Disguising Character as Habit for Improper Vouching
posted on October 4th, 2009 in Experts by clintSuppose you have a medical malpractice case against a psychiatric hospital whose attending psychiatrist ignored your client’s request for a second opinion. During discovery, the social worker who assisted the psychiatrist testifies that the psychiatrist would never ignore a request for a second opinion because she is a “caring and compassionate” doctor who is “always attentive” to her patients. The defendant hospital intends to offer this testimony to rebut your claim that the second opinion was ignored. This is probative and potentially damaging testimony. You need to exclude it out, but what are your options? I suggest that you file a motion in limine because it is inadmissible character evidence to prove action in conformity therewith. It is appropriate for the social worker to describe how the attending psychiatrist interacted with your client. However, whether the doctor was “always responsive” … “caring and compassionate” to other patients irrelevant. This evidence is akin to the defendant in an auto wreck case describing herself as “a good driver” to prove action in conformity therewith. It is no different for a social worker to opine that the psychiatrist is a “good doctor” to prove action in conformity therewith. What really matters is whether the psychiatrist was always responsive … caring and compassionate to your client.
Evidence of the defendant’s conduct involving a person other than the plaintiff is usually inadmissible. This general rule does have an exception, which involves habit evidence under Rule 406. The rule provides pertinent part:
Evidence of the habit of a person … whether corroborated or not and regardless of the presence of eye-witnesses is relevant to prove that the conduct of the person … on a particular occasion was in conformity with the habit or routine practice. TENN. R. EVID. 406(a).
Habit evidence is “a regular response to a repeated specific situation” according to the advisory comments to Rule 406(a). The substantial danger you face is the social worker vouching for the psychiatrist by misusing the habit rule. Admittedly, the distinction between character and habit evidence is often blurred. The difference is fundamental. See State v. Angel, 2004 WL 367715 (Tenn.Crim.App.2004). Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait. Id. Character represents a trait such as honesty, temperance, or peacefulness. Character evidence is usually inadmissible in absence of an exception to prove action in conformity therewith, TENN. R. EVID. 404; whereas, habit evidence is usually admissible.
Courts “recognize the danger of such evidence [regarding custom or habit] and do not look upon it with favor.” Middle Tennessee Electric Membership Corp. v. Barrett, 410 S.W.2d 914, 918 (Tenn.Ct.App.1966) (quoting 31A C.J.S. Evidence § 180, p. 458). To be admissible, the relevancy and probative value of habit evidence “must clearly appear.” Id. The key element of habit evidence is “regularity.” The habit or practice must have been repeated sufficiently and frequently to have become routine. An act done a few times should not be admitted as habit evidence. Greater regularity is required for habit evidence. Many courts use the phrase “semi-automatic” to describe the type of conduct that constitutes a habit. Bridges v. CSX Transp., Inc., 845 S.W.2d 760 (Tenn.Ct.App.1992) (quoting Cohen, Tennessee Law of Evidence, § 406.5 at 158 (2d 1990). For example, in C.F.W. Construction Company, Inc. v. Travelers Insurance Co., 363 F.2d 557, 560 (6th Cir.1966), the Sixth Circuit stated: “Habit or custom will not have probative value unless it is of sufficient regularity to make it probable that it would be carried out in every instance or in most instances.” This is regularity required for a habit. A “routine practice” under Rule 406(b) does not apply to the psychiatrist because only organizations can prove a routine practice. See Bridges, supra.
In summary, evidence that proves a general disposition toward patients is character evidence. It is a trait, not a habit. Show the court in limine how Rule 404 differs from Rule 406(a). This is the way you exclude improper vouching for character that is disguised as a habit.