CHAPTER 5 SPECIAL EXCLUSIONS P JANICKE 2009 Chap

CHAPTER 5: SPECIAL EXCLUSIONS P. JANICKE 2009 Chap. 5 -- Special Exclusions

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 2009 Chap. 5 -- Special Exclusions 2

• 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 2009 Chap. 5 -- Special Exclusions 3

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 2009 Chap. 5 -- Special Exclusions 4

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 2009 Chap. 5 -- Special Exclusions 5

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

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] 2009 Chap. 5 -- Special Exclusions 7

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 2009 Chap. 5 -- Special Exclusions 8

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

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 2009 Chap. 5 -- Special Exclusions 10

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

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: 2009 Chap. 5 -- Special Exclusions 12

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 >>> 2009 Chap. 5 -- Special Exclusions 13

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] 2009 Chap. 5 -- Special Exclusions 14

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 2009 Chap. 5 -- Special Exclusions 15

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

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 [R 404(b) PATTERN] 2009 Chap. 5 -- Special Exclusions 17

• 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 MEDICALRESEARCH 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 2009 Chap. 5 -- Special Exclusions 18

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

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

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

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] 2009 Chap. 5 -- Special Exclusions 22

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 2009 Chap. 5 -- Special Exclusions 23

• 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 2009 Chap. 5 -- Special Exclusions 24

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 2009 Chap. 5 -- Special Exclusions 25

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

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 2009 Chap. 5 -- Special Exclusions 27

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

“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 2009 Chap. 5 -- Special Exclusions 29

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 2009 Chap. 5 -- Special Exclusions 30

EXAMPLE: • CHILD MOLESTATION OF A 4 -YEAROLD • PROS. CAN BRING IN EVIDENCE (E. G. , WITNESSES) OF ANY OTHER MOLESTATIONS OF CHILDREN AT ANY TIME IN D’S LIFE 2009 Chap. 5 -- Special Exclusions 31

• 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!!] 2009 Chap. 5 -- Special Exclusions 32

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

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] 2009 Chap. 5 -- Special Exclusions 34

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 2009 Chap. 5 -- Special Exclusions 35

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

• 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. ”) 2009 Chap. 5 -- Special Exclusions 37

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

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 2009 Chap. 5 -- Special Exclusions 39

• 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”) 2009 Chap. 5 -- Special Exclusions 40

3. PROVING AN OBSTRUCTION CHARGE 2009 • 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 41

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) 2009 Chap. 5 -- Special Exclusions 42

• 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] 2009 Chap. 5 -- Special Exclusions 43

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! 2009 Chap. 5 -- Special Exclusions 44

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 2009 Chap. 5 -- Special Exclusions 45

• 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 2009 Chap. 5 -- Special Exclusions 46

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