⚡ 10-Second Rule
Proof that someone always does one specific thing the same exact way can show they did it this time.
🧒 ELI-10 Scene
Every school morning for three years, Grandpa Joe locks the back door, jiggles the handle twice, and pockets the key. Nobody watches him anymore. Ask his granddaughter: did he lock it last Tuesday? "Of course." She isn't saying Grandpa is a careful person. Careful people still forget things. She's describing one exact move, repeated so often it runs on autopilot, like brushing teeth. Autopilot moves are believable. Vague compliments like "he's responsible" are not.
⚖️ Actual Rule
Federal Rule of Evidence 406 provides: "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." Habit means a regular, specific, semi-automatic response to a particular repeated situation; character is a generalized disposition, such as carefulness, and character evidence offered to prove conduct on a particular occasion is generally barred by FRE 404(a)(1): "Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." NEEDS HUMAN VERIFICATION — confirm the verbatim text of restyled FRE 404(a)(1); the habit/character distinction itself is settled. An organization's routine practice — a standard, regularly followed procedure — is treated the same way as an individual's habit. [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
ELI-10 translation: "she always does exactly this, in exactly this spot" comes in; "she's a careful person" stays out.
🔍 Ask These Questions
- Is the evidence about a specific act in a specific situation? ("Always buckles the seatbelt before starting the car" is specific; "drives safely" is not.)
- Is the response regular and repeated — near-automatic? (Has it happened so many times it runs without thinking?)
- Or is it really a general trait — careful, honest, peaceful? (A personality compliment is character, and character is the banned path.)
- Is the actor an organization? (A company's standard operating procedure — mail always stamped and sent at five — counts as routine practice.)
- Is someone objecting for lack of corroboration or an eyewitness? (FRE 406 says neither is required — that objection loses.)
- Does the evidence still survive FRE 403? (Even true habits can be excluded if they'd mostly confuse or inflame the jury.)
⚠️ Bar Trap
Exam language: Examiners dress character up in habit's clothing — a witness testifies the defendant was "a cautious driver" or "always careful" — and bait you into admitting it under FRE 406. The mirror trap dresses habit as character: a genuinely specific, invariable routine gets a distractor calling it "inadmissible propensity evidence," or an answer choice demands corroboration or an eyewitness, which FRE 406 expressly does not require.
ELI-10: Listen for the zoom level. A zoomed-in, exact, every-single-time move is habit and comes in. A zoomed-out compliment about someone's personality is character and stays out. And nobody needs a second witness to back up a habit.
🧪 Question
The estate of a driver killed at a rural railroad crossing sued the railroad, which contends the driver negligently failed to stop before crossing the tracks. No one witnessed the collision. At trial, the estate calls the driver's carpool passenger, who testifies that she rode with the driver over that same crossing every workday for four years, and that he came to a complete stop and looked both ways at that crossing every single time. The railroad objects.
Should the court admit the testimony?
(A) No, because it is character evidence offered to prove the driver acted in conformity with a careful disposition. (B) No, because habit evidence is inadmissible without an eyewitness to the occasion in question. (C) Yes, because it describes a specific, regular practice tending to show the driver stopped on this occasion. (D) Yes, because a decedent's character for carefulness is admissible when the decedent cannot testify.
Answer: (C). Stopping and looking both ways at one particular crossing, every workday for four years, is a specific, repeated, semi-automatic response to a defined situation — habit under FRE 406 — admissible to prove conforming conduct on the day of the collision, with no corroboration or eyewitness required.
💡 Why the Wrong Answers Are Wrong
- (A) mislabels the evidence; a particularized, invariable routine at one crossing is habit, not a generalized trait of carefulness.
- (B) contradicts FRE 406's second sentence, which admits habit evidence regardless of corroboration or the presence of an eyewitness.
- (D) reaches the right result through a banned door; character evidence to prove conforming conduct is generally inadmissible in civil cases, and no decedent exception exists.
- ELI-10: The misconception is confusing "he always did exactly this, right here" with "he was a careful guy." The exact repeated move wins; the personality compliment loses.
