§ 12.04 DETERMINING ADMISSIBILITY UNDER RULE 403

• Jurisdiction: North Carolina

§ 12.04. DETERMINING ADMISSIBILITY UNDER RULE 403

Rule 406 provides only that evidence of habit or routine practice as proof of conduct may be admitted. Consequently, Rule 403 must be consulted to determine admissibility.²³ In making this determination, the trial court may consider the "compactness of proof." In other words, how many witnesses will be needed to establish the habit? "[T]estimony by W that on numerous occasions he had been with X when X crossed a railroad track and that on each occasion X had first stopped and looked in both directions" may be admitted but not the testimony "of 10 witnesses, each testifying to a different occasion."²⁴ The latter would simply be too time-consuming.

Under Rule 104(a), the trial court determines whether evidence constitutes habit, and this determination will be reversed only for an abuse of discretion.²⁵

--------

Notes:

^[23] See proposed Fed. R. Evid. 406(b) advisory committee's note ("Proof by specific instances may be controlled by the overriding provisions of Rule 403 for exclusion on grounds of prejudice, confusion, misleading the jury, or waste of time."), 56 F.R.D. 225 (1972).

^[24] Id.

^[25] See United States v. Angwin, 271 F.3d 786, 798 (9th Cir. 2001) ("A district court's ruling on whether proffered evidence qualifies as habit evidence under Federal Rule of Evidence 406 is highly...