1. CHAPTER 5: SPECIAL EXCLUSIONS P. JANICKE 2011

2. Chap. 5 -- Special Exclusions2 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

3. 2011 Chap. 5 -- Special Exclusions3 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

4. 2011 Chap. 5 -- Special Exclusions4 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

5. 2011 Chap. 5 -- Special Exclusions5 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

6. 2011 Chap. 5 -- Special Exclusions6 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

7. 2011 Chap. 5 -- Special Exclusions7 WHAT’S THE DIFFERENCE? 404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S GENERAL PROPENSITY 404(b) PROOF MUST BE HIGHLY SPECIFIC

8. 2011 Chap. 5 -- Special Exclusions8 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

9. 2011 Chap. 5 -- Special Exclusions9 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

10. 2011 Chap. 5 -- Special Exclusions10 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

11. 2011 Chap. 5 -- Special Exclusions11 EXAMPLES OF HABITS – WALKING ON SHADY SIDE OF STREET TYING LEFT SHOE FIRST KEEPING UTILITY BILLS IN KITCHEN DRAWER ALL ARE SPECIFIC AND ADMISSIBLE

12. 2011 Chap. 5 -- Special Exclusions12 EXAMPLES OF HABITS – WALKING ON SHADY SIDE OF STREET TYING LEFT SHOE FIRST KEEPING BILLS IN KITCHEN DRAWER ALL ARE ADMISSIBLE

13. 2011 Chap. 5 -- Special Exclusions13 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]

14. 2011 Chap. 5 -- Special Exclusions14 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

15. 2011 Chap. 5 -- Special Exclusions15 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

16. 2011 Chap. 5 -- Special Exclusions16 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.

17. 2011 Chap. 5 -- Special Exclusions17 “SLUT” EVIDENCE IS NOT ALLOWED –NO OPINION TESTIMONY ON THIS –NO REPUTATION TESTIMONY ON THIS

18. 2011 Chap. 5 -- Special Exclusions18 CIVIL CASES PARA. (b)(2) of RULE 412 PRIOR SEXUAL HISTORY IS OK IF OTHERWISE ADMISSIBLE, BUT SUBJECT TO JUDGE WEIGHING PROBATIVENESS vs. HARM NO SLUT-REPUTATION EVIDENCE; JUST THE FACTS

19. 2011 Chap. 5 -- Special Exclusions19 EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; CUTS-AND-BRUISES): IN CAMERA HEARING IS REQUIRED IN ADVANCE A VERY IMPORTANT VICTIM SAFEGUARD

20. 2011 Chap. 5 -- Special Exclusions20 “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

21. 2011 Chap. 5 -- Special Exclusions21 EXAMPLE IN A PROSECUTION FOR SEXUAL ASSAULT ON DORIS ON JULY 1, 2008, ANY OTHER ACT OF SEXUAL ASSAULT BY D., 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

22. 2011 Chap. 5 -- Special Exclusions22 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

23. 2011 Chap. 5 -- Special Exclusions23 RULE 415 IN A CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION –EV. OF ANY PRIOR ASSAULT/MOLESTATION IS LIKEWISE ADMISSIBLE

24. 2011 Chap. 5 -- Special Exclusions24 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

25. 2011 Chap. 5 -- Special Exclusions25 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

26. 2011 Chap. 5 -- Special Exclusions26 REMEDIAL MEASURES FOLLOWING AN INCIDENT NOT ADMISSIBLE TO SHOW NEGLIGENCE, FAULT, ETC. [R. 407] REASON: WE WANT TO ENCOURAGE REPAIRS

27. 2011 Chap. 5 -- Special Exclusions27 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.”)

28. 2011 Chap. 5 -- Special Exclusions28 THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING BROAD CONTENTIONS

29. 2011 Chap. 5 -- Special Exclusions29 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

30. 2011 Chap. 5 -- Special Exclusions30 COMMENTS MADE DURING FAILED SETTLEMENT CAN BE USED TO SHOW POINTS OTHER THAN LIABILITY: 1.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!’”) 2.NEGATIVING CONTENTION OF UNDUE DELAY – i.e., TO DEFEAT LACHES (TESTIMONY SHOWING GOOD PROGRESS OF SETTLEMENT TALKS)

31. 2011 Chap. 5 -- Special Exclusions31 3.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’”

32. 2011 Chap. 5 -- Special Exclusions32 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)

33. 2011 Chap. 5 -- Special Exclusions33 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]

34. 2011 Chap. 5 -- Special Exclusions34 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!

35. 2011 Chap. 5 -- Special Exclusions35 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

36. 2011 Chap. 5 -- Special Exclusions36 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

37. 2011 Chap. 5 -- Special Exclusions37 IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION: –PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN MEETING AS THE TRUE STORY