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42. Is this testimony regarding the man's conduct during the three prior arrests admissible?
A man has sued a police officer, alleging that the officer violated the man's civil rights by using excessive force while arresting him. At trial, the officer admits having hit the man in the head with the butt of his gun, but contends that the force was necessary, because the man was resisting arrest. In support of his contention, the officer seeks to introduce evidence that the man had resisted arrest on three prior occasions during the last 10 years.
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Evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. Fed. R. Evid. 404(a). Circumstantial use of prior behavior patterns for the purpose of drawing the inference that, at the time and place in question, the actor probably acted in accord with her prior behavior pattern is thus not permitted.
Habit describes one's regular response to a specific set of circumstances (e.g., «she always takes the staircase two steps at a time»). In contrast, character describes one's disposition in respect to general traits (e.g., «she's always in a hurry»). Since habits are more specific and particularized, evidence of habit is relevant and can be introduced in circumstances when it is not permissible to introduce evidence of character. Thus, under FRE 406, evidence of a person's habit may be admitted to prove that on a particular occasion, the person acted in accordance with that habit.
A is correct. The testimony regarding the man's conduct during the three prior arrests is inadmissible because it is being offered as improper character evidence. Under FRE 404(a), in civil cases, a party may not introduce evidence of a prior pattern of conduct to prove that a person probably acted in accord with that behavior during the event in question. Here, it is a civil case and the three prior arrests are being used to establish that, because the man resisted arrest in the past, he was likely to have resisted in this case. No other permissible uses of the evidence apply, and therefore, the testimony is inadmissible.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the testimony is inadmissible, it is not because the prior arrests did not amount to convictions; prior bad acts may be admissible under certain circumstances, even if they did result in convictions. However, none of those circumstances apply here, where the prior conduct is being offered as impermissible character evidence in a civil case.
C is incorrect. Simply because a piece of evidence is relevant, meaning it has any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence, does not render it automatically admissible. It is still subject to the other rules of evidence, including those governing character.
D is incorrect. The incidents in question are not sufficient to constitute a habit, which requires evidence of a regular response to a specific set of circumstances. In this case, the events happened three times over 10 years. That is not regular enough conduct to satisfy admission has a habit.