Evidence Code

ORS 40.180
Rule 406

(1)

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(2)

As used in this section, “habit” means a person’s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct. [1981 c.892 §21]

Notes of Decisions

Admissibility of habit evidence is within discretion of trial court. Charmley v. Lewis, 77 Or App 112, 711 P2d 984 (1985), aff’d302 Or 324, 729 P2d 567 (1986)

Plaintiff’s regular practice of crossing particular intersection within unmarked crosswalk was admissible evidence of habit, as it was evidence of frequent and invariable or consistent response that was specific and distinctive. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

Behavior can only achieve status of habit under this rule if situation giving rise to it reasonably could be responded to in variety of ways, each having unique characteristics by which it can be readily distinguished. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

“Distinctive” requires that behavior at least be semi-automatic and recurring response, beyond mere obedience to law, by actor confronted with particular situation to which variety of definable responses would be more or less equally reasonable. Charmley v. Lewis, 302 Or 324, 729 P2d 567 (1986)

Source

Last accessed
Mar. 11, 2023

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