CHAPTER 5 SPECIAL EXCLUSIONS Prof JANICKE 2019 CHARACTER

CHAPTER 5: SPECIAL EXCLUSIONS Prof. JANICKE 2019

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 2019 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 2019 Chap. 5 -- Special Exclusions 3

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 2019 Chap. 5 -- Special Exclusions 4

A FEW EXCEPTIONS, WHERE CHARACTER (PROPENSITY) EVIDENCE IS ALLOWED: 1. VERY RARELY IN CIVIL CASES – CHARACTER AS “AN ELEMENT” 2. OCCASIONALLY IN CIVIL AND CRIMINAL: IMPEACHING A WITNESS FOR POOR VERACITY TRAIT 2019 Chap. 5 -- Special Exclusions 5

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 2019 Chap. 5 -- Special Exclusions 6

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 !! 2019 Chap. 5 -- Special Exclusions 7

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 2019 Chap. 5 -- Special Exclusions 8

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 2019 Chap. 5 -- Special Exclusions 9

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. 2019 Chap. 5 -- Special Exclusions 10

EXAMPLE 1 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 2019 Chap. 5 -- Special Exclusions 11

• EXAMPLE 2 OF USING PATTERN EVIDENCE: – D IS NOW CHARGED WITH ELECTROCUTING WIFE IN BATHTUB – EVIDENCE: D’S THREE PREVIOUS EXWIVES ALL DIED BY ELECTROCUTION IN BATHTUBS 2019 – HIGHLY SPECIFIC; WILL BE ALLOWED, OFFERED TO SHOW NON-ACCIDENT OR THAT D WAS LIKELY THE KILLER Chap. 5 -- Special Exclusions 12

EXAMPLES OF GENERAL CHARACTER EVIDENCE (DISALLOWED) – EXAMPLE 1: D HAS A HISTORY OF THEFTS – EXAMPLE 2: D HAS A HISTORY OF KILLING PEOPLE • THESE SHOW ONLY A GENERAL PROPENSITY, i. e. , A CHARACTER TRAIT • NOT ALLOWED 2019 Chap. 5 -- Special Exclusions 13

“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 2019 Chap. 5 -- Special Exclusions 14

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 2019 Chap. 5 -- Special Exclusions 15

EXAMPLES SHOWING THE DISTINCTIONS: • “HE ALWAYS DRIVES CAREFULLY” [NOT ALLOWED; GENERAL CHARACTER] • “HE NEVER LEAVES KEYS IN THE CAR” [ALLOWED; SPECIFIC PATTERN] 2019 Chap. 5 -- Special Exclusions 16

• ALWAYS FOLLOWING DIRECTIONS ON OPENING OF CANISTERS OF COMPRESSED GAS [ALLOWED; SPECIFIC PATTERN] • ALWAYS BEING “CARELESS ABOUT SAFETY” [NOT ALLOWED; GENERAL CHARACTER] 2019 Chap. 5 -- Special Exclusions 17

PROBLEMS/CASES • • 2019 5 A 5 B 5 C 5 E 5 F 5 G 5 H Chap. 5 -- Special Exclusions 18

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 2019 Chap. 5 -- Special Exclusions 19

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 2019 Chap. 5 -- Special Exclusions 20

• 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 2019 Chap. 5 -- Special Exclusions 21

R. 412: VICTIM’S SEXUAL CONDUCT ON OTHER OCCASIONS IS NOW LIMITED TO: 1. ACTS WITH THIS DEFENDANT, or 2. NEAR-TERM ACTS WITH OTHERS TO SHOW OTHERS ARE SOURCE OF OBSERVED SCRATCHES, BRUISES, OR OTHER PHYSICAL CONDITIONS 2019 Chap. 5 -- Special Exclusions 22

“SLUT” EVIDENCE IS NO LONGER ADMISSIBLE – NO OPINION TESTIMONY ALLOWED ON THIS SUBJECT R. 412 – NO REPUTATION TESTIMONY ALLOWED ON THIS SUBJECT R. 412 2019 Chap. 5 -- Special Exclusions 23

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) 2019 Chap. 5 -- Special Exclusions 24

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 2019 Chap. 5 -- Special Exclusions 25

PROBLEMS/CASES • 5 J 2019 Chap. 5 -- Special Exclusions 26

“BAD GUY” PROPENSITY RULES FOR SEXUAL ASSAULT or CHILD MOLESTATION CASES: R. 413 -415 • A MAJOR DEPARTURE FROM THE USUAL ANTI-PROPENSITY RULE • INSTANCES OF SEXUAL ASSAULT ARE ALLOWED, EVEN IF NO PATTERN 2019 Chap. 5 -- Special Exclusions 27

• 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 2019 Chap. 5 -- Special Exclusions 28

• 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) 2019 Chap. 5 -- Special Exclusions 29

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 2019 Chap. 5 -- Special Exclusions 30

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. 38. 37, POSTED CLASS MATERIALS] 2019 Chap. 5 -- Special Exclusions 31

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 2019 Chap. 5 -- Special Exclusions >> 32

• SUBJECT TO POSSIBLE EXCLUSION FOR UNFAIR PREJUDICE (R. 403) 2019 Chap. 5 -- Special Exclusions 33

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 2019 PREJUDICE Chap. 5 -- Special Exclusions 34

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 2019 Chap. 5 -- Special Exclusions 35

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 2019 Chap. 5 -- Special Exclusions 36

• 5 L – I TOLD HIM 2019 Chap. 5 -- Special Exclusions 37

PROBLEMS/CASES • 5 M – DEATH ON THE HIGHWAY • 5 O – WAS HE SERVED 2019 Chap. 5 -- Special Exclusions 38

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 2019 Chap. 5 -- Special Exclusions 39

• 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. ”) 2019 Chap. 5 -- Special Exclusions 40

• THUS, REPAIRER HOLDS THE KEY, RISKS OPENING THE DOOR BY MAKING OVER-BROAD CONTENTIONS ABOUT FEASIBILITY 2019 Chap. 5 -- Special Exclusions 41

• TUER 2019 Chap. 5 -- Special Exclusions 42

FAILED SETTLEMENT DISCUSSIONS – RULE 408 • ARE INADMISSIBLE TO SHOW LIABILITY 2019 Chap. 5 -- Special Exclusions 43

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 2019 Chap. 5 -- Special Exclusions 44

NOTE: WHAT IS NOT A “SETTLEMENT” TALK • TO COME UNDER PROTECTION OF R. 408: 1. THERE MUST FIRST BE A CLAIM ASSERTED: • NO FORMALITIES ARE NEEDED; COULD BE ORAL CLAIM 2. THE CLAIM MUST BE “DISPUTED” IN 2019 SOME WAYChap. 5 -- Special Exclusions 45

CAVEAT: • COMMENTS MADE DURING FAILED SETTLEMENT CAN BE ADMITTED TO SHOW POINTS OTHER THAN LIABILITY: 1. TO PROVE BIAS OR PREJUDICE OF A TRIAL WITNESS (BY EVIDENCE OF THINGS SHE SAID AT SETTLEMENT MEETING) 2019 2. TO NEGATE A CONTENTION OF UNDUE DELAY – i. e. , TO DEFEAT LACHES (TESTIMONY SHOWING SEEMING GOOD PROGRESS OF SETTLEMENT TALKS) Chap. 5 -- Special Exclusions 46

3. PROVING AN OBSTRUCTION CHARGE • EVEN A SUCCESSFUL SETTLEMENT AGREEMENT COULD BE ADMISSIBLE FOR THIS >> 2019 Chap. 5 -- Special Exclusions 47

SHOWING OBSTRUCTION: 2019 • 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’” Chap. 5 -- Special Exclusions 48

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) 2019 Chap. 5 -- Special Exclusions 49

• 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] 2019 Chap. 5 -- Special Exclusions 50

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 2019 Chap. 5 -- Special Exclusions 51

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) 2019 Chap. 5 -- Special Exclusions 52

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 2019 THE PLEA DISCUSSION Chap. 5 -- Special Exclusions. IS 53

• CAVEAT: A HALF-OPEN DOOR CONCEPT APPLIES HERE: – IF D. PLEADS “NOT GUILTY” AND TESTIFIES IN COURT • TO PART OF WHAT HE SAID IN PLEABARGAIN MEETING, • OTHER PARTS MAY NEED TO BE REVEALED, IF FAIRNESS REQUIRES 2019 R. 410(b)(2) Chap. 5 -- Special Exclusions 54

PROBLEMS/CASES • 5 P – TWO POTATO • 5 R – I USED • 5 S – WE CAN TALK 2019 Chap. 5 -- Special Exclusions 55

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” 2019 Chap. 5 -- Special Exclusions 56

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 2019 Chap. 5 -- Special Exclusions 57