Rule 406. Habit; routine practice; admissibility; method of proof.
(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) Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
Source:Laws 1975, LB 279, § 16.
Evidence was insufficient to show a routine or habit within the meaning of this section, because a single incident did not establish a routine, and the relevance of the evidence depended on the claim that the actor engaged in a deliberate volitional act, not a habit. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
Admissibility of habit evidence depends on the trial judge's evaluation of the particular facts and is thus reviewed for an abuse of discretion. Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006).
The precise contours of how frequently and consistently a behavior must occur to rise to the level of habit cannot be easily defined or formulated, and as with other areas of relevancy, admissibility depends on the judge's evaluation of the particular facts of the case. The exercise of judicial discretion is implicit in determinations of relevancy and admissibility under this section, and as a result, the trial court's decision will not be reversed absent an abuse of discretion. Under this section, the trial court determines whether the predicate evidence necessary to prove conduct by habit has been introduced. Habit may be shown by opinion or specific instances of conduct. It is within the trial court's discretion to determine if there is sufficient foundation for a witness to give his or her opinion about an issue in question. Habit evidence is relevant because such evidence makes it more probable that the person acted in a manner consistent with that habit. Hoffart v. Hodge, 9 Neb. App. 161, 609 N.W.2d 397 (2000).