703.6Habit or Routine Practice [Rule 406]

The Basic Rule

Rule 406 – Habit; Routine Practice

G.S. 8C-406.

Legal Overview

Evidence of a habit or routine practice differs from ordinary character evidence. Habit evidence involves a more specific showing, which is offered as substantive evidence in the case, and is generally viewed as being more probative and less prejudicial than ordinary character evidence. See G.S. 8C-406, Official Commentary (“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 […]. The doing of the habitual acts may become semi-automatic. […] Agreement is general that habit evidence is highly persuasive as proof of conduct on a particular occasion”). See, e.g., State v. Tappe, 139 N.C. App. 33 (2000) (chemical analyst’s testimony about routine practices and procedures used by himself and others at the testing facility was admissible to establish that defendant’s breath test, conducted 10 years earlier, was properly administered); State v. Howell, 335 N.C. 457 (1994) (habit evidence admissible to establish an element of the offense); State v. Simpson, 299 N.C. 335 (1980) (testimony from nursing home employee that it was her “custom” to keep windows and screens of the home closed was relevant and competent evidence against defendant in a breaking and entering case). 

To constitute a “habit,” the activity must be regular and systematic. State v. Anthony, 354 N.C. 372 (2001) (“the instances of specific conduct must be sufficiently numerous and regular to warrant an inference of systematic conduct and to outweigh the danger, if any, of prejudice and confusion”).

To make that determination, the judge will consider the following factors:

Number of Occurrences

The more often that an activity or behavior has occurred, the more likely it is to be deemed a habit. Conversely, an activity that has happened a limited number of times is less likely to qualify as a habit. See State v. Fair, 354 N.C. 131 (2001) (“To rise to the level of habit, the instances of specific conduct must be sufficiently numerous to warrant an inference of systematic conduct and to establish one's regular response to a repeated specific situation.”) (internal quotation omitted). Compare State v. Griffin, 136 N.C. App. 531 (2000) (state offered evidence that the defendant in a murder case, who was a police officer, “frequently” ran the license numbers of attractive females to obtain personal information about them: “The evidence produced by the State was relevant to showing that defendant had a habit with which he conformed on the morning of 29 March 1997”) with State v. Chavis, 141 N.C. App. 553 (2000) (defendant’s evidence that victim falsely reported sexual assaults to obtain a pregnancy test on two prior occasions, which happened two years apart, did not show a habit).

Regularity of Behavior

In addition to occurring with some degree of frequency, the behavior must also occur on a regular and systematic basis in order to qualify as a habit. Compare State v. Palmer, 334 N.C. 104 (1993) (sister’s testimony that the murder victim “always” carried $20 or $40 on her person was admissible as habit evidence, because it demonstrated a “regular response to a repeated specific situation”) and State v. Williams, 680 S.E.2d 903 (N.C. App. 2009) (unpublished) (witness’s testimony that he saw defendant once or twice a week for four years, and defendant “always carries a knife with him” was sufficient to show defendant’s habit) with State v. Fair, 354 N.C. 131 (2001) (fact that victim visited adult-oriented stores two or three times each month did not establish a “habit” of visiting those stores: “[o]ccasional visits to a store do not rise to the level of regular and systematic conduct”).

Similarity of Behavior

Finally, the behavior offered as evidence of habit must be sufficiently similar to the alleged conduct at issue in order to be relevant. Compare State v. Tappe, 139 N.C. App. 33 (2000) (chemical analyst’s testimony about the “customary required procedures routinely utilized by himself and other chemical analysts” at the testing facility was admissible to establish that defendant’s breath test, conducted 10 years earlier, was properly administered in the same way) with State v. Hill, 331 N.C. 387 (1992) (evidence of defendant’s general history of drug and alcohol use was insufficient to establish a “habit” for purposes of proving his impairment at the time of the murder: “mere evidence of intemperance ordinarily does not meet the ‘invariable regularity’ standard required of evidence of habit”)

Admissibility and Proof

To decide whether proffered evidence is admissible as a “habit,” the trial judge exercises his or her discretion and makes a case-by-case evaluation of the three factors described above. See State v. Fair, 354 N.C. 131 (2001); State v. Chavis, 141 N.C. App. 553 (2000). The judge should conduct a voir dire hearing and evaluate the proposed testimony outside the presence of the jury before making a ruling. See State v. Fair, 354 N.C. 131 (2001); Crawford v. Fayez, 112 N.C. App. 328 (1993) (“Before evidence of specific instances of conduct may be admitted to prove habit, however, the trial court must make certain inquiries to determine the reliability and probative value of the proffered evidence.”). The rules of evidence (except as to privilege) generally do not apply at such a hearing, because the hearing is a preliminary determination on the admissibility of other evidence. See G.S. 8C-104; 1101. If the prosecutor anticipates offering habit evidence at trial, he or she may wish to file a motion in limine raising this issue before trial.

Even if the habit evidence is otherwise admissible, the judge may still exclude it under Rule 403 if he or she determines that the probative value of the evidence is outweighed by the risk of unfair prejudice, confusion, or delay. See G.S. 8C-403; Crawford v. Fayez, 112 N.C. App. 328 (1993) (“The instances must be sufficiently regular or the circumstances sufficiently similar to outweigh the danger, if any, of prejudice and confusion.”).

Habit may be proved through opinion testimony or by examples of specific conduct, as long as the testifying witness demonstrates an adequate foundation for his or her opinion, or had sufficient opportunities to observe the conduct. See State v. Tappe, 139 N.C. App. 33 (2000) (witness must be “sufficiently familiar with a person's conduct to conclude that the conduct in question is habitual”); Crawford v. Fayez, 112 N.C. App. 328 (1993) (“From our review of the foregoing authorities, we are persuaded that Rule 406 permits proof of habit by evidence of specific instances of conduct”).

Corroboration and other extrinsic proof of the alleged habit is not required. Rule 406 specifically notes that habit evidence is admissible “whether corroborated or not and regardless of the presence of eyewitnesses.” G.S. 8C-406.

The judge’s decision to admit or exclude evidence of habit is subject to an abuse of discretion standard on review. See State v. Fair, 354 N.C. 131 (2001); State v. Chavis, 141 N.C. App. 553 (2000); Crawford v. Fayez, 112 N.C. App. 328 (1993).