0705

I would say:

"This is evidence of a habit of using her cell phone every time she left on a job, and is admissible under Rule 406 to show that Arden was looking at her cell phone the day of the accident."

I would not respond directly to the Rule 404 objection, because if you can get it under 406, that rule says it is admissible, not just in the judge’s discretion.

Questions? Email tanford@indiana.edu and refer to 0705.

If the defense objected on the basis of Rule 403, that the evidence of other instances of behavior is of little probative value, needlessly cumulative and substantially prejudicial because cell phone use while driving is a touchy subject,  how should the plaintiff respond? When you think you know the answer, click here to continue.