§ 12.02 HABIT AND CHARACTER DISTINGUISHED

• Jurisdiction: United States

§ 12.02. HABIT AND CHARACTER DISTINGUISHED

Evidence of habit must be distinguished from evidence of character because the former is admissible under Rule 406, whereas the latter is generally inadmissible under Rule 404(a).¹ For example, one court ruled that a defendant's attempt to introduced evidence of "Plaintiff's habit of speeding was merely a thinly disguised attempt to show the jury that the Plaintiff was a person of bad character."² The difference in treatment accorded habit and character evidence is based on the greater probative value of habit evidence.³

Rule 406, however, does not define habit. The definition is critical because habit is closely related to "character." The federal drafters quoted extensively from McCormick's description of habit and character: "A habit . . . 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 semi-automatic."⁴ Other authorities also provide some guidance. Wigmore used the phrase "invariable regularity" of action.⁵ The Model Code of Evidence defined habit as "a course of behavior of a person regularly repeated in like circumstances."⁶ According to a leading treatise, "Character and habit are not synonymous. The former faces in the direction of Freud, the latter towards Pavlov."⁷ Another treatise provides the following rule of thumb: "One could reasonably testify to having observed habitual behavior, but character is almost always a matter of opinion."⁸

Relevant factors. The key elements in determining whether conduct constitutes habit are (1) specificity, (2) repetition, (3) duration, and (4) the semi-automatic nature of the conduct.⁹

Specificity. A person's general disposition as a careful or careless driver should be classified as character and excluded. On the other hand, evidence that a person always stopped her car at a particular intersection should be classified as habit due to its specificity.¹⁰

Repetition. How many times has the person stopped the car at that intersection? Evidence that the person stopped at an intersection once a day is more probative of habit than a once-a-month occurrence.¹¹

Duration. Evidence that the person has stopped at an intersection for five years is more probative than evidence of a two-month course of conduct.¹² Evidence of a person's "habit" of traveling home from work by a certain route for years exemplifies this point.

Semi-automatic conduct. Certain types of activities are done without thought — for example, braking a car with the right foot and locking the door of a house when departing. These kinds of activities, which are semi-automatic, are easily classified as habit. More volitional conduct is problematic, as illustrated by Levin v. United States,¹³ which is cited by the federal drafters. In Levin, the defendant proffered evidence of his "habit" of observing the Sabbath in support of an alibi defense. The D.C. Circuit upheld the exclusion of this evidence, stating, "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.' Certainly the very volitional...