0606

Maybe. Viewed literally, speaking to the defendant "every" morning is more than a tendency or propensity, it is a habit. It is important to be able to distinguish habit from character, because character is usually not admissible under Rule 404 , but testimony about habits usually is admissible under Rule 406 . If a person tends to behave in a certain way most of the time, it is a character trait. If a person always behaves in a certain way, it is a habit.

However, I think a contrary argument can be made that this phrase "every morning" in this context does not literally mean every morning, but means most mornings, which is character. They aren't roommates, so it's unlikely they even see each other every morning.

Questions? E-mail tanford@indiana.edu and refer to 0606

The trial continues:
Q: What kinds of things do you speak to him about?
A: I don't know. It could be most anything.

Q: Well, did you tell him that you wanted a sexual encounter with his grandmother? [audience laughter]
Prosecutor: Objection!
Judge: Sustained.
Defense: Why is it that you can remember the afternoon conversation word for bloody word but for the morning you can't even remember the topic?
A: Because I wrote it down.

Q: What!
A: I wrote the afternoon conversation down.

Q: Where?
A: In my journal.

Q: Is that how you remember?
A: Yes.

Q: Do you have that book here?
A: It's right over there.

Defense: Your Honor! I want that book.
Prosecutor: Objection!
Judge: The law is clear, Mr. Collins. Present recollection refreshed. Produce the book. [We will get to this rule later in the course]
Prosecutor: I move for a suppression hearing.
Judge: Oh, shut up! The question's closed. He can use the book to impeach, but, Mr. Weathers, you better damn well stick to the facts in this case. Nothing, I repeat, nothing that doesn't concern the facts of this case is admissible. If you so much as breathe one irrelevant excerpt from that book, I'll throw you in jail until you rot! You got that, mister? Rot!
Defense: Yes, Your Honor.
Judge: You're positive?
Defense: Positive, sir--
Judge: You're absolutely positive?
Defense: Absolutely positive, sir.
Judge: Very well. Proceed.

Q: Now Mr. Wilby, I've read your journal. Tell me, do you enjoy molesting little girls?

What objection should the plaintiff's attorney make? When you have an answer, click here .