COLJ Spring 2016
Rules of Evidence
Great to be back
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Love you guys
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Love Billings
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Love Evidence
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Let’s do it
Last training
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Subjects we covered:
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Basic Evidence resources
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Character (but didn’t get to Habit)
This time:
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Quick refresher on sources of Evidence
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Then use the fact pattern, dui, and discuss some of the
evidentiary issues which could arise
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Relevance
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Rule 403
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Rule 609, prior convictions; impeachment of witnesses re:
truthfulness
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Habit (v. character)
MCA Title 26
Title 26. EVIDENCE
CHAPTER 1. STATUTORY PROVISIONS ON EVIDENCE
CHAPTER 2. SUBPOENAS AND WITNESSES
CHAPTER 3. EFFECT OF FORMER JUDGMENTS AND
ORDERS
CHAPTER 4 THROUGH 9 RESERVED.
CHAPTER 10. MONTANA RULES OF EVIDENCE
“Stealth” Evidence provisions
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Scattered throughout the MCA
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Apply even though not located in “Evidence” Title
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Examples:
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26-1-106: Explanation of alterations in a writing
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26-2-601: Expert qualifications in medical
malpractice
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30-2-202: Parol evidence rule
Chapter I: Statutory
Provisions
Part 1. Definitions and Miscellaneous Provisions
Part 2. Province of Court and Jury
Part 3. Weight and Effect of Evidence
Part 4. Burdens of Proof
Part 5. Inferences
Part 6. Presumptions
Part 7. Voluntary Payment of Claims
Part 8. Privileges
Part 9. Media Confidentiality Act
Part 10. Affidavits
Part 11. Uniform Unsworn Foreign Declarations Act
CHAPTER 2. SUBPOENAS AND WITNESSES
Part 1. Subpoenas
Part 2. Securing Testimony of Witness Who Is a
Prisoner
Part 3. Duties of Witnesses
Part 4. Protection of Witnesses
Part 5. Witness Fees
Part 6. Expert Witness Qualifications -- Medical
Malpractice
MRE: Chapter 10
CHAPTER 10. MONTANA RULES OF EVIDENCE
Part I. General Provisions
Part II. Judicial Notice
Part III. Presumptions
Part IV. Relevancy and Its Limits
Part V. Privileges
Part VI. Witnesses
Part VII. Opinions and Expert Testimony
Part VIII. Hearsay
Part IX. Authentication and Identification
Part X. Contents of Writings, Recordings, and Photographs
MRE apply in COLJ
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Article: “Like pearls…”
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MRE 101:
Rule 101. Scope.
(a) Proceedings generally. These rules
govern all proceedings in all courts in the
state of Montana with the exceptions stated
in this rule. …
When MRE DON’T
APPLY
(c) Rules inapplicable. The rules (other than those with respect to
privileges) do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of
fact preliminary to admissibility of evidence when the issue is to be
determined by the court under Rule 104(a). …
(3) Miscellaneous proceedings. Proceedings for extradition or
rendition; preliminary examinations and proceedings on applications for
leave to file informations in criminal cases; sentencing; dispositional
hearings in youth court proceedings; granting or revoking probation or
parole; issuance of warrants for arrest, criminal summonses and notices
to appear, and search warrants; and proceedings with respect to release
on bail or otherwise. …
Bottom line
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Except for U.S. Constitutional issues, Montana law
governs evidence in all of Montana courts, including
COLJ
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Montana statutes, throughout MCA, and M.R.E. are the
primary sources
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Comments/Notes are helpful guides
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Montana Supreme Court has final word on interpretation
and application of Montana evidence provisions
Other MT resources
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Judge Harkin’s great book
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keyed to individual rules
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has synopses of cases
Ford articles in Montana Lawyer magazine
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“Evidence Corner”
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http://scholarship.law.umt.edu/faculty_barjournals/
End of sources of Evidence
law/guidance
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Any questions?
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On to consider evidentiary issues raised by fact
pattern for this training session
Aggravated DUI Trial
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Issue 1: Use of prior convictions
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Facts:
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8/4/2015 Officer X stops Patrick Sean McFarland
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Lack of tail lights
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Observes strong odor of alcohol, bloodshot/glassy eyes,
slurred speech, fumbled registration
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Obtains warrant for blood test: BAC .059, THC 35mL
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Discovers Prior conviction for DUI on 11/25/2014
Trial Witness 1: Officer
X
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Prosecutor Q. Who are you? I am the officer who
stopped Mr. McFarland on August 4, and arrested
him.
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Besides your physical observations, did you conduct
any research into Mr. McFarland’s past history?
Yes.
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What did you do? Once he gave me his driver’s
license, I called it in. It turned out that he had a prior
conviction … OBJECTION!!!
Grounds for objection
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Must be specific and timely: no objection, no error :)
Rule 103. Rulings on evidence.
(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
(1) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if the
specific ground was not apparent from the context;
Multiple objections
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Frequent, to same evidence
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OBJECTION! Your Honor, this evidence is
inadmissible under
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Rule 402: irrelevant
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Rule 403
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Rule 609
What is relevant?
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Rule 402: “Evidence which is not relevant is not
admissible.”
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Rule 401: “Relevant evidence means evidence
having any tendency to make the existence of any
fact that is of consequence to the determination of
the action more probable or less probable than it
would be without the evidence. Relevant evidence
may include evidence bearing upon the credibility of
a witness or hearsay declarant.”
Must always start with law
61-8-401. Driving under influence of alcohol or drugs -- definitions. (1) It is
unlawful and punishable, as provided in 61-8-442, 61-8-714, and 61-8-731
through 61-8-734, for a person who is under the influence of:
(a) alcohol to drive or be in actual physical control of a vehicle upon the
ways of this state open to the public;
(b) a dangerous drug to drive or be in actual physical control of a vehicle
within this state;
(c) any other drug to drive or be in actual physical control of a vehicle within
this state; or
(d) alcohol and any dangerous or other drug to drive or be in actual physical
control of a vehicle within this state.
Break down into required
elements
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State must prove each beyond a reasonable doubt
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Varies according to exact crime charged
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Here: It is unlawful for a
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Person under the influence of alcohol and/or any drug
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To drive
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a vehicle
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within this state
Objection! Irrelevant!
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The elements:
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influence of alcohol and/or any drug
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To drive
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a vehicle
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within this state
Does the conviction “hav[e] any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable”?
Ruling on Relevance?
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Objection sustained
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Conviction is not relevant
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Inadmissible
Objection!! Rule 609
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Here, lawyer not likely to use descriptor
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Doesn’t want to tip jury off to what the testimony will
be
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What should you do first to rule on this?
MRE 609
Rule 609. Impeachment by evidence of conviction of crime.
For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime is not admissible.
History: Ad. Sup. Ct. Ord. 12729, Dec. 29, 1976, eff. July 1, 1977; amd.
Sup. Ct. Ord. June 7, 1990, eff. June 7, 1990.
Commission: We reject FRE
609
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“However, the Commission rejects the rule allowing impeachment by
evidence of conviction of a crime, not only because of these
Constitutional and statutory provisions but also and most importantly
because of its low probative value in relation to credibility. The
Commission does not accept as valid the theory that a person's
willingness to break the law can automatically be translated into
willingness to give false testimony. Advisory Committee Note to Federal
Rule 609, 46 F.R.D. 161, 297, (1969). The Commission does believe that
conviction of certain crimes is probative of credibility; however, it is
the specific act of misconduct underlying the conviction which is
really relevant, not whether it has led to a conviction. Allowing conviction
of crime to be proved for the purpose of impeachment merely because
it is a convenient method of proving the act of misconduct (Advisory
Committee Note, Id.) is not acceptable to the Commission, particularly in
light of Rule 608(b) allowing acts of misconduct to be admissible if they
relate to credibility.
FRE 609
(a) In General. The following rules apply to attacking a witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the
witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative
value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court
can readily determine that establishing the elements of the crime required proving — or the
witness’s admitting — a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10
years have passed since the witness’s conviction or release from confinement for it, whichever is
later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs
its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so
that the party has a fair opportunity to contest its use.
Rule 609
Very different from FRE
Rule 609. Impeachment by evidence of conviction of crime
For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime is not
admissible.
FRE allows, as a general rule
not if too old
easier to get in felony than misdemeanor
but all felonies in past 10 years are admissible
back to MRE 609
Rule 609. Impeachment by evidence of conviction of crime.
For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime is not admissible.
Your ruling? Does this apply to testimony of Officer X that defendant has
prior conviction?
If so, sustain; stop Officer X from rest of sentence
If not, overrule; let Officer X go on
609 Ruling: Overrule!
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Read MRE 609 carefully: “For the purpose of
attacking the credibility of a witness, evidence that
the witness has been convicted”
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Who is the witness here? Officer X, not defendant
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Has Officer X been convicted (as far as we
know)? NO
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Rule 609 does not apply, (think: stupid objection)
Rule 403: Exclusion even if
relevant
Rule 403. Exclusion of relevant evidence on grounds of
prejudice, confusion, or waste of time.
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.
To rule on 403, judge must
balance:
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Relevant, but how probative? How much weight?
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Is there a 403 danger? How much weight?
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OVERRULE unless danger “substantially outweighs”
the probative value
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if they are the same
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if probative value more than danger
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if danger more than probative value, but just a bit
To measure probative
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Identify how the evidence is relevant, i.e. meets
401/402
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Then discuss how probative of that fact the evidence
is
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In context of other proof of same fact
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So can compare to the 403 danger
Identify, and weigh, 403
danger
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.
Recent MT 403 cases
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222 cases under MRE 403 (at least)
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will discuss 4 recent MSC cases today, illustrative:
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State v. Follette 2016
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State v. Tweten 2015
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French v. Beighle 2015
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State v. Given 2015
State v. Follette 2016
A district court has discretion to exclude relevant evidence if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury. M.R. Evid.
403.
¶ 6 Here, Follette argues that, in granting the State's motion in limine,
the District Court precluded him from introducing evidence that his wife
had threatened him in the past that she would publicly accuse him of
molesting one of her children in order to keep Follette from leaving her.
This evidence, Follette asserts, would have supported his assertion
that M.C.D. fabricated the allegations against him because her mother
told her to. The District Court granted the State's motion to exclude this
evidence concluding it was both more prejudicial than probative and
“beyond the scope of the State's case.”
AND: no offer of proof
Also, the District Court noted that Follette had been
given several opportunities to provide an offer of
proof, essentially to outline what specific prior crimes,
wrongs, or bad acts of his wife he wished to introduce
at trial. Follette never provided an offer of proof.
Despite the lack of evidence introduced about his
wife's prior threats, Follette was still able to argue, in
his closing statement to the jury, that M.C.D.
fabricated Follette's abuse at her mother's behest.
State v. Tweten (2015)
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Tweten travelling on foot across prairie (near Glasgow)
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Comes upon unlocked garage, steals truck
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Drives it to his uncle’s ranch, gets it stuck in mud,
leaves it running
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Stole his uncle’s tractor to get truck out; tractor gets
stuck, too, and truck catches fire
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He stole his uncle’s truck and zoomed off, rolled it
4 felonies, 3 misdemeanors
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Appealed on 403 grounds
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Objected at trial, overruled
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“First, Tweten claims the District Court abused its
discretion by admitting evidence that he told police
he had not had a driver's license since 2004 “due to
a DUI.”
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Affirmed by MSC: 403 does not bar this testimony
Relevant evidence may be inadmissible “if its probative value
is substantially outweighed by the danger of unfair prejudice.”
Mont. R. Evid. 403. Tweten argues testimony about his prior
DUI resulted in unfair prejudice. We disagree. At trial, Deputy
Remmich, testified Tweten stated he did not have a driver's
license and he had not had one since receiving a DUI in
October of 2004. This testimony related to Count 9 charging
Tweten with driving with a suspended license. Count 9 was
later dismissed for insufficient evidence. Here, there was no
prejudice because the passing mention of Tweten's admitted
DUI was unrelated to the other charges of burglary, criminal
mischief, trespass, fleeing or eluding a peace officer, and
reckless driving. The District Court did not abuse its discretion
by admitting this testimony.
403 analysis extended
•
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Relevant/probative?
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Non-hearsay statement by defendant: “I don’t
have a license, not for years, bc of DUI”
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Relevant to pending charge of driving with license
suspended
HOW relevant? A lot
Rule 403 danger?
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Unfair prejudice?
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Confusing/misleading jury? Driving suspended charge later
dismissed…
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Waste of time? NO, just a second or two
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MSC: “there was no prejudice because the passing
mention of Tweten's admitted DUI was unrelated to the
other charges of burglary, criminal mischief, trespass,
fleeing or eluding a peace officer, and reckless driving. The
District Court did not abuse its discretion by admitting this
evidence”
French v. Beighle 2015
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Malpractice case against Missoula podiatrist Beighle
for toe operation
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Defense verdict
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Plaintiff/patient appealed
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Alleged Judge Larson should have let her put on
evidence of prior malpractice claims against Dr.
Beighle
¶ 14 Trench planned to provide testimony from three other patients
to show that Dr. Beighle's conduct and practices were substantially
similar. In its opinion and order on the parties' motions in limine, the
District Court found that Trench did not adequately identify a habit or
routine and excluded other malpractice cases and unnamed
individuals alleging malpractice against Dr. Beighle. The court relied
upon M.R. Evid. 403 which states that relevant evidence is
inadmissible “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury....” M.R. Evid. 403
We have stated numerous times that district courts are in the best
position to make evidentiary rulings. See Waller v. Hayden, 268
Mont. 204, 885 P.2d 1305 (1994). Given the clear danger of unfair
prejudice, the District Court did not abuse its discretion in excluding
the testimony of earlier unrelated medical malpractice claims.
State v. Given 2015
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next-door neighbor convicted of sexual abuse of 10
year old boy
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He admitted touching, but claimed it was accidental
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Judge allowed testimony from defendant’s sister
about his abuse of her when she was young,
including same pattern of favoritism and escalating
contact
Affirmed under 403
“Given asserts …that the probative value was substantially outweighed by
the risk of unfair prejudice. He points to the highly inflammatory nature of
child molestation evidence, as recognized in State v. Franks, 2014 MT 273…
¶ 33 M.R. Evid. 403 does not require the exclusion of relevant evidence
simply because it is prejudicial. Rather, such evidence is inadmissible
only when it will prompt the jury to decide the case on an improper
basis. State v. Stewart, 2012 MT 317, ¶ 68, 367 Mont. 503, 291 P.3d 1187.
In conducting its analysis in this case, the District Court concluded A.U.'s
testimony was relevant and that its probative value was not substantially
outweighed by the danger of unfair prejudice. And the court instructed
the jury on the limited purpose for which the evidence could be used—to
show intent or absence of mistake or accident.
¶ 34 We hold the District Court did not abuse its discretion by allowing into
evidence A.U.'s testimony about Given's abuse of her when she was a child”
Can also use federal
authorities re: 403
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BC MRE 403 is identical to FRE 403
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MT Commission Comment: “This rule is identical to
Federal and Uniform Rules (1974) Rule 403.”
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So can use federal treatises and case law as
persuasive authority
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Thousands of those cases
Back to McFarland
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On charge of simple (not repeat) DUI, is evidence
that he has a prior conviction of DUI:
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relevant? No, so sustain objection: not admissible
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unduly prejudicial per 403, even if it were
relevant? ???
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violative of 609, no criminal conviction to impeach
witness? No, does not apply, so overrule on that
ground
Bottom line
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In simple DUI charge, evidence of prior conviction
should not come in
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simply because not relevant, barred by 402
“irrelevant evidence is not admissible.” Period.
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bc not relevant, no probative value, and clear
danger of unfair prejudice, per 403
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609 does not matter on these facts
Now, look again at 609
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First scenario, witness was Officer X
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Now assume State has rested.
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Defendant McFarland takes stand, testifies
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“I was not at all drunk. I had not even had 2 beers, and
certainly took no drugs.”
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X by State: “Isn’t it true that you were convicted…
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OBJECTION!! RULE 609. MOVE FOR MISTRIAL
609 applies bc D testified,
thus also is a “witness”
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State is using prior conviction to impeach witness
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To show he isn’t trustworthy bc is a convicted
criminal
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Will stipulate to a limiting instruction: “The evidence
you heard about Mr. McFarland’s prior criminal
conviction is admitted only to help you decide
whether he was telling the truth when he testified.
You are not to consider it in any way in deciding
whether he in fact is guilty of the charged DUI”
Limiting Instruction
Rule 105. Limited admissibility.
When evidence which is admissible as to one party or for
one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.”
“
Here, defendant refused to stipulate to the proposed limiting
instruction. Objects both to the testimony and the limiting
instruction.
How should you rule on the 609 objection?
MT Commission Comment
This rule is unlike either the Federal or Uniform Rules (1974) Rule 609 in that they
provide that evidence of conviction of a crime is admissible for the purpose of
attacking credibility….
However, the Commission rejects the rule allowing impeachment by evidence
of conviction of a crime, not only because of these Constitutional and statutory
provisions but also and most importantly because of its low probative value in
relation to credibility. The Commission does not accept as valid the theory that a
person's willingness to break the law can automatically be translated into
willingness to give false testimony. Advisory Committee Note to Federal Rule 609,
46 F.R.D. 161, 297, (1969). The Commission does believe that conviction of certain
crimes is probative of credibility; however, it is the specific act of misconduct
underlying the conviction which is really relevant, not whether it has led to a
conviction. Allowing conviction of crime to be proved for the purpose of
impeachment merely because it is a convenient method of proving the act of
misconduct (Advisory Committee Note, Id.) is not acceptable to the
Commission, particularly in light of Rule 608(b) allowing acts of misconduct to be
admissible if they relate to credibility.
State v. Shaw 1989
defense witness, Charles Schoonover testified that he wasn’t sure who brought the gun into the bar, but that
it was not the defendant. He testified that he had known the defendant for ten to fifteen years.
On cross examination of Mr. Schoonover the State engaged in the following inquiry:
Q. Have you ever been convicted of a crime?
Mr. Christi: Your Honor, I’m going to object to that question. I don’t believe it’s within the scope of crossexamination.
Mr. Corbin: I believe that has to be within the scope, Your Honor.
The Court: It’s cross-examination. Overruled.
Q. (by Mr. Corbin) Have you?
A. Yeah.
Q. What crime?
A. Intimidation.
Q. Any other crimes?
A. Assault.
Q. Anything involving guns?
A. Intimidation.
MSC: Furious
The State argues that the introduction of such evidence was harmless error because Mr.
Schoonover’s testimony merely corroborated that of the bar owner and added nothing to
the defendant’s case. Despite the substance of the witness’ testimony, this Court will not
condone prosecutorial conduct which is in clear violation of Rule 609, M.R.Evid. …The
record fails to disclose any appropriate reason for the State’s inquiry as to the prior
criminal conduct of Mr. Schoonover. Clearly it was not something inadvertent in nature,
as the defendant’s attorney objected to the question but was overruled by the trial court.
We conclude that the intention on the part of the State was to discredit the witness by
showing that he had been engaged in crimes of intimidation and assault, and that the
intimidation crime involved guns. We further conclude that the aim on the part of the
State was to improperly impugn the character of the defendant and thereby suggest a
greater likelihood of guilt of the crimes with which he was charged. We will not tolerate
this intentional and significant evasion of our rules.
We conclude that the prosecution’s inquiry clearly was improper under Rule 609,
M.R.Evid., and that none of the exceptions stated in Rule 404(b), M.R.Evid. applied.
We hold that it was reversible error for the District Court to allow this testimony.
State v. Gowan (2000)
After opening statements, the parties again met with the District
Court to discuss the admissibility of Gowan’s prior perjury
conviction and what evidence, if any, would be admissible should
Gowan choose to testify. The District Court ruled that while direct
evidence of a prior conviction was not admissible, the State
would be permitted to ask Gowan, in the event he testified,
only if he had lied under oath in the past. Once again, the
District Court clarified that the State was not to make references to
Gowan’s prior convictions.
Ruling on 609 re: McFarland
as witness?
•
Can’t ask witness about any conviction in MT
•
Can ask only about the conduct, if it is relevant to
truthfulness on the stand
•
Is McFarland’s prior conviction for DUI relevant to
whether he is a big fat liar? It is not for perjury…
•
Sustain objection, or overrule?
•
Mistrial?
Bottom line: 609 in MT
•
Parties can present witnesses without fear their
criminal backgrounds will come out
•
Very different from federal court
•
BUT still can attack the character of a witness for
the single trait of truthfulness, per Rule 608
MRE 608
Rule 608. Evidence of character and conduct of witness.
(a) Opinion and reputation evidence of character. The credibility of a witness
may be attacked or supported by evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness, and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness' credibility, 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.
How to attack McFarland’s
truthfulness?
•
No use of his conviction (609)
•
CAN:
•
bring character witness re: opinion, reputation only
(608a)
•
I have known Sean for 20 years. In my opinion,
he is big fat liar
•
Everyone in town says Sean is a big fat liar
Specific instances of lying?
•
608b
•
on X only
•
•
Of witness himself, Sean McFarland
•
“Isn’t it true that you lied to your mother every day?
•
And to your priest? And to your teacher?”
BUT no extrinsic evidence— if he denies these, you
are stuck (but he has perjured himself)
Any questions on
•
Proper impeachment of trial witnesses
•
Rule 608: opinion/reputation of character for
truthfulness; specific instances only on X
•
Rule 609: can’t admit prior convictions of
witnesses to impeach them
•
can use prior instances of lying, on x, per 608b
On to
•
Permissible use of habit of person involved in the
occurrence at hand, to predict whether the person
likely acted that way that night
Beighle case: also habit?
¶ 14 Before trial Trench argued that Dr. Beighle's manner and routine in his
podiatry practice qualifies as admissible habit evidence under M.R. Evid. 406.
Trench planned to provide testimony from three other patients to show that Dr.
Beighle's conduct and practices were substantially similar. In its opinion and
order on the parties' motions in limine, the District Court found that Trench did
not adequately identify a habit or routine and excluded other malpractice cases
and unnamed individuals alleging malpractice against Dr. Beighle….
The District Court also noted that while evidence of habit or a routine
practice is relevant to prove that conduct on a particular occasion was in
conformity with the habit or routine practice under M.R. Evid. 406(b),
“evidence of a person's character or a trait of character is not admissible
for the purpose of proving action in conformity therewith....” M.R. Evid. 404(a).
We have stated numerous times that district courts are in the best position to
make evidentiary rulings. See Waller v. Hayden, 268 Mont. 204, 885 P.2d 1305
(1994). Given the clear danger of unfair prejudice, the District Court did not
abuse its discretion in excluding the testimony of earlier unrelated medical
malpractice claims.
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
• In this case, does defendant Sean McFarland
have an admissible habit of driving under the
influence?
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.
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.
McFarland scenario
•
What do we know from facts given?
•
He appeared to be under the influence this night,
and we know his blood tests results. Habit?
•
He has an earlier conviction in Idaho for dui. Now
2 incidences (including present). Habit?
•
What would we need to hear before you could let
prior conduct in as habit?
Prior DUI incident show
habit?
•
Objection!
•
Your honor, we did not violate Rule 609.
Discussed conduct, not result of conduct. It is
admissible as habit, per Rule 406.
•
Sustain, or overrule?
•
Why?
Easy! Overrule
•
Only 2 instances, this and another
•
This one not proven
•
So only one time driving under influence for sure
•
How many times has he driven, before and after?
•
1/1000s is not a habit
Add a witness for the
prosecution
•
McFarland’s ex-wife
•
“I was married to him for 15 years. Divorced last
month.
•
Did you drive with him? all the time…thousands of
trips
•
Did you observe any conduct you consider to be a
habit in his driving? Yes, I did, actually 2 habits.
•
Before you tell us what those habits are, first tell us again
how many times you were in the car with him, while he was
driving? Thousands.
•
Of those thousands of times, how many of them did he do
the things you say are his habits? ALL of them
•
100%? Yes, 100% of the time. He never did not do them.
•
Ok, what are his driving habits?
•
He always wears his seatbelt, obsessively.
•
And he always tokes up and then has a couple of beers.
Your ruling?
•
Objection, and move to strike, your honor. Irrelevant
and improper character.
•
No, your honor, this is admissible habit evidence per
Rule 406.
•
Sustain objection, strike? Or overrule objection,
allow?
406c
• (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.
Ex-wife continues,
prosecution case in chief
•
Do you have an opinion as to what kind of guy Sean
is? You bet.
•
Objection! Character!
•
Your ruling?
Character inadmissible
•
In all prosecution cases-in-chief in your courts
•
404a: “(a) Character evidence generally. Evidence
of a person's character or a trait of character 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 trait of character offered by an accused, or
by the prosecution to rebut the same.
Change facts
•
No character evidence from prosecutor
•
Sean’s defense lawyer calls Sean’s mom:
•
“What kind of guy is your son?” (Trait has to be
relevant) He is very law-abiding and sober.
•
Prosecutor can x Mom: “didn’t he break law about
driving under influence in Idaho?” AND
•
Call on rebuttal ex-wife: What kind of guy is Sean? Lawabiding? NO! Sober? NO!!
Evidence questions??
•
I haven’t covered but you wish I had?