Habit and Routine Practice
Rule
FRE 406 — Habit; 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.
Elements
What qualifies as a “habit”?
The judge must be persuaded that the conduct:
- Is virtually automatic — a consistent, nearly reflexive response to a specific stimulus
- Has been repeated many times — not merely a general tendency, but a specific pattern
- Is a specific, recurrent response — not a broad character trait like “acting carefully”
Habit vs. character
| Character | Habit |
|---|---|
| General disposition (e.g., “careful driver”) | Specific response (e.g., “always checks mirror before changing lanes”) |
| Inadmissible for propensity | Admissible to prove conforming conduct |
| Susceptible to fabrication | Verifiable by observation |
How to prove habit
Habit may be proved by opinion testimony, reputation, or — most commonly — by evidence of prior specific instances of the conduct sufficient in number and regularity to establish the habit.
Exceptions / Limits
- Religious observance is generally not a “habit” because it lacks the involuntary, mechanical regularity required; courts hold that religious practices are not the type of activities that lend themselves to “invariable regularity.” (Levin v. United States)
- Character evidence rules (FRE 404–405) do not limit habit evidence — habit is admitted under FRE 406 to prove conduct, not to show character; hence specific instances are admissible (unlike FRE 405’s restriction to opinion/reputation in non-essential-element cases)
Policy
- The propensity inference is usually barred for character because general predispositions are weak evidence and prejudice is high
- Habit is different: a specific, repeated, nearly reflexive behavior is a strong predictor of what actually happened in a particular instance
- The conduct is easy to verify through specific examples, unlike general character which is difficult to assess
- No corroboration requirement — FRE 406 explicitly permits admission even without eyewitness or corroboration
Key Cases
- NY v. D’Arton — victim’s habit of carrying large sums of cash on business trips was “a deliberate and repetitive practice” admissible under FRE 406
- Levin v. United States (D.C. Cir. 1965) — defendant’s religious observance of the Sabbath did not qualify as a habit because religious practices lack the “invariable regularity” required