Also known as: habit · habits · routine practice · routine practices · FRE 406 · habit evidence
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary principle allowing admission of evidence showing a person's habit or an organization's routine practice to prove that the person or organization acted in conformity with it on a particular occasion. The principle operates without requiring corroboration or an eyewitness to the specific event.
Hannah Hughes, a driver for Halcyon Motors, faced a negligence claim after a backing accident. Her employer introduced evidence that she always checked both mirrors before reversing, a pattern established over hundreds of prior shifts. The court admitted the evidence to show she likely followed the same steps on the day in question even though no one saw the maneuver.
Henry Hoffman owned Heritage Trust properties and maintained a documented routine of inspecting fire extinguishers every Monday morning. After a tenant was injured in a fire, Hoffman offered the inspection records to show he had checked the equipment the morning of the incident. The court allowed the evidence to prove conformity with the established practice.
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Hakim Hall, a bartender at Harmony Retail, followed a consistent practice of checking every patron's identification before serving alcohol. When charged with serving a minor, Hall introduced testimony of his unbroken routine over two years. The evidence was admitted to show he followed the same verification step on the night in question.
Erie Railroad Co. maintained a routine practice of sounding a warning whistle at every grade crossing. In a crossing-collision suit, the railroad offered evidence of that practice to prove the whistle sounded on the day Tompkins was injured. The court admitted the evidence to establish conformity with the established routine.
Federal agents investigating Wong Sun followed a routine practice of knocking and announcing before entering suspected premises. The government offered evidence of that practice to show the agents followed the same sequence when they reached Wong Sun's apartment. The court permitted the evidence to prove the agents acted in accordance with their established habit.
A prosecutor cross-examined a defense character witness using the witness's established practice of volunteering specific instances of conduct. The court allowed the questioning to test whether the witness was following that routine when describing the defendant's reputation. The evidence helped the jury evaluate the witness's testimony on the particular occasion.
No. The rule expressly permits admission of habit or routine-practice evidence regardless of whether it is corroborated or whether an eyewitness observed the particular occasion.
Habit evidence shows a specific, repeated pattern of conduct used to prove action in conformity on one occasion. Character evidence shows a general trait and is subject to stricter limits under Rules 404 and 405.
No. Routine practice requires evidence sufficient to show the practice is regular and consistent, though the precise number of instances is left to case-by-case judicial determination.
…conceive upon the bare looks and gestures of another,' Lewis v. United States , 146 U. S. 370,] 376 [1892], upon a juror's habits and associations,' Hayes v. Missouri, supra , at 70, or upon the feeling that the bare questioning [a juror's] indifference may sometimes provoke a resentment,' Lewis, supra , at 376.…