§ 12.01  Introduction [175]

 

Habit or routine-practice evidence may be admitted to prove that a person or organization acted in conformity with that habit or routine practice on a particular occasion.

 

§ 12.02  Habit & Character Distinguished [175-76]

 

Character distinguished. Evidence of habit must be distinguished from evidence of character because the former may be admissible under Rule 406, whereas the latter is generally inadmissible under Rule 404. The difference in treatment accorded habit and character evidence is based on the greater probative value of habit evidence.

 

Definition. Habit is the regular response to a recurring particular circumstance - e.g., always stopping at a particular stop sign. The key elements in determining whether conduct is habit are (1) specificity, (2) repetition, (3) duration, and (4) the semi-automatic nature of the conduct.

 

§ 12.03  Routine Business Practices  [177-78]

 

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

 

                [A] Custom to Establish Standard of Care

 

Rule 406 does not govern the use of routine-practice evidence offered 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, and therefore Rule 406 does not apply.

 

§ 12.04  Determining Admissibility under Rule 403  [178-79]

 

Rule 406 provides only that evidence of habit or routine practice as proof of conduct is relevant, rather than admissible.  Consequently, Rule 403 must be consulted to determine the admissibility of habit evidence.  In making this determination, the trial court may consider the “compactness of proof.”

 

§ 12.05  Methods of Proof [179]

 

In most instances, habit will be proved by opinion evidence or evidence of specific instances of conduct.