Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.


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C. Character and Habit (266)

Problem - The Careless Smoker (268)

The note at p. 269 outlines most of the discussion points for this and the next two problems.

The evidence is relevant. It is not evidence of character because a disposition to fall asleep while smoking is not a general disposition that can be manifested by a variety of forms of behavior. It is a specific disposition which manifests itself in a narrow way. The admissibility of the evidence should, therefore, be decided under FRE 403.

It is also not evidence of habit: S did not fall asleep with a live cigarette each time he went to sleep. The example thus falls into a middle ground of prior similar acts which neither clearly qualify as admissible habit under FRE 406 nor clearly are inadmissible under the general propensity rule of FRE 404(a). The issue of the admissibility of similar acts which fall into this middle ground is handled on a case-by-case basis under FRE 403.

The problem is adopted from Brownhill v. Kivlin 317 Mass. 168 (1944), in which the evidence, offered through the fire department chief, was held properly excluded.

Problem - Smoking v. Speeding (268)

The point:

The nature of prior similar acts (whether or not they amount to habit) may raise substantial problems of prejudice.

Answer and analysis:

There would not seem to be serious problems of "waste of time" in the proof of these similar acts (and that is often the most serious problem see Problem - "A Nice Piece of Change," and the film from which the problem is drawn, Easerly v. Letwin) However there is a substantial risk here that the factfinder would decide the case based on a prejudice against pot-smokers and not on the basis of the best assessment of what actually happened. Our judgment would be to admit the evidence nevertheless. The question of admissibility would clearly be the trial judge's call, given the range of discretion accorded to the trial judge in making the FRE 403 balance.

Further discussion:

P's roommate testifies about the pattern of P's activities, not by testifying about specific instances, but by giving his opinion that P generally smokes dope before going to the movies. Should W be allowed to testify by opinion in this way?

FRE 406 initially contained an explicit authorization of opinion testimony to prove habit. Congress removed it, doing so in a manner designed not to take a position one way or the other on the desirability of opinion testimony to prove habit. The permissibility of this opinion should be decided, therefore, under FRE 701. Since W's opinion is rationally based on his perception and helpful to a clear understanding of his testimony, the testimony should be permitted.

Problem - The Acrobatic Driver: A Reprise (269)

The point:

How one packages evidence may determine whether the evidence will qualify as habit evidence.

Answer and Analysis:

W3's testimony is highly relevant and concerns sufficiently "habitual" behavior to be admitted as evidence of habit. The testimony shows that B invariably went through the intersection without stopping. The testimony implies that this behavior was so regular that B never stopped.

The difference between this testimony and the testimony of WI and W2 is that this testimony is narrower, validated by more observations, and more specifically relevant because it concerned the same location as the accident and dealt directly with not stopping at the sign.

In some jurisdictions, habit evidence will be received only if no eyewitnesses testify. Limiting habit evidence in this manner reflects its second-class status -- only if there is a strong need for the evidence will it be received. There is no reason for a er se restriction on its use. In making the balancing test of FRE 403, however, the trial judge must consider whether the probative value of the evidence justifies the time and trouble its proof will engender. This is a contextual judgment. If the proof of habit ( of similar acts which do not amount to habit) is cumulative of the testimony of well-situated eye-witnesses, then difficulties in the manner and time needed for proof will loom proportionately larger.

Meyer v. United States, 464 F. Supp. 317 (D. Colo. 1979)(271)

Meyer is a straight-forward example of the use of Rule 406 to admit evidence of the routine practice of a business. The case points out the troublesome aspects of allowing defensive use of habit evidence. There is a potential for abuse in the self-serving situation presented, allowing a party to claim he always did an act so he must have done so on the particular occasion concerned. On the other hand, parties are unlikely to rely on habit evidence except when no other direct evidence is available. The inherent weakness of this "must have been" type of evidence will be self-policing.

Phinney differs from Meyer in that the motorman in Phinney was not shown to have a regular response to a specific situation -- an invariable response to an often repeated situation. He was shown to have a general disposition to be reckless, not an invariable response to an often repeated situation of approaching an intersection where a car was stuck on the tracks.


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