Rule 406 Habit—Routine Practice

This rule is identical to Federal Rule 406 which confirms the trend toward admissibility of habit and routine practice as persuasive proof of conduct on a particular occasion. The difficulty arises in distinguishing habit evidence from character evidence which is viewed as a less reliable and potentially more dangerous means of establishing the likelihood of specific conduct on a particular occasion. In part the difficulty stems from the inability to precisely define “habit.” It is clear that the more regular the performance of an act, the more likely it is to be regarded a habit. An oft-quoted paragraph, McCormick (2d ed.) § 195, at 462, describes habit in terms effectively contrasting it with character. Character and habit are close akin. Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation. If we speak of character for care, we think of the person’s tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. 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. The doing of the habitual acts may become semiautomatic. In determining whether evidence shall be admissible, the court may look to Rule 104 and make a preliminary determination that it is a habit or a routine business practice that is being described. When an activity fails to achieve the status of a habit, evidence as to its practice must be excluded. Certain practices are not readily defined as “habits.” For example, in Levin v. United States, 338 F.2d 265 (D.C. Cir. 1964), testimony as to the religious “habits” of the accused, offered as tending to prove that he was at home observing the Sabbath rather than out obtaining money through larceny by trick, was held properly excluded: It seems apparent to us that an individual’s religious practices would not be the type of activities which would lend themselves to the characterization of “invariable regularity.” [1 Wigmore 520.] Certainly the very volitional basis of the activity raises serious questions as to its invariable nature, and hence its probative value. Id. at 272. Evidence of a routine practice of an organization may be as relevant as a person’s habit in proving that an act was performed in a certain way or that an event took place. The circumstantial nature of the proof requires that the routine specifically describe a particular organization’s manner of daily operation or the probative value is greatly diminished. Since an organization must often rely upon consistent perfor- mance in order to make a profit or otherwise succeed, evidence of routine practices may be more probative in many cases than habit evidence. And the nature of this evidence is such that it is not likely to be very prejudicial. This rule does not refer to the practice of a given trade or industry, except insofar as it parallels a specific company’s routines. This rule specifically states that corroboration of a habit is unnecessary as a condition precedent to its admissibility. New Jersey adopted a similar policy in its Rule 49, rejecting its previous requirement that a necessary condition for the introduction of habit evidence was the introduction of other evidence that the habit was followed in the particular occasion in question. The New Jersey Commission stated that habit or EV custom alone is evidential as to conduct on a particular occasion and that corroboration goes only to weight. To require corroborative evidence that on that date the behavior did conform to the proven habit would be to defeat the purpose of the rule and put an unnecessary hurdle in the path of the attorney with circumstantial proofs only. Report of the Committee on the Revision of the Law of Evidence to the Supreme Court of New Jersey 101 (1955). This rule specifically rejects the common law “eyewitness rule.” Followed in a great number of jurisdictions, the eyewitness rule only permits evidence of a habit to be admissible where no eyewitnesses are available to testify about the events in question. There are reasons to be wary of habit evidence: individuals may consciously take advantage of a known habit as an alibi, well-established habits do not always govern behavior, and habits sometimes may be easy to fabricate but difficult to refute. These problems are not insoluble. By requiring repetitive acts, this rule should make fabrication more difficult and should enable the cross-examiner to fully explore the specifics of the habit claim. Moreover, habit evidence is not unique in its imperfections. The eyewitness rule does not take into account the fact that evidence of an established habit may be more reliable than the testimony of an eyewitness. The Law Revision Commission’s Comment to California’s Rule § 1105, 29b West Ann. Cal. Evid. Code 19 (1966), which also rejects the eyewitness rule states: The “no eyewitness” limitation is undesirable. Eyewitnesses frequently are mistaken, some are dishonest. The trier of fact should be entitled to weigh the habit evidence against the eyewitness testimony as well as all of the evidence in the case. This provision, like its federal counterpart, is silent as to the means of proof that a habit or routine practice existed. The 1969 and 1971 drafts of the proposed federal rules contained a provision which specified that habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine. Congress deleted the section in favor of allowing courts to develop and consider various methods of proof. This rule anticipates that any relevant manner of proof may be employed, subject to Rule 403’s requirements that the proof be more probative than prejudicial, confusing, or misleading and that the probative value justify the time needed to hear the evidence.