Chapter 17: Custom and Habit ^[1]

MRE 406  Habit; 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.

I.   Explanation

§17.1   MRE 406 allows the admission of circumstantial evidence to prove that a customary act was performed by X even if such evidence is not corroborated and no eyewitness saw X perform the act. This rule is a very narrow exception to the general rule that character or reputation evidence is inadmissible for the purpose of proving conduct in conformity with that evidence on a specific occasion. See chapter 10, Character Evidence; chapter 55, Reputation; and chapter 45, Other Acts.

It is often difficult to distinguish between character and habit evidence. But because such evidence is highly persuasive, close attention should be paid to the specific requirements of “habit”:

Character is a generalized description of a person’s disposition …. Habit … denotes one’s regular response to a repeated situation … [a] person’s regular practice of responding to a particular kind of situation with a specific type of conduct … [such as] the habit of bounding down a certain stairway two or three steps at a time ….

McCormick, Evidence §195, at 291 (5th ed 1999).

If an activity is more volitional than automatic, it is less likely to be a “habit” within the meaning of MRE 406. Levin v United States, 338 F2d 265, 272 (DC Cir 1964), cert denied, 379 US 999 (1965) (citing “Chamberlayne, Modern Law of Evidence § 3204, p 4433”).

A habit is a “set pattern or … something that is done routinely or has been performed on countless occasions.” Laszko v Cooper Labs, Inc, 114 Mich App 253, 256, 318 NW2d 639 (1982); Hoffman v Rengo Oil Co, 20 Mich App 575, 576, 174 NW2d 155 (1969)). It is this invariable regularity of a true habit that safeguards its trustworthiness. But see Durbin v K-K-M Corp, 54 Mich App 38, 220 NW2d 110 (1974) (holding that it was within court’s discretion to disallow plaintiff’s testimony regarding her deceased husband’s drinking habits as testimony would have been self-serving).

MRE 406 allows for the admissions of evidence of the “an organization’s routine practice.” But organizational habits must meet the same standards as personal habits. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 405 NW2d 88 (1987); Grazia v Sanchez, 199 Mich App 582, 502 NW2d 751 (1993); McKain v Moore, 172 Mich App 243, 431 NW2d 470 (1988); Green v Gallucci, 169 Mich App 533, 426 NW2d 693 (1988) (habit or routine of hospital in admitting patients). A witness testifying to an organization’s routine practice “must be able to testify that the practice has been performed on countless occasions. To do this, the witness must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning the routine practice.” Laszko, 114 Mich App at 256.

A variety of activities have been held to be habits or routine practices and therefore admissible into evidence. Petraszewsky v Keeth, 201 Mich App 535, 506 NW2d 890 (1993) (plaintiff’s daily alcohol consumption as stated by plaintiff); Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987) (medical technologist’s routine identification and labeling procedures for blood samples); Strach v St John Hosp Corp, 160 Mich App 251, 408 NW2d 441 (1987) (doctor’s routine practice in giving choice of hospital); Kovacs v Chesapeake & Ohio Ry Co, 134 Mich App 514, 351 NW2d 581 (1984), aff’d, 426 Mich 647, 397 NW2d 169 (1986) (decedent’s habit of approaching railroad crossings in prudent manner).

“Habit” or “routine practice” evidence is admissible to show that actions did not occur as well as that they did occur, provided that the proper foundational requirements are met. See, e.g., People v Unger, 278 Mich App 210, 227, 749 NW2d 272 (2008) (applying MRE 406 to hold that, “[g]iven the victim’s lifelong fear of the dark and her routine avoidance of the outdoors at night, a rational jury could have concluded that the victim would not have voluntarily stayed on the boathouse deck alone after dark and that defendant had therefore fabricated his account of the events leading up to the victim’s death”).This method of showing nonactivity is similar to the manner in which MRE 803(7) and (10) may be used to show the nonoccurrence of an event. See chapter 40, Negative Records.

For further discussion and citation to cases, see MRE 406 in Kevin M. Carlson et al, Michigan Courtroom Evidence Annotated (ICLE 6th ed), and James K. Robinson et al, Michigan Court Rules Practice: Evidence (2d ed 2002).

II.   Foundation Requirements

§17.2  

1. The witness testifying regarding a custom or habit must have personal knowledge of the customary practice.
2. The witness must be able to testify that the practice exists, that it has been performed on numerous occasions, and that it is the invariable response to a particular set of circumstances.
3. The witness must testify that the particular set of circumstances that invoked this invariable response did, in fact, occur.
4. The witness believes that the habitual act was, therefore, performed on the occasion in question.

III.   Sample Examination of Witness

§17.3