Rule 406. Habit; routine practice

Habit; routine practice. 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.

Committee Notes

Advisory Committee’s Notes This rule is identical to Rule 406 of the Federal Rules of Evidence. The principle of relevancy expressed in this rule constitutes an exception to the general provision in Ala.R.Evid. 404(a) that character is not provable as a basis from which to infer how one acted on a particular occasion. A specialized application of the general exclusionary rule precludes the admission of evidence of a person’s prior acts offered to prove that the person is of a certain character and acted in keeping with that character on a particular occasion. If these collateral acts, however, are of sufficient similarity and repetition to constitute a habit, then Rule 406 makes them admissible to prove conduct on a particular occasion. This rule regarding habit is consistent with preexisting Alabama law. See Dothard v. Cook, 333 So.2d 576 (Ala.1976); C. Gamble, Character Evidence: A Comprehensive Approach 13 (1987); C. Gamble, McElroy’s Alabama Evidence § 42.01 (4th ed. 1991). Equivalent collateral conduct of an organization, sometimes designated at common law as “custom,” is referred to in this rule as “routine practice of an organization.” Such organizational practice, consistent with preexisting Alabama law, is relevant to prove conduct on the occasion being litigated. Ex parte McClarty Constr. & Equip. Co., 428 So.2d 629 (Ala.1983). Rule 406 offers no precise standard for determining how many times an act must be repeated, or how consistently behavior must be shown, in order for the act or the behavior to attain the status of habit. The committee assumes that the judiciary will continue to emphasize the concept that “habit” requires a regular response to a repeated situation. See Pacific Mut. Life Ins. Co. v. Yeldell, 36 Ala.App. 652, 62 So.2d 805 (1953); Wilson v. Volkswagen of Am., Inc., 561 F.2d 494 (4th Cir. 1977), cert. denied, 434 U.S. 1020 (1978). As Professor McCormick so perceptively observed: “A habit... is the person’s regular practice of meeting a p