EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, March 24, 2020

Court of Appeals of Tennessee Questions Whether Inverse Habit Evidence is Admissible

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.



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It seems to me the court got it right here, because as the court alluded to, the rule - specifically paragraph (a) - is worded in the affirmative. That is, it allows proving conformity with habit by "the conduct of the person ... on a particular occasion" -- i.e., something that *did* happen. Even though the case involves a will contest, in a way the children's attack on the will resembles an identity defense from a criminal case, because they are saying it wasn't Atkins, but actually someone else who signed (and wrote) the will. But with respect to Atkins, i.e., the one whose habit is at issue, there is no corresponding affirmative conduct that took place. Instead, the children are saying that he didn't engage in any conduct because he didn't sign the will. As I read it, the rule just doesn't account for proving up an absence of conduct.

But with respect to the car accident hypo, it doesn't seem to be quite on point with this issue. As I understand the hypo, there is no question that affirmative conduct was performed by the person whose habit is at issue, because it is undisputed that Dan struck the student, and Carl is going to testify - in one of two different ways - about Dan's driving habit. I don't view that latter instance of testimony as potentially impermissible inverse habit evidence because it would still correspond to some affirmative conduct, and just be used to prove that on the "particular occasion" of the accident, Dan was driving under the speed limit when he struck the student. A more germane hypo would be if Dan were raising an actual identity defense (because it is said to be a criminal prosecution) and arguing that someone else struck the student, not him. Then if Carl attempted to testify that, for example, Dan had a habit of always making sure *not* to pass by the high school, you might well run into (no pun) problems under the wording of the rule and this will contest decision.

Finally, is it also impermissible to note that everyone seems to have a habit of never commenting on these blogs (the ones belonging to the Law Profs Network, that is)?

Posted by: hardreaders | Mar 25, 2020 12:38:50 AM

Also why wouldn’t the non-inverse simply be that the habit evidence shows he signed his name positively as “Joe Nomiddle Initial” , rather than evidence of some kind of negative?

Posted by: Paul | Mar 25, 2020 2:46:20 AM

hardreaders: But how do you square that with Rule 404(a)(2)(A)? Rule 404(a)(1) says: “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Rule 404(a)(2)(A) then says: “The following exceptions apply in a criminal case…a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.” So, if Dan is charged with murdering Vince and claims it’s a case of mistake identity, Dan would be able to call witnesses to testify to his peaceful character. Essentially, Dan is claiming that his character proves that someone else attacked Vince. Meanwhile, in this case, the children are claiming that their father’s habit of including his middle initial means that someone else executed the will. Is there a reason to distinguish the two?

Paul: That would apply in a case of competing wills, i.e., he signed this will and not that will. But I don’t know if it would apply if there’s just one will.

Posted by: Colin Miller | Mar 25, 2020 6:49:45 AM

Prof. Miller: First, thank you for replying so quickly. Second, I should have mentioned originally that I enjoyed this posting a lot and also enjoy the evidence blog in general. Third, getting to the substance of your response, I also meant to address the character evidence rule originally. I would say a couple things on that subject. As an initial matter, if we were going to approach the will contest case from a character instead of a habit perspective, and taking it as given that Atkins’ supposed policy of always including the ‘A’ qualifies as a character trait, then I would say even just under 404(a)(1), the evidence of the policy would be admissible. Opposite to 406(a), which as I noted above is worded such that it *permits* habit evidence – but only for the purpose of proving conformity by conduct that *did* happen, 404(a)(1) is worded as a *prohibition* of using character evidence for that same purpose. But in the will contest, the children want to prove that Atkins’ *absence* of conduct was in conformity with the habit/character. So I don’t actually see that running afoul of 404(a)(1), despite a will contest being civil, not criminal, because the children aren’t trying to use the habit/character evidence for the purpose prohibited by the rule. And of course both the original and new Dan/Carl hypos are criminal actions, so they immediately get free rein under the mercy rule/404(a)(2). But all this begs the question of whether the middle initial policy in the will contest and the driving above/below the speed limit in the original Dan/Carl hypo can be legitimately treated as character instead of habit evidence. Obviously character and habit are on a continuum to some extent, but generally you can and should distinguish, and it’s hard to do it better than McCormick did, as quoted in the advisory committee note to FRE 406: “Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait,” whereas “‘[h]abit,’ in modern usage, … is more specific. It describes one’s regular response to a repeated specific situation.” Given that distinction, then it becomes a matter of how to repackage the habit evidence into character evidence. For the driving hypo, it doesn’t seem that hard. Instead of the specific above/below the limit at a specific location (the high school), you just generalize a little into being a cautious or aggressive driver in all circumstances. But it seems more challenging in the will contest. What character trait is comparable to always including the middle initial? Maybe something like Atkins was very proud of his individuality or identity. Regardless, the point is that in the will contest, you can’t just take the existing habit evidence and try to pass it off as character evidence instead; you have to do some kind of work to repackage it. All of this was a very long-winded way of saying that I square the two rules because (i) they deal with different types of evidence that are typically not interchangeable or equivalent to each other and (ii) they are worded differently as permissive versus prohibitory.

PS it was also amusing for the court to refer to the children as “contestants” – you would think the case was about the Price is Right and not a will dispute

Paul: I agree that it would be non-inverse to have evidence that the habit actually was not to include the middle initial. And that’s sort of what happened in this case. One of the stepsons (who was part of the other group facing off against the children) gave evidence that the always-middle-initial-including habit wasn’t actually that consistent, because Atkins sometimes omitted it. The court seemed to rely on that testimony, and rightfully so I think, because it was used to show conformity by conduct that did allegedly happen, i.e., that Atkins *did* allegedly sign the will in conformity with *not* including the middle initial.

Posted by: hardreaders | Mar 25, 2020 6:07:31 PM

hardreaders: As you note: “All of this was a very long-winded way of saying that I square the two rules because (i) they deal with different types of evidence that are typically not interchangeable or equivalent to each other and (ii) they are worded differently as permissive versus prohibitory.”

With regard to (i), I agree that they are not generally interchangeable, but I think we’d agree that (1) they’re similar; and (2) the rules are more receptive to the admission of habit evidence than character evidence.

And this also ties into (ii). Rule 404(a)(1) is prohibitory, with Rule 404(a)(2) is written as containing three permissive exceptions to the propensity character evidence prohibition. Meanwhile, Rule 406 is written as permissive with regard to the admission of habit evidence, with no rule of prohibition. Again, this squares with habit evidence being more readily admissible.

As such, I don’t see the argument that character evidence of peacefulness should be admissible in a claim that someone else killed the victim while habit evidence of signature should be inadmissible in a claim that someone else wrote the disputed will.

Posted by: Colin Miller | Mar 27, 2020 9:28:01 AM

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