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

• (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

• 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

• 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 camerainspection 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 Barteldrank 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 Bartelblood 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 Ailportwas 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”