As alluded to in a previous post, evidence of a person’s habit (or an organization’s routine practice) is considered separately from character evidence. Where character evidence is a generalized description of one’s disposition, habit is a regular response to a repeated, specific situation. Minnesota Rule of Evidence 406, Advisory Committee Comment.
Questions used to determine whether particular behavior qualifies as a habit include whether the response is sufficiently regular and whether the specific situation has been repeated enough to create a habit. Id.; see also Ture v. State, 681 N.W.2d 9, 17 (Minn. 2004). Evidence of driving behavior in particular is often difficult to categorize as habit rather than character evidence. See Busch v. Busch Const., Inc., 262 N.W.2d 377, 390 (Minn. 1977).
Even if determined relevant under Rule 406, habit evidence must also pass the Rule 403 balancing test before it will be admitted. The evidence that may be admitted to show habit or routine practice is left to the trial court’s discretion. See Department of Employment Sec. v. Minnesota Drug Products, Inc., 104 N.W.2d 640 (Minn. 1960).