This is our first followup on the propsed 2005 Amendments to Rules by the Supreme Court.
For our previous posting on this topic CLICK HERE.
For a link to entire set of proposed rules from the Supreme Court to take effect on Jan. 1, 2006, then CLICKING HERE.
The following is an entirely new rule of evidence. There is currently no counterpart KRE 406, but there is an FRE 406.
KRE 406 Habit; Routine Practice
Proposed adoption of KRE 406 :
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.
COMMENT
Most jurisdictions (perhaps all but Kentucky and one other) recognize the propriety of proving that a person acted in a particular way on a given occasion by showing that he had a "habit" of so acting . At the same time, most if not all jurisdictions refuse to allow litigants to prove that a person acted in a particular way on a given occasion by showing that he had a particular trait of character (except in criminal cases pursuant to KRE 404). Evidence that a person habitually stops at a railroad crossing before moving across, offered to show that he stopped on a given occasion, is a classic illustration of the former; evidence that a person has a general disposition toward carefulness, offered to prove that he stopped at a crossing on a given occasion, is an illustration of the latter.
Rule 406 authorizes the introduction of evidence of a person's habit (and the routine practice of an organization) without opening the gates to the introduction of evidence of character or generalized disposition.
The provision contains no definition of "habit" or "routine practice" but the following definition from the Advisory Committee Notes on Federal Rule 406 is both helpful and typical:
"Character and habit are close akin . Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness . 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation . If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street.
A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-s ignal for a left turn, or of alighting from railway cars while they are moving . The doing of the habitual acts may become semi-automatic ." Fed .R .Evid . 406, Advisory.
Committee's Note.
It is contemplated that testimony about a driver's specific behavior (such as activating turn signals) would be admissible under the provision but that testimony about a driver's general behavior (such as always driving carefully) would be inadmissible.
The provision does not attempt to address the following questions : (1) How many times does a response to a specific stimulus have to occur in order to constitute a habit for purposes of the rule? (2) How much behavioral uniformity is required for multiple repetitive responses to qualify as habitual under the rule?
With respect to these questions, drafters of the Federal Rules made the following points:
. . . The extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion. . . . While adequacy of sampling and uniformity of response are key factors, precise standards for measuring their sufficiency for evidence purposes cannot be formulated ." Fed.R.Evid . 406, Advisory.
Evidence authorities believe that the lack of certainty on these points is insufficient reason for an exclusion of all habit evidence and that these are matters that can be resolved by the trial judge (as he/she resolves other matters of relevance) on a case-by-case basis . The same is true with respect to matters involving the methods by which habit can be proved (a single witness who has seen 50 responses or 50 witnesses who have seen 1 response). With respect to all such matters, the trial judge is well-suited to resolve issues bearing on admissibility and, of course, the trial judge has the discretion under Rule 403 to exclude such evidence when its probative value is substantially outweighed by such undesirable effects as undue delay, waste of time, confusion of the jury, and others.
Rule 406 is borrowed from the Federal Rules without modification . Rule 406 changes Kentucky law. The Supreme Court ruled repeatedly during the last century that evidence of habit could not be used to prove conduct in conformity with habit. See e.g., Lexington R. Co . v. Herring , 96 S .W. 558 (Ky. 1906); Cincinnati, N .O. & T.P. Ry. Co. v . Hare's Adm'x , 178 S.W.2d 835 (Ky. 1944). Recently, however, a majority of the Court expressed the view that habit evidence should be admissible to prove conduct in conformity with habit, although a majority held that such evidence could not be admitted without explicit authorization for such in the Rules of Evidence. See Burchett v. Commonwealth, 98 S.W.3d 492 (Ky., 2003). Rule 406 adopts the view of the Court's majority and brings Kentuckylaw into line with that of nearly all other states and the Federal Rules.
Kentucky Law Blog Commentary
We do not intend to weigh in on this topic with any gravitas or intellectual insight other than to refer you to the most recent cases on this topic.
Note that Burchett v. Com., 98 S.W.3d. 492 (Ky. 2003) (2000-SC-000179-DG.pdf) was the subject of some interesting debate between Justices Johnstone (majority) and Cooper (dissent) in Brooks v. Lexington Fayette County Urban Gov't Housing Authority, 2001-SC-0816-DG (Ky., 2004). Justice Cooper cried foul, but Justice Johnstone responded to this by saying Cooper was actually crying wolf on the development of the law. The issue in Burchett was phrased such that "While Appellant did not contest admission of evidence that he smoked a marijuana cigarette the day before the collision, Appellant did contest the admission of any evidence that he had a habit of drinking alcohol or smoking marijuana everyday."
In reaching our holding in Burchett, we relied on a number of pre-KRE cases that held that evidence of habit or custom is not admissible to show that a party acted either negligently or non-negligently on a particular day or time in question . See, etc .., Cincinnati, N .O . & T.P. Ry. Co . v. Hare's Adm'x, 297 Ky. 5, 178 S .W .2d 835 (1944), overruled on other grounds, Louisville & N .R. Co . v. Fisher, 357 S .W .2d 683 (1962). (Evidence of deceased's custom of carefully going over railroad crossings was not admissible to show that the decedent acted non-negligently on the day he was struck and killed by a train while going over a crossing .) But our holding in Burchett does not affect all the types of evidence that might arguably be categorized as habit evidence under FRE 406. For example, if one uses the annotation to FRE 406 as a guide, evidence regarding custom and usage in a particular industry is admissible evidence under the rule to assist the trial court to determine the meaning of an ambiguous contract. See Maior v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). Likewise, the annotation points to evidence of custom and practice within a particular industry, group, or organization as being admissible under the rule as evidence "bearing on the standard of care in determining negligence." Muncie Aviation Corp . v. Party Doll Fleet, Inc. , 519 F.2d 1178, 1180 (5th Cir. 1975). Business custom, practice, and usage have long been admissible in Kentucky for these same purposes. See, etc .., Martin v. Ben P. Eubank Lumber Co. , Ky., 395 S.W.2d 385, 386 (1965) (The "course of dealing between parties and any usage of trade may be competent to explain any ambiguities in a contract.") (internal quotation marks omitted) ; Bass v. Williams, Ky. App ., 839 S .W.2d 559, 565 (1992) ("While custom and usage may, under some circumstances, establish a standard of care, it may not negate an established standard .")
To satisfy the curiosity expressed in the dissent, we explain that the above-cited cases illustrate the point that Burchett merely reaffirmed the pre-KRE, common-law rule that evidence of a party's particular "habit" is not admissible to prove that the party acted either negligently or non-negligently in accordance with his or her habit. Burchett does not exclude all evidence that falls within FRE 406's umbrella of admissibility. It does not preclude evidence of the custom and practice in an industry to prove the terms of an ambiguous contract. Likewise, it does not preclude introduction of the evidence of an entity's regular business practices that is part of the foundation necessary to introduce business records under the hearsay exception of KRE 803(6). And Burchett certainly does not preclude evidence of a defendant-employer's hiring practices and criteria in an employment-discrimination case. Thus, the dissent's claim of "fowl" in response to our reasoning is, in actuality, a cry of "wolf."
