Rule 406: Admissibility of Evidence of Habit or Routine Practice
| Publication year | 1994 |
| Pages | 2747 |
| Citation | Vol. 23 No. 12 Pg. 2747 |
1994, December, Pg. 2747. Rule 406: Admissibility of Evidence Of Habit or Routine Practice
After playing a round of golf at Rolling Pastures Country Club and returning to his home, Sam Shank develops stabbing abdominal pains. Sam is taken to the emergency room and has his stomach pumped. After running some tests, the doctor informs Sam that his ailment likely resulted from exposure to KillAll, a pesticide used to eradicate insect pests. Sam returns several days later to Rolling Pastures, where he notices a tanker truck with "KillAll" painted on the side leaving the parking lot.
Sam brings a negligence action against Rolling Pastures and sues KillAll on a products liability theory. The defendants learn through exhaustive interviewing of Rolling Pastures' members that Sam has been spotted on numerous occasions licking his golf ball for good luck after he sinks an especially long putt. Can the defendants introduce this evidence at trial?
Rule 406 of the Colorado Rules of Evidence ("C.R.E.") provides:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.(fn1)
Courts have defined habit as "a person's or organization's practice of handling a particular kind of situation with a specific type of conduct. Habit is one's regular response to a repeated specific situation."(fn2)
In assessing whether certain conduct or behavior constitutes a habit, the court must determine whether the behavior or conduct in question is sufficiently regular. There are no precise rules for this inquiry, and admissibility largely depends on the circumstances of each case. For example, in United States v. Pinto,(fn3) a woman claimed that the defendant, whom the police found asleep in the woman's house, had broken into her home and raped her. At trial, the court excluded evidence that, over an eight-year period, the defendant had, on four occasions, wandered drunk and uninvited into strangers' homes and fallen asleep. The court ruled that four episodes of particular drunken behavior over eight years of admitted...
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