TBA Law Blog

Posted by: Donald Paine on Sep 7, 2011

Journal Issue Date: Aug 2011

Journal Name: August 2011 - Vol. 47, No. 8

We are all creatures of habit. Evidence Rule 406 admits habit as relevant to prove conforming conduct.

(a) Evidence of the habit of a person, or animal, or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person, animal, or organization on a particular occasion was in conformity with the habit or routine practice.
(b) A habit is a regular response to a repeated specific situation. A routine practice is the regular course of conduct of an organization.

Note that Rule 406 differs from other relevance rules (404-412) because it is one of admissibility rather than exclusion. Let’s look at some examples in caselaw.

Perhaps the best authority to cite for animal habit is Judge Daughtrey’s opinion in State v. Barger, 612 S.W.2d 485 (Tenn. Crim. App. 1988). Bloodhound Clayboy sniffed burglar Barger’s shirt and shoe and led his handler to a rifle and shotguns and toolbox and camera equipment stolen from the home of a vacationing owner. The evidence was relevant and admissible because of the “expertise” of Clayboy. Material criteria are: pure blood, proper training, history of reliability, placing dog at a reliable point on trail, and placing him there within a “period of efficiency.” One grins to read defense counsel’s objection that the Confrontation Clauses were violated by the impossibility to cross-examine Clayboy. No problem, ruled the court, because the handler can be examined.

Now let’s explore human habit evidence, first in the habitual criminal prosecution opinion of Taylor v. State, 814 S.W.2d 374 (Tenn. Crim. App., Birch, 1991). James Taylor claimed some guilty pleas were invalid because the judge did not explain his rights. That judge was called as a witness. Obviously he could not recall every guilty pleader in his career, but he testified that “his habit was always to inform an accused of his constitutional rights … before accepting a plea of guilty.” That proof carried the day.

For a civil action on human habit let’s consider an example in the Mueller and Kirkpatrick Evidence treatise (Third Edition) at pages 225-226. Testimony that a driver always fastens his seatbelt before starting the car is admissible habit evidence. Your author can identify with that; I buckle up even if merely moving from one parking spot in front of my apartment to the space “Reserved for Long Term Resident 09/19/74.”

Habit evidence is a useful trial tool. Use it to benefit your clients.

Don Paine Donald F. Paine is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.