Tuesday, March 24, 2020
Tennessee Rule of Evidence 406 provides that
(a) Evidence of the habit of a person, an animal, or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person, animal, or organization on a particular occasion was in conformity with the habit or routine practice.
(b) A habit is a regular response to a repeated specific situation. A routine practice is a regular course of conduct of an organization.
So, for example, if Carl carpooled with Dan every day, Carl could testify that Dan always drove above the speed limit when they passed San Dimas High School if Dan were being prosecuted for involuntary manslaughter based upon striking a San Dimas student with his car while driving to work. But could Carl testify that Dan always drove below the speed limit when they passed the high school? The answer would seem to be a clear "yes," but according to the Court of Appeals of Tennessee, the answer is (possibly) "no."
In In re Estate of Glenn Allen Atkins, 2020 WL 1320717 (Tenn.App. 2020), there was a question of whether a holographic will with a signature stating, "Glenn Atkins," with no middle initial, was actually a will executed by Atkins. The court found that it was, causing two of Atkins's adult children to appeal. Specifically, the claimed that the court ignored habit evidence under Rule 406 that Atkins typically signed documents with his middle initial.
The Court of Appeals of Tennessee disposed of this issue as follows:
We note that in this instance, Contestants sought to utilize habit evidence to prove the inverse of what is provided in the rule, meaning that instead of presenting this evidence to demonstrate that Decedent had included his middle initial in his signature on a particular occasion, Contestants sought to demonstrate that Decedent never would have signed a document without including his middle initial. Contestants cite to no authority for this inverse use of the rule. Moreover, “courts recognize the danger of such evidence, [regarding custom or habit] and do not look on it with favor; and, to be admissible, its relevancy and probative value must clearly appear.”...
In its Tennessee Rule of Appellate Procedure 24(e) Statement of the Court, the trial court noted that Randall Gredig “specifically said that at times [Decedent] sign[ed] his tithe check Glenn A and at times Glenn.” The trial court’s inclusion of this point indicates that the court considered Contestants’ argument that the absence of the middle initial meant that the signature on the Holographic Will did not belong to Decedent. The court clearly credited Randall Gredig’s testimony in this regard....Considering also that the selection of documents with Decedent’s signature that were presented by Contestants could only be a fraction of the documents that Decedent would have signed over his lifetime, we determine that the trial court did not err in finding that Randall Gredig’s testimony concerning Decedent’s use of the middle initial was more probative than Contestants’ attempt to establish habit evidence through an inverse application of Tennessee Rule of Evidence 406.
I can't see any basis for saying that courts should treat inverse habit evidence any differently from traditional habit evidence. An analog can be found with character evidence under the mercy rule. While propensity character evidence is not typically admissible, in a criminal case, a defendant accused of a crime can present inverse character evidence to prove that he did not commit the crime. For example, a defendant charged with murder could present evidence that he is a nonviolent person and thus did not commit the murder (or was acting in self-defense). This same logic would seem to apply to inverse habit evidence.