Rule 406 Habit; routine practice. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [L 1980, c 164, pt of §1]
RULE 406 COMMENTARY
This rule is identical with Fed. R. Evid. 406, the Advisory Committee's Note to which says: "Character and habit are close akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait.... A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving.... When disagreement has appeared, its focus has been upon the question what constitutes habit, and the reason for this is readily apparent. The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion.... While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated."
Proffered testimony that defendant had a "habit" of speeding defendant's motorboat in marina and in channel over several days prior to accident constituted character evidence of prior bad acts, which was inadmissible under rule 404(b), and not habit evidence, which was admissible under this rule. 77 H. 446 (App.), 887 P.2d 656 (1993).
Last modified: October 27, 2016