Rule 406  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.
[L 1980, c 164, pt of §1]



 



RULE 406 COMMENTARY



 



  This rule is identical with Fed. R. Evid. 406, the Advisory
Committee's Note to which says:  "Character and habit are close akin. 
Character is a generalized description of one's disposition, or of one's
disposition in respect to a general trait....  A habit, on the other hand, is
the person's regular practice of meeting a particular kind of situation with a
specific type of conduct, 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, or of
alighting from railway cars while they are moving....  When disagreement has
appeared, its focus has been upon the question what constitutes habit, and the
reason for this is readily apparent.  The extent to which instances must be
multiplied and consistency of behavior maintained in order to rise to the
status of habit inevitably gives rise to differences of opinion....  While
adequacy of sampling and uniformity of response are key factors, precise
standards for measuring their sufficiency for evidence purposes cannot be
formulated."



 



Case Notes



 



  Proffered testimony that defendant had a "habit" of
speeding defendant's motorboat in marina and in channel over several days prior
to accident constituted character evidence of prior bad acts, which was
inadmissible under rule 404(b), and not habit evidence, which was admissible
under this rule.  77 H. 446 (App.), 887 P.2d 656.