FRE 406

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Halloran v. Virginia Chemicals Inc.

41 N.Y.2d 386 (App. Ct. 1977).

Halloran was a mechanic that would treat air-conditioning units by installing refrigerant in the unit. These cans were manufactured by the defendant. Upon install on a particular occasion, the can had difficulty emptying into the vehicle. Halloran attempted to heat up the can to ease the flow. When he inserted the can again into the car with no change, he realized too late that the pressure was increasing and the can exploded causing his injuries.

At trial, the defendant sought to produce evidence that Halloran had a habit of heating up the cans in an unsafe manner which would have resulted in the explosion. This evidence was denied and Halloran obtained a verdict in his favor.

The appellate court reversed the decision, stating that the defendant ought to have the opportunity to show past actions if they could show that Halloran had regularity and predictability engaged in the conduct. One instance is not going to cut it. So, the case is remanded to determine how many times the plaintiff engaged in the conduct.

Additional Notes

This evidence is generally admissible because there is usually no moral connotations with it. Sure, smoking is bad, but a jury is not likely to see a smoker as a bad person. This can become a little more difficult though when the habit is one of violence or heavy drinking. As such, rule 406 seems generally to apply to those circumstances that are more routine and innocuous.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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