§406 Habit or Routine Practice

• Library: Evidence Restated Deskbook (2021 Ed.)

§406 Habit or Routine Practice

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Notes

In contrast to character evidence, which refers to a general description of a person's attributes or disposition, evidence of a habit or a routine practice refers more specifically to a "regular response to a repeated specific situation." FRE 406 Advisory Committee Notes (quoting Charles T. McCormick, McCormick on Evidence § 195, p. 462 (2^nd ed. 1954)).

The admissibility of habit and routine practice evidence in Missouri was reviewed by the court in Zempel v. Slater, 182 S.W.3d 609, 617–18 (Mo. App. E.D. 2005). It identified the following principles regarding this evidence emerging from the caselaw:

· The evidence is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit or routine practice.

· The admissibility of habit evidence should be restricted and kept within narrow limits.

· A habit is a person's regular practice of meeting a particular kind of situation with a specific type of conduct. The doing of habitual acts may become semi-automatic.

· To be admissible, the habit must be sufficiently regular and uniform or the...