EvidenceProf Blog

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.

-CM

 

Did You Notice That?: Western District of Virginia Details Notice Obligation Under Rule 404(b)

Federal Rule of Evidence 404(b)(2) provides that character

evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

In other words, Rule 404(b)(2) contains a pre-trial notice requirement, pursuant to which the prosecution has a certain notice obligation when the defendant makes a relevant request. But what is the exact nature of that obligation? Let's take a look at the opinion of the United States District Court for the Western District of Virginia in United States v. Powell, 2007 WL 1839743 (W.D.Va. 2007).

In Powell, Gregory Powell was charged with a variety of offenses related to a scheme to obtain loans from federally insured banks under false pretences. Before trial, Powell requested "[a]ll evidence which the government may introduce pursuant to Federal Rule of Evidence 404(b)." In response, the Western District of Virginia noted that

As Rule 404(b) states, however, a defendant is not entitled to the evidence itself; instead, a defendant is only entitled to "the general nature" of that evidence that the Government intends to introduce at trial. Additionally, Defendant points to no other legal authority that would entitle him to this evidence. 

Accordingly, the court found that "[t]o the extent Defendant's request complies with Rule 404(b), that part of the motion is GRANTED; to the extent it does not, that part of the motion is DENIED."

On other words, under Rule 404(b)(2), upon the defendant's request, the prosecution would have to disclose that intends to present "[evidence of prior crime/wrong/act X] to prove [permissible purpose]." But it would not have to disclose the specific evidence that it seeks to introduce to prove the prior crime/wrong act such as a deposition, record of conviction, etc.

-CM

10 Days Late: SDNY Finds 10 Days Advance Notice Sufficient For Rule 404(b) Purposes

Federal Rule of Evidence 404(b)(2) provides that character evidence

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:  

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and  

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

So, how much notice is reasonable notice? Let's take a look at the recent opinion of the United States District Court for the Southern District of New York in United States v. Filippi, 2013 WL 208919 (S.D.N.Y. 2013).

In Filippi, Robert Burke and other defendants were charged with conspiracy to distribute and possess with intent to distribute one hundred or more marijuana plants and with distribution and possession with intent to distribute one hundred or more marijuana plants. Prior to trial, Burke moved to compel early disclosure of evidence of prior bad acts and uncharged criminal conduct. Specifically, Burke sought "early disclosure of evidence of prior bad acts and uncharged criminal conduct so that he c[ould] make the appropriate motions in limine to exclude such evidence."

The Southern District of New York, however, denied the motion, finding that 

"Courts in this Circuit have routinely found that at least ten business days provides reasonable notice to a defendant under Rule 404(b)." United States v. Ojeikere, 299 F.Supp.2d 254, 257 (S.D.N.Y.2004) (citing cases). The Government represents that it is aware of its obligations under Rule 404(b) and intends to provide notice of the Rule 404(b) evidence it intends to introduce fourteen days before the beginning of trial....Burke provides no basis for the Court to diverge from the standard practice. 

-CM

The Thin White Line: 3rd Circuit Seems to Imply Repainting White Line At Railroad Crossing Might Be Admissible Despite Rule 407

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

So, let's say that a motorcyclist is approaching a railroad crossing, sees a train approaching, and tries to hit the brakes, but his front brake locks and he flies over his handlebars, crashing into the train and becoming partially paralyzed. In addition, assume that before the accident, there was a white line indicating the presence of a railroad crossing before the point at which the motorcyclist hit his brakes but that the line had faded at the time of the accident and was repainted after the accident. Will evidence of the repainting of the line be admissible or excluded under Rule 407? Let's take a look at the recent opinion of the Third Circuit in Zimmerman v. Norfolk Southern Corp., 2013 WL 238789 (3rd Cir. 2013).

In Zimmerman, the facts were as stated above, with Norfolk Southern moving for summary judgment after the plaintiff asserted three tort claims against it. The district court granted Norfolk Southern's motion for summary judgment, but the Third Circuit reversed in part. Part of the basis for the reversal was the fact that "[p]hotographs suggest[ed] that there once was a white line north of the crossing, but that the line had faded by the time of Zimmerman's collision." 

In a footnote addressing the admissibility of these photographs, the Third Circuit noted that

There is no painted line in a 2008 photograph, but there is a line in a 2011 photograph....Of course, subsequent remedial measures are inadmissible to prove negligence. See Fed.R.Evid. 407. Yet the paint in the 2011 photograph suggests that the pavement was painted before the 2008 accident, but that the marking faded and required a fresh coat of paint. This is not the only possible inference from the facts, but it is a "reasonable inference," which is all that is necessary at this stage. 

I'm not sure that I'm getting the Third Circuit's point. Is the Third Circuit implying that Norfolk Southern's repainting of the line after Zimmerman's accident could be used to show that, at the time of his accudent, "the marking [had] faded and required a fresh coat of paint? If that's the case, the 2011 photograph would be admissible because it would be used to show that there was a need for (a stronger) warning at the time of Zimmerman's accident.

-CM

As I Lay Dying?: Court of Appeals of Michigan Finds Written Statement to be a Dying Declaration

Similar to its federal counterpart, Michigan Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, this "dying declaration" exception applies to oral statements, but, as the recent opinion of the Court of Appeals of Michigan in People v. Thompson, 2013 WL 276042 (Mich.App. 2013), makes clear, it can also apply to written statements.

In Thompson, Ronald Bishop Thompson was convicted of first-degree premeditated murder and possession of a firearm during the commission of a felony. The victim was shot in the throat and wrote out that Thompson shot him after police officers arrived in response to a 911 call and the victim was incapable of speaking.

After Thompson was convicted, he appealed, claiming, inter alia, that the victim's written statement was improperly admitted under Michigan Rule of Evidence 804(b)(2) primarily because it was not made while the victim believe that his death was imminent. The Court of Appeals of Michigan disagreed, finding that

The “apparent fatal quality” of the victim's gunshot wound is evident given its nature and location in the middle of his throat. Id. This is especially so in light of the victim's progressively worsening condition over the duration of the 911 call, as evidenced by his increased difficulty speaking and breathing, and also his heightened desperation for assistance, as indicated by the increased frequency of his pleas for help, his apparent concern if and when help would arrive, and the 911 operator's comments clearly attempting to calm him down. FN1 Testimony indicated that, by the time responding police officers arrived at the scene, the victim was physically distressed, he was no longer able to verbally communicate, his labored breathing had become more pronounced, and he was “hysterical” and “panicking.” Testimony also indicated that the victim's condition was life-threatening and that efforts were made at the hospital to “ save his life.”

From these circumstances surrounding the statement, the court could reasonably infer that the victim feared for his life and believed his death was imminent when he identified defendant as the assailant, despite his apparent mobility and consciousness and the lack of “gushing” blood from his throat.

In reaching this conclusion, the court also found that

although there was no evidence indicating that the victim was actually informed of his critical condition or that he made any specific statements signifying his belief that his death was imminent, "it is not necessary for the declarant to have actually stated that he knew he was dying in order for the statement to be admissible as a dying declaration."...Further, the victim's failure to identify defendant as the assailant during the 911 call does not necessarily indicate a belief that his death was not imminent. To the contrary, it was also reasonable to infer from the victim's numerous, continual pleas for help during the 911 call that he was solely focused on obtaining assistance because he feared for his life.

Finally, the court found that it did not need to address Thompson's argument "that, on the next day at the hospital, the victim wrote '10 days' to indicate how long he would be on the ventilator, which, according to defendant, support[ed] a finding that he did not believe his death was imminent." The court concluded that "this fact was not in evidence, and thus, cannot be considered on appeal." 

-CM