chapter 5: special exclusions p. janicke 2009. chap. 5 -- special exclusions2 character evidence...

CHAPTER 5:SPECIAL EXCLUSIONS

P. JANICKE

2009

2009 Chap. 5 -- Special Exclusions 2

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:

– 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


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


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


EXAMPLES OF CHARACTER TRAITS (INADMISSIBLE)

• ALWAYS DRIVING CAREFULLY

• ALWAYS IGNORING MEDICAL ADVICE


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]


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


CAVEAT:

• CHARACTER IS ALMOST NEVER AN “ELEMENT” OF A CIVIL CASE

• “ELEMENT” MEANS A POINT THAT IS ESSENTIAL TO THE CLAIM


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


FOR THIS COURSE:

• KNOW THE GENERAL RULE:

– NO CHARACTER EVIDENCE ALLOWED AT ALL IN CIVIL CASES, EXCEPT DISHONESTY USED TO IMPEACH A WITNESS


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:


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 >>>


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]


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


WHAT’S THE DIFFERENCE?

• 404(b) PROOF DOES NOT ADDRESS THE DEFENDANT’S PROPENSITY IN GENERAL TERMS

• 404(b) PROOF IS HIGHLY SPECIFIC


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]


• 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


HABIT EVIDENCE: A FORM OF HIGHLY SPECIFIC PROPENSITY

EVIDENCE

• PATTERN OF AUTOMATIC, UNREFLECTIVE CONDUCT

• HIGHLY SPECIFIC AS TO DETAILS

• IS ADMISSIBLE – RULE 406


EXAMPLES OF HABITS –

• WALKING ON SHADY SIDE OF STREET

• TYING LEFT SHOE FIRST

• KEEPING BILLS IN KITCHEN DRAWER

• ALL ARE SPECIFIC AND ADMISSIBLE


EXAMPLES OF HABITS –

• WALKING ON SHADY SIDE OF STREET

• TYING LEFT SHOE FIRST

• KEEPING BILLS IN KITCHEN DRAWER

• ALL ARE ADMISSIBLE


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]


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


• 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


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


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


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


EVEN FOR THE NARROW EXCEPTIONS (CONDUCT WITH D; CUTS AND BRUISES)

• AN IN CAMERA HEARING IS REQUIRED IN ADVANCE


“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


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


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


• 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!!]


RULE 415

• CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION

• EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE


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]


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


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:

– OWNERSHIP OR CONTROL (“THAT’S NOT MY HOUSE.”)

– FEASIBILITY OF BETTER CONDITION OR DESIGN (“I DID EVERYTHING POSSIBLE.”)


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


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


• 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”)


3. 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’”


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)


• 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]


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!


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


• 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


• IN A LATER PROSECUTION FOR PERJURY, NO PROTECTION:

– PROSECUTOR CAN INTRODUCE WHAT D SAID AT PLEA BARGAIN MEETING AS THE TRUE STORY

chapter 5: special exclusions p. janicke 2009. chap. 5 -- special exclusions2 character evidence...

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