CHAPTER 5 SPECIAL EXCLUSIONS Prof JANICKE 2020 CHARACTER

CHAPTER 5: SPECIAL EXCLUSIONS Prof. JANICKE 2020

CHARACTER EVIDENCE assigned: RULE 404 2020 Chap. 5 -- Special Exclusions 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 2020 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 2020 Chap. 5 -- Special Exclusions 4

CIVIL CASES: A FEW RARE EXCEPTIONS WHERE CHARACTER (PROPENSITY) EVIDENCE IS ALLOWED: 1. CASES WHERE CHARACTER IS A STATUTORILY DEFINED ELEMENT 2. IMPEACHING A WITNESS BY USING THE POOR-VERACITY-TRAIT METHOD 2020 Chap. 5 -- Special Exclusions 5

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 !! 2020 Chap. 5 -- Special Exclusions 6

LIMITS ON FORM • WHERE CHARACTER IS ALLOWED AT ALL, MUST INTRODUCE BY: – ON DIRECT: OPINION OR REPUTATION ONLY • NO SPECIFIC INSTANCES ALLOWED – ON CROSS: SPECIFICS ARE ALLOWED 2020 Chap. 5 -- Special Exclusions 7

SPECIAL NOTE ON RULE 404(b) • ALLOWS PROOF OF BAD PRIOR CONDUCT, BUT NOT AS A “CHARACTER” ATTACK --– OFFERED ONLY TO SHOW CULPRIT’S IDENTITY (M. O. OF THIS D), OR PLAN, ETC. – THE CONDUCT MUST MATCH THE SPECIFIC CIRCUMSTANCES NOW ON TRIAL 2020 Chap. 5 -- Special Exclusions 8

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 2020 Chap. 5 -- Special Exclusions 9

HABIT EVIDENCE assigned: RULE 406 2020 Chap. 5 -- Special Exclusions 10

“HABIT” EVIDENCE IS ALLOWED • MUST BE A VERY SPECIFIC PATTERN • OF UNREFLECTIVE CONDUCT; USUALLY WITH NO MORAL JUDGMENT INVOLVED 2020 Chap. 5 -- Special Exclusions 11

EXAMPLES SHOWING THE DISTINCTIONS: • “HE ALWAYS DRIVES CAREFULLY” [NOT ALLOWED; TOO GENERAL FOR HABIT] • “HE NEVER LEAVES KEYS IN THE CAR” [ALLOWED; SPECIFIC PATTERN] 2020 Chap. 5 -- Special Exclusions 12

PROBLEMS/CASES • • 2020 5 A 5 B 5 C 5 E 5 F 5 G 5 H Chap. 5 -- Special Exclusions 13

RAPE SHIELD RULE assigned: RULE 412 (adopted 1978) 2020 Chap. 5 -- Special Exclusions 14

KEEPING OUT EVEN HIGHLY SPECIFIC VICTIM-TRAIT 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 2020 Chap. 5 -- Special Exclusions 15

THEREFORE, IN THE OLD DAYS: • DEFENSE COUNSEL WOULD USE RULE 404(a)(2)(B): 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 2020 Chap. 5 -- Special Exclusions 16

• 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 2020 Chap. 5 -- Special Exclusions 17

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 COULD BE SOURCE OF OBSERVED SCRATCHES, BRUISES, OR OTHER PHYSICAL CONDITIONS 2020 Chap. 5 -- Special Exclusions 18

“SLUT” EVIDENCE IS NO LONGER ADMISSIBLE IN ADDITION TO THE RESTRICTIONS STATED ABOVE: – NO OPINION TESTIMONY ALLOWED ON THIS SUBJECT – NO REPUTATION TESTIMONY ALLOWED ON THIS SUBJECT 2020 Chap. 5 -- Special Exclusions 19

assigned: RULE 412(c) 2020 Chap. 5 -- Special Exclusions 20

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) 2020 Chap. 5 -- Special Exclusions 21

RAPE SHIELD IN CIVIL CASES • PRIOR SEXUAL HISTORY IS ALLOWED, SUBJECT TO JUDGE WEIGHING PROBATIVENESS vs. HARM TO VICTIM (PLAINTIFF) • AGAIN, SLUT-REPUTATION EVIDENCE IS NOT ALLOWED UNLESS P OPENS THE DOOR ON REPUTATION 2020 Chap. 5 -- Special Exclusions 22

PROBLEMS/CASES • 5 J 2020 Chap. 5 -- Special Exclusions 23

“BAD GUY” RULES assigned: RULES 413 -415 2020 Chap. 5 -- Special Exclusions 24

“BAD GUY” PROPENSITY RULES FOR SEXUAL ASSAULT or CHILD MOLESTATION CASES: R. 413 -415 • A MAJOR DEPARTURE FROM THE USUAL ANTI-PROPENSITY RULES WE HAVE JUST DISCUSSED! 2020 Chap. 5 -- Special Exclusions 25

• ANY INSTANCES OF SEXUAL ASSAULT CAN BE INTRODUCED, EVEN IF NO SPECIFIC PATTERN – DOESN’T MATTER IF YOU LABEL IT CHARACTER, OR HABIT, OR NEITHER – THE ONLY VALID OBJECTION: UNFAIR PREJUDICE 2020 Chap. 5 -- Special Exclusions 26

SAME FOR CHILD MOLESTATIONS • ANY OTHER CHILD MOLESTATION BY D, AT ANY TIME, ANYWHERE, AGAINST ANYONE, CAN BE ALLOWED – SUBJECT ONLY TO UNFAIR PREJUDICE 2020 Chap. 5 -- Special Exclusions 27

• NO ARREST OR CONVICTION IS NEEDED – WITNESSES ARE THE USUAL WAY OF PROVING – FELONY CONVICTION RECORDS, IF ANY, CAN ALSO BE USED 2020 Chap. 5 -- Special Exclusions 28

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 2020 Chap. 5 -- Special Exclusions 29

TEXAS “BAD GUY” RULES • TEXAS DOES NOT HAVE THESE PARTICULAR RULES OF EVIDENCE • BUT TEXAS HAS A SIMILAR STATUTORY PROVISION RE. OFFENSES AGAINST CHILDREN [SEE ART. 38. 37, POSTED CLASS MATERIALS] 2020 Chap. 5 -- Special Exclusions 30

PROBLEMS/CASES • 5 L – I TOLD HIM • 5 M – DEATH ON THE HIGHWAY • 5 O – WAS HE SERVED 2020 Chap. 5 -- Special Exclusions 31

REMEDIAL MEASURES assigned: RULE 407 2020 Chap. 5 -- Special Exclusions 32

CAVEAT • POST-INCIDENT REPAIRS, ETC. , ARE ADMISSIBLE TO PROVE THE FOLLOWING, IF CONTROVERTED: – OWNERSHIP OR CONTROL (e. G. , TO REBUT “THAT’S NOT MY HOUSE. ”) – FEASIBILITY OF BETTER CONDITION OR DESIGN (e. g. , TO REBUT “WE DID EVERYTHING PHYSICALLY POSSIBLE TO PREVENT THIS. ”) 2020 Chap. 5 -- Special Exclusions 33

CASE: • TUER 2020 Chap. 5 -- Special Exclusions 34

FAILED SETTLEMENT DISCUSSIONS ASSIGNED: RULE 408 2020 Chap. 5 -- Special Exclusions 35

INADMISSIBLE: – COMMENTS MADE DURING SETTLEMENT TALKS – TERMS OF SETTLEMENT PROPOSALS – BUT: ANY SUCH STATEMENTS MADE CAN BE USED BY COUNSEL TO SHAPE DISCOVERY AND TRIAL TACTICS 2020 Chap. 5 -- Special Exclusions 36

NOTE: WHAT IS NOT A “SETTLEMENT” TALK • TO COME UNDER PROTECTION OF RULE 408: 1. THERE MUST FIRST BE A CLAIM ASSERTED: • NO FORMALITIES NEEDED; COULD BE ORAL CLAIM 2. THE CLAIM MUST BE “DISPUTED” IN SOME WAY 2020 Chap. 5 -- Special Exclusions 37

CAVEAT: • SETTLEMENT STATEMENTS ARE ADMISSIBLE TO ESTABLISH POINTS OTHER THAN LIABILITY: 1. TO PROVE BIAS OR PREJUDICE OF A TRIAL WITNESS 2. TO NEGATE A CONTENTION OF UNDUE DELAY – i. e. , TO DEFEAT LACHES 3. PROVING AN OBSGTRUCTION CHARGE >>> 2020 Chap. 5 -- Special Exclusions 38

PROBLEM • 5 P 2020 Chap. 5 -- Special Exclusions 39

GUILTY PLEA • ADMISSIBLE IN FOLLOW-ON LITIGATION? assigned RULE 410(a)(1, 2, 3) 2020 Chap. 5 -- Special Exclusions 40

STATEMENTS (ADMISSIONS) DURING COURT’S “TAKING” OF A GUILTY PLEA: • ADMISSIBILITY TRACKS RULE 410; e. g. , CANNOT BE USED IF PLEA IS WITHDRAWN 2020 Chap. 5 -- Special Exclusions 41

OUT-OF-COURT PLEA BARGAINING STATEMENTS ASSIGNED RULE 410(a)(4) 2020 Chap. 5 -- Special Exclusions 42

REQUIREMENTS TO TRIGGER THE PROTECTIVE RULE • MUST BE SPEAKING TO A PROSECUTING “ATTORNEY” • MEETING MUST BE ABOUT PLEA BARGAINING • N. B. : TALKS WITH ARRESTING OFFICERS PROBABLY DO NOT QUALIFY, AND ARE 2020 ADMISSIBLE Chap. 5 -- Special Exclusions 43

ONLY WHAT WAS SAID IN THE PLEA-BARGAIN ROOM IS PROTECTED • IF D LATER TALKS TO OTHERS ABOUT THE PLEA BARGAIN, THAT TALK IS NOT PROTECTED, AND IS ADMISSIBLE AGAINST D 2020 Chap. 5 -- Special Exclusions 44

CAVEAT: HALF-OPEN DOOR assigned again: RULE 410 (in full) 2020 Chap. 5 -- Special Exclusions 45

PROBLEMS/CASES • 5 R – I USED HIS STUFF • 5 S – WE CAN TALK 2020 Chap. 5 -- Special Exclusions 46

RULE 409: 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 2020 Chap. 5 -- Special Exclusions 47

INSURANCE COVERAGE ASSIGNED RULE 411 2020 Chap. 5 -- Special Exclusions 48