United States District Court, District of Minnesota
Julie E. Allyn and Kevin S. Ueland, United States Attorney’s Office, for Plaintiff.
Shannon R. Elkins, Office of the Federal Defender, and John C. Conard, Law Offices of John C. Conard, for Defendant.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Government's Motion in Limine No. 5: To Preclude "Reverse" Rule 404(b) Evidence [Doc. No. 71]. In the Court's March 4, 2015, Order [Doc. No. 98], the Court found that Defendant could testify about Ms. Clark repeatedly falling asleep in the past with a lit cigarette if Mr. Jones could properly lay the foundation that Ms. Clark had a "habit" of falling asleep with a lit cigarette. Accordingly, the Court deferred ruling on the Government's Motion and, on March 5, 2015, permitted an offer of proof by Defendant to determine whether Mr. Jones could properly lay the foundation to establish this habit. For the reasons set forth below, the Court finds that Defendant sufficiently established that Ms. Clark had a habit of falling asleep with a lit cigarette when she was inebriated. According, the Government's Motion is denied.
Rule 406 of the Federal Rules of Evidence provides for the admissibility of "habit" evidence, as follows:
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
See Fed. R. Evid. 406 (emphasis added). The Advisory Committee noted overall agreement "that habit evidence is highly persuasive as proof of conduct on a particular occasion." See Fed. R. Evid. 406 advisory committee's note.
As the Advisory Committee explained at the time Rule 406 was proposed, "[h]abit . . . describes one's regular response to a repeated specific situation." See id. Courts will deem putative habit evidence inadmissible if the conduct is "not sufficiently regular or uniform, or if the circumstances are not sufficiently similar to outweigh the dangers of prejudice, distraction and time-consumption." 1 Kenneth S. Broun, ed., McCormick On Evid. § 195 (7th ed. 2013).
Although the text of Rule 406 appears to relate "habit" to individuals and "routine practice" to organizations, the United States Court of Appeals for the Eighth Circuit excluded evidence of an individual's conduct pursuant to Rule 406 when the proponent of the evidence failed to elicit evidence concerning that individual's "routine practice." See United States v. Mulder, 147 F.3d 703, 707–08 (8th Cir. 1998). Thus, the Eighth Circuit, at least, appears to treat "habit" and "routine practice" as synonymous.
The Eighth Circuit has also explained that "[t]he foundation for Rule 406 evidence can be established by lay opinion, " so long as the lay opinion complies with Rule 701, which requires only that the witness's testimony "be rationally based on perception and helpful to the determination of a fact at issue." Maynard v. Sayles, 817 F.2d 50, 52 (8th Cir. 1987), aff'd, 831 F.2d 173 (8th Cir. 1987).
Although there is no precise formula for determining when conduct is so consistent as to become a "habit, " "‘adequacy of sampling and uniformity of response' are controlling considerations." Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1524 (11th Cir. 1985) (quoting Reyes v. Missouri P. R. Co., 589 F.2d 791, 795 (5th Cir. 1979)); see also Fed. R. Evid. 406 advisory committee's note.
Here, Defendant testified that over the past fifteen years or so Ms. Clark frequently and regularly fell asleep with a lit cigarette when she was inebriated. Specifically, he testified that Ms. Clark smoked on a daily basis, and she "pretty much constantly had a cigarette." (Hr'g Tr. 4:15 [Doc. No. 106].) Mr. Jones stated that she regularly smoked before taking a nap and before going to sleep in the evening. He testified that she smoked "pretty much daily" while lying in bed or on the sofa. (See id. at 4:11–13.) He also testified that "two, [or] three times a week" Ms. Clark would fall asleep while smoking. (See id. at 5:12–15.) Later in his testimony, Defendant stated that a "majority of the time, " Ms. Clark passed out with a lit cigarette. (See id. at 17:7–9.) In fact, this behavior appears to have increased in the last days of Ms. Clark's life. For instance, Mr. Jones ...