0708

First, unlike character evidence, the habit rule draws no distinction between proof of habit by opinion, or by reputation, or by testimony about specific instances, so if you went down that path, you picked an unlikely road.

I think the objection to c) is easiest -- the fact that Jane did something three times is inadequate to establish habit.  If you flip a coin, it can come up heads three times in a row, but that doesn’t mean it always will.

For both a) and b), I might make two arguments. First, being a bad driver is too vague to be a habit. A habit must be a specific behavioral response, such as never using a turn signal or always wearing a seatbelt. Second, just because the witness used the word “always” doesn’t make it a habit. Being a “bad” driver is really just a tendency, and no one can be bad all the time and still be alive.

Questions? Email tanford@indiana.edu and refer to 0708.

This problem raises an interesting issue. How do you object to evidence that looks like habit but is not? You can't object under Rule 406, because that rule says habit evidence is admissible.

Write an objection to the evidence that the Jane is always a bad driver. When you are done, click here to continue.