Charmley v. Lewis ( 1986 )

LINDE, J.,

concurring.

It is unfortunate that the drafters of OEC 406 compromised their differing views and apprehensions about habit evidence by inserting the adjective “distinctive” without stating more clearly from what a person’s habitual conduct must be distinct in order to be admitted. I agree with the Chief Justice that the Court’s opinion does not successfully give meaning to that requirement.

It is also unfortunate that everyone debating the addition of “distinctive” to the rule and everyone debating the present case have had their minds so firmly fixed on the uses of habit evidence in automobile tort actions that there are few clues as to how the generalizations formulated in describing a “distinctive” habit in crossing a street would fit other kinds of habitual conduct in very different contexts. But, of course, the rule does not apply only to traffic accidents. Some examples of quite different cases were inserted in the Legislative Commentary quoted by the Court, and many more can be found in other state and federal courts. I write primarily to note that the present opinion should be understood to apply specifically to the kind of conduct involved in this case and that the meaning of “distinctive” remains open for further argument in other settings.

Perhaps “distinctive” was chosen to express the idea of habitual conduct different from other people’s behavior, but there is no obvious reason for this. If evidence of a person’s invariable practice under the relevant circumstances tends to support an inference that the person more likely than not behaved in the same way on a particular occasion, why does it matter whether other people might behave differently? And how is the common behavior of other people to be shown before a trial judge rules on the admissibility of evidence, if that fact is disputed?

Why does it matter, moreover, how frequently the occasion for “habitual” conduct arises, as the Court quotes Professor Kirkpatrick, as long as one repeatedly responds in the same way whenever it arises? Is evidence admissible that a person habitually deposited a weekly paycheck on payday, but not a monthly paycheck or a quarterly dividend check? That a family habitually ate fish on Friday nights but not that they invariably ate turkey on Thanksgiving Day? If the fact to be inferred is what a man ate for Thanksgiving dinner, why not look for “distinctiveness” from his ordinary meals rather than from the meals of other people? How frequently any class of events occurs depends on how widely or narrowly the class is defined. If someone only signed one will in his life, may evidence that he read other legal documents carefully be admitted or not? That he read business letters carefully?

The facts in the present case do not call for defining the frequency or distinctiveness of a “regular practice” for all kinds of issues and types of behavior that may raise questions under OEC 406. The general rule is that relevant evidence, evidence “having any tendency to make the existence of any fact” of consequence more probable or less probable, OEC 401, is admissible unless there is some legal reason to exclude it. I am not persuaded that the drafters of OEC 406 meant to direct the courts to exclude the specific challenged evidence in this case. I therefore concur in the decision.