Thursday, December 20, 2012
Back in the Habit: Eastern District of Arkansas Finds School Disciplinary Records Inadmissible as Habit Evidence
Federal Rule of Evidence 404(b)(1) provides that
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
That said, Federal Rule of Evidence 406 provides that
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
So, when is prior act evidence inadmissible character evidence under Rule 404(b)(1) and when is it admissible habit evidence under Rule 406? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Arkansas in Walls v. Shelby, 2012 WL 6569775 (E.D.Ark. 2012).
In Shelby, Karen Walls, individually and as parent and next friend of Chadarious Avery, sued Roderick Shelby Jr. on a civil rights violation theory claiming that Shelby used excessive force when he beat Avery in an incident in 2011 at the juvenile detention center in Pinebluff, Arkansas. In response, Shelby sought to admit evidence of Avery's school disciplinary records. In turn, Walls filed a motion in limine to have them excluded.
In response, Shelby claimed "that Mr. Avery's prior fighting r[ose] to the level of habit evidence and, therefore, should be admissible under Rule 406, despite Rule 404(b)'s prohibition." The Eastern District of Arkansas disagreed, finding that
Mr. Avery's prior fighting d[id] not rise to the level of a habit within the meaning of Rule 406, which provides that "[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice." As stated in the advisory notes to Rule 406, "[a] habit ... is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic."...The advisory notes also address the distinction between character and habit and state in pertinent part:
The rule is consistent with prevailing views. Much evidence is excluded simply because of failure to achieve the status of habit. Thus, evidence of intemperate "habits" is generally excluded when offered as proof of drunkenness in accident cases,...and evidence of other assaults is inadmissible to prove the instant one in a civil assault action....
Mr. Shelby asserts that Mr. Avery had a habit of fighting or being aggressive when mad but offers little specific evidence that Mr. Avery had a practice of meeting a particular situation with specific conduct. Rather, Mr. Shelby asserts generally that Mr. Avery "demonstrated a practice of being angry or upset followed by physical assault on the object of his anger"....Mr. Shelby asserts that Mr. Avery was suspended multiple times from school for fighting and that Mr. Avery fought regularly as a gang member. This alone fails to demonstrate that Mr. Avery habitually responded to a particular situation with a specific type of conduct. Mr. Shelby does not provide the Court with sufficient specific instances of Mr. Avery responding to anger with physical violence such that the Court can conclude that doing so rises to the level of habit within the meaning of Rule 406. The Court notes that even if this evidence were admissible under Rule 406, it would be inadmissible under Rule 404(b) and 403.
I agree with the court that Avery's behavior was neither committed (a) with sufficient frequency and regularity nor (b) in response to a specific set of stimuli to qualify as habit evidence under Rule 406. I'm a bit confused, though, by the court's conclusion that "even if this evidence were admissible under Rule 406, it would be inadmissible under Rule 404(b)...." That makes no sense. If Rule 404(b) trumped Rule 406 in this regard, it would render Rule 406 a nullity. Instead, if a court finds that evidence is admissible under Rule 406, it should never be deemed inadmissible under Rule 404(b).