Chapter 31 - Habit

Question 1

RULE 406: Evidence of Habit or Routine Practice is admissible to show action on ____?

Answer 1

A particular occasion

Question 2

Specific, repeated conduct in response to Certain Situations or stimuli is called?

Answer 2

Habit

Question 3

Can habit alone support a verdict?

Answer 3

Yes; Habit alone may support a verdict

Question 4

RULE 406 adds another permissible purpose to the list of non-propensity uses recognized in RULE 404(b). What is it?

Answer 4

Use of other acts to prove an individual’s habit or an organization’s routine practice.

Question 5

What are the 2 POLICY reasons why habit evidence is admissible even though propensity evidence is not?

Answer 5

1. First, habit evidence tends to be MORALLY NEUTRAL, so there is less chance of unfair prejudice resulting from its admission.
2. The Second, and more important reason is that habit evidence has a HIGHER PROBATIVE VALUE than propensity evidence.

Question 6

What 3 factors distinguish habit from propensity?

Answer 6

1. The SPECIFICITY of the conduct.
2. The DISTINCTIVENESS OF THE SITUATION producing the conduct.
3. The REGULARITY of the conduct.

Question 7

To confirm or give support to (a statement, theory, or finding).

Answer 7

Corroborate

Question 8

The court may admit habit evidence regardless of whether it is ____ or whether there was an ____.

Answer 8

Corroborated / Eyewitness

Question 9

How does the Court define “Habit” or “routine practice” in RULE 406 and what is the Court’s source?

Answer 9

1. Habit = one’s regular response to a repeated specific situation.
2. Source: Advisory Committee’s note

Question 10

Under RULE 406, a person can testify about her own habit even if NO ONE else has ______.

Answer 10

Seen her act in that way.

a) habit doesn’t need to be corroborative.
b) habit doesn’t need to have an eyewitness.

Question 11

The existence of habit is a question of _____.

Answer 11

Credibility

Question 12

What is a question of credibility mean in RULE 406?

Answer 12

RULE 406 allows a party to present uncorroborated evidence to the jury, but the jurors doe NOT have to accept it. Many juries do reject SELF-SERVING claims of habit. Third party testimony is much more persuasive.

Question 13

RULE 406 is silent about how to ____ habit.

Answer 13

Prove

Question 14

What are the 2 ways a Court allows an attorney to prove habit?

Answer 14

1. Opinion Testimony

2. Specific Instances of Conduct (usually used due to specific and frequent elements to prove habit)

Question 15

What is the standard of habit evidence?

Answer 15

Sufficient to support a finding.

Question 16

If a person has done a task so many times that he cannot possibly remember whether he did it a certain way on the day in question, how can he bring in habit evidence? Is admissible? Can it be sufficient to support a finding even for beyond a reasonable doubt?

Answer 16

1. He can prove he developed a “long established habit and custom.”
2. Yes.
3. Yes.

Question 17

Do juries frequently find habit evidence sufficient even in criminal cases?

Answer 17

YES; habit may be all that is needed to prove beyond a reasonable doubt that a person acted a certain way on a certain occasion.

Question 18

The organization equivalent of personal habit?

Answer 18

Routine Practice

Question 19

Why are Courts generally more willing to accept routine practice evidence from a corporation than habit evidence from an individual?

Answer 19

B/C “the need for regularity in business and the organizational sanctions which may exist when employees deviate from the established procedures give extra guarantees that the questioned activity followed the usual custom.”

Question 20

RULE 406 evidence for an individual is called? RULE 406 Evidence for a corporation is called?

Answer 20

Habit evidence / Routine Practice evidence

Question 21

Corporations and other institutions often have ____ for dealing with particular situations.

Answer 21

Standard Procedures.