Friday, February 8, 2013
Back in the Habit: Supreme Court of West Virginia Finds Jury Instruction Constituted Improper Habit Evidence
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 or organization on a particular occasion was in conformity with the habit or routine practice.
The plaintiff, John T. Rodgers, appeal[ed] from an adverse judgment in the Circuit Court of Brooke County as to the ownership of 516 shares of stock in the Wellsburg National Bank. Plaintiff asserted that the stock belonged to the estate of his father, Hazlett M. Rodgers, Sr. The defendant below, Hazlett M. Rodgers, Jr., asserted that the stock was his separate property by virtue of various inter vivos gifts from his father. The trial court granted a directed verdict in favor of the defendant as to 336 shares of the stock on the ground that the plaintiff's claim to those shares was barred by the statute of limitations. A jury concluded that the remaining 180 shares belonged to the defendant as well.
The plaintiff thereafter appealed, claiming, inter alia, error with regard to "Defendant's Instruction No. 3, which advised the jury that if they found a pattern or plan in Mr. Rodgers, Sr.'s acts of giving bank stock to the defendant, they could also presume that this pattern or plan continued throughout his life." In addressing this argument, the Supreme Court of West Virginia began by noting that
Although the instruction did not use the term, it is clear from the discussion at trial that the parties and the court understood it to embrace the concept of "habit" under Rule 406 of the West Virginia Rules of Evidence.
The court then launched into the following extended discussion of Rule 406:
Rule 406 permits the introduction of "[e]vidence of the habit of a person...whether corroborated or not and regardless of the presence of eyewitnesses...to prove that the conduct of the person...on a particular occasion was in conformity with the habit[.]" In several cases prior to the adoption of Rule 406, we discussed evidence of habit, but did not attempt to pronounce any general rule....
It is generally agreed that in order to be admissible under Rule 406, evidence of a person's habit must be shown to be a regularly repeated response to similar factual situations. FN16 The trustworthiness of habit evidence lies in its regularity, so that the act or response is shown to be almost semiautomatic....
Courts are divided as to how many prior instances of identical behavior must be shown in order to demonstrate a habit....It is probably not possible to prescribe a precise number because much depends on the nature of the behavior in question. We decline, however, to follow the Wisconsin view that the rule does not require any minimum number....
Some courts have limited evidence of habit where there are no eyewitnesses to the event which is the subject of habit testimony. If there are eyewitnesses, then habit testimony is not available....Our Rule 406 specifically permits habit testimony “whether corroborated or not and regardless of the presence of eyewitnesses."
Finally, as other courts have held, before being admitted, habit evidence is subject to the balancing test contained in Rule 403 to determine whether the probative value of the evidence is substantially outweighed by “unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentment of cumulative evidence."
Applying these principles, the West Virginia Supremes concluded that Instruction No. 7 was improper because
The effect of this instruction was to reduce the complex issue of the elements necessary to demonstrate a valid inter vivos gift to a simple question: Was stock in the Wellsburg National Bank periodically given to the defendant by his father? The jury was informed that if this question was answered in the affirmative, there was a presumption that this habit or pattern continued through the lifetime of Mr. Rodgers, Sr. Moreover, the instruction assumed the defendant's possession of the stock. It did not advise, as required by Tomkies, that there could be no retention of ownership indicia.
The instruction did not limit the jury to consideration of some specific act of Mr. Rodgers, Sr., such as his past practice of purchasing stock and putting it in the names of his children, as illustrative of what he did with Mary Rodgers's shares. Rather, it sought to bypass the critical issue of whether a valid inter vivos gift had been made by focusing on the fact that Mr. Rodgers, Sr., had "given" bank stock to his son in the past. That fact, if proven, could not satisfy the necessary elements of an inter vivos gift set out in Tomkies, supra. We find this instruction to be erroneous.