Superior Court of the Virgin Islands Grapples With the Distinction Between Habit and Character Evidence

Similar to its federal counterpart, Virgin Islands 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, what's the dividing line between inadmissible propensity character evidence and admissible habit evidence under Rule 406? This was thee question of first impression addressed by the Superior Court of the Virgin Islands in its recent opinion in Crawford v. Bobeck, 2019 WL 3564487 (2019).

In Bobeck,

The Plaintiff was hired by H. Duane Bobeck and Janis Bobeck (hereinafter “Bobecks”) in July 2005, to be the First Mate on the family's yacht, Passport....After a thirty (30) day probationary period, the Plaintiff was paid a salary of $36,000.00 per year....The Plaintiff alleges that over time, her job assignment changed from First Mate to catering all parties for the Bobecks, caring for the Bobecks' dog, doing Janice Bobecks' makeup, babysitting the Bobecks' grandchildren and managing their home....Given, the Plaintiff's new responsibilities she repeatedly requested an increase in pay but was consistently denied by the Bobecks....

According to the Complaint, from the time the Plaintiff began working for the Bobecks, H. Duane Bobeck... sexually harassed her and made inappropriate comments, such as “you would look good if you showed up naked in the pool” or “I should change your uniform into a bikini.”

The plaintiff sought to present evidence that "Defendant H. Duane Bobeck has a history of sexually harassing and attacking females and his actions towards the Plaintiff is part of his pattern and practice of sexual harassment and demeaning women he is associated with." In deeming this evidence inadmissible character evidence rather than admissible habit evidence, the court held that

Although, this jurisdiction has yet to clarify the difference between character evidence and habit evidence the Third Circuit, whose decisions remain persuasive has distinguished the two types of evidence. According, to the Third Circuit “the purpose of habit evidence is to fill the gap in direct evidence about what an organization did on a specific occasion with circumstantial evidence sufficient to reasonable allow one to conclude that the organization probably acted in conformity with its usual pattern on the occasion in question. “The Advisory Committee Note to Rule 406, defines habit as the regular practice of meeting a particular kind of situation with a specific type of conduct.” Additionally, habit “describes one's regular response to a repeated specific situation ....” Therefore, “[t]o qualify as habit evidence, the proffered evidence must be specific and particular.”⁶

Moreover, the Notes of Advisory Committee on Rules for the Federal Rules of Evidence, which employs the same language as V.I.R.E. 406, state that “[c]haracter and habit are close akin. Character is a generalized description of one's disposition....Habit is more specific. It describes one's regular response to a repeated situation.

Although, the Third Circuit applies the Federal Rules of Evidence the Supreme Court of the Virgin Islands has cited the Federal Rules as the source for V.I.R.E. 404 and 406. Therefore, by applying this distinguish between character and habit evidence the Court finds that evidence of other sexual harassment allegations fails to rise to the level of habit because each allegation involves different facts and is not an automatic or systematic response by the Defendants. Rather the evidence is more analogous to character evidence which does not require a specific and consistent response in a specific situation but instead varies and is irregular. Thus, having concluded that evidence of other sexual harassment is character evidence it is inadmissible under Rule 404.

-CM