Alaska R. Evid. 406 commentary

This rule is identical to Federal Rule 406 which confirms the

trend toward admissibility of habit and routine practice as

persuasive proof of conduct on a particular occasion. The

difficulty arises in distinguishing habit evidence from character

evidence which is viewed as a less reliable and potentially

more dangerous means of establishing the likelihood of

specific conduct on a particular occasion. In part the difficulty

stems from the inability to precisely define “habit.” It is clear

that the more regular the performance of an act, the more likely

it is to be regarded a habit. An oft-quoted paragraph,

McCormick (2d ed.) § 195, at 462, describes habit in terms

effectively contrasting it with character.

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, such as honesty,

temperance, or peacefulness. “Habit,” in modern usage, both

lay and psychological, is more specific. It describes one’s

regular response to a repeated specific situation. If we speak

of character for care, we think of the person’s tendency to

act prudently in all the varying situations of life, in business,

family life, in handling automobiles and in walking across

the street. 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. The doing of the habitual acts may

become semiautomatic.

In determining whether evidence shall be admissible, the

court may look to Rule 104 and make a preliminary

determination that it is a habit or a routine business practice

that is being described. When an activity fails to achieve the

status of a habit, evidence as to its practice must be excluded.

Certain practices are not readily defined as “habits.” For

example, in Levin v. United States, 338 F.2d 265 (D.C. Cir.

1964), testimony as to the religious “habits” of the accused,

offered as tending to prove that he was at home observing the

Sabbath rather than out obtaining money through larceny by

trick, was held properly excluded:

It seems apparent to us that an individual’s religious

practices would not be the type of activities which would

lend themselves to the characterization of “invariable

regularity.” [1 Wigmore 520.] Certainly the very volitional

basis of the activity raises serious questions as to its

invariable nature, and hence its probative value.

Id. at 272.

Evidence of a routine practice of an organization may be as

relevant as a person’s habit in proving that an act was

performed in a certain way or that an event took place. The

circumstantial nature of the proof requires that the routine

specifically describe a particular organization’s manner of

daily operation or the probative value is greatly diminished.

Since an organization must often rely upon consistent performance in order to make a profit or otherwise succeed, evidence

of routine practices may be more probative in many cases than

habit evidence. And the nature of this evidence is such that it is

not likely to be very prejudicial. This rule does not refer to the

practice of a given trade or industry, except insofar as it

parallels a specific company’s routines.

This rule specifically states that corroboration of a habit is

unnecessary as a condition precedent to its admissibility. New

Jersey adopted a similar policy in its Rule 49, rejecting its

previous requirement that a necessary condition for the

introduction of habit evidence was the introduction of other

evidence that the habit was followed in the particular occasion

in question. The New Jersey Commission stated that habit or

custom alone is evidential as to conduct on a particular

occasion and that corroboration goes only to weight.

To require corroborative evidence that on that date the

behavior did conform to the proven habit would be to defeat

the purpose of the rule and put an unnecessary hurdle in the

path of the attorney with circumstantial proofs only.

Report of the Committee on the Revision of the Law of

Evidence to the Supreme Court of New Jersey 101 (1955).

This rule specifically rejects the common law “eyewitness

rule.” Followed in a great number of jurisdictions, the

eyewitness rule only permits evidence of a habit to be

admissible where no eyewitnesses are available to testify about

the events in question. There are reasons to be wary of habit

evidence: individuals may consciously take advantage of a

known habit as an alibi, well-established habits do not always

govern behavior, and habits sometimes may be easy to

fabricate but difficult to refute. These problems are not

insoluble. By requiring repetitive acts, this rule should make

fabrication more difficult and should enable the cross-examiner

to fully explore the specifics of the habit claim. Moreover,

habit evidence is not unique in its imperfections. The

eyewitness rule does not take into account the fact that

evidence of an established habit may be more reliable than the

testimony of an eyewitness. The Law Revision Commission’s

Comment to California’s Rule § 1105, 29b West Ann. Cal.

Evid. Code 19 (1966), which also rejects the eyewitness rule

states:

The “no eyewitness” limitation is undesirable.

Eyewitnesses frequently are mistaken, some are dishonest.

The trier of fact should be entitled to weigh the habit

evidence against the eyewitness testimony as well as all of

the evidence in the case.

This provision, like its federal counterpart, is silent as to the

means of proof that a habit or routine practice existed. The

1969 and 1971 drafts of the proposed federal rules contained a

provision which specified that habit or routine practice may be

proved by testimony in the form of an opinion or by specific

instances of conduct sufficient in number to warrant a finding

that the habit existed or that the practice was routine. Congress

deleted the section in favor of allowing courts to develop and

consider various methods of proof. This rule anticipates that

any relevant manner of proof may be employed, subject to

Rule 403’s requirements that the proof be more probative than

prejudicial, confusing, or misleading and that the probative

value justify the time needed to hear the evidence.