chapter 5: special exclusions p. janicke 2006. chap. 5 -- special exclusions2 character evidence...

CHAPTER 5:SPECIAL EXCLUSIONS

P. JANICKE

2006

2006 Chap. 5 -- Special Exclusions 2

CHARACTER EVIDENCE

• MEANING: EVIDENCE OF A PERSON’S MORAL TRAIT, OFFERED TO PROVE CONFORMING CONDUCT ON A PARTICULAR OCCASION

• SOMETIMES CALLED “PROPENSITY”

• EXAMPLES:– HE’S A DRUNK– SHE’S A LIAR– HE’S A THIEF


• “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


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 POOR VERACITY TRAIT

– NARROW ADD’L. EXCEPTIONS FOR CRIMINAL DEFENDANTS TO INVOKE

– VIRTUALLY NO ADD’L EXCEPTIONS IN CIVIL CASES


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


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)


DIFFICULT DIFFERENTIATIONS

• DISTINCTION BETWEEN CHARACTER EV. (INADMISSIBLE) AND HABIT EV. (ADMISSIBLE):

– WHETHER MORAL JUDGMENT IS INVOLVED


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


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?


THREE TIMES CHARACTER EV. IS OK IN CRIMINAL CASES

R 404 :1. DEFENDANT CAN INITIATE RE. HIS OWN

CHARACTER

2. DEFENDANT CAN INITIATE RE. VICTIM’S CHARACTER

-- IN A HOMICIDE CASE, D CAN INITIATE BY NON-CHARACTER EVIDENCE AS WELL

3. EITHER SIDE CAN IMPEACH A WITNESS BY SHOWING POOR VERACITY TRAIT


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


IN THE FEW CASES WHERE CHARACTER TRAIT EVIDENCE IS

ALLOWED :

• RULE 405 SPECIFIES METHODS OF ATTACK:

1. A GENERAL REPUTATION WITNESS

2. AN GENERAL OPINION WITNESS

3. ON CROSS, SPECIFIC INSTANCES OF THE TRAIT


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?


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.


WHAT’S THE DIFFERENCE?

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


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]


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: D’S 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


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 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


CIVIL CASES

• Part (b)(2) of RULE 412

• PRIOR SEXUAL HISTORY IS BROADLY ALLOWED, SUBJECT TO PROBATIVENESS STANDARD

• NO REPUTATION EVIDENCE, JUST THE FACTS


EXAMPLES OF CIVIL CASESWHERE 4412(b) APPLIES

• SUIT BY VICTIM FOR ASSAULT

• WRONGFUL DEATH ACTION BY VICTIM’S ESTATE


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


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


TEXAS PROCEDURE

• SIMILAR TO FEDERAL RULE– NOTICE– IN CAMERA HEARING


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


“BAD GUY” RULES: 413-415

• CAN BE ARGUED AS A DANGEROUS EXTENSION OF THE PATTERN EVIDENCE RULE [R. 404(b)]

• TEXAS DOESN’T HAVE THESE RULES


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

• DOESN’T MATTER IF D. WAS EVER CHARGED, CONVICTED, OR EVEN ACQUITTED IN THE OTHER CASES


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”


RULE 414

• IN A TRIAL FOR CHILD MOLESTATION, WITNESSES TO ANY OTHER CHILD MOLESTATIONS BY D. CAN TESTIFY

• DOESN’T MATTER WHAT THE GENDER WAS

• DOESN’T MATTER IF D. WAS ACCUSED OR TRIED


RULE 415

• CIVIL TRIALS FOR SEXUAL ASSAULT OR CHILD MOLESTATION

• EV. OF ANY PRIOR INCIDENT IS LIKEWISE ADMISSIBLE


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


• 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


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 (“IT’S NOT MY HOUSE”)

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


FAILED SETTLEMENT DISCUSSIONS – RULE 408

• COMMENTS OR PROPOSALS ARE INADMISSIBLE TO SHOW LIABILITY

• THEY CAN BE USED TO GUIDE DISCOVERY


• SETTLEMENT COMMENTS CAN ALSO BE USED TO SHOW POINTS OTHER THAN LIABILITY:

1. BIAS OR PREJUDICE (“I’LL DO ANYTHING TO GET YOU!” “I HAVE ALWAYS DESPISED YOU!”)

2. NEGATIVING CONTENTION OF UNDUE DELAY – TO DEFEAT LACHES (“WE WERE HAVING SETTLEMENT DISCUSSIONS”)


3. 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 GOV’T


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


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

• ADMISSIONS DURING TAKING OF A PLEA:

ADMISSIBILITY TRACKS ABOVE RULES FOR PLEAS

• [NOTE: FOR “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


• 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

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