Ever since hearing (long ago) that one or more of the 9/11 hijackers had been asked to go through a weapon-detecting device at Boston's Logan Airport a second time after the initial pass-through had triggered an alarm, I had wondered about the claim that the 9/11 hijackings were unforeseeable and unpreventable. I had once lived in the Boston area and on 9/11/2001 (i) I recalled Logan Airport's reputation as a "patronage dump" for superannuated Massachusetts politicians, and (ii) I recalled earlier newspaper reports that some months or a year before 9/11 there had been government tests of the screening process at Logan and that these tests had revealed serious deficiencies in those procedures. Now -- with a trial impending -- we may finally learn more about the screening process at Logan and whether some part of it -- the part run by United Airlines -- was badly run. The lawyer in me, however, cannot resist also asking whether United Airline's prior screening practices at Logan will be admissible at trial.
The upcoming trial in (I gather) the United States District Court for the Southern District of New York concerns the death of "Mark Bavis, a 31-year-old passenger on Flight 175, in the only remaining wrongful-death lawsuit out of nearly 100 filed after the attacks." Benjamin Wesier, Court Filing Details Shortcomings of Airport Screeners on 9/11 NYTimes (September 16, 2011). The NYTimes claims that "documents" filed in this civil action show that "[t]he five terrorists who boarded United Airlines Flight 175 in Boston on the morning of Sept. 11, 2001, passed through a security checkpoint that was staffed by some screeners who could not speak or understand English, did not know who Osama bin Laden or Al Qaeda were, and, in one case, could not identify what Mace was...." Id.
The following passage in the newspaper article is the one that piqued the lawyer's side of this blogger's curiosity:
The Bavis lawyers, in their filing, contended that United had “a long history of failing to substantially comply with the federal aviation security regulations.” They cited a former United security executive retained as an expert by the plaintiffs, who contended that the airline had failed to heed warnings in the years before Sept. 11 about the need for greater staffing and training.
Will evidence of United's prior screening practices be admissible at trial? Or does such evidence fail to pass muster under Federal Rule of Evidence 406, the federal habit and routine practices rule?
The passage quoted above suggests that counsel for plaintiff plan to try to take advantage of one standard avenue for the admissibility of prior conduct that falls short of being a "habit" or a routine business practice: the other conduct is offered to show notice. This avenue is open in cases in which the law applicable to the case allows notice or foreseeability to be an issue at trial.
A more esoteric argument for admissibility would be that before the enactment of the Federal Rules of Evidence and Rule 406, federal law did not bar admission of evidence of non-routine or non-habitual other conduct of "unnatural" persons such as corporations and that, hence, on the question of the admissibility of United's pre-9/11 screening practices and failures, it is quite immaterial whether those failures were or were not "routine." Cf. 1A Wigmore on Evidence Section 98.1 (P. Tillers rev. 1983) (focusing on question of whether evidence of an organization's practices, routine or not, amounts to evidence of "character," which under some circumstances is barred by the "character evidence rule").
The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.