Michael J. Hutter New York's Habit Evidence Rule as Applied by the Appellate Division
Recent appellate decisions show that while the courts may be receptive to the admission of habit evidence, the courts will in fact approve the admission only after a rigorous examination of the foundation proof proffered, and carefully limit the evidentiary force of the habit when admitted.
December 01, 2021 at 12:00 PM
14 minute read
Evidence
New York law has long recognized that evidence of a person's habit is admissible to prove that the person acted in conformity with that habit on a particular occasion. See Matter of Kellum, 52 NY 517, 519-20 (1873). As stated by the Court of Appeals more recently: "[E]vidence of habit has, since the days of the common law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." Halloran v. Virginia Chems., 41 N.Y.2d 386, 391 (1977). Notably, although the New York courts disapprove of evidence of a person's trait(s) of character offered to prove how a person acted on a given occasion, they are more receptive to evidence of a person's habit to prove conformity. Barker and Alexander, Evidence in New York State and Federal Courts (2d ed.) §4:41.
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