COLJ Spring 2016Rules of Evidence

Great to be back

• Love you guys

• Love Billings

• Love Evidence

• Let’s do it

Last training

• Subjects we covered:

• Basic Evidence resources

• Character (but didn’t get to Habit)

This time:• Quick refresher on sources of Evidence

• Then use the fact pattern, dui, and discuss some of the

evidentiary issues which could arise

• Relevance

• Rule 403

• Rule 609, prior convictions; impeachment of witnesses re:

truthfulness

• 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

• Scattered throughout the MCA

• Apply even though not located in “Evidence” Title

• Examples:

• 26-1-106: Explanation of alterations in a writing

• 26-2-601: Expert qualifications in medical

malpractice

• 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

• Article: “Like pearls…”

• 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

• Except for U.S. Constitutional issues, Montana law

governs evidence in all of Montana courts, including

COLJ

• Montana statutes, throughout MCA, and M.R.E. are the

primary sources

• Comments/Notes are helpful guides

• Montana Supreme Court has final word on interpretation

and application of Montana evidence provisions

Other MT resources

• Judge Harkin’s great book

• keyed to individual rules

• has synopses of cases

• Ford articles in Montana Lawyer magazine

• “Evidence Corner”

• http://scholarship.law.umt.edu/faculty_barjournals/

End of sources of Evidence

law/guidance

• Any questions?

• On to consider evidentiary issues raised by fact

pattern for this training session

Aggravated DUI Trial• Issue 1: Use of prior convictions

• Facts:

• 8/4/2015 Officer X stops Patrick Sean McFarland

• Lack of tail lights

• Observes strong odor of alcohol, bloodshot/glassy eyes,

slurred speech, fumbled registration

• Obtains warrant for blood test: BAC .059, THC 35mL

• Discovers Prior conviction for DUI on 11/25/2014

Trial Witness 1: Officer

X• Prosecutor Q. Who are you? I am the officer who

stopped Mr. McFarland on August 4, and arrested

him.

• Besides your physical observations, did you conduct

any research into Mr. McFarland’s past history?

Yes.

• 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

• 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

• Frequent, to same evidence

• OBJECTION! Your Honor, this evidence is

inadmissible under

• Rule 402: irrelevant

• Rule 403

• Rule 609

What is relevant?

• Rule 402: “Evidence which is not relevant is not

admissible.”

• 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• State must prove each beyond a reasonable doubt

• Varies according to exact crime charged

• Here: It is unlawful for a

• Person under the influence of alcohol and/or any drug

• To drive

• a vehicle

• within this state

Objection! Irrelevant!

• The elements:

• influence of alcohol and/or any drug

• To drive

• a vehicle

• 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?

• Objection sustained

• Conviction is not relevant

• Inadmissible

Objection!! Rule 609

• Here, lawyer not likely to use descriptor

• Doesn’t want to tip jury off to what the testimony will

be

• 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• “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!

• Read MRE 609 carefully: “For the purpose of

attacking the credibility of a witness, evidence that

the witness has been convicted”

• Who is the witness here? Officer X, not defendant

• Has Officer X been convicted (as far as we

know)? NO

• 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:• Relevant, but how probative? How much weight?

• Is there a 403 danger? How much weight?

• OVERRULE unless danger “substantially outweighs”

the probative value

• if they are the same

• if probative value more than danger

• if danger more than probative value, but just a bit

To measure probative

• Identify how the evidence is relevant, i.e. meets

401/402

• Then discuss how probative of that fact the evidence

is

• In context of other proof of same fact

• 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

• 222 cases under MRE 403 (at least)

• will discuss 4 recent MSC cases today, illustrative:

• State v. Follette 2016

• State v. Tweten 2015

• French v. Beighle 2015

• State v. Given 2015

State v. Follette 2016A 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)

• Tweten travelling on foot across prairie (near Glasgow)

• Comes upon unlocked garage, steals truck

• Drives it to his uncle’s ranch, gets it stuck in mud,

leaves it running

• Stole his uncle’s tractor to get truck out; tractor gets

stuck, too, and truck catches fire

• He stole his uncle’s truck and zoomed off, rolled it

4 felonies, 3 misdemeanors

• Appealed on 403 grounds

• Objected at trial, overruled

• “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.”

• 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

• Relevant/probative?

• Non-hearsay statement by defendant: “I don’t

have a license, not for years, bc of DUI”

• Relevant to pending charge of driving with license

suspended

• HOW relevant? A lot

Rule 403 danger?• Unfair prejudice?

• Confusing/misleading jury? Driving suspended charge later

dismissed…

• Waste of time? NO, just a second or two

• 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

• Malpractice case against Missoula podiatrist Beighle

for toe operation

• Defense verdict

• Plaintiff/patient appealed

• 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

• next-door neighbor convicted of sexual abuse of 10

year old boy

• He admitted touching, but claimed it was accidental

• 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

• BC MRE 403 is identical to FRE 403

• MT Commission Comment: “This rule is identical to

Federal and Uniform Rules (1974) Rule 403.”

• So can use federal treatises and case law as

persuasive authority

• Thousands of those cases

Back to McFarland

• On charge of simple (not repeat) DUI, is evidence

that he has a prior conviction of DUI:

• relevant? No, so sustain objection: not admissible

• unduly prejudicial per 403, even if it were

relevant? ???

• violative of 609, no criminal conviction to impeach

witness? No, does not apply, so overrule on that

ground

Bottom line

• In simple DUI charge, evidence of prior conviction

should not come in

• simply because not relevant, barred by 402

“irrelevant evidence is not admissible.” Period.

• bc not relevant, no probative value, and clear

danger of unfair prejudice, per 403

• 609 does not matter on these facts

Now, look again at 609

• First scenario, witness was Officer X

• Now assume State has rested.

• Defendant McFarland takes stand, testifies

• “I was not at all drunk. I had not even had 2 beers, and

certainly took no drugs.”

• X by State: “Isn’t it true that you were convicted…

• OBJECTION!! RULE 609. MOVE FOR MISTRIAL

609 applies bc D testified,

thus also is a “witness”• State is using prior conviction to impeach witness

• To show he isn’t trustworthy bc is a convicted

criminal

• 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 cross-

examination.

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: FuriousThe 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 608Rule 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? Law-

abiding? NO! Sober? NO!!

Evidence questions??

• I haven’t covered but you wish I had?