Evidence of habit may be admitted to prove that a person acted in conformity with the habit on a specific occasion. On the other hand, character evidence, which seeks to show that a person behaved in a particular way based simply on alleged character traits, is inadmissible. Whether evidence is inadmissible character or admissible habit turns on the specific facts of the proffer.
The Appellate Division recently examined the evidentiary rules that address character versus habit proofs in L.T. v. F.M. In that case, the plaintiff sought damages for domestic violence injuries from her former partner. The complaint addressed three separate instances of alleged abuse. However, she sought to introduce evidence of a fourth alleged incident.
The trial court allowed plaintiff to introduce evidence of the fourth incident on the grounds that it was offered to describe a “tendency” to act in a certain way. The plaintiff and defendant had had an eight year relationship. The incidents in question had occurred within the last year of their relationship. The judge concluded that there had been “multiple acts of domestic violence” and that this was sufficient to show habit.
The appellate court disagreed. Habit evidence requires something more than a “mere tendency.” There must be specific proof of regularity to demonstrate a routine practice of the event in question. The conduct must be “semi-automatic” in nature. Thus, the evidence of a fourth incident should have been excluded.
Thanks to Steve Kim for his contribution.