CIVIL CASES

6. 2008Chap. 5 -- Special Exclusions6 EXAMPLES OF CHARACTER TRAITS (INADMISSIBLE) ALWAYS DRIVING CAREFULLY ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS ALWAYS CHECKING ON THE BABY ALWAYS IGNORING MEDICAL ADVICE ALWAYS FIRING A GUN RANDOMLY

7. 2008Chap. 5 -- Special Exclusions7 THREE TIMES CHARACTER EV. IS OK IN CRIMINAL CASES R 404 : 1.DEFENDANT CAN INITIATE RE. HIS OWN CHARACTER 2.DEFENDANT CAN INITIATE RE. VICTIM’S CHARACTER -- IN A HOMICIDE CASE, D CAN INITIATE BY EVENT- IN-ISSUE (NON-CHARACTER) EVIDENCE AS WELL 3.EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR VERACITY TRAIT

8. 2008Chap. 5 -- Special Exclusions8 CIVIL CASES – VERY RARE IMPEACHMENT OF WITNESS BY POOR VERACITY TRAIT (SELDOM DONE) ALSO 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

9. 2008Chap. 5 -- Special Exclusions9 IN THE FEW CASES WHERE CHARACTER TRAIT EVIDENCE IS ALLOWED : WHERE CHARACTER EV. IS ALLOWED, RULE 405 SPECIFIES METHODS OF USING IT:

10. 2008Chap. 5 -- Special Exclusions10 1.A REPUTATION WITNESS [NO SPECIFICS] – “HE’S THOUGHT TO BE VIOLENT” 2.AN OPINION WITNESS [NO SPECIFICS] – “I THINK HE’S VIOLENT” 3.ON CROSS, SPECIFIC INSTANCES OF THE TRAIT >>>

11. 2008Chap. 5 -- Special Exclusions11 CROSS-EXAM ON SPECIFIC INSTANCES OF CHARACTER TRAIT CROSS-EXAM OF THE TARGET WITNESS: “Q. DID YOU GET IN FISTFIGHTS IN HIGH SCHOOL?” CROSS-EXAM OF THE GOOD- CHARACTER WITNESS FOR D: “Q. DO YOU KNOW HE WAS VIOLENT LAST NEW YEAR’S?”

12. 2008Chap. 5 -- Special Exclusions12 SPECIAL NOTE ON RULE 404(b) THIS RULE DOES NOT DEAL WITH PROVING CHARACTER (PROPENSITY) IT INVOLVES PROOF OF BAD DEEDS, BUT --- IT IS OFFERED NOT TO SHOW PROPENSITY, BUT TO SHOW M.O., OR CULPRIT IDENTITY, OR PLAN, ETC. –A SUBTLE DIFFERENCE ONLY

13. 2008Chap. 5 -- Special Exclusions13 WHAT’S THE DIFFERENCE? 404(b) PROOF CAN ASSUME THE DEFENDANT HAS A STERLING CHARACTER IN GENERAL

14. 2008Chap. 5 -- Special Exclusions14 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, HE HAS ROBBED THREE OTHER BANKS WITH AN ORANGE SKI MASK ON AND A BRASS-INLAID SHOTGUN IN HIS LEFT HAND THEREFORE, THIS PERSON NORMALLY OF GOOD CHARACTER PROBABLY DID THIS JOB [R404(b) PATTERN]

15. 2008Chap. 5 -- Special Exclusions15 404(b) ADMISSIBILITY REQUIRES A PATTERN HOW MANY INSTANCES IS FOR THE JUDGE THE MORE UNIQUE THE M.O., THE FEWER INSTANCES NEEDED FOR ADMISSIBILITY EXAMPLE: D’S TWO EX-WIVES WERE ELECTROCUTED IN BATHTUBS EXAMPLE: D LISTED A NONEXISTENT CHARITY FOR DEDUCTION IN THREE OF THE FOUR TAX YEARS PRIOR TO OFFENSE CHARGED

16. 2008Chap. 5 -- Special Exclusions16 HABIT EVIDENCE (ANOTHER FORM OF PROPENSITY EVIDENCE) DIFFERS FROM CHARACTER EV. IN THAT –NO MORAL JUDGMENT IS INVOLVED, or –HABIT NEEDS MORE SPECIFIC AND NUMEROUS INSTANCES EXAMPLES – –WALKING ON SHADY SIDE OF STREET –TYING LEFT SHOE FIRST –KEEPING BILLS IN KITCHEN DRAWER

17. 2008Chap. 5 -- Special Exclusions17 HABIT EVIDENCE IS THOUGHT TO BE MORE RELIABLE AS AN INDICATOR OF CONDUCT ON A PARTICULAR OCCASION IS REGARDED AS FAIR IS THEREFORE ADMISSIBLE TO PROVE CONFORMING CONDUCT –180° FROM CHARACTER EV. RULE!

18. 2008Chap. 5 -- Special Exclusions18 DIFFICULT DIFFERENTIATIONS DISTINCTION BETWEEN CHARACTER EV. (INADMISSIBLE) AND HABIT EV. (ADMISSIBLE): –WHETHER NUMBER AND SPECIFICITY OF INSTANCES ARE ENOUGH IS HARD TO DETERMINE –ABSENCE OF MORAL JUDGMENT MAY BE A BETTER GUIDE

19. 2008Chap. 5 -- Special Exclusions19 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

20. 2008Chap. 5 -- Special Exclusions20 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

21. 2008Chap. 5 -- Special Exclusions21 VICTIM’S PRIOR SEXUAL HISTORY NOW LIMITED TO ACTS WITH THE DEFENDANT AND NEAR-TERM ACTS WITH OTHERS NEAR-TERM ACTS ARE TO SHOW OTHERS ARE SOURCE OF SCRATCHES, BRUISES, ETC. ACTS MUST BE WITHIN TIME FOR HEALING OF SCRATCHES AND BRUISES

22. 2008Chap. 5 -- Special Exclusions22 CIVIL CASES Part (b)(2) of RULE 412 PRIOR SEXUAL HISTORY IS BROADLY ALLOWED, SUBJECT TO PROBATIVENESS STANDARD NO REPUTATION EVIDENCE, JUST THE FACTS

23. 2008Chap. 5 -- Special Exclusions23 EXAMPLES OF CIVIL CASES WHERE R 412(b) APPLIES SUIT BY VICTIM FOR ASSAULT WRONGFUL DEATH ACTION BY VICTIM’S ESTATE

24. 2008Chap. 5 -- Special Exclusions24 PROCEDURE IN CIVIL AND CRIMINAL CASES Part (c) of RULE 412 –PRIOR NOTICE REQUIRED –IN CAMERA PRE-HEARING REQUIRED PROBABLY AT LEAST AS IMPORTANT AS THE SUBSTANTIVE CHANGES TO THE LAW

25. 2008Chap. 5 -- Special Exclusions25 TEXAS VERSION NO CIVIL RAPE SHIELD RULE IN CRIMINAL CASES, SIMILAR TO FEDERAL RULE : –NO REPUTATION OR OPINIONS ALLOWED –SPECIFIC INSTANCES HIGHLY LIMITED –EXPLAINING SCRATCHES AND BRUISES, or –ACTS WITH DEFENDANT, or –A FEW OTHER (RARE) INSTANCES

26. 2008Chap. 5 -- Special Exclusions26 TEXAS PROCEDURE SIMILAR TO FEDERAL RULE –NOTICE –IN CAMERA HEARING

27. 2008Chap. 5 -- Special Exclusions27 TEXAS Part (e): PROMISCUOUS CHILDREN ? IN CASES OF SEXUAL ASSAULT, INDECENCY WITH A MINOR, ETC. TEENAGE (14-16) GIRLS’ PROMISCUITY CAN BE PROVED IN THE OLD WAY

28. 2008Chap. 5 -- Special Exclusions28 “BAD GUY” RULES: 413-415 CAN BE ARGUED AS A DANGEROUS EXTENSION OF THE PATTERN EVIDENCE RULE [R. 404(b)] TEXAS DOESN’T HAVE THESE RULES

29. 2008Chap. 5 -- Special Exclusions29 RULE 413 IN A PROSECUTION FOR SEXUAL ASSAULT ON Ms. V THAT OCCURRED ON JULY 1, 2002, ANY OTHER ACT OF SEXUAL ASSAULT BY D., ON ANYONE, AT ANY TIME, CAN BE PROVED BY WITNESSES OR OTHER ADMISSIBLE EVIDENCE DOESN’T MATTER IF D. WAS EVER CHARGED, CONVICTED, OR EVEN ACQUITTED IN THE OTHER CASES

30. 2008Chap. 5 -- Special Exclusions30 EXAMPLE: RAPE TRIAL PROS. CAN BRING IN EVIDENCE (E.G., WITNESSES) OF CONSENSUAL SEX WITH A 16- YEAR-OLD, NINE YEARS EARLIER; IT IS A SPECIES OF “SEXUAL ASSAULT”

31. 2008Chap. 5 -- Special Exclusions31 WHAT OTHER EVIDENCE OF THE PRIOR CONDUCT WOULD BE ALLOWED? –CONFESSION –CONVICTION NOT ARRESTS; CHARGES; INDICTMENTS; VERDICTS. [THESEARE ALL HEARSAY!!]

32. 2008Chap. 5 -- Special Exclusions32 RULE 414 IN A TRIAL FOR CHILD MOLESTATION, WITNESSES TO ANY OTHER CHILD MOLESTATIONS BY D. CAN TESTIFY DOESN’T MATTER WHAT THE GENDER WAS DOESN’T MATTER IF D. WAS ACCUSED OR TRIED

33. 2008Chap. 5 -- Special Exclusions33 RULE 415 CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE

34. 2008Chap. 5 -- Special Exclusions34 RE. THE NATURE OF THE EVIDENCE, SAME RESTRICTIONS AS BEFORE: –ADMISSIONS OK –WITNESSES OK –ARRESTS, INDICTMENTS, VERDICTS, ETC.: INADMISSIBLE HEARSAY

35. 2008Chap. 5 -- Special Exclusions35 REASONS FOR BAD GUY RULES THE SOCIAL ILLS OF CHILD ABUSE ARE LARGE YET, MEANINGFUL DEFENSE AGAINST MULTIPLE ACCUSERS IS ALL BUT IMPOSSIBLE PROPONENTS: D. BROUGHT ON HIS INDEFENSIBLE SITUATION

36. 2008Chap. 5 -- Special Exclusions36 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 PROTECTION UNDER R 403 – UNFAIR PREJUDICE DESPITE WORDING, COURTS HAVE IN MANY CASES EXERCISED DISCRETIONARY POWER TO EXCLUDE UNDER R 403

37. 2008Chap. 5 -- Special Exclusions37 REMEDIAL MEASURES FOLLOWING AN INCIDENT NOT ADMISSIBLE TO SHOW NEGLIGENCE [R. 407] WE WANT TO ENCOURAGE REPAIRS

38. 2008Chap. 5 -- Special Exclusions38 IS ADMISSIBLE TO SHOW THE FOLLOWING, IF THEY ARE CONTROVERTED: –OWNERSHIP OR CONTROL (“IT’S NOT MY HOUSE”) –FEASIBILITY OF BETTER CONDITION OR DESIGN (“I DID EVERYTHING POSSIBLE”)

39. 2008Chap. 5 -- Special Exclusions39 THUS, REPAIRER HOLDS THE KEY, OPENS THE DOOR

40. 2008Chap. 5 -- Special Exclusions40 FAILED SETTLEMENT DISCUSSIONS – RULE 408 COMMENTS OR PROPOSALS ARE INADMISSIBLE TO SHOW LIABILITY THEY CAN BE USED TO GUIDE DISCOVERY

41. 2008Chap. 5 -- Special Exclusions41 SETTLEMENT COMMENTS CAN ALSO BE USED TO SHOW POINTS OTHER THAN LIABILITY: 1.BIAS OR PREJUDICE (“I’LL DO ANYTHING TO GET YOU!”“I HAVE ALWAYS DESPISED YOU!”) 2.NEGATIVING CONTENTION OF UNDUE DELAY – TO DEFEAT LACHES (“HE SAID AT SETTLEMENT: ‘WE’RE MAKING GOOD PROGRESS’”)

42. 2008Chap. 5 -- Special Exclusions42 3.PROVING AN OBSTRUCTION CHARGE E.G., SETTLEMENT TERMS MAY HAVE INCLUDED SHREDDING OF DISCOVERY DOCUMENTS, SO THAT THEY WOULD NOT BE FOUND BY GOV’T; THE SETTLEMENT AGREEMENT IS ADMISSIBLE E.G., “HE SAID AT SETTLEMENT: ‘LET’S KEEP THIS ALL CONFIDENTIAL – WE DON’T WANT THE GOVT. CAUSING TROUBLE’”

43. 2008Chap. 5 -- Special Exclusions43 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)

44. 2008Chap. 5 -- Special Exclusions44 WITHDRAWN PLEAS OF GUILTY OR NOLO: CANNOT BE USED IN LATER CASES ADMISSIONS DURING TAKING OF A PLEA: ADMISSIBILITY TRACKS ABOVE RULES FOR PLEAS [NOTE: FOR “NOT GUILTY” PLEA, THERE WILL BE NO ACCOMPANYING STATEMENTS]

45. 2008Chap. 5 -- Special Exclusions45 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!

46. 2008Chap. 5 -- Special Exclusions46 HALF-OPEN DOOR CONCEPT APPLIES –IF D. TESTIFIES TO ANOTHER PART OF WHAT WAS SAID, OR CONTRA TO WHAT WAS SAID, –CURRENT PROTECTION IS LOST IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION: –PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN AS THE TRUE STORY