Should Evidence of Sobriety Qualify as Habit Evidence?

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

One of the classic cases involving Rule 406 is Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir. 1985), in which the Eleventh Circuit found that the plaintiff’s habit of drinking on the job constituted habit evidence. In reaching this ruling, the court cited McCormick on Evidence regarding the distinction between inadmissible character evidence and admissible character evidence (under Rule 406):

Character and habit are close akin. Character is a generalized description of one’s disposition, or one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation. If we speak of character for care, we think of the person’s tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street. A habit, on the other hand, is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic (emphasis added).

I get honesty and peacefulness, but I’m not sure I agree with temperance.

As noted, habit consists of a “person’s regular practice of meeting a particular kind of situation with a specific type of conduct.” You can’t really say that with honesty. Assume a defendant is charged with fraud in connection with the sale of a car. Unless that person is a car salesperson, there are likely few occasions in which they previously sold a car. Thus, testimony about them being honest would really be testimony about their general honesty as opposed to testimony about whether they are honest when they sell cars. Inadmissible character evidence.

Next, we have peacefulness. Assume a defendant is charged with battery in connection with attacking a neighbor over loud music being played late into the night. Unless the defendant has had bad luck with loud neighbors over the years, there are likely few occasions in which they previously had to deal with such a disturbance. Thus, testimony about them being peaceful would really be testimony about their general peacefulness as opposed to testimony about how they deal with noisy neighbors.

But finally, we have temperance. Assume a defendant is charged with vehicular manslaughter, with a key question being whether the defendant was drunk at the time of a fatal car accident. Further, assume that this defendant used to be an alcoholic but has allegedly stayed sober for three years. Could evidence be presented of the defendant’s sobriety, attendance at Alcoholics Anonymous meetings, etc.

The mention of “temperance” in McCormick on Evidence as being inadmissible character evidence would seem to say “no.” But isn’t temperance different from honesty and peacefulness? Couldn’t the defendant describe the particular kind of situation connected to temperance as “drinking?” In other words, couldn’t the defendant in our involuntary manslaughter case testify, “I drink something about eight times a day. Over the past three years, that drink has never been alcohol.”

Now, I suppose the response would be that this is too general, that drinking at dinner is different from drinking during a race, which is different from drinking at a party. And, in that sense, testimony about sobriety would be inadmissible character evidence. But isn’t a person’s claim that they drink something non-alcoholic eight times a day, every day, actually habit evidence?

-CM