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Habit and Custom cases

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Team Presentations - Law 16 - Spring 2015


Habit and Custom Cases

Review the 3 cases below and for each answer the following questions:1. State the standard for proving habit or custom in each case. Compare the standard "habit must reflect a regular practice of meeting a particular kind of situation with certain type of conduct, or a reflex behavior in a specific set of circumstances."



2. What were the individual habits introduced in each case?

3. What is FRE 406 say about this proof, and how do you distinguish (habit) from (character) in each case.

Here are the 3 cases to analyze:

The following two cases are the appellate cases upon which the hypothetical situations on page 59 of the textbook are based. The third case is a recent case summarizing the current law on habit evidence.

1. U.S. v. Lutrell 612 F.2d 396 (8th Cir. 1980)

Defendant was tried and convicted of failure to file income tax returns for the years 1974 and 1975 in violation of 26 U.S.C. section 7203.

At trial the government introduced proof that defendant filed a tax return for 1970, but not 1971 and 1972. A return for 1972 was filed after the investigation started. The government also introduced proof that defendant did not file timely income tax returns for the years 1976, 1977, and 1978. The single claim raised by defendant in this direct criminal appeal is that the district court erred in admitting evidence of defendant’s failure to timely file tax returns in three years subsequent to the years involved in the charges.

As admitted by defendant, evidence of prior failure to file tax returns has been admitted in several cases. [citations] …Rule 404(b) of the Federal Rules of Evidence provides in part that either evidence of other Acts may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, and Rule 406 of the Federal Rules of Evidence provides evidence of a person’s habits may be admitted. Clearly there was no abuse of discretion in the district court’s admission of evidence regarding defendant’s income tax filing, either for the years preceding or following the years on which his conviction was based. And the conviction is affirmed.

Although the hypothetical in the textbook on page 59 about D. Deadbeat only speaks of the non-filing years in terms of habit, the actual case clearly bolsters the “habit” analysis with FRE 404(b), which allows evidence of other acts to prove intent.

2. Perrin v. Anderson et al 784 F.2d 1040 (10th Cir. 1986)

* * *

This is a 42 U.S.C. section 1983 civil rights action for compensatory and punitive damages arising from the death of Terry Kim Perrin. Plaintiff, adminstratix of Perrin’s estate and guardian of his son, alleged that defendants, Donnie Anderson and Roland Von Schriltz, members of the Oklahoma Highway Patrol, deprived Perrin of his civil rights when they shot and killed him while attempting to obtain information concerning a traffic accident in which he had been involved. The jury found in favor of defendants.


In this appeal plaintiff contends that the district court erred in admitting…testimony by four police officers recounting previous violent encounters they had had with Perrin…


A simple highway accident set off the bizarre chain of events that culminated in Perrin’s death. The accident began when Perrin drove his car into the back of another car on an Oklahoma highway. After determining that the occupants of the car he had hit were uninjured, Perrin walked to his home, which was close to the highway. Trooper Von Schriltz went to Perrin’s home to obtain information concerning the accident. He was joined there by Trooper Anderson. They knocked on and off for ten to twenty minutes before persuading Perrin to open the door. Once Perrin opened the door, the defendant officers noted Perrin’s erratic behavior. The troopers testified that his moods would change quickly and that he was yelling that the accident was not his fault. Von Schriltz testified that he sensed a possibly dangerous situation and slowly moved his hand to his gun in order to secure its hammer with a leather thong. This action apparently provoked Perrin who then slammed the door. The door bounced open and Perrin then attacked Anderson.


A fierce battle ensued between Perrin and the two officers, who unsuccessfully applied several chokeholds to Perrin in an attempt to subdue him. Eventually Anderson, who testified that he feared he was about to lose consciousness as a result of having been kicked repeatedly in the face and chest by Perrin, took out his gun, and, without issuing a warning, shot and killed Perrin. Anderson stated that he was convinced Perrin would have killed both officers had he not fired. I

At trial the court permitted four police officers to testify that they had been involved previously in violent encounters with Perrin. These officers testified to Perrin’s apparent hatred or fear of uniformed officers and his consistently violent response to any contact with them. For example, defendants presented evidence that on earlier occasions Perrin was completely uncontrollable and violent in the presence of uniformed officers. On one occasion he rammed his head into the bars and walls of his cell, requiring administration of a tranquilizer.


Another time while barefoot, Perrin kicked loose a porcelain toilet bowl that was bolted to the door. One officer testified that he encountered Perrin while responding to a public drunk call. Perrin attacked him, and during the following struggle Perrin tried to reach for the officer’s weapon. The office and his back-up had to carry Perrin handcuffed, kicking and screaming, to the squad car, where Perrin then kicked the windshield out of the car. Another officer testified that Perrin attacked him after Perrin was stopped at a vehicle checkpoint. During the ensuing struggle, three policemen were needed to subdue Perrin, including one 6’2” officer weighing 250 pounds and one 6’6” officer weighing 350 pounds. Defendants introduced this evidence to prove that Perrin was the first aggressor in the fight—a key element in defendants’ self-defense claim. The court admitted the evidence over objection, under Federal Rules of Evidence provisions treating both character and habit evidence. Plaintiff contends this was error. * * * Rule 406 provides: “Evidence of the habit of a person…, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person…on a particular occasion was in conformity with the habit…”


The limitations on the methods of proving character set out in Rule 405 do not apply to proof of habit. Testimony concerning prior specific incidents is not allowed.


The court has defined “habit” as “a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.” [citations] … That Perrin might be proved to have a “habit” of reacting violently to uninformed police officers seems rather extraordinary. We believe, however, that defendants did in fact demonstrate that Perrin repeatedly reacted with extreme aggression when dealing with uniformed police officers.


Four police officers testified to at least five separate violent incidents, and plaintiff offered no evidence of any peaceful encounter between Perrin and the police. Five incidents ordinarily would be insufficient to establish the existence of a habit. [citations] But defendants here had made an offer of proof of testimony from eight police officers concerning numerous different incidents. To prevent undue prejudice to plaintiff, the district court permitted only four of these witnesses to testify, and it explicitly stated that it thought the testimony of the four officers had been sufficient to establish a habit. …We hold that the district court properly admitted this evidence pursuant to Rule 406. There was adequate testimony to establish that Perrin invariably reacted with extreme violence to any contact with a uniformed police officer. * * *


The following case summarizing the current perspective in the courts on the issue of habit evidence.

3. U.S. v. Newman 982 F.2d 665 (1st Cir.1992)


[Appellant Michael Newman was convicted of violating the civil rights of a pretrial detainee named Peterson, in violation of 18 U.S.C. section 242.


Peterson was arrested in Providence, Rhode Island, for drinking in public. A record check revealed outstanding warrants against Peterson. Appellant Michael J. Newman was the officer in charge of the cell block where Peterson was detained.


After being placed in a cell, Peterson began to yell and scream, then picked up the porcelain toilet in the cell and hurled it through the bars. Appellant Newman and another officer removed Peterson to a nearby cell. Peterson put up mild resistance and his wrists were handcuffed to the cell bars. Shortly after the officers left, Peterson resumed his yelling and screaming, which prompted appellant Newman to return to the cell. While still handcuffed to the cell bars, Peterson was beaten and kicked in the stomach and head by appellant. Peterson sustained injuries to his face, nose, eyes, and inner ear, and experienced difficulty in breathing. He remained in a local hospital for a week, where he experienced dizziness, severe headaches, and other physical pain. Extensive medical tests proved negative.

Newman was indicted, tried, and convicted for interfering with Peterson’s civil rights under color of law, and sentenced to sixty months in prison or a two-year term of supervised release.


…[Appellant] claims that the court committed error by excluding certain “habit” evidence proffered under Federal Rule of Evidence 406.


…At trial, the defense attempted to introduce Providence Police Sergeant MacDonald’s testimony that he had seen between 75 and 100 prisoners handcuffed to the cell bars, but never to the first bar. MacDonald’s testimony was offered to support Newman’s testimony that he had handcuffed Peterson to the third bar of the cell and not the first bar as Peterson testified. The issue became material in light of the trial testimony of Daniel Greene, a detainee in the same cell block, who claimed to have seen Peterson’s cuffed hands protruding through the bars during the assault. The evidence demonstrated that Greene could have seen Peterson’s hands only if they were cuffed to the first bar. The district court sustained the government’s objection to the proffered testimony.


Under Rule 406, competent evidence of a person’s “habit” may be admissible to prove conduct in conformity with the habit on a particular occasion. The party offering the evidence must establish the habitual nature of the alleged practice. As with other exclusionary rulings, the party challenging an exclusion of habit evidence under Rule 406 bears the heavy burden of demonstrating on appeal that the trial court abused its discretion. [citations omitted]

Habit evidence under Rule 406 may be probative of the regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn… Although there are no “precise standards” for determining whether a behavior pattern has matured into a habit, two factors are considered controlling as a rule: adequacy of sampling and uniformity of response. These factors focus on whether the behavior at issue occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances. The requisite regularity is tested by the ratio of reaction to situations. It is essential, therefore, that the regularity of the conduct alleged to be habitual rest on an analysis of instances numerous enough to [support] an inference of systematic conduct and to establish one’s regular response to a repeated specific situation. [citations and quotation marks omitted.]


Appellant’s proffer failed to demonstrate the admissibility of the MacDonald testimony under Rule 406. Appellant provided no foundation for assessing the adequacy of the sampling to which MacDonald would testify. There was no evidence even approximating the number of times prisoners were handcuffed to cell bars. Absent some evidence of the number of instances in which the handcuffing practice took place, we cannot conclude that the district court abused its discretion. An officer’s observation of 75 to 100 such instances did not require the conclusion that the putative practice was followed with the necessary regularity.


…Other considerations reinforce the conclusion that the district court did not abuse its discretion. First, Sergeant MacDonald testified that there was no “rule or practice that’s followed” about where to handcuff prisoners but that “[t]he officers involved…at the time would decide where to handcuff them and how to do it.” Second, we are aware of no case, and appellant cites none, in which the routine practice of an organization, without more, has been considered probative of the conduct of a particular individual within the organization. * * *







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