CHAPTER 5: SPECIAL EXCLUSIONS

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CHAPTER 5SPECIAL EXCLUSIONS

• P. JANICKE
• 2006

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CHARACTER EVIDENCE

• MEANING EVIDENCE OF A PERSONS MORAL TRAIT,
  OFFERED TO PROVE CONFORMING CONDUCT ON A
  PARTICULAR OCCASION
• SOMETIMES CALLED PROPENSITY
• EXAMPLES
• HES A DRUNK
• SHES A LIAR
• HES A THIEF

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• CHARACTER EVIDENCE BASICALLY SAYS
• HE USUALLY ACTS THIS WAY
• SO HE MUST HAVE ACTED THIS WAY ON THE OCCASION IN
  QUESTION
• IN BOTH CIVIL AND CRIMINAL CASES WE NORMALLY
  EXCLUDE CHARACTER EVIDENCE, BECAUSE IT IS THOUGHT
  UNFAIR

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WE ARENT REALLY SURE ABOUT --

• HOW OFTEN PEOPLE ACT IN ACCORD WITH THEIR
  SUPPOSED CHARACTER TRAIT
• THE INDELIBILITY OF A CHARACTER TRAIT OVER TIME

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AS A RESULT OF THESE UNCERTAINTIES --

• CHARACTER EVIDENCE IS NORMALLY INADMISSIBLE AT A
  TRIAL, EXCEPT TO IMPEACH WITNESS BY SHOWING POOR
  VERACITY TRAIT
• NARROW ADDL. EXCEPTIONS FOR CRIMINAL DEFENDANTS
  TO INVOKE
• VIRTUALLY NO ADDL EXCEPTIONS IN CIVIL CASES

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HABIT EVIDENCE

• DIFFERS FROM CHARACTER EV. IN THAT NO MORAL
  JUDGMENT IS INVOLVED
• EXAMPLES
• WALKING ON SHADY SIDE OF STREET
• TYING LEFT SHOE FIRST
• KEEPING BILLS IN KITCHEN DRAWER

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HABIT EVIDENCE

• IS THOUGHT TO BE MORE RELIABLE AS AN INDICATOR OF
  CONDUCT ON A PARTICULAR OCCASION
• IS THEREFORE ADMISSIBLE TO PROVE CONFORMING
  CONDUCT
• HENCE IS UNLIKE CHARACTER TRAIT EVIDENCE
  (NORMALLY INADMISSIBLE TO PROVE CONFORMING
  CONDUCT)

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DIFFICULT DIFFERENTIATIONS

• DISTINCTION BETWEEN CHARACTER EV. (INADMISSIBLE)
  AND HABIT EV. (ADMISSIBLE)
• WHETHER MORAL JUDGMENT IS INVOLVED

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EXAMPLES OF CHARACTER TRAITS (INADMISSIBLE)

• ALWAYS DRIVING CAREFULLY
• ALWAYS FOLLOWING DIRECTIONS ON OPENING OF
  CANISTERS OF COMPRESSED GAS
• ALWAYS CHECKING ON THE BABY
• ALWAYS IGNORING MEDICAL ADVICE
• ALWAYS FIRING A GUN RANDOMLY

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SOME DIFFICULT DIFFERENTIATIONS

• ALWAYS MOWING THE LAWN WHEN THE GRASS GETS LONG?
• ALWAYS WASHING HANDS BEFORE EATING?
• NEVER WEARING CLEAN CLOTHES?
• NEVER SAYING NO TO SEX?

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THREE TIMES CHARACTER EV. IS OK IN CRIMINAL CASES

• R 404
• DEFENDANT CAN INITIATE RE. HIS OWN CHARACTER
• DEFENDANT CAN INITIATE RE. VICTIMS CHARACTER
• -- IN A HOMICIDE CASE, D CAN INITIATE BY
  NON-CHARACTER EVIDENCE AS WELL
• EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR
  VERACITY TRAIT

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CIVIL CASES VERY RARE

• IMPEACHMENT OF WITNESS BY POOR VERACITY TRAIT
  (SELDOM DONE)
• ALSO 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

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IN THE FEW CASES WHERE CHARACTER TRAIT EVIDENCE
IS ALLOWED

• RULE 405 SPECIFIES METHODS OF ATTACK
• A GENERAL REPUTATION WITNESS
• AN GENERAL OPINION WITNESS
• ON CROSS, SPECIFIC INSTANCES OF THE TRAIT

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WHEN WOULD CROSS ON SPECIFIC INSTANCES ARISE ?

• CROSS-EXAM OF THE TARGET WITNESS DID YOU EVER
  STEAL?
• CROSS-EXAM OF THE GOOD-CHARACTER WITNESS DO YOU
  KNOW HE STOLE?

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SPECIAL NOTE ON RULE 404(b)

• THIS RULE DOES NOT DEAL WITH PROVING CHARACTER
  (PROPENSITY)
• IT INVOLVES PROOF OF BAD DEEDS, BUT ---
• IT IS OFFERED NOT TO SHOW PROPENSITY, BUT TO SHOW
  M.O., OR CULPRIT IDENTITY, OR PLAN, ETC.

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WHATS THE DIFFERENCE?

• 404(b) PROOF CAN ASSUME THE DEFENDANT HAS A
  STERLING CHARACTER IN GENERAL

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• 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, HE HAS ROBBED
  THREE OTHER BANKS WITH AN ORANGE SKI MASK ON AND
  A BRASS-INLAID SHOTGUN IN HIS LEFT HAND
• THEREFORE, THIS PERSON NORMALLY OF GOOD CHARACTER
  PROBABLY DID THIS JOB R404(b) PATTERN

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404(b) ADMISSIBILITY REQUIRES A PATTERN

• HOW MANY INSTANCES IS FOR THE JUDGE
• THE MORE UNIQUE THE M.O., THE FEWER INSTANCES
  NEEDED FOR ADMISSIBILITY
• EXAMPLE DS TWO EX-WIVES WERE ELECTROCUTED IN
  BATHTUBS
• EXAMPLE D LISTED A NONEXISTENT CHARITY FOR
  DEDUCTION IN THREE OF THE FOUR TAX YEARS PRIOR TO
  OFFENSE CHARGED

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RAPE SHIELD RULE

• FOR MANY CENTURIES, CONSENT TO SEX WAS REGARDED
  AS A CHARACTER FLAW
• THEREFORE, DEFENSE COULD INITIATE THE ISSUE OF
  THE ALLEGED VICTIMS LOOSE MORAL CHARACTER
  AND USUALLY DID

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• 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

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VICTIMS PRIOR SEXUAL HISTORY NOW LIMITED TO ACTS
WITH THE DEFENDANT AND NEAR-TERM ACTS WITH OTHERS

• NEAR-TERM ACTS ARE TO SHOW OTHERS ARE SOURCE OF
  SCRATCHES, BRUISES, ETC.
• ACTS MUST BE WITHIN TIME FOR HEALING OF SCRATCHES
  AND BRUISES

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CIVIL CASES

• Part (b)(2) of RULE 412
• PRIOR SEXUAL HISTORY IS BROADLY ALLOWED, SUBJECT
  TO PROBATIVENESS STANDARD
• NO REPUTATION EVIDENCE, JUST THE FACTS

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EXAMPLES OF CIVIL CASESWHERE 4412(b) APPLIES

• SUIT BY VICTIM FOR ASSAULT
• WRONGFUL DEATH ACTION BY VICTIMS ESTATE

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PROCEDURE IN CIVIL AND CRIMINAL CASES

• Part (c) of RULE 412
• PRIOR NOTICE REQUIRED
• IN CAMERA PRE-HEARING REQUIRED
• PROBABLY AS IMPORTANT AS THE SUBSTANTIVE CHANGES
  TO THE LAW

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TEXAS VERSION

• NO CIVIL RAPE SHIELD RULE
• IN CRIMINAL CASES, SIMILAR TO FEDERAL RULE
• NO REPUTATION OR OPINIONS ALLOWED
• SPECIFIC INSTANCES HIGHLY LIMITED
• EXPLAINING SCRATCHES AND BRUISES, or
• ACTS WITH DEFENDANT, or
• A FEW OTHER (RARE) INSTANCES

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TEXAS PROCEDURE

• SIMILAR TO FEDERAL RULE
• NOTICE
• IN CAMERA HEARING

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TEXAS Part (e) PROMISCUOUS CHILDREN ?

• IN CASES OF SEXUAL ASSAULT, INDECENCY WITH A
  MINOR, ETC.
• TEENAGE (14-16) GIRLS PROMISCUITY CAN BE PROVED
  IN THE OLD WAY

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BAD GUY RULES 413-415

• CAN BE ARGUED AS A DANGEROUS EXTENSION OF THE
  PATTERN EVIDENCE RULE R. 404(b)
• TEXAS DOESNT HAVE THESE RULES

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RULE 413

• IN A PROSECUTION FOR SEXUAL ASSAULT ON Ms. V THAT
  OCCURRED ON JULY 1, 2002, ANY OTHER ACT OF SEXUAL
  ASSAULT BY D., ON ANYONE, AT ANY TIME, CAN BE
  PROVED BY WITNESSES OR OTHER ADMISSIBLE EVIDENCE
• DOESNT MATTER IF D. WAS EVER CHARGED, CONVICTED,
  OR EVEN ACQUITTED IN THE OTHER CASES

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EXAMPLE

• RAPE TRIAL
• PROS. CAN BRING IN EVIDENCE (E.G., WITNESSES) OF
  CONSENSUAL SEX WITH A 16-YEAR-OLD, NINE YEARS
  EARLIER IT IS A SPECIES OF SEXUAL ASSAULT

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RULE 414

• IN A TRIAL FOR CHILD MOLESTATION, WITNESSES TO
  ANY OTHER CHILD MOLESTATIONS BY D. CAN TESTIFY
• DOESNT MATTER WHAT THE GENDER WAS
• DOESNT MATTER IF D. WAS ACCUSED OR TRIED

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RULE 415

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

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BAD GUY RULES ARE CONTROVERSIAL

• NOTE THE MANDATORY WORDING OF THE RULES IS
  ADMISSIBLE
• NORMALLY THE JUDGE HAS AVAILABLE SOME PROTECTION
  UNDER R 403 UNFAIR PREJUDICE
• COURTS HAVE IN MANY CASES EXERCISED DISCRETIONARY
  POWER TO EXCLUDE UNDER R 403

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• THE SOCIAL ILLS OF CHILD ABUSE ARE LARGE
• YET, MEANINGFUL DEFENSE AGAINST MULTIPLE ACCUSERS
  IS ALL BUT IMPOSSIBLE
• PROPONENTS D. BROUGHT ON HIS INDEFENSIBLE
  SITUATION

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REMEDIAL MEASURES FOLLOWING AN INCIDENT

• NOT ADMISSIBLE TO SHOW NEGLIGENCE R. 407
• WE WANT TO ENCOURAGE REPAIRS
• IS ADMISSIBLE TO SHOW THE FOLLOWING, IF THEY ARE
  CONTROVERTED

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• OWNERSHIP OR CONTROL (ITS NOT MY HOUSE)
• FEASIBILITY OF BETTER CONDITION OR DESIGN (I DID
  EVERYTHING I COULD)

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FAILED SETTLEMENT DISCUSSIONS RULE 408

• COMMENTS OR PROPOSALS ARE INADMISSIBLE TO SHOW
  LIABILITY
• THEY CAN BE USED TO GUIDE DISCOVERY

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• SETTLEMENT COMMENTS CAN ALSO BE USED TO SHOW
  POINTS OTHER THAN LIABILITY
• BIAS OR PREJUDICE (ILL DO ANYTHING TO GET
  YOU! I HAVE ALWAYS DESPISED YOU!)
• NEGATIVING CONTENTION OF UNDUE DELAY TO DEFEAT
  LACHES (WE WERE HAVING SETTLEMENT DISCUSSIONS)

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• PROVING AN OBSTRUCTION CHARGE
• OBSTRUCTION REQUIRES INTENT
• E.G., SETTLEMENT TERMS MAY HAVE INCLUDED
  SHREDDING OF DISCOVERY DOCUMENTS, SO THAT THEY
  WOULD NOT BE FOUND BY GOVT

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SOME DIFFICULT AREAS UNDER THIS RULE

• IMPEACHMENT
• IN SETTLEMENT HE SAID DRIVER WAS WORKING FOR HIM
  AT TRIAL HE TESTIFIES HE NEVER HEARD OF THIS
  DRIVER
• WHAT AMOUNT OF COMPENSATION IS REASONABLE FOR
  AN I.P. INFRINGEMENT
• EV. FROM SETTLEMENTS IN OTHER CASES, INVOLVING
  OTHER INDUSTRY PLAYERS

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CRIMINAL PLEA BARGAININGRULE 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)

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• WITHDRAWN PLEAS OF GUILTY OR NOLO
• CANNOT BE USED IN LATER CASES
• ADMISSIONS DURING TAKING OF A PLEA
• ADMISSIBILITY TRACKS ABOVE RULES FOR PLEAS
• NOTE FOR NOT GUILTY PLEA, THERE WILL BE NO
  ACCOMPANYING STATEMENTS

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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

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• HALF-OPEN DOOR CONCEPT APPLIES
• IF D. TESTIFIES
• TO ANOTHER PART OF WHAT WAS SAID,
• OR CONTRA TO WHAT WAS SAID,
• CURRENT PROTECTION IS LOST
• IN A LATER PROSECUTION FOR PERJURY, NO
  PROTECTION
• PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA
  BARGAIN AS THE TRUE STORY