Evidence-Wellborn SU2006 Outline

It is the nonvolitional character of habit evidence

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Unformatted text preview: were prescribed pills represented to be antihistamines. All of the patients later learned that the pills prescribed were in fact steroids. Testimony of five of D's former patients was admitted in the second trial, indicating that D had prescribed steroids to other allergy patients while representing the drugs to be antihistamines or decongestants. District court admitted the evidence under FRE 406 (acting in conformity with habit). D appeals. Issue: Was the evidence admissible under Rule 406? Was this habit evidence or character evidence? Holding: District court abused its discretion in allowing the former patient evidence under Rule 406. o "In this context, habit refers to the type of nonvolitional activity that occurs with invariable regularity. IT is the nonvolitional character of habit evidence that makes it probative." o Habits have a reflexive, almost instinctive quality. o Dr. Seltzer's actions might constitute habit only if he reacted the same way each time he was presented...
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This note was uploaded on 08/28/2008 for the course N 483 taught by Professor Wellborn during the Summer '08 term at University of Texas at Austin.

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