Evidence of Habit vs. Character Evidence - How to Differentiate The Two on the MBE and MEE

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             One of the more nuanced difference within the topic of relevance (one of the three major components of evidence law on the UBE – those being relevance, witnesses, and hearsay) is the difference between evidence of a persons habit as opposed to character evidence.

 The easiest way to remember the difference between the two is as follows:  HABIT IS WHAT WE DO, CHARACTER IS WHO WE ARE.  Now let me elaborate.

 Habit evidence as used in Federal Rules of Evidence refers to the evidence used to prove that a person acted in a particular way on a particular occasion based on that person's tendency to reflexively respond to a particular circumstance in a particular way. Habit evidence is admissible for the purpose of proving how someone would act or react in a particular situation at issue.

 

Habit evidence is to be distinguished from character evidence. Character evidence is the evidence which is proved by the defendant’s previous habits. It may also be based on the opinion of a witness and the reputation in the community. 

As concerns HABIT evidence, we should ALWAYS look for the keywords that help point us in the direction of a habit question on the MBE or MEE.  Words like “always,” “never,” “all of the time,” “none of the time,” “every time” etc.  We can also find words like automatically, invariably, inevitably, etc.

Habit of a person (or the routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.  This should be distinguished from character evidence which refers to a persons GENERAL DISPOSITION OR TENDENCY. Character evidence is usually NOT admissible to prove conduct on a particular occasion. For example, the fact that Carlos is a “careless” driver is NOT admissible to suggest that he ran a particular red light and caused the accident involving the plaintiff.

Character evidence is allowed if the conduct rises to the level of a “habit, routine or practice,” and the evidence is admissible in its own right. Evidence that a person has a habit, routine or practice may be used to show that the person acted in accordance with that habit on a particular occasion.  If a person goes for a run along the same route every morning at 5:00 AM, for example, he has established a habit. Thus, a court may admit evidence about the defendant’s habit of running at 5:00 AM, to show that the defendant was likely near the scene of the crime, if the crime occurred along the defendant’s usual route around the time that the defendant takes his run. This information is both relevant and admissible as habit evidence.

HABIT evidence, therefore, is what we do.  It does NOT pertain to who we are as an individual, that would be character evidence.  Instead, habit evidence pertains to our tendencies and not our character.

One more example.  Let us assume that you and I both bring peanut butter and jelly sandwiches to work every Tuesday of the year and never on any other day of the week.  You might be the most peaceful and honest person, I might be the most violent and dishonest person.  The sandwiches?  That is out HABIT, that is WHAT WE DO.  The character traits of peacefulness, violence, honesty or dishonesty?  That is CHARACTER evidence, that is WHO WE ARE.

Remember!  HABIT IS WHAT WE DO, CHARACTER IS WHO WE ARE.

BAR EXAM TIP – Be sure to look for the aforementioned keywords for habit to distinguish a character evidence question from a habit question.


Conclusion

            It is extremely important to understand the difference between habit evidence and character evidence.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on a habit or character MEE issue depends on your knowledge of the law. For more information concerning this section of Evidence, another area of Evidence, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com

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