Habit and Custom cases Assignment #19 Team Presentations - Law 16 - Spring 2015 Habit and Custom Cases Assignment # 19

Federal Rules of Evidence utilize two different concepts to classify evidence of an individual’s prior conduct/behavior. These two concepts are Rule Character Evidence and Rule Habit; Routine Practice.

BACKGROUND The standard of FRE 404 Character Evidence, is evidence of a person’s character or character trait and is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait (unless part of the narrow exceptions).

In contrast, rather than prescribed rules of exclusion under FRE 404, under FRE 406, evidence of habit is admissible.

DEFINITION “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit.”

To clarify: the standard is a "habit must reflect a regular practice of meeting a particular kind of situation with certain type of conduct, or a reflex behavior in a specific set of circumstances."

Rule 406 is an exception to the general exclusion of character evidence under the Federal Rules, and not as clearly defined. So, the courts are somewhat cautious in admitting the evidence.

In deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional (voluntary); (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity (frequency) of the examples of the conduct.

QUESTION Is the conduct done so repeatedly that it is reflexive or instinctual, and therefore suggestive that the person acted in conformity with the habit during the event in question?

(1) The more specific the conduct, the more likely Rule 406 can be applied; eg. Evidence that someone is a “careful driver” versus “someone who always buckles their seatbelt and has passengers do the same”

(2) The regularity with which the conduct occurs, meaning over the course of sufficient duration and the longer the duration, the more likely is a habit under 406. eg. Every time they drove, observed for the last year, 365 days;

3) The more frequently that someone has engaged in certain conduct, the more likely it is that the conduct will qualify as reflexive/semi-automatic. Unconscious behavior and second nature, such as what uniformly follows a stimulus. eg.”feels wrong” to drive without seatbelt;

Courts scrutinize the area of regularity the most to determine if 406 applies, on a case by case basis (and 403 applies too) Whether the conduct at issue has been performed with such repetition and regularity that it is “a reliable indicator of probable conduct”. Happened enough times in the past that it is more probably than not that the same occurred at the time in question.

Case #1: U.S. v. Lutrell, 612 F.2d 396 (8th Cir. 1980), 612 F.2d 396 (8th Cir. 1980) Lutrell was tried and convicted of failure to file income tax returns for the years 1974 and 1975 in violation of 26 U.S.C. Section Lutrell failed to timely file tax returns in three years subsequent to the years involved in the charges. Here, the habit standard was not met. Case law applied. Failing to file tax returns is a duty where habit was not a valid defense.

Case #2: Perrin v. Anderson et al, 784 F.2d 1040 (10th Cir. 1986), 784 F.2d 1040 (10th Cir. 1986) This case shows that there is no set number of past instances that courts consider to establish habit by repetition. The courts can be flexible in determining the number of times past conduct equals a habit. Here, four instances were sufficient for the court to determine that Perrin reacts violently and with aggression towards uniformed police officers. Additional instances could have been provided. Four was not a large number. Also, there was no contradictory evidence that showed instances when the behavior did not exist. It was established that it was in the presence of uniformed officers not all law enforcement.

Case #3 U.S. v. Newman 982 F.2d 665 (1st Cir.1992) 982 F.2d 665 (1st Cir.1992) Appellant claimed that the court committed error by excluding certain “habit” evidence proffered under FRE 406." For 406 to apply, there must be established the habitual nature of the alleged practice. Here, although the defense said that handcuffing occurred times, there was no precise standards followed in the cell block so the court found no foundation of habit. Also, failed to establish that the handcuffing practice regularly took place as a punitive for all prisoners by all guards and was a routine practice of the organization versus that of one individual in that organization. Sergeant MacDonald testified there was no “rule or practice that’s followed” about where to handcuff prisoners but that “the officers involved…at the time would decide where to handcuff them and how to do it.” The requisite regularity is tested by the ratio of reaction to situations. It is essential, therefore, that the regularity of the conduct alleged to be habitual rest on an analysis of instances numerous enough to support an inference of systematic conduct and to establish one’s regular response to a repeated specific situation.

Q: How do you distinguish (habit) from (character)? Under FRE 406, habit refers to a specific behavior that is continually repeated. Evidence of the habit of a person, whether corroborated or not and regardless of eyewitnesses, is relevant to prove that the conduct of the person was in conformity with the habit or routine practice. Character is a generalized description of one’s disposition whereas habit is specific. Uniformity and consistency are inherent in habits. Character is more generalized and not necessarily repetitive in nature.

Habit and character are closely related but have very different treatment under the FRE; Both FRE 404 and FRE 406 address propensity. However, when describing a behavioral inclination, a pattern of behavior is classified as character under FRE 404. When the behavior pattern is specific and tied to a regular routine, it constitutes habit.

In summary, FRE 406 is an evidence rule of admissibility rather than inadmissibility.