Evidence Rule 406


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Evidence Rule 406 -- Habit; Routine Practice
State v. Sidibeh, 192 Ohio App. 3d 256, 2011-Ohio-712, ¶30 – Jury was instructed testimony concerning past compliance with an 11:00 curfew could not be construed as establishing habit. Counsel failed to object, and had earlier claimed he was trying to refresh the testimony of a witness.
State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶105-137 -- State was properly allowed to introduce evidence that it was the habit of a homicide victim to keep friends and family aware of her whereabouts through almost daily telephone calls, e-mails and notes.
State v. Reed (1996), 110 Ohio App. 3d 749 -- Habit is to be distinguished from character, habit being a regular, automatic, response to a repeated situation. Claim that a witness habitually made false accusations to bring about a change of residence amounted to impermissible character evidence rather than evidence of habit.
Cannell v. Rhodes (1986), 31 Ohio App. 3d 183 -- In a suit over legal fees the court excluded testimony of other clients that the lawyer had not discussed his hourly fee. At p. 185: "Evidence of habit or routine must show that the person or organization engaged in behavior regularly enough to make it probable that he or it behaved that way on this occasion. The proposed testimony would not have demonstrated such regularity with substantial reliability. At best it would have shown a few instances of the conduct."
Carter v. Simpson (1984), 16 Ohio App. 3d 420, -- "A few episodes of excessive use of force (by a police officer, reflected in his personnel file), whether provable or not, do not constitute proof of a regular practice of meeting a particular kind of situation with a specific type of conduct so that the conduct becomes semi-automatic." If admissible at all, such incidents would come in under Evid. R. 404(B).
Bolan v. Adams (1984), 19 Ohio App. 3d 206 -- Headnote: In order for evidence of habit to be admissible under Evid. R. 406, the testimony in question must establish a regular or routine practice. Evidence as to one or two isolated occurrences does not establish a sufficiently regular practice."
Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App. 3d 181 -- Proposed testimony by other patients who felt they had been cajoled into unnecessary surgery did not rise to level of habit. Admission would have defeated purpose of Evid. R. 404(B), generally prohibiting admission of other acts to prove a person acted in conformity with those acts.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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