Rule 406. Habit; Routine Practice

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.

Comment

This rule tracks F.R.E. 406.

The Committee believes that although this rule permits the admissibility of

habit, evidence of habit should be admitted only after careful consideration by

the court of whether the conduct is in fact a habit. See the examples set forth

in the United States Supreme Court Advisory Committee’s note to F.R.E.

406(a).

The Committee rejected U.R.E. Rule 406(b) (not contained in F.R.E.). The

Committee believed, as did Congress, that the method of proof of habit and

routine practice should be left to the courts on a case-by-case basis and

therefore U.R.E. 406(b) should not be adopted.

For prior Delaware case illustrating the law covered by this rule, see

Wilmington City Ry. v. White, Del. Supr., 66 A. 1009 (1907).

D.R.E. 406 was amended in 2017 in response to the 2011 restyling of the

Federal Rules of Evidence. The amendment is intended to be stylistic only.

There is no intent to change any result in ruling on evidence admissibility.