Evidentiary Issues During Trial
WMBA
Grace Period CLE
April 21, 2016
Judicial Notice
• MRE and FRE Article II
• Same purpose: “to avoid a waste [of] time
litigating about undeniable matters.”
Imwinkelreid, cited by Justice McKinnon in
2014
• FRE: only 201
• MRE: Rules 201 and 202
– 201=JN of Facts
– 202=JN of Law
ABE LINCOLN
• Famous use of judicial notice
• His client was accused of
• Prosecution witness testified before, and at,
trial, that he had observed entire scene under
bright moonlight, clear view, defendant did it
• X by Abe:
– Bright moonlight?
– What time?
– You are sure?
Judicial Notice=Acquittal
• Lincoln produced an almanac
• Showed the moon was only a quarter full and low in
the sky
• “determined by the celestial mechanics of Copernicus
and Newton. These are facts which are capable of
determination to any desired degree of exactness in
the real world. The phases and times of rising and
setting of the moon have been (and are) included in
almanacs and are simply too well calculated for there
to be any serious question about their reliability.”
• Jury acquitted on first ballot
Alternatives to Judicial Notice
• Stipulation between parties as to fact/law, and
instruction to jury of stipulation
• Requests for Admissions (civil)
• Introduce into evidence the old-fashioned way
• Hearsay exception for learned treatises (803(
– Is motion for JN worth the time?
– Why is opponent refusing to stipulate?
– Will that make judge deny motion, so time/money
better spend on gathering proof for trial?
FRE 201 “JN of Adjudicative Facts”
• Not “legislative”
• What is difference? No one knows for sure 
• Circuits disagree on simple issue:
– Is whether land on which federal prison located
“within the special maritime and territorial
jurisdiction of the US” adjudicative fact, or legislative
• Effect? Adjudicative facts stuck under 201
strictures, non-adjudicative facts much looser
Conclusion: hot mess in FRE
Montana much better
• MT Evidence Commission:
– “The Commission believes that use of the terms
“adjudicative” and “legislative” facts as is done with
Federal Rule 201 is confusing and that they cannot be
readily or easily applied to all factual situations. The
Commission rejects the approach under the Federal
Rule 201 of limiting judicial notice to adjudicative facts
because this is a basis which is totally new, not clearly
defined, and contrary to existing Montana practice.
The confusion and litigation bound to result are
clearly contrary to a rule which is meant to save time
and expense.
MRE 201 Judicial Notice of Facts
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(a) Scope of rule. This rule governs judicial notice of all facts.
(b) Kinds of facts. A fact to be judicially noticed must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accuracy cannot be reasonably
questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with
the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be
heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing the jury. In a civil action or proceeding, the court shall instruct the jury to accept
as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it
may, but is not required to, accept as conclusive any fact judicially noticed.
Criteria
• (b) Kinds of facts. A fact to be judicially
noticed must be one not subject to reasonable
dispute in that it is either
– (1) generally known within the territorial
jurisdiction of the trial court or
– (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot be
reasonably questioned.
MT Commission Comment
• “The Commission feels that the courts should
take notice of facts only if they are not subject
to reasonable dispute. If a fact is disputable,
evidence should be introduced to support or
deny it, and the trier of fact should then
decide its existence. If a fact is not subject to a
reasonable dispute, the court can save time
and expense for all by judicially noticing it.”
Info to be supplied by party
• (d) When mandatory. A court shall take
judicial notice if requested by a party and
supplied with the necessary information.
Process
• Court may take jn of fact or law on its own
• Court shall take judicial notice if requested
and supplied with the necessary information
• PRETRIAL!! (so know whether have to arrange
proof or not)
• Motion for judicial notice of …. AND
– “the necessary information”
Form of the “necessary information”
• Does not have to be admissible itself
• “Rule 104. Preliminary questions of
admissibility.
•
(a) Questions of admissibility generally.
Preliminary questions concerning … the
admissibility of evidence shall be determined
by the court. In making its determination it is
not bound by the rules of evidence except
those with respect to privileges.”
Holtz v. Babcock, MSC 1964
• neither this court nor the district courts
should be required to assume the burden of
informing themselves under the doctrine of
judicial notice of facts not within the actual
knowledge of the court. We think in this area
there is a difference between judicial
knowledge and actual knowledge and that the
burden resting upon a litigant to present his
proof cannot be shifted to the court under the
doctrine of judicial notice.
Holtz, continued
• As stated by Wigmore: ‘Judicial notice being a dispensation of one
party from producing evidence, it would seem that the party must,
in point of form, make a request for it.’ 5 Wigmore, Ev.2d ed. §
2568.
• ‘So, it was stated in Walton v. Stafford (1897), 14 App.Div. 310, 43
N.Y.S. 1049 (affirmed in (1900) 162 N.Y. 558, 57 N.E. 92): ‘The court
is not invariably bound, sua sponte, to take judicial notice of
whatever ought to be generally known. Attention must first be
called to the fact, and even then, the party asking the court to take
judicial notice thereof must, at the judge's request, furnish the
proper books or documentary evidence wherewith to refresh his
recollection. Where the memory of the judge is at fault, he may
refuse to take judicial notice of the fact, unless such books or
documentary evidence are produced.’ See also People ex rel.
McCallister v. Keokuk & H. Bridge Co. (1919), 287 Ill. 246, 122 N.E.
467.
Cites SCOTUS
• ‘It was stated by Justice Holmes in Quong
Wing v. Kirkendall (1912), 223 U.S. 59, 56 L.Ed.
350, 32 S.Ct. 192: ‘There are many things that
courts would notice if brought before them
that beforehand they do not know. It rests
with counsel to take the proper steps, and if
they deliberately omit them, we do not feel
called upon to institute inquiries on our own
account.’ * * *
Quong Wing v. Kirkendall
• Male plaintiff paid MT state business tax to do hand
laundry, under protest, wants refund
• BC MT statute exempted 2 or fewer women doing hand
laundry from tax
• Alleged gender discrimination
• SCOTUS sided with State re gender: “If Montana deems it
advisable to put a lighter burden upon women than upon
men with regard to an employment that our people
commonly regard as more appropriate for the former, the
14th Amendment does not interfere by creating a fictitious
equality where there is a real difference. The particular
points at which that difference shall be emphasized by
legislation are largely in the power of the state.”
Racial discrimination? Not raised
• Another difficulty suggested by the statute is that it is impossible not to
ask whether it is not aimed at the Chinese, which would be a
discrimination that the Constitution does not allow. …It is a matter of
common observation that hand laundry work is a widespread occupation
of Chinamen in this country, while, on the other hand, it is so rare to see
men of our race engaged in it that many of us would be unable to say that
they ever had observed a case. But this ground of objection was not
urged, and rather was disclaimed when it was mentioned from the bench
at the argument. It may or may not be that if the facts were called to our
attention in a proper way the objection would prove to be real. But even if,
when called to our attention, the facts should be taken notice of judicially,
whether, because they are only the premise for a general proposition of
law…, or for any other reason, still there are many things that courts
would notice if brought before them that beforehand they do not know. It
rests with counsel to take the proper steps, and if they deliberately omit
them, we do not feel called upon to institute inquiries on our own
account.
Opposing JN
• 201 and 202 identical:
• (e) Opportunity to be heard. A party is
entitled upon timely request to an
opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the
matter noticed. In the absence of prior
notification, the request may be made after
judicial notice has been taken.
SCENARIO 1: Judicial Notice
• Follow SCOTUS suggestion in Quon Wing case,
modernized: Indians are incarcerated in Montana
disproportionately to their share of the
population
• Divide into groups of 3:
– Proponent of JN
– Opponent of JN
– Judge ruling: Motion for JN
• Denied?
• Granted?
• Why or why not?
Suggested Solution
• This does seem to be a fact for JN
• Not bc everyone in MT knows it
• But bc proponent has submitted sources
whose reliability cannot reasonably be
questioned
• If denied, can call several witnesses to
establish fact, but would take lots of time and
expense: exactly what JN is for
If denied, READ from the source at
trial?
• MRE 803(18) Learned treatises. To the extent
called to the attention of an expert witness upon
cross-examination or relied upon by the expert
witness in direct examination, statements
contained in published treatises, periodicals, or
pamphlets on a subject of history, medicine, or
other science or art, established as a reliable
authority by the testimony or admission of the
witness or by other expert testimony or by
judicial notice. If admitted, the statements may
be read into evidence but may not be received as
exhibits.
JN or prove EVERY ELEMENT
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Route of proof doesn’t matter
But gotta skin that cat!
Identify each and every element before trial
Make sure you proved it before rest at trial
Can you use JN on appeal?
– Maybe
– But don’t count on it!
– Cases replete with examples: it is always
discretionary
SCOTUS takes JN on appeal
• Central Green Co. v. U.S., 531 U.S. 425 (2001)
• action against United States, under
Federal Tort Claims Act (FTCA), for
damage to owner's pistachio farm that was
allegedly caused by subsurface and
surface water flooding from federally
owned canal.
• US defended on immunity, per Flood
Control Act of 1928
Immunity for damages from flood
water
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•
Issue: was this water flood, or not?
9th Circuit adopts broad definition, dismissed case
Other circuits would disagree
Cert to resolve circuit split
“The Government has asked us to take judicial notice
of certain basic facts about the Friant Division of the
Central Valley Project and about the waters flowing
through that division and, more particularly, through
the Madera Canal. Although petitioner will have an
opportunity to challenge those details on remand, we
accept them for purposes of this opinion.”
End of Judicial Notice
• Any questions?
• Move on to another evidentiary issue:
– Offers of proof
• MUST do if you offer an exhibit which is refused
• So that judge gets sense of what s/he is preventing jury
from hearing, and has chance to correct on second
through
• So Supreme Court knows what evidence would have
been, so can tell whether evidentiary error is harmless
or not
OFFER OF PROOF
• Necessary for appealable error
• MRE 103:
• “(a) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or
excludes evidence unless a substantial right of the
party is affected, and …
•
(2) Offer of proof. In case the ruling is one
excluding evidence, the substance of the
evidence was made known to the court by offer
or was apparent from the context within which
questions were asked.
MT Commission Comment
• “The purposes of an offer of proof are to show the
trial court what error might be committed if the
evidence is excluded, to give it a chance to
change its mind, and to show the appellate court
what evidence has been excluded so it can
determine whether there has been error.
• ‘It is impossible for this court to say whether certain
evidence was improperly excluded, unless the record
discloses the offered evidence.’ The offer must be
specific as to the facts that would be proved.”
Offer mostly for ORAL testimony
• Refused exhibits are part of record (but see
State v. King)
• Refused oral testimony is never said
– So not in record
– So, unless offer of proof, no way for courts (district
or Supreme) to know what witness would have
said
– “Objection. Sustained….silence”
In re O.A.W. (2007)
• Parental rights termination case
• Mother’s counsel subpoenaed children to
testify
• State objected
• Judge held children would not testify and
quashed the subpoeanae
• On appeal, mother claimed judge erred
No offer of proof, no appeal
• ¶ 50 The District Court ruled that the focus of the case was on the parents,
and unless there was some further information presented, the children
were not essential witnesses. Counsel for M.W. made no offer of proof
giving the District Court any further information concerning what the
testimony of the children could prove. Nor was there a later motion to call
the children as witnesses because further information making their
testimony relevant had been presented.
• ¶ 51 The reason for M.R. Evid. 103(a)(2) is to require that if evidence is
excluded there must be an offer of proof so that neither the trial court nor
this Court has to speculate concerning what the evidence would have
been. If counsel for M.W. wanted to impeach some of the testimony of Dr.
Ruggiero by presenting the testimony of the children, he was required to
so inform the court. If he wanted to elicit testimony that the children
missed their mother and maybe even that they wanted to live with her, he
was required to make an offer of proof.1 Guertin v. Moody's Market, Inc.,
265 Mont. 61, 71–72, 874 P.2d 710, 716–17 (1994).
State v. King 2013
• “The reason forM.R. Evid. 103(a)(2) “is to require that if
evidence is excluded there must be an offer of proof so that
neither the trial court nor this Court has to speculate
concerning what the evidence would have been.” In re
O.A.W., 2007 MT 13, ¶ 51…. An offer of proof allows
counsel the ability to get evidence on the record where the
court determines that it should be excluded. State v. Miller,
231 Mont. 497, 508, …(1988). An offer of proof should be
specific as to the facts to be proven. Miller, 231 Mont. at
508, A trial court cannot commit error without the arguing
party informing the court that a specific course of action is
legally improper. Miller, 231 Mont. at 508,…”
King offered victim’s mental health
records, refused
• ¶ 38 At the August 24, 2011 motions hearing, the District Court
required that King file Terrey's mental health records for in camera
inspection and to highlight or flag the specific portion of the records
that King asserted should be admitted. In its subsequent order, the
District Court pointed out that King filed approximately one
hundred pages of medical records without any citation to the
specific portions King contended were relevant. The court noted
that as a result, there was “lack of a specific record based offer of
proof.” Furthermore, King never argued to the District Court that
the records were “reverse 404(b) evidence,” as he argues now, and
the District Court's rulings on the admissibility of the evidence were
thus based only on its analyses under M.R. Evid. 404(a), 404(c), and
405. We have stated numerous times that we will not fault a district
court where it was not given an opportunity to correct itself.
Methods of Offer of Proof
• Rule 103(a)(2)not particular: “substance of the
evidence was made known to the court by offer”
• 103 (b) Record of offer and ruling. The court may
add any other or further statement which shows
the character of the evidence, the form in which
it was offered, the objection made, and the ruling
thereon. It may direct the making of an offer in
question and answer form.
MT Commission Comment
• (b) Record of offer and ruling. This subdivision is
identical to Federal and Uniform Rules (1974)
Rule 103(b). It was adopted to improve the
practice of submitting offers of proof. …The
provision is meant to allow the trial court to
clarify the record for the appellate court's review.
The final sentence is derived from the final
sentence of [former] Rule 43(c), M.R.Civ.P. It
allows the court to direct the offer of proof to be
made in question and answer form.
Q and A format allowed
• Objection. Hearsay.
• Sustained.
• May I make an offer of proof outside the
presence of the jury?
• Witness still on stand, on record
– Q. How did the declarant act when he made the
utterance? A. Very excited!
– Q. What did the out of court declarant say to
you? A. That he, not the defendant, did it.
Other methods ok too
• Written statement signed by witness under
oath
• Written statement by counsel
• Oral statement by counsel on record
– “Counsel for defendant offers that if Witness had
been allowed to testify as to …., she would have
testified that …..”
Exception to requirement of offer of
proof
• You try
• “Judge, may I make an offer of proof as to the
substance of the refused testimony?
• Judge: “No, you may not”
• Bad day in court
• Record shows you knew of, and attempted to
meet, the requirement of offer of proof
• STILL, go back and try written OoP later
Flip Side of Offer of Proof: OFFER
EXHIBIT
• No matter how great your foundation, you
must actually accomplish admission of the
exhibit
• MUST OFFER EXHIBIT INTO EVIDENCE
• “Plaintiff offers Exhibit 1”
– Not “I would like to offer”—Do, don’t wish!
– Keep a checklist
– Check it v. clerk’s record before resting
– After rest, on court’s mercy to reopen
MSC comment
• Ganz moved to admit the exhibit over the defendants' objection. The
court questioned Ganz's counsel at length as to the possible theories of
admissibility of the exhibit. The court concluded that foundation for the
exhibit had not been laid and informed counsel that the right questions
had not yet been asked…. After asking the additional questions which,
along with Trial Exhibit Number 17, established that safety manuals had
been prepared, and later abandoned, Ganz did not again move to admit
Trial Exhibit Number 2. Since the exhibit was not re-offered, the court
did not make a final ruling as to its admissibility. Rather, immediately
before final jury instructions were given, and just after a discussion was
held off the record, the court stated that, “for record purposes,” Trial
Exhibit Number 2 was refused based on “insufficient foundation.” This
ruling was based on the initial offer of the exhibit. Although the substance
of the exhibit was elicited through testimony, no subsequent offer of the
exhibit was made by counsel. Thus, counsel's failure to re-offer the
exhibit discharges us from further addressing this issue on appeal.
Scenarios 2 & 3
• Now 4 per group, because need witness
• Rotate roles so judge from last time is now
either opponent or proponent
• Witness
Scenario 2
• Proponent: “What did Dan Declarant tell you
about happened next?”
• Opponent: Objection! Basis?
• Judge: rule
• …
Scenario 3
• Proponent: “What is Exhibit 1?”
• Witness: “It is the transcript of our
conversation last year, between Dan Declarant
and me, about happened that day”
• Opponent: Objection! Basis?
• Judge: rule
• …
Scenario 2 Suggested Solution
• Here, objection is clearly hearsay
• And without more, judge should sustain
• Now, we don’t know what witness would have
said
• EXACTLY when you make an offer of proof
• Any form will do
– Q and A of witness on record, outside jury
– Statement by counsel
– Written statement
Scenario 3 Suggestion
• Here, same objection: hearsay
• Documents are always! hearsay, if offered to
prove the truth of the matter they assert
• Sustained
• Offer of Proof NOT necessary bc the transcript
has been marked. Kept in record as “refused
exhibit” Supreme Court can see
Character v. Habit
• Articles IV and VI, MRE
• Character Rules:
– 404 (when character of actor allowed)
– 405 (if allowed, how you can do it)
– 608 (character of witness)
• Habit Rule
– 406 (when and how)
Big Picture
• Habit always admissible
• Character usually irrelevant and inadmissible
to prove conduct in conformity
– NEVER in civil cases
– RARELY in criminal cases, usually if defendant
starts it
– Objection! Character! Sustained!
Objection
• Objection! Improper Character.
• Response: This is habit, Rule 406
Habit easy, flat admissible: Rule 406
(a) Habit and routine practice defined. A habit is a
person's regular response to a repeated specific
situation. A routine practice is a regular course of
conduct of a group of persons or an organization.
•
(b) Admissibility. Evidence of habit or of routine
practice, whether corroborated or not, and
regardless of the presence of eyewitnesses, is
relevant to prove that conduct on a particular
occasion was in conformity with the habit or routine
practice.
Distinction
• A trait of character is to be distinguished from habit. “A habit is a
person's regular response to a repeated specific situation.” Rule
406, M.P.Evid. Habit or routine practice may be proved by testimony
in the form of an opinion or by specific instances of conduct
sufficient in number to warrant a finding that the habit existed or
that the practice was routine.
• “Character may be thought of as the sum of one's habits though
doubtless it is more than this. But unquestionably the uniformity of
one's response to habit is far greater than the consistency with
which one's conduct conforms to character or disposition. Even
though character comes in only exceptionally as evidence of an act,
surely any sensible man in investigating whether X did a particular
act would be greatly helped in his inquiry by evidence as to
whether he was in the habit of doing it.” McCormick on Evidence §
162, at 341.
Unchanged since 1977
• “COMMISSION COMMENTS
• (a) Habit and routine practice defined. This subdivision is
original and therefore entirely different than either Federal
or Uniform Rules (1974) Rule 406. The Commission feels
that a definition of these terms is properly part of the rule
for two reasons: First, habit and character evidence are
oppositely treated, that is, habit evidence is admissible
while character evidence is generally not admissible.
Second, the importance because of the opposite
treatment, is often not clear and has led to confusion. The
Commission intends by this definition subdivision to clarify
the terms necessary to apply correctly the rule allowing
habit evidence to be admissible.
Examples of “habit” allowed in MT
• Cited by Commission in Comments, pre-406:
– habit of brakemen of mounting a moving train to
show what an experienced and prudent brakeman
would do under the same circumstances
– the deceased having made a practice of
jumping on the train while in motion
Recent habit cases: habit allowed
• Failure to establish which of two registered nurses working
in emergency room at time motorcycle accident victim was
brought in drew victim's blood would not preclude
admissibility of blood-alcohol test results in victim's suit
against State for negligent design and maintenance of
highway intersection and surrounding area where both of
nurses were qualified to draw blood and were familiar with
routine hospital practice and where, considering number
of blood tests conducted by hospital personnel and length
of time between instant blood test and trial, it would be
unreasonable to expect witnesses to recall which of several
persons present drew blood. Bartel v. State, 1985, 217
Mont. 380, 704 P.2d 1067
Favorite MSC language??
• On the day of the accident, Bartel devoted much of his time preparing for
a trucking trip scheduled to begin the next day. He ate breakfast at a
Ronan restaurant and later ate lunch at a cafe in Pablo. Between 3:00 and
4:00 p.m., Bartel and a friend stopped at Willard's Bar in Ronan where
Bartel drank two beers. Sometime between 6:00 and 7:00 p.m., Bartel ate
dinner at a local drive-in. Shortly after 7:00 p.m., Bartel and two friends
purchased a six-pack of beer and drove around town, during which time
Bartel drank one beer. Around 9:00 p.m., Bartel met two other friends,
George Mitchell and Gerald Cooper, at another Ronan bar, where Bartel
drank at least two drinks consisting of scotch whiskey and water.
• Shortly after this meeting, Bartel traded his pickup truck for Mitchell's
motorcycle. For the rest of the evening, Bartel drove Mitchell's
motorcycle, a 750 cc Yamaha, and Mitchell drove Bartel's pickup. Cooper
was riding his own motorcycle.
• After this meeting and exchange of vehicles and throughout the rest of the
evening until 1:00 a.m., the trio visited various bars between Ronan and
St. Ignatius. [accident occurred at 1:00 a.m., Bartel seriously injured]
Bench trial; defense judgment
• Judge’s Findings of Fact:
• 7. On May 27, 1980, he put in an ordinary day's work until four
p.m., at which time and before five p.m. he had two beers.
Between eight and nine p.m., after eating his supper, he drank
another can of beer. Between nine p.m. on the 27th and the time of
the accident at one a.m. on the 28th he drank not less than nine
and quite probably twelve to fifteen drinks containing
undetermined amounts of scotch whiskey.
• “8. At the time of the accident his blood stream was carrying
between .103 and .213 percentage alcohol, which seriously
impaired his sensory and mental functions, including sight,
perception, reflexion, reaction and ratiocination.”
Bartel: inaccurate
• They probably used alcohol to swab my arm
when took blood, seeped into the sample, so
shows way higher BAC
• No one remembers doing the swab, or how it
was done, particularly
• So blood test should be rejected
• (and I only had 2 no more than 9 drinks of
scotch and water between 9:00 p.m. and 1:00
a.m.)
406 allowed “routine practice” of
hospital blood draw
•
•
Hospital personnel and medical experts testified at length of the routine medical
practices employed at the hospital in drawing and testing blood for alcohol
content. These witnesses also testified at length as to whether those practices
accord with good medical practice. With the single exception of Bartel's expert
witness, all witnesses testifying on this point agreed that the procedures employed
were in accordance with good practice and yielded reliable and accurate results.
During the extensive foundation testimony heard prior to admission of Exhibit X,
the experienced trial judge questioned the witnesses in detail on various points. In
response to a question from the court, Westphal-Marcus indicated she believed
that the blood drawing procedure used in Bartel's case did not deviate from
routine hospital procedure. Further, Heuer stated that she performed the Bartel
blood test using good, reliable procedures. The above testimony, together with
testimony specifically relating to Bartel's blood test, was relevant and provided
adequate foundation to support admission of Exhibit X.
We hold that the record contains substantial credible evidence to show that the
test procedure employed in this case accorded with good medical practice to
assure reliable results.
Routine practice of court to advise of
right to counsel
• Enhanced DUI case
• Defendant said prior ND conviction should not
be used as basis for enhancement, bc he did
not have counsel and did not remember being
told he that he had the right to appointed
counsel
• State submitted affidavit (?) from clerk of ND
court that it was routine practice to so advise
MSC held routine practice supported
conviction
• In addition to the testimony of the clerk of the Williston City Court that it
was the customary practice of the presiding judge of that court to advise
defendants of their constitutional right to counsel, the citation from
Ailport's 1983 North Dakota conviction contains an indication that Ailport
was advised of those rights on that particular occasion. Additionally, it was
the testimony of the Williston City Court clerk that it was the customary
practice of the presiding judge to accept a plea of guilty only where a
defendant had indicated that he was waiving his right to an attorney and
wished to enter a guilty plea. Such evidence was sufficient, as a matter of
North Dakota law, to overcome the presumption against the validity of an
uncounseled conviction and shift the burden of going forward onto
Ailport.
Runner-up? Or Winner?
• Another enhanced DUI case like Ailport
• “At around noon on July 28, 1996, Maine attended a rodeo in Ingomar,
Montana. Upon arriving, he drank a couple of beers at the beer garden.
While there, he noticed a former employer, Rodney Newman. Maine
testified that “Mr. Newman said hello and I said hello, and I was looking at
him. And he says, ‘I've been meaning to talk to you,’ and I said, ‘Yeah, I've
been meaning to talk to you too.’ And I asked him if he was having an
affair with my wife and that's when he swung at me.” According to Maine,
five of Newman's friends held Maine down while Newman beat Maine to
the point of unconsciousness. When Maine regained consciousness, he
walked over to a horse trough to wash his face. He then noticed his
assailants walking toward him. Maine testified that he felt threatened and
believed that he had no safe place to go in Ingomar, which did not have a
police station. Thus, he went to his pickup and headed down highway 12
toward Forsyth, roughly 40 miles away.”
That was his 1996 conviction
• Used in count for felony DUI in 2009
• Maine claimed 1996 conviction was
constitutionally invalid bc counsel should have
used defense of compulsion (had to drive
drunk to flee Ingomar rodeo); ineffective
assistance
• Really no habit issue here 
• Bottom line: felony conviction affirmed
Harsh Discipline of Child = HABIT??
• UnderRule 406, M.R.Evid., the acts habitually
performed by Sigler in response to his
perceived need for discipline of the child were
admissible. As a matter of habit, his discipline
of the child was excessively harsh.
• We find no error in the admission of the
disciplinary acts administered by Sigler to the
child.
And see State v. Murray 1987
• Extended 404 “prior acts”/Just analysis
• And then MSC says: We further hold that the
disputed evidence was also admissible under
State v. Sigler (Mont.1984), 688 P.2d 749, 41
St.Rep. 1039, independent of Rule 404(b) and
the Just formula. “
• Defendant’s prior disciplinary acts used to
show habitually excessive discipline to show
she did it
And see State v. Huerta, 1997
• Cites Sigler with approval
• Holds trial judge erred in excluding defense evidence of
another person’s prior conduct with abused child as
improper character evidence:
• “Huerta's intention was to establish, through the testimony
of numerous witnesses, that it was Brenda's habit to
regularly respond to Thymer's misbehavior with abusive
discipline. We therefore conclude, pursuant to our decision
in Sigler, that the District Court erred by characterizing the
proffered evidence as inadmissible character evidence. We
conclude that the evidence was evidence of habit and
absent other considerations, was admissible pursuant to
Rule 406, M.R.Evid.”
But 403 always out there
•
While the District Court's explanation of why Huerta's habit evidence was excluded
does not track the exact language of Rule 403, M.R.Evid., it appears that Rule 403
served as the basis for the District Court's decision.
•
In the process of determining whether to exclude the testimony of Huerta's
witnesses, the District Judge repeatedly expressed concern that the witness
testimony had no relation in time to Thymer's assault. He further stated that he
thought the evidence was cumulative, repetitious, and that it frustrated the
orderly administration of the trial. According to the District Court, Huerta could
have established his defense that Brenda was actually the perpetrator of the
assault on Thymer without using the testimony of numerous witnesses. The
District Court explained that absent more direct evidence of Brenda's connection
to the beating in question, the prejudice which these witnesses would have
presented in the form of “character assassination” of Brenda far outweighed the
probative value of their testimony. We conclude that Huerta was able to
sufficiently present his defense without the excluded testimony …
Habit allowed, cont’d
• Husband convicted of kidnapping and sexual assault
• Wife testified in his behalf
• On x: “He never made me or anyone else work the
streets”
• MSC: “raised an immediate issue as to the habitual
routine of the defendant, … such as to entitle the State
to offer evidence in rebuttal in form of testimony of a
witness respecting statements made by the defendant
as to how the wife would help the defendant lure
young women into the business of prostitution.”
Recent habit cases: not allowed
• previous employment claim against employer
by different employee was inadmissible as
evidence of habit or routine in action by
employee against employer alleging wage
claims and constructive discharge; more than
one dispute was required to show “habit.”
Harrell v. Farmers Educational Co-op Union of
America, Montana Div., 314 P.3d 920, 373
Mont. 92 (2013).
Not allowed, cont’d
• Evidence of precautions usually undertaken by
cycling organization at races did not qualify as
evidence of custom in cyclist's negligence suit
for injuries sustained in race sponsored by
organization, where there were no other
nonparty members of organization's industry
against which jury could compare
organization's conduct. Ganz v. U.S. Cycling
Federation, 1995, 273 Mont. 360, 903 P.2d
212
Not allowed, cont’d
• Evidence of a prior fall which
subcontractor's injured employee [plaintiff]
took on another project was irrelevant and
inadmissible in action against owner and
general contractor since fall occurred one
and one-half months prior to accident in
question and under different
circumstances. Mydlarz v. Palmer/Duncan
Const. Co., 1984, 209 Mont. 325, 682 P.2d 695
How
• (c) Method of proof. Habit or routine practice
may be proved by testimony in the form of an
opinion or by specific instances of conduct
sufficient in number to warrant a finding that
the habit existed or that the practice was
routine.
Commission Comment
• “A problem which may arise with specific
instances of conduct is that in laying the
foundation to prove habit by this method, the
proponent may be able to infer all that is
necessary for the jury to conclude a particular
habit existed, even though the court
subsequently rules an insufficient number of
instances have been shown. This problem should
be solved by having such foundation made in the
absence of the jury under Rule 103. Note that
use of opinion evidence is intended to be
governed by Rule 701.
How to prove habit
• Arithmetic
• Witness has to say
– How many times s/he observed the person in the
situation
– And out of those times, how many (what
percentage) did the person act that way?
– “Always” v. “A lot” v. “sometimes”
One fall does not a habit make
• We hold that this evidence [by defendant, that plaintiff
had fallen off another scaffold] was improperly
admitted. Rule 406, Mont.R.Evid., allows evidence of
habit which is defined as a regular response to a
repeated specific situation. Rule 406(a), Mont.R.Evid.
Moreover, evidence of habit may be proven by specific
instances of conduct sufficient in number to warrant a
finding that the habit existed or that the practice was
routine. Rule 406(c), Mont.R.Evid. In our view one
instance of alleged carelessness does not indicate
habitual carelessness.
Scenario 4
• Driver William killed when car hit tree, no
eyewitnesses
• When body found, seatbelt unfastened
• Spouse sues the manufacturer
• Defense: William not wearing seatbelt, and
that failure caused his death
• Plaintiff’s theory: he was wearing his seatbelt,
but it was defectively manufactured
Disregard substantive law
• 61-13-106. Evidence not admissible
• Evidence of compliance or failure to comply
with 61-13-103 [seatbelt use required] is not
admissible in any civil action for personal
injury or property damage resulting from the
use or operation of a motor vehicle, and
failure to comply with 61-13-103 does not
constitute negligence.
Plaintiff offers
• Wife’s own testimony:
– Were married 10 years
– They lived 10 miles out of town
– Whenever she drove with him, he wore his
seatbelt
• Co-worker’s testimony: “William was an
‘extremely cautious’ driver”
Solution: Wife
• Wife, how long were you married? 10 years
• Did you drive with William often? Yes,
everyday, because we lived 10 miles out of
town and commuted together to work.
• Who drove? We both did, depended.
• How many times did you drive with him,
total? Well, 2x per day, 5 days/week/10 years
just for work = 5,200 times. And then there
were the weekends and trips, so 7,000 or so
Wife, cont’d
• During those 7,000 or so drives, were you able to
see how often William wore his seatbelt? Yes
• What percentage of those 7,000 drives did he
wear his seatbelt? 100%
• Would you call him a habitual seatbelt wearer?
Absolutely (Objection? I think not)
• Do you think he was wearing his seatbelt when
he hit the tree? Yes, I know he was, because he
always did (Objection here? 406? 701 Lay
opinion?)
Hearsay?
• Did William ever talk to you about wearing a
seatbelt? Yes, a couple of times
• What did he say? OBJECTION!! HEARSAY!
• Out of Court Statement? Of course
• Offered for the truth of the matter?
– We don’t know, until know what she is going to
say. Have to hear outside presence of jury
– If excluded, P must make offer of proof
Solution: Coworker
• How well did you know William? Very well.
• How did you know him? We were coworkers.
• Did you ever drive anywhere with him? A lot, all
over Montana, for four years
• What kind of driver was he?
– OBJECTION!! Improper character evidence, Rule 404a
– Sustained.
– Offer of proof here, for Plaintiff: “Witness would
testify that William was a very cautious driver”