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CHAPTER 5: SPECIAL EXCLUSIONS. P. JANICKE 2009. 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. EXAMPLES OF THE EXCLUSION:

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character evidence usually not allowed
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

Chap. 5 -- Special Exclusions

slide3
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

Chap. 5 -- Special Exclusions

we aren t really sure about
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

Chap. 5 -- Special Exclusions

as a result of these uncertainties
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

Chap. 5 -- Special Exclusions

examples of character traits in admissible
EXAMPLES OF CHARACTER TRAITS (INADMISSIBLE)
  • ALWAYS DRIVING CAREFULLY
  • ALWAYS IGNORING MEDICAL ADVICE

Chap. 5 -- Special Exclusions

when character ev is ok in criminal cases
WHEN CHARACTER EV. IS OK IN CRIMINAL CASES

R 404 :

  • DEFENDANT CAN INITIATE RE. HIS OWN CHARACTER
  • DEFENDANT CAN INITIATE RE. ALLEGED VICTIM’S CHARACTER
  • [EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR VERACITY TRAIT – LET’S PUT THIS ASIDE UNTIL CHAP. 8]

Chap. 5 -- Special Exclusions

civil cases very rare
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

Chap. 5 -- Special Exclusions

caveat
CAVEAT:
  • CHARACTER IS ALMOST NEVER AN “ELEMENT” OF A CIVIL CASE
  • “ELEMENT” MEANS A POINT THAT IS ESSENTIAL TO THE CLAIM

Chap. 5 -- Special Exclusions

texas rules a little more open in civil cases
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

Chap. 5 -- Special Exclusions

for this course
FOR THIS COURSE:
  • KNOW THE GENERAL RULE:
    • NO CHARACTER EVIDENCE ALLOWED AT ALL IN CIVIL CASES, EXCEPT DISHONESTY USED TO IMPEACH A WITNESS

Chap. 5 -- Special Exclusions

in the few criminal trials where character trait evidence is ok
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:

Chap. 5 -- Special Exclusions

slide13
A REPUTATION WITNESS ON THE GENERAL TRAIT [NO SPECIFICS] – “HE’S THOUGHT TO BE VIOLENT”
  • AN OPINION WITNESS ON THE GENERAL TRAIT [NO SPECIFICS] – “I THINK HE’S VIOLENT”
  • ON CROSS, SPECIFIC INSTANCES OF THE COUNTER-TRAIT >>>

Chap. 5 -- Special Exclusions

cross exam on specific instances tending to negate the character trait
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]

Chap. 5 -- Special Exclusions

special note on rule 404 b
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

Chap. 5 -- Special Exclusions

what s the difference
WHAT’S THE DIFFERENCE?
  • 404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S PROPENSITY IN GENERAL TERMS
  • 404(b) PROOF IS HIGHLY SPECIFIC

Chap. 5 -- Special Exclusions

slide17
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]

Chap. 5 -- Special Exclusions

slide18
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

Chap. 5 -- Special Exclusions

habit evidence a form of highly specific propensity evidence
HABIT EVIDENCE: A FORM OF HIGHLY SPECIFIC PROPENSITY EVIDENCE
  • PATTERN OF AUTOMATIC, UNREFLECTIVE CONDUCT
  • HIGHLY SPECIFIC AS TO DETAILS
  • IS ADMISSIBLE – RULE 406

Chap. 5 -- Special Exclusions

examples of habits
EXAMPLES OF HABITS –
  • WALKING ON SHADY SIDE OF STREET
  • TYING LEFT SHOE FIRST
  • KEEPING BILLS IN KITCHEN DRAWER
  • ALL ARE SPECIFIC AND ADMISSIBLE

Chap. 5 -- Special Exclusions

examples of habits21
EXAMPLES OF HABITS –
  • WALKING ON SHADY SIDE OF STREET
  • TYING LEFT SHOE FIRST
  • KEEPING BILLS IN KITCHEN DRAWER
  • ALL ARE ADMISSIBLE

Chap. 5 -- Special Exclusions

examples showing the distinctions
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]

Chap. 5 -- Special Exclusions

rape shield rule
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

Chap. 5 -- Special Exclusions

slide24
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

Chap. 5 -- Special Exclusions

victim s sexual propensity character now limited to
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

Chap. 5 -- Special Exclusions

slide26
“SLUT” EVIDENCE IS NOT ALLOWED
    • NO OPINION
    • NO REPUTATION

Chap. 5 -- Special Exclusions

civil cases
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

Chap. 5 -- Special Exclusions

slide28
EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; CUTS AND BRUISES)
  • AN IN CAMERA HEARING IS REQUIRED IN ADVANCE

Chap. 5 -- Special Exclusions

bad guy rules 413 415
“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

Chap. 5 -- Special Exclusions

example
EXAMPLE
  • IN A PROSECUTION FOR SEXUAL ASSAULT ON DORIS ON JULY 1, 2008, ANY OTHER ACT OF SEXUAL ASSAULTBYD., 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

Chap. 5 -- Special Exclusions

example31
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

Chap. 5 -- Special Exclusions

slide32
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!!]

Chap. 5 -- Special Exclusions

rule 415
RULE 415
  • CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION
  • EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE

Chap. 5 -- Special Exclusions

reasons for bad guy rules
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]

Chap. 5 -- Special Exclusions

bad guy rules are controversial and not applied as written
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

Chap. 5 -- Special Exclusions

remedial measures following an incident
REMEDIAL MEASURES FOLLOWING AN INCIDENT
  • NOT ADMISSIBLE TO SHOW NEGLIGENCE [R. 407]
  • WE WANT TO ENCOURAGE REPAIRS

Chap. 5 -- Special Exclusions

slide37
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.”)

Chap. 5 -- Special Exclusions

slide38
THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING BROAD CONTENTIONS

Chap. 5 -- Special Exclusions

failed settlement discussions rule 408
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

Chap. 5 -- Special Exclusions

slide40
COMMENTS MADE DURING FAILED SETTLEMENT CAN BE USED TO SHOW POINTS OTHER THAN LIABILITY:
    • BIAS OR PREJUDICE OF A TRIAL WITNESS (HE SAID “I’LL DO ANYTHING TO GET YOU!” OR “I HAVE ALWAYS DESPISED YOU!”)
    • NEGATIVING CONTENTION OF UNDUE DELAY – TO DEFEAT LACHES (SHE SAID: “WE’RE MAKING GOOD PROGRESS”)

Chap. 5 -- Special Exclusions

slide41
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’”

Chap. 5 -- Special Exclusions

criminal plea bargaining rule 410
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)

Chap. 5 -- Special Exclusions

slide43
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]

Chap. 5 -- Special Exclusions

failed plea bargain discussions rule 410
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!

Chap. 5 -- Special Exclusions

slide45
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

Chap. 5 -- Special Exclusions

slide46
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

Chap. 5 -- Special Exclusions

slide47
IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION:
    • PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN MEETING AS THE TRUE STORY

Chap. 5 -- Special Exclusions