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.

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general

restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee

Note.”

Advisory Committee Note

The language of Rule 406 has been amended as part of the restyling of the

Evidence Rules to make them more easily understood and to make style and

terminology consistent throughout the rules. These changes are intended to be

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

admissibility.

Habit is considered to be an individual’s usual method or manner of doing

things. Routine practice refers to a group or institution’s habit. See McCormick,

Evidence, 3rd Ed., 162. Thus, we speak of a person’s habit and the routine practice

or custom of an institution. Mississippi has long recognized that under appropriate

circumstances habit and custom are relevant evidence. Under Rule 406, evidence

of habit or routine practice can be used as circumstantial evidence. A party may

introduce evidence of a person’s habit to imply that he probably acted in this

instance in conformity with his habit.

In Mississippi under the common law such evidence would be inadmissible

if there were no eyewitnesses. Rule 406 specifically provides to the contrary. See

FRE 406, Advisory Committee Note.

The evidence that a business acted in conformity with its routine practice is

relevant. Of course, rebuttal is always permitted.

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016;

amended July 1, 2016, to note restyling.]