Learning Outcomes
After reading this article, you will be able to identify when evidence of habit or routine practice is admissible, distinguish it from character evidence, and apply the correct rules for exclusion or admission of such evidence under the Federal Rules of Evidence. You will also understand how these concepts are tested on the MBE and avoid common exam pitfalls.
MBE Syllabus
For MBE, you are required to understand the rules governing the admissibility of habit and routine practice evidence, and how these differ from character evidence. In your revision, focus on:
- Distinguishing habit and routine practice evidence from character evidence.
- Knowing when habit or routine practice evidence is admissible to prove conduct.
- Recognizing the reasons for excluding relevant evidence, including unfair prejudice, confusion, or waste of time.
- Applying the correct exclusionary rules to habit and routine practice evidence under the Federal Rules of Evidence.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is most likely to be admissible as habit evidence?
- (A) Testimony that a driver is a careful person.
- (B) Testimony that a driver always fastens her seatbelt before starting her car.
- (C) Testimony that a driver was not at fault in a previous accident.
- (D) Testimony that the driver’s friends consider her reckless.
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Under the Federal Rules of Evidence, evidence of a business’s routine practice is:
- (A) Never admissible.
- (B) Admissible only if corroborated by eyewitnesses.
- (C) Admissible to show that the business acted in accordance with that practice on a particular occasion.
- (D) Admissible only if the business is a party to the case.
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Evidence of a person’s habit may be excluded if:
- (A) It is relevant but cumulative.
- (B) It is relevant but unfairly prejudicial.
- (C) It is relevant but confuses the issues.
- (D) All of the above.
Introduction
Evidence law distinguishes between habit and character. Habit and routine practice evidence is often relevant to show how a person or organization likely acted on a specific occasion. However, the rules for admitting such evidence are strict, and the MBE frequently tests your ability to apply these distinctions and exclusionary principles correctly.
Habit vs. Character Evidence
Habit evidence refers to a person’s regular response to a specific situation, while character evidence describes a person’s general disposition. The Federal Rules of Evidence allow habit evidence to prove conduct on a particular occasion, but generally exclude character evidence for that purpose.
Key Term: Habit A regular, specific, and semi-automatic response to a particular situation, admissible to show conduct in conformity with the habit on a specific occasion.
Key Term: Routine Practice A regular method or procedure followed by an organization, admissible to show that the organization acted in accordance with that practice on a particular occasion.
When Habit and Routine Practice Evidence Is Admissible
Under Federal Rule of Evidence 406, evidence of a person’s habit or an organization’s routine practice is admissible to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice. The evidence does not require corroboration or eyewitnesses.
Examples of Habit Evidence
- “Every morning, the nurse checks the patient’s ID bracelet before administering medication.”
- “The driver always signals before turning left at this intersection.”
What Is Not Habit Evidence
General statements about a person’s character, such as “he is a careful driver,” are not habit. Prior acts or general reputation are also not habit.
Reasons for Excluding Relevant Habit Evidence
Even if habit or routine practice evidence is relevant, it may be excluded under Rule 403 if its probative value is substantially outweighed by dangers such as unfair prejudice, confusion of the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence.
Key Term: Unfair Prejudice The risk that evidence will lead the jury to decide the case on an improper basis, such as emotion or bias, rather than on the facts.
Worked Example 1.1
A delivery company is sued for failing to obtain signatures when delivering packages. The company offers evidence that its drivers always obtain a signature before leaving a package. Is this evidence admissible?
Answer: Yes. This is evidence of the company’s routine practice, admissible to show that it likely obtained a signature on the occasion in question.
Worked Example 1.2
In a negligence case, the defendant offers testimony that he is a careful person. Is this admissible as habit evidence?
Answer: No. This is character evidence, not habit. General statements about being careful or reckless are not habit evidence and are inadmissible to prove conduct on a specific occasion.
Exam Warning
The MBE often tests your ability to distinguish between habit and character evidence. Do not confuse a person’s general reputation or prior acts with habit. Only specific, regular, and automatic responses to a particular situation qualify as habit.
Revision Tip
When analyzing an evidence question, ask: Is this evidence describing a specific, repeated response to a particular situation (habit), or is it a general statement about personality (character)? Only the former is admissible to prove conduct.
Key Point Checklist
This article has covered the following key knowledge points:
- Habit evidence is a regular, specific response to a particular situation, not a general trait.
- Routine practice evidence is admissible to show an organization acted in conformity with its usual procedure.
- Character evidence is generally inadmissible to prove conduct on a specific occasion.
- Relevant habit or routine practice evidence may be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.
- The Federal Rules of Evidence allow habit and routine practice evidence without corroboration or eyewitnesses.
Key Terms and Concepts
- Habit
- Routine Practice
- Unfair Prejudice
