Maine Restyling Note [November 2014]
Maine Rule 406(a) is identical with Federal Rule 406. Maine Rule 406(b) specifically authorizes the use of evidence of specific instances of
33 “. . . waft . . . .”
34 Update: In State v. Shulikov, 1998 ME 111, ¶¶ 16-17, 712 A.2d 504, the Law Court held that there was no manifest injustice when a prosecutor cross-examined two witnesses regarding specific instances of the defendant’s conduct, without the court having first determined outside of the jury’s presence whether there was a basis for the questions, because the State later demonstrated on the record it had a factual basis for asking the questions, the defendant acquiesced in the questioning and did not ask the State to demonstrate its foundation for the questions, and no further reference to the specific instance was made at trial.
conduct to prove habit or routine practice. The language of Maine Rule 406(b) has been carried over into the restyled Rule.
Federal Advisory Committee Note
The language of Rule 406 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Advisers’ Note to former M.R. Evid. 406
(February 2, 1976)
Subdivision (a) recognizes the relevancy of a person’s habit or the routine practice of an organization in proving that conduct on a particular occasion was in conformity therewith. Rule 404 states the general rule that evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. Why should habit be treated differently? The rationale is that habit describes one’s regular response to a repeated specific situation so that doing the habitual act becomes semi-automatic. It is the notion of the invariable regularity that gives habit evidence its probative force. Evidence that one is a “careful man” or a “careful driver” is inadmissible as lacking the specificity of an act becoming semi-automatic; it goes to character rather than habit. Thus intemperate “habits” cannot be shown to prove drunkenness at the time of an accident. Evidence of other assaults is inadmissible to prove the instant one in a civil action for assault.
The cases have more readily admitted the routine practice of an organization than that of an individual. See, e.g., Commonwealth v. Torrealba, 316 Mass. 24, 54 N.E.2d 939 (1944) (custom of store to give sales slips with each purchase). But in Maine a notary has been permitted to state his usual course of proceedings and his customary habits of business on the issue of notice of dishonor to the indorsee of a note. Union Bank v. Stone, 50 Me. 595
(1862) .
It is not clear to what extent this rule changes Maine law. There have been references in the cases to the general rule that prior habits are not admissible to prove the doing of a certain act on a specific occasion. See State v. Brown, 142 Me. 106, 48 A.2d 29, 33 (1966); Duguay v. Pomerleau, 299 A.2d 914 (Me. 1967). In neither of these cases, however, was the reference necessary to the result.
Subdivision (b) allows proof of habit or routine practice by testimony of a sufficient number of specific instances of conduct to add up to a habit or routine. The judge has considerable discretion on this point and may disallow proof of specific instances under the overriding provisions of Rule 403. Subdivision (b) is omitted from the Federal Rule. With it left out, the result would be to go back to Rule 402 and make admissible any relevant evidence as to habit. The inclusion of (b) has a desirable limiting effect.
