CHAPTER 5: SPECIAL EXCLUSIONS P. JANICKE 2006

Chap 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 –SHE’S A LIAR –HE’S A THIEF

2006Chap 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

2006Chap 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

2006Chap Special Exclusions5 AS A RESULT OF THESE UNCERTAINTIES -- CHARACTER EVIDENCE IS NORMALLY INADMISSIBLE AT A TRIAL, EXCEPT TO IMPEACH WITNESS BY SHOWING POOR VERACITY TRAIT –NARROW ADD’L. EXCEPTIONS FOR CRIMINAL DEFENDANTS TO INVOKE –VIRTUALLY NO ADD’L EXCEPTIONS IN CIVIL CASES

2006Chap Special Exclusions6 HABIT EVIDENCE DIFFERS FROM CHARACTER EV. IN THAT NO MORAL JUDGMENT IS INVOLVED EXAMPLES – –WALKING ON SHADY SIDE OF STREET –TYING LEFT SHOE FIRST –KEEPING BILLS IN KITCHEN DRAWER

2006Chap Special Exclusions7 HABIT EVIDENCE IS THOUGHT TO BE MORE RELIABLE AS AN INDICATOR OF CONDUCT ON A PARTICULAR OCCASION IS THEREFORE ADMISSIBLE TO PROVE CONFORMING CONDUCT –HENCE IS UNLIKE CHARACTER TRAIT EVIDENCE (NORMALLY INADMISSIBLE TO PROVE CONFORMING CONDUCT)

2006Chap Special Exclusions8 DIFFICULT DIFFERENTIATIONS DISTINCTION BETWEEN CHARACTER EV. (INADMISSIBLE) AND HABIT EV. (ADMISSIBLE): –WHETHER MORAL JUDGMENT IS INVOLVED

2006Chap Special Exclusions9 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

2006Chap Special Exclusions10 SOME DIFFICULT DIFFERENTIATIONS ALWAYS MOWING THE LAWN WHEN THE GRASS GETS LONG? ALWAYS WASHING HANDS BEFORE EATING? NEVER WEARING CLEAN CLOTHES? NEVER SAYING “NO” TO SEX?

2006Chap Special Exclusions11 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 NON- CHARACTER EVIDENCE AS WELL 3.EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR VERACITY TRAIT

2006Chap Special Exclusions12 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

2006Chap Special Exclusions13 IN THE FEW CASES WHERE CHARACTER TRAIT EVIDENCE IS ALLOWED : RULE 405 SPECIFIES METHODS OF ATTACK: 1.A GENERAL REPUTATION WITNESS 2.AN GENERAL OPINION WITNESS 3.ON CROSS, SPECIFIC INSTANCES OF THE TRAIT

2006Chap Special Exclusions14 WHEN WOULD CROSS ON SPECIFIC INSTANCES ARISE ? CROSS-EXAM OF THE TARGET WITNESS: DID YOU EVER STEAL? CROSS-EXAM OF THE GOOD- CHARACTER WITNESS: DO YOU KNOW HE STOLE?

2006Chap Special Exclusions15 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.

2006Chap Special Exclusions16 WHAT’S THE DIFFERENCE? 404(b) PROOF CAN ASSUME THE DEFENDANT HAS A STERLING CHARACTER IN GENERAL

2006Chap Special Exclusions17 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]

2006Chap Special Exclusions18 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

2006Chap 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

2006Chap 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

2006Chap 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

2006Chap 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

2006Chap Special Exclusions23 EXAMPLES OF CIVIL CASES WHERE 4412(b) APPLIES SUIT BY VICTIM FOR ASSAULT WRONGFUL DEATH ACTION BY VICTIM’S ESTATE

2006Chap Special Exclusions24 PROCEDURE IN CIVIL AND CRIMINAL CASES Part (c) of RULE 412 –PRIOR NOTICE REQUIRED –IN CAMERA PRE-HEARING REQUIRED PROBABLY AS IMPORTANT AS THE SUBSTANTIVE CHANGES TO THE LAW

2006Chap 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

2006Chap Special Exclusions26 TEXAS PROCEDURE SIMILAR TO FEDERAL RULE –NOTICE –IN CAMERA HEARING

2006Chap 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

2006Chap Special Exclusions28 “BAD GUY” RULES: CAN BE ARGUED AS A DANGEROUS EXTENSION OF THE PATTERN EVIDENCE RULE [R. 404(b)] TEXAS DOESN’T HAVE THESE RULES

2006Chap 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

2006Chap 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”

2006Chap Special Exclusions31 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

2006Chap Special Exclusions32 RULE 415 CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE

2006Chap Special Exclusions33 BAD GUY RULES ARE CONTROVERSIAL NOTE THE MANDATORY WORDING OF THE RULES: “IS ADMISSIBLE” NORMALLY THE JUDGE HAS AVAILABLE SOME PROTECTION UNDER R 403 – UNFAIR PREJUDICE COURTS HAVE IN MANY CASES EXERCISED DISCRETIONARY POWER TO EXCLUDE UNDER R 403

2006Chap Special Exclusions34 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

2006Chap Special Exclusions35 REMEDIAL MEASURES FOLLOWING AN INCIDENT NOT ADMISSIBLE TO SHOW NEGLIGENCE [R. 407] WE WANT TO ENCOURAGE REPAIRS IS ADMISSIBLE TO SHOW THE FOLLOWING, IF THEY ARE CONTROVERTED:

2006Chap Special Exclusions36 –OWNERSHIP OR CONTROL (“IT’S NOT MY HOUSE”) –FEASIBILITY OF BETTER CONDITION OR DESIGN (“I DID EVERYTHING I COULD”)

2006Chap Special Exclusions37 FAILED SETTLEMENT DISCUSSIONS – RULE 408 COMMENTS OR PROPOSALS ARE INADMISSIBLE TO SHOW LIABILITY THEY CAN BE USED TO GUIDE DISCOVERY

2006Chap Special Exclusions38 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 (“WE WERE HAVING SETTLEMENT DISCUSSIONS”)

2006Chap Special Exclusions39 3.PROVING AN OBSTRUCTION CHARGE OBSTRUCTION REQUIRES INTENT E.G., SETTLEMENT TERMS MAY HAVE INCLUDED SHREDDING OF DISCOVERY DOCUMENTS, SO THAT THEY WOULD NOT BE FOUND BY GOV’T

2006Chap Special Exclusions40 SOME DIFFICULT AREAS UNDER THIS RULE IMPEACHMENT: –IN SETTLEMENT HE SAID DRIVER WAS WORKING FOR HIM; AT TRIAL HE TESTIFIES HE NEVER HEARD OF THIS DRIVER WHAT AMOUNT OF COMPENSATION IS “REASONABLE” FOR AN I.P. INFRINGEMENT: –EV. FROM SETTLEMENTS IN OTHER CASES, INVOLVING OTHER INDUSTRY PLAYERS

2006Chap Special Exclusions41 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)

2006Chap Special Exclusions42 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]

2006Chap Special Exclusions43 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

2006Chap Special Exclusions44 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