Class 11: Crimes, Wrongs and Other Acts; Habit Evidence - Feb. 13 Flashcards
Survivors of a plane crash brought a negligent entrustment claim against the airline in federal court. They alleged that (1) the crash was caused by pilot error, (2) the pilot had made similar errors repeatedly in training, (3) the pilot had a reputation among other pilots as being reckless, and (4) the airline knew the pilot was incompetent and reckless. At trial, the plaintiffs moved to admit the pilot’s training records as evidence of his prior errors. The airline objected, arguing that character to prove conformity was not permissible in civil cases.
Should the court admit the pilot’s training records? (Q)
Yes. The court should admit the pilot’s training records because the pilot’s character for recklessness or incompetence is an essential element of the plaintiff’s case. If character is an essential element of a charge, claim, or defense, a party can prove the character with evidence of specific instances of conduct or with reputation or opinion evidence.
Here, in order to prove negligent entrustment, the plaintiffs must show that the pilot was unlicensed, incompetent, or reckless and that the airline knew or should have known that the pilot was unlicensed, incompetent, or reckless. The pilot’s character for incompetence or recklessness is an essential element of the negligent entrustment claim and the training records are evidence that could establish that character. Thus, the court should admit the pilot’s training records. (FRE 404)
Can propensity be proven by specific act evidence? (Merritt)
No. Propensity can only be proven by reputation or opinion evidence. (FRE 405) (Ch 30 Quiz)
Can motive be proven by specific act evidence? (Merrit)
Yes. (FRE 404b) (Ch 30 Quiz)
Can identity be proven by specific act evidence? (Merritt)
Yes. (FRE 404b) (Ch 30 Quiz)
Can intent and lack of accident be proven by specific act evidence? (Merritt)
Yes. (FRE 404b) (Ch 30 Quiz)
Can knowledge be proven by specific act evidence? (Merritt)
Yes. (FRE 404b) (Ch 30 Quiz)
If the defendant calls a character witness, can the prosecution impeach the witness by asking questions about the defendant’s specific acts if they are contrary to the character trait the witness described? (Merritt)
Yes. (FRE 405) (Ch 30 Quiz)
When can the prosecution attack the defendant’s character? (Merritt)
Only after the defendant testifies in their own defense or calls a positive character witness. (Ch 30 Quiz)
Is specific act evidence admissible if offered to prove character directly? (Merritt)
Yes. (FRE 405) (Ch 30 Quiz)
What is habit evidence? (Q)
Habit evidence is evidence of a person’s customs or standard response in a given, recurring situation. Habit evidence is generally offered to demonstrate that a person acted in conformity with that habit on a particular occasion. The more specific and more regular the conduct is, the more likely a court will consider it a habit.
Is evidence of a person’s habit admissible to show that the person acted in conformity with that habit on a particular occasion? (Q)
Yes. Evidence of a person’s habit is admissible to show that the person acted in conformity with that habit on a particular occasion. (FRE 406)
What is the difference between character and habit? (Q)
Character is a description of a person’s general disposition or disposition as it relates to a general trait. A person can be honest or dishonest, thrifty or a spendthrift, kind or unkind, or peaceful or violent. Habit is a description of a person’s specific response to a repeated situation and is often automatic or unconscious. A person could always drive the same way to work or park in the same spot.
A patient sued a dentist claiming that the patient suffered permanent numbness after the dentist severed a nerve during surgery. At trial, the patient testified that the dentist failed to warn the patient that nerve severance was a risk of this surgery. The dentist testified that the dentist did not recall this patient’s surgery but that the dentist had performed the surgery weekly for six years and always warned patients of the risk just prior to surgery. The dentist timely requested the following instruction: “You can consider this evidence of the defendant’s habit in determining whether the defendant acted in conformity with that habit on the occasion in question. The weight you give to habit evidence is entirely up to you.” The patient objected that this was an improper use of character to prove conformity.
Should the court give the jury instruction? (Q)
Yes. The court should give the jury instruction because this is a proper use of habit evidence. Evidence of a person’s habit, whether corroborated or not, is relevant to prove that the person acted in conformity with that habit on another occasion. In order to be a habit, a person’s behavior in response to a repeated specific situation must be specific, regular, and largely non-volitional.
Here, the dentist has shown that she had a habit of warning patients of the risks of nerve severance. The behavior was specific, repeated over six years, and did not vary by patient. The fact that her testimony was not corroborated goes to the weight of the evidence, not its admissibility. As a result, the jury can conclude that on this occasion the dentist acted in accordance with the dentist’s habit. Thus, the court should give the jury instruction.
An employee of a railroad brought a claim alleging that he tripped over a lump of coal on a walkway near tracks in the railyard and injured his leg. One of the plaintiff’s witnesses, a longtime railroad employee, testified that rail cars full of coal were driven back and forth in the railyard daily and passed a bump in the tracks that caused coal to regularly drop onto that walkway. The plaintiff timely requested the following instruction: “You may consider evidence concerning the routine practices of an organization in determining whether the defendant acted in conformity with that routine practice on the occasion in question. The weight you give to habit evidence is entirely up to you.” The railroad argued that the plaintiff could not use character to prove conformity.
Should the judge issue the jury instruction? (Q)
Yes. The court should issue the jury instruction because this is a proper use of habit evidence. Evidence of an organization’s routine practice can be admitted to prove that, on a particular occasion, the organization acted in accordance with its routine practice. The court can admit this evidence regardless of whether it is corroborated. Habit or routine practice evidence can be used for or against a party. In order to be a routine practice, the specific behavior in response to a repeated particular situation must be specific, regular, and largely non-volitional.
Here, the railroad employees always drove the cars in a specific way as they repeatedly passed a specific bump in the track that caused the dropped coal on the walkway. The jury can conclude that on this occasion the railroad acted in accordance with its routine practice. Thus, the judge should issue the jury instruction.
Harold is suing Avery, claiming that Avery ran a red light in her car and struck him as he crossed the street in a crosswalk. Avery claims that the light was green when she entered the intersection and that Harold was crossing the street against the light. Harold wants to call Ronald, Avery’s co-worker. If allowed to testify, Ronald will say that he has ridden with Avery hundreds of times and that Avery has a “habit of being a reckless driver.” Ronald will support this claim by testifying that Avery routinely runs red lights, drives at speeds significantly over the speed limit, and is inattentive to the road. Harold objects to this testimony. Should the judge admit or preclude Ronald’s testimony? (Merritt)
Preclude the evidence as improper propensity evidence. Although Ronald will testify using the word “habit,” this testimony is not actually habit testimony as defined by Rule 406. Habit is a regular and specific response to a specific type of situation. This testimony is not specific enough to be habit—it is purely propensity evidence and thus inadmissible in a civil case under Rule 404. (Ch 31 Quiz)
