Section 12.2 Habit

• Library: Evidence 2017

A. (§12.2) Habit

Counsel should always be cognizant of the subtle but significant differences between evidence of habit or custom and evidence of character. In contrast to character evidence, which refers to a general description of a person’s attributes or disposition, evidence of a habit or custom refers more specifically to a “regular response to a repeated specific situation.” Fed. R. Evid. 406 Advisory Committee Notes. Proof of prior habitual conduct, distinguished from proof of a character trait, is admissible to prove how a person acted on a particular occasion.

The Eastern District of the Missouri Court of Appeals gave an overview of Missouri law as it relates to habit evidence in Zempel v. Slater, 182 S.W.3d 609, 617–18 (Mo. App. E.D. 2005). The Zempel court laid out the four main principles associated with habit evidence:

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

2. Habit evidence should be restricted and kept within narrow limits.

3. 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.

4. Habit evidence must be sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion.

In Zempel, the court allowed evidence that the driver, Zempel, always obeyed the speed limit when riding with his sons as proper habit...