Intro to the Federal Rules of Evidence - 12

9. Habit/ Routine Practice Evidence (FRE 406)

a. Relevancy
An agreement is general that habit evidence is highly persuasive as proof of conduct on a particular occasion. (ACN)

b. Habit v. character evidence

i) Habit
One’s regular response to a repeated specific situation

ii) Character
A generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or peacefulness.

Habit evidence is admissible under FRE 406, while character evidence is generally inadmissible under FRE 404.The difference in treatment accorded habit and character evidence is based on the greater probative value of habit evidence.

c. Defining habit evidence

i) specificity
ii) repetition
iii) duration
iv) the semi-automatic nature of the conduct
While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated (ACN).

d. Routine Business Practices
The phrase “routine practice of an organization” refers to the habit of an organization, commonly known as business practice, usage, or custom.

i) Admissible to show that a particular event occurred in conformity with the habit
For example, evidence of a regular mailing procedure would be relevant as evidence to show that a particular letter left on the table was duly mailed.

ii) Inadmissible to establish standard of care
FRE 406 does not govern the use of routine-practice evidence for some other purpose. For example, custom or routine practice is often used to establish the standard of care in negligence cases. Such evidence is not offered to prove conduct, thus FRE 406 does not apply.

e. Methods of Proof
Habit evidence can be used whether corroborated or not and regardless of the presence of eyewitness. It is reasoned on the ground that it relates to the sufficiency of evidence rather than admissibility (ACN).

Example:
Q (DEFENDANT’S LAWYER): Ms. Smith, how long have you know the plaintiff:
A: About 10 years.
Q: Do you know what kind of driver he is?
PLAINTIFF’S LAWYER: [Stands up.] Your honor, we object. This is improper character trait evidence.
DEFENDANT’S LAWYER: Your honor, may we be heard at the bench?
JUDGE: Yes. Please come to the bench. [Lawyers come up to the bench.]
DEFENDANT’S LAWYER: On direct, the witness testified she commutes every day with the plaintiff, and she was allowed to testify that the plaintiff always stops at the stop sign at Main and Elm, where this accident happened. Your honor previously ruled that this was proper habit evidence under Rule 406. All I’m trying to do on cross it to elicit testimony that contradicts this habit testimony.
JUDGE: Plaintiff?
PLAINTIFF’S LAWYER: Your honor, what the defense is trying to do is get into character trait evidence, which is explicitly inadmissible in civil cases under Rule 404(a). Just because we were allowed to bring out proper habit evidence under the habit rule doesn’t open the door to character trait evidence under the character rule.
JUDGE: The objection is sustained.