Also known as: habit · routine practice · habit or routine practice · FRE 406 · evidence of habit
Written by attorneys — see sources below.
Evidence of a person's or organization's consistent pattern of behavior that may be admitted to prove that the person or organization acted in accordance with the pattern on a particular occasion.
Hannah Hughes stayed late at Hammer Construction finishing code modules. Coworker Imogen would testify that Hannah always ran an automated script copying files to the secure cloud at the end of every workday. The court admits the testimony to show Hannah followed the routine on the night in question.
Hector Hernandez faced an attacker and used a specific hold he had practiced weekly at the gym. Evidence of that routine practice is offered to show he acted consistently with it during the encounter. The court admits the evidence to prove conduct on the occasion in question.
Hiroshi Hasegawa drove the same route at the same speed every morning. In a state-law negligence action removed to federal court, evidence of this habit is introduced to prove his conduct on the day of the collision. The court applies federal evidence rules while following state substantive law.
Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation or maintenance of the train. He asserted that he was rightfully on the premises as a licensee because he was on a commonly used beaten footpath which ran for a short distance alongside the tracks. He further alleged that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way are to be deemed trespassers; and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts. He contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law. The trial judge refused to rule that the Pennsylvania law precluded recovery. The jury brought in a verdict of $30,000. The judgment entered thereon was affirmed by the Circuit Court of Appeals, which held that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law and that upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is. Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, the Supreme Court granted certiorari.
View caseHazel Hoffman offered character evidence through reputation testimony. On cross-examination the prosecutor inquires into specific instances showing her routine practice of arriving late. The court permits the questions to test the basis of the reputation evidence.
In 1947 Solomon Michelson stood trial in federal court on a charge of bribing a revenue agent. The government introduced evidence that Michelson had made a substantial cash payment to the agent. Michelson testified in his own defense, admitting the payment but claiming the agent had demanded, threatened, and induced it. On direct examination Michelson's counsel brought out that he had been convicted in 1927 of a misdemeanor involving counterfeit watch dials. Cross-examination further showed that in 1930, when applying for a license to deal in second-hand jewelry, Michelson had answered "No" to a question asking whether he had ever been arrested or summoned for any offense. Michelson called five character witnesses who had known him for fifteen to thirty years. Each witness testified on direct examination that Michelson's reputation for honesty, truthfulness, and being a law-abiding citizen was very good, based on conversations with others in the community. On cross-examination the prosecutor asked four of the witnesses whether they had ever heard that Michelson had been arrested on October 11, 1920, for receiving stolen goods. None of the witnesses had heard of the incident. Outside the presence of the jury the prosecutor assured the trial judge that the arrest had occurred and produced a supporting record that defense counsel did not challenge. The trial judge gave the jury limiting instructions on three separate occasions concerning the purpose of the questions. Michelson was convicted on the bribery count. The Court of Appeals affirmed the judgment.
View caseHarriet Hamilton gave a statement after officers followed their standard booking sequence. She moves to suppress the statement as obtained in violation of required procedures. Evidence of the officers' routine practice is considered in determining whether the statement was voluntary.
Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence. Before trial, Dickerson moved to suppress a statement he had made at a Federal Bureau of Investigation field office on the grounds that he had not received Miranda warnings before being interrogated. The District Court granted his motion to suppress, and the Government took an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit. That court reversed the District Court's suppression order. It agreed that petitioner had not received Miranda warnings before making his statement but held that 18 U.S.C. § 3501 governed the admissibility of the statement. The Fourth Circuit concluded that Miranda was not a constitutional holding and that Congress could therefore have the final say on admissibility. Two years after Miranda was decided, Congress enacted 18 U.S.C. § 3501, which provides that a confession shall be admissible in evidence if it is voluntarily given and directs the trial judge to consider specified factors in determining voluntariness. Because of the importance of the questions raised by the Court of Appeals' decision, the Supreme Court granted certiorari.
View caseHudson Partners' employee was searched pursuant to the company's daily security protocol. The defense seeks to exclude evidence obtained during the search. Testimony describing the organization's routine practice is offered to establish the manner in which the search occurred.
On July 7, 2004, Investigator Mark Anderson of the Coffee County Sheriff's Department learned that Bennie Dean Herring had arrived at the department's impound lot to retrieve items from his truck. Anderson, familiar with Herring from prior encounters, directed the county warrant clerk, Sandy Pope, to check for outstanding arrest warrants. Finding none locally, Pope contacted Sharon Morgan, the warrant clerk in neighboring Dale County, whose database indicated an active warrant for Herring's failure to appear on a felony charge. Anderson and a deputy followed Herring as he left the lot, stopped his vehicle, and arrested him based on the reported warrant. A search incident to the arrest uncovered methamphetamine in Herring's pocket and a pistol in his truck. Shortly thereafter, Morgan discovered that the warrant had actually been recalled five months earlier in February 2004, but the recall had not been entered into the Dale County database. She notified Pope, who alerted Anderson via radio, all within ten to fifteen minutes of the arrest. Herring was indicted in the United States District Court for the Middle District of Alabama. He faced charges of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and possession of methamphetamine under 21 U.S.C. § 844(a). He moved to suppress the evidence obtained during the search, arguing that the arrest was unlawful because the warrant had been rescinded. The Magistrate Judge recommended denying the suppression motion, a recommendation adopted by the District Court in 451 F.Supp.2d 1290 (2005). The United States Court of Appeals for the Eleventh Circuit affirmed the conviction in 492 F.3d 1212 (2007), concluding that the database error was merely negligent and attenuated from the arrest. The Supreme Court granted certiorari to address the application of the exclusionary rule in this context.
View caseThe conduct must be specific and repetitive enough to qualify as a semi-automatic response to a particular situation. Occasional deviations during high-stress periods do not necessarily destroy the inference if the overall pattern remains consistent outside those conditions.
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The rule expressly permits admission without corroboration or an eyewitness. The focus remains on whether the described conduct meets the threshold of regularity and specificity.
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Habit describes a narrow, repetitive response to a specific situation. Character describes a general propensity to act in a certain way. Testimony about an automated daily procedure qualifies as habit rather than character.
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A court may exclude the evidence if the documented deviations are so frequent or tied to the precise conditions present on the occasion in question that the inference of consistent behavior becomes unreliable.
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…fit to avail themselves of that opportunity. ..... "Now whether or not Mr. Teale had any other money at the time or was in the habit of concealing his money in different departments, I don't know, and ladies and gentlemen, you don't know, because you have not had any testimony from that witness stand, and the only person…