Also known as: custom · usage
Written by attorneys · grounded in primary & secondary sources — see below
A regular response to a repeated situation that may be admitted to prove action in conformity with it on a particular occasion.
Hazel Hoffman always buckled her seatbelt before starting her car each morning. After a collision, the defense offers testimony from her passenger that Hoffman followed this pattern every day on the same route. The court admits the evidence to show she likely buckled on the day of the accident.
After her father's death, Nora Klein offers proof that he always took his prescribed heart medication at 8 a.m. The court admits the habit evidence to establish that he likely followed the routine on the morning the will was allegedly signed.
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Victor Lang testifies that his neighbor always jogged the same park path at 6:30 a.m. When the neighbor is struck by a car at that location, the court allows the evidence to prove he was running there on the day in question.
A restaurant owner proves that a supplier always delivered produce every Tuesday morning for three years. The court admits the habit to show the supplier made the delivery on the disputed Tuesday.
An employee testifies that the manager always locked the supply room at 5 p.m. The court permits the evidence to prove the room was secured on the evening cash went missing.
A factory manager shows that the company always inspected conveyor belts each January. The court admits the habit evidence to establish that the inspection occurred in the year of the accident.
Habit is a regular response to a repeated situation while character is a general disposition or trait. Habit evidence is admissible under Rule 406 to prove action in conformity on a particular occasion, whereas character evidence is generally excluded for that purpose.
No. The court may admit habit evidence regardless of whether it is corroborated or whether there was an eyewitness.
Courts examine whether the conduct is a regular response to a specific repeated situation rather than a broad trait, the number of instances observed, and the particularity of the circumstances.
Yes. Evidence of an organization's routine practice is admissible on the same terms as a person's habit to prove the organization acted in accordance with it on a particular occasion.
…Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land . . . ."[^maj-18] Four years later another statute provided "[t]hat no Man of what Estate or Condition that he be, shall be put out of Land or Tenement,…