RULE 406. HABIT
:; ROUTINE PRACTICE Admissibility. 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.
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
Rule 406 was amended, effective March 1, 1990; March 1, 2014.
, which has been described by McCormick as "one's regular response to a
specific situation" (McCormick on Evidence, 196, p. 462 (2d ed. 1972)), differs from
character in its degree of specificity. Character is general, a summation of traits; habit is
specific, an individual response to an individual stimulus. The distinction is important, for
Rule 406 allows the use of evidence of habit to show that a person acted in conformity
therewith with it, while Rule 404 denies a similar use of character
The rule does away with what has been termed the "eyewitness rule," which, as a general proposition, stated that evidence of habit was admissible only if there was no direct evidence of the act in question. As in other areas of these rules, it was felt that the admission of relevant evidence, rather than its exclusion, should be furthered. This represents a change in North Dakota practice, for the Supreme Court, in Glatt v. Feist, 156 N.W.2d 819 (N.D. 1968), adopted a modified eyewitness rule, stating that in cases in which eyewitnesses were present, evidence of habit would be allowed only if the direct evidence was in conflict. This rule admits evidence of habit regardless of the type of direct evidence present in a case.
Adoption of this rule means another departure from past North Dakota practice. In Haider v. Finken, 239 N.W.2d 508 (N.D. 1976), the North Dakota Supreme Court held that:
"Where there is no eyewitness, evidence of habit for care is inadmissible to prove the plaintiff's care and freedom from carelessness. Thus, one cannot establish a standard of care for the measurement of his own conduct on the occasion in question by showing that he has used care under similar circumstances on former occasions." Syllabus 6, 239 N.W.2d 508.
Under this rule, evidence of habit is relevant to show that a person acted in conformity therewith, regardless of whether this evidence tends to prove care or lack of care. This is not to say that evidence of habit must be admitted whenever offered. The rule states only that such evidence is relevant; it may be excluded--as may other relevant evidence--under other of these rules. See, e.g., Rule 403.
Rule 406 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April 26-27, 2012,
page 15; April 8, 1976,
page 22; October 1, 1975, page 3. Rule Fed.R.Ev. 406 ,
Federal Rules of Evidence; Rule
406, SBAND proposal.