FRE 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.

The difficulty with the propensity rule (and it is a difficulty) is figuring out what is meant by "character.'' Rule 406, like Rule 404(b), provides an indication of the difficulty. Both rules are logically superfluous. They complement Rule 404(a) but logically add nothing to it except five examples of evidence that is not barred by the propensity rule. Practically speaking, however, both rules help to delineate what the propensity rule is not intended to exclude. Rule 404(b), as we have argued above, restates the basic rule of 404(a) and gives a non-exhaustive list of illustrations of what is not covered.

Rule 406 declares that evidence of habit or of the routine practice of an organization is relevant to prove action in conformity therewith. This is an odd declaration. In and of itself this declaration would not distinguish habit or routine practice from character evidence. Character evidence is relevant to prove action in conformity therewith; Rule 404(a) does not declare such evidence irrelevant but rather "inadmissible,'' and does so because the relevance of character evidence to show general propensity is outweighed by its potential for prejudice and waste of time. What Rule 406 should say (and what everyone understands it as saying) is that evidence of habit and routine practice is not "inadmissible'' by reason of the propensity rule of 404(a). Why? Because "habit'' is different from "character,'' and therefore evidence of habit is not made inadmissible by the general propensity rule of Rule 404(a). Admissibility of relevant evidence of habit and routine practice is not admissibility of evidence of "character.''

All of which sets the stage for trying to say, again, what "character'' is. McCormick says, "character is a generalized description of one's disposition, or of one's disposition in respect to a general trait such as honesty, temperance, or peacefulness.'' (McCormick 162, quoted in the Advisory Committee's Note to Rule 406.) Generality seems to be the key: A disposition sufficiently general to encompass many different kinds of specific behavior is what is meant by character. One can manifest "peacefulness'' or "honesty'' in many ways. One can manifest a disposition to climb steps two at a time only by climbing steps two at a time. Exclusion of proof of a person's "character'' for the purpose of proving that "he acted in conformity therewith on a particular occasion'' is meant to exclude proof of a general disposition that could encompass a wide variety of conforming actions when offered to prove that one particular action conformed. Habit is a disposition that manifests itself by a narrow range of behavior. This is the key distinction between habit and routine practice on the one hand and character on the other, and it is for this reason that habit and routine are not encompassed by the concept of "character'' within the meaning of Rule 404(a).

Much of the confusion created by the so-called character rules would be eliminated if terminology were more precise. The term "character evidence,'' when used to describe what is excluded by the propensity rule, should not be applied to evidence of specific acts that is independently relevant.

This leads us to a conceptual view of habit and character evidence that, while not recognized explicitly in the cases, we believe best explains the actual treatment of such evidence by the courts and rules drafters. In our view, it is crucial to understanding the propensity rule to see that Rules 404(b) and 406, while giving some examples of what is not character proof, leave an undefined middle. One cannot define what is included within the propensity rule simply by determining what is not included under Rules 404(b) and 406. Rather, it is crucial to develop an affirmative understanding of the boundaries of the propensity rule and to see that if evidence is not covered by the propensity rule, its admissibility is determined solely by the basic relevance considerations of Rule 403.

Try applying this approach to the next three problems. Does it help?

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