is not a “habit” within the meaning of Federal Rule of Evidence 406.
I thought I’d pass on this gem, Marks v. Marina, a Third Circuit case from 2007, which I discovered last night in preparing for Evidence class today. For each topic in Evidence, I usually try to give my students a modern example that nicely illustrates the policies behind a rule or presents a timely controverted issue regarding the rule’s application. But I included this one largely for hilarity’s sake. (The facts below I’ve taken from the appellate opinion.)
According to testimony from employees of the Borgata Casino in Atlantic City, the plaintiff here ripped a urinal divider out of a Borgata restroom wall while seriously intoxicated. Forcibly detained by Borgata security, he was later released when his wife agreed to pay for the damage. This case is his suit for injuries allegedly suffered while being escorted from the restroom to the holding cell.
For some reason, the plaintiff wanted his wife to testify at trial that he has a habit of destroying other peoples’ property when drunk. The district court refused to allow such evidence, and the appellate court here affirms on this point:
The Marks’ third objection is that the District Court erred by not allowing [his wife] to testify, pursuant to Fed.R.Evid. 406, that her husband habitually destroys other people’s property when intoxicated. This exclusion, the Marks argue, prevented them from presenting testimony that []Marks could not have had the mental capacity at that time to distinguish right from wrong. As an initial matter, it is not obvious why Marks’ mental capacity (or lack thereof) has any relevance whatsoever to the tort claims he and his wife asserted. Thus, the District Court properly excluded this evidence under Fed.R.Evid. 402. Moreover, the Advisory Committee Notes to Rule 406 explicitly state that “evidence of intemperate ‘habits’ is generally excluded when offered as proof of drunkenness in accident cases….”2 Accordingly, the District Court’s decision to exclude this aspect of Mary Ann Marks’ testimony was consistent with the sound exercise of discretion. Even assuming this excluded evidence was somehow relevant, we cannot fathom, notwithstanding the Marks’ argument to the contrary, that the Marks were prejudiced in any way by being precluded from offering evidence to show that [] Marks habitually destroyed other’s property while intoxicated. For all of these reasons, we find this aspect of the Marks’ appeal unpersuasive.
Footnote 2: Lest the irony of the Marks’ argument be missed, [] Marks adamantly denied at trial that he was intoxicated on the evening in question, yet argues that the District Court erred in not allowing them offer evidence to show that he habitually destroyed other’s property while intoxicated.
Many fun intersecting issues here (relevance, habit, showing prejudice on review). About the central issue — whether this is a “habit” under Rule 406 — I think the court got it clearly right. Habits are supposed to be specific, semiautomatic, and morally neutral. This doesn’t seem to qualify. But the real fun part is trying to figure out why plaintiff’s counsel thought this evidence was good for him. Just some amusement for the Evidence lovers out there…
Posted by Chris Lund on March 6, 2009 at 11:27 AM
Comments
It’s not often I get a good laugh from evidence cases, but this one is priceless. Better send it to Mueller & Kirkpatrick for the 7th edition!
Posted by: Brian | Mar 6, 2009 2:02:05 PM