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Lee v. Elbaum3/10/1993
gree with the trial court that the proferred testimony constituted character evidence of prior bad acts, which was inadmissible under HRE 404(b), and not habit evidence, which was admissible under HRE 406.
Under HRE 404(a), evidence of a person's character or a trait of his character is generally inadmissible to prove that the person acted in conformity therewith on a particular occasion. Moreover, HRE 404(b) specifically provides that:
evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.
The Commentary to HRE 404, which, pursuant to HRE 102.1, may be used "as an aid in understanding the rules," explains the reasoning for prohibiting character evidence:
Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good [person] and to punish the bad [person] because of their respective characters despite what the evidence in the case actually showed happened. [Citations omitted.]
In Feliciano v. City and County of Honolulu, 62 Haw. 88, 611 P.2d 989 (1980), the Hawaii Supreme Court discussed the inadmissibility of character evidence in civil cases, noting that:
it is well-settled that evidence of the good or bad character of either party to a civil action is generally inadmissible. Such evidence is regarded as too remote to be of substantial value, as tending to confuse the issues and unduly protract the trial and, most important, as offering a temptation to the jury to reward a good life or punish a bad one instead of deciding the issues before them.
62 Haw. at 91, 611 P.2d at 991 (citations omitted).
The admissibility of habit evidence, on the other hand, is governed by HRE 406, which provides in relevant part that:
evidence of the habit of a person . . . whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit. . . .
The Commentary to HRE 406 addresses the distinction between character and habit evidence as follows:
Character and habit are closely akin. Character is a generalized description of one's Disposition, or of one's Disposition in respect to a general trait. . . . 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 of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. . . . When disagreement has appeared, its focus has been upon the question what constitutes habit, and the reason for this is readily apparent. The extent to which instances must be multiplied and consisting of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion. . . . While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated. [Emphasis added.]
In determining whether a person's conduct is sufficiently routine to constitute a habit, several decisions from other ju
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