0704

I would argue:

The defendant has not yet placed the question of mistake or accident in issue. He may have told the police prior three years ago that the truck fire was a "mistake or accident," but nothing suggests he will make this argument at trial, or argue lack of intent, or even that he will testify at all. Until the defense specifically claims unintentional accident, the evidence goes only to general intent or mens rea, which use is barred by the character evidence rule.

Do you remember the difference between general and specific intent from criminal law? If not, you are not alone -- it’s common. But, if the state could prove prior bad acts to show mens rea, they could do so in every case, and the character evidence rule would be nullified. Therefore, prior crimes to negate accident and show intent are admissible only if the defendant denies intent and makes a specif claim of accident, which usually cannot happen until the defendant testifies.


Questions? Email tanford@indiana.edu and refer to 0704

    
B. HABIT & CUSTOM

Look at Rule 406. It says that habit "may be admitted" to prove that on a particular occasion, a person acted in accordance with a general pattern of behavior. This is the exact opposite of the character evidence rule, which says a past pattern of behavior may not be admitted to show conduct on a particular occasion.  So what’s the difference?  Statistics! If a student is late to class more often than everyone else -- 40%, 50%, or even 60% of the time, it’s only a tendency, and excluded by the character evidence rule. But if the student’s tardiness approaches 90-100% of the time -- if she comes in late at almost every class -- it is a habit, and admissible under Rule 406.

Since Rule 406 is a rule of admissibility, it does not serve well as grounds for an objection.  Objections are usually made on character evidence or relevancy grounds:

    OBJECTION: I object to testimony about whether the defendant regularly uses drugs. This is inadmissible character evidence under Rule 404.

    OBJECTION: I object to testimony about whether the defendant used drugs on other occasions as irrelevant and prejudicial under Rule 403.

Rule 406 is a response to a character evidence or relevance objection

    RESPONSE: The evidence shows that the defendant's drug use amounts to a habit, which Rule 406 says is admissible to prove that he used drugs on this occasion also.

Problem 7C, part one.  If the defense objects to evidence of Jane’s prior cell phone use as inadmissible character evidence; i.e., that testimony is about a pattern of behavior, how should the plaintiff respond? When you think you know the answer, click here to continue.