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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 !! 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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. 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

“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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

EXAMPLES SHOWING THE DISTINCTIONS: “HE ALWAYS DRIVES CAREFULLY” [NOT ALLOWED; GENERAL CHARACTER] “HE NEVER LEAVES KEYS IN THE CAR” [ALLOWED; SPECIFIC PATTERN] 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS [ALLOWED; SPECIFIC PATTERN] ALWAYS BEING “CARELESS ABOUT SAFETY” [NOT ALLOWED; GENERAL CHARACTER] 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions PROBLEMS/CASES 5A 5B 5C 5E 5F 5G 5H 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

“SLUT” EVIDENCE IS NO LONGER ADMISSIBLE NO OPINION TESTIMONY ALLOWED ON THIS SUBJECT R. 412 NO REPUTATION TESTIMONY ALLOWED ON THIS SUBJECT R. 412 2019 Chap. 5 -- Special Exclusions

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) 2019 Chap. 5 -- Special Exclusions

RAPE SHIELD IN CIVIL CASES PARA. (b)(2) of RULE 412 PRIOR SEXUAL HISTORY IS OK IF OTHERWISE ADMISSIBLE (NO HEARSAY), BUT SUBJECT TO JUDGE WEIGHING PROBATIVENESS vs. HARM TO VICTIM (PLAINTIFF) AGAIN SLUT-REPUTATION EVIDENCE IS NOT ALLOWED; JUST THE FACTS 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions PROBLEMS/CASES 5J 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions “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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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) 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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] 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions FED. BAD GUY EXAMPLE 1: IN A PROSECUTION FOR SEXUAL ASSAULT ON DORIS ON JULY 1, 2018, ANY OTHER ACT OF SEXUAL ASSAULT BY D., 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 >> 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions SUBJECT TO POSSIBLE EXCLUSION FOR UNFAIR PREJUDICE (R. 403) 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 5L – I TOLD HIM 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions PROBLEMS/CASES 5M – DEATH ON THE HIGHWAY 5O – WAS HE SERVED 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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.”) 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING OVER-BROAD CONTENTIONS ABOUT FEASIBILITY 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions TUER 2019 Chap. 5 -- Special Exclusions

FAILED SETTLEMENT DISCUSSIONS – RULE 408 ARE INADMISSIBLE TO SHOW LIABILITY 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions

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 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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) >>> 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions PROVING AN OBSTRUCTION CHARGE EVEN A SUCCESSFUL SETTLEMENT AGREEMENT COULD BE ADMISSIBLE FOR THIS >> 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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’” 2019 Chap. 5 -- Special Exclusions

CRIMINAL GUILTY PLEA 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) 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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] 2019 Chap. 5 -- Special Exclusions

FAILED PLEA BARGAIN DISCUSSIONS RULE 410(4) REMARKS OF D. ARE INADMISSIBLE: 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, AND ARE ADMISSIBLE 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions NOTE: IF THE PLEA BARGAIN IS SUCCESSFUL (i.e., PLEA OF GUILTY) NONE OF THESE ISSUES COME UP THE DISCUSSIONS ARE ADMISSIBLE (SEE THE “IF” LANGUAGE OF PARA. (a)(4) OF RULE 410) 2019 Chap. 5 -- Special Exclusions

ONLY WHAT WAS SAID IN THE ROOM IS PROTECTED IF D LATER TALKS TO OTHERS ABOUT THE PLEA BARGAIN, OR ABOUT THE FACTS, THAT TALK IS NOT PROTECTED IF D LATER TESTIFIES (GRAND JURY) IN RELIANCE ON THE PLEA BARGAIN, BUT PLEADS “NOT GUILTY,” THE TESTIMONY IS NOT PROTECTED, BUT THE PLEA DISCUSSION IS 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions CAVEAT: A HALF-OPEN DOOR CONCEPT APPLIES HERE: IF D. PLEADS “NOT GUILTY” AND 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) 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions PROBLEMS/CASES 5P – TWO POTATO 5R – I USED 5S – WE CAN TALK 2019 Chap. 5 -- Special Exclusions

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 THIS ALONE IS NOT A “SETTLEMENT OFFER” 2019 Chap. 5 -- Special Exclusions

Chap. 5 -- Special Exclusions 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 2019 Chap. 5 -- Special Exclusions