The Rules of Evidence do not permit evidence of past conduct to prove conduct on a particular occasion. Federal Rule of Evidence 404(a) (evidence “of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion”). The concern with such character evidence is twofold:
We fear that evidence of an individual’s bad character will prejudice the jury, causing them to find against him on the basis of past actions because he is “a bad guy,” or because he “deserved it.” We also reject the deterministic idea that an individual is bound to repeat past mistakes despite attempts to alter and reform one’s behavior as this would itself belie the deterrent effect of our penal system.
Robert P. Duffield II, “Distorting the Limits of FRE 406: A Tough Habit to Break,” 38 Rutgers L.J. 897, 910 n.64 (Spring 2007).
An exception to the prohibition on this evidence is Rule 406. The rule, entitled Habit; Routine Practice, states:
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.
This rule permits a litigant to admit prior conduct as evidence of similar conduct on a particular occasion if the prior conduct amounts to a habit or routine practice. Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1523 (11th Cir. 1985).
The advisory committee notes for Rule 406 attempt to differentiate proof of character from habit evidence, stating:
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 . . . is more specific. It describes one’s regular response to a repeated specific situation . . . 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.
Courts have also identified specific factors to use in determining whether the prior conduct is a habit or routine practice.
In deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct.
United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001); see also Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1293 (7th Cir. 1988) (“before a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere ‘tendency’ to act in a given manner, but rather, conduct that is ‘semi-automatic’ in nature”).
But concerns remain among courts about admitting habit and routine-practice evidence. The fear is that litigants will use Rule 406 as a backdoor to admit improper character evidence in the guise of habit or routine-practice evidence. The Seventh Circuit held:
We are cautious in permitting the admission of habit or pattern-of-conduct evidence under Rule 406 because it necessarily engenders the very real possibility that such evidence will be used to establish a party’s propensity to act in conformity with its general character, thereby thwarting Rule 404’s prohibition against the use of character evidence except for narrowly prescribed purposes.
Simplex, Inc., 847 F.2d at 1294; Duffield, supra, at 901 (“Discerning the line where character ends and habit begins is formidable at best, and impossible at worst. Indeed, both categories of evidence are made up of that which would establish one’s propensity to act in a certain manner based on his or her past actions.”).
In some cases, the prior conduct will be so semiautomatic, so specific, and repeated with such frequency that courts will have no difficulty concluding it is admissible habit or routine practice and not merely inadmissible character evidence. For example, courts regularly admit habit evidence in malpractice cases in which the plaintiff alleges the defendant failed to warn him or her of the potential risks of a medical procedure. Invariably, the defendant health care provider does not recall his or her specific conversation with the plaintiff. But the health care provider is permitted to testify to his or her habit or routine practice of warning all patients shortly before a procedure of the risks of a particular procedure. See, e.g., Meyer v. United States, 464 F. Supp. 317, 321 (D. Colo. 1979), aff’d, 638 F.2d 155 (10th Cir. 1980).
In closer calls, the courts seem willing to admit the evidence and allow the parties to argue over its weight. In an interesting case, Mobil Exploration & Producing U.S., Inc. v. Cajun Construction Services, Inc., 45 F.3d 96 (5th Cir. 1995), Mobil argued that the defendant shipper had defrauded it by shipping less limestone than Mobil purchased. At trial, Mobil argued that the shipper had a routine practice of “short loading” its trucks with limestone. Mobil submitted evidence of 3,400 loads transported by the shipper to third parties, and established that, on average, more than half the shipments were short loaded. Ignoring the volitional nature of the act of short loading, and focusing instead on the number of times it had occurred, the Fifth Circuit Court of Appeals held that this evidence of short loading was admissible to show that the defendant had a routine practice of short loading (and, hence, had short loaded its shipments to Mobil).
Courts are also flexible when considering the number of times the prior conduct has occurred before constituting a habit. In Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986), the defendant police officers used four instances in which the plaintiff had reacted violently to police officers to show he had a habit of reacting violently when he was confronted by police. The Tenth Circuit Court of Appeals affirmed the admissibility of the evidence:
That Perrin might be proved to have a “habit” of reacting violently to uniformed police officers seems rather extraordinary. We believe, however, that defendants did in fact demonstrate that Perrin repeatedly reacted with extreme aggression when dealing with uniformed police officers.
Id. at 1046.
One area where courts seem to disagree is whether a history of intoxication can constitute a habit. The general rule is that it depends on the “‘degree of regularity of the practice and its coincidence with the occasion.’” Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791, 795 (5th Cir. 1979) (citing McCormick on Evidence § 195 n.16 (2d ed. 1972). In Reyes, the plaintiff was lying across railroad tracks when he was hit by a train. Missouri Pacific, not surprisingly, wanted to argue that the plaintiff was intoxicated at the time, citing, as habit evidence, four convictions for public intoxication that occurred over three years. The Fifth Circuit held that this evidence was too infrequent and volitional to constitute a habit of public intoxication. Id. at 795.
But in Loughan, 749 F.2d at 1519, the court allowed evidence showing that the plaintiff frequently drank on the job for the argument that he had been intoxicated when the accident occurred. The evidence consisted of proof that the plaintiff always carried a cooler of beer in his truck and that he would drink during working hours. In addition, there was evidence that customers complained about his drinking and one time he was fired for it. The Eleventh Circuit affirmed the district court’s ruling permitting the evidence even though the plaintiff and his supervisor testified that the plaintiff had not been drinking on the date of the accident.
Lastly, there are some cases in which the courts simply agree that prior conduct, no matter its frequency, is never a habit or routine practice. Courts have repeatedly held, for example, that evidence that a defendant has breached contracts with others cannot be admitted to show that a defendant has a habit or routine business practice of breaching contracts (and thus breached its contract with the plaintiff). In one case, for example, the Seventh Circuit Court of Appeals held that evidence of a defendant’s breach of contracts through late deliveries and defective performance was not habit or routine-practice evidence that could be used to show that the defendant similarly breached its contract with the plaintiff. The court reasoned:
We are extremely dubious of Diversified’s contention that late and inadequate performance of other contracts approaches the level of specificity necessary to be considered semi-automatic conduct. Our reluctance is sustained by the numerous but clearly distinguishable cases cited by Diversified . . . Each case involves specific, particularized conduct capable of almost identical repetition. Conversely, the production of defective products could take an endless variety of forms. . . . Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger . . . of prejudice and confusion.
Simplex, Inc., 847 F.2d at 1294 (internal citations and quotations omitted); see also G.M. Brod & Co. v. U.S. Home Corp., 759 F.2d 1526, 1532–33 (11th Cir. 1985) (excluding evidence of other contract breaches “when considered in the light of Home’s contractual dealings with thousands of small subcontractors and the significant differences between the types of contracts involved and the course of dealing required of them”).
Religious practices are similarly not a habit or routine practice due to their volitional nature. In one of the most commonly cited habit cases, Levin v. United States, 338 F.2d 265 (D.C. Cir. 1964), the defendant wanted to argue to the jury that he could not have accepted an illicit payoff on a street corner in Washington, D.C., on a Friday afternoon because he was an Orthodox Jew and had a habit of being at his home in Long Island observing the Sabbath on Friday afternoons. The court disagreed, holding the evidence was inadmissible:
[A]n individual’s religious practices would not be the type of activities which would lend themselves to the characterization of invariable regularity. Certainly the very volitional basis of the activity raises serious questions as to its invariable nature.
Id. at 272.
Habit evidence is “highly probative and persuasive.” Mobil Exploration & Producing U.S., Inc., 45 F.3d at 99. It can be a useful tool in the trial lawyer’s toolbox. But attorneys should be aware of concerns by courts that Federal Rule of Evidence 406 is being used as a backdoor for improper character evidence, and they should be sure, when proffering the evidence to the court, to satisfy the requirements for admission.
