Evidence Quick Tip: Character v. Habit

The topic of character evidence and habit evidence is a law school and bar exam favorite. Maybe it’s because this topic is often misunderstood and easily testable. Maybe it’s because the topic is regularly implicated in real-life litigation. Whatever the reason, it’s important to understand the fundamentals of character and habit evidence.

One of the easiest ways to frame a discussion of character versus habit evidence draws on an elementary-school grammar concept—the difference between nouns and verbs. You’ll recall that, in simple terms, nouns are words that identify people, places, and things. By contrast, verbs are words indicating actions, occurrences, and states of being.

In evidence law, character evidence functions like a noun. It describes who a person is—a con artist, an honest Abe, or perhaps a serene presence.

Alternatively, habit evidence functions like a verb. It describes what a person does—walks the dog, signs documents with a fountain pen, rolls through stop signs.

The distinction between character evidence and habit evidence is an important one because, generally speaking, Rule 404 of the Federal Rules of Evidence prohibits the use of character evidence to prove that on a particular occasion, a person acted in conformity with that character (what’s often called “propensity” or “proclivity” evidence). Conversely, Rule 406 permits the use of habit evidence to prove that a person acted in conformity with that habit.

The reason for this very different treatment of seemingly similar evidence is quite sensible. It’s not necessarily the case that a person with a particular character trait always acts in accordance with that trait. For example, a violent person doesn’t always act violently. Thus, evidence of a person’s character isn’t necessarily especially probative of the fact that the person acted in a particular way in a specific situation.

On the other hand, if some act is a person’s habit, it’s more likely than not that the person acted in accordance with that habit on a particular occasion. For example, if a person walks her dog every morning at 6:30 a.m., there’s a pretty good likelihood that on any given day, the person walked her dog at 6:30 a.m.

Therefore, habit evidence is more probative than character evidence when it comes to proving that a person behaved a certain way.
 

Because the Federal Rules of Evidence establish very specific and distinct parameters for the admission of character evidence versus habit evidence, it’s important to be able to distinguish between these 2 types of evidence. Unfortunately, the line between them is often blurry.
 
Simply put, the more specific and more regular conduct is, the more likely a court will consider that conduct a habit rather than a character trait. Therefore, if the evidence demonstrates a person’s customs or standard response to a given, recurring situation or event, it probably qualifies as habit evidence. So, be on the lookout for behavior that seems reflexive or automatic, because it may be habit evidence.
 
Once you’ve determined that a piece of evidence is either character evidence or habit evidence, you can apply the rules governing how and for what purposes the evidence may be admitted.

So, remember—evidence that your uncle is a finicky eater is character evidence because it describes who he is. Accordingly, the evidence is typically inadmissible to prove that, because he’s a finicky eater, your uncle did not eat the exotic musk-ox and kumquat salad served at the gala, demanding a turkey and cheese sandwich instead.
 
However, evidence that your uncle has eaten a turkey and cheese sandwich every single day of his life since Richard Nixon was president is habit evidence because it describes what he always does. Accordingly, the evidence is admissible, even without corroboration, to prove that last Thursday, he ate a turkey and cheese sandwich.

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