I'm really confused by one of my Florida Evidence questions. Hopefully, one of y'all can explain this to me:
- [+] Spoiler
- A mailman sued the defendant for $5,000 in compensatory damages, which included pain and suffering and medical expenses, as a result of a dog bite. The only issues in the case were the identity of the dog and the amount of damages. The defendant offered to testify that he always latches the gate to his dog's kennel whenever he leaves his home.
Will the trial judge find this testimony objectionable?
A. Yes, because propensity may not be proved by specific instances.
B. Yes, because it calls for a self-serving declaration.
C. Yes, because it calls for the conclusion of the witness.
D. No, because it is evidence of habit.
Answer choice D is correct. Evidence of a person's habit is admissible to prove conduct in conformity with the habit on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances. Answer choice A is incorrect because this testimony is not being provided as character evidence. Character evidence attempts to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. This type of evidence is inadmissible. Answer choice B is incorrect because evidence of a habit is not considered a self-serving declaration. Answer choice C is incorrect because the witness is not reaching a conclusion.
The outline says the following about the Florida rule:
- [+] Spoiler
- Florida Point of Law: Habit Evidence
The Florida rule does not mention a person’s habit, but only “the routine practice of an organization,” which, like the federal rule, may be admitted without corroboration and without an eyewitness’s presence. See Fla. Stat. § 90.406. Florida courts, however, have admitted evidence of a person’s habit under the common-law exception. Evidence of a person’s habit is admissible to corroborate other evidence that shows the habit occurred at a relevant time, but, unlike the federal rule, it is not admissible as direct evidence without corroboration. Peter Nicolas, Florida and Federal Evidence Rules With Commentary (2009–10) 77 (citing sources).
I totally understand why this is habit under the Federal Rules. What I don't understand is why it is acceptable habit evidence under the Florida rule. Can someone explain what evidence it is corroborating? I must be misunderstanding that.
Ahhh, state evidence rules and how they screw with you. First premise the book is right, habit is only good for a routine practice of an organization in Florida. Habit of persons is subject to a trial judge's discretion of probative value and corroborating other evidence.
Here the identity of el angry pooch is at issue and if a mailman is bit by a dog, what are you naturally going to say? It's not my dog that bit you, there are tons of other dogs out there, how do you know my dog even got out? I always latch the gate to the kennel, never let my dog out.
From my rudimentary argument above, and this is a stretch, I'm guessing the habit of this person latching the kennel is to corroborate the defense (you're supposed to supply, much like imaginary statutes and negligence per se--yeah they don't give statutes in florida) and probative to the issue of which dog bit the mailman.