TITLE FOUR — RELEVANCY AND ITS LIMITS
Rule 406. Routine Practice of a Business; Habit of an Individual
Routine Practice of a Business. Evidence of the routine practice of a business organization or of one acting in a business capacity, if established through sufficient proof, may be admitted to prove that on a particular occasion the organization or individual acted in accordance with the routine practice.
Individual Habit. Evidence of an individual’s personal habit is not admissible to prove action in conformity with the habit on a particular occasion.
Routine Practice Defined. A routine practice is a regular, uniform, and substantially invariable response of a business organization, or of a person acting in a business capacity, to a repeated and specific situation. The following are not routine practice within Rule 406(1):
a policy, standing order, or written procedure which is not shown to have been regularly followed in practice, although such an instrument is evidence bearing upon whether a routine practice existed; and
a course of conduct shown only by isolated instances, or by instances the responses to which varied.
Sufficient Proof. The proponent of evidence under Rule 406(1) bears the burden of establishing, as a preliminary question under Rule 104(1), that the practice existed at the time in issue. In determining whether the proof is sufficient the court shall consider:
the number of occasions on which the situation arose and the response was made;
the uniformity of the response across those occasions;
the specificity of the situation to which the response is said to attach, a practice framed in general terms being insufficient;
the degree to which the response is automatic or is left to individual judgment; and
the period over which the practice is said to have obtained, and whether it obtained at the time in issue.
Manner of Proof. A routine practice may be proved by the testimony of a person having personal knowledge of the practice acquired through participation in it or through supervision of those who perform it, by records made and kept in the regular course of the business, by a system or process shown under Rule 901(2)(g) to produce an accurate result, or by any combination of these. Corroboration is not required, and the absence of an eyewitness to the occasion in issue does not preclude admission.
Individual Acting in a Business Capacity. An individual acts in a business capacity within Rule 406(1) when the individual performs the act in the course of employment, office, trade, or an undertaking conducted for gain, or in the discharge of a public office or a duty of a law enforcement, corrections, medical, or emergency service. Evidence of such an individual’s routine practice is admissible under Rule 406(1) notwithstanding Rule 406(2). Evidence of what an individual habitually does otherwise than in a business capacity remains inadmissible to prove conformity, whether the evidence is offered by that individual or against that individual.
Other Uses of Habit Evidence. Rule 406(2) forbids the use of an individual’s personal habit to prove action in conformity on a particular occasion. It does not exclude evidence of an individual’s practice or usual conduct where offered for another purpose, such as:
proving the individual’s knowledge, notice, capacity, or state of mind;
proving identity, where the manner of acting is sufficiently distinctive;
explaining the manner in which a record relied upon was created or kept.
Evidence admitted under this subdivision is subject to Rule 403, and the court shall on timely request restrict it to its proper scope under Rule 105.
Absence of a Routine Practice. Evidence that a business organization had no routine practice governing a situation, or that its practice was not followed on other occasions, is admissible to rebut evidence offered under Rule 406(1), and is subject to the same requirements of proof.
Procedure. The court shall determine the sufficiency of the proof under Rule 406(4) before the evidence of the practice is placed before a jury, and may take that proof in the proceeding communications outside the presence of witnesses. The court shall state its findings on the record. Where the proof of the practice is to be supplied later, the court may admit the evidence de bene under Rule 104(2), subject to a motion to strike.