1. CHAPTER 5: SPECIAL EXCLUSIONS
P. JANICKE
2010

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
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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
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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
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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
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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
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7. WHAT’S THE DIFFERENCE?
404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S GENERAL PROPENSITY
404(b) PROOF MUST BE HIGHLY SPECIFIC
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8. CHARGE: BANK ROBBERY BY D
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
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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
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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
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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
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12. EXAMPLES OF HABITS – WALKING ON SHADY SIDE OF STREET
TYING LEFT SHOE FIRST
KEEPING BILLS IN KITCHEN DRAWER
ALL ARE ADMISSIBLE
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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]
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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
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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
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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.
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17. “SLUT” EVIDENCE IS NOT ALLOWED
NO OPINION TESTIMONY ON THIS
NO REPUTATION TESTIMONY ON THIS
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18. 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
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19. EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; CUTS-AND-BRUISES):
IN CAMERA HEARING IS REQUIRED IN ADVANCE
A VERY IMPORTANT VICTIM SAFEGUARD
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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
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21. 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
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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
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23. RULE 415 IN A CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION
EV. OF ANY PRIOR ASSAULT/MOLESTATION IS LIKEWISE ADMISSIBLE
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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
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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
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26. REMEDIAL MEASURES FOLLOWING AN INCIDENT
NOT ADMISSIBLE TO SHOW NEGLIGENCE [R. 407]
REASON: WE WANT TO ENCOURAGE REPAIRS
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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.”)
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28. THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING BROAD CONTENTIONS
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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
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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)
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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’”
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32. 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)
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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]
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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!
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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
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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
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37. IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION:
PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN MEETING AS THE TRUE STORY
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