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Miss. R. Evid. 406

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Rule 406 Habit; Routine Practice

Article IV: Relevance and Its Limits

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Rule Text

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

[Restyled effective July 1, 2016.]

Plain-English Summary (for reference only — not a substitute for the rule text above)

This summary is not the rule. The rule text controls.

If someone regularly does the same thing in the same situation, that pattern can be used as evidence in court. For example, if a business always follows the same steps when handling customer orders, or a person always does the same thing before leaving for work, that habit can be brought up to show they likely did the same thing on the day in question.

This kind of evidence is allowed even if no one saw what happened on that specific occasion and even if nothing else backs it up. The judge doesn't need extra proof or witnesses confirming the habit was followed that particular time. The idea is that when a habit is strong and consistent enough, it's reasonable to believe the person or business acted the same way they always do.

This differs from evidence about someone's general character, which usually cannot be used to prove they acted a certain way on a specific day. Habit evidence is more specific and focused, showing a repeated pattern tied to particular circumstances, which makes it more reliable for proving what probably happened.

Committee Notes

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.” 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.

Habit is considered to be an individual’s usual method or manner of doing things. Routine practice refers to a group or institution’s habit. See McCormick, Evidence, 3rd Ed., 162. Thus, we speak of a person’s habit and the routine practice or custom of an institution. Mississippi has long recognized that under appropriate circumstances habit and custom are relevant evidence. Under Rule 406, evidence of habit or routine practice can be used as circumstantial evidence. A party may introduce evidence of a person’s habit to imply that he probably acted in this instance in conformity with his habit.

In Mississippi under the common law such evidence would be inadmissible if there were no eyewitnesses. Rule 406 specifically provides to the contrary. See FRE 406, Advisory Committee Note.

The evidence that a business acted in conformity with its routine practice is relevant. Of course, rebuttal is always permitted.

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling.]

← Previous Rule 405: Methods of Proving Character Next → Rule 407: Subsequent Remedial Measures