Understanding Special Exclusions in Character Evidence Law

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Explore the nuances of character evidence in legal contexts through Professor Janicke's insights on special exclusions, including the limitations and exceptions in civil and criminal cases, the reasons character evidence is often disallowed, and the application of Rule 404(b) for specific circumstances. Learn about the intricacies of introducing character evidence, the rare instances where it is allowed, and examples of disallowed general character traits.

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CHAPTER 5: SPECIAL EXCLUSIONS Prof. JANICKE 2022

CHARACTER EVIDENCE assigned: RULE 404 2022 2 Chap. 5 -- Special Exclusions

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 2022 3 Chap. 5 -- Special Exclusions

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 2022 4 Chap. 5 -- Special Exclusions

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 2022 5 Chap. 5 -- Special Exclusions

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 !! Chap. 5 -- Special Exclusions 2022 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 2022 7 Chap. 5 -- Special Exclusions

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 2022 8 Chap. 5 -- Special Exclusions

EXAMPLES OF GENERAL CHARACTER EVIDENCE (DISALLOWED) EXAMPLE1: D HAS A HISTORY OF THEFTS EXAMPLE2: D HAS A HISTORY OF KILLING PEOPLE THESE SHOW ONLY A GENERAL PROPENSITY, i.e., A CHARACTER TRAIT NOT ALLOWED 2022 9 Chap. 5 -- Special Exclusions

HABIT EVIDENCE assigned: RULE 406 2022 10 Chap. 5 -- Special Exclusions

HABIT EVIDENCE IS ALLOWED MUST BE A VERY SPECIFIC PATTERN OF UNREFLECTIVE CONDUCT; USUALLY WITH NO MORAL JUDGMENT INVOLVED 2022 11 Chap. 5 -- Special Exclusions

EXAMPLES SHOWING THE DISTINCTIONS: HE ALWAYS DRIVES CAREFULLY [NOT ALLOWED; TOO GENERAL FOR HABIT] HE NEVER LEAVES KEYS IN THE CAR [ALLOWED; SPECIFIC PATTERN] 2022 12 Chap. 5 -- Special Exclusions

PROBLEMS/CASES 5A 5B 5C 5E 5F 5G 5H 2022 13 Chap. 5 -- Special Exclusions

RAPE SHIELD RULE assigned: RULE 412 (adopted 1978) 2022 14 Chap. 5 -- Special Exclusions

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 2022 15 Chap. 5 -- Special Exclusions

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 Chap. 5 -- Special Exclusions 2022 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 2022 17 Chap. 5 -- Special Exclusions

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 2022 18 Chap. 5 -- Special Exclusions

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 Chap. 5 -- Special Exclusions 2022 19

assigned: RULE 412(c) 2022 20 Chap. 5 -- Special Exclusions

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) 2022 21 Chap. 5 -- Special Exclusions

RAPE SHIELD IN CIVIL CASES R. 412(c) 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 2022 22 Chap. 5 -- Special Exclusions

PROBLEMS/CASES 5J 2022 23 Chap. 5 -- Special Exclusions

BAD GUY RULES assigned: RULES 413-415 2022 24 Chap. 5 -- Special Exclusions

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! 2022 25 Chap. 5 -- Special Exclusions

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 2022 26 Chap. 5 -- Special Exclusions

SAME FOR CHILD MOLESTATIONS ANY OTHER CHILD MOLESTATION BY D, AT ANY TIME, ANYWHERE, AGAINST ANYONE, CAN BE ALLOWED SUBJECT ONLY TO UNFAIR PREJUDICE 2022 27 Chap. 5 -- Special Exclusions

NO ARREST OR CONVICTION IS NEEDED WITNESSES ARE THE USUAL WAY OF PROVING FELONY CONVICTION RECORDS, IF ANY, CAN ALSO BE USED 2022 28 Chap. 5 -- Special Exclusions

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 2022 29 Chap. 5 -- Special Exclusions

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] 2022 30 Chap. 5 -- Special Exclusions

PROBLEMS/CASES 5L I TOLD HIM 5M DEATH ON THE HIGHWAY 5O WAS HE SERVED 2022 31 Chap. 5 -- Special Exclusions

REMEDIAL MEASURES assigned: RULE 407 2022 32 Chap. 5 -- Special Exclusions

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. ) 2022 33 Chap. 5 -- Special Exclusions

CASE: TUER 2022 34 Chap. 5 -- Special Exclusions

FAILED SETTLEMENT DISCUSSIONS ASSIGNED: RULE 408 2022 35 Chap. 5 -- Special Exclusions

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 2022 36 Chap. 5 -- Special Exclusions

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 2022 37 Chap. 5 -- Special Exclusions

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 OBSTRUCTION CHARGE 2022 38 Chap. 5 -- Special Exclusions

PROBLEM 5P 2022 39 Chap. 5 -- Special Exclusions

GUILTY PLEA ADMISSIBLE IN FOLLOW-ON LITIGATION? assigned RULE 410(a)(1, 2, 3) 2022 40 Chap. 5 -- Special Exclusions

STATEMENTS (ADMISSIONS) DURING COURT S TAKING OF A GUILTY PLEA: ADMISSIBILITY TRACKS RULE 410; e.g., CANNOT BE USED IF PLEA IS WITHDRAWN 2022 41 Chap. 5 -- Special Exclusions

OUT-OF-COURT PLEA BARGAINING STATEMENTS ASSIGNED RULE 410(a)(4) 2022 42 Chap. 5 -- Special Exclusions

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 ADMISSIBLE 2022 43 Chap. 5 -- Special Exclusions

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 2022 44 Chap. 5 -- Special Exclusions

CAVEAT: HALF-OPEN DOOR assigned again: RULE 410 (in full) 2022 45 Chap. 5 -- Special Exclusions

PROBLEMS/CASES 5R I USED HIS STUFF 5S WE CAN TALK 2022 46 Chap. 5 -- Special Exclusions

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 2022 47 Chap. 5 -- Special Exclusions