EvidenceProf Blog

Back in the Habit: Supreme Court of West Virginia Finds Jury Instruction Constituted Improper Habit Evidence

Similar to its federal counterpart, West Virginia Rule of Evidence 406 provides that 

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. 

If you're looking for a great case to read to understand the ins and outs of Rule 406, you need look no further than Rodgers v. Rodgers, 399 S.E.2d 664 (W.Va. 1990).

In Rodgers, 

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.

-CM

Habit Forming Behavior: Court of Appeals of Michigan Finds Doctor's Testimony About Blood Draw Admissible Under Rule 406

Similar to its federal counterpart, Michigan Rule of Evidence 406 provides that

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.

A student in my Evidence class today asked whether expert witnesses may testify regarding their habit of complying with certain procedures pursuant to Rule 406. Let's take a look at Zyskowski v. Habelmann, 388 N.W.2d 315 (Mich.App. 1986), to see the answer.

In Habelmann, the

Plaintiff, Edwin Zyskowski, commenced [a] wrongful death action as personal representative of the estate of his son the deceased, Bruce Zyskowski, who was struck and killed by a motorist during the early morning hours of March 15, 1980, while walking on Outer Drive in Detroit's River Rouge Park. The complaint alleged negligence against the motorist, defendant Habelmann, and negligence and intentional nuisance against defendants City of Detroit and the Wayne County Board of Road Commissioners for their alleged failure to maintain the street lights along the road. From a March 8, 1984, jury verdict of no cause of action, plaintiff appeal[ed] as of right, alleging that there were a number of errors in the trial below.

According to the plaintiff, one of these alleged errors was that "Wayne County Medical Examiner Dr. Werner Spitz...was allowed to testify that a blood alcohol test performed at his office showed decedent's blood alcohol content was .18 percent at the time of his death." Specifically,

Dr. Spitz testified that he performed the autopsy on decedent and drew the blood during the autopsy. He testified as to the manner in which the blood was taken and that he personally labeled the containers and put the samples in a refrigerator. Although he had no personal recollection of the event, he testified that the sample was picked up by someone in the laboratory that same day or the next. The laboratory is a division of the medical examiner's office and located in the same building. Dr. Spitz testified that the alcohol level in the blood is measured by a gas chromatograph and explained what procedures were used and how the machine worked. He identified the name of the lab technician who performed the test and testified that it was done under the supervision of Dr. Mumford, who reviewed and signed the report. Dr. Mumford is in turn supervised by Dr. Spitz. Dr. Spitz further testified that there would never be a single mistake, that if there was a mistake it would affect all of the samples, and that there were control samples used in the procedure.

On appeal, the plaintiff claimed that this testimony was inadmissible and/or insufficient to support the admission of the blood sample because "first-hand observation of the sample is required." The Court of Appeals of Michigan disagreed, concluding that

Dr. Spitz's testimony was based on his personal knowledge of the routine practice of the medical examiner's office, including the lab, which was  under his auspices. This testimony was relevant and admissible under MRE 406 which provides:  

"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."  

-CM

Truth & Consequences: Court of Appeals of Minnesota Finds No Rule 608(b) Error With Sergeant's Misconduct

Similar to its federal counterpart, Minnesota Rule of Evidence 608(b) provides that

Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

I think that the Court of Appeals of Minnesota in State v. Sherman, 2013 WL 399242 (Minn.App. 2013), erred in precluding the defendant from impeaching a sergeant with evidence of past misconduct under Rule 608(b). Do you agree?

In Sherman, Michael Sherman was convicted of second-degree unintentional felony murder. A big issue at trial was the number of blows that Sherman inflicted on the victim's head, with a medical examiner placing that number at three or more. At trial, the prosecution called the sergeant who was the principal investigator in Sherman's case, with the sergeant testifying about the medical examiner's conclusions and giving an overview of his investigation. After he was convicted, Sherman appealed, claiming, inter alia,

that the district court erred in refusing to allow him to impeach one of the state's witnesses, a sergeant who was the principal investigator, with evidence of two disciplinary proceedings against the sergeant in 2000 and 2002. In the first incident, the sergeant violated department policy when he used funds obtained in a narcotics-related arrest for a controlled buy in a sting operation and then falsely reported that the replaced funds were the original funds obtained as a result of the arrest. In the second incident, the sergeant was disciplined for pressuring a known drug dealer to submit to a search during a traffic stop without reading the form "consent to search" advisory and then failing to handle money found in the vehicle in accordance with department procedures.

As noted by the Court of Appeals of Minnesota,

The district court denied appellant's request to cross-examine the sergeant about these particular instances of misconduct, reasoning that there had "not been a showing that there [was] any issue regarding the witness' character for truthfulness as it relates to this case." While there were inconsistencies in the sergeant's testimony about the number of blows to the head received by L.K.S. as relayed to him by the medical examiner, there was no showing that this testimony evinced any possibility of untrustworthiness, or that the purpose of the sergeant's testimony was to establish the number of blows to the head that L.K.S. received. Rather, the purpose of the sergeant's testimony was to set up an overview of his investigation. The sergeant also testified that there was no discrepancy between a timeline provided by the apartment manager and a surveillance video of the apartment complex. Later in his testimony, he clarified that he only reviewed the surveillance video, and that his earlier testimony was based on the assumption that the surveillance video was "a timeline depicted by video." In addition, the district court, while conceding that the 2000 incident was indicative of untruthfulness, noted that the incident was over ten years old and that there must be some limit to the use of such information. Relative to the 2002 incident, the district court ruled that it was not probative of truthfulness or untruthfulness, but only showed that the sergeant had failed to follow departmental procedures.

The Court of Appeals of Minnesota found that this determination was not an abuse of discretion because the district court could have properly found that the subject evidence failed to satisfy Minnesota Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

According to the court, "[a]ny limited probative value in admitting this evidence was outweighed by the substantial risk that the jury's consideration of such evidence would have resulted in confusion of the issues or misled the jury 'without any significant corresponding benefit to the truth-seeking process.'"

As noted, I disagree. Basically, the court can't have it both ways. On the one hand, you could argue that the subject evidence was more probative than the court contended because this was evidence of the principal investigator in Sherman's case had previously engaged in lies and misconduct in the line of duty. That seems pretty important to me. But, to the extent that the court is right that the misconduct of the sergeant wasn't that important because he didn't do much at trial, why would evidence of his past misconduct be overly confusing or prejudicial?

-CM 

Incommunicado: Court of Appeals of Texas Finds Trial Court Properly Precluded Defendant From Admitting Character Evidence

Texas Rule of Evidence 404(a) provides that

Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  

(1) Character of accused. Evidence of a pertinent character trait offered:  

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or  

(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;  

(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;  

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.

Moreover, Texas Rule of Evidence 405(a) provides that

In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

In other words, at a criminal trial in which the defendant is not being prosecuted for homicide, unless the defendant introduces propensity character evidence, the prosecution cannot introduce propensity character evidence ("once a criminal, always a criminal," "once a burglar, always a burglar, etc."). The defendant, however, can open Pandora's box and present propensity character evidence concerning himself and/or the alleged victim. As Rule 405(a) makes clear, however, the only proper form of evidence that a character witness can render on direct examination is reputation ("I've been the victim's neighbor for the past 5 years, and he has a terrible reputation in the neighborhood for violence.") and opinion ("I've known the victim for 5 years, and in my opinion, he's a violent person") testimony. Moreover, as Rule 404(a) makes clear, once the defendant has presented propensity character evidence, the prosecution can then rebut this evidence with its own propensity character evidence. 

As the recent opinion of the Court of Appeals of Texas in Williams v. State, 2013 WL 341900 (Tex.App.-Dallas 2013), makes clear, however, none of the above matters if a defendant is introducing character evidence under the "communicated character " doctrine.

In Williams, Billy Ray Williams was charged with aggravated assault with a deadly weapon based upon an attack on David Crow. At trial, Williams sought to present evidence of a fight between Crow and him on the day before the crime charged as well as evidence of Crow's prior arrest for having a blackjack or club." The trial court allowed WIlliams to introduce evidence regarding the prior fight, but it precluded him from presenting evidence of Crow's prior arrest for having a blackjack or club.

After Williams was convicted, he appealed, claiming that the trial court erred by preventing him from presenting evidence of Crow's prior arrest. In response, the Court of Appeals of Texas, Dallas, initially noted that

a defendant may offer reputation or opinion testimony or evidence of specific prior acts of violence by the victim to show the "reasonableness of defendant's claim of apprehension of danger" from the victim....This is called "communicated character" because the defendant is aware of the victim's violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real....This theory does not invoke rule of evidence 404(a)(2) of the rules of evidence because rule 404 bars character evidence only when it is offered to prove conduct that is in conformity, i.e., that the victim acted in conformity with his violent character.

This thus explains why WIlliams was allowed to testify about the prior fight between Crow and him: He obviously was aware of the prior fight, with the prior fight placing him in reasonable apprehension of Crow. The problem for WIlliams, however, was that he presented no evidence that he had awareness of Crow's prior conviction for having a blackjack or club. As such, he could only seek to present evidence of the arrest under the "uncommunicated character" doctrine. As explained by the court,

A defendant may also offer evidence of the victim's character trait for violence to demonstrate that the victim was, in fact, the first aggressor....Rule 404(a)(2) applies to this theory, which is called "uncommunicated character" evidence, because it does not matter if the defendant was aware of the victim's violent character...."The chain of logic is as follows: a witness testifies that the victim made an aggressive move against the defendant; another witness then testifies about the victim's character for violence, but he may do so only through reputation and opinion testimony under Rule 405(a)."

Therefore, because Williams tried to present evidence of a specific instance of Crow's violence, the trial court properly deemed that evidence inadmissible.

-CM