Chapter 5 - § 5.1 • CUSTOM, HABIT, AND BUSINESS ROUTINE

• Jurisdiction: Colorado

§ 5.1 • CUSTOM, HABIT, AND BUSINESS ROUTINE

§ 5.1.1—Introduction

CRE 406 permits admission of evidence of a person's habit in order to prove that the person acted in conformity therewith on a particular occasion. People v. Trujillo, 369 P.3d 693, 695 (Colo. App. 2015). Habit evidence is limited to a witness's specific response to repeated stimuli. Id. Habit evidence can be used circumstantially to prove a fact where there is no direct evidence of that fact or where a witness has limited recollection of a particular event. See Bloskas v. Murray, 646 P.2d 907, 911 (Colo. 1982) (a surgeon's testimony regarding his routine practice of advising patients of risks of surgery was properly admitted as evidence of his habit even though the surgeon admitted having no independent recollection of the surgery at issue). Admission of habit evidence is left to the sound discretion of the trial court and may be excluded if the probative value is substantially outweighed by unfair prejudice. Id. The Colorado Supreme Court has noted the limited probative value of habit evidence admitted as circumstantial evidence. Id. ("In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise").

Naturally, there is tension between CRE 406's allowance of habit evidence and CRE 404's prohibition on character evidence. Distinguishing a particular practice as habit evidence rather than evidence of a person's character can be critical in terms of admissibility. In Trujillo, the Colorado Court of Appeals found testimony that the victim of a debit card theft never gave her debit card to anybody to be admissible evidence that her debit card was stolen on a particular occasion. Trujillo, 369 P.3d at 696. The court rejected the contention that her testimony was impermissible character evidence because it was not a "generalized description of her disposition or a general trait." Id. The court of appeals distinguished habit from character evidence by stating, "habit denotes one's regular response to a repeated situation and is the person's regular practice of responding to a particular kind of situation with a specific type of conduct." Id. at 695 (citing McCormick on Evidence § 195, at 1080-81 (7th ed. 2013) (internal citations & quotations omitted)). In contrast, "[c]haracter is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as...