Friday, February 1, 2013
Not a Happy Ending: Eastern District of Michigan Finds Habit Evidence Inadmissible in Masseuse's Appeal
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, let's say that a masseuse is charged with one count of third-degree criminal sexual conduct and six counts of fourth-degree criminal sexual conduct after four of his clients accused him of inappropriately touching them while he was massaging them. Can the masseuse call several of his other clients to testify pursuant to Rule 406 that he never inappropriately touched them? According to the recent opinion of the United States District Court for the Eastern District of Michigan in Parr v. Berghuis, 2012 WL 5906860 (E.D.Mich. 2012), the answer is "no."
In Berghuis, the facts were as stated above. After he was convicted of the crimes charged, the defendant appealed, claiming that the court erred by precluding him from presenting the testimony of his other clients as habit evidence. The Eastern District of Michigan disagreed, noting that
Courts have generally proceeded cautiously in permitting the admission of a pattern of conduct as habit, "because it necessarily engenders the very real possibility that such evidence will be used to establish a party's propensity to act in conformity with its general character, thereby thwarting Rule 404's prohibition against the use of character evidence except for narrowly prescribed purposes." Simplex, Inc. v. Diversified Energy Systems, 847 F.2d 1290, 1293 (7th Cir.1988).
"[H]abit refers to the type of non-volitional activity that occurs with invariable regularity. It is the non-volitional character of habit evidence that makes it probative." Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C.Cir.1989). Thus, activity that is extremely complicated is unlikely to be considered habit, since such activity would ordinarily be dependent on a significant thought process, as well as a number of contingencies, and all of this is inconsistent with the notion of habit as reflexive and semiautomatic....
Applying this reasoning to the case before it, then court then concluded that
A massage is a complex volitional activity, and performing one without inappropriately touching the client for a sexual purpose is the result of character not habit. That is, one does not make a habit of not committing criminal sexual conduct; rather, it is his character that tells him such conduct is repugnant. Therefore, there was nothing fundamentally unfair about excluding the proffered "habit" evidence. Petitioner's first claim is therefore without merit and will be denied despite the fact that it was not exhausted as a federal claim in the state courts.