§ 12.05 METHODS OF PROOF

• Jurisdiction: North Carolina

§ 12.05. METHODS OF PROOF

As proposed by the Supreme Court, the draft for Rule 406 originally contained a division (b), which governed the methods of proving habit. That provision read: "Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or the practice was routine."²⁶ The House Judiciary Committee deleted this provision because "the method of proof of habit and routine practice should be left to the courts to deal with on a case-by-case basis."²⁷

Even though proposed Rule 406(b) was not adopted by Congress, in most instances habit will be proved by opinion testimony or evidence of specific instances of conduct.²⁸ Hence, the proposed rule remains an appropriate guide.²⁹ The Uniform Rules adopted this provision.³⁰

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Notes:

^[26] 56 F.R.D. 223 (1972).

^[27] H.R. Rep. No. 650, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7079.

^[28] See Babcock v. General Motors Corp., 299 F.3d 60, 66 (1st Cir. 2002) (testimony of three witnesses, all of whom described decedent's "habitual seat belt use" over numerous years); Brokamp v. Mercy Hosp. Anderson, 726 N.E.2d 594, 605 (Ohio App. 1999) (Nurse "Barringer normally gave a shot in the outer quadrant of the buttocks, or, when a patient could not be turned to his side, in the middle portion of the thigh.").

^[29] Proposed Fed. R. Evid. 406(b) advisory committee's note ("Permissible methods of providing habit or routine conduct include opinion and specific instances sufficient in number to warrant a finding that the habit or routine practice in fact existed. Opinion evidence must be 'rationally based on the perception of the witness' and helpful, under the provisions of Rule...