Delaware Trial Handbook § 20:5. EVIDENCE OF HABIT OR ROUTINE PRACTICE
Evidence of the habit of a person or the routine of an organization is admissible to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.43 To establish habit or routine, a witness must testify as to personal knowledge of the habit or routine in question.44 Corroboration of the witness’s testimony as to habit or routine is not necessary.45 Proof of the habit or routine serves as evidence that a person performed a specific act, whether or not such testimony is bolstered by eyewitnesses to the performance of the act.46
The trial court should admit evidence of habit or routine only after careful consideration of whether the conduct in question is in fact a habit or routine.47 For behavior to constitute a habit, the evidence must show semi-automatic conduct that is capable of constant repetition.48 The method of proof of habit is left to the trial courts to determine on a case-by-case basis.49
Evidence that a habit or routine is not always followed is admissible to rebut a claim that such habit or routine is always followed.50
Courts generally apply a more liberal standard to evidence of office routine than they apply to evidence of personal habit because there is no concern that the evidence could be used improperly as character evidence. Nevertheless, to be admissible, the office routine must be relatively simple, involve little judgment, and not be “susceptible to too much variation.51
43. D.R.E. 406. See also Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 385 (Del. Ch. 1984).
44. Rochen v. Huang, C.A. No. 87C-JN-96, slip op. at 11, Gebelein, J. (Del. Super. Jan. 6, 1989).
45. D.R.E. 406; Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 385 (Del. Ch. 1984).
46. D.R.E. 406.
47. D.R.E. 406, comment; Oberly v. Howard Hughes Medical Inst., 472 A.2d 366 (Del. Ch. 1984). See also Marvel v. State, No. 106, 1990, slip op. at 5, Walsh, J. (Del. Jan. 25, 1991) (ORDER), disposition reported at 587 A.2d 454 (Del. 1991) (TABLE) (one prior instance of conduct is insufficient to establish a habit).
48. Smith v. State, 813 A.2d 1197, 1229 n. 71 (Del. 2006); Brown v. Liberty Mutual Ins. Co., 774 A.2d 232, 243 (Del. 2001); Brett v. Berkowitz, 706 A.2d 509, 516 (Del. 1998).
49. D.R.E. 406, comment; Oberly v. Howard Hughes Medical Inst., 472 A.2d 366, 385 (Del. Ch. 1984).
50. Rochen v. Huang, C.A. No. 87C-JN-96, slip op. at 11-13, Gebelein, J. (Del. Super. Jan. 6, 1989).
51. Brown v. Liberty Mutual Ins. Co., 774 A.2d 232, 243 (Del. 2001).
© 2010 David L. Finger