1. CHAPTER 5: SPECIAL EXCLUSIONS P. JANICKE 2009

2. Chap. 5 -- Special Exclusions2 CHARACTER EVIDENCE USUALLY NOT ALLOWED MEANING: EVIDENCE OF A MORAL TRAIT OF A PERSON, OFFERED TO PROVE CONFORMING CONDUCT ON A PARTICULAR OCCASION SOMETIMES CALLED “PROPENSITY” EVIDENCE

3. 2009Chap. 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. 2009Chap. 5 -- 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

5. 2009Chap. 5 -- Special Exclusions5 AS A RESULT OF THESE UNCERTAINTIES -- CHARACTER EVIDENCE IS NORMALLY INADMISSIBLE AT A TRIAL, EXCEPT TO IMPEACH WITNESS BY SHOWING A POOR VERACITY TRAIT –NARROW FURTHER EXCEPTIONS FOR CRIMINAL DEFENDANTS TO INVOKE –VIRTUALLY NO EXCEPTIONS IN CIVIL CASES

6. 2009Chap. 5 -- Special Exclusions6 EXAMPLES OF CHARACTER TRAITS (INADMISSIBLE) ALWAYS DRIVING CAREFULLY ALWAYS IGNORING MEDICAL ADVICE

7. 2009Chap. 5 -- Special Exclusions7 WHEN CHARACTER EV. IS OK IN CRIMINAL CASES R 404 : 1.DEFENDANT CAN INITIATE RE. HIS OWN CHARACTER 2.DEFENDANT CAN INITIATE RE. ALLEGED VICTIM’S CHARACTER 3.[EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR VERACITY TRAIT – LET’S PUT THIS ASIDE UNTIL CHAP. 8]

8. 2009Chap. 5 -- Special Exclusions8 CIVIL CASES – VERY RARE 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

9. 2009Chap. 5 -- Special Exclusions9 CAVEAT: CHARACTER IS ALMOST NEVER AN “ELEMENT” OF A CIVIL CASE “ELEMENT” MEANS A POINT THAT IS ESSENTIAL TO THE CLAIM

10. 2009Chap. 5 -- Special Exclusions10 TEXAS RULES: A LITTLE MORE OPEN IN CIVIL CASES IN A CIVIL CASE WHERE A DEFENDANT IS ACCUSED OF BAD CONDUCT (MORAL TURPITUDE): –THE ACCUSED PARTY CAN INTRODUCE RELEVANT GOOD CHARACTER EVIDENCE –IF DONE, THE ACCUSING PARTY CAN REBUT IT WITH RELEVANT BAD CHARACTER EVIDENCE RARELY HAPPENS

11. 2009Chap. 5 -- Special Exclusions11 FOR THIS COURSE: KNOW THE GENERAL RULE: –NO CHARACTER EVIDENCE ALLOWED AT ALL IN CIVIL CASES, EXCEPT DISHONESTY USED TO IMPEACH A WITNESS

12. 2009Chap. 5 -- Special Exclusions12 IN THE FEW CRIMINAL TRIALS WHERE CHARACTER TRAIT EVIDENCE IS OK: D MUST OPEN THE DOOR RULE 405 SPECIFIES THE ALLOWABLE METHODS OF USING IT:

13. 2009Chap. 5 -- Special Exclusions13 1.A REPUTATION WITNESS ON THE GENERAL TRAIT [NO SPECIFICS] – “HE’S THOUGHT TO BE VIOLENT” 2.AN OPINION WITNESS ON THE GENERAL TRAIT [NO SPECIFICS] – “I THINK HE’S VIOLENT” 3.ON CROSS, SPECIFIC INSTANCES OF THE COUNTER-TRAIT >>>

14. 2009Chap. 5 -- Special Exclusions14 CROSS-EXAM ON SPECIFIC INSTANCES TENDING TO NEGATE THE CHARACTER TRAIT COULD BE – –CROSS-EXAM OF THE DEFENDANT WHO TESTIFIES TO HIS PEACABLE CHARACTER: “Q. DID YOU GET IN FISTFIGHTS IN HIGH SCHOOL?” [RARE; THEY DON’T TESTIFY] –CROSS-EXAM OF THE GOOD-CHARACTER WITNESS FOR D: “Q. DO YOU KNOW HE ACTED VIOLENTLY LAST NEW YEAR’S?” [GOOD FAITH TEST FOR ASKING]

15. 2009Chap. 5 -- Special Exclusions15 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

16. 2009Chap. 5 -- Special Exclusions16 WHAT’S THE DIFFERENCE? 404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S PROPENSITY IN GENERAL TERMS 404(b) PROOF IS HIGHLY SPECIFIC

17. 2009Chap. 5 -- 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, EV. SHOWS HE HAS ROBBED THREE OTHER BANKS WITH AN ORANGE SKI MASK ON AND A BRASS-INLAID SHOTGUN IN HIS LEFT HAND PROSECUTOR’S CONTENTION: THIS PERSON PROBABLY DID THIS JOB [R404(b) PATTERN]

18. 2009Chap. 5 -- Special Exclusions18 EXAMPLE: D IS CHARGED WITH ELECTROCUTING WIFE IN BATHTUB –EVIDENCE: D’S TWO EX-WIVES WERE ELECTROCUTED IN BATHTUBS EXAMPLE: D IS CHARGED WITH LISTING A NONEXISTENT MEDICAL- RESEARCH CHARITY FOR TAX DEDUCTION –EVIDENCE: D LISTED A NONEXISTENT MEDICAL-RESEARCH CHARITY FOR DEDUCTION IN THREE OF THE FOUR TAX YEARS PRIOR TO OFFENSE CHARGED

19. 2009Chap. 5 -- Special Exclusions19 HABIT EVIDENCE: A FORM OF HIGHLY SPECIFIC PROPENSITY EVIDENCE PATTERN OF AUTOMATIC, UNREFLECTIVE CONDUCT HIGHLY SPECIFIC AS TO DETAILS IS ADMISSIBLE – RULE 406

20. 2009Chap. 5 -- Special Exclusions20 EXAMPLES OF HABITS – WALKING ON SHADY SIDE OF STREET TYING LEFT SHOE FIRST KEEPING BILLS IN KITCHEN DRAWER ALL ARE SPECIFIC AND ADMISSIBLE

21. 2009Chap. 5 -- Special Exclusions21 EXAMPLES OF HABITS – WALKING ON SHADY SIDE OF STREET TYING LEFT SHOE FIRST KEEPING BILLS IN KITCHEN DRAWER ALL ARE ADMISSIBLE

22. 2009Chap. 5 -- Special Exclusions22 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]

23. 2009Chap. 5 -- Special Exclusions23 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

24. 2009Chap. 5 -- Special Exclusions24 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

25. 2009Chap. 5 -- Special Exclusions25 VICTIM’S SEXUAL PROPENSITY [CHARACTER] NOW LIMITED TO: (i) ACTS WITH THE DEFENDANT OR (ii) 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 AND BRUISES

26. 2009Chap. 5 -- Special Exclusions26 “SLUT” EVIDENCE IS NOT ALLOWED –NO OPINION –NO REPUTATION

27. 2009Chap. 5 -- Special Exclusions27 CIVIL CASES PARA. (b)(2) of RULE 412 PRIOR SEXUAL HISTORY IS OK IF OTHERWISE OK, SUBJECT TO PROBATIVENESS vs. HARM STANDARD NO SLUT-REPUTATION EVIDENCE, JUST THE FACTS

28. 2009Chap. 5 -- Special Exclusions28 EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; CUTS AND BRUISES) AN IN CAMERA HEARING IS REQUIRED IN ADVANCE

29. 2009Chap. 5 -- Special Exclusions29 “BAD GUY” RULES: 413-415 SPECIFIC PRIOR MISCONDUCT BY D WITH OTHERS IS ALLOWED, ON DIRECT AND CROSS, IN –SEXUAL ASSAULT CASES –CHILD MOLESTATION CASES NO DOOR-OPENING BY D IS NEEDED TEXAS DOESN’T HAVE THESE RULES

30. 2009Chap. 5 -- Special Exclusions30 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, CAN BE PROVED BY WITNESSES OR OTHER AVAILABLE EVIDENCE DOESN’T MATTER IF D. WAS EVER CHARGED OR CONVICTED IN THE OTHER CASES

31. 2009Chap. 5 -- Special Exclusions31 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

32. 2009Chap. 5 -- Special Exclusions32 OTHER THAN WITNESSES, WHAT OTHER EVIDENCE OF THE PRIOR CONDUCT COULD BE ALLOWED? –CONFESSION –CONVICTION [NOT ARRESTS; CHARGES; POLICE REPORTS; INDICTMENTS; VERDICTS. THESE ARE ALL HEARSAY!!]

33. 2009Chap. 5 -- Special Exclusions33 RULE 415 CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE

34. 2009Chap. 5 -- Special Exclusions34 REASONS FOR BAD GUY RULES THE SOCIAL ILLS OF CHILD ABUSE AND RAPE ARE LARGE RECIDIVISM IS HIGH THEREFORE: WE SHOULD ALLOW DIRECT SPECIFIC TESTIMONY ON PRIOR INCIDENTS [UNLIKE THE USUAL RULE]

35. 2009Chap. 5 -- Special Exclusions35 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

36. 2009Chap. 5 -- Special Exclusions36 REMEDIAL MEASURES FOLLOWING AN INCIDENT NOT ADMISSIBLE TO SHOW NEGLIGENCE [R. 407] WE WANT TO ENCOURAGE REPAIRS

37. 2009Chap. 5 -- Special Exclusions37 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 POSSIBLE.”)

38. 2009Chap. 5 -- Special Exclusions38 THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING BROAD CONTENTIONS

39. 2009Chap. 5 -- Special Exclusions39 FAILED SETTLEMENT DISCUSSIONS – RULE 408 INADMISSIBLE TO SHOW LIABILITY: – COMMENTS –PROPOSALS TO SETTLE THEY CAN BE USED TO SHAPE DISCOVERY AND TRIAL TESTIMONY IF THE DISCUSSIONS FAIL

40. 2009Chap. 5 -- Special Exclusions40 COMMENTS MADE DURING FAILED SETTLEMENT CAN BE USED TO SHOW POINTS OTHER THAN LIABILITY: 1.BIAS OR PREJUDICE OF A TRIAL WITNESS (HE SAID “I’LL DO ANYTHING TO GET YOU!” OR“I HAVE ALWAYS DESPISED YOU!”) 2.NEGATIVING CONTENTION OF UNDUE DELAY – TO DEFEAT LACHES (SHE SAID: “WE’RE MAKING GOOD PROGRESS”)

41. 2009Chap. 5 -- Special Exclusions41 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 THIS ALL CONFIDENTIAL – WE DON’T WANT THE GOVT. CAUSING TROUBLE’”

42. 2009Chap. 5 -- Special Exclusions42 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)

43. 2009Chap. 5 -- Special Exclusions43 WITHDRAWN PLEAS OF GUILTY OR NOLO: CANNOT BE USED IN LATER CASES STATEMENTS (ADMISSIONS) DURING COURT’S “TAKING OF A PLEA”: ADMISSIBILITY TRACKS ABOVE RULES FOR PLEAS [NOTE: FOR A “NOT GUILTY” PLEA, THERE WILL BE NO ACCOMPANYING STATEMENTS]

44. 2009Chap. 5 -- Special Exclusions44 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!

45. 2009Chap. 5 -- Special Exclusions45 NOTE IF D LATER TALKS TO OTHERS ABOUT THE BARGAIN, THE TALK IS NOT PROTECTED IF D LATER TESTIFIES, IN RELIANCE ON THE BARGAIN, THE TESTIMONY IS NOT PROTECTED

46. 2009Chap. 5 -- Special Exclusions46 HALF-OPEN DOOR CONCEPT APPLIES –IF D. TESTIFIES TO ANOTHER PART OF WHAT WAS SAID IN PLEA BARGAIN MEETING, OR CONTRA TO WHAT WAS SAID IN PLEA BARGAIN MEETING, –PROTECTION IS LOST FOR ALL OF IT

47. 2009Chap. 5 -- Special Exclusions47 IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION: –PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN MEETING AS THE TRUE STORY