The character evidence rule bars evidence of a propensity to show  the doing of an act. However, habit may be shown to show the doing of an act. See FRE 406.

When habit is used to show the doing of an act, it looks a lot like a propensity; a habit looks a lot like a character trait.

The Advisory Committee, however, thought that character and habit are different.

Habit, it said, differs in the following respects:

1. It is more specific than character; and

2. Habit is semi-automatic
 

Classic illustrations of habit are:

turning right at a particular intersection every day at the same

time, taking every other step on the stairs, scratching one's head, and the like

Ask yourselves whether the Advisory Committee's grounds for distinguishing habit and character work. Think about that when you think about the Levin case in your Handout.

In the meantime, consider these points:

1. Habit need not be invariable to be habit. But it must be reular to be habit. How regeular must a behavior pattern be before it is "habit"?

2. Some common law cases said that habit evidence is admissible only when there is no eyewitness evidence. A kind of better evidence rule. FRE 406 rejects this requirement.

3. Some CL cases said that habit evidence is admissible only if it is corroborated. FRE 406 rejects a corroboration requirement.

...
 

Suppose D is charged with negligent manslaughter or vehicular homicide: it is alleged that he killed a pedestrian while driving while drunk.

Victim was killed at intersection of Route 537 and Paint Island Spring Road at 12:30 on November 25, 1984. The car that killed him was a maroon 1979 Olds. Later investigation established that it was DD's car that killed VV. Other evidence shows that only DD drove this car and that DD had been at Joe's Bar on the night of the accident. Joe's Bar is about 6 miles from the scene.

Thus, the evidence established that DD was the driver of the car that night. The question is whether or not DD was intoxicated. No breathalyzer or similar test was done because DD fled the scene and was not arrested until a year later

on Rte. 20 between Evidence shows that it was DD's
 
 

I will have quite a bit more to say about habit evidence later.

I have considerable difficulty with these popular ways of distinguishing habit from character.

First, evidence of a character trait may also be quite specific.
For example, evidence of the reputation of the defendant for embezzling money from his employer. This disposition is
specific, I think, but it is inadmissible.

Second, I do not think that habits of the sort mentioned are "automatic." A person may change habitual behavior. Moreover, I
think that the qualifier "semi" is a weael word that deprives this attempted distinction of its force; the habit of turning right is no more automatic than the habit of embezzling money.

Nonetheless, habit is admissible. The reason it is admissible is simple: the courts believe that certain evidence of certain types
of propensities is particularly probative. I agree that evidence of certain types of propensities is exceptionally probative and
should be admitted.

Given my agreement with the result, does it matter that I believe that the popular explanations for the admuissibility of habit evidence are wrong?

I think so. These explanations can lead courts astray.

Consider a case called Levin v. United States, noted at CB 1068. There the defendant was charged with accepting a bribe on a Saturday in a hotel. The defendant was Jewish and offered to show that in accordance with his religiousÜj