1. CHAPTER 5: SPECIAL EXCLUSIONS
Prof. JANICKE
2019

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. 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
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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
HOW INDELIBLE AN EARLIER CHARACTER TRAIT IS, OVER TIME
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5. 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
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6. 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
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7. 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 !!
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8. 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
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9. 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
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10. 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.
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11. 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
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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
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13. 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
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14. “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
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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
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16. EXAMPLES SHOWING THE DISTINCTIONS:
“HE ALWAYS DRIVES CAREFULLY” [NOT ALLOWED; GENERAL CHARACTER]
“HE NEVER LEAVES KEYS IN THE CAR” [ALLOWED; SPECIFIC PATTERN]
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ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS [ALLOWED; SPECIFIC PATTERN]
ALWAYS BEING “CARELESS ABOUT SAFETY” [NOT ALLOWED; GENERAL CHARACTER]
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PROBLEMS/CASES 5A 5B 5C 5E 5F 5G 5H
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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
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20. 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
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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
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22. 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
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23. “SLUT” EVIDENCE IS NO LONGER ADMISSIBLE
NO OPINION TESTIMONY ALLOWED ON THIS SUBJECT R. 412
NO REPUTATION TESTIMONY ALLOWED ON THIS SUBJECT R. 412
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24. 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)
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25. 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
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PROBLEMS/CASES 5J
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27. Chap. 5 -- Special Exclusions
“BAD GUY” PROPENSITY RULES FOR SEXUAL ASSAULT or CHILD MOLESTATION CASES: R
A MAJOR DEPARTURE FROM THE USUAL ANTI-PROPENSITY RULE
INSTANCES OF SEXUAL ASSAULT ARE ALLOWED, EVEN IF NO PATTERN
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28. 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
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29. 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)
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30. 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
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31. 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 , POSTED CLASS MATERIALS]
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32. 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
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SUBJECT TO POSSIBLE EXCLUSION FOR UNFAIR PREJUDICE (R. 403)
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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
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35. 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
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36. 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
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5L – I TOLD HIM
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38. Chap. 5 -- Special Exclusions
PROBLEMS/CASES
5M – DEATH ON THE HIGHWAY
5O – WAS HE SERVED
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39. 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
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40. 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.”)
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THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING OVER-BROAD CONTENTIONS ABOUT FEASIBILITY
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42. Chap. 5 -- Special Exclusions
TUER
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43. FAILED SETTLEMENT DISCUSSIONS – RULE 408
ARE INADMISSIBLE TO SHOW LIABILITY
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44. 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
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45. 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
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46. 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)
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47. Chap. 5 -- Special Exclusions
PROVING AN OBSTRUCTION CHARGE
EVEN A SUCCESSFUL SETTLEMENT AGREEMENT COULD BE ADMISSIBLE FOR THIS
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48. 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’”
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49. 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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50. 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]
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51. 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
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52. 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)
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53. 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
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54. 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)
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55. Chap. 5 -- Special Exclusions
PROBLEMS/CASES
5P – TWO POTATO
5R – I USED
5S – WE CAN TALK
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56. 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”
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57. 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
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